1938-04-08

OFFICIAL REPORT


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House of Commons deflates
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Friday, April 8, 1938


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On the orders of the day:
Right Hon. W. L. MACKENZIE KING (Prime Minister):: Possibly the house will permit me, before we reach the special order, to answer a question asked yesterday by the right hon. leader of the opposition (Mr. Bennett) with reference to the German plebiscite to be taken on April 10. My right hon. friend asked:
(1)	Has the German government asked the Canadian government to provide facilities for the vote?
(2)	What reply was made?
(3)	What steps have been taken to ascertain if any of those who claim, the right to vote have been naturalized?
The answer to the first question is "no," and consequently no answer is required to the second.
With regard to the third question, I might say it is not anticipated that any German nationals resident in Canada will participate in the plebiscite. No question arises of German nationals voting in Canada. The present plebiscite is being held under the provisions of the German electoral law of 1933, as amended in 1935, whereby German nationals living abroad are accorded the right, although they are not obligated to exercise it, of securing from the German consular authorities in the countries in which they reside voting certificates, which are accorded on proof of their German nationality. These voting certificates permit them to vote in German elections either: (1) by returning to Germany; or (2) by taking passage on a German ship and voting on the high seas.
The law provides that if a minimum of ten German nationals in a particular port request it, and a German ship is available in port, the German nationals may be taken outside the territorial waters and permitted to vote.
In the present instance, while the plebiscite is to be held on April 10, there are provisions to cover special cases, which would permit voting at any time between April 1 and April 15. I have been informed by the German consulate that in so far as they are aware, no arrangements have been made either in eastern or in western Canada for German nationals resident in Canada to take advantage of these provisions.
It is unlikely that there would be any substantial number of naturalized Germans in Canada who would be eligible to participate in the plebiscite. As a general rule, under the provisions of German law, a German loses his German citizenship upon naturalization in Canada. There are a few relatively unimportant exceptions to this rule.
There is a possibility that there might be persons resident in Canada who had been naturalized under the provisions of the Naturalization Act and who, notwithstanding such naturalization, were recognized by German law as retaining German citizenship. There is a further possibility -that such persons might be in a position where they could participate in the plebiscite. H they did so participate, they would be subject to section 9 of the Naturalization Act which makes provision for the revocation of certificates of naturalization by the governor general in council on -report of the Secretary of State of Canada.


Right Hon. R. B. BENNETT (Leader of the Opposition):: Mr. Speaker, I think the country will be pleased to receive the answer that the Prime Minister (Mr. Mackenzie King) has been good enough to make. There arises out of the last part of the answer, however, a question that need not be elaborated now, but an opportunity may be offered again to do so. The truth is that numbers of Germans who had been naturalized in this country responded to the call of their country in 1914, and they gave us to understand that they felt they were bound to do so. It was desirable, I think, in view of the statements which appeared in the press, that we

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should receive the information that the Prime Minister has been good enough to give us; for it will do something to make clear what I now recall was known in 1934 and 1935 and which I had forgotten entirely until I heard the right hon. gentleman read it, as to the methods which have been provided for taking the opinion of German nationals on matters referred to them by way of plebiscite or otherwise.


Mr. A. W. NEILL (Comox-Alberni):: May I ask the Prime Minister if his knowledge of the situation indicates that these privileges of voting extend to the children of naturalized Germans, that is, those born in this country, or is it confined only to German nationals and those naturalized?


William Lyon Mackenzie King: I do not think children of Germans naturalized in this country would have the right to vote, but I cannot answer the hon. gentleman's question definitely offhand.



CABLE AND WIRELESS RATES


Hon. C. D. HOWE (Minister of Transport):: I wish to lay on the table the official announcement of the new cable and wireless rates which will become effective on the twenty-fifth instant as a result of inquiries and negotiations carried on during the past two years at the instance of the home government and the governments of the various dominions by the imperial communications advisory committee.



SCOTSGUARD, SASIC., FARMERS LACK OF FEED FOR LIVE STOCK OWING TO DISCONTINUANCE OF WINTER FEED

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On the orders of the day:
Richard Bedford Bennett: I should like to bring to
the attention of the minister, with the permission of the house, a matter that I was asked urgently to direct to the attention of the government to-day, namely, the inability of the settlers of Scotsguard, Saskatchewan, to obtain feed for their cattle and horses, winter feed having been discontinued, and their being unable to secure adequate information in respect to the applications they have made to the officials in that section I was asked to bring the matter to the attention of the minister in the house in the belief that he would perhaps have more information than anyone else and would see that the matter was at least explained to the settlers in that locality.



PRIVY COUNCIL APPEALS


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Hon. C. H. CAHAN (St. Lawrence-St. George) moved the second reading of Bill No. 19, respecting appeals to the Judicial Committee of the Privy Council.
He said:	This bill, No. 19, is short, containing only three sections which I propose to place on Hansard:
1.	This act may be cited as The Privy Council Appeals Act, 1938.
2.	The Judicial Committee Act, 1833, chapter forty-one of the statutes of the United Kingdom of Great Britain and Ireland, 1833 and The Judicial Committee Act, 1844, chapter sixty-nine of the statutes of Great Britain and Ireland, 1844, and all orders, rules or regulations made under the said acts are hereby repealed in so far as the same are part of the law of the Dominion of Canada.
3.	Notwithstanding any royal prerogative or anything contained in the Interpretation Act or in the Supreme Court Act or in any other act of the parliament of Canada no appeal shall lie or be brought from any judgment or order of any court in Canada, in relation to any matter within the competence of the parliament of Canada, to any court of appeal, tribunal or authority by which, in the United Kingdom of Great Britain and Northern Ireland, appeals or petitions to his majesty in council may be heard.
Though the British North America Act, 1867, purported to declare that the exclusive legislative authority of the parliament of Canada extends to all matters coming within certain classes of subject mentioned in section 91 of that act, it was nevertheless soon ascertained that the Colonial Laws Validity Act, enacted two years previously by the parliament of the United Kingdom, effectively restricted the field of Canadian legislation.
Section 2 of that act of 1865 provided that:
Any colonial law which is or shall be in any respect repugnant to the provisions of any act of parliament extending to the colony to which such law may relate . . . shall be read subject to such act . . . and shall to the extent of such repugnancy but not otherwise be and remain absolutely void and inoperative.
The Statute of Westminster, 1931, which enacts statutory bases for the constitutional position established in 1926, provides, in brief:
That the Colonial Laws Validity Act shall no longer apply to any law made after the passage of this act by the parliament of a dominion;
That no law and no provision of any law made after December 11, 1931, by the parliament of a dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future act of the parliament

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of the United Kingdom, and that the powers of the parliament of a dominion shall include the power to repeal any such act in so far as it is part of the law of the dominion; and
That no act of the parliament of the United Kingdom, passed after December 11, 1931, shall extend to a dominion as part of the law of that dominion unless that dominion has requested and consented to its enactment;
This bill purports to repeal the Judicial Committee Acts of 1S33 and 1844 in so far as they form part of the law of this dominion.
In moving for leave to introduce this bill on February 10 last, I pointed out that by the commissions and instructions to governors of the provinces, authorizing the establishment of a judicial system, each governor in council was constituted the highest appellate tribunal in his province, and that such appellate tribunal consisted of the governor and members of his executive council, from whose decisions an appeal lay to the king in council.
That was an appeal from a provincial court, exercising both political and judicial functions, to another court at Westminster consisting of the king in council, which also exercised political as well as judicial functions.
That was the class of appeals which the Judicial Committee Act, 1833, purported to regulate, and eleven years later the Judicial Committee Act, 1844, provided for an appeal to the king in council from any judgment, sentence, decree or order of any inferior court of justice within any British colony or possession abroad. Those two acts of the parliament of the United Kingdom of Great Britain and Ireland, the one 105 years old, the other 94 years old, which were adapted to the times and to the conditions which prevailed before the establishment of responsible government in these colonies-when the government at Westminster, by order in council, arbitrarily exercised supervision and control over all colonies and possessions abroad-this parliament is now invited to repeal, in so far as they now form a part of the law of this dominion.
The judicial functions of governors in council were long ago abolished throughout Canada, but unfortunately the Judicial Committee of the Privy Council, to whom the judicial functions of the king in council were transferred by the Judicial Committee Acts of 1833 and 1844, have never wholly ceased, in the exercise of their political functions, to decide constitutional issues, on appeals from other countries of the empire, on grounds of imperial political policy, which is largely based on considerations of political expediency.
Though Canada is declared to be an autonomous community within the British empire, equal in status to the United Kingdom and to the other dominions of the commonwealth, and in no way subordinate to the United Kingdom in any aspect of our domestic or external affairs, yet a committee of the privy council of the United Kingdom, under those two ancient acts which it is the object of this bill to repeal, still controls and directs the political development of Canada, and dominates the independent judiciary of this country, in respect of all civil matters coming within the appellate jurisdiction of the judicial committee. Their jurisdiction in criminal matters was abolished by this parliament in 1931.
For practical purposes therefore the sovereignty of Canada in civil and constitutional matters now resides in the judicial committee. Its members assume a final veto power over all the important legislation of this parliament. They arrogate to themselves the right to weigh the motives of members of this parliament in enacting such legislation, and, although personally ignorant, except through meagre press reports, of the social, industrial and commercial conditions prevailing throughout this dominion, they arrogate to themselves a prescience and clairvoyance which entitles them to substitute their political judgments, and even their personal preferences, for the deliberate legislative enactments of the elected representatives of the people who sit in the parliament of Canada.
In a debate in the House of Commons at Westminster on March 28, 1867, Mr. Gladstone, referring to the enactment of the British North America Act, 1867, said that this act had been passed-
. . . with a promptitude which, if it had been a measure affecting ourselves, would have been precipitancy.
This was, however, he continued,
... an acknowledgment of the title of these colonies to deal practically with their own affairs.
Mr. Lowe, afterward Lord Sherbrooke, who followed, remarked that the act had been passed with the expedition commented on by Mr. Gladstone just because parliament felt that it was a matter with which it had only the most formal concern. Nevertheless, the judicial committee, which thereafter continued to exercise political as well as judicial functions, have construed and applied the British North America Act, 1867, as if it were an ordinary enactment of the parliament of Westminster. They have ever evinced an extreme reluctance to inform themselves, in
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fact it would appear that they seldom, if ever, inform themselves concerning, and they have refused to refer to the political and parliamentary history of British North America as an aid in construing the original meaning and intent of the British North America Act. It is true that the judicial committee occasionally refer most casually to the intention of the parliament of the United Kingdom in enacting the British North America Act, although in so doing they ignore the fact that in enacting this measure the parliament of the United Kingdom was merely adopting and confirming a draft prepared by Canadian statesmen, who were expressing their final conclusions in the English language as then employed in British America, and that that parliament, without detailed discussion, enacted the bill as it had been drafted. They have therefore repudiated every suggestion that the terms of the act should be construed in accordance with the intentions of those who framed it, as clearly expressed in the public documents and debates which preceded its enactment.
Those who have carefully studied the constitutional development of these British North American colonies will frankly concede that the clear intentions of the Quebec conference resolutions, on which the act of 1867 was based, have in many instances been completely frustrated by decisions of the privy council, which our Canadian courts have been obliged to follow, despite their own opinions to the contrary. In fact, members of the Supreme Court of Canada, in deciding constitutional issues, must frequently refrain from considering the real meaning and intent of the framers of the British North America Act, and restrict their intellectual efforts to iseertaining as best they can the purport of the apparently conflicting decisions of the judicial committee.
Let us take as one example the " peace, order and good government " clause. Section 91 of the British North America Act enacts that:
91. 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:
This phrase, "to make laws for the peace, order and good government" of Canada had been employed throughout a century in all the royal commissions and instructions to colonial governors in British America; in the Quebec Act of 1774, the Constitutional Act of 1791, and the Union Act of 1840, as clearly

indicating that the power to make laws for the peace, order and good government of a colony or province included, the power to make any and all laws which were not repugnant to such statutes of the parliament of Great Britain as in terms extended to such colony or province.
Lord Carnarvon, Colonial Secretary, in introducing the British North America bill to the House of Lords on February 19, 1867, said:
It will be seen under the 91st clause that the classification is not intended to "restrict the generality" of the powers previously given to the central parliament, but that those powers extend to all laws made "for the peace, order and good government" of the confederation

terms which, according to all precedent, will, I understand, carry with them an ample measure of legislative authority.
But during the past seventy years successive decisions of the Judicial Committee of the Privy Council have so far frustrated the intentions of the founders of the Canadian confederacy as to obliterate the residual power of the parliament of the dominion to make "laws for the peace, order and go-od government of Canada," except in the extreme case of civil strife or insurrection arising in Canada, or in the case of Canada becoming involved in war with a foreign state.
On the other hand, the judicial committee have so extended the legislative jurisdiction of the provinces to make laws "in relation to property and civil rights" as almost to reverse the relations originally intended to exist between federal and provincial powers, by vesting nearly all residual powers in the provinces, under the power to make laws in relation to property and civil rights in the province.
In a recent address at Toronto I explained in detail the origin and evolution of the provisions contained in section 92 of the British North America Act that "in each province the legislature may exclusively make laws in relation to matters coming within" the class of subjects therein designated as "property and civil rights in the province," and I showed quite clearly, I think, that that clause was inserted in section 92 of the British North America Act, as was declared at the time, and as all students of our Canadian history well know, for the protection of those French customs, laws and ordinances which had reference to the personal, family and community life of the French-Canadian people, and which had been definitely ascertained and embodied in the final report made by the commissioners for the codification of the civil law of Quebec on November 24, 1864.

Privy Council Appeals
It is perfectly clear, I think, that the framers of the British North America Act, 1867, had clearly in their minds that the matters comprised in the class of subjects designated "property and civil rights in the province" which were exclusively reserved to the provincial legislatures, were such matters of fundamental civil law as related to the ownership, alienation or conveyance and transfer of property, the leasing and mortgaging of property, the devolution of estates by inheritance and by will, rights arising from personal status and domestic relations, legitimacy, minority, capacity to contract or alienate, marriage, judicial separation, tutorship, curator-ship and the like, as appear from the statutes and public documents of the century of our history preceding the enactment of the British North America Act.
It was this fundamental body of civil law, then definitely ascertained by the commissioners appointed for that purpose, which was placed within the legislative jurisdiction of each province by the terms of section 92, subsection 13, of the British North America Act:
92. In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects, next hereinafter mentioned; that is to say,-
13. Property and civil rights in the province.
The words of the statute "in relation to," as they appear in the phrase "in relation to property and civil rights in the province," with its several variations, such as laws "relating to property and civil rights" and laws "relative to property and civil rights," had been previously employed, time and time again, in English and in Canadian statutes and official documents, as meaning the dealing definitely, directly and essentially with certain fundamental laws therein indicated.
The Judicial Committee of the Privy Council have practically eliminated the words "in the province" and have failed to give to these words employed in the statute the restricted signification which was clearly intended by the framers of the British North America Act, and which was attached to them throughout a century of Canadian history. Moreover, the signification of the words "property and civil rights" has been so widely extended that, excepting the subjects specifically enumerated in section 91 of the British North America Act, they are now deemed to include almost every other subject of legislation. In fact the words "in relation to property and civil rights in the province," as now defined by the judicial committee, who have substituted for the words "in relation to" the one word "affecting"-which they employ as
meaning incidentally touching upon property and civil rights, not property and civil rights in the province but property and civil rights in the widest application of those terms- have now, with the exception of those specifically enumerated in section 91, placed every conceivable subject of legislation within the provincial jurisdiction, and even the subjects specifically enumerated in section 91 have been severely restricted by their interpretations.
This grave departure from the real purpose and intention of the framers of the British North America Act occurred within fourteen years after its enactment. Sir Montague E. Smith, in 1881, in the case of The Citizens Insurance Company of Canada v. Parsons,
7	Appeal Cases, 96, at page 111, without any investigation of the original purport and application of the words "property and civil rights," based the decision of the judicial committee in that ease upon the terms of The Quebec Act, 1774, 14 George 3, chapter 83. He said:
It is to be observed that the same words, " civil rights," are employed in the act of 14 George 3, chapter 83, which made provision for the government of the province of Quebec. Section 8 of that act enacted that His Majesty's Canadian subjects within the province of Quebec should enjoy their property, usages, and other civil rights, as they had before done, and that in all matters of controversy relative to property and civil rights, resort should be had to the laws of Canada, and be determined agreeably to the said laws. In this statute the words "property" and "civil rights" are plainly used in their largest sense; and there is no reason for holding that in the statute under discussion they are used in a different and narrower one.
The judicial committee quite properly interpreted section 8 of the Quebec Act, 1774, as enacting that the inhabitants of the province of Quebec, of French descent, should enjoy their property, usages and other civil rights as they had done before the cession of 1763, but the judicial committee made no investigation of the public records to ascertain the nature and extent of the civil rights which they had enjoyed in old Quebec under the French regime, an investigation which was essential to an intelligent decision of the issue then before the judicial committee.
They properly interpreted the same section
8	of the Quebec Act as enacting that in all matters of controversy relative to property and civil rights, resort should be had to the laws in force in Quebec prior to 1763, and that such matters should be determined agreeably to said laws; but they neglected to ascertain the terms and scope of those laws which were applied during the French regime. The judicial committee were content to trust to fancy for their facts and to make an entirely
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erroneous declaration that the words "property" and "civil rights" were used in the statute of 1774 in the largest sense possible, and they erroneously assumed that the same words in section 92 of the British North America Act should receive the widest possible interpretation.
In this complacent manner, they established for all time the widest possible interpretation of the term "property and civil rights in the province," whereas, if the judicial committee had read the address of the Attorney General Thurlow, afterward Lord Chancellor Thurlow, in the House of Commons at Westminster, or had read the evidence of Governor Carleton, Francis Maseres, former attorney general of Quebec, William Hey, Chief Justice of Quebec, and others given before the House of Commons sitting in committee upon the Quebec bill of 1774, no such decision could possibly have been given. And so it happened that the original intention of the framers of the British North America Act wras frustrated and set at naught by carelessly considered decisions.
I have time to indicate only one other radical departure from the purpose and intent of the framers of the original act, although many others might be cited. In drafting section 91 of the British North America Act the framers of that act had before them section 8, paragraph 3 of article 1 of the constitution of the United States of America, which, dealing with the powers of congress, reads:
To regulate commerce with foreign nations, and among the several states, and with Indian tribes.
The Canadian draftsmen were not content with the restricted terms of that paragraph of the constitution of the United States, which had then been under review and broadly interpreted and applied by the supreme court of the neighbouring republic for nearly a century before the British North America Act was drafted. The Canadian draftsmen insisted upon vesting in parliament the authority to regulate "trade" as well as "commerce," without any restriction, and without differentiating between foreign trade and commerce, and domestic or interprovincial trade and commerce.
Section 91 of the British North America Act 1867, as then drafted and enacted, contains the following:
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: . . .
2. The regulation of trade and commerce.
[Mr. Cahan.3
It would be difficult to frame a more precise and concise clause respecting trade and commerce. The legislative authority thereby vested in the parliament of Canada was not only declared to be "exclusive" but it was declared to be exclusive, "notwithstanding anything in this act."
In the language then in vogue, "trade" included every mechanical or mercantile employment in which a person might engage for procuring subsistence or for profit. "Trade" did not apply to or include the learned professions, or to the liberal arts which were concerned with all branches of academic learning, or to agriculture, in so far as agriculture was concerned with the cultivation of the earth for the production of vegetable life. But "trade", in the parlance of that day, did include the purchase, sale or exchange of commodities of all kinds, including the products of agriculture as well as the products of every other productive activity, and particularly the products of every organized trade or business, whether such trade was foreign trade or domestic or home trade, whether wholesale trade or retail trade, whether involving sales in large quantities or in small parcels.
Commerce then connoted merchandise of every kind and description in the large and general sense, and included the exchange or sale of goods, wares and products of all trades, and commercial intercourse, by way of trade and traffic, in all its branches. Trade and commerce, under then existing conditions, connoted a continuous flow from primary production, through the various stages of transportation and distribution, until the product reached the consumer, either at home or abroad.
Eleven years after the British North America Act was enacted, Mr. Justice Strong, of the Supreme Court of Canada, admittedly one of the ablest members of that court, (2 S.C.C. 104) said:
That the regulation of trade and commerce in the provinces, domestic and internal, as well as foreign and external, are, by the British North America Act, exclusively conferred upon the parliament of the dominion, calls for no demonstration, for the language of the act is explicit.
In 1880 the judicial committee (7 Appeal Cases, 96) remarked that:
The words "regulation of trade and commerce" in their unlimited sense are sufficiently wide if uncontrolled by the context and other parts of the act, to include every regulation of trade ranging from political arrangements in regard to foreign governments, requiring the sanction of parliament, down to minute rules for regulating particular trades.

Privy Council Appeals
Nevertheless, the judicial committee then held that the full scope of the term could not have been intended by those who framed the British North America Act, because, "banking," "Weights and measures," "bills of exchange and promissory notes," "interest,' "bankruptcy and insolvency" were also mentioned in section 91. They seemed oblivious to the fact that these additional subheads were obviously used for greater clarity, inasmuch as "weights and measures" are employed for other than trading transactions; "bills of exchange and promissory notes" are not necessarily restricted to trading and commercial transactions; and "interest" may be payable on loans, advances, or banking credits in respect of matters which are obviously not included in the .regulation of trade and commerce.
And thus, in decision after decision, the provision of the British North America Act which enacted that exclusive legislative authority of the parliament of Canada, notwithstanding anything in that act, extends to all matters-note the term-extends to all matters coming within that class of subjects described as the regulation of trade and commerce, has been restricted and circumscribed until, in the final results, the judicial committee have denied to the trade and commerce clause all efficacy as an independent enumerative head of dominion legislative jurisdiction.
The subject matter of the regulation of trade and commerce remains now as originally drafted in the simple, concise and unequivocal terms of section 9:1 of the British North America Act, and, though the complex activities comprised in that original clause have vastly expanded during the past seventy years, the legal signification of the clause has repeatedly been restricted and circumscribed by judicial interpretation, until almost every vestige of its original authority has been eliminated, with the exception that in the John Deere Plow case (1915 A.C. 330) Lord Haldane placed under the regulation of trade and commerce clause the power to incorporate dominion companies, though on another occasion, in the Great West Saddlery case (1921, 2, A.C. 91) Lord Haldane, true to his predilections for the metaphysics of Hegel, placed the power to incorporate dominion companies under the general power to make laws for the peace, order and good government of Canada.
Neither t'he ancient sophists, nor the more modern metaphysicians, have ever been so successful as the judicial committee in explaining that reality is a mere illusion of the mind.
But in the case of the judicial committee it is unfortunately true that, as Gulliver once said: "If once judges go wrong, they make it a rule never to come right"; and so it has come to pass that Canadian courts are now precluded from reconsidering the original text of the British North America Act and so deciding constitutional issues upon their merits; they are inextricably bound by a series of decisions of the judicial committee that have served to impair the constitution which our courts are presumed to interpret.
A number of the decisions of the judicial committee, which now unfortunately control the discretion of the Supreme Court of Canada, as well as the supreme courts of the provinces, were rendered during the first twenty years of our existence as a dominion.
In 1871, in order to expedite the hearing of appeals from colonial courts, including those from the new Dominion of Canada, an act was passed by the parliament of the United Kingdom providing that four members of the judicial committee should each receive a salary of £5,000 yearly and that these four members might be English judges, or retired East Indian judges from Bengal, Bombay or Madras. Sir Montague Smith, a puisne judge of the Court of Common Pleas, and two other judges from the East Indies, were appointed, but so discredited, at that date, was the judicial committee, that three English judges, to whom it was offered, successively refused an appointment, and finally the Lord Chancellor appointed Sir Robert Collier, who was not and had not been a judge of any court, and who was not, therefore, qualified under the terms of the Judicial Committee Act, 1844. This lack of qualification was overcome by appointing Sir Robert Collier to fill, for three days, a vacant judgeship in the Court of Common Pleas, and then he was appointed a member of the judicial committee.
It is noteworthy that Chief Justice Cock-burn of the Queen's Bench, in a letter to Mr. Gladstone, dated November 10, 1871, protested that the colourable appointment of Collier to the judicial committee had seriously compromised the dignity of the judicial office, and he denounced the grievous impropriety of the proceedings as a mere subterfuge and evasion of the terms of the statute. The government of Mr. Gladstone, which made the appointment, only missed censure in the House of Lords by a majority of one, and in the commons by a majority of twenty-seven, after a stormy debate that closed at three o'clock in the morning.
For fourteen years thereafter, these two English judges. Sir Montague Smith and Sir
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Robert Collier, with four East Indian judges, Sir James Colville, Sir Robert Couch, Sir Barnes Peacock and Sir Arthur Hobhouse, together with only one judge of standing from the English bench, formed the judicial committee, under the presidency of the Lord Chancellor of the day, when he was sitting, which was vested with the responsibility of interpreting the Canadian constitution, but as a matter of fact, on several occasions, in the guise of interpretative decisions, they wrote material amendments to the Canadian constitution, which to this day are binding upon our Canadian courts.
In the result, if Canada is to develop as a nation, we are constrained to procure amendments to the British North America Act, though there are reasonable grounds for the conviction that any new amendments are not likely to meet a better fate before the judicial committee than that which overtook certain sections of the original act.
The obvious aberrations of the judicial committee are partly explained by the fact that its members assume to exercise legislative and political as well as purely judicial functions. Haldane, Q.C., who shortly afterward became Lord Chancellor and president of the judicial committee, in 1899, in the Judicial Review, volume 11, page 279, in extolling the work of the late Lord Watson as a member of the judicial committee, frankly admitted the exercise by the committee of political functions. He said of Lord Watson:
He was an imperial judge of the first order. The function of such a judge, sitting in the supreme tribunal of the empire, is to do more than decide what abstract and familiar legal conceptions should be applied to particular cases. His function is to be a statesman as well as a jurist, to fill in the gaps which parliament has deliberately left in the skeleton constitutions and laws that it has provided for the British colonies.
The imperial legislature has taken the view that these constitutions and laws must, if they are to be acceptable, be in a large measure unwritten, elastic, and capable of being silently developed and even altered as the colony develops and alters. This imposes a task of immense importance and difficulty upon the privy council judges, and it was this task which Lord Watson had to face when some fifteen years ago he found himself face to face with what threatened to be a critical period in the history of Canada.
Haldane may have been referring to the disputes arising out of such appeals as Russell v. the Queen and Hodge v. the Queen, in the early eighties, or he may have had reference to the political campaigns in 1886 and 1887 for the secession of Nova Scotia from the dominion, or possibly to the resolutions of the

conference of the Liberal premiers which was 'held at Quebec in 1888. Haldane then proceeds:
Two views were being contended for. The one was that, excepting in such cases as were specially provided for, a general principle ought to be recognized which would tend to make the government at Ottawa paramount, and the governments of the provinces subordinate. The other was that of federalism through and through, in executive as well as legislative concerns, whenever the contrary had not been expressly said by the imperial parliament.
The provincial governments naturally pressed this latter view very strongly. The supreme court of Canada, however, which had been established under the Confederation Act, and was originally intended by all parties to be the practically final court of appeal for Canada, took the other view. Great unrest was the result, followed by a series of appeals to the privy council, which it was discovered still had power to give special leave for them, was commenced.
The only knowledge which members of the judicial committee could have had of these domestic political controversies was derived from infrequent cable messages published in the London Times or from gossip in the purlieus of the courts at London.
Haldane then relates that he was engaged as counsel for the provincial premiers in a number of these appeals, and that Lord Watson, by his several judgments, sought to modify and amend the Canadian constitution so as to bring it in accord with their conceptions of the exigencies of partisan political contests in Canada. If the Supreme Court of Canada were admittedly influenced by such considerations, its members would be liable to impeachment. Mr. Haldane proceeds:
Lord Watson made the business of laying down the new law, that was necessary, his own. He completely altered the tendency of the decisions of the supreme court, and established in the first place the sovereignty (subject to the power to interfere of the imperial parliament alone) of the legislatures of Ontario, Quebec and the other provinces. He then worked out as a principle the direct relation, in point of exercise of the prerogative, of the lieutenant governors to the crown. In a series of masterly judgments he expounded and established the real constitution of Canada.
Mr. SPEAKER:: I am sorry to have to interrupt the hon. gentleman, but his time has elapsed.


Mr. CAHAN:: I crave the indulgence of the house.


Some hon. MEMBERS:: Go ahead.


Walter Edward Foster: The hon. gentleman may proceed with the consent of the house.

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215?


Charles Hazlitt Cahan: It is to be noted that Lord Watson sought, by judicial interpretation, to establish a new constitution for Canada, in which each of the nine provincial legislatures would be vested with sovereign or supreme power, and the power of the dominion government to veto provincial legislation, as established by the British North America Act, would be completely eliminated. Mr. Haldane proceeds:
Nowhere is his memory likely to be more gratefully preserved than in those distant Canadian provinces whose rights of self-government he placed on a basis that was both intelligible and firm. ... It was the same with other portions of the empire. . . . He was a great servant of the empire.
Lord Haldane, who in 1912 became a member of the judicial committee, endeavoured to follow in Lord Watson's footsteps, but, at this date it is extremely doubtful if the "distant Canadian provinces" are enamoured with the political policies which those two judges of the privy council carried into effect, under the guise of giving judicial interpretations to the British North America Act, which Canadian statesmen had framed and placed before the parliament at Westminster for final enactment; but, in any event, those two judges succeeded in laying down novel rules for the interpretation of the British North America Act, which have since controlled the decisions of the Canadian courts, and which justices of the Supreme Court of Canada, however learned and experienced they may be, must, under existing conditions, utterly fail to overcome.
Ten years after he became a member of the judicial committee, Lord Haldane, in the Cambridge Law Journals for 1922, again wrote of Lord Watson:
Particularly be rendered an enormous service to the empire and to the Dominion of Canada by developing the dominion constitution.
That was in accord with the opinion of those publicists in England who', unfortunately, conceived that by fostering the division and disruption of a dominion and centralizing political control at Westminster they were ensuring the continuity of the colonial system with its arbitrary domination of the self-governing dominions. They sought to divide and rule. But history has proved the utter folly of such an effete imperial policy, and deplorable conditions in Canada to-day furnish convincing evidence of the disastrous effects of such a policy when expressed in
judicial decisions which preclude the political and economic development of this dominion. Lord Haldane continues:
At one time, after the British North America Act of 1867 was passed, the conception took hold of the Canadian courts that what was intended was to make the dominion the centre of government in Canada, so that its statutes and its position should be superior to the statutes and position of the provincial legislatures. That went so far that there arose a great fight; and as the result of a long series of decisions Lord Watson put clothing upon the bones of the constitution, and so covered them over with living flesh that the constitution of Canada took a new form.
Lord Haldane certainly exaggerates anc incidentally, misrepresents the views of the Canadian courts which, in the earlier years sought to interpret the British North America Act, 1867, in strict accordance with the terms in which it is drafted and so sought to carry into effect the clearly expressed views of its founders. But the judicial committee have, as he admits, by a long series of decisions so amended and redrafted the original constitution and so clothed it in fantastic conceptions of their own, that it bears the grotesque features of a jack-o'-lantern which now serves to evoke derisive comment and criticism.
And then, disclosing the extent of his own self-deception, Lord Haldane exclaims:
The provinces were recognized as of equal authority coordinate with the dominion, and a long series of decisions were given by him which solved many problems and produced a new contentment in Canada with the constitution they had got in 1867.
In these words, which were written less than sixteen years ago, we may clearly discern the tendency of the judicial committee to set at naught the provisions of the British North America Act as originally drawn, and to constitute one dominion consisting of nine provincial sovereignties, each coordinate with and of equal authority with the whole dominion, regardless of the immutable axiomatic truth that the whole is necessarily greater than its part.
We are now facing a problem which mere amendments to the British North America Act will not solve or eliminate, no matter what amendments may be procured, and that is the problem of interpretation. No amendment can prove effective to adapt a constitution to the needs of government if it is arbitrarily interpreted and applied, as were the provisions which it was intended to supplement and correct, by a tribunal of last resort, such as the judicial committee, which
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refuses to consider the conditions and circumstances in which and the objects for which such provisions were first enacted. There is no substitute for wise and enlightened interpretation, and, without it, the possibility of obtaining redress by mere amendment is a barren hope.
Expressing the views of Australia, Mr. Hughes, the Australian prime minister, at the imperial conference in 1918, spoke as follows:
Especially in relation to its decisions on the commonwealth constitution, the privy council has not proved a satisfactory tribunal. That constitution has special features of its own- features which differentiate it from the Canadian constitution, and some of which bear close resemblance to the constitution of the United States. It is a complex instrument, almost every line of which has its roots in Australian history, and bears the marks of an ultimate compromise between conflicting views. The eminent judges ordinarily available on the judicial committee, for all their legal learning and judicial experience, have not among them a single man who is intimately familiar with this constitutional document, or with the vital processes underlying it, a knowledge of which is, in the ease of any constitutional document, necessary to a full appreciation of both letter and spirit. Australia's experience of the privy council in constitutional cases has been, to say the least of it, unfortunate.
And referring to the decision of the judicial committee in the then recent royal commission case, Colonial Sugar Refining Company v. Brown, Mr. Hughes continued:
Its decision is one which must have caused great embarrassment and confusion, if it were not for the fortunate fact that the reasons for the judicial committee's decision are stated in such a way that no court and no counsel in Australia has yet been able to find out what they were. That is what must happen when a tribunal on the other side of the world, no matter how eminent and experienced its members may be, has cast upon it the duty of interpreting a complicated constitutional document with the history and principles of which no member of the court, and perhaps no counsel practising before the court, is especially familiar.
As stated by Sir Arthur Berriedale Keith in his work on Responsible Government in the Colonies (1927 edition) page 1102:
It is idle to deny that the taking of appeals to the privy council is a mark of inferior status and partial servility.
And again, at page 1104, he said:
The maintenance of the present position is just and proper so long as the dominions desire to remain dependencies. But to talk of free and autonomous nations and equal partners in the empire under the circumstances is childish folly.
Other hon. members will recall opinions expressed by leading counsel of other provinces of Canada, but I will cite only representative

lawyers of the province of Quebec of which I am one of the representatives in this House of Commons.
No Canadian who knew intimately the late Eugene Lafleur, K.C., could have failed to be impressed by his legal learning, experience and insight in relation to matters of constitutional law. In a letter dated April 14, 1914, to Mr. J. E. Martin, K.C., who was then batonnier of the bar of Montreal, and who subsequently became chief justice of the superior court of Quebec, Mr. Lafleur said:
The reason usually advanced in favour of maintaining the appeal to the privy council is that it secures a decision from a tribunal which is free from local prepossessions and from political, religious or racial prejudices. Such a humiliating confession has never been made, so far as I am aware, by any autonomous colony or state and implies less confidence in the judiciary than in the legislatures. It is no answer to say that our governments have too often made appointments to the bench on the ground of political services rendered rather than on that of professional merit. This does not prove that competent men cannot be produced or secured to satisfy our requirements, but merely that proper means must be taken to attain this end instead of solving the difficulty by an admission of inferiority and an appeal for external assistance. And I venture to think that our governments will not feel their full responsibility in this respect until our courts are as supreme in their sphere as our legislatures are in theirs. (Senate Hansard, 1916, at page 293.)
The late Charles S. Campbell, K.C., of Montreal, one of the most reputable and experienced members of the Canadian bar, is reported in Senate Hansard, 1916, at page 542, as saying:
The only authority for saying that an appeal from the supreme court to the judicial committee exists is the decision of the committee itself. The real reasons no doubt were as they generally are, matters of policy; the ostensible reasons contained in their orders or reports are rarely the real ones and no doubt that is why the views of dissentient members are never made public. Obviously a decision which is at once politic and of doubtful legality would not command any acceptance if dissentient members' views upon it were expressed. The expression of opinion by all the members is the real strength of any appellate tribunal, because, if the views of the majority are of doubtful legality, they hesitate to put them into language which may be attacked by other members of the court.
Aime Geoffrion, K.C., in a letter published in the Senate Debates for 1916 at page 542, referring to appeals from the Supreme Court of Canada to the privy council, says:
I do not believe in the appeal, whether the (supreme) court is unanimous or divided, nor do I believe in it even in constitutional cases.

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Louis S. St. Laurent, K.C., in his presidential address in 1931 to the Canadian Bar Association, said:
If I may venture to express a personal opinion, without attempting to commit anyone to it but myself, I would like to see all our constitutional disputes go to the Supreme Court of Canada, or at least such of them as are considered of sufficient importance to justify the intervention of His Majesty's attorneys general of the dominion and of any one or more of the provinces. I would like to see the decision given in the supreme court, if it were allowed to become a final decision, henceforth looked upon as a binding authority both on that court and on the privy council in all future similar cases.
I have also taken the liberty of translating into English certain passages from an address in the French language, which the right hon. the present Minister of Justice delivered to the Cercle Universitaire at Montreal, and which is reported in the Revue Trimestrielle for March 1932:
I cannot find a single reason to justify Canada being the only country in the world of her rank, her population and intellectual development to confess her inability to settle her own judicial conflicts. . . . Our judiciary and our bar need not look up to those of any other country. The partisans of appeal to the privy council claim that it constitutes a bond between the dominions and the crown, that it entitles every British citizen to go to the foot of the throne to obtain justice and, more particularly, that it is a safeguard for minorities. First of all, it is not true that all British citizens reach the foot of the throne through the good offices of the privy council. ... In view of the conflicts which took place in Ireland, in Australia and even in Canada, following certain decisions rendered by the privy council, it is difficult to describe it as a powerful bond uniting the dominions to the crown. . . . As for the protection of minority rights by the privy council, that is a fable. ... I wish to assail this ghost, this myth of the privy council safeguarding minority rights in opposition to our Supreme Court. And I entreat my compatriots never to lend themselves to the schemes of the reactionaries who have constantly opposed the development of Canadian autonomy and who boastfully declare that the right of appeal to England shall be upheld by Quebec. We, ourselves, are the best and truest guardians of our rights and traditions. No authority outside the land will defend them adequately in our stead. Canada has now attained her majority and can dispense with tutelage, even a judicial one.
I trust I have translated it fairly; I have endeavoured to do so.


Mr. LAPOINTE (Quebec East):: It is better than the original.


Charles Hazlitt Cahan: Thank you.
It is sometimes alleged that the right of appeal to the judicial committee is the immemorial right of British subjects to present
their claims at the "foot of the throne." This is a mere myth. The phrase is merely rhetorical and represents a figment of the imagination and not a scintilla of historical fact. The judicial committee is a statutory body to which the forty-seven millions of British subjects in the United Kingdom have no right of appeal.
It is alleged that the judicial committee is the guardian of minority rights in Canada, racial and religious. This is not true, as everyone, who has read the decisions of the judicial committee in Canadian appeals, knows full well.
It is alleged that the privy council of the United Kingdom is a link of empire. So it was formerly alleged that the powers of reserving and vetoing dominion legislation were links of empire; but all these powers, which prevailed in the colonial era, were found incompatible with our status as an autonomous dominion. The firm links of empire will be found in our allegiance to the throne, our historical traditions, our firm conviction that our highest political interests and the security of our country in a world of international strife and rivalry, are best conserved by our free association and close cooperation in matters of common interest with the people of the United Kingdom and the peoples of the other British dominions.
It is alleged that the privy council serves to maintain the uniformity of law throughout the empire, that "it keeps the law in step." Maintaining uniformity in the law is not a function of courts of law, but of the parliaments and legislatures of the commonwealth which enact the law. The common law does not prevail in all parts of the dominions. Uniformity is not the end of law. Laws must be adjusted to the locality and to the times and conditions in which the different peoples of the British Commonwealth of Nations move and live and have their being. The law as interpreted and decided by the judicial committee differs in form and substance from the law as embodied in decisions of the House of Lords, which has supreme judicial jurisdiction throughout the United Kingdom.
I yield to no other Canadian in my desire and determination, so far as it lies in my power, to maintain all honourable relations, between Canada and the United Kingdom, between Canada and other parts of the British Empire, which comport with our history, our traditions and the covenants, express and implied, into which this country has voluntarily entered, though I deprecate any spirit of sycophancy or servility. Now as I near the close of a long and active life, replete, it
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sometimes seems to me, with much of adversity and personal disappointment, I have one supreme desire, and that is to see Canada becoming more stalwart, strong and self-reliant, courageously confronting all its domestic difficulties, intelligently assuming its national responsibilities, and participating, as an autonomous dominion, in so far as it is within our competency so to do, in the satisfactory solution of the complex political problems of this era of time in which providence has placed us.
With these ends in view I move the second reading of this bill and earnestly recommend its provisions to the favourable consideration of this house.


Ernest Lapointe: The subject matter of the bill, the second reading of which my hon. friend has just moved, is very important and I am sure the house and the country will be gratified to him for having initiated this discussion to-day.
It is fortunate that a member of the standing and personality, the long experience and the public record of the hon. member for St. Lawrence-St. George (Mr. Cahan) should be the one to initiate this discussion. Surely no motive can be assigned to his action, and the question may be discussed on its merits without any suggestion of lack of loyalty or of weakness in the love of British institutions, of which my hon. friend has always given evidence of being a fervent adherent.
I am sure my hon. friend is not optimistic enough to take it for granted that this bill will become law in consequence of this first step, but the mere fact that it will be in the domain of public discussion will ensure its engaging the attention of all those who are interested in constitutional questions in Canada, not only legal minds, but the plain people as well, because they are just as much interested as the others in the solution of this problem. The mere fact, I say, that it will be in the domain of public discussion will create a public opinion which will enable this parliament to decide the question as it should be decided, in the best possible sense.
The origin of appeals to the privy council goes -back very far into the past. I was reading in Lefroy's work on the federal constitution that when William of Normandy became King of England, the Channel Islands were under the duchy of Normandy and were never subject to the jurisdiction of the English courts. But there was an appeal from the decisions of the Channel Islands courts to the King of England in 'his quality of Duke

of Normandy in council, and then this was extended to all the British possessions beyond the seas.
Prior to 1833 the appeals were by way of special leave, what has been called by the privy council " a residuum of the royal prerogative of the sovereign as the fountain of justice." This appellate jurisdiction was usually exercised in a committee of the whole privy council, which, having heard the allegations, made a report to His Majesty in Council, by whom a judgment was finally given. It is only in 1833, as my hon. friend stated I think on first reading of his bill, that it became part of the law of Britain by the Act for the better Administration of Justice in His Majesty's Privy Council, which act was later given the shorter title of the Judicial Committee Act, 1833. Later, in 1844, this act was altered and modified and the jurisdiction was extended; and other acts still further altered and extended the jurisdiction. But all these clearly established that it had become a matter of statutory jurisdiction.
I wish to indicate first the nature of the appeals in Canada, the different classes of appeals from Canada to the privy council.
First, there are the appeals in all the provinces, except Ontario and Quebec, which are by special royal grant in virtue of former imperial orders in council passed under the Judicial Committee Acts. Those appeals are
(a)	appeals as of right when a certain amount or upwards is involved; and (b) with leave of the court from which the appeal is taken.
Second, there are the appeals allowed by provincial statutes in the case of Ontario and Quebec. By the Constitutional Act of 1791, which divided the old province of Quebec into two new provinces called Upper and Lower Canada, provision was made by section 34 for the establishment of a court of civil jurisdiction within each of the said provinces respectively, and the appeal to his majesty and his successors was mentioned. In exercise of the power conferred by the Constitutional Act of 1791 the legislature of each province -that is Quebec and Ontario, then Lower and Upper Canada-enacted the two statutes, 34 George III, chapter 6, in Lower Canada, and 34 George III, chapter 2, in Upper Canada, providing for those appeals to His Majesty in Council in certain cases.
Those statutes were continued in force by the Act of Union of 1840, subject to certain modifications, and they were continued in force by section 129 of the British North America Act. The statutes in Quebec and Ontario

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which provide for those appeals are the Privy Council Appeals Act, revised statutes of Ontario 1937, chapter 98, and for Quebec, Article 68 of the Quebec Civil Code of Procedure.
Third, there are the appeals by special leave of His Majesty in Council, from any court in Canada, as in all British dominions. The instances where the special leave is granted may be defined as: (a) where no appeal lies by grant from the dominion or colonial court;
(b)	where the court below has no power to grant leave, and (c) where it has power but has refused to grant leave to appeal.
As far as the dominion is concerned, the Supreme Court of Canada was established in 1875 by 38 Viotoria, chapter 11, with "an appellate, civil and criminal jurisdiction within and throughout the Dominion of Canada." Section 47 of this act enacted that the judgments of the Supreme Court of Canada should in all cases be final, and that no further appeal should be brought to "any court of appeal established by the parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard, saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal Prerogative."
Thereafter this act was transmitted, as the law provides, to England to the Secretary of State for the Colonies. Quite a number of letters were exchanged, there was voluminous correspondence and discussion between the Hon. Edward Blake, then Minister of Justice for Canada, and the Earl of Carnarvon, Colonial Secretary. The act was not disallowed. It was found that the preservation of the appeal by the exercise of the prerogative was sufficient to ensure its validity, and it could be left untouched and preserved. But the result is that there is no appeal of right from the Supreme Court of Canada; there must be special leave by the privy council in every instance.
I come now to our dominion legislation with regard to criminal appeals.


Richard Bedford Bennett: Before the minister leaves that, may I direct his attention to the fact that the king in council apparently has conferred upon provincial courts of last resort the right to grant appeals to the privy council. That is the practice with respect to appeals from Alberta and Saskatchewan, for instance; I am not quite sure about Manitoba. Perhaps the minister has something to say with respect to that order in council, which was a delegation of the power which the king in council exercised as a prerogative.


Ernest Lapointe: I think I shall touch on that matter later on.
In 1887 the parliament of Canada passed an act to amend the law respecting procedure in criminal cases, and a new section was substituted for section 265 containing the following subsections:
(3) The judgment of the supreme court shall in all cases be final and conclusive.
(5) Notwithstanding any royal prerogative, or anything contained in the Interpretation Act or in the Supreme and Exchequer Courts Act, no appeal shall be brought in any criminal ease from any judgment or order of any court in Canada to any court of appeal established by the parliament of Great Britain and Ireland by which appeals or petitions to Her Majesty in Council may be ordered to be heard.
This became section 1025 of the criminal code. It remained in our statutes without being challenged at any time until 1927, when a famous case originating in the province of Alberta went to the privy council, in which the validity of section 1025, doing away with appeals in criminal matters, was successfully attacked. The privy council declared that this section was ineffective, first because whatever powers the dominion had under the British North America Act were confined to action to be taken in the dominion. In other words we in Canada did not possess the power of giving extraterritorial jurisdiction to our legislation; and, as the privy council was a court or tribunal in England, under the British North America Act we in Canada could not abolish appeals to that court.


Richard Bedford Bennett: Which arose under an imperial statute.


Ernest Lapointe: Yes. The other reason was that under the Colonial Laws Validity Act any legislation of a dominion which was repugnant to an imperial statute was ineffective and null, and that this section of the criminal code was repugnant to the imperial statute allowing appeals to the privy council. This, of course, as the house knows, gave rise to many comments in Canada. The next stage was the Statute of Westminster, in 1930.


Richard Bedford Bennett: 1931.


Ernest Lapointe: Yes, it was 1931, though something had been done about it in 1930. The Statute of Westminster removed the two disabilities I have mentioned. It recognized that the dominions had the power of giving extraterritorial jurisdiction to their legislation, so the argument that the appeals were heard in London could no longer stand. In the second place, the
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Colonial Laws Validity Act was repealed as far as Canada and the dominions were concerned, so that the legislation of Canada, or of any other dominion, stands good even if it is in conflict with an imperial statute regarding the same matter.
In 1932 and 1933 this parliament reenacted section 1025, which had been declared null by the privy council in the Nadan case, and put it back in our statutes under the power conferred by the Statute of Westminster. This new section has stood the test of appeal to the privy council. The house will remember that in 1935 there were convictions in the courts of Quebec against certain coal companies after an investigation under the Combines Act. These companies tried to appeal those convictions to the privy council; they asked for special leave to appeal. That is the case of the British Coal Corporation and the King. The judicial committee, presided over by Lord Sankey, held that the new section of the criminal code was constitutionally effective to prohibit appeals to the king in council in criminal matters. I shall refrain from reading the copious notes I have of the judgment of Lord Sankey, but I wish to direct attention to these words:
Such appeals seem to be essentially matters of Canadian concern, and the regulation and control of such appeals would thus seem to be a prime element in Canadian sovereignty as appertaining to matters of justice.
So, as far as criminal appeals are concerned, there is no longer any difficulty.


Richard Bedford Bennett: The principle was considered to some extent also in the application for leave to appeal in the Riel case.


Ernest Lapointe: Yes, but that was very long ago.


Richard Bedford Bennett: That was before the statute was passed.


Ernest Lapointe: Yes. I come now to the other appeals. I submit that it is within the legislative competence of the parliament of Canada to abolish any right of appeal to his majesty in council, whether by special leave or otherwise, from any court in Canada, in civil no less than in criminal cases. But before going on with that I desire to discuss the policy and the right. Is it desirable to do away with these appeals; and then, can we do it? In other words there is first the policy and then the right. As to the policy, with regard to appeals to the privy council the imperial conference of 1926 said:
From these discussions it became clear that it was no part of the policy of His Majesty's government in Great Britain that questions

affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of the empire primarily affected.
Then Berriedale Keith says:
. . . it is obviously absurd to declare that Canada is autonomous and an equal member of the commonwealth of nations and at the same time hold that the courts of the dominions are unfit to do justice to an unfortunate lady who has an accident while seeking to enter a Canadian railway station, to take one of the issues recently decided by the privy council overruling the dominion courts.
As far back as 1923 Lord Haldane said:
". . . it is obviously proper that the dominions should more and more dispose of their own cases. ... It becomes with the dominions more and more or less and less as they please." But although "several of the dominions have shown unmistakably that they wish to reduce its power over their affairs to the absolute minimum," the situation so created has not yet been adequately dealt with.
I also have before me a statement by Lord Haldane in an article published in The Empire Review of July, 1927, but I do not think I have time to read it.
I must say that my reasons for the views I hold with regard to this matter may differ from those expressed by my hon. friend from St. Lawrence-St. George. He is opposed to the appeals mostly, or perhaps not mostly but largely, because of the quality of the decisions which have been rendered by the privy council. I will say in defence of the privy council that very often unsuccessful litigants have complained about that court as much as unsuccessful litigants here complain about the supreme court, and I should not be surprised if before the end of this debate we hear some member say things about the supreme court just as harsh as my hon. friend has said about the privy council. There have been most eminent men sitting in the privy council, and many of them have held the confidence of the people of the dominions. The privy council has been criticized very severely, for instance, on account of its decisions on the reference with regard to the social legislation a year or so ago. But after all, the privy council merely affirmed the decision of the majority of the Supreme Court of Canada, and if there had been no privy council the result would have been the same. So I do not think it is quite fair to blame the privy council for those decisions as much as it has been blamed in some instances.


Richard Bedford Bennett: Would the minister mind my saying a word?


Ernest Lapointe: Not at all.

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Richard Bedford Bennett: The minister has overlooked the fact that the supreme court was bound by decisions of the privy council which entirely eliminated the words "trade and commerce" from consideration at all, as well as other words to which reference has already been made. The supreme court was bound by those decisions, and hence it is that their decisions were as they were.


Ernest Lapointe: I cannot very well accept that view, because the decisions have been blamed by reason of the fact that the privy council had decided otherwise than it had decided in previous cases. So if the supreme court was bound by the previous decisions of the privy council, I do not see how they could have differed now.
However, my reasons are largely those expressed by constitutional authorities like Ber-riedale Keith and others, and by my hon. friend from St. Lawrence-St. George when he said that the sovereignty of Canada still resides in the privy council. We are an equal nation in the commonwealth; we have full power in every domain as a nation, and I do not think anybody would differ from me when I say that when we are a nation of twenty-five or thirty millions of people, as we shall be some day, it would seem absurd that we should go across the seas to get a decision in an appeal from orr own courts. If it would be absurd when we are twenty-five millions of people, it becomes not so wise when we are a nation of eleven or twelve millions.
Then there is the question of expense. We must admit that recourse to the privy council means an expenditure of money which many litigants in Canada cannot afford to incur, and that makes the privy council too much of a court where only the wealthy can carry their cases in the last resort.
There is something else, too. There is the question-what shall I call it?-of judicial consciousness. I think that our own supreme court will not be as it finally will be when it is definitely a court of last resort for all Canadian litigation.
It is stated-it was stated, because the argument is weakening from year to year- the the privy council is a symbol of unity. Well, a symbol of unity which creates dissatisfaction carries some danger within itself, and I do not think that argument is strong enough to prevent a rational decision in the matter.
May I give-it is important to have all the data; for this question will certainly be discussed in the country-a statistical survey of the appeals to His Majesty in Council since 1867.
There have been from the provincial courts between 1867 and 1938, 329 appeals to the privy council. In 187 cases the judgment was affirmed; in 131 cases the judgment was reversed, and in 10 cases it was modified.
From the supreme court there have been since the creation of the court 198 appeals to the Privy Council. In 117 cases the judgment was affirmed; in 74 cases the judgment was reversed, and in 5 cases it was modified.
From the exchequer court there have been three appeals. In one the judgment was affirmed, and in the other two the judgment was reversed.
I have also a table of all the constitutional cases in which appeals have been heard by the judicial committee, indicating the court, dominion or provincial, from which the appeal was taken.
From the provincial courts 70 appeals have been taken in constitutional matters; in 35 cases the judgments were affirmed, in 4 they were modified, and in 31 they were reversed.
From the Supreme Court of Canada there have been 68 appeals in constitutional cases; 49 judgments have been affirmed, 15 have been reversed, and 4 have been modified.
I come back now to my argument as to the competence of Canada-


Richard Bedford Bennett: May I interrupt? Those three appeals from the exchequer court were exclusive of exchequer court appeals from the Supreme Court of Canada.


Ernest Lapointe: Quite so.


Richard Bedford Bennett: I did not think that was made quite clear.


Ernest Lapointe: Appeals from the exchequer court direct.
As to civil appeals relating to subject matters within the exclusive authority of the dominion parliament-and I think the bill of my hon. friend (Mr. Cahan) is limited to those appeals-I submit there is no doubt as to the competence of parliament to abolish those appeals. This is supported by the decision in the Nadan case, and I will also refer to the decision in the case of Cushing v. Dupuy (1880) 5 A.C., 409. The decision in that case was as follows:
The Quebec code of civil procedure, article 1178, allowed an appeal to His Majesty in Council as of right from final judgments on appeal to the Court of Queen's bench of Quebec.
A dominion act made in virtue of the power conferred by section 91, bankruptcy and insolvency, gave the Court of Queen's Bench a bankruptcy jurisdiction. This dominion act provided that the judgment of the court in
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such matters as were in question in the case should be final. It went as far as the privy council, and the judicial committee held that this provision was intra vires the dominion parliament and effective to bar the right of appeal conferred in general terms by the civil code. Sir Montague Smith said:
Procedure must necessarily form an essential part of any law dealing with insolvency. It is therefore to be presumed, indeed it is a necessary implication, that the imperial statute, in assigning to the dominion parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights, and procedure within the provinces, so far as general law relating to those subjects might affect them. Their lordships therefore think that the parliament of Canada would not infringe the exclusive powers given to the provincial legislatures, by enacting that the judgment of the court of Queen's bench in matters of insolvency should be final, and not subject to the appeal as of right to Her Majesty in council allowed by article 1178 of the code of civil procedure.
In the Nadan case, Lord Cave expressed the same view.


Richard Bedford Bennett: In the Crown Grain Company case there was the converse of that.


Ernest Lapointe: Exactly. By the Statute of Westminster the limitations on dominion legislative power imposed by the Colonial Laws Validity Act, by section 129 of the British North America Act as regards the repeal or alteration of laws in force in the provinces at the union which were enacted by or existed under imperial acts, and by the doctrine forbidding extraterritorial legislation, were abrogated, as shown in British Coal Corporation v. the King, which I have mentioned.
These legal restrictions on the legislative powers of the dominion parliament having been removed, obviously it is within the legislative competence of the parliament of Canada to prevent any appeal in matters within its legislative authority. We come now to a more difficult point, as to civil appeals relating to subject matters within the exclusive legislative authority of the province. First, the regulation or prohibition of appeals from provincial or dominion courts to His Majesty in Council, whether in virtue of the prerogative or a statutory grant, transcends provincial legislative authority and, therefore, is within the exclusive legislative competence of the parliament of Canada, in virtue either of its residuary power to make laws for the peace, order and good government of Canada, or of its exclusive and paramount power under sec-

tion 101 of the British North America Act to establish a general court of appeal for Canada. Section 101 reads:
The parliament of Canada may, notwithstanding anything in this act, from time to time, provide for the constitution, maintenance and organization of a general court of appeal for Canada, and for the establishment of any additional courts for the better administration of the laws of Canada.
In virtue of the powers so conferred, the parliament of Canada established the Supreme Court of Canada, as I stated before, and provided that the supreme court should have appellate jurisdiction, civil and criminal, within and throughout the Dominion of Canada. The decisions which have been given by both the supreme court and the privy council afford authority for the propositions which I am going to submit. First, the legislative power conferred by section 101 may be exercised- this is the language of the section-notwithstanding anything in the act. The language of the privy council in the case of Tenant v. the Union bank, plainly indicates that parliament, so long as i.t relates strictly to these matters, is to be the paramount authority and to the extent that the provincial judicial system is repugnant to the legislation of the parliament of Canada within the scope of section 101, the provincial arrangements would not be valid.
In the Crown Grain Company case, to which my right hon. friend has just referred, it has been clearly ruled that provincial legislation cannot take away jurisdiction conferred upon the supreme court by the Supreme Court Act. In that case, as my right hon. friend will remember, it was held that the Manitoba Mechanics and Wageeamers Lien Act, which enacted that in suits relating to liens the judgment of the Manitoba Court of King's Bench would be final and that no appeals should lie therefrom, was ultra vires of the provincial jurisdiction because no provincial act can circumscribe the appellate jurisdiction granted to the supreme court by the dominion parliament under section 101. I could quote what was said by Lord Robertson, who delivered the judgment of the board in that case, but I shall not.


Richard Bedford Bennett: It was a very brief judgment.


Ernest Lapointe: The same thing was decided by the Supreme Court of Canada in Consolidated Distilleries Limited v. Consolidated Exporters Corporation. In

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that connection there is a very able judgment by the late Mr. Justice Newcombe. In Dan-jou y. Marquis, Mr. Justice Fournier held:
(Translation) As there is no doubt that the federal government has the right to subject these cases to appeal, any provincial legislation then existing to the contrary notwithstanding, it seems to me this provision should be given its full and complete effect.
Moreover, it is quite competent for the dominion parliament to allow an appeal to the Supreme Court of Canada from judgments of provincial courts, even though such judgments may not be final nor such courts the courts of final resort. This also has been decided by the courts. I shall quote the words of the late Chief Justice Taschereau in the case of L'Association St. Jean-Baptiste de Montreal v. Brault, where he said:
Section 101 of the British North America Act,. 1867, enacts that notwithstanding the exclusive jurisdiction given to the provincial legislatures over civil rights, the parliament of Canada has the power to provide for the constitution, maintenance and organization of a general court of apjjeal for Canada, without restricting the power, as it does for additional courts of first instance, to the administration of laws of Canada.
It will be observed that this judgment points out that the power to constitute a general court of appeal for Canada is not restricted by the concluding words of the section, "for the better administration of the laws of Canada." Those words applied only to the establishment of other courts.


Richard Bedford Bennett: Like the exchequer court or the board of railway commissioners.


Ernest Lapointe: Exactly, That judgment was affirmed by the privy council, and Sir Barnes Peacock, who pronounced the decision, used words to the same effect; Another important consideration is the fact that provincial legislatures have no power to grant an appeal to the Supreme Court of Canada; this is a federal power.
In the case of Union Colliery Company v. Attorney General for British Columbia, the legislature of British Columbia had enacted the power of referring questions to the appeal court of British Columbia with a provision for appeals, and the Supreme Court of Canada held that no appeal lies to the Supreme Court of Canada from the opinion of the British Columbia court on such a reference. If it was the intention of the act to create such an appeal, it was beyond the powers of the legislature of the province, and the appeal was quashed.


Richard Bedford Bennett: Although it will be
remembered that in our similar act we did provide that there should be appeals to the privy council.


Ernest Lapointe: Yes.


Richard Bedford Bennett: And they copied it, limiting it to the Supreme Court of Canada rather than the judicial committee.


Ernest Lapointe: Yes, but the legislature of British Columbia could no', do any such thing.


Richard Bedford Bennett: I have sometimes doubted whether we could until after we got extraterritorial powers.


Ernest Lapointe: Here is what I desire to submit. The power vested in the parliament of Canada by section 101, made exercisable as it is notwithstanding anything in that act, would authorize legislation giving the Supreme Court of Canada in its character of " a general court of appeal for Canada" not merely appellate civil and criminal jurisdiction as at present, but exclusive appellate civil and criminal jurisdiction in respect of all appeals, and rendering the judgment of this court final and conclusive. Such legislation would in my opinion involve no encroachment upon the powers of the provinces. The powers of the provinces in matters of administration of justice are in section 92 of the British North America Act, and they read as follows:
The administration of justice in the province, including the constitution, maintenance and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts.
There is no doubt that the giving or withholding of an appeal is a matter of procedure. The provinces have the right to provide for courts of appeal and appeals, but they are limited by section 92 to " in the province "; they cannot go outside, and that is the reason why they could not provide for an appeal to the Supreme Court of Canada. Their jurisdiction, their power of creating a court of appeal, is limited by the words " in the provinces." With this the dominion parliament would have no power to interfere. But the regulation of appeals in civil cases from provincial courts to an appellate court which is not provincial is a matter clearly extraneous to the power to provide for " the constitution, maintenance and organization of provincial courts," or to prescribe the " procedure in civil matters in those courts." It is only the parliament of Canada which can give or take away the right

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of appeal to the Supreme Court of Canada. No provincial legislation can give it or deny it. This is abundantly established by the decisions which I have quoted.


Richard Bedford Bennett: It is the essence of our confederation scheme.


Ernest Lapointe: It is the essence; but I believe that by parity of reasoning no provincial legislature can regulate or prohibit appeals to his majesty in council. If they cannot prohibit appeals to the Supreme Court of Canada because it is outside the province, they surely cannot legislate with regard to the privy council.
It follows that if the regulation of appeals in civil matters from provincial courts to an appellate court which is not provincial is a matter which is outside of the scope of provincial legislative authority, the legislatures of Ontario and Quebec have no power to repeal or alter the statutory provisions respecting appeals as of right to his majesty in council, and less still have they power to repeal appeals under the prerogative.


Richard Bedford Bennett: Or under the orders in
council.


Ernest Lapointe: Or under the orders in council.


Richard Bedford Bennett: Because they are imperial orders in council.


Ernest Lapointe: Exactly. But if, as the judicial committee has said in the British Coal Corporation case, "such appeals seem to be essentially matters of Canadian concern, and the control and regulation of such appeals thus seem to be a prime element in Canadian sovereignty as appertaining to matters of justice," therefore as the powers distributed by the British North America Act between the dominion on the one side and the provinces on the other side "cover the whole area of self-government"- I am using the language of the privy council in the case of Attorney General of Ontario v. Attorney General of Canada, in 1912

"within the whole area of Canada," and "it would be subversive of the entire scheme and policy of the act to assume that any point of internal self-government was withheld from Canada," the power to regulate appeals to the king in council in civil matters, if it is not vested, as I think I have conclusively shown, in the provincial legislatures, must be vested in the dominion parliament, because we cover the whole area.
In my opinion this power is vested in the dominion government either in virtue of its residuary power under the opening words of section 91, "to make laws for the peace,

order and good government of Canada" or under section 101, to provide for "the constitution, maintenance and organization of a general court of appeal for Canada." In re County Courts of British Columbia, Mr. Justice Strong, speaking with the concurrence of the other judges of the supreme court, said:
The constitution, maintenance and organization of provincial courts plainly includes the power to define the jurisdiction of such courts territorially as well as in other respects.
If that is true of a provincial court, surely it is true of the power of the parliament of Canada to define territorially the powers of its courts. The power given to the parliament of Canada for the establishment of a final court of appeal seems plenary, complete and paramount. If legislation such as that now embodied in the Supreme Court Act authorizing or permitting appeals to the Supreme Court of Canada from provincial courts, be legislation relating to "the constitution, maintenance and organization of a general court of appeal for Canada," I can see no reason for thinking that legislation requiring all such appeals to come to the Supreme Court of Canada would not be equally legislation relating strictly to the matters covered by such words.
But I have a second argument. In the Nadan case the section of our code providing that there should be no appeal in criminal matters was declared ineffective because we did not possess the extraterritorial operation that we could give to our legislation. This has disappeared by the Westminster act, but it has not disappeared as far as the legislatures of the provinces are concerned. True, the Colonial Laws Validity Act was repealed for the legislation of the provinces as well as the legislation of this parliament-


Richard Bedford Bennett: Quite.


Ernest Lapointe: -but
under the extraterritorial jurisdiction-


Richard Bedford Bennett: Except that we gave the provinces some extraterritorial jurisdiction.


Ernest Lapointe: Yes, but it is closely limited. They would not have the extraterritorial power which is necessary to enable them to prohibit appeals to the privy council.


Richard Bedford Bennett: To repeal the provisions of an imperial statute.


Ernest Lapointe: To repeal an imperial statute. They have no legislative capacity in that respect any more than they had before, and therefore if extraterritoriality of operation is essential to the legal efficacy

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of any law designed to abrogate the right of his majesty in council to grant leave of appeal from any provincial court, then the subject matter of such law clearly falls outside of and transcends provincial authority; and if my reasoning is correct it has to go somewhere, and it has to fall within the legislative powers of the only Canadian legislative body competent to make a law having extraterritorial operation, and that is the parliament of Canada.


Richard Bedford Bennett: Right there I have some difficulty. In view of the orders in council that delegated to the courts of last resort in the provinces the power to grant appeals to the privy council, a question arises as to who has jurisdiction to repeal or rescind those orders in council.


Ernest Lapointe: Unfortunately-not unfortunately, because I believe it is better it should be so

nothing has ever happened which could give to the provinces the right to repeal.


Richard Bedford Bennett: I am clear the provinces have not the power. About that there is no doubt. I am speaking, however, of the question whether we have the power.


Ernest Lapointe: Does not my right hon. friend think that the Westminster act confers full authority?


Richard Bedford Bennett: I have had some doubt about that. I apologize for interrupting the minister's argument.


Ernest Lapointe: With regard to the bill presented by the hon. member for St. Lawrence-St. George, I quite realize that he would abolish appeals from the provincial courts as well as from the Supreme Court of Canada on matters within the competence of the parliament of Canada. Section 3 provides that no appeal shall lie or be brought from any judgment or order of any court in Canada, in relation to any matter within the competence of the parliament of Canada. I am afraid that a sort of chaotic condition would result if appeals could be instituted from some courts in Canada on some matters, which could not be taken from the supreme court on the same matters. In Australia for a time the commonwealth had done away with appeals in constitutional matters and the states had appealed to the privy council on the same matters which had been appealed to the supreme court of the commonwealth. The judgments which were rendered were different, and the Supreme Court of Australia refused to accept the views 51952-1384
of the privy council. Quite a confusion was created for some time, though finally appeals were done away with in the states on the same questions.
If on appeals argument should arise as to whether the matter which is concerned in the case is one which is within the legislative competence of the parliament of Canada or of the province, there would be discussions of all sorts; and with the view I have expressed, that this parliament has the paramount power to do away with all appeals and that we could do it, I would rather have us, if we did it at all, make it apply to all judgments from all the courts in Canada.


Charles Hazlitt Cahan: I should be very glad to see an amendment in committee to that effect, but I am now going so far as may be absolutely assured by present decisions.


Ernest Lapointe: As regards the extent to which my hon. friend goes, there is no question as to the power of this parliament to do it. But as he may see, the question is so vitally important that,' for myself at any rate, I should like it to be further discussed and investigated-and this is not to suggest procrastination, a favourite word on many occasions-before we take a step which would be very important. Before doing so I think that everyone should have the time and the occasion to study the matter to the fullest extent.
I conclude my remarks by extending anew my thanks and congratulations to the hon. member for St. Lawrence-St. George.


Mr. J. T. THORSON (Selkirk):: I am very glad that the Minister of Justice (Mr. Lapointe) concluded his remarks by thanking the hon. member for St. Lawrence-St. George (Mr. Cahan) for introducing this bill; for it is with words of thanks to the hon. member that I wish to commence my remarks on this subject. He is entitled to the sincere thanks of the Canadian people.
I was very glad to hear the Minister of Justice express the view that it was within the competence of this parliament effectively to prohibit all appeals in all matters from all Canadian courts. I entirely concur in that expression of opinion. There were doubts in my mind as to whether it was competent for this parliament effectively to prohibit appeals in respect of those matters that are within the legislative jurisdiction of the various provinces, but I have come to the view that since the Statute of Westminster, 1931, this parliament has full and plenary jurisdiction effectively to prohibit all appeals in respect of all matters under either section
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91 or section 101 of the British North America Act or under a combination of both sections.
I do not intend at this juncture to deal further with the legal argument; it was dealt with in a comprehensive manner by the Minister of Justice. Nor shall I at this stage discuss the effectiveness of the language used by the hon. member for St. Lawrence-St. George in the bill that he has presented to the house. It may be necessary to consider some amendments, but we can attack that problem when the bill is in committee.
I shall confine myself to the principles involved in the measure that is now proposed. In my opinion the Judicial Committee of the Privy Council has not been a satisfactory court for Canada. It is also my opinion that its decisions have in the main and in their totality caused great harm to Canadian national development, and constitute a menace to Canadian national unity. It is also my opinion, that the retention of appeals to the Judicial Committee of the Privy Council is now an anachronism, a survival of colonial inferiority, and inconsistent both with our right and with our duty as an autonomous nation.
I do not deny that the Judicial Committee of the Privy Council has included within its ranks many distinguished jurists, but I suggest that on many occasions they have not possessed adequate knowledge of Canadian conditions. They have not often visited Canada; they do not know the Canadian people or the conditions under which they live, nor have they adequately understood the changes that are inherent in the rapid growth of a new nation. They have themselves admitted this deficiency on their own part, by inviting Canadian judges and judges from the other dominions to join the board.
Moreover, there has been little continuity in the membership of the court. Indeed, there has been less continuity of membership in this court than in any other British court in the world. The result has been confusion and uncertainty. They have frequently decided constitutional cases that came before them without any evidence, or without adequate evidence of the issue that was before the court. It is not an infallible court; indeed, it has made many errors and has frequently reversed itself; sometimes these reversals have been by strange and circuitous methods.
I am prepared to judge this court by its record. I agree with the Minister of Justice that it is unwise to make sweeping generalizations; indeed, it is impossible to do so. I am free to admit that many fine decisions have emanated from that body, but I have been

driven to the conclusion, after many years of study, that in many vital and fundamental aspects their decisions have done almost irreparable harm to Canadian national development, and constitute a menace to Canadian national unity. I should, therefore, like to see all appeals to the Judicial Committee of the Privy Council, and particularly appeals in constitutional cases, immediately abolished.
I have frequently and for many years urged the abolition of all such appeals. I did so a year ago, when it was my privilege to speak on the subject of the decisions of that body. In the course of what I said a year ago I made four main .charges against the Judicial Committee of the Privy Council and its decisions. I stated, first, that the court was a court not of law but of political expediency: second, that it had mutilated the structure of our federal system and changed its basic character contrary to the spirit of confederation and contrary to the clear intent of the British North America Act itself: third, that its decisions had done serious harm to Canadian national development, and, finally that it had failed to protect minority rights. I need not repeat what I said a year ago in proof of the charges that I then made. I have given many years of study to Canadian constitutional law and welcome this opportunity of expressing myself once again in favour of the abolition of all appeals to the Judicial Committee of the Privy Council. I venture the hope that we shall soon see an end to any further disintegration of our national structure at the hands of that body.
What is the greatest issue now before the Canadian people? Can there be any doubt as to the answer? It is whether Canada shall be a great and united nation, able through this parliament to discharge its national obligations for the welfare of the Canadian people. It was the dream of the fathers of confederation that in North America there should be built a great new nation enjoying the freedom and the liberty inherent in the British constitution, and uniting the various racial stocks of which it was composed with the common bond of Canadian nationhood. It was Sir Wilfrid Laurier's proud hope that the twentieth century should belong to Canada. How far we are from this dream of the fathers of confederation! How far we are from the realization of the wish of Sir Wilfrid Laurierl Indeed, Mr. Speaker, there are more disintegrating influences in operation in Canada to-day than ever before in our history. We in this national parliament must become alive to that fact. Thinking men throughout Canada are becoming alarmed. The Canadian people are calling for action.

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We see these disintegrating influences operating on every hand. The forces of communism and the forces of fascism are threatening our democratic system. In the great province of Quebec, which we have always regarded as one of the great bulwarks of Canadian nationality, there is a ferment going on which we who do not live in that province do not understand. There is a narrow, selfish provincialism rampant in some quarters in Ontario and elsewhere in Canada. There is discord and discontent in the western prairies, as a protest against the existing order. Our national life is in danger unless we take national action to save ourselves. Let it not be thought for a moment that I am advocating any sort of national government. But I do call upon the Canadian people to assert their rights and to perform their duties as a Canadian nation.
It is my considered opinion that the decisions of the Judicial Committee of the Privy Council have been an important factor contributing to this disintegration of our nation to which I have referred. Many of their decisions have deliberately weakened the bonds of confederation, with the result that this national parliament has been left powerless to deal with many problems that are national in their character. We are wearing a constitutional strait-jacket fashioned for us by the Judicial Committee of the Privy Council and shall never be able to discharge our national obligations until we are released from that strait-jacket.
A year ago I made the charge that the Judicial Committee of the Privy Council had mutilated the structure of our federal system and changed its basic character. They did this in two ways. The hon. member for St. Lawrence-St. George has elaborated in some detail the method the judicial committee followed in this regard. In the first place they cut down the jurisdiction of this parliament by whittling down the meaning of the words "peace, order and good government of Canada" and "trade and commerce," as these words are found in section 91 of the British North America Act, so that they are now almost meaningless.


Richard Bedford Bennett: And by expanding-
.Mr. THORSON: Yes. On the other hand they increased the jurisdiction of the provincial legislatures by enlarging beyond all reason the meaning of the words "property and civil rights in the provinces" and "generally all matters of a merely local and private nature in the province." This course of action on their part has resulted in withholding from this parliament the jurisdiction necessary to
deal with national matters and has weakened our power to deal with national problems in the manner in which they should be dealt with. On the other hand there has been assigned to the provincial legislatures jurisdiction over many matters that were never contemplated as being of a provincial character when the British North America Act was framed. The result has been that the provincial legislatures either cannot discharge the obligations that now rest upon them, or do not dare by themselves to discharge them.	We have
reached an impasse that threatens confederation itself.
I have not time, Mr. Speaker, to deal in detail with the matters that have been held to be outside the jurisdiction of this parliament. I can enumerate them only very briefly. It has been held, for example, that we cannot legislate with regard to the matter of insurance; yet the whole institution of insurance, by its growth and its importance, has assumed the character of a national institution. Nor can we in this parliament inaugurate a national unemployment insurance scheme; yet everyone realizes that in Canada it is not possible to inaugurate any scheme of unemployment insurance unless such scheme is undertaken as a national venture. We have no adequate control over industry. We cannot prevent profiteering in industry; it has been so held by the Judicial Committee of the Privy Council. Nor have we adequate control over unfair practices in industry, even although such practices may be nationwide in their extent. Nor have we that control over the incorporation of companies that we ought to have and would have had if the decision of the supreme court in the famous Bonanza Creek case had prevailed. We cannot deal effectively with labour problems, such as hours of labour, days of rest, wages or conditions of labour, nor can we set up effective machinery for the conciliation of labour disputes. We had effective machinery for that purpose and we used it for eighteen years, until in 1924 the Judicial Committee of the Privy Council held that the Lemieux act was ultra vires. Even if this country as a nation enters into treaty obligations on the subject of labour conditions and labour generally, it is not possible for this national parliament to implement these national obligations by national legislation. Similarly we cannot in this parliament-nor it would seem, anywhere in Canada-validly enact comprehensive marketing legislation, even if we desired to do so. There is a curious no man's land that has been created in respect of this
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subject. The dominion cannot pass the necessary legislation because it interferes with property and civil rights in the provinces, nor can the provinces legislate effectively, because there is an interference with the dominion jurisdiction over trade and commerce. Then, too, Mr. Speaker, we cannot deal with national social problems. We cannot even attempt to deal with social security in a national way. In this parliament we can raise money by any method of taxation, but our right to spend the money is seriously in dispute. If the judgment of the Judicial Committee of the Privy Council in regard to the unemployment insurance act is sounds- and I do not think it is-then this parliament cannot spend money for any object that is not within the legislative competence of this parliament. To this state of affairs we have come through decisions of the Judicial Committee of the Privy Council, and by the deliberate act of the judicial committee. The hon. member for St. Lawrence-Sit. George read the panegyric which Lord Haldane delivered with regard to the work done by Lord Watson, in which he praised Lord Watson as an imperial statesman for making the business of laying down the new law that was necessary his own, and for completely altering the tendency of the decisions of the supreme court, that had been followed during the first twenty years of the history of that court. May we be saved from further imperial statesmanship of that sort. The fathers of confederation saw the weakness of the central authority in the United States as it had been created in that country, and they deliberately determined that in Canada there should be a centralized federalism with the residue of legislative power in the dominion parliament. For twenty years the Supreme -Court of Canada upheld this viewpoint and uniformly maintained it; but when Lord Watson came upon the scene, he deliberately altered the tendency of these decisions, with the result that the basic character of the federalism of Canada has been changed so that we now have a decentralized federalism with the residue of legislative power in the provinces.
In the result we are left powerless in this national parliament to deal with national problems for lack of the necessary jurisdiction, and the provinces cannot effectively deal with the duties that have been assigned to them because they have not the necessary powers of taxation. We in Canada are wallowing in a constitutional morass. It was not necessary for the preservation of provincial rights that the Judicial Committee of the Privy Council should

have gone as far as it did. I venture the opinion that the privy council failed to grasp and understand the spirit of confederation. They did not understand Canada and its national growth.
Now, Mr. Speaker, what action should be taken by us to recover our national position? Some way must be found to undo the harm that has been done to our country by the decisions of the Judicial Committee of the Privy Council and to recover for this national parliament the necessary power to deal with national problems.
In the first place, we must prohibit all further appeals to the Judicial Committee of the Privy Council. This is necessary for the reconstruction of Canada. We would not as Canadians for a moment permit any outside legislative body to legislate for Canada. Why, then, should we permit an outside judicial body to legislate for us indirectly as the Judicial Committee of the Privy Council has done? I am glad to see this move for the abolition of appeals to the Judicial Committee of the Privy Council. In constitutional cases, particularly, the appeal should be prohibited immediately, in order that further violation of our national structure may be prevented.
It is not sufficient, however, merely to prohibit further appeals. We must do something more, for the decisions of the Judicial Committee of the Privy Council will still prevail and be binding upon us. We must free ourselves from the constitutional strait-jacket that now confines us. To that end Canadian statesmanship of a high order must be directed. We must face the task of recasting our constitution so that Canada will 'be able to discharge its national obligations for the welfare of the Canadian people. That task will not be an easy one. It will call for courage-great courage, but the cause is a great one-the creation of a great Canadian nation able to discharge effectively its national obligations.
How is this great task to be performed? In the first place, we must recapture the spirit of confederation. We must determine, as the fathers of confederation did, that Canada shall be a great nation. We must face boldly and courageously the task of recasting our constitution. We must see to it that this parliament is vested with the necessary jurisdiction over national matters. We must take care not to interfere with minority rights. Indeed, we must guarantee minority rights so that they shall be preserved inviolate. There is a great distinction that ought to be drawn between minority rights and provincial jurisdiction. The former we must preserve and guarantee, but there is

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no reason why national matters should continue to remain within the jurisdiction of the provinces. There is plenty of scope for the provincial jurisdiction; there are many matters for the provinces to deal with that are best left to them.
Then, Mr. Speaker, we must revive the spirit of Canadian national consciousness. That spirit made our troops in France a great fighting force. It can make our people a great nation in the cause of peace. After all, what is the one bond that unites all Canadians? We live in a great country, with great possibilities, but it is a difficult country to govern. There are many racial stocks within its borders, and the economic interests of its various sections are widely divergent. I need not elaborate this further; for every member of the house realizes the difficulty of devising policies of universal application in the various sections of this country. Yet there is one unity amongst us all. The French-Canadians, the Canadians of British stock, the Canadians of foreign-born stock, have one thing in common: We are all Canadians and can unite in a common Canadian cause. That cause is the cause of Canadian nationhood. Surely, as Canadians, we can rip from ourselves the constitutional straight-jacket that now confines our actions, and face with courage and determination, in the cause of Canada, the necessary reforms of our constitution that will give this national parliament power to discharge its national obligations and at the same time enable the legislatures of the provinces to discharge their proper and appropriate functions.
I have great hope that we shall receive some assistance in this task from the report of the Rowell commission on dominion-provincial relations. I was very glad to see the wide scope of that commission; I was particularly pleased with this paragraph in the terms of reference:
That the commissioners be instructed to consider and report upon the facts disclosed by their investigations; and to express what in their opinion, subject to the retention of the distribution of legislative powers essential to a proper carrying out of the federal system in harmony with national needs and the promotion of national unity, will best effect a balanced relationship between the financial powers and the obligations and functions of each governing body, and conduce to a more efficient, independent and economical discharge of government responsibilities in Canada.
I hope that the findings and recommendations of this national commission will open a new door to the future and will indicate the constitutional reforms that ought to be
made. If they do, then we can accomplish the necessary recasting of our constitution. That task must be faced-it must be faced with courage and determination. It will call for Canadian statesmanship of a high order, but it will be a task worthy of the greatest Canadian statesmanship; those who face it will do a great service to the Canadian people; if they succeed, a great new nation will be born.
It is also my opinion, Mr. Speaker, that the retention of appeals to the Judicial Committee of the Privy Council is now an anachronism, a survival of colonial inferiority, and inconsistent with our rights and our duties as members of a commonwealth of autonomous self-governing dominions. The appeals to the Judicial Committee of the Privy Council were meant for the colonies. Canada is no longer a colony. It is a self-governing, autonomous community, equal in status with all the other British nations that make up the British Commonwealth of Nations.


Richard Bedford Bennett: All freely associated.


Joseph Thorarinn Thorson: Certainly, freely associated. Great Britain does not use the Judicial Committee of the Privy Council as its court of last resort. It has as its court of last resort the House of Lords at Westminster; we in Canada should use at Ottawa our own court of last resort, the Supreme Court of Canada; make it in real truth a Supreme Court for the whole of Canada. Australia has limited appeals in constitutional cases, and as a result she has not suffered from the constitutional impasse which it has been the misfortune of Canada to endure.
I have often been asked why it is that Canadian students who attend English universities almost invariably come back to Canada stauncher Canadians than they were when they left our shores to attend the English schools. It is natural that this should be the result; there is nothing unnatural about it. These Canadian students who go to the homes of learning in England and elsewhere in the British isles learn the essential spirit of the British constitution, that is, that it is the right and the duty of all peoples who live under the British constitution to govern themselves in every aspect of government, internal and external, and that they must exercise every function of self-government, legislative, executive and judicial. It is more consistent with the essence of the British constitution than otherwise that Canadians should be good Canadians and should assert for themselves their rights to self-government, and
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assume all the duties of self-government. We cannot call ourselves a self-governing dominion as long as we allow such an important function of government as the judicial function to be exercised for us by a tribunal not our own. The British Coal Corporation case decided an important point. Viscount Sankey spoke of the regulation and control of appeals as a prime element of Canadian sovereignty. As long as we tolerate a continuation of appeals to the Judicial Committee of the Privy Council, we cannot claim Canadian sovereignty; we cannot claim that we are a self-governing dominion. It is more consistent with the best that is in the British constitution that we should prohibit appeals than that we should any longer retain them. As a devout believer in Canada, and in its destiny as a great nation, and as a devout believer in the fundamentals of the British constitution which underly the Canadian constitution, I welcome the abolition of all appeals to the Judicial Committee of the Privy Council as the assertion of a national right and the assumption of a national duty.
Furthermore, as the Minister of Justice has stated, the abolition of appeals to the Judicial Committee of the Privy Council will strengthen the Supreme Court of Canada and raise it in the esteem of the Canadian people. Its decisions and its importance as a national institution have been lessened to some extent by the fact that its judgments are not final, but are subject to review and reversal by a body outside of Canada. It should be the duty of Canada to attract the ablest and best of our Canadian lawyers to our supreme court bench and make the Supreme Court of Canada a great institution for the maintenance of Canadian unity.
May I again thank the hon. member for St. Lawrence-St. George for the great service he has performed in introducing this bill. The prohibition of appeals to the Judicial Committee of the Privy Council is an essential step that should be taken at this stage of our history. It is necessary to the reconstruction of Canada as a great nation, and it is necessary to the maintenance of that new nation if we have the courage to face the task of reconstruction. A belief in the destiny of Canada will give us the necessary courage. It is with great pleasure that I support the second reading of this bill.
At six o'clock the house took recess.

After Recess
The house resumed at eight o'clock.



PRIVATE BILLS


[Stage Direction]
Bill No. 67, respecting the Canadian Pacific Railway Company.-Mr. Turner.

[Stage Direction]
Bill No. 85, for the relief of Dorothy Dean St. Clair Ross.-Mr. Jacobs.
Bill No. 86, for the relief of Frances Margaret Stewart Butler.-Mr. Walsh.
Bill No. 87, for the relief of Agnes Le Blanc Archambault.-Mr. Walsh.
Bill No. 92, for the relief of Louise Anderson Lindsay.-Mr. Macdonald (Brantford City).
Bill No. 93, for the relief of Kathleen Helen Frances Penfold Findlay.-Mr. Walsh.
Bill No. 94, for the relief of Mary Esther Wahl Watt.-Mr. Walsh.
Bill No. 95, for the relief of Grace Barlow Sunbury.-Mr. Ross (Moose Jaw).
Bill No. 96, for the relief of Irene Marjorie Wiseman Litwin.-Mr. Lawson.
Bill No. 97, for the relief of Lorraine Olive Lafontaine Caron Pilot.-Mr. Emmerson.

[Stage Direction]
The house resumed from Tuesday, April 5, consideration in committee of Bill No. 15, to
incorporate The Niagara Falls Observation Bridge Company-Mr. Damude-Mr. Johnston (Lake Centre) in the chair.
On section 8-Power to construct bridge.
The DEPUTY CHAIRMAN:: When the bill was last before the committee section 8 was under consideration.


Mr. CLARKE (Rosedale):: After listening carefully f [DOT] some time to the arguments pro and con the proposals for each of the bridges, I have come to the conclusion that neither of them represents the proper kind of bridge to be erected. In my opinion a bridge should be constructed as soon as possible and be absolutely free of tolls. When the private bridge company had its property removed by an act of nature, there was removed something which had been obsolete for some years, and an opportunity was given to Canada and the United States to erect a structure worthy to connect these two great Anglo-Saxon countries. For a number of years both countries have been trying to remove tolls from their roads and bridges, and

Niagara Falls Bridge
now the opportunity has come for them to join in establishing a really modern, up to date bridge, one which should be, as I have said, toll free from the day of its completion.
Niagara falls is recognized everywhere as one of the wonders of the world. On one side of that great panorama is the Dominion of Canada and on the other side the United States-two of the most progressive countries in the new world, countries which have done a great deal in removing old-fashioned ideas and out of date customs. I believe we should take such action as will enable people from the old world who visit us to understand something of why the boundary between our two great countries is unprotected by troops and forts, and we should be able to show them something which will symbolize the good fellowship and friendly feeling which exist between us, who may truly call ourselves cousins. I believe the construction of a toll free bridge would encourage tourist traffic between us and would make us better acquainted with each other and with the possibilities of our respective countries.


Mr. WOODSWORTH:: May I ask the hon. gentleman whether by a "toll free bridge" he means a private bridge or a publicly constructed bridge?


Harry Gladstone Clarke: If the hon.
member will be so good as to wait a minute, I shall come to that point. A toll free bridge would be made possible only through the association of the United States and Canada in bearing the cost of construction and maintenance. Under those circumstances I should not be greatly concerned about the general expenditure which will be involved. The expenditure involved should not be an obstacle, because, divided between the two countries, it can be but very small. When one considers the great advertising possibilities of this bridge, as a monument, for one thing, to the neighbourliness of two great countries that have lived in peace and harmony side by side for over one hundred years, without any force to keep the peace between them, why should that fact not be advertised? I do not want to take up much of the time of the committee-


Some hon. MEMBERS:: Hear, hear.


Harry Gladstone Clarke: Well, I suggest that 'the hon. member for Welland (Mr. Damude) ought to thank me a little for this speech. I was about to say that I should like to see this matter referred back to the committee and brought back into the house
with a proposal for a toll free bridge; and that should be done as soon as possible, because every day of delay means that the town of Niagara Falls, and for that matter the whole dominion and the United States as well, are losing revenue which would be derived if the hridge were constructed forthwith. The only point that seems to me to favour the present company is that they will be able to construct the bridge immediately, and I believe there is a possibility of these two great countries getting together and taking care of any expenditures that may be required and protecting any rights that the Niagara Falls Observation Bridge Company may have in the matter. I submit that the parties concerned should get together and construct a toll free bridge for Canada as soon as possible.


Mr. DUFFUS:: This is the fifth occasion on which this matter has come before the committee. I have in my hand a copy of Bill No. 15, to incorporate the Niagara Falls Observation Bridge Company, and also a draft copy of the United States act dealing with the same matter. I wish to refer to the discussion which has taken place on this bill, and it is not my purpose to take up the time of the committee talking about the people of the United States or Canada.


Richard Bedford Bennett: Did the hon. gentleman
say that there was a United States act? My information was that they declined to pass it.


Joseph James Duffus: I said I have a copy of it.


Richard Bedford Bennett: That is the one which
was introduced, but it was not passed.


Joseph James Duffus: May I say I have listened to the discussion of this important international matter, and to say the least I am amazed to note that the objections have emanated almost entirely from one group in the house. I have before me a list of the names of those hon. gentlemen who have spoken, and in addition to that of the hon. member for Rosedale, who has just sat down, we have had speeches from the hon. member for Davenport-


Mr. MacNICOL:: You can always count
on him.


Joseph James Duffus: the hon. member for Lincoln, the hon. member for Danforth, the hon. member for Broadview, the hon. member for Danforth again, the hon. member for Waterloo South, the hon. member for Davenport once more, and the hon. member for Rosedale.
Niagara Falls Bridge


An hon. MEMBER:: And now the hon.
member for Peterborough West.


Joseph James Duffus: Something has been said
about a nigger in the woodpile. I do not know which of these hon. gentlemen is supposed to be the nigger, but one thing I am sure of is that the woodpile is pretty well Tory. When this matter first came up I did not intend to speak, but now I find it difficult to refrain from doing so. The obstruction looks to me like a filibuster, and in my opinion it is doing the people of Ontario and of the dominion a grave injustice at this time. As a member of the committee I have listened to and have gone into the evidence. I have also read the bill. As I understand the situation, the government of Ontario, through a corporation, is seeking the consent of this parliament to construct a bridge over Niagara river from Niagara Falls, Ontario, to Niagara Falls, New York, to replace a bridge formerly known as the "Falls View" or "Honeymoon" bridge, which, as has been said many times in this debate, was destroyed by nature in January of this year. I believe that nature, or shall I say Divine Providence, has been extremely kind in removing the old bridge. At times there have been several hundred automobiles and trucks simultaneously on the bridge, and had the bridge collapsed with those automobiles and trucks and many more hundreds of people, it would have been, to say the least, an international catastrophe.
I have been told-and I believe it is true- that 5,304,000 people passed over the old bridge in the course of only seven months during the year 1937, and I believe it is our duty as public men not only to the present but to succeeding generations to see that there is an adequate bridge at this point. Now that the old bridge is gone, I submit that the most serviceable structure that reasonable means and human ingenuity can provide is the only one that should be considered at this time, if ample service and accommodation are to be maintained.
The United States tourist trade, to Canada and particularly to the people of the province of Ontario, is an important consideration. It is, and will continue to be, a major factor in the social and economic well-being, not only of the people of Ontario but of the dominion at large. The tourist trade is fast becoming our greatest industry and it is of increasing economic importance to the country. Moreover, its increase in gasoline revenue is a large and important item to the [DOT] people of Ontario. I contend that free and uninterrupted traffic to and from the United States at this point will greatly assist the
[Mr. Duflus.1
tourist trade and that ample facilities for customs and immigration inspection should be provided because that, too, is of vital importance to people on both sides of the river, as well as those from elsewhere who wish to cross the bridge from time to time.
I repeat that the present delay constitutes a loss to all of the people of Ontario and to many in the dominion, except perhaps to those who live in the city of St. Catharines according to the contention of the hon. member for Lincoln. When the matter was discussed in the railway committee it was said that it had been rushed through. On the first day the committee sat two-thirds of the morning was spent by those who were introducing this new proposal. On the second day at least two-thirds of the time of the committee was spent by those who were opposing it, and who were interested in the old bridge. With the exception of the hon. members who have objected to the proposal in this house, the opinion of the members of the committee was practically unanimous. I have been told that no bill of this kind has been given greater consideration in many years. I cannot substantiate that, because I have not been a member very long. At any rate let me say that tourists and motorists going to and fro between the United States and Canada are usually in a hurry. Delay is irritating and not in the best interests of the tourist trade or likely to create good will with our United States neighbours. Having regard for ample accommodations and the necessary outlay now and in the future, I am convinced that a structure backed and maintained by the province of Ontario and the state of New York is the only type that would be wholly satisfactory in these days of rapidly increasing tourist traffic. Roads and highways constructed only a few years ago are now found to be totally inadequate. It is the duty of public men to guard carefully against a recurrence of this condition of affairs. I should like to read to the committee a couple of verses which express this point of view: Hordes of autos now remind us We should build our roads to stay,
And departing leave behind us Roads that will not blow away.
When our children pay the mortgage Our fathers made to build those roads, They'll not have to ask the question- "Here's the bonds, but where's the roads?"
That pretty well expresses my conviction on this matter, and in the interests of the people of the United States, Ontario and the Dominion of Canada as a whole I am prepared wholeheartedly to support this bill. I think that delay will be a serious mistake and loss

Niagara Falls Bridge
to the people of Ontario. Why those hon. members who represent constituencies in Ontario adjacent to Niagara Falls are holding up this bill is beyond my conception.


An hon. MEMBER:: What are you doing now?


Joseph James Duffus: I have not spoken several times as some hon. members have. Further, let me say that the bridge should be adequate to accommodate increasing tourist traffic for the next seventy-five years. The city of Niagara Falls seems to be quite satisfied with the proposed bridge, as was pointed out by the hon. member for Welland when he read to the committee a resolution passed by the city council to this effect. In addition, the proposed new bridge will be built over what is known as River street; it will not end on River street where there is bisecting traffic and where there have been traffic jams not only on holidays but from week to week at both ends of the bridge for considerable distances. When we build a bridge we should have regard to the requirements of the future.
Inasmuch as the Ontario government, and not this parliament, will be responsible for the construction of this bridge, and that it will be built with funds provided by the people of the United States and the people of Canada and elsewhere who use the bridge, through the tolls they will pay, I can see no good reason why it should be held up in this committee at this time. As a matter of fact, the province of Ontario is simply asking this parliament to sanction the project. It then becomes the responsibility of the government of Ontario to provide adequate facilities for those desiring to cross at this point. Surely, we as citizens of Canada should have some regard for our United States friends whose trade is so valuable to us. Hence we should see to it that this project is carried out with the least possible delay, and that a structure that will give ample accommodation to those who wish to pass back and forth over the border between the United States and Canada is provided.


Mr. POULIOT:: To put the matter in a nutshell, it is generally agreed that the old Niagara bridge is a frozen asset, flooded with a tremendous quantity of watered stock.


Mr. LOCKHART:: Since this bill, and more particularly section 8, entitled "power to construct bridge" came before this committee on April 5, I have refrained from making any further comments, as I was of the opinion that I had fully expressed my views on that section, as well as voiced the sentiments and
protests of a number of home owners in Niagara Falls. These home owners have written me expressing their fear of increased taxation in case the provincial government should take over the five acres of river front property as suggested by the sponsors of this bill. In the light of what took place at the city council meeting of Niagara Falls on Monday last, and following the statements made and inferences suggested in this chamber during the discussion of section 8 on April 5, I find myself in direct conflict with many of the statements that were made both in the city council of Niagara Falls, Ontario, and in this committee.
I wish to direct attention to the remarks I made during the previous debate. I want to make my position quite clear, because I have some pointed references to make before I finish.
When this bill was first discussed my attitude was stated when I said, as reported on page 1831 of Hansard:
I do not question the motives of the hon. member for Welland, because I have known him too well and too long to do that.
I also said that I did not want the hon. member to feel that any of my remarks were in any way personal, because I know that he presented the bill in the form in which it was given to him to present. I made that statement advisedly, because I had an interview with the hon. member in my own office in this building, and I questioned him as to the motives of those promoting the measure and the purport of this bill. His reply was that he was not familiar with the details of the bill, but that he had been asked to sponsor it; and he did not or could not impart any information to me. This lack of the information which I desired to obtain before making any further comments convinced me that the bill required looking into. I have now made my attitude quite clear as far as the hon. member for Welland is concerned. Turning to page 2049 of Hansard, we have some references which the hon. member made at that time. He said:
Further, in connection with this matter the hon. member for Lincoln (Mr. Lockhart), addressed a letter, dated March 24, to the Mayor of Niagara Falls-and I may say it was a very fine letter, taking up eighty-three lines of foolscap paper and consisting of 1,079 words-asking the city of Niagara Falls to say whether it appreciated his efforts on their behalf.
Now, Mr. Chairman, I desire to refer to a statement made by Alderman Donald which
Niagara Falls Bridge

is included in the verbatim report of the council meeting appearing in the press on April 5. He said:
I don't know whether Alderman McAninch remembers what trouble Hon. W. L. Houck went to on behalf of the city of Niagara Falls-
Then he referred to some other matters, and went on to say:
The only member in Ottawa who is trying to read out the bridge bill is N. J. M. Lockhart, the member for Lincoln county. Do you know that two years ago when A. B. Damude, our member, asked the government for $90,050 to build the river road, Mr. Lockhart was the only member who objected. He didn't want to see a single five cent piece spent on any road in Niagara Falls. Now he says he is interested in this city receiving taxes.
I challenge the hon. member for Welland to substantiate that statement or correct it in the Niagara Falls press.


Mr. DAMUDE:: Does the hon. gentleman suggest that I made that statement?


Norman James Macdonald Lockhart: That is the statement which was made; that has come into this argument at this stage, for what reason I do not know.


Arthur Byron Damude: Who said so?


Norman James Macdonald Lockhart: Alderman Donald, at the meeting of the Niagara Falls council, said that I opposed the voting of $90,000 in this house.


Arthur Byron Damude: Has that anything to do with the bridge bill?


Norman James Macdonald Lockhart: I ask the hon. member to be good enough to inquire into that statement and see if it is true. On March 24, the Niagara Falls council passed a resolution, which has been placed on Hansard already. I do not want to take time to read it again-


Some hon. MEMBERS:: Hear, hear.


Norman James Macdonald Lockhart: If hon. members wish, I can easily take time to read it, but there are more important points to which I want to refer.


Some hon. MEMBERS:: Read it.


Norman James Macdonald Lockhart: This resolution was
passed by the city council, and appeared verbatim in the Niagara Falls Review of March 24. The council wanted to send a telegram to the Prime Minister. This has been referred to already, and I do not consider it necessary to repeat it to-night. In any case they decided to send this telegram protesting against the passing of this bill until a clause was inserted to protect the citizens of Niagara Falls against the loss of any taxes.

Things seem to happen in Niagara Falls, as they do in Ottawa. Some people allow others to make up their minds for them. I note that the resolution read into Hansard by the hon. member for Welland was adopted by a division of four to three. That is peculiar, because the original resolution of protest was passed by a similar division, only the other way around. I have letters from citizens of Niagara Falls which I could take an hour to read, suggesting why some of the people might have changed their minds.
To return to this press report of March 24, which I am informed is verbatim, Mayor Hanniwell said that there was no encouragement to support public ownership in Niagara Falls.
The effects of it have crippled this municipality. We have had the tax exempt hydro, and confiscation of valuable city property by the Niagara parks commission, upon which no taxes are paid to the city, and there is certainly no incentive to support a publicly owned bridge if a repetition of the past is going to be a fact.
That statement was made early in the discussion of this matter. Alderman McAninch, according to press reports, expressed the same conviction.
I come now to the remarks or, shall I say, the inferences of the hon. member for Welland, as I find them at page 2051 of Hansard. It is to these that I want particularly to direct attention. The hon. member mentioned something about an Ethiopian in the woodpile. This inference can be interpreted only as having reference to the late Hon. J. D. Chaplin. My comment in that connection is this: I hope my hon. friend and I will some time possess the reputation that the late Hon. J. D. Chaplin possessed when he left Ottawa. Many members of this house, on all sides, have continued to impress upon me the sincerity of purpose of the late Hon. J. D. Chaplin.


An hon. MEMBER:: Did anyone say that it was Hon. J. D. Chaplin who was referred to?


Norman James Macdonald Lockhart: The hon. member for Welland said:
It came from the county of Lincoln, the same place from which it is coming now. Probably there is a reason for this. A remark was made the other evening that there might be an Ethiopian. There is an old saying. Where there is an Ethiopian there usually is a woodpile, and I think the woodpile will be found at St. Catharines. St. Catharines possesses some excellent citizens who are vitally interested in the lower steel arch bridge at Niagara Falls, a company which received from the Canadian National Railways a rental of $100,000 a year. The president of this company, and the secretary treasurer also, two very fine gentlemen, live in St.. Catharines; directors

Niagara Falls Bridge
live in St. Catharines. For eleven years the opposition to the building of a bridge across the Niagara river has emanated from that point. To be frank, it came from a late hon. member and minister who resided in that constituency.
That is the statement which was made, and only one inference can be drawn from it; that it referred to the late Hon. J. D. Chaplin. I repeat that many on both sides of the house recall clearly the services which the late Hon. J. D. Chaplin gave to the house and the country. Let me say here most definitely that I do not intend to indulge in any insinuations to-night, but I should like to say that the two men in particular referred to by the Niagara Falls Review, the men who have fought very strongly for the taxpayers of Niagara Falls, are Mayor Hanniwell and Aider-man McAnineh. I want it distinctly understood that I do not even know these two men, and have never met them. I have heard of them, but I would not know them if they were to meet me on the street. I can say, however, that I believe the citizens of Niagara Falls owe a debt of gratitude to these two men and to the other members of council who have so ably expressed themselves against this bill in its present form.
The hon. member for Welland mentioned the Ethiopian in the woodpile; I have read the passage in Hansard, and I say it points definitely to the late Hon. J. D. Chaplin. Then my hon. friend went on to say that the president and secretary-treasurer of the lower arch bridge company were also residents of St. Catharines. The suggestion is thrown out again that there has been collusion of some kind between these gentlemen and myself. I refute that suggestion. I want to say definitely that I have not discussed with the president, the vice-president or the secretary-treasurer of the lower arch bridge company-


Arthur Byron Damude: Does the hon. member suggest that these gentlemen do not live in St. Catharines?


Norman James Macdonald Lockhart: I do not suggest any such thing at all. I said it was stated in this chamber that they lived in St. Catharines, and the inference was that I had been in collusion with these gentlemen. I want to state definitely, that I have never discussed the matter with any of the officers or officials of the lower arch bridge company, and I want that distinctly understood. My stand on this whole question in the House of Commons has been prompted by a great many home owners in the city of Niagara Falls, men straggling to save their homes, from whom I have received a number of letters in connection with Bill No. 15, and their fear of increased taxation. I could take time to read these letters, but I shall give the committee a number of the questions contained in them which I have condensed.
The first question I pick out of one letter is this:
Why did Bill No. 15 as first presented authorize the raising of $7,500,000 to build a bridge when tlie bill as introduced in the state assembly of New York only provided for the raising of $3,000,000?
That is practically the first question I received. Here is the second question:
What explanation has been given that the amount can now be reduced to $4,000,000, still $1,000,000 more than asked for in the state of New York?
Another question that was asked by a gentleman who is struggling hard at the present time to save his home in Niagara Falls is:
Why has the meeting arranged for March 26 never been held?
I have referred to that meeting in previous remarks in this chamber. That meeting, which was to consist of all interested parties, was postponed. I have raised that question in committee, and I have raised it in the house, but the meeting has not so far been held. It was to be a meeting of the parks commission, the International Railway Company officials, the mayor and council of Niagara Falls, the Hon. W. L. Houck and the bon. member for Welland, to discuss the problems in connection with this proposal. The date of the meeting was to be three days after the bill was passed in the committee, where I objected to the bill being rushed through, and I asked for a short delay until the matter might be discussed at length in Niagara Falls.
Another question I have been asked is this:
Is it not possible to insert a clause in Bill No. 15, that would protect the taxpayers of Niagara Falls against loss of taxation if five acres of river front is to be taken over?
It is pointed out that it is the most valuable river front property along the border. I can read the letter if that is desired, but I think the hon. member for Welland will admit that it is an extremely valuable piece of property. Here is another question I have been asked:
Would I urge that a protective clause be inserted in Bill No. 15?
I think it has been suggested in council at Niagara Falls and in the discussions here that some protection should be given, and I have already made myself clear on that point. Another question I was asked was this:
Could I ascertain if the report was correct that some of the provisional directors named in Bill No. 15 were related to members of the provincial government?
Niagara Falls Bridge

I can read the whole letter if any member wants me to. Those are pertinent questions, Mr. Chairman.
Another question was this:
In view of the statement made by the hon. member for Welland that he was assured the provincial government would protect the taxpayers, would I ascertain on what authority this statement was made?
The question was asked by an hon. member the other night, and I have not heard it answered yet. Another question was this:
If clause 8 in Bill No. 15, provided that no action could be taken by provincial authority until concurrent legislation was passed in New York state, and such legislation having been killed by the New York State Senate, could I find out why Bill No. 15 was being pushed through so rapidly, particularly before the postponed meeting of March 26 had been held?
There are many other inquiries of a similar nature which I have received in correspondence from taxpayers and home owners at Niagara Falls. Is it any wonder that I have to-day received one or two more letters asking whether I have found the Ethiopian in the woodpile.
I have felt it my duty to refer to the many insinuations and incorrect statements that have been made, and I should like the hon. member for Welland, before the bill passes, to clear up these incorrect statements, particularly the one that I blocked an expenditure of money. May I suggest further to the hon. member that he should observe the old axiom that "people in glass houses should not throw stones."
I want to give some more convincing evidence as to the amount of discussion that took place and may I again refer to that marvellous letter of 1,079 words to which reference has been made. I propose to put the whole letter on Hansard and then leave it to the committee to judge whether it is the sort of letter the hon. member represented it to be, that I was simply wanting to know whether the council and the corporation of Niagara Falls were satisfied with my actions. The letter is dated March 24, following receipt of most of these letters to which I have referred. The letter is addressed to the mayor and council of Niagara Falls, Ontario, and I am going to put it on Hansard so that the members of the committee may judge for themselves the inferences and references made here the other night:
I am enclosing a copy of Bill No. 15, which was considered again yesterday before the committee of railways and canals and telegraphs.
The bill was sent on to the House of Commons for consideration, contrary to the wishes

of some members of the committee. Several minor amendments were made to the bill but the intent and purpose remain the same.
I was one of the members of the committee who were of the opinion that the bill should not have been hurried through, in view of press reports and other considerations involved. I have no apology for the stand I took, which I considered was in the best interests of the citizens of Niagara Falls, Ontario. I based my arguments on the reports in the St. Catharines "Standard" under dates of March 21 and March 22.
On the first mentioned date, March 21, the following appeared:
"A joint conference of the city council, the chamber of commerce and representatives of the International Railway Company and the National Parks Commission, with A. B. Damude, M.P., and Honourable W. L. Houck, will be held at Niagara Falls on March 26 to discuss the two proposals for bridges across the Niagara river. Both Mr, Damude and Hon. Mr. Houck have assured Niagara Falls city council, according to Mayor C. D. Hunniwell, that they will do everything possible in the event of government bridges built to see that the municipality does not lose taxation on the structure."
Let me supplement that by stating that there was a letter by the hon. member for Welland to the mayor of Niagara Falls on March 15, in which he said he would not "support a measure that will deprive your municipality of the assessment that you so urgently need." The minutes of the last meeting of council show that although the matter was discussed on four or five occasions, no such assurance had so far been given. I quote again from my letter of March 24:
The following article appeared in the St. Catherines "Standard" of March 22: "The city council of Niagara Falls approved a motion to be submitted to the Honourable W. L. Houck recommending that all properties acquired by the province or the Niagara parks commission and in use for highway purposes be subject to proper taxation. Alderman J. A. McAninch declared that the parks commission was using some of the city's most valuable property fronting on the river, and they might as well take over the entire city."
My inquiry of Mr. Damude while in committee was that if such a meeting was being held on March 26, and in view of other press reports I was of the opinion that the council of the city of Niagara Falls were not satisfied with the deliberations to date, and I was opposed to presenting any bill to parliament until the people's wishes in Niagara Falls had been met. Mr. Damude later explained to me that the meeting called for March 26 had no particular bearing on the decision to be arrived at by the committee, and was called for the purpose of giving some general information. He urged that the bill be sent on to parliament, and he was supported by the majority of the committee. Accordingly, the bill has been sent on to the House of Commons.
Having in mind the difficult position that the municipality of Niagara Falls, Ontario, has found itself in during the past few years, and having in mind that perhaps over $10,006 per

Privy Council Appeals
annum has been derived from the International Railway Company by way of taxes, and having further in mind that all municipalities are being faced with higher tax rates in 1938 by reason of increased responsibility for relief, I took the stand that the corporation of Niagara Falls, Ontario, should be supplied with every possible information and were fully satisfied before any steps were taken which might in future deprive them of taxes which are so urgently needed. It was my opinion and conclusion that the meeting to be held on March 26 would possibly clear away any difficulties in the minds of your council, as all the interested parties were to be in attendance.
May I, in further explanation, state that it was argued by the chairman, and supported by some members of the committee, that as the presentation of this bill to parliament had been properly advertised, and as the council of Niagara Falls, Ontario, had taken no steps to register any objection to the bill; and further, that a resolution passed by the council in February supported the erection of a toll-free bridge, there should be no further delay in presenting the bill to the House of Commons.
With this argument I could not concur, in view of all the information as contained in the foregoing part of this letter.
That there may be no misunderstanding, let me make my position clear. Either all the press reports were erroneous, or there must be some misunderstanding as to the purpose of the meeting that is to be held on March 26. My one desire is that the citizens of Niagara Falls, Ontario, through their council body, have every possible opportunity to express their views before any proposed bill was presented to parliament. The bill in its amended form will now come before the House of Commons in due course, and later before the Senate. If the rights of the citizens, in your opinion, are being protected in every way and their expressed views are being complied with, I cannot see that any good purpose can be served by further discussion of the bill now before the house.
I would appreciate knowing whether your council endorses the stand I took in committee on the bill. I would also appreciate advice as to what final decision is arrived at following the meeting on March 26.
It is my one desire to protect the rights of all citizens, who are after all, the people who are required to assume any increased burden of taxation.
It has been said that a resolution was introduced in the council and was defeated. That resolution was placed on Hansard before. That resolution was defeated four to three. It will be found on page 2050 of Hansard. It contains a statement that I said that the condition of the city of Niagara Falls is one of virtual insolvency. I hesitated to take up the time of the committee in reading the whole of this letter, but I felt it was necessary to do so in view of the statements that have been made. In this house inferences have been drawn and statements made which I hope are now conceded to be incorrect. This
is another question from the verbatim report of the council meeting of April 4, Alderman McAninch speaking:
I believe they owe that loyalty to this municipality. They would see that we have something in writing about taxes on the bridge. You remember when I told Mr. Stewart Lyons we should have a new agreement regarding hydro taxes for this municipality, he said to me, "Niagara Falls sold themselves out when the former city council dealing with the former hydro commission didn't see there was a clause in the contract to protect the city of Niagara Falls." I have no axe to grind with who builds the bridge. I am not arguing that point, but after Mr. Lyons' "talk" I want to see to it the solicitor and the city council sees there is a clause put in the bill requiring the company to pay taxes on any property they take over, and their successors be obligated to carry out that agreement.
I could read passage after passage from the verbatim reports that have appeared in the press of Niagara Falls, and I could read many extracts from letters I have received, but perhaps what I have quoted will be sufficient. When anyone talks about there being an Ethiopian in the woodpile, I can only repeat what I said before, that "people who live in glass houses should not throw stones." I have the evidence; I had the letters-


An hon. MEMBER:: One minute to go.


Norman James Macdonald Lockhart: I can go for much longer than that. I quote again from the verbatim report:
Alderman McAninch asked Mayor Carl D. Hanniwell if he had any assurance, in writing from either Honourable E. L. Houck, A. B. Damude, M.P., or anyone, that taxes would be paid to the city.
Progress reported.



PRIVY COUNCIL APPEALS


[Stage Direction]
The house resumed consideration of the motion of Mr. Cahan for the second reading of Bill No. 19, respecting appeals to the Judicial Committee of the Privy Council.
James Shaver Woodsworth: Mr. Speaker, perhaps this field of discussion may be regarded as a preserve for legal gentlemen, but the consequences of the existing arrangements are of such a serious nature that even a layman must seek to understand the principles involved. My own interest in this question of appeals to the privy council was quickened years ago by some informal gatherings that a few of us were privileged to attend in the
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home of the late John S. Ewart. I desire to pay a tribute to the pioneer work which he performed in the advocacy of constitutional reform.
I wish to join with the Minister of Justice (Mr. Lapointe) and the hon. member for Selkirk (Mr. Thorson) in congratulating the hon. member for St. Lawrence-St. George (Mr. Ca'han), upon introducing this measure, and, if I may, upon his able presentation. He is in years one of the older members of the house, but in spirit he is one of the most vigorous and most youthful. I find myself in hearty agreement with my fellow citizen the hon. member for Selkirk. I trust that his eloquent appeal for a true Canadianism will re-echo across Canada. I should also express my appreciation of the advanced stand taken by the Minister of Justice in declaring that the dominion has exclusive appellate jurisdiction-if I caught his words aright, "paramount powers of doing away with all appeals." But I confess that I cannot understand the hesitation of the Minister of Justice to proceed at once to enact legislation which would accomplish what I believe a vast majority of Canadians would hail with satisfaction. The hon. member for Selkirk put the situation graphically when he said that we are wallowing in a constitutional morass. The Minister of Justice agrees, but he takes the position in effect, "Let us wallow for a while longer."
Before the Minister of Justice spoke, I had intended to express regret at the limitations of the scope of the bill as contained in such terms as "in so far as the same are part of the law of the Dominion of Canada" and "within the competence of the parliament of Canada." But I am glad that the hon. member for St. Lawrence-St. George is willing to accept an amendment in harmony with the position taken by the Minister of Justice.
It is not my purpose to attempt an original argument in favour of the bill. Rather I content myself with the more humble task of presenting some paragraphs written by others which have appealed to me and which may be of service to lay members of the house and to the general public.
In my judgment, the best summary of the situation is contained in the brief of the League for Social Reconstruction, submitted recently to the royal commission on dominion-provincial relations. I quote:
As a result of seventy years of judicial interpretation, the dominion parliament finds itself shorn of its general residuary powers, except on occasions of national calamity greater than the world crisis of 1929-35, shorn of much of its power to regulate trade and commerce,

shorn of a great part of its power to implement treaties, and almost totally incapable of providing for the masses of Canadian population that protection against the national evils of unemployment, fluctuating wage and price levels, and social insecurity which is being increasingly demanded to-day. People in need have been forced to look to the provinces for help; the provinces in their turn are incapable of giving it in adequate measure.
Another summary which appeals at least to a layman is contained in the brief presented to the commission by the Native Sons of Canada, prepared by J. B. Coyne, A.R.M. Lower, and R. O. MacFarlane. Speaking of the members of the privy council, the brief states, at page 23:
Its members have been held up as great imperial statesmen. But one of the anomalies of our history is that while the constitutional position of the dominion has constantly been growing larger vis-a-vis the imperial government, yet almost in equal proportion and at the same time, it has at the hands of the privy council been growing smaller vis-a-vis the provinces, and less able in consequence to fill its enlarging national role . . .
A little later:
But the privy council has been unwilling to learn except in a most superficial v'ay, the circumstances in which and out of which the enactment of the British North America Act arose, rejecting the history of the Charlottetown and Quebec conferences, the parliamentary debates that show the purpose and intention, the use made of the United States constitution as an example, the degree in which it was adopted, extended or rejected, and the negotiations in London. It has made no reference to them save in isolated cases where such reference served its temporary purpose. It is unfamiliar with subsequent change and present conditions in Canada, physical, economic, social and psychological. . . .
A little later on:
. . . the privy council has remade the British North America Act and fashioned it into something entirely different from and contrary to that intended by the fathers of confederation and clearly expressed in its terms; that just what the privy council has made it into is almost impossible to discover because of contradictions, inconsistencies and confusions in and between its various decisions; that nearly all the defects found in the constitution as now interpreted have been put there by the privy council and that most of such defects do not inherently belong. It is not alone the actual decisions; where the privy council may be right in the result, it has said so much that is wrong.
The Australian experience has been similar to that which we have had in Canada. The hon. member for St. Lawrence-St. George has already quoted Mr. Hughes, the Australian Prime Minister who spoke at the imperial

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conference of 1918; but I think, since I am presenting my point of view, I may be forgiven if I quote a few sentences again:
. . . The eminent judges ordinarily available on the judicial committee, for all their legal learning and judicial experience, have not among them a single man who is intimately familiar with this constitutional document, or with the vital processes underlying it, a knowledge of which is, in the case of any constitutional document, necessary, to a full appreciation of both letter and spirit. Australia's experience of the privy council in constitutional cases has been, to say the least of it, unfortunate.
Referring to a particular case, Mr. Hughes added:
Its decision is one which must have caused great embarrassment and confusion, if it were not for the fortunate fact that the reasons for the judicial committee's decision are stated in such a way that no court and no counsel in Australia has yet been able to find out what they were. That is what must happen when a tribunal on the other side of the world, no matter how eminent and experienced its members may be, has cast upon it the duty of interpreting a complicated constitutional document with the history and principles of which no member of the court, and perhaps no counsel practising before the court, is especially familiar.
In an article in the Fortnightly of April, 1937, a writer calling himself Historicus notes the enlargement of provincial powers under privy council decisions. On page 471 he says:
What has happened? Merely this-that sections 91 and 92 have been interpreted by the privy council in such a way as to invalidate any dominion act unless it can be brought under the narrowest interpretation of the provisions of section 91, without coming into conflict with the widest possible interpretation of the "property and civil rights'' provision of section 92. This process of interpretation by the privy council from the end of the nineteenth century down to 1939 enlarged provincial powers and diminished dominion powers in a way that would have astounded and discouraged Macdonald, Cartier, and their colleagues of 1867
The same point of view was definitely set forth by our own under-secretary of state for external affairs in his evidence before the 1935 special committee of the House of Commons on the British North America Act. I might say parenthetically that this committee was one which was set up after a motion of my own urging that we seek to discover some way of amending the British North America Act.
Doctor Skelton said:
In the United States they began with a constitution which emphasized state rights, but under the guiding hand of John Marshall and his successors, it was gradually transformed in many particulars until the balance was decidedly shifted in favour of national rights: In Canada, 51952-139
under the guiding hands of Lord Watson and Lord Haldane, a constitution which in the mind and intent of the fathers of confederation was deliberately designed to profit by the mistakes of the United States, manifested in the struggles culminating in the civil war, and to make the central government the predominant factor, the residuary legatee, has been interpreted in definitely the wrong direction.
The hon. member for Selkirk touched upon the contention that the right of appeal gave some assurance to the minorities that their special right would not be interfered with.


Joseph Thorarinn Thorson: No; I said quite the reverse.


James Shaver Woodsworth: The hon. member misunderstood me; I referred to the argument frequently advanced. After a very careful review of the cases, Mr. Frank R. Scott writes in Queen's Quarterly, 1930, at page 677:
What the privy council has done in our constitution is to safeguard, not minority rights, but provincial rights. An elaboration of this statement is not possible here, but it may be stated with little fear of contradiction that the privy council has carried its protection of provincial claims so far that to-day we have in Canada a distribution of legislative powers quite unlike that which was agreed upon at confederation, and one which by its undue enlargement of the provincial sphere, considerably weakens the efficient and harmonious structure of our constitution. Possibly the judicial committee has thought that in cutting down the dominion powers they were assisting the minority in Canada. If so they were grievously mistaken.
This conclusion was arrived at after a careful review of the cases that had been before the privy council. As to the general consequences of privy council decisions, I would refer anyone interested to the Canadian Bar Review of June, 1937. Into the details of that I shall not attempt to enter.
One other aspect of the situation is that the decisions of the privy council place vested interests above the public weal. This is emphasized in an editorial in the Ottawa Journal of February 22, 1912. It is quoted by Olivier in his book Le Canada, Pays Souverain, which was published in 1935. I quote:
A number of decisions of great importance made recently by the law lords of the privy council have been such as to raise doubt of the equity of that tribunal. Ground is given for the suspicion that, however disassociated the law lords of the P.C. may be from our local prejudices or predilections, they may not be without unconscious bias due to their own surrounding and atmosphere .	.	. several
judgments recently given suggest an undue tenderness to vested interests, seeing that in all the cases referred to the Canadian courts had previously decided the other way ... we take the liberty of thinking that the law lords

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of the privy council are quite likely to be the mistaken ones. And in all these cases it was a question of vested right against the public weal .	.	.We confess that these cases, coming within a couple of years, shake your idea of the desirability of the option of going to the privy council. We believe Canadian judges to be of as high a standard of honour as English judges and to be as judicial in their frame of mind .	.	.
At all events, the fact is decidedly discomforting that in law suits affecting three great public contracts in Canada, all of which are governed by Canadian law, all the judicial decisions in Canada should have been in favour of the public and all the decisions of the imperial privy council in favour of the private corporations.
Without going into the arguments advanced for and against appeals, I would refer any student to Mr. J. 8. Ewart's and Mr. George
H.	Sedgewick's article in Queen's Quarterly, 1930. It seems to me that the hon. member for Selkirk was quite right, that the appeal to the privy council is after all a relic of colonialism, and it should have no place since the passing of the Westminster act.
In closing, may I express the hope that the Minister of Justice will reconsider his position with regard to the desirability of further delay. Never had we a better opportunity of bringing about a much-needed and long overdue reform. As I heard him I could not but recall those lines from Shakespeare:
There is a tide in the affairs of men
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
I hope the Liberal party will give consideration to that aspect of the matter. Continued hesitation is probably a hang-over of the long-continued inferiority complex.


Mr. W. F. KUHL (Jasper-Edson):: Mr. Speaker, I listened this afternoon with much interest to the debate on this bill which has been introduced by the hon. member for St. Lawrence-St. George (Mr. Cahan). I listened also with interest to the Minister of Justice (Mr. Lapointe) and to the other hon. members who have spoken. All, or nearly all, of the references that have been quoted by hon. members are to the constitutional question, particularly judgments of the Judicial Committee of the Privy Council concerning the relationship of the provinces to the dominion. This relationship is set forth in sections 91 and 92 of the British North America Act. It is quite true that the judgments tend to disregard the intentions embodied in the Quebec resolutions of 1864; but in my humble opinion the fault lies not in the judgments themselves, but in the drafting of the British North America Act.

Lord Carnarvon was chairman of the meeting held prior to the introduction of the British North America Act in the House of Lords, on February 19, 1867. Montague Bernard was recording secretary, and the bill was drafted by Lord Thring.
On the address in reply to the speech from the throne I stated on February 10 that the British North America Act was an intentional misrepresentation of fact, and for that reason was null and void. I do not intend to repeat what I said at that time, but I would simply draw the attention of the house to the fact that no statement which I then made has to this date been refuted. At the first session of this parliament, the Prime Minister, on April 1, 1936, quoted from Sir Courtenay Ilbert, parliamentary counsel to the treasury, on the importance of a preamble. Without implying that Sir Courtenay Ilbert is not a great jurist, and without detracting in any measure from the honour that is his due, I desire to quote a few paragraphs from the works of his teacher, Lord Thring. In the Annual Register, of 1907, at page 110 we find that Lord Thring became counsel to the Home Office in 1860. In 1870 he left that post for the new office of parliamentary counsel to the treasury, his duty being to preside over a separate department charged with the preparation of government bills. This department, the idea of which was due to Mr. Lowe, was very successful, chiefly owing to the great skill in draftsmanship of its chief. He it was who drafted the British North America Act, the Interpretations Act of 1889, the Merchant Shipping Act amendment of 1862, the Irish Church Act of 1869, the Land Drainage Act of 1861, the Home Rule Bill of 1886, and numerous others, reference to which is made in his book Practical Legislation published in 1902. On page 9 of that book he says:
But it is necessary to attain, if possible, to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.
In speaking of the Army Act of 1881 he states that it took ten years to draft, and
says:
Some idea of the labour involved in preparing this measure may be formed from the fact that the papers written to explain the law alone fill a folio volume of 1,067 printed pages.
In 1868 Lord Cairns appointed a statute law committee of which I am the only original member surviving. The duties of the committee are to make arrangements for, and superintend the publication of, a revised edition of the statutes.
The committee also superintend the preparation of an index of the whole statute law,

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digested on a system laid down in instructions of great particularity issued by the committee for the use of the compilers.
On page five he tells us:
I continued to he employed in drafting acts of parliament during my private practice at the bar till 1861, when I was appointed counsel to the Home Office, an office which was afterwards converted into the office of parliamentary counsel, and for the remainder of my official life I was occupied almost entirely in preparing legislation. "It will be seen, therefore, that whatever deficiencies may exist in the following treatise, they are at all events not due to ignorance or want of experience."
Lord Thring drafted the Colonial Laws Validity Act of June 29, 1865, which act no longer applies to the Dominion of Canada. He having drafted the British North America Act and the Interpretations Act of 1889, I have no hesitation in stating that in my opinion he knew whereof he wrote; and when he draws a distinction between the legislature of a colony and the parliament of Great Britain he means exactly what he says. As regards those who do not understand the decisions of the privy council, their failure to do so is due, in my opinion, to the fact that they do not differentiate between a parliament and a central legislature of a colony. The main difference between them is that whereas the acts of a parliament cannot be disallowed, the acts of a central legislature can. I desire to draw the attention of the house to the fact that according to Lord Thring this parliament is a central legislature and nothing more, the members of which should be designated by the letters M.C.L. and not M.P. And this house never was and never can be a parliament of the Canadian people. In the judgment of the privy council this house has no treaty- making power, and can have this power only when the provinces confer it. In their judgment they say that Canada, the dominion and the provinces together, have a competency of all power, both legislative and executive. In other words, they tell us that we can govern ourselves; that we are not subordinate to the imperial parliament. Now, Mr. Speaker, if Canada has a competency of all power to govern, and Canada is composed of nine provinces, there is nothing to prevent the nine provinces from creating a parliament of Canada whose acts would not be subject to the power of disallowance.
In my opinion, taking our cases to the privy council is an act of subserviency on our part and a distinct reflection on the erudition, dialectical ability or integrity of the eminent academicians of our supreme court, an act which should no longer be countenanced by the Canadian people. How-51952-139J
ever, I do not wish the privy council of Great Britain to think that we desire to reflect in any way upon the admirable judgments they have handed down in the cases which we in the past were compelled to place before them. One of the main reasons why we can be considered capable of self-government is that we do understand the implications of these judgments of His Majesty's Most Honourable Privy Council.
This house, which sits to-day upon the shifting sands of discontent, has no power to cancel these appeals. The provinces of Canada will only laugh at the attempt to detract in any measure or curtail in any manner their prerogative of taking any case before the august tribunal the Judicial Committee of the Privy Council.
I am aware that the statute of Westminster of December 11, 1931, does not apply to this house; for nowhere does it apply to the central legislature of a colony. No parliament of Canada can be created until there is an agreement signed among the provinces creating a parliament. As no attempt to refute the statements made by myself in the debate on the address in reply to the speech from the throne on February 10 has been made, it is conceded that what I said is true.


Some hon. MEMBERS:: Oh, oh.


Mr. GRAYDON:: May I ask the hon. member a question? Do I understand him to suggest that this parliament has no status as a legislative body?


Richard Bedford Bennett: That is what the hon. member says.


Mr. FINN:: That is what he means.


Walter Frederick Kuhl: I believe the hon. member i3 justified in drawing that conclusion.


Robert Emmett Finn: Then why is the hon. member here?


Joseph Thorarinn Thorson: Would the hon. member indicate where he got these queer ideas?


Walter Frederick Kuhl: I placed on Hansard on February 10 a clear outline of the reasons for my statement. If the hon. member wishes to refute any of the facts or arguments which I placed before the house, I shall be pleased to hear the refutation.


Joseph Thorarinn Thorson: Why battle against windmills?


Walter Frederick Kuhl: To continue, Mr. Speaker, I contend that since the arguments I placed before the house on February 10 have as yet
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not been refuted, it is conceded that what I said was true, that the British North America Act was an intentional misrepresentation of fact, and is therefore null and void. This being so, it cannot be retained as part of the statute of Westminster. Each province is therefore a political unit, without a political superior, and there is nothing to prevent them from creating a federal union and stipulating that the Supreme Court of Canada be the court of last resort.


Joseph Thorarinn Thorson: What authority is there for that statement?


Walter Frederick Kuhl: Subsection (2) of section 7 of me statute of Westminster.


Robert Emmett Finn: Read it, please.


Walter Frederick Kuhl: It reads:
The provisions of section two of this act shall extend to laws made by any of the provinces of Canada and to the powers of the legislatures of such provinces.


Joseph Thorarinn Thorson: Would the hon. member read the first subsection?


Walter Frederick Kuhl: It reads:
Nothing in this act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or to any order, rule or regulation made thereunder.


Joseph Thorarinn Thorson: So the British North America Act is preserved intact.


Walter Frederick Kuhl: In my speech on February 10 I believe I produced sufficient evidence to show that unless the preamble of a bill can be proven, the bill fails. If the preamble of the British North America Act cannot be proven to-day, how could it have been proven in 1867? If it cannot be proven, is it not a natural consequence that the bill is null and void?


Joseph Thorarinn Thorson: Does the hon. member
expect that argument to be taken seriously by anybody in Canada?


Walter Frederick Kuhl: If it is based on fact, I certainly do.


Joseph Thorarinn Thorson: 


Walter Frederick Kuhl: I have presented what I regard as facts; I have quoted the right hon. leader of the opposition (Mr. Bennett) and the authorities given by the right hon. Prime Minister (Mr. Mackenzie King) as to the nature of a preamble and what is expected of a preamble.


Richard Bedford Bennett: It must occur to the hon. gentleman that if the preamble is accepted by the enacting legislature as having been proven, it is not for us to say it has not been.
[Mr. Kuhl.l


Walter Frederick Kuhl: I am not sure that I understand the statement of the right hon. gentleman.


Richard Bedford Bennett: I merely mean this, that the British North America Act is a statute which was passed by the parliament at Westminster, and the preamble was passed by that parliament. Having been passed by that parliament, it is not for us to question it. We have no legislative power in regard to it.


Walter Frederick Kuhl: Would the right hon. gentleman say there was evidence that the preamble to the British North America Act was proven by the imperial parliament?


Richard Bedford Bennett: It was accepted and passed by them.


Gordon Graydon: I should like to make one observation. It occurs to me that the hon. gentleman is definitely out of order to-night in bringing this matter before a body which has no legislative jurisdiction whatsoever in regard to it.


Joseph Thorarinn Thorson: Indeed, according to his own argument he has no right to be here, because he is here pursuant to the provisions of the British North America Act.


Walter Frederick Kuhl: I am placing my opinions before the house, and I shall be pleased to listen to any refutations that may be made when hon. members make their own speeches.


Jean-François Pouliot: Would my hon. friend be kind enough to let me ask the question which the hon. member for Selkirk (Mr. Thorson) would not let me ask this afternoon?


Walter Frederick Kuhl: The hon. gentleman may ask, but I do not know that I can answer.


Jean-François Pouliot: Whereas His Majesty King George VI is the king of Canada; and whereas it is the privilege of all British subjects to bring their grievances to the foot of the throne, how shall we do so if appeals to the privy council are denied?


Walter Frederick Kuhl: Perhaps the hon. gentleman would repeat his question after I have concluded my speech, if I may be allowed to do so.
Regardless of whether we think appeals to the privy council should be discontinued, we certainly have no power to determine the minds of the legislatures of the provinces in this matter. Further, I contend that to attempt to enact legislation upon this subject at this time, for the reason that this house disapproves the decisions which have been rendered in some cases, is to deprecate our own intelligence and is a mark of extreme

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discourtesy to the members of the privy council who in the past have given so much of their time to the cases we have placed before them. Notwithstanding this, I am in favour of the principle that the Supreme Court of Canada should be the court of last resort so far as all Canadian cases are concerned. But, Mr. Speaker, I suggest that one supreme court justice be nominated by the bar association of each province, appointed to the position, paid by the legislature of the province and sworn in by the central government. This would be a democratic method of procedure. But for us to attempt to take from the provinces at this time the right of appeal to the privy council, limiting them to the final decision of a supreme court nominated and appointed by the dominion executive, would engender a well founded suspicion in the minds of the members of the provincial legislatures that the executive of this dominion government were attempting to do away with their right of appeal to the privy council; so that if or when the dominion government should have the British North America Act amended without the consent of all the provinces, as is proposed, those provinces would have no appeal but would be compelled to abide by the decision of a court created and constituted by the dominion.
Thus would this government cut off the last resort of the provinces. After having had the decisions of the privy council to guide our actions with regard to legislation affecting all the provinces; having been told by them that the dominion is created by the provinces and is not their master; having been told that legislation in respect to Canada, both externally and internally, must receive the assent of all the provinces, why attempt to do something which is not within our power, something which will most certainly be held ultra vires of the power of the dominion by the Judicial Committee of the Privy Council?
The question before the house is: Are we to attempt to enact a measure which will entail considerable expense in being taken before our courts, and from there to the privy council? I have no hesitancy in stating that in my opinion such an enactment will be disallowed unless it receives the assent of the provincial legislatures. Therefore I believe it would be best for all concerned if the hon. member would withdraw this bill.


Joseph Thorarinn Thorson: Before the hon. member sits down, will he please indicate to the house the name of the constitutional authority with whom he has been consulting in his study of these subjects, and the name of the author
of the pamphlet which I have no doubt is the source of his dissertation upon these matters?


Walter Frederick Kuhl: I feel that the hon. member can answer the question for himself.


Joseph Thorarinn Thorson: What is the name of the constitutional authority?


Walter Frederick Kuhl: The authorities for the statements I have made are indicated in the speeches I have given, and if the hon. member would take the trouble to refer to my address of February 10, he will find in each case the authority for the statements I gave.


Joseph Thorarinn Thorson: Is the hon. member
refusing to answer my question?


Mr. V. J. POTTIER (Shelburne-Yarmouth-Clare):: Mr. Speaker, I had no intention of taking part in this debate; but in view of the atmosphere that has been gathering momentum as the debate continues, of blaming the privy council for the chaotic condition in which we find constitutional matters in Canada to-day, I have thought it wise to make a few observations, because otherwise I am afraid the house might be taken aa unanimously of the view that appeals to the privy council should be abolished.
I do not agree with the contention that the privy council is responsible for our constitutional difficulties to-day. I have gathered the impression, listening to the speakers this afternoon and this evening, that it was felt that the privy council should interpret the British North America Act in a somewhat different way from that in which they would interpret any other act or statute. I submit that the British North America Act is a statute and that the Judicial Committee of the Privy Council have interpreted that statute according to well recognized legal principles. In other words, they have been looking at the act itself, at the language used by the framers of the act, and have tried to discover the intention of its framers by the words they used. That is a well recognized legal principle, and when the words themselves are clear and plain there is no legal principle that I know of that would justify interpreting a constitution or act differently from any other statute. I submit that what the privy council has done is to give us what the framers of the British North America Act intended to give us by the words they used. Blaming the privy council to-day because we have constitutional difficulties in Canada is rather unfortunate. I think it unjustly reflects on the capacity that is being displayed by the privy council itself. We have heard that the pendulum has swung to and fro, restricting and extending the
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meaning of sections 91 and 92 of the British North America Act, but in no case do I know of any reference to the constitutional interpretation asked for, except perhaps in the Edwards case. The " living tree " was referred to in that case, and yet there was a particular exception made of sections 91 and 92; the definition of powers has followed definite legal lines. The " living tree " was the other sections of the British North America Act.


Richard Bedford Bennett: It was a water-tight compartment the last time.


Vincent-Joseph Pottier: It is only fair to make these observations in justice to the privy council. I should like to give a quotation now to show the functions of a court as distinct from what some would hold to be the duty of the privy council in interpreting the British North America Act to meet present day social and economic developments. I quote from Doctor O. D. Skelton:
Courts may modify, they cannot replace. They can revise earlier interpretations, as new arguments, new points of view are presented, they can shift the dividing line in marginal cases; but there are barriers they cannot pass, definite assignments of power they cannot reallocate.
I think that has been our difficulty. The British North America Act assigned definite powers to the provinces and to the dominion and all that the Judicial Committee of the Privy Council have attempted to do is to define those powers. It was not their function to legislate; it was their function to interpret, and I submit, Mr. Speaker, that they have done that, following well recognized legal principles. We are going too far when we put on the Judicial Committee of the Privy Council the burden of finding a solution for the difficulties we are in to-day. We need an amendment-not a new court.
I should observe too that there are provisions for members of the Supreme Court of Canada to sit in with the Judicial Committee of the Privy Council, and in one case in which the powers of the provinces were interpreted in a wide sense the present Chief Justice of Canada, Mr. Justice Duff, sat in with the Judicial Committee of the Privy Council and gave the decision of the court.


Richard Bedford Bennett: That was the reciprocal insurance case.


Vincent-Joseph Pottier: Exactly, and in that case the previous decision approved and followed the other cases. I submit that when we say that the Judicial Committee of the Privy Council has interpreted the British North America Act in a wrong way, we would have had on the

whole the same principle towards definitions established if the act had been referred by the Supreme Court of Canada in final resort.


Mr. MARTIN:: What was the date of the Edwards case?


Vincent-Joseph Pottier: It was in 1924.


Paul Joseph James Martin: Contrary to the whole tradition of privy council judgments up to that time.


Vincent-Joseph Pottier: But the privy council is not bound by previous decisions, and Chief Justice Duff sat in with the judicial committee and gave the decision in that case. Any previous decision could have been reversed by the privy council if it had thought fit to do so. My point is that if the Supreme Court of Canada had been interpreting the British North America Act, they would have done what the privy council did, that is, gathered the intention from the words used.


Richard Bedford Bennett: As a matter of fact, that decision has been narrowed since. The statement as contained in the decision of the chief justice as to our powers over criminal legislation has been regarded as too wide.


Vincent-Joseph Pottier: Exactly. I say that if the present Chief Justice of the Supreme Court of Canada had been interpreting the British North America Act we would have the same condition as we have to-day; changing court is not the remedy.
Some reference has been made this afternoon to opinions given by individuals about appeals. I have here the opinion of Sir Charles Fitzpatrick, an ex-Minister of Justice and afterwards Chief Justice of Canada. Addressing the American Bar Association in 1914, he gave his opinion as follows:
In no part of the King's dominions has greater service been rendered by the judicial committee than in Canada, particularly since confederation.
Since 1867, the judicial committee has been called upon in scores of cases to trace out the line of demarcation between federal and provincial jurisdiction, and it must be truthfully said that the result has been eminently satisfactory. Removed, as the majority of judges are, from all local strifes, desirous as they are to distribute the most impartial justice, it is not surprising that the right of appeal to the King in his privy council is one of the privileges most highly prized by the people of the dominion. I do not mean to say that there has not been exception taken to the freedom with which appeals may be carried to the privy council in ordinary civil matters, but whatever view may obtain in other parts of the empire, so far as Canada is concerned. I think I may safely say that,

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amongst lasers and judges competent to speak on the subject, there is but one opinion, that where constitutional questions are concerned an appeal to the judicial committee must always be retained.
I am offering that opinion to balance to some extent the opposite opinions which have been offered. I rather think the Judicial Committee of the Privy Council has rendered a real service to Canada. Their decisions have been one judgment, no dissenting judgments.
I would hate to think that this parliament was attempting to have the courts interpret the laws not as expressed by statute but according to their own views of what is in the interest of the state. We have seen the disastrous results of that procedure in other countries. It has done more harm and injury to the judiciary and the administration of justice than anything else I can think of. I am not criticizing the fact that this matter has been brought up in parliament, but I think we should keep in mind that this parliament has certain duties to perform and that the courts also have certain duties to perform. We should not try to have the one conflict with the other.


Charles Hazlitt Cahan: Should the court give a decision in accordance with the intention of parliament?


Vincent-Joseph Pottier: According to the words expressed by parliament. If parliament has used the wrong words and has given the wrong intention, the court should not be asked to place on the words an intention which they do not express. I think that is a clear principle of law. That is the point I was trying to make in defending appeals to the Judicial Committee of the Privy Council.
We must realize that two developments have been taking place in Canada at the same time. One has been the growth of Canada as a whole, and the other has been the development of the provinces. These two developments have reached the point where we find them to-day more or less in conflict. This situation has developed since the British North America Act was passed, and it was not contemplated at the time that statute was enacted. Therefore, the statute does not cover the situation to-day as we might hope it would. Our constitution is out of date.
I should like also to make a few observations on whether this parliament has the power to abolish appeals to the privy council. This afternoon the Minister of Justice (Mr. Lapointe) indicated that we had that power, and he depended upon section 101 of the
British North America Act. I submit that the British Coal Corporation case does not bear out that opinion.


Paul Joseph James Martin: It does not deal with it.


Vincent-Joseph Pottier: I think it does deal with the powers of the provinces to abolish appeals in civil matters. I shall quote from the case itself, as follows:
Among the powers which go to constitute self-government there are necessarily included powers to constitute the law courts and regulate their procedure and to appoint their judges: save for the provisions of the act, these powers in regard to the then newly constituted dominion would have all belonged to the king as the fountain of justice:	but by the act these
powers are vested in the dominion legislature, and thus pro tanto the prerogative is merged in the statutory powers. A most essential part of the administration of justice consists of the system of appeals. It is not doubted that with the single exception of what is called the prerogative appeal, that is, the appeal by special leave given in the privy council in London, matters of appeal from Canadian courts are within the legislative control of Canada, that is of the dominion or the provinces as the case may be.
And further:
The question whether the dominion or the provinces is in any given case the proper authority to act depends mainly upon the subject matter dealt with.
While that is not a definite decision, it is at least an indication that in certain subject-matters the provinces only can abolish the right to appeal. Section 92 deals with civil procedure.


Paul Joseph James Martin: In order that the record may be complete, I would refer my hon. friend to the third paragraph of the judgment at page 523. Perhaps he would care to read it himself? The point is not decided. The privy council refused to deal with the matter.


Vincent-Joseph Pottier: I quite agree with that. I said that it was not decided definitely.


Paul Joseph James Martin: They did not decide it at all.


Vincent-Joseph Pottier: I said that the words used were an indication that in connection with those subject matters in which the province had jurisdiction, the province was the proper authority to abolish the right to appeal. I gave that quotation for that purpose, and I shall repeat it again:
The question whether the dominion or the provinces is in any given case the proper authority to act depends mainly upon the subject matter dealt with.
That must have meant something. I submit that there is room there for the belief that in connection with those subject matters
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in which the provinces have jurisdiction, they are the proper authorities to take away the right of appeal.


Richard Bedford Bennett: It is a question whether they can or cannot, whether they have extraterritorial jurisdiction, because it arises under an imperial order in council.


Vincent-Joseph Pottier: I have a note on that
and I was going to touch on it as another reason. The Statute of Westminster says that only the dominion legislature has extraterritorial jurisdiction. The hon. member for Essex East (Mr. Martin) has indicated a paragraph in the judgment in the British Coal Corporation case, which I shall place on the record:
Their lordships have in this judgment been dealing only with the legal position in Canada in regard to this type of appeal in criminal matters. It is here neither necessary nor desirable to touch on the position as regards civil cases.
I quite agree with that. I stated before that in my opinion there was room for argument whether, in connection with those subject matters in which the provinces had jurisdiction, they were the proper authorities to deal with the matter of appeals, rather than the dominion.
There is another reason that causes me to doubt whether section 101 gives us sufficient authority to deal with the abolishing of all appeals to the privy council. The bill in question repeals them in so far as they are part of the law of Canada. This reason was referred to this afternoon by the right hon. Minister of Justice. After all, appeals are matters of procedure. Appeals are not involved in the constitution, maintenance or organization of a court. Section 101 deals only with the constitution, maintenance and organization of a supreme court. Appeals are a part of an action and not the constitution, maintenance, or organization of the court; and I submit that at least there is room for argument in the fact that section 101 has no reference to appeals to the privy council, which the provinces lu."e through order in council.


Robert Emmett Finn: Would my hon. friend read
section 101?


Vincent-Joseph Pottier: I shall quote section 101:
The parliament of Canada may, notwithstanding anything in this act, from time to time, provide for the constitution, maintenance, and organization of a general court of appeal for Canada, and for the establishment of any additional courts for the better administration of the laws of Canada.
There are a number of cases having reference to what the words "constitution" and
(Mr. Pottier.]
"maintenance" of a court comprise, and I am suggesting that the above appeals of the provinces as a matter of procedure are not included in those terms.


Charles Hazlitt Cahan: The hon. member's contention is that section 101 does not give the supreme court control of procedure?


Vincent-Joseph Pottier: As to taking away the
right of appeal to the privy council from provincial courts under order in council.
In conclusion, Mr. Speaker, I wish briefly to summarize as follows the arguments that I have attempted to put forward:
First, that the British North America Act has been interpreted as any other statute would be interpreted by the Judicial Committee of the Privy Council. What in effect we have been trying to do is to place upon the privy council the responsibility of legislating rather than interpreting.
Second, I have grave doubts whether section 101 referred to by the right hon. Minister of Justice gives power to this parliament to abolish all appeals to the privy council, particularly those which were passed to the provinces themselves by order in council and which the imperial parliament only has power to deal with.


Charles Hazlitt Cahan: May I ask just one question? Has the hon. member any doubt of the competence of the parliament of Canada to abolish appeals to the privy council in respect of any subject matter of legislation which is within the competence of the parliament of Canada?


Vincent-Joseph Pottier: Did I understand my hon. friend to say, any subject matter within their competence? No.


Charles Hazlitt Cahan: Then the hon. gentleman was combating, not the terms of the bill, but some observations made upon the bill.


Vincent-Joseph Pottier: I submit we are trying to abolish all appeals, which we cannot do, and the bill should not pass, at least in its present form.


Mr. J. H. BLACKMORE (Lethbridge):: I rise wtih considerable diffidence to participate in this discussion because I have never laid any claim to being an authority on law, but I should like to say a word or two for the purpose of bringing before the house some considerations which, I believe, are of real import in the discussion of this question.
Everybody recognizes, I think, that we are grown up now as a nation. We have been saying we are and thinking we are, and from what I can gather, the British people are quite

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glad to have us grown up and, so to speak, off their hands as far as their responsibility for us is concerned. I do not believe there is any doubt or disagreement about that among the people generally. But some serious matters are involved in this question.
I have noticed that many people in this house and in the country seem to think that if only we had things a little different from what they are, Oh, how we could solve our problems! It reminds me of a story my father used to tell me about the fellow who always wanted to live in a country just on the other side of the fence. It is a common thing for people to think that if we were thus and not so, it would be well with us. Particularly, just now, we have a constitutional scapegoat in this country. Everything this parliament wants to do it cannot do because the "constitution" will not let it; and as for the naughty provinces, they simply will not cooperate, so that we cannot solve our unemployment problem; we cannot solve our relief problem and we cannot solve this and that and the other thing; and the provinces are inclined to complain on much the same score.
Perhaps, Mr. Speaker, I am not sufficiently informed, but I believe that all this kind of talk is simply window-dressing. I honestly believe that if we would go to work with an attitude of honesty and straightforwardness and with a sincere desire to solve our problems, and had the solution, we should not have very much difficulty getting the provinces to cooperate with us towards that solution. So far I have not found any provincial officer who is not ready to do pretty nearly anything, except sacrifice some of the rights which his province possesses, in order to help us solve the problems which are confronting all of us.
Just now the thought is that if only we could centralize powers in this country; if only we could transfer to the dominion the powers which the provinces possess, all these difficulties could be solved. May I examine for a few minutes what has been done by dominion governments for the last twenty-five years with the absolute powers they do possess? I shall mention three or four of them because I believe it will help people to understand why we have these stresses and strains. I may tell the right hon. Prime Minister (Mr. Mackenzie King) very frankly that he annoyed me considerably when he blamed for those stresses and strains something which I did not believe should be blamed for them. I may be wrong, but in fairness to him I am telling him what I think.
In the first place, there are causes of stresses and strains of which the public generally have
not even dreamed. Here is one. Unquestionably this parliament has absolute power over the tariff structure of the railroads. Surely there is nothing to prevent parliament from exercising that power. I have not heard that any province is questioning it. Let me indicate to the house some of the things which have happened to the disadvantage of my own province. Provinces are being strangled or smothered to death because of inequalities from which they have no power to relieve themselves and from which they cannot get any other authority to relieve them.
Referring briefly to the railroad structure, I find, according to information elicited by the commission which recently received evidence, such an absurd situation as this, in regard to barbed wire, which is vital to the farming industry in the prairie provinces. The rate per 100 pounds on that commodity from Montreal to Vancouver is seventy-five cents, while to Edmonton, a distance more than five hundred miles shorter, the rate is more than double, namely $1.98. I do not propose to go into this matter to any extent to-night. If I did I should be out of order. Just the same, there is here a problem which illustrates the sort of thing that this government has done with the power it absolutely possesses. Now, if that condition has been allowed to grow up; if it has gone on throughout the prairie provinces, as I shall show at a future time, it is bleeding those provinces to death economically. It has been completely in the power of this parliament; there has been no constitutional difficulty in the way of straightening the matter out, and yet this condition has been allowed to continue.
I shall mention one more and then leave this particular subject. I mention binder twine, which is all important.


William Lyon Mackenzie King: I do not want my hon. friend to be more annoyed with me than necessary, but I would ask him what that has to do with appeals to the privy council.


John Horne Blackmore: Simply this: A province like Alberta, or Saskatchewan, or Manitoba, must have some court to which it can bring its case, some court which will hear it. Those provinces have been sending members to parliament for years and years, capable, honest members who have presented our case before the high court of parliament year after year; yet these monstrous inequalities and injustices have been growing up. We have come and complained about them, for they have been sapping the very lifeblood from us; yet we have had no redress whatever. Do you wish to know, Mr. Speaker, the reasons for the stresses and strains? Let me
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ask any hon. member of this house: What can a province do when it realizes that it is placed in a position which is rendering its economic development and well-being an absolute impossibility? It has not the constitutional competence to deal with the problem. The government which has that competence will not listen. What is the province to do? If it has no appeal to the privy council or any other means by which it can take its case to the foot of the throne, will someone tell me what the province can do? I submit that as a result of this situation there are three of the majestic provinces of this dominion which are under the gravest handicaps. Now then, absolute power is in the hands of this parliament with respect to matters of this sort, the freight rate structure for example. I shall not go into more detail; I shall deal with it later on, because it is an abuse crying to high heaven for restitution and redress. It has existed in the west to such an extent that it has prevented us from developing our industry. We have known we were being hurt; but we have not known 'how until now, when we are just beginning to examine into the situation and are finding out. There has been someone in this dominion whose business it was to know whether we were being hurt, and that person has not attended to his business; now we have found this out, what recourse have we? I am not complaining unduly, but I am putting the matter honestly and in a straightforward way before the members of this house.


Richard Bedford Bennett: The hon. member knows that the whole freight rate structure was considered by the board of railway commissioners. The whole question was considered and representatives of the western provinces were heard. That court was set up by this parliament for the purpose of dealing with ;he very problems to which he refers.


John Horne Blackmore: The all important natter is-the results. The results have ruined us as far as many aspects of the possible development of our industrial life are concerned. I do not wish to get into any detailed discussion of the point; I am illustrating it in passing. The time will come when I shall rise in my place in the house and air this problem in considerable detail, and at that time we shall go into the matter of the railway board and find out if possible-


Charles Hazlitt Cahan: This is your proper court of appeal, not the Judicial Committee of the Privy Council.


John Horne Blackmore: In the last analysis, the representatives of the province of Alberta and the other three provinces stand before

this court. They can make their plea, but it is the voting strength of the representatives of all the provinces in this parliament that decides. And who are the provinces in this dominion that can outvote all the other provinces put together? It comes down to that. I do not wish to raise any cause of difference or cause of bitterness. All I want to say is this: You simply must make it possible for a people to live.


Richard Bedford Bennett: But it was to remove the matter from the realm of contention that the court was established and that it was provided that evidence might be heard and judgments given on that evidence. I should like to say to my hon. friend-because I was familiar with the matter in those days-that the western provinces had representation before the board, and so had boards of trade. The evidence is there in the library and may be read, and the judgments are predicated upon that evidence. This parliament could not create a railway commission and then declare that it should not decide the question of rates. Is that the suggestion?


John Horne Blackmore: I am not prepared to go into details. The details as they have been discovered and revealed by several of the investigating bodies that are making submissions to the Rowell commission disclose conditions which are positively horrifying, and when the whole truth is known to members of the house they will stand appalled. That is one little point which I cite to show what the dominion has done with a situation over which it had unchallengeable and absolute control. Here is another point-the tariff structure of the dominion. There is no doubt in the world that this parliament has complete control over that; no province challenges its right at all. All that the provinces can do is to stand and take it. This matter has been brought to the attention of the house several times. I shall again bring it chiefly to the notice of hon. gentlemen as an example of what this parliament has done in a matter over which it has absolute control, the idea being to show what parliament might do, what a court might do in Canada if we had absolutely centralized control.


Charles Hazlitt Cahan: Is this discussion relevant to the second reading of the bill?


Joseph Thorarinn Thorson: Surely it is relevant if it is directed to the relative merits of centralization and decentralization of authority.


Walter Edward Foster: I must ask the hon. member to confine his remarks more closely to the question before the house, which is the second reading of the bill.

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John Horne Blackmore: I was giving certain
details in answer to questions asked me, otherwise I should not have been speaking along that line for more than a minute. The idea is being put forward that we would be better off if we could centralize control in this dominion, and one reason given why the privy council has generally put us into the " morass " is that it has decentralized power, which, we are told, is one of the reasons why we should abolish appeals to the privy council. If my argument is not pertinent to that question, then I am afraid I am unable to reason straight. It is strictly pertinent to the argument brought forward by the hon. member for St. Lawrence-St. George (Mr. Cahan) and by many others. They have repeatedly stressed the fact that the privy council, by interpreting certain sections of the British North America Act and giving greater and greater power to the provinces, have thereby put us into a position in which it is impossible for this parliament to carry on. Therefore the privy council have completely confused the issue here; therefore we should abolish the appeal to the privy council. Is not that one of the arguments which have been advanced? And in dealing with that we have to show that the mere fact that absolute control will return to Canada is not necessarily an evidence that all things will be managed aright. I hasten along, not desiring to digress, because there are several other observations I have to make on this question, the pertinence of which I think no one can challenge.
Take the matter of tariff; the tariff structure of this dominion has been so arranged that the province of Manitoba is paying $9,274,000 a year more than it is getting; Saskatchewan is paying $25,000,000 more; Alberta is paying $19,000,000 more, while Ontario is receiving $51,000,000 more than it is giving and Quebec $31,000,000 more than it is giving. And all that has been done under the jurisdiction of a body which had absolute control over everything pertaining to tariff in Canada and which should have sat as an umpire seeing that every province got a fair deal.


Richard Bedford Bennett: What is the authority
for that statement?


John Horne Blackmore: The present Minister of Labour (Mr. Rogers). This hon. gentleman is an authority, especially when his brief is in the records of a royal commission of this dominion.


James Shaver Woodsworth: That was before
he became a cabinet minister.


John Horne Blackmore: Yes. I look on the
hon. minister as an exceedingly fine man, one whose judgment is worthy of acceptance on any practical question, a man for whom I have the highest regard. His finding is worthy of the respect of everyone in Canada.
Probably I had better not deal with any other point than relief and unemployment. No doubt what we have been saying here during the last few days shows what Ottawa will do in matters over which we have absolute control in this country. Of course hon. members will say, "Oh, we have not control over the provinces." But I have never yet seen any province refuse to take money, if offered without too many strings. We hear reports of certain provinces not accepting money, but usually there was a string tied to such money.
I do not wish to delay the house any longer. I shall say a good deal more by and by on these subjects, because it must be said. We are seeking the reason for the strains and stresses now so apparent. Does any hon. member want to know the reason for the United Farmers of Alberta movement in Alberta? They were fighting for the right to live. Do hon. members want to know why there is a social credit movement in Alberta? They are fighting for the right to live. We talk about fascism and communism as though these things were a visitation of some supreme power over which we have no control, instead of a malady generated by conditions which we have allowed to develop. They are a result of certain causes, and we are not removing the causes. Right in this house lies the power to remove the cause. So I shall say a good deal more about these matters as we go along.
With respect to the bill, I think hon. members have gathered pretty well from what I have said that I agree in the main with the hon. member who spoke last (Mr. Pottier). I am not going to say just how accurate the decision rendered by the privy council was in each case, but to a most astonishing degree those decisions have agreed with the judgment of the supreme court of this country. That was shown clearly by figures cited this afternoon by the Minister of Justice (Mr. Lapointe). What more would one ask? I do not wish to be mean in any way, but a man cannot help having a suspicion. I noticed that the hon. member for St. Lawrence-St. George became agitated about this whole question of appeals to the privy council right after the decision regarding those three acts-


Charles Hazlitt Cahan: The hon. member does not know the personal history of the member for
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St. Lawrence-St. George. I do not know how old the hon. gentleman is, but probably I was discussing that question before the time when he was born.


John Horne Blackmore: I should not be at all surprised. I speak with all deference. I said I did not want to be mean, but just the same it is a striking coincidence. While I am not saying that it will not be in the interests of this country to abolish appeals to the privy council some day, yet there are grave considerations w'hich ought to be reviewed before we make the decision to do so. In the first place, we should give public opinion, not only within Canada, but in Great Britain and in the rest of the world, time to adjust itself and solidify. I think every hon. member will realize the significance of what I say. Throughout a wide section of humanity importance will be attached to any such move. I am not sure that it is in the public interest that the move should be made now. Later on it may be. There exists to-day throughout Canada great confusion touching constitutional matters- one more reason why we should defer action on this question. I am, I think, just as appreciative of the work of the hon. member for St. Lawrence-St. George as is the hon. member for Selkirk (Mr. Thorson). I appreciate the good work he has done; I say here in his presence and before this house that I honour him as much as I honour any man in Canada. I reverence and respect him as a good man, one who is well informed and sincere. But at the same time we have to look at certain considerations. There exists in this country a wide diversity of opinion. While the hon. member for Jasper-Edson (Mr. Kuhl) was expressing views which are contrary to the ideas which we learned in our schools, and while I am not saying that I agree with him entirely, yet as sure as we are here these facts are leaking out and causing people to wonder. He said some most interesting things, which I was never taught when I was in school, and never taught to any class when I was teaching, but they are to be found in authorities which no one can question. I am finding out many things. There is a good deal of doubt in the minds of people because these things are just being discovered.
There is a great deal of dispute and controversy throughout this country as to the meaning and application of certain clauses of the British North America Act. Take one matter which has been exercising me tremendously. We say-and I stand open to correction if I am wrong-that the provinces have control over industry. I think that is in accordance with the British North America Act.

Now take as an example a canning factory. Suppose a man has 8100,000 which he invests in a canning factory, and he takes all his capital to get the factory built and equipped ready to operate. Then he has to have a line of credit of $100,000 in order to operate his factory. To whom does he go for the line of credit? If he cannot get that line of credit he cannot run the factory. Has the province control of his getting that line of credit? If the province does not have control of his getting that credit, I ask any man or woman in this house whether the province has control of that industry.


Charles Hazlitt Cahan: Who says the province has control of industry?


John Horne Blackmore: I asked if it were not in the British North America Act; I think the province has control of industry, according to that act. Certainly the province has control of property and civil rights. I do not wish to get into the details of this question; I shall discuss those later on. This may be irrevelant, but it is a matter to be noticed, showing that the whole question of the British North America Act is not so simple as some people would suppose it to be. There is confusion in the minds of people, and really I am not sure that people generally throughout the country know what they do want. I have not found anyone who knows exactly what he wants. There are many people who will say that we want the British North America Act changed. Very well, I say; what change would you make? Immediately there is a surprised look on the person's face, and not very much assurance in the answer. If there is assurance in the answer I find there is very little value in it.
There is a growing conviction everywhere through Canada that the presently accepted allocation of powers between provinces and the dominion by the British North America Act does not sufficiently allow for the readjustments necessary to meet changing economic conditions. This is the reason for the stresses and strains. It is fundamental. Again, there is a vague doubt as to just what sort of constitution would be best for this country. I have heard some people say that if we could just scrap the British North America Act and get all the provinces together, wTe would be able to build up a new constitution. It is my humble opinion that if we scrapped the British North America Act and set about drawing up a new one, we would never get it finished, because we simply could not get the provinces to agree on the fundamental principles which would be involved in drafting

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a new constitution. The more informed they become, the less they will be inclined to agree. Take the west as an example. If the west could once get out of the grip and clutches of a constitution that permits a central power to build up a tariff structure which is entirely to the disadvantage of the west, do you suppose that any informed leader from that part of the country would ever go back into such bondage? Before doing so, he would think a long time.
There is a wide divergence of opinion because of the varying interests of the different provinces. It was reported in the press, I do not know on what authority, that one fairly prominent man from one of the central provinces said, " We won't be governed to suit the west." Very well, but apparently the same gentleman feels that it is quite all right for the west to be governed to suit the east. The provinces have had time to examine the workings of the British North America Act and to learn about all these matters; and now, in this time of testing everything, when even the president of the United States is worrying about fascism, while democracy is on trial, hon. members may be pretty sure that it will be a good thing to be a little careful about how fast we go forward. I would not do anything to rock the boat beyond what was absolutely necessary; as far as I can see, it is not absolutely necessary at the present time to abolish appeals to the privy council. There is a deep-seated apprehension in many provinces, as the best informed are coming to see no hope ahead. The more thoroughly experienced the leaders of the provinces become, the more convinced they will grow of this. The application of the proposed measure is simply this: There are strong indications that if appeals to the privy council were abolished, one of the last resorts, so to speak, now open to the provinces would be removed, right at a time when the provinces need all the safeguards they can secure.
I shall not detain the house any longer, Mr. Speaker, but I should like to make this plea, with all due respect to the hon. member for St. Lawrence-St. George, that consideration of this matter be held in abeyance; that we think it over; that we defer our decision on it until some future time when, after we have counselled together, our opinions will have ripened.


Paul Joseph James Martin: Mr. Speaker, in rising at this late hour to speak on the bill introduced by the hon. member for St. Lawrence-St. George (Mr. Cahan), I do so with a good deal of hesitation, because the time and, I suggest, the temper of the
house will not permit me to deal with the bill in the way that, several days ago, I had hoped would be possible.


Richard Bedford Bennett: Move the adjournment of the debate.


Paul Joseph James Martin: I think I should use the time, if I may.
First, as a younger member of this house, and as a member of the younger generation in this country, I thank the hon. member for St. Lawrence-St. George for introducing this bill, and particularly for introducing it at this time. If proof were needed of the wisdom of introducing such a measure, it has been given in the speech of the hon. member who has just taken his seat. The contention of the hon. member for St. Lawrence-St. George, the hon. member for Selkirk (Mr. Thorson) and the Minister of Justice (Mr. Lapointe), as revealed in the discussion on this bill, show among other things that essentially due to the interpretation of the British North America Act by the judicial committee, our constitution and the constitutional development of this country has been given a turn not contemplated by the fathers of confederation. That, I think, is the important issue.


Mr. LANDERYOU:: How do we know
that?


Paul Joseph James Martin: That is a very fair question. All one can do is read the discussions which took place at the Charlottetown conference, which preceded the Quebec conference, and the discussions at the Quebec conference itself; the speeches of men such as Sir John A. Macdonald, Cartier and others; the pre-confederation debates; speeches in the legislatures and outside; discussions by students of the problem, all clearly indicating that the intention of the founders of this country was that we should have not a union of sovereign states but a union of provinces within what they erroneously called a confederation, really a federation a group of governments having power in respect of certain matters of self-government within the province. That was clearly the intention; anyone who goes into the histoiy of the problem will come to that conclusion.


John Charles Landeryou: We may have doubts.


Paul Joseph James Martin: In proof of what I am
saying the fathers of confederation had for examination the constitution of the United States. The framers of the constitution of the United States intended the very opposite to what was intended by the fathers of confederation. In the United States they intended to create a union of sovereign states.
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In so far as emphasis was concerned the emphasis was to lie with the state authority. If one reads the life of Sir John A. Macdonald by Pope; if one reads the life of Cartier by his official biographer; particularly if one will read the observations of Sir John A. Macdonald in London prior to the passing of this imperial statute one will find the intention was to make out of the provinces affected a nation endowed with sufficient central authority. They intended to obviate the course that had been taken by the founders of the American constitution. And what has been the result? In the United States the result has been that the supreme court of that country has interpreted the law as did the judicial committee in our case in such a manner as gradually to withdraw from the states authority which has been transferred in the course of time by judicial process to the central authority.


Richard Bedford Bennett: The constitution, but
theirs is not a statute. That is the whole difficulty.


Paul Joseph James Martin: That is a difficulty, and
if I have time I shall discuss this apparent difficulty. As time went on, in the case of Canada, the judicial committee interpreted the constitution, as has been clearly demonstrated by the hon. member for St. Lawrence-St. George, absolutely contrary to the intentions of its framers, with the result that we find ourselves in a position where we can almost completely compare first the intentions of the founders of our country with those of the founders of the United States, and, second, see to what extent the intentions of the founders of this country have been supported by judicial decisions, and to what extent the founders of the American nation have been supported in their intentions by judicial decisions. But there is not much point in labouring this. Hon. members opposite in the corner to my right do not agree with what I am saying. I can only say this, that my own interpretation of the historical development of this country is, I am sure, the interpretation which will be supported by the vast majority of the Canadian people.


John Charles Landeryou: Can the hon. member explain the provincial attitude at the present time?


Paul Joseph James Martin: I wish I could explain it, but I cannot. I was saying that I do not think there is any question that the vast majority of the people of this country who have given the problem any thought will conclude that my statement to-night in support of what has been said by so many other hon. members to-day is a correct state-

ment of the problem viewed historically. If I interpret public opinion at the present time correctly, apart from the historical provocations, it is this:	Having in mind the nature
of our great problems, unemployment and the like; having in mind that these are national problems, there should be no question about endowing the central authority with the power to deal with them.


James Shaver Woodsworth: Hear, hear.


John Horne Blackmore: They will try anything once.


Paul Joseph James Martin: I would remind the hon. gentleman, without wanting to occasion any controversy, that the province from which he comes, in respect of one important matter, unemployment insurance, has not acted in a manner consistent with what he said when he was speaking, namely, that we should not be bothered with these constitutional difficulties, and that we should extend to some authority the power to deal with these matters.


John Horne Blackmore: Would my hon. friend permit a question for the purpose of clarification?


Paul Joseph James Martin: I have not much time.


John Horne Blackmore: My hon. friend's statement has gone into Hansard and I want to know what he means. He means that Alberta has been willing to cooperate, does he not?


Paul Joseph James Martin: Yes.


John Horne Blackmore: That is what I wanted to get. Alberta is not doing any objecting at all.


Paul Joseph James Martin: Having in mind the official attitude of the province from which the hon. member comes, and having in mind his criticism of some authority in this country, for not dealing with these matters, he is hardly put in a very good light on that question.
The argument is often adduced-I believe it was adduced by the Minister of Justice to-day and, I fancy, by the hon. member for St. Lawrence-St. George-that the fact that we are now in a position where we have to submit appeals to the judicial committee diminishes any mark of nationhood of which we might declare ourselves to be in possession.


John Horne Blackmore: I think the hon. member misunderstood with respect to that matter on which he was speaking with me a moment ago.


Paul Joseph James Martin: I am not referring to the hon. member at the moment. My submission is this, the mere fact that we do consent to have appeals heard by the judicial committee in no way, as matters now stand,

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derogates from the character of our nationhood. If one interprets properly the imperial conference of 1930, and if one interprets the full implications of the Balfour declaration of 1926, we have the power; and in demanding that power, if the method employed to-day is not satisfactory or adequate, we shall have no difficulty in removing this one apparent though not actual fetter-nationhood.
I suggest that when one considers the various groupings of personnel in the judicial committee-the Lord Watson group, the Lord Haldane group, the Lord Sankey, now Viscount Sankey, group and if I may say so the Lord Atkin group-one will find that the various members of the judicial committee in their interpretations, or, as it has been called, in their experiment in judicial interpretation, have revealed the very great dangers that lie open to any body of men, no matter how highly endowed judicially they may be, in interpreting the constitution of a people which, in effect, is not merely a constitution but represents the spirit and legitimate aspirations of a people.
The right hon. leader of the opposition (Mr. Bennett), when he interrupted me a few moments ago, pointed out that there was a difference between the interpretation of a statute and the interpretation of a constitution. My submission is that the British North America Act, while it is a statute in form, should not be considered any differently from the constitution of any country. To give it the strict interpretation that has been given is, I submit, to have misunderstood the spirit and intentions of those who are the fathers of this nation. To have interpreted the British North America Act as a statute, as has been done, instead of as a constitution, with the implications of elasticity to meet changing periods and changing problems was, I think, a very great judicial error, unaccompanied by the benefits so frequently the result of sober, judicial law-making.
I just suggest as a matter of record to the hon. member for St. Lawrence-St. George that when this matter comes to be considered in final form, what will we say in respect of the doctrine of stare decisis? Assuming that the appeals to the Judicial Committee of the Privy Council from the Supreme Court of Canada and the appellate courts in the provinces in respect of both criminal and civil cases are to be effectively abolished, what then is to be the effect of the judgments which have been rendered during the course of time and which, as has been pointed out, have so permanently affected the machinery of government? I suggest, assuming that
the hon. gentleman succeeds in the prosecution of this bill, that the final court of appeal in Canada will for all necessary purposes be a court of coordinate jurisdiction, and consequently will have the power of overriding any decisions of the judicial committee which it deems not in the interests of Canadian national development.
However, this will be a slow process. I submit that an effective method of disturbing those great mistakes in judgment which have been made and which have had a serious consequence upon our national development, is now available. It will be open to this parliament effectively to remove by legislation such judgments as that of Lord Atkin, for instance, in respect of the treaty making power.
I suggest to the hon. member for St. Lawrence-St. George that we shall not be dealing with the matter completely even though we pass this bill in its present form, that is with respect to matters which come within section 91 of the British North America Act. I am sure that the Supreme Court Act would have to go through substantial amendment and modification in order to be consistent with the legislation the hon. member has introduced.
Perhaps one other word should be said, and I say it as a lawyer who has never had an opportunity of arguing a case before the judicial committee, but who has sat on many occasions before the board and listened to the argument of eminent counsel. The suggestion that the legal profession would suffer by loss of contact in the event of appeals being successfully abolished does not hold-much water. No one denies the unprecedented calibre of the judiciary in the United Kingdom and the high standing of the profession in the United Kingdom, but I submit that the necessary contacts with the agencies giving leadership in the common law can be obtained through other agencies forms of contact. As the hon. member for St. Lawrence-St. George knows, the number of the legal profession in this country who have had contact with the judicial committee is relatively small. When one weighs the possible advantages of the transmission of the benefits of that contact by those who are there to other members in the profession, I think he will admit that not much consideration need be given to this phase of the matter.
I suppose as a French Canadian I should not let this occasion pass without anticipating an argument that will undoubtedly be levelled against this bill. It is likely to be said by many that should this bill pass, there
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will be lost rights held dear by many, rights that were obtain.d under the treaty of Paris and, by implication, under the statute of 1867. I think this legislation should be passed; I hope it will be passed this year; but I trust no one will suggest that I am thereby prejudicing the rights of the minorities as to race and religion. When one examines the decisions of the past, he must realize that in most instances they have not been as protective as we have so often been told they are. If those of us who belong to the so-called minority group, in respect of race or religion, feel that we cannot endow our final court with great judicial power, have it composed of men with great judicial learning, who have been taught and encouraged to respect the rights of minorities, then there is no use in our expecting to obtain privileges within the group itself. This matter may be allowed t->
rest with the judgment of our people. We can trust the judgment of the men who will come ultimately to sit on the bench of the Supreme Court of Canada in the form of a court of last resort. I am sure that the men who will make up that final court will be of such a stamp as to preclude the possibility of interference with these rights.
I can only hope that the bill introduced so ably by the hon. member for St. Lawrence-St. George will receive the support which I think it deserves. I am satisfied that at this time this legislation will do more than almost anything else to convince the members of this Imuse, should that be necessary, the legislators throughout Canada and the people of the country generally that if we are to live up to the intentions of the fathers of this federation we must take this opportunity of using the judicial arm of government as an effective instrument in bringing about the solid unity of Canada.


Robert Emmett Finn: Mr. Speaker,
I think this matter is of sufficient imports ance from every angle from which it may be considered by hon. gentlemen in this house, by legislators in the various provinces and by the people of Canada generally, that every part of the British North America Act should be considered, particularly section 101. I agree with the Minister of Justice (Mr. Lapointe) there is no doubt that under section 101 the parliament of Canada can create a court superior to the privy council. This section reads:
The parliament of Canada may, notwithstanding anything in this act, from time to time, provide for the constitution, maintenance and organization of a general court of appeal for Canada, and for the establishment of any additional courts for the better administration of the laws of Canada.

On motion of Mr. Finn the debate was adjourned.


[Stage Direction]
At eleven o'clock the house adjourned, without question put, pursuant to standing order, until Monday, April 25.
Monday, April 25, 1938