1938-05-30

[Stage Direction]
Right Hon. ERNEST LAPOINTE (Minister of Justice) moved for leave to introduce Bill No. 137, to amend the criminal code.
He said: This bill purposes to make fifty-five or fifty-six amendments to the criminal code, twenty of which relate to procedure. I shall not try to give the particulars of all the amendments but the most important relate to reckless driving, salting mines and mine samples, common gaming houses, et cetera.
Motion agreed to and bill read the first time.
iMr. fcUetiar.l

[Stage Direction]
(Questions answered orally are indicated by an asterisk.)

Mr. LAPOINTE (Matapedia-Matane):: 1.	What number of Canadian National railways system officials have a private car at their disposal?
2.	How many officials on the Atlantic and central regions had repairs made to their cars during the last twelve months?
3.	How many of such officials keep a chef by the year for their private car?
4.	What number of Atlantic and central regions employees receiving a salary of $100 or less per month were laid off on account of curtailment during the last twelve months?


Mr. HOWE:: 1.	Executive, operating, traffic, and other officers of the Canadian National Railways are provided with a business car when their duties in travelling over the territory under their jurisdiction require such use.
2.	Two business cars were given general shopping on the Atlantic region and six on the central region. In addition, three cars on the Atlantic region and eight on the central region were sent to the shops for light attention.
3.	A chef is placed in charge of a business car when under movement.
4.	No special record is kept of laid-off employees. To give an accurate answer to this question would involve an analysis of twenty-four semi-monthly payrolls over a period of twelve months covering between forty and forty-five thousand employees, which could only be done at the cost of considerable time and labour.


NEW YORK STATE LEGISLATION RESPECTING NURSES
Mr. CHURCH:: 1.	Has the attention of the government been called to the Todd Bill which requires all nurses in New York state to be United States citizens?
2.	Will an inquiry be made by the government into the case of several Canadian nurses living in Fort Erie but working in the Buffalo hospitals for many years who are to come under the Todd Bill and who have been summarily dismissed from Buffalo hospitals, and also in other points in New York state?
3.	Will any action be taken by the government through the Department of External Affairs to endeavour to adjust the matter for these Canadians ?

Privilege-Mr. Cahan


Mr. LAPOINTE (Quebec East):: 1.	No.
2.	Yes.
3.	The question of action to be taken will receive consideration.


MOTION FOR PAPERS
Mr. STEVENS:: For a copy of all letters, telegrams, reports, orders in council and other documents, dated from April 1, 1930, to date, in connection with the reclamation of the Kootenay flats at or near Kootenay Landing, British Columbia.


MUNICIPAL IMPROVEMENTS
[Stage Direction]
Hon. CHARLES A. DUNNING (Minister of Finance) moved that the house go into committee at the next sitting to consider the following proposed resolution:
That it is expedient to bring in a measure to authorize the Minister of Finance with the approval of the governor in council to enter into agreements with urban or rural municipalities to make loans not exceeding in the aggregate $30,000,000 to enable such municipalities to pay the whole or part of the cost of constructing or making extensions or improvements to or renewals of a municipal waterworks system, municipal gas plant, municipal electric light system or any other self-liquidating municipal project, provided that the province in which the municipality is situated approves the application for the loan and the project to be financed with the proceeds of the loan, and agrees to guarantee the repayment by the municipality of the principal of and interest on any such loan; and to provide that the interest on any such loans shall be two per centum per annum payable half yearly, and that any loan shall be amortized by semi-annual payments sufficient to pay off the full amount of the loan during a period not longer than the estimated useful life of the project; also to provide for the employment and payment of a temporary staff necessary for the administration of this measure.
He said: His Excellency, the Governor General, having been made acquainted with the subject matter of this resolution, recommends it to the favourable consideration of the house.
Motion agreed to.
PRIVILEGE-Mr. CAHAN

[Stage Direction]
On the orders of the day:
Right Hon. ERNEST LAPOINTE (Minister of Justice):: Mr. Speaker, on Thursday
last, on a question of privilege, the hon. member for St. Lawrence-St. George (Mr. Cahan) took exception to a statement I had made on the evening of May 24, and said that statement was entirely a misapprehension of the attitude that he had taken when discussing the imperial conference resolutions of 1926. I accept entirely what the opinion of my hon. friend is with regard to those resolutions. I may say that the extracts from Hansard which he made were certainly not those upon which I had based the comment I offered. However, as I do not think it is pleasant to be considered as misrepresenting any hon. colleague, I may say there are other extracts which are not quite as complimentary. I shall quote only one of them.
When the imperial conference of 1926 was discussed in the house in 1927 my hon. friend said, at page 1736 of Hansard:
He now seeks-
He being the Prime Minister:
He now seeks by the tacit approval of this house, not having the courage to present a report of his own work for its approval and confirmation, to proceed to disrupt every one of these constitutional ties which bind and connect us with Great Britain and Ireland and with the dominions beyond the seas. And while he has endorsed and proposes to carry out a policy of disruption and destruction, he has not one single positive idea to present to this house as to the formation of any new convention or as to the new alignments and political connections which are absolutely necessary if the position of Canada is to be maintained in this world.
I only say that at least I must be excused for having made the comment I did, and I am quite pleased that it does not represent what is the attitude of my hon. friend.


Hon. C. H. CAHAN (St. Lawrence-St. George):: Mr. Speaker, I do not wish to enter into a prolonged discussion with the right hon. gentleman (Mr. Lapointe), but if I follow him, he is reading from the 1927 debates, is he not?


Ernest Lapointe: Yes.


Charles Hazlitt Cahan: He is reading from the 1927
debates, when another phase entirely of the question was under discussion. Oh, I know of the 1927 debates and recollect them very
Privilege-Mr. Cahan

clearly. In 1927 the discussion arose upon addresses which had been delivered by right hon. gentlemen opposite. One was by the right hon. the Prime Minister of that day in Toronto; that was under discussion. I was then discussing another phase of the question entirely, particularly that the right hon. the Prime Minister had pledged himself publicly to submit the imperial conference resolutions for the approval of the house, and had afterwards refused to do so. He himself and the right hon. gentleman (Mr. Lapointe) had given interpretations which I did not think were clearly expressed in the resolutions, as I have stated. My own opinion with regard to those resolutions is expressed and their real implications are contained in addresses which I gave in December, 1926, and also in May, 1928, from which I read to this house, and I am quite prepared to submit what I said on all three occasions to the judgment of the right hon. gentleman and to the house.
I did not state that the right hon. gentleman had deceived the house. I said that his comments were due to a misapprehension on his part of the real tenor of those discussions. Certainly I adhere to everything I then said, so far as my memory is clear as to what I did say.
Mr. LAPOINTE (Quebec East); Mr. Speaker, on a question of privilege-and it is a question of facts now,-I have the right to say what the facts were.
My hon. friend said that I did not refer to the debates of 1927, but if he will look at Hansard of May 24, containing the remarks to which he took exception, he will see that it was exactly the debates of 1927 that I was referring to. I said:
Those who were in this parliament in 1927 will remember that my right hon. leader and I were strongly criticized, not perhaps by my right hon. friend-
Meaning the leader of the opposition.
[DOT]-for I do not believe he took part in that debate; he was absent from the house-but by the then leader, the Hon. Mr. Guthrie, and the hon. member for St. Lawrence-St. George.
And it was in that debate that my hon. friend uttered the words which I have just mentioned-"disruption and destruction." That had nothing to do with the fact that the report had not been submitted to parliament for approval. My hon. friend was emphatic; he has a good memory and must remember having used the words "silly," "foolish," "half-baked," and such. I learned some words during that debate.


Charles Hazlitt Cahan: I am grateful to the right hon. gentleman for referring to the debates,
fMr. Cahan.]
and I commend those debates to hon. gentlemen sitting opposite as well as to those sitting on my side of the house. I think a reading of them will not bear out the interpretation which the right hon. gentleman, through a misapprehension, gave the other evening, or the misapprehension he has expressed to-day.


Ernest Lapointe: All's well that ends well.


GRAIN HANDLING AT QUEBEC
[Stage Direction]
On the orders of the day;
Hon. C. D. HOWE (Minister of Transport):: Mr. Speaker, at the last sitting of the house the hon. member for Kootenay East (Mr. Stevens) asked a question having to do with the handling of grain at the government elevator at Quebec, and referred to the questions placed on the order paper by himself and the answers that had been furnished to those questions. Those questions were fully and accurately answered. The matter was again discussed on the estimates when the vote for the national harbours board was up, and I think a full explanation and a complete statement of the facts was given at that time.
The first question, and apparently the one that is disturbing my hon. friend, was this:
1. Has the Minister of Transport recently concluded a special agreement with the Louis Dreyfus and Company or any of its allied or subsidiary companies for the handling of grain through the government elevator at Quebec?
The answer to that is not only "no," as given, but I can go further and say that the government never at any time considered concluding a special agreement with Louis Dreyfus and Company.
The situation that did arise, as I explained on the estimates, was that at the opening or before the opening of navigation, the government discovered that a differential rate had been applied to Quebec as against Montreal by lake carriers. The reason Louis Dreyfus and Company came into the scene at ail was that earlier in the season they had notified the harbours board that they intended to make considerable use of the Quebec elevator this year. In 1933 or 1934, I am not sure which, a similar situation arose, in that the lake carriers applied a higher rate from the head of the lakes to Quebec than from the head of the lakes to Montreal. At that time shipments involved Canadian grain, and the board intervened by ruling that the lake carriers must remove the discrimination between the two ports.

Grain Handling at Quebec
In this season the situation differed somewhat in that the grain to be carried was United States grain, over the transportation of which the board of grain commissioners does not exercise jurisdiction. Therefore the question arose as to how this discrimination could be removed. Some discussion took place between a representative of Louis Dreyfus and Company and a member of the harbours board suggesting compensating for the carrier differential by a reduction in elevator rates. It was of course thoroughly understood by both parties that if any reduction of rates was made it would apply to any user of the Quebec elevator. In the course of that discussion I understand that a letter was written by a member of the harbours board to a representative of Louis Dreyfus and Company, asking whether the statement contained in the letter was a correct understanding of a previous conversation. After this letter was written the differential in lake rates was removed, by negotiation with the shipping lines, so that any necessity for a special tariff or a special commutation of elevator tariffs was removed. As I told the house in committee, a special commutation was made, and is to be found at page 2979 of the Canada Gazette. That commutation represents the only difference in the charges on grain through government elevators as between Montreal and Quebec.
The effect of that commutation is that in the period from May 18, 1938, to August 30, 1938, there will be no storage accrued against grain moving in full cargoes from the Quebec elevator. The tariff was published in the Canada Gazette, based on the commutation which, as I say, was passed by order in council. I will now file that tariff and will make the further remark that all grain handled at Quebec or to be handled at Quebec up to August 30 of this year will move on the rates set out in this tariff.
Hon. II. H. STEVENS (Kootenay Ejast): Mr. Speaker, I must respectfully request however that the letter to which the minister has now referred as having passed between a member of the harbours board and the Dreyfus Company be tabled. It was that request I made the other day; the minister now having himself referred to it makes it doubly important that this be done. I now request again that the letter be tabled for the information of hon. members.


Clarence Decatur Howe: I may say the letter referred to was marked private and confidential, and was sent by a member of the harbours board- it was not sent officially by the harbours board-to a representative of the Dreyfus
Company, and was addressed to him personally. The letter had no effect, as the negotiations to which it referred were not consummated. When we consider that the national harbours board is engaged in a competitive business I think we can all agree it is not in the public interest to table letters passing between a member of the harbours board and any firm or individual referring to negotiations which are not consummated. Therefore I must decline to table the letter referred to by the hon. member for Kootenay East.


Henry Herbert Stevens: Mr. Speaker, with all due respect, and again on the orders of the day: in the first place, marking as private and confidential a document dealing with the conduct of public business is not sufficient excuse for not producing it in the house. In the second place, the document having been referred to in the observations of the minister himself, the rules of the house provide that it is competent for a member to request that it be tabled. In the third place, the question of the confidential character of a communication certainly cannot be extended to a document passing between the national harbours board and a firm doing business and, according to the minister's own statement, having under way negotiations for a variation in the fees or tolls fixed by a statutory body, namely the board of grain commissioners. I must again submit that the letter ought to be- indeed under the circumstances should be- tabled.


Clarence Decatur Howe: I would simply say that a question was asked by the hon. member about this particular letter, and was answered by myself. The only reference I made to the letter was in reply to a question which bore directly on the letter.


Right Hon. R. B. BENNETT (Leader of the Opposition):: Mr. Speaker, the issue is
far larger than a controversy between the Minister of Transport (Mr. Howe) and an hon. member of the house. It is a matter of extraordinary importance. I do not think any words I could use would be language too strong to employ in dealing with the matter.
A member of a public tribunal created by this parliament has seen fit to write a letter to a member of a firm which does business with this country. There cannot be anything personal about that, if it touches public business. He can write about visiting the city, or he can write about social engagements, but the minute he touches upon public business he has no privacy. He cannot protect himself by putting "personal" on the letter,
Grain Handling at Quebec

and the rights of the House of Commons so much transcend that that I trust the minister will not arrive at a hasty conclusion with respect to it.
I wonder if he realizes just what is involved. I had occasion to traverse this matter with a great deal of care some years ago when I was leader of the opposition, as I still am. I had difficulty in dealing with a matter in which certain correspondence was marked "private." The minister properly took the view that it had to be introduced and was on the file. Then the further question arose as to whether or not we had a right to have laid on the table of the house a letter to which he referred. The Speaker had to rule in accordance with the rules of the house, that when a minister refers to a public document in the course of his observations he must table that document, because he cannot deal with it when other members of the house are not permitted to see it. He cannot place his construction upon a document which I might not know about, and which I cannot see.


Mr. POWER:: That was the Simcoe post office?


Richard Bedford Bennett: Yes. The Minister of Pensions and National Health is quite right. It was in connection with the Post Office Department. I do not recall the exact letter, but it was under that department-whether it was the Simcoe office or not, I cannot say. However I believe the hon. member was interested in the matter at that time, and probably will have a very good memory with respect to it.
The reason for the rule is obvious. Let us look at it for a moment. A member of the government, having access to public papers, sees fit to refer to those papers, and to place upon the contents of the document the construction which suits him, when presenting his case to the house.


Mr. DUNNING:: That is not the case in
this instance.


Richard Bedford Bennett: Yes, it is the case in this instance. The hon. member for Kootenay East (Mr. Stevens) asked for some information which he did not get. He thereupon asked for definite information with respect to a letter. The minister admits that he has the letter but he says, "This is a personal letter written by a member of the board to somebody who is a member of Dreyfus and Company".


Clarence Decatur Howe: May I correct my right hon. friend?


Richard Bedford Bennett: Certainly.


Clarence Decatur Howe: I may say that I have never seen the letter. I have never seen it and I do not know whether it is in existence; it is certainly not in any file of the department.


Richard Bedford Bennett: That makes the minister's case so extraordinary as to cause me to wonder how he can possibly stand in his place and make the statements he has.


Mr. MACKENZIE (Vancouver):: It is quite
true.


Richard Bedford Bennett: Yes, it is quite true- what I say. Anyone would wonder how a minister of the crown could stand in his place and make that observation, how any minister could stand up and say, "I don't know what is in the letter; I do not know whether it exists; I have never seen it". That is monstrous. Surely the minister does not mean that. Think what that means. He is a responsible minister of the crown and this is a responsible government, not a dictatorship. The minister says, "I don't know what is in the letter but I have been talking about it. I don't know whether it exists or not, but I have been talking about it. I have never seen it, but I have been talking about it." Can anyone imagine a responsible minister doing that? I say, the minister must have an entirely erroneous impression of what the duties of a minister of the crown are. Does he realize what his responsibilities are? There are those sitting beside him who can tell him.


Ernest Lapointe: To what item is my right hon. friend speaking?


Richard Bedford Bennett: I am speaking to a
question of high privilege-a privilege of the house.


Ernest Lapointe: Privilege?


Richard Bedford Bennett: Yes, privilege of the
House of Commons. If I am to find myself unable to deal with public matters because I cannot get access to papers to which a minister may refer, then the House of Commons becomes nothing more or less than a rubber stamp.


Ernest Lapointe: The rules provide the way to order the production of papers.


Richard Bedford Bennett: The rules do more than
that. The rules provide that when a minister of the crown refers to a public document he must table it.


Ernest Lapointe: It was
the hon. member for East Kootenay who did.

Grain Handling at Quebec


Richard Bedford Bennett: Just imagine anyone
seeking to cover himself up with a statement such as that. Can anyone imagine it? The hon member for East Kootenay asked a question about a document, as he had a right to do, having ascertained that there was such a document, and a minister of the crown now says, quite calmly, "I don't know whether there is such a document."


Ian Alistair Mackenzie: The
rule is as follows:
It has been admitted that a document which has been cited ought to be laid upon the^ table of the house, if it can be done without injury to the public interest. The same rule, however, cannot be held to apply to private letters or memoranda.


Richard Bedford Bennett: Why, of course not.
Now we have the more beautiful sight of a minister of the crown asserting that there can be anything like a private communication between a member of the harbours board and Dreyfus and Company with respect to public business. Imagine thatl


Ian Alistair Mackenzie: We
have the more beautiful sight of the leader of the opposition agreeing with the member for East Kootenay.


Richard Bedford Bennett: That, Mr. Speaker, only illustrates the calibre of the ministry. Are there on the treasury benches men who are unable to understand that public business may transcend personal differences? Are there upon the treasury benches men who cannot understand that the public interest is paramount? I occupy a position in which I am placed by statute, and one of my duties is to do exactly what I am doing, to try to safeguard the liberties of parliament from encroachment by the government of the day. That is my duty. That is one of the difficulties of the position which I occupy, and I will discharge that duty whether it be on behalf of a member of the opposition or of any other party when there is tyrannical exercise of power on the part of the government by reason of a great majority, enabling the administration to destroy the liberties of this parliament, which have been secured in the manner we all know. When that happens it is my unfortunate duty to protest against such an encroachment upon the liberties of members of the house, and I propose to do it so long as I am here.
What is more, there is not a thoughtful member of this house, who, if he will take the time to consider it, will not realize what is meant by carrying into effect the suggestion of the Minister of Transport. Do you
realize, Mr. Speaker, where it ends, what the result of it is. Let the Minister of Justice read the rule which I intended to refer to and which was read by the Minister of National Defence (Mr. Mackenzie).


Ernest Lapointe: I have others.


Richard Bedford Bennett: Oh, there are others. I am familiar with them, because I have traversed them all. They are all on the record of Hansard in connection with the post office case. In the previous case in connection with the post office the Speaker had ruled that the documents should be brought down, and they were brought down, and they resulted in bringing a very unpleasant and unhappy picture before the House of Commons in connection with patronage.
I submit that before any hasty action is taken with respect to this matter the government should look very carefully into the authorities. They should look up those authorities before, with their majority, arriving at any such conclusion as has been suggested. You, Mr. Speaker, should not be too ready to agree to the suggestion made by the government that the documents in question should not be laid upon the table; for I am satisfied that they would be laid upon the table in any representative institution under the British flag, when it is remembered that, in the first place, we are dealing with a communication written by a member of a public body with respect to public business, addressed to a great firm of wheat dealers, and dealing with a matter of public concern. That is the first point. The second is that it has been referred to by a minister of the crown although he now says he has never seen it. I suggest that the sooner he sees it and tables it the better for the country, because any reference made to a document of that kind entitles every member to have an opportunity to see it. The minister cannot be at once the judge and the advocate. He cannot advocate a certain attitude of mind and then assert himself to be the judge whether it is in the public interest or not. The Prime Minister might, perad-venture do that, but the minister cannot.


Ernest Lapointe: The rule to compel the production of papers is very clear indeed, as are all the comments under it. Standing order 51 provides:
Notices of motion for the production of papers which the member asking for the same intends to move without discussion, shall be

Grain Handling at Quebec
marked by him with an asterisk and shall be placed by the clerk on the order paper above Notices of Motions " under the heading "Notices of Motions for the Production of Papers." All such notices when called shall be forthwith disposed of; but if on any such motion a debate be desired, it shall be transferred by the clerk to the order of Notices of Motions.
First, if my hon. friend from East Kootenay wishes the production of any letter or papers it must not be done by discussing a question of privilege and giving to my right hon. friend himself (Mr. Bennett) an opportunity to make remarks which he would not have the right to do on Notices of Motions for the Production of Papers, because if a debate ensued that motion would have to be transferred to the Notices of Motions and to await its opportunity to be discussed.


Richard Bedford Bennett: The question of privilege I was discussing was not that.


Ernest Lapointe: I will come to the other question of privilege, but first I will quote the rules. Paragraph 433 of Beauchesne says:
Papers are laid before the house in pursuance of
(1)	Provisions of an act of parliament;
That is not this case.
(2)	An order of the house;
That would be the only way, I suggest, to have the production of that paper, but it has not been done.
(3)	An address to the crown.
That was not done in this case.
(4)	The command of the crown;
(5)	Standing orders of the house.
These are the five cases in which papers have to be laid on the table when requested.


Richard Bedford Bennett: This involves a question of rates, and therefore would have to be laid before the house.


Ernest Lapointe: Well, this is not the time to discuss that. If my hon. friend wants the papers produced he has to ask for them in the regular way, not simply by asking a question about a certain letter which he alleges to have been sent and which the Minister of Transport says he has never seen. My hon. friend resorts to the other rule, that if a minister of the crown makes use of a document he has to table that document. But when did the Minister of Transport make use of that document? The hon. member for Kootenay East alleges a document, speaks about it; the Minister of Transport says he 
has not seen it. I cannot see how my right hon. friend can work himself into a state of fury because this paper has not been tabled, especially when it is not even in the possession of the Minister of Transport. Time and again, not only when a question is asked but on motions for production of papers, when they relate to papers in the hands of a commission, such as the harbours board, the answer is that the house might carry the motion, but that of course it would be forwarded to the proper authorities in order to ascertain whether the document in question can be produced and filed. We may be guilty of many reprehensible things, but if I never have anything more on my conscience as a public man than this alleged letter, addressed by someone to a member of the harbours board, which the Minister of Transport has never seen-


Richard Bedford Bennett: He talks about it, though.


Ernest Lapointe: I am afraid the next Conservative convention will not find material there to build a platform on.


Henry Herbert Stevens: The matter cannot be disposed of in that way-


Mr. SPEAKER:: What is the hon. member speaking on now?


Henry Herbert Stevens: I am speaking to a question of privilege and rights, in view of the attitude of the government.
On May 6 I submitted in the proper way certain questions. On May 18 these questions were passed as an order for return. I do not know why that should have been done, but it was asked by the government and the house concurred. The return simply answered the word "no" to five of the questions. One of those questions had to do with a special agreement with Louis Dreyfus and Company regarding the handling of grain, I ask the house and the government to bear in mind that that question was asked on May 6. Today the minister gave a lengthy verbal answer to that question. He referred to the letter as having been written by a member of the national harbours board to the Dreyfus company; but, he said, as nothing happened as a result of that letter, there is no object in tabling it. Then he added, "I will now table an order in council amending the grain charges." I notice that this order is effective May 21, and was amended by P.C. 1115 dated May 18, a considerable time after the question I asked the minister, and fully a month after the letter was written by the member of the harbours board to Mr. Kaiser of the Dreyfus company.

Pensions and National Health
My submission is this: Knowing that these documents do exist, knowing that these negotiations were carried on, I have a right, and this house has a right, to know what the negotiations were. The mere fact that subsequent to their being brought to the attention of the house the matter was changed by this order in council is not a suitable response to my request and the right of parliament to see those documents. The minister himself admitted to-day that the document existed, although later he said he had not personally seen it. But he knows the letter exists and that it was written. I add now that it was written by Mr. Roberts of the harbours board to Mr. Kaiser. All I am asking is that that letter with the confirmation attached thereto of the outline of an agreement should be tabled in order that we, the members of this house, may properly discuss the subject matter of it, which is a matter of very great importance and involves not only a discussion of lake rates, as the minister said, but also questions affecting the rates in that elevator, first as they apply to the Dreyfus company, second as they apply to the public generally; and furthermore whether or not there was an invasion of the jurisdiction of the board of grain commissioners. These are all important questions of grave public interest, and I submit that there is no reason whatever which can properly be offered why this document should not be laid on the table of the house. I again assert my right to the document, the right of parliament to see it, in order that when the estimates come up again we may properly and intelligently discuss the very grave questions involved in this whole matter.
The minister does not reply. Well, Mr. Speaker, I have made a request, and I do not think that mere silence is an answer. This affects the right of a member and of all hon. members.


Ernest Lapointe: Why does not my hon. friend make a motion in the ordinary form, as all hon. members do?


Henry Herbert Stevens: I started by following that course. I say to the government that this is not the end of this question.


Walter Edward Foster: Let the hon. member
make a new motion if it is necessary, as provided by the standing order, and then it will be considered.


Ernest Lapointe: The hon. member has to accept the answer given to the question.


PENSIONS AND NATIONAL HEALTH
[Stage Direction]
On the orders of the day:
Charles Gavan Power: On Friday, May 27, during the course of the discussion relating to the publicity division of the Department of Pensions and National Health, I stated that there had been a long delay in making the appointment of chief of this division, and left the impression that the dilatory procedure of the civil service commission was wholly responsible.
Examination of the file and closer study of all the pertinent facts in connection with this appointment clearly indicate that I did an injustice to the commission, which I hasten to correct.
On May 28, 1937, the civil service commission was requisitioned by the department to set up a position of Chief, Division of Publicity and Health Education, but shortly afterwards the department decided to change the title of the position to that of Director of Publicity. The educational qualifications were changed and the salary range modified. On October 28, 1937, the department asked the commission to advertise the position. Applications were called for from the whole of Canada, the competition to close on December 11, 1937. The appointment was actually made on May 23, 1938. It is evident that the department, and therefore the minister, must shoulder at least an equal portion of the blame with the civil service commission.


NATURAL RESOURCES
[Stage Direction]
Right Hon. ERNEST LAPOINTE (Minister of Justice) moved the third reading of Bill No. 106. to amend the Manitoba Natural Resources Act, the Alberta Natural Resources Acts and the Saskatchewan Natural Resources Acts.	-
Richard Bedford Bennett: Mr. Speaker, I indicated to the right hon. Minister of Justice (Mr. Lapointe) that I proposed to make a few observations with respect to this bill on the third reading. The bill involves two questions. One deals with a purely local matter affecting the oil lands in the province of Alberta, but the other is far more important. The
Natural Resources

other amendment contemplates this parliament handing over to the provincial authorities the waters within the various provinces.
This is not a new question. In 1930, when additional agreements were made between the provinces and the dominion to turn over the natural resources to the provinces, I directed attention to the fact that the language was not broad enough to turn over the waters under or on the lands, and it will be remembered that when the provinces were created in 1905 parliament was very careful to retain the rights of this dominion under The Northwest Irrigation Act. I need hardly point out that the Alberta and Saskatchewan Acts were alike in that regard, and it was provided by those statutes that the waters dealt with by the irrigation act passed by this parliament should continue to be dealt with by the parliament of Canada, notwithstanding the fact that we had created the new provinces. Section 21 of the Alberta Act, which is similar in terms to the Saskatchewan Act, reads as follows:
All crown lands, mines and minerals and royalties incident thereto, and the interest of the crown in the waters within the province under The Northwest Irrigation Act, 1898, shall continue to be vested in the crown and administered by the government of Canada for the purposes of Canada, subject to the provisions of any act of the parliament of Canada with respect to road allowances and roads or trails in force immediately before the coming into force of this act, which shall apply to the said province with the substitution therein of the said province for the Northwest Territories.
Similar language is employed in the Saskatchewan Act. It will be observed, therefore, that a clear distinction is made between crown lands, mines, minerals and royalties, and waters. The reason that water in the west stands in a peculiar position is that in 1898, as will be remembered, the parliament of Canada saw fit to enact the Northwest Irrigation Act, under which we declared that the waters in the west were the property of the crown and that when patents were issued for homesteads they should not convey to the patentee the water, which should remain the property of the crown. That is so even to this day, and the classification of the licences for the use of water provided for by that act still stands. You have a domestic user, a user for irrigation purposes and a user for commercial purposes. All that was the law when in 1905 the province of Alberta was created by this parliament, and section 21 of that act retained those rights.
In 1930 the government of the country decided to turn over to the provinces their mines, minerals and royalties, as indicated by

the agreement between the Dominion of Canada and the province of Alberta on the one hand, and later the province of Saskatchewan and the province of Manitoba. Section 1 provides for the transfer of the public lands generally, but it makes no provision for the transfer of the water. That provision is made in these words:
*-the interest of the crown in all crown lands, mines, minerals (precious and base) and royalties derived therefrom within the province, and all sums due or payable for such lands, mines, minerals or royalties, shall, from and after the coming into force of this agreement and subject as therein otherwise provided, belong to the province, subject to any trusts existing in respect thereof, and to any interest other than that of the crown in the same, and the said lands, mines, minerals and royalties shall be administered by the province for the purposes thereof, subject, until the legislature of the province otherwise provides, to the provisions of any act of the parliament of Canada relating to such administration

That is what was turned over to the provinces under the agreements. When the matter came before the House of Commons the Solicitor General and I engaged in a short debate, and on April 29, 1930, we had some extended discussion. The Solicitor General finally said:
It is possible that further legislation is necessary.
Whereupon I replied:
That is the case I am endeavouring to make to the house at the moment, and if the Solicitor General says that, he has quite answered my objection.
Then I dealt with the matter at some considerable length, pointing out what were the provisions having regard to the transfer of crown lands and mines and royalties under the terms of the agreement, and to the limitations that had been imposed upon the transfer of water by the irrigation act. That agreement, of course, was an amendment to the constitution of the provinces; because originally, under section 21 to which I have referred, these crown lands remained the property of the crown in the right of the dominion. It will be recalled that it was asserted by some of our friends that there was a right on the part of this parliament to continue to deal with the matter, but I pointed out then, as I do now, that while under section 3 of the British North America Act of 1871 parliament was given power to create new provinces, it was specifically provided that once the power was exercised we were functus officio. Section 6 of that act reads as follows:
Except as provided by the third section of this act-

Natural Resources
And that is the section which gave us the power to create the provinces.
-it shall not be competent for the parliament of Canada to alter the provisions of the last-mentioned act of the said parliament in so far as it relates to the province of Manitoba, or of any other act hereafter establishing new provinces in the said dominion, subject always to the right of the legislature of the province of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and members of the legislative assembly, and to make laws respecting elections in the said province.
Therefore when we created the province of Alberta and gave it a constitution we were not competent to amend that constitution; and when in 1930 we amended that constitution by providing that the mines, minerals and royalties that theretofore had been the property of the crown in the right of the dominion should be vested in the crown in the right of the province, that amendment had to be ratified by the imperial parliament. It will be found in chapter 26 of the statutes of Westminster for 1929-30 that this agreement was ratified.
My contention was that if we proposed to deal with the question of water, about which there have been grave differences of opinion- because it was felt that we had the machinery to maintain a uniform policy-the transfer of the waters was a matter that required much more than ordinary or casual consideration. So to-day the waters are being administered by the dominion, not by the provinces; the rehabilitation act in the province of Saskatchewan was predicated upon that assumption. During the period that we were responsible for administration, representations were made with respect to an amendment that might be made, but we never agreed upon the amendment. Now the minister proposes in this bill, for which third reading is asked, to vest these waters in the provinces and divest the dominion of its power. If I am right in my suggestion to the right hon. Minister of Justice it follows that this can be done only by having an act passed by the parliament at Westminster confirming that statute.
It was contended by some of our friends that this was unnecessary, and this was the reason they gave: In the agreement of 1930 they found these words:
24. The foregoing provisions of this agreement may be varied by agreement confirmed by concurrent statutes of the parliament of Canada and the legislature of the province.
It has been pointed out in some quarters that that is broad enough to enable this action to be taken, but I think the Solicitor General thought differently in 1930. Obviously
it is an amendment to the constitution and, as I pointed out in 1930, you cannot have the constitutions of the provinces or the dominion amended by concurrent legislation on the part of the dominion and the provinces. Therefore, on the third reading of the measure,
I point out that in my opinion this is in effect legislation to accomplish that very purpose. If it is intended to transfer the administration of the waters of the western provinces from the dominion to the provinces and thereby amend their constitutional position, it would be essential to do so by the method followed in amending the constitution in 1930. I realize that effect can be given to section 24 of the agreement, but that section cannot possibly have the effect of constituting an amendment to the British North America Act, for the reason that in the list of cases to which reference has been made, the privy council pointed out that you cannot by treaty or agreement divest the provinces of their legislative power in order to confer authority upon the parliament of Canada.


Charles Avery Dunning: This operates to confer more power on the provinces.


Richard Bedford Bennett: This operates to confer upon the provinces jurisdiction over waters which is now vested in the crown in the right of the dominion.


Charles Avery Dunning: I raise that point merely because the privy council decision had to do with the reverse of that.


Richard Bedford Bennett: But the argument and the statute applied equally to both, that is, that the competent authority to amend the constitution of this country was the parliament at Westminster and not any arrangement or agreement that might be made by the legislatures of the provinces and the dominion. The constitution of the Dominion of Canada cannot be amended by agreement. Concurrent legislation enacted by the provinces and the dominion cannot possibly have the effect of creating an amendment to the British North America Act. The agreement provides that there may be amendments to the agreement, but that would be an amendment within the ambit of the agreement itself and not an amendment to confer new jurisdiction upon the provinces in the exercise of their powers over the waters to which I have referred.
Difference of opinion exists in many quarters as to whether it is advisable, having regard to the possibility of large irrigation works, to vest in the provincial authorities jurisdiction with respect to these matters, or to have them remain as part of a national policy. It is
Natural Resources

realized that only a national policy can deal with so large an issue as that of irrigation in these great western provinces which would involve expenditures on a vast scale.


Ernest Lapointe: Mr. Speaker, of course I am not in order, but with the consent of the house I shall proceed. These agreements have been negotiated by the Minister of Mines and Resources (Mr. Crerar) and the governments of the three western provinces which are interested. Until my right hon. friend raised the point, I did not know that there were any difficulties of the kind he has indicated. I have been told by the officers of the Department of Mines and Resources and the Department of Justice that it was the intention at all times to include waters in the phrase "crown lands, mines and minerals." In the minds of the officers of the departments there were no practical difficulties, but it was thought better to include waters. I have the greatest respect for the opinion of my right hon. friend, but I submit that the legislation of 1930 transferred all the natural resources to the provinces.


Charles Avery Dunning: It was called the natural resources act.


Richard Bedford Bennett: It was an act to confirm and give effect to certain agreements entered into between the Dominion of Canada and the governments of the provinces of Manitoba, Saskatchewan and Alberta. I am reading from the British statute.


Ernest Lapointe: This act is the Natural Resources Transfer (Amendment) Act, 1938.


Richard Bedford Bennett: That is the Canadian act?


Ernest Lapointe: Yes. The purpose was to make the provinces the owners of their natural resources. I think it may be fairly claimed, and it is the opinion of the officers of the Department of Justice, that the .section my right hon. friend has mentioned, which was enacted by the Westminster parliament, to the effect that this agreement might be varied by an agreement confirmed by concurrent statutes of the parliament of Canada and the legislatures of the provinces, is sufficient to confer upon this parliament and upon the legislatures of the three western provinces the right to vary by concurrent legislation the agreement that affected the transfer in 1930. This is merely to remove a doubt. My right bon. friend knows more about western matters than I do, but I have been given to understand that it 
has always been considered that the waters were transferred along with the lands, mines and minerals.


Charles Avery Dunning: They have been so administered in practice.


Richard Bedford Bennett: No.


Ernest Lapointe: Apart from this, I may say that the opinion of the officers of the Department of Justice is to the effect that we have authority to confirm this agreement and to make it clear that the waters are transferred to Manitoba, Saskatchewan and Alberta as well as the lands and mines.


Richard Bedford Bennett: Mr. Speaker, if I have
your indulgence I shall answer the question asked by the right hon. Minister of Justice (Mr. Lapointe), otherwise I cannot proceed. When the Alberta and Saskatchewan acts were being enacted I was solicitor for the irrigation branch of the Canadian Pacific Railway Company. At the instance of the Canadian Pacific Company I came to this city and conferred with the then Minister of Justice for some time, submitting the reasons why, in the opinion of my client, the administration should continue in the crown in the right of the dominion, because the river did not flow wholly through the one province. There were many questions that had to do with the supply of water that originated in the national park which was under the jurisdiction of the dominion. The whole matter bristled with difficulties if it was to be in the hands of the provinces. That is the reason why these words appear in the constitutional acts known as the Saskatchewan Act and the Alberta Act:
All crown lands, mines and minerals and royalties incident thereto, and the interest of the crown in the waters within the province under the Northwest Irrigation Act, 1898, shall continue to be vested in the crown and administered by the government of Canada for the purposes of Canada.
Bear in mind that we had followed a course that was wholly unusual, namely, we retained in the crown the title to the waters even although patents were granted otherwise. That is not a general thing. The patent did not carry title to the waters, any more than it carried title to the gold. It reserved the title to the water as though it were gold and a patent were being issued to a homesteader or a person who otherwise becomes entitled to a patent on his land. When the agreement was made it referred to mines, lands, minerals and royalties and did not mention the waters, which were

Natural Resources
vested in the crown by a special paragraph, and the administration continued by the federal authority just as it had prior to the agreement being made.


Charles Avery Dunning: Since 1914?


Richard Bedford Bennett: That is, the large irrigation projects, licences and matters of that sort. When the Canadian Pacific turned its irrigation project over to the settlers, they came to an arrangement with the provincial authorities for that purpose.


Ernest Lapointe: May I
ask a question for information? Apart from the constitutional question whether we have a right to proceed in this way, does my right hon. friend see any practical objection to it?


Richard Bedford Bennett: Only this, that it was
represented to me on many occasions that if we were to engage in a national irrigation policy in the west it would be undesirable that we should make an arrangement with the provinces for administering the waters as distinguished from the crown in the right of the dominion; that is, if we were hoping to have a national policy and for assistance to be given by the dominion government. It will be recalled that we have on more than one occasion given assistance to the Medicine Hat project, which was authorized under the Northwest Irrigation Act of 1898, and when the Canadian Pacific turned over its entire project to the settlers and took its loss, the question of expanding that system into a national system, and what was called the William Pearce scheme in connection with the Saskatchewan river, all involves the utilization of waters on a scale so vast that no province would be in a position fittingly to undertake the work. That is the only objection that has ever been made to me, I may say to the minister. Frankly I was of the opinion that if irrigation became essential in the western provinces it should be dealt with as a national undertaking rather than as a provincial one, so that the system that would be created in one province could be made to inure to the benefit of another.


Charles Avery Dunning: Or to its detriment?


Richard Bedford Bennett: Yes, quite so, to its
detriment, by reason of one province selfishly exercising its powers and not permitting the -advantages to go to another; and so a federal and national outlook on the matter was to be preferred. I am not expressing any opinion at all, but that was the view that was expressed by quite a number of people, as perhaps the Minister of Finance has heard, particularly from those who have been urging the Pearce scheme, as it has been presented *during the last two years.
Hon. CHARLES A. DUNNING (Minister of Finance): There is no doubt in the mind of anyone who sat here in 1930 that what we thought we were doing then is what is being attempted now.


Richard Bedford Bennett: The Solicitor General was a little uncertain.


Charles Avery Dunning: Certainly with regard to the negotiations between the three western provinces and the officers of the federal government, the intention was to transfer all the natural resources and thereby place all provinces in the same position with respect to the ownership of water and all the other resources. To take any other view now would be to start a controversy with the three provinces concerned which I doubt could possibly do any good, and certainly could be settled ultimately only in one way.
While, of course, I appreciate very fully the remarks of the right hon. leader of the opposition (Mr. Bennett) with respect to irrigation difficulties, if a scheme so vast as some of those proposed were to be put into effect, on the other hand I was advised some time ago in connection with such schemes that the general powers of the dominion applying to navigable waters could be effectively used to prevent the stealing of a whole river by one province to the detriment of another.


Richard Bedford Bennett: The Bow river is not a navigable stream.


Charles Avery Dunning: No. But the Saskatchewan river is technically a navigable stream.


Richard Bedford Bennett: Yes.


Charles Avery Dunning: I am not competent to go into the legal aspects of it. I am not sure indeed that the Bow river might not legally be considered navigable.


Richard Bedford Bennett: Inquiries I have made would lead me to think otherwise.


Charles Avery Dunning: My right hon. friend
knows more about that than I do. But to reopen the question as to whether the waters of these provinces were in fact transferred by this parliament in 1930 would, I think, be very unfortunate and lead to no useful purpose. The people receiving them, and the dominion parliament in extending those rights in 1930, believed that the water was included, and since that time the province of Saskatchewan with respect to certain northern water powers has acted under the authority given by the agreements we are now discussing. I believe I am right in saying that it is since 1930 that certain action has been taken granting water rights on the Churchill, or at least an extension of rights existing there, to
Canada Shipping Act

enable the development of that great electric power which is used at Flin-Flon, on the Manitoba-Saskatehewan border. Saskatchewan has acted in that respect under the agreement, and I have no doubt that instances could be found where others of the three western provinces have acted on the assumption that they could deal with the matter by virtue of the rights which for my part, as one of those vitally interested at the time, I certainly thought we were conferring in 1930.


Richard Bedford Bennett: The Solicitor General then thought not.


Charles Avery Dunning: The recent representations made had to do entirely, from the standpoint of the three western provinces, with the removal of possible doubts. No one seemed to doubt what the intention was at the time it was done.
Motion agreed to and bill read the third time and passed.


CANADA SHIPPING ACT, 1934 CONTROL OF SHIPMENT OF MUNITIONS BY SHIPS REGISTERED IN CANADA
[Stage Direction]
The house resumed from Friday, February 11, consideration in committee of Bill No. 9, to amend the Canada Shipping Act, 1934- Mr. Howe-Mr. Sanderson in the chair.
On section 1-Prohibition of shipment of articles of war to countries in a state of war.
Ernest Lapointe: Mr. Chairman, I understand this section was discussed fully in committee, but was not passed on the former occasion in order to permit any further observations hon. members might wish to make.


[Stage Direction]
Section agreed to.
Bill reported, read the third time and passed.

[Stage Direction]
Hon. C. D. HOWE (Minister of Transport) moved the second reading of Bill No. Ill, to amend the New Westminster Harbour Commissioners Act.
Mr. THOMAS REID (New Westminster):: 
Charles Hazlitt Cahan: May I suggest to the hon. member that reference to a previous discussion of that kind, which has no relation to the bill before the house, is inopportune?


Thomas Reid: Perhaps the hon. member has misunderstood the situation; the hon. member for Mount Royal was speaking to this very bill. The resolution preceding the bill was before the house, and he took that opportunity to make some observations. I believe I am quite in order when I simply reply
to his remarks. I have quoted from the page in Hansard where the hon. member for Mount Royal is reported.


Charles Hazlitt Cahan: I suggest that that was the proper time to call attention to any irrelevant incidental remarks. It would be better if the hon. member's observations could be left to another time when the hon. member for Mount Royal could be in his seat. If that were done he would have the opportunity to deal with these matters of fact, which have no relation to the discussion of the bill now before us.


Thomas Reid: I am sorry to have to differ from the hon. member, but I believe he is in error. The remarks I am making are most pertinent, because they bear directly on what was said by the hon. member for Mount Royal in a discussion of the resolution preceding this bill. Not only was he dealing with it but he asked me at the time for my views. There is no other occasion on which one could so well discuss the merits of this matter because the bill is now up for second reading. After that the only opportunity for discussing principles will 'be on the third reading of the bill. I am sorry that my hon. friend has taken exception, because up to now I have been very fair in my remarks. I regret the absence of the hon. member for Mount Royal and the hon. member for Leeds, but I can assure the house that I am not taking undue advantage of that fact because what I have to say is in no sense carping criticism.
The hon. member for Mount Royal said:
I urge upon the minister and the committee the desirability of amending this measure in such a way that we might at least try out for a period of time a service of commissioners who would not undertake the work for the sake of the remuneration which might be in it. I should like to hear an expression of opinion from the hon. member for New Westminster, who knows the situation better than I do.
That statement, I suggest, fully answers the interruptions made just now by the hon. member. The port of New Westminster has been very fortunate in the past in its choice of commissioners, and those who have gone before deserve more than a mede of commendation for the work they did. In 1921 only some thirteen ships entered the port, whereas last year there were 450 deep sea ships, from every part of the world, coming into the port of New Westminster. The work has become so onerous in consequence that it now occupies almost the full time of the chairman and a great deal of the time of the harbour commissioners; and very often the commissioners are called in once or
New Westminster Harbour

twice a day in connection with matters arising out of the affairs of the port. I have always objected to the way in which the former commissioners were paid; I am inclined to think that in the past they were paid rather surreptitiously. There was nothing in the act formerly to provide for reimbursing the commissioners for any expenses they incurred in connection with the business of the port. The past chairman of the board, putting in his whole time, was of the opinion that he at least should have some remuneration and therefore he was appointed port manager. I suggest that the former method of payment was an unsound one and it is now being remedied.
The manner of paying the chairman was, in my opinion, a mistake, and I might have taken greater exception to it when I first came to the house, but shortly after that time he fell sick and was unable to carry on, and I felt that it was unbecoming, especially in view of his past services, to raise any criticism as to the manner of payment. The consensus of opinion, I believe, is that they should be paid, and I am pleased that the minister is now amending the act to provide for their payment. To the hon. member for Mount Royal I would say that the administration of the port of New AVestminster should be regarded as a model in judging all other ports in Canada; and my own opinion is that if the administration of the other ports had been as efficient as that of New Westminster it is doubtful whether those other ports would have come under a national harbours board. What was said by the hon. member for Mount Royal could be said with greater effect in Montreal, where I know the administration last year cost $268,648 as compared with total administration costs in New Westminster of only $14,000.


Charles Hazlitt Cahan: There is some difference in the extent and importance of the two ports the hon. member is comparing.


Thomas Reid: Montreal, it is true, is the first on the trade list, but let us go down the list and take the port of Quebec. Let us compare that port with New Westminster from the standpoint of exports and imports. We find that the administration costs in the port . of Quebec last year were- $90,680 compared with the figure I have given for New Westminster. I will take any port the hon. member will suggest, because I have the data before me, and I am sure that New Westminster will be found to be the most favourable. It has one of the finest records in the dominion, if not the finest, so far as administration is concerned and, of course, from the standpoint of development as well. Some-

one asks about the tonnage of that port compared to Quebec. That is interesting. Through the port of Quebec last year there were exported 257,077 tons as compared with 868,026 tons through New Westminster; and yet the administrative costs in the port of Quebec were $90,000 odd whereas in New Westminster they were only a little over $14,000.


Charles Hazlitt Cahan: Compare the passenger
services now.


Clarence Decatur Howe: It is hardly fair to compare services of that kind, because in some ports a great many services which are rendered privately and paid for from revenue do not appear in the books of some other port. Even to compare two ports under the national harbours board as to cost of administration is apt to be misleading unless a careful analysis is made of the services performed.


Thomas Reid: I was surprised that any hon. member, especially any member from Montreal, would object to paying the out-of-pocket expenses of the commissioners in New Westminster, having regard to the services they have done in the past and the services they are now rendering. In all kindness I now say to the hon. gentleman that he should preach in the city of Montreal the same gospel that he is trying to preach here in connection with this bill.


Charles Hazlitt Cahan: My hon. friend is perhaps misconstruing not only the purpose of the hon. member for Mount Royal but the actual effect of the words which he uttered. I reside in the city of Montreal and am pretty thoroughly acquainted with all its business and mercantile affairs, and I have never heard the slightest criticism of the port of New Westminster. I do not believe that it was intended in the previous debate to express any criticism of that port.


Thomas Reid: I listened carefully to the debate and my opinion was asked regarding the payment of the commissioners, and I suggested that men administering the affairs of the port of New Westminster in such an efficient manner were worthy of some remuneration. It is far better, as under this bill, to pay them openly and aboveboard than, as in past years, to pay them surreptitiously, without many citizens knowing that they were being paid. I commend the change and I say that the administration of the port of New Westminster is an example that might well be followed by many of the larger and some of the minor ports of Canada.
The hon. member for Mount Royal mentioned something about the politics of the

Indian Act
commissioners. Well, we have a splendid record there because at the present time two of the commissioners are Conservatives and the chairman is a Liberal. The men have been chosen generally without regard to politics and they should receive a great deal of commendation for the work that they have done; for they have laid a splendid foundation. I thought it was my duty, as representing that port, to rise in my place in order to remove any wrong impression that might have been left by the previous discussion.


Mr. H. J. BARBER (Fraser Valley):: I wish to go on record as supporting this measure. I have been in close touch for a number of years with the port of New Westminster, and I realize its importance. I am sure that the record of management of that port should warrant recognition by legislation such as this. These men are certainly entitled to some remuneration. As to the other part of the bill, the extension of the area, I am not so well informed. I have received no objections, however, and I have no doubt that that is warranted. As I understand it, the other section that is being taken in does not come under the port of Vancouver. I suppose no mention is made of the question of port manager. Is it the intention of the government to provide for a port manager in addition to the officers of the commission?


[Stage Direction]
Motion agreed to, bill read the second time, and the house went into committee thereon, Mr. Sanderson in the chair.
Section 1 agreed to.
On section 2-Remuneration of commissioners.
Mr. TAYLOR (Nanaimo):: Do the New Westminster harbour commissioners and the North Arm harbour commissioners between them now cover the whole effluent of the Fraser river?


Thomas Reid: Yes.


[Stage Direction]
Section agreed to.
Bill reported, read the third time and passed.


[Stage Direction]
Hon. T. A. CRERAR (Minister of Mines and Resources) moved that the house go into committee to consider the following proposed resolution:
That it is expedient, by amendment to the Indian Act, to authorize the governor in council to make regulations enabling the superintendent general to issue leases of land deemed to contain minerals and to grant in respect thereof the right to prospect for, mine and take away the same; and also to authorize advances of moneys from the consolidated revenue fund to assist Indians in carrying on agriculture and other pursuits, and to make provision for the repayment of such advances; the outstanding advances at any time not to exceed $3150,000.
Motion agreed to and the house went into committee, Mr. Sanderson in the chair.
Mr. CRERAR:: Indian Act

moneys year by year for Indian welfare work. But these votes of money are expended the same as any other vote, and consequently are looked upon more in the way of grants or gifts to the Indians who are the beneficiaries of aid given in welfare matters. One of the things that has impressed itself on my mind in the brief period I have had to do with Indian administration is the need to develop a spirit of self-reliance and independence in our Indian wards. My reading of the story of the relation between governments and Indians in Canada leads me to the conclusion that the expectation originally was, and indeed is still largely entertained, that the Indians will in course of time become absorbed into the ordinary citizenship of the country, and cease to be wards in the sense that they have been so considered in the past. I must confess that I think in the past our attitude has often not been conducive to the achievement of that very desirable end. Consequently this fund is created for the purpose of lending money either to individual Indians or to bands of Indians for productive purposes, or perhaps in certain cases to residential schools for the purpose of developing handicraft arts, with the understanding that these loans must be paid back into the fund to the credit of the Minister of Finance, or rather to the credit of the receiver general to be administered by the Minister of Finance.
As I said a moment ago, this is a new departure. Personally I think it is a wise move, and I have no hesitation in recommending it to the committee. Several years ago-indeed, not so many years ago, if my information is correct-the government of the United States adopted this policy. In the United States roughly speaking there is about twice the Indian population that we have in Canada. They provided, since they had the means to do so, a very much larger fund than we suggest here, but if this works out as I anticipate, and certainly as I hope it will, and it should become necessary later on to increase the amount in the fund, at that time parliament could give consideration to the question, and I think such consideration would be favourable.
May I give a few illustrations of how the fund may be used to assist in various ways. On a. certain reserve an Indian may have been allotted a certain portion of land. He has not the means to buy stock or to obtain farm implements. Advances can be made under this fund, with the understanding that they must be repaid in whatever period of time is fixed. Again, we have reserves that are communal in their character. Another purpose for which this fund could

be drawn upon would be to place cattle on a reserve, with the understanding that the amount of the loan creating the capital in the live stock would be repaid to the fund. Of course all these reserves are under supervision. Another illustration might be given in connection with work in residential schools. As I stated, I believe a year ago, in the discussion of the estimates, I think our system of Indian education left something to be desired. I am glad to note that within more recent years, particularly within the last few years, more emphasis has been placed upon the need of vocational training in these Indian schools. I have seen samples of Indian handicraft work produced at points remote from civilization, such as beaded work of various kinds and other similar articles, which would find a ready market in the development of the tourist trade of this country. My hope in this regard is that we may be able to go to the authorities of an Indian school and say, "If you wish to teach the girls in this school handicraft arts; if you wish to teach them weaving or leather working or any other art, we will be in a position to supply the necessary amount of money, by way of a loan, to purchase the materials with which this work may be carried on."
Generally speaking, that is the purpose of the resolution, and I certainly feel that it deserves the sympathetic interest and support of the committee.


Charles Hazlitt Cahan: I should like to ask the
minister a few questions, for information. In regard to the gold, silver, iron, coal and other minerals which may be found in these lands mentioned in the resolution, is the title in the crown as represented by the province or in the crown as represented by the dominion? Speaking simply from memory, and from having read judicial decisions in which I had no personal interest, it seems to me that one decision particularly, relating to the province of Quebec, was to the effect that the revenue thus derived from the alienation, disposal or sale of Indian lands is a revenue in which the provincial government participates. This is what I am asking definitely, because my own memoiy is not quite clear: Will the revenue received through these leases of lands which are deemed to contain minerals, and from the granting in respect thereof of the right to prospect for, mine and take away the same, which is a conveyance of the property right in the minerals located in the lands subject to the lease, be a property right of the crown as represented by the province or of the crown as represented by the dominion?

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Thomas Alexander Crerar: In the province of Quebec there is a rather anomalous situation. Areas were set aside many years ago as Indian reserves, upon which the Indians were supposed to live. The title to those reserves was never clear, in the sense that it inured solely to the federal government in the event of the Indian band disappearing, for instance. A case was carried to the privy council, I think in connection with the disposal of some part of the Caughnawaga reserve near Montreal, if my memory serves me aright, and the decision was that when a portion of the reserve was sold the province was the beneficiary in the matter. That is as I recall the decision, though I speak subject to correction, because I have not my notes and it is some considerable time since this matter was before me. I think I can say that in all the other provinces, with the possible exception of some instances in British Columbia, the reserves were set aside wholly for the benefit of the Indians. The department has administered the resources of such reserves wholly for the benefit of the Indians, of course with their consent. That has been carried to the extent that certain of these reserves in western Canada have quite large sums of money to the credit of the band funds, which are wholly the property of the Indians. Again, for instance, in Ontario there may be a reserve upon which there is valuable pulpwood timber. If the Indians give their consent the department can dispose of that pulpwood, and the proceeds of the sale will be credited to the funds of the Indians on that particular reserve. Generally speaking, the situation is this: The Indians have the ownership of the surface rights, that is the timber, hay or grazing. The revenues received from these sources are placed to the credit of the Indians. As I have stated, in the province of Quebec we have never yet been able to get the question of ownership of the reserve satisfactorily answered.


Charles Hazlitt Cahan: I have a hazy recollection
of reading a decision relating to Indian ownership of surface rights, which seems to bear out the distinction made by my hon. friend. I must confess my personal ignorance, but I do not recall that a decision has been given by a court of appeal in this country or by the privy council to the effect that the title to the gold, silver or coal in so-called Indian lands is vested in the crown in the right of the dominion or in the right of the province in which these lands may be located.


Thomas Alexander Crerar: There may be a question
so far as the province of Quebec is concerned ; but I am quite sure that there is 51952-212J
no question so far as the other provinces are concerned, with the possible exception of a few cases ifi British Columbia where the titles to the reserves have not yet been satisfactorily cleared up with the provincial government.


Charles Hazlitt Cahan: When we come to discuss
the sections of the proposed bill in committee, will my hon. friend be prepared to give a clear statement by the legal officers of his department or of the Department of Justice with regard to this matter?


Thomas Alexander Crerar: I shall do that.


Charles Hazlitt Cahan: I have some recollection
of more or less serious disputes between one or more of the provinces and the dominion in relation to such matters. The bill to be founded upon this resolution will go further than the provisions of the Indian Act, in that it will enable the governor in council to grant an estate or title in or to mines of gold, silver, coal or iron separate and distinct from the surface rights to the land. That distinction is clearly made in some of the older provinces, and I think we should have a clear understanding of the legal position when the terms of the bill come before the committee.
The other point I wish to raise is in connection with the revenues that may be received. We would like to know whether these revenues are to be received by the dominion treasury. If so, will they then constitute a part of a general fund of which the $350,000 mentioned here will be a part? Will the advances mentioned here to the amount of $350,000 form a revolving fund together with or distinct from the proceeds from the grants of the gold, silver or other minerals? That is a matter which I think might well be considered. I am sure that so far as the members on this side of the house are concerned, any efforts that may be made to improve the condition of the Indian population in connection with their ordinary avocations or by educational or cultural methods must receive approval. It is within my memory that some of the most distinguished citizens of this country, men who have done much to advance the commercial, financial and other interests of this dominion, have been proud to admit their Indian origin and blood.


Thomas Alexander Crerar: I shall make a note of the first point raised by my hon. friend and secure an opinion from the law officers of the Department of Justice.


Charles Hazlitt Cahan: I did not desire to raise any merely facetious question.
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Thomas Alexander Crerar: It is very important. As far as the disposal of the $350,000 fund is concerned, this will be by way of loans. We may charge the individual Indian or the school or the band interest on the advance made, but when the loan is repaid it will be paid to the receiver general for the account of the Minister of Finance for the fund. If through the operations of the individual Indian or the band of the school a profit is made from the grain grown or the live stock raised or handicrafts produced, that profit will go to the individual Indian or to the school or the band directly concerned. This is not intended to be a profit-making venture for the department or the government.


Charles Hazlitt Cahan: And it is not intended that this revolving fund, which is not to exceed $350,000, will be connected, directly or indirectly, with the proceeds from the alienation of lands or mineral rights provided for in the first part of the resolution?


Thomas Alexander Crerar: Correct; there is no connection at all.


Mr. WOODSWORTH:: Mr. Chairman, there are several points that are not at all clear to me. It is curious that the question of authorizing the superintendent general to issue leases to lands in which minerals may be found should be linked up with the question of setting up a revolving fund to help Indians. The only possible reason I can see for this connection is that the department recognizes that because of mining operations certain Indians may be driven off their reservations and will have to be provided for otherwise. I should like to have some information on this point because I cannot understand why these two should be connected. It seems to me that each of these matters should be handled in a separate bill. It is a serious matter if this resolution implies that Indians may be deprived of the land which has been assigned to them in the past and from which they have obtained a livelihood.
Further, I should like the minister to tell us how the consent of the Indians is to be secured. Some of these Indians have tribal or communal organizations, and if I understand aright, under certain circumstances, a good deal of pressure has been placed upon these organizations. We ought to know just what safeguards are to be provided so that the Indians may not be led into buying a pig in a poke, as the old saying is.


Thomas Alexander Crerar: Has my hon. friend, may I ask, knowledge of any instances where pressure was put upon the Indians to consent to the disposal of some of their property?


James Shaver Woodsworth: I am asking for information. I have heard rumours to that effect. I am not speaking of the minister's own administration, but am going back a good many years. I have lived in the west for over fifty years and know something of the earlier life of the Indians there, and charges of this kind have been made in the earlier days. I know nothing of more recent years. I should like then to know from the minister just what safeguards are going to be taken to prevent pressure from being put on the Indian bands and so that they will know what they are doing.
The third point that occurred to me is that a great many of our Canadian born farmers are finding it extremely difficult to make a living on their farms, and it is going to be very difficult indeed for Indians brought from the more remote districts to make a living on the farm in the regular way. I think it must be forty years since I saw Indians being taught agriculture in Brandon, where my home was at the time; I have seen them at other schools from time to time, and I know it is extremely difficult in one generation to train Indian boys and fit them for farm life. If this is to be done on any considerable scale, I think we must face the fact that it is going to be a very difficult thing to do. I know the minister is familiar with farming, but it seems to me there might be specialized types of farming to which the Indian might be much more adapted than the ordinary grain or cattle farming.
Again, this loan is to be taken out of a grant from the consolidated revenue fund, and it is to have no connection whatever, the minister tells us, with any revenue that might be derived from this mining property. I do not think that is as it should be. These Indians were granted the lands with the idea that they were going to make a living on them. The encroachments of civilization have made it almost impossible for the Indians to continue to make their livelihood in their old ways. Now there has come to our knowledge that under some of these lands there lie minerals of value, and I cannot but think the Indians ought to have some claim to these minerals. I do not mean to say that the Indians are fit, without a great deal of training, to carry on mining operations themselves, but I do think they have some claim on the minerals and certainly a much stronger claim than outside people who go in to prospect and make money out of the new finds. It seems to me that the minerals under these Indian lands should be regarded essentially as a trust. The minister tells us that when pulpwood is sold the proceeds are credited to

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the Indians, and, I assume, administered by the department. Why should not the same or a similar arrangement apply in the case of mineral resources?


Thomas Alexander Crerar: It will. That is precisely what we are proposing to do.


James Shaver Woodsworth: Be credited to the
Indians?


Thomas Alexander Crerar: Let me give an illustration. Take an Indian reserve west of Calgary, on which the right is given to drill for oil to some person who is willing to take the chance of developing it. That right is given with the consent of the Indians; but any royalties or returns which accrue from that development which are considered fair and equitable by the department from the standpoint of its trusteeship to the Indians accrue and go to the credit of the Indians on that reserve, and they do not go anywhere else. There is not behind this legislation, if my hon. friend has that idea, as I am afraid he has, any dark scheme to take over the valuable resources of these reserves and give them to someone else. That is not the case at all, and in any event it would always be subject to review by parliament. But that is not the intention. The intention is to provide means by which the development can take place, and everything that comes out of that development by way of royalties or fees or financial returns in any way goes to the credit of the Indian band fund.


James Shaver Woodsworth: I am glad to know that such returns will go to their credit. Then why should not that fund so built up be used for whatever purposes are deemed desirable for rehabilitating the Indians?


Thomas Alexander Crerar: That is quite true.


James Shaver Woodsworth: But as I understood the minister's answer to the hon. member for St. Lawrence-St. George, there is no connection between the two.


Thomas Alexander Crerar: There is no connection
whatever between these two points in the legislation. One is not dependent on the other in any sense; they are wholly independent. But take the illustration I gave a moment ago: Any monetary return from the development belongs wholly to the Indians on that particular reserve. We cannot take the revenues derived from that development of oil on a reserve west of Calgary and utilize them for the benefit of Indians on a reserve in Saskatchewan. As a matter of fact, when these moneys go into the band funds, they cannot be taken out of the band funds by the administration without the consent of the Indians. There are a great many reserves
where there are no band funds at all, and consequently the revolving fund is intended to deal more particularly with the Indians on those reserves and their needs. As hon. members know, we have a substantial number of Indians engaged in agriculture to-day. On the Six Nations reserve, for instance, near Brantford, we find conditions almost entirely analogous to conditions you find off the reserve, but the Indians of that reserve are still wards of the government. As a matter of fact, there is reluctance on the part of some of them to accept the ordinary responsibilities of citizenship. Now there may be an Indian on this reserve whom we wish to help. We may have been giving him relief for four or five years, and with this revolving fund we are in a position to say to him, "If you will make an effort to establish yourself we will provide you by way of loan with live stock or machinery," or whatever it might be, with the understanding that the loan is to be repaid. It is not a gift. That is the whole purpose behind the conception of a revolving fund. It is simply to be able to use the money over and over again as it is repaid, without paying it into the consolidated revenue fund and having to come to parliament to get the right to use it again.
But I am interfering with my hon. friends speech.


James Shaver Woodsworth: I can go on again in a moment.


Thomas Alexander Crerar: It is not proposed, of course, to take the Indians from the more northerly areas and endeavour to make farmers out of them. My hon. friend has some familiarity with the province of Alberta. He knows, for instance, that in southern Alberta there are several large Indian reservations. Those Indians have much live stock, such as cattle and horses, and in the main carry on grazing operations and the production of grain. They are not only grain growers but stock raisers as well. The same is true in Saskatchewan.
I can recall the facts with respect to one reserve in Manitoba, I believe, it was in the northern part of the Selkirk constituency, to which point the Indians were moved a great many years ago. They surrendered their reserve north of Selkirk and moved to a new location. The new location offers admirable opportunities for mixed farming. Thousands of tons of hay can be taken off the reserve every year. But there is practically no live stock on it, with the result that a considerable bill of expense has been incurred in connection with relief payments in the last seven or eight years.
It is our intention, using that band as an illustration, to loan them money or provide
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them with live stock, under supervision. Out of the proceeds of the increase of that stock the loan would be repaid in perhaps four or five years. It is our aim to have them understand that it is part of their responsibility to look after themselves. There is one reserve in Ontario, a part of Ontario in which one finds excellent farming land, in connection with which three years ago the relief bill was around $15,000. Here the idea had grown among the Indians that since they were wards of the government, it was the duty of the government to look after them.
We are endeavouring to change all that. Last year on the reserve about which I have just spoken, enough vegetables were grown to carry them through the winter. We had to take out of ordinary appropriations moneys to build root houses, and the like, with the *result that relief on that particular reserve 5has been cut to almost a third of what it *was previously. We are endeavouring to get into the minds, not only of the Indians but of the people looking after the reserves, that within a year or two we want relief to become a thing of the past. The purpose behind the measure is to help achieve that end. That is why I said that I had no hesitation whatever in recommending the measure to the favourable consideration of the house.


James Shaver Woodsworth: I can only repeat that it is most unfortunate that these two distinct measures should be incorporated in one resolution.


Thomas Alexander Crerar: No. If the hon. member will reserve his criticism in that respect until the bill which will follow the resolution is before the committee, I believe he will find that the matters are separate, and must be considered separately.


James Shaver Woodsworth: I should be permitted to express my opinion on the resolution, because the bill is not yet before us. My suggestion was that it was unfortunate they iould be put together because I at least, as one member of the house, have not understood the proposals. I thought there must be some connection between the two.
I can understand the minister's statement that there are wide differences between Indians at Brantford, where for several generations they have enjoyed tutelage, and Indians in those far northern parts of Saskatchewan or British Columbia where they do not enjoy the same advantages. I wish to point out, however, that if revenues aTe to be derived from these lands, or the minerals contained in them, those revenues ought to be used for the benefit of the Indians. I would insist further that the charges made for the leases
[Mr. Crerar.J
issued should be sufficiently great to protect the interests of the Indians. I believe it is true that the Indians have a claim on these lands. It will be difficult for us in the next generation or two to put the Indians on a par with the white people who have had the advantage of several generations of development along modern lines. Eor these reasons I urge we should not have to make contributions from the general fund to help the Indians when on a great many of these Indian lands there are resources sufficient to take care of the re-education of the Indians.


Mr. BRADETTE:: By what standard will the department be guided in deciding that which is or is not a mineral area. I have in mind some difficulties which are being and have for some years been experienced by the province of Ontario. I have also in mind the fact that under the pretence of staking some mining claims, some people took over some of those closed lands. I have in mind the further fact that those lands were covered with valuable timber.
The minister and his department will readily realize the danger they may be in if they are not very careful in setting out a line of demarcation. I know his department has studied the matter from many angles; but I would point out that they would gain much by studying the experience of the authorities in Ontario responsible for the mines who, even at the present time, are having great difficulty. On these lands in certain reserves are found large quantities of pine and spruce, lands which appear very valuable to some big interests-and I use the term " big interests" open-mindedly. Those interests have taken over lands supposedly for purposes of mining, and have robbed them of their timber.
I do not know much about the situation in Quebec, although I do know something of the same kind has happened in the northern part of that province. I am familiar with the fact that it has happened several times in northern Ontario, when land which actually belonged to the crown was stripped of valuable timber belonging to the people. I believe the department is doing its utmost to advance the standing of the Indians. The fact remains, however, that in the last thirty years the opening up of northern Ontario has resulted in pushing back the Indians towards James bay and Hudson bay. They have practically all that field to themselves. In the James bay section there is the possibility of doing some farming. I know, however that the minister is fully aware of the possibilities

Indian Act
in connection with fur farming. He knows what has happened in the last twenty-five years in connection with the development of silver foxes and, to a smaller degree, the production of fur bearing animals of lesser importance. Possibly in this category I might mention the weasel and the otter.
May I point to the minister that in the southern tip of James bay there are several islands which could be well adapted to fur farming. I know it is well known to hon. members in the committee that the majority of Indians living in that section of the country are not prosperous, for the reason I pointed out a few moments ago, namely that the white population has settled the lands and pushed back the Indians. They have been thrown back to the water fringe, and are being held there.
Perhaps the department has already done something; 'but if it has not, I would urge that the islands I have mentioned are well adapted to fur farming, and offer a wonderful opportunity for the Indians. Possibly some experiments could be conducted in order to ascertain whether or not fur farming could be carried on profitably at that point. In my opening observations I asked what yardstick would be used in deciding that which is or is not a mineral area.


Thomas Alexander Crerar: Before a mine is discovered, prospecting has to be done. If someone obtains the right to prospect for minerals on an Indian reserve, he may find evidence of mineral deposits there. He then asks for the right to diamond drill it, or to sink a shaft, and, if he finds a mineral, to develop it. That is all provided for in the arrangements that are made with him before he starts operations at aJl. My hon. friend mentioned the matter of timber on the reserve which might be used for mining purposes. I cannot imagine anyone asking for the right to cut a few hundred thousand feet of timber on a reserve for mining purposes unless he had a use for the timber.


Joseph-Arthur Bradette: I meant in the mining claims.


Thomas Alexander Crerar: Well, the timber would be disposed of separately from the right to prospect. In any event this is all subject to the consent of the Indians.


James Shaver Woodsworth: How is that consent obtained? What is the procedure?


Thomas Alexander Crerar: The procedure is provided for in the Indian Act. It is by a meeting of the band called for the purpose. The matter is placed before them and they vote upon it
in the regular way. The procedure by which the consent of the Indian is secured for the disposal of grazing leases or hay claims or pulpwood or timber is set out very clearly in the Indian Act and the regulations that deal with the matter under the provisions of the act. There have been no cases within my knowledge where there has been complaint regarding the disposition of these resources, though there may be instances of which I am not aware.


Henry Herbert Stevens: I fully appreciate the difficulty of passing regulations that will adequately control the situation as it has been up to the present, and that difficulty will be greatly extended in connection with the proposals of this resolution regarding mining and so on. One of the weaknesses-and I think it is a very grave one-of the present regulations is exactly that to which the minister has now referred. A band of Indians is called together by the leader and then, under the supervision or advice and general direction of the Indian agent, a vote is taken. I am not reflecting unduly on the Indian when I say that very few Indians in these bands, particularly in the more remote districts, are competent to determine what possible future merit there may be in the alleged mineral resources on their property. I think it is something that is entirely beyond their power of comprehension except in rare cases, and even in the more simple processes such as a lease for grazing purposes, and so on, the Indian is very often singularly improvident in his decisions. He is by nature a person who likes to see something by way of money coming in to the band and is prone to surrender almost any right for some immediate and visible gain; and therefore, frankly, this proposal rather disturbs me. There is no doubt that there must be definite and serious government supervision, and by that I do not mean the ordinary supervision under the Indian Act as it exists at present. I mean that the government must act in the capacity of guardian, exercising that power and right in an extremely careful way.


Thomas Alexander Crerar: That will be done.


Henry Herbert Stevens: I understand that the question has already been asked of the minister, whether he as Superintendent General of Indian Affairs claims on behalf of the Indians the proprietary right to minerals on Indian reserves?


Thomas Alexander Crerar: I asked for a legal opinion from the officers of the crown.


Henry Herbert Stevens: That is a vital point.
Before any decision is made to deal with or lease or handle these mineral rights in any
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way, the government ought to settle that point definitely. I have been under the impression that the mineral rights on Indian reserves were inherent in the land itself. That is not so in crown lands; in most provinces the mineral rights are separate and distinct from the surface rights. In the case of most Indian reserves, however, I understand that the mineral rights-and oil is included-are inherent in the land.


Thomas Alexander Crerar: That is right.


Henry Herbert Stevens: That point ought to be
made very clear, because if after the passage of this measure the courts decided that the mineral rights, once they were disposed of, were in the province, then the Indian would be without any recompense for the surrender of these rights. That is a most important point and one that should be determined. As regards the other point which the minister has already dealt with in part, namely, the method of dealing with these leases, I am not satisfied that these valuable mineral rights, which are daily becoming more and more important, should be surrendered or the lease authorized under the present procedure. I am not in any sense reflecting upon the minister as Superintendent General of Indian Affairs or upon his deputy or upon his staff, because generally speaking the Indian department has been carefully and conscientiously administered. But we are considering an estate in relation to which the government is executor or trustee, and it must be administered with all the care which is recognized as belonging to an executor or a trustee position. It strikes me that before this bill is passed the government ought to survey the present method of surrender, and possibly they may find it desirable to clarify or stiffen up the process which hitherto has been followed in connection with these surrenders. I confess that from my own knowledge I am of the opinion that the procedure is altogether too loose. Generally speaking the matter is more or less trivial, only a few hundred dollars being involved. But when you come to this sort of thing, the present method is not, in my judgment, adequate for the protection of Indian rights. So I would urge that the minister be prepared, when the bill comes down, to give definite assurances to the house of sufficient and adequate safeguarding of the rights of the Indians in these matters.
I also feel that we should not issue leases under the proposed act in the same way as we might issue leases or rights on ordinary crown lands, say in the Northwest Territories. In other words, we should
[Mr. Stevens.)
not treat mineral activities on an Indian reserve in the same way that we treat such activities on crown lands. There should be a definite royalty system adopted which would be of permanent benefit to the Indians. That is not something which can be arrived at hurriedly without very careful thought. I am not prepared at the moment to offer any suggestions as to the level at which such royalties should be fixed. But they should be adequate and perpetual royalties where valuable mineral deposits are developed, bringing permanent revenue to the Indian band affected. In the southwestern United States there have been some remarkable fortunes realized by Indians through the development of oil reserves on their lands. Something similar might very well develop in some of the northern sections of our country, or indeed in the older provinces where minerals are now being discovered in connection with Indian lands. The point is that the return to the Indians ought to be safeguarded with just as great care as if we were administering an estate in the ordinary sense as trustees or executors.


James Samuel Taylor: In view of what has just been said, and bearing in mind that all sub-surface resources are wasting, what has the minister or the government in mind about the justice that should be meted out to the Indians as these resources are taken from the property?


Thomas Alexander Crerar: If I may deal first with the observations of the hon. member for Kootenay East (Mr. Stevens) I do not think there is any question that the Indians have a right not only to what is on the surface of Indian reserves but to what is under the surface as well, in all the provinces of Canada with the possible exception of Quebec. I think the same thing holds true in Quebec; but there is this feature there, that if a reserve is surrendered it goes back to the province; it does not remain in the control of the federal authority.


Henry Herbert Stevens: Of course the same thing is claimed for British Columbia, in the famous reversionary rights claim.


Mr. NEILL:: Does that apply to the reserves in the former railway belt in British Columbia?


Thomas Alexander Crerar: I cannot say as to that at the moment. The hon. member for Kootenay East also referred to the matter of surrender. The government as well as the Indians have to be a party to the disposal of any property on the reserves. If the Indians vote to dispose of certain hay or pulpwood, or, in this

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case of certain minerals, their consent alone is not sufficient; the consent of the Indian department is also required. That is where the principle of trusteeship comes in. There may have been in the past errors of judgment in the administration of some of these matters relating to Indian reserves; but on the whole, as far as my knowledge goes, there has been a desire throughout successive administrations to recognize the principle of trusteeship. While at times perhaps what might be called poor bargains were made, this was an error in judgment, not a calculated thing. The only way in which any return can be secured for the sub-surface rights to minerals that exist in these reserves is by providing some machinery to deal with it, and I cannot suggest anything better than what is contained in the provisions of the Indian Act relating to the surface assets, which has stood the test of time. We may say, "We will have nothing to do with it; we will not permit prospecting for oil or minerals; we will leave them dormant in the bowels of the earth." But that does not do any good to the Indians who own the reserve. The problem is to find an intelligent method of providing for development, which will adequately protect the interests of the Indians. I would say that is certainly the aim of the present proposals. This simplifies the procedure to some extent. To the disposal of minerals it applies the same provisions which now apply to the disposal of the surface assets I mentioned, such as timber or hay.


Henry Herbert Stevens: The purpose of this
legislation is to enable the governor in council to make regulations empowering the superintendent general to issue leases of land deemed to contain minerals. The point I am trying to emphasize is that it seems to be implied in the resolution that all that will be done is that an application will be made to lease a large area for the purpose of prospecting for minerals, and, to use the language of the resolution, " to mine and take away the same." If a lease is given, it might be at a certain annual rental. But before any minerals are actually proven to exist certain work must be done, and a lease that would be given before such work was undertaken would probably be of a kind that would not protect the interests of the Indians in case a very valuable property should be developed. So I emphasize the desirability
of adding to the terms of the lease the principle of royalty. I can easily visualize some large corporation or group securing a lease and getting a surrender from the Indians, who might think, "Well, there is nothing much there anyway," and the lease might be given on easy terms. Subsequently a Sullivan mine or some other very valuable property is found. The Indians have tied themselves up by a lease, without the royalty feature apparently being contemplated. My suggestion is that, coupled with the power to lease should be a concurrent obligation to safeguard the rights of the Indians by provision for payment of a royalty in case minerals are found to exist.


Mr. STIRLING:: The point has now been raised which all the way through has struck me as a curious one. It appears to me that the cart is before the horse in the first part of this resolution. I should have thought that some sort of prospecting would have been done before a lease would be considered, because until prospecting has been done I do not see how either the Indians themselves or possible lessees can be expected to know what areas they want to lease. Would the minister tell the committee what is the origin of this resolution? Are there in some parts of Canada reserves on which minerals are thought to exist and concerning which applications have been made to the government to ascertain how they can be developed? It appears to me it is a matter that should be given the gravest consideration by the government, because such implications are involved. I see in this a small edition of what happened in South Africa in the nineties. Great Britain was the suzerain of the Transvaal at that time, and suddenly the government of the Transvaal found on its hands a particularly nasty mess, because gold in rich deposits had been discovered in a certain part of that country. For aught we know, somewhere in Canada to-day, in proximity to existing mining belts, in certain of the reserves now held by the Indians and in trust by the dominion government, there may exist reefs of that richness. Because of that possibility it appears to me the government should give this matter very close consideration indeed before setting its hand to a method of dealing with it.


Alan Webster Neill: I notice the resolution says this is to be done by amendment to the Indian Act. I am not dealing with this particular resolution for the moment, but am
Exchequer Court Act

hanging what I have to say on those words. I should like to suggest to the minister that possibly next year-there would not be time this year-he might consider re-enacting the whole Indian Act. It badly needs it. There is more and more contact between, the white man and the Indian now in connection with such matters as have been mentioned this afternoon, and more and more need for a modern act. My connection with the administration of the act ceased in. 1911, twenty-seven years ago, and at that time it was an obsolete act. To the best of my knowledge it has not been altered to any extent since. Whenever any minister, deputy minister or official took the notion he slammed an amendment into the act regardless of its context or its relation to the other parts of the act. When I was administering the act and somebody was charged before me, if he had a lawyer who proved that the section under which he was charged was wrong or inappropriate I could simply flip over the page and find another section entirely contradictory under which proceedings could be taken.
When the act was drawn up originally I imagine there was no British Columbia, or in any case that the question of British Columbia Indians was not under consideration. Apparently the act was framed having in mind only the conditions on the prairies, and some of the clauses in the act to-day are in direct conflict with some of the provincial laws of British Columbia. Offhand it is rather difficult to say which takes precedence, and this makes trouble for all hands.
So I would suggest to the minister that before another session he might consider carefully whether it would not be advisable to appoint some authority, some lawyer, a small commission or something like that, thoroughly to re-enact the Indian Act from beginning to end,


Thomas Alexander Crerar: As a matter of fact, some consideration has been given the very point raised by the hon. member for Comox-Alberni. In its present form I think the act is open to at least some of the criticism he has just directed against it, and we have been giving some consideration to the question of revamping or redrafting the whole act to make it one coherent piece of legislation so that it will be free from inconsistencies, which it holds to-day. I am glad to have the observations of my hon. friend in connection with that matter.


Grote Stirling: Will the minister say
whether some insistent incident has arisen which has brought forth this legislation?


Thomas Alexander Crerar: No, not in relation to the amendments proposed here, or the one to which my hon. friend particularly referred in regard to mineral rights.
Resolution reported, read the second time and concurred in. Mr. Crerar thereupon moved for leave to introduce Bill No. 138, to amend the Indian Act.
Motion agreed to and bill read the first time.
At six .o'clock the house took recess.
After Recess
The house resumed at eight o'clock. EXCHEQUER COURT ACT



CLAIMS AGAINST THE CROWN ARISING OUT OF NEGLIGENCE OF OFFICERS OR SERVANTS OF THE CROWN

[Stage Direction]
Right Hon. ERNEST LAPOINTE (Minister of Justice) moved the second reading of Bill No. 109, to amend the Exchequer Court Act.
Charles Hazlitt Cahan: Mr. Speaker, I suppose it remains to me to congratulate the right hon. gentleman upon his action in proposing a change, after due reflection, in the terms of the Exchequer Court Act. This amendment was advocated strongly by the right hon. leader of the opposition (Mr. Bennett) and myself during a long debate in May, 1936, which, at least, eliminated any confusion that was in the minds of hon. members on either side of the house, and in which we finally arrived at a concrete suggestion, that an amendment to the effect of that now brought in should be favourably considered. Section 19 of the act existing reads:
The exchequer court shall also have exclusive original jurisdiction to hear and determine the following matters:
(c) Every claim against the crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the crown while acting within the scope of his duties or employment upon any public work.
It is now proposed to eliminate the restriction contained in the words "upon any public work." This bill does not quite cover all the cases of tort. If I remember rightly, it was suggested in the debate to which I referred that the amendment should also cover cases of nuisance; but, with respect to negligence, I think this amendment is all that could be desired at the present time.

National Harbours Board


[Stage Direction]
Motion agreed to, bill read the second time, and the house went into committee thereon, Mr. Sanderson in the chair.
On section 1-Exclusive original jurisdiction.
Ernest Lapointe: As the hon. member for St. Lawrence-St. George (Mr. Cahan) has said, this amendment was advocated more particularly by himself and the right hon. leader of the opposition (Mr. Bennett). I must say that on various occasions the courts have made a similar suggestion. Chief Justice Duff was pretty emphatic in the Dubois case about the need of eliminating these words and giving more protection to those who suffered injury while working for the government. The words "upon any public work" have been the cause of many denials of claims which otherwise seemed to be fair.


Charles Hazlitt Cahan: And have been the subject of several apparently conflicting decisions.


Ernest Lapointe: Interpretations.


Richard Bedford Bennett: And have brought about the dismissal of many actions.


Ernest Lapointe: There is no doubt that this amendment will increase the number of claims by working men who are injured while employed by the government.


[Stage Direction]
Section agreed to.
Bill reported, read the third time and
passed.


[Stage Direction]
Right Hon. ERNEST LAPOINTE (Minister of Justice) moved the second reading of Bill No. 108, to amend the National Harbours Board Act.
Charles Hazlitt Cahan: Mr. Speaker, to a certain extent
this bill must be considered as ancillary to Bill No. 109, which has just received its third reading. When, the National Harbours Board Act was up for discussion about two years ago I moved the following amendment:
That section 37 of the bill be amended by adding the following subsections:
(3) That the board shall become and be liable to be sued in tort, and that in the case of any such suit in tort, the same procedure shall apply as that which regulates the conduct of similar cases between subjects, including such matters as discovery, the receiving and paying of costs by the board, and the like.
In discussing that amendment and suggesting the postponement of its further consideration, the Minister of Justice (Mr. Lapointe) said as reported at page 3111 of Hansard of May 26, 1936:
Of course, I am going to vote against my hon. friend's amendment, though with some diffidence, because as I have said I believe that the method is an antiquated one and should be changed, but it should be changed all along the line and not only with respect to a particular part of the public property of Canada.
I may say on behalf of my department and, I believe, of the government that before next session we shall prepare a bill which will cover not only the harbours but all public property. We shall try to meet the wishes of my hon. friend, and we believe it would be better to enact general legislation doing away with the petition of right, and doing so with respect to all claims for torts and injuries against the crown in future.
The proposed amendment was lost because of the protest of the right hon. Minister of Justice. At various meetings of the bar association of Canada committees have been appointed to consider the suggestion then made by the Minister of Justice, and from time to time in the most courteous manner possible for me I have asked in the house when the proposed measure would be introduced. This year I was promised that it would be introduced before the close of the present session. I must confess that this amendment carries out, practically to the full extent, the proposition which I first made, but it does not cover all cases of tort.
The amendment provides that any claim against the board may be proceeded with in respect of cases "arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the board while acting within the scope of his employment." That is going a long way, and upon that the minister is to be congratulated. It does not go so far as to meet the views which have been presented to the public at several annual meetings of the bar association by its committee, but large bodies move slowly and great minds always take considerable time for reflection before action.


Ernest Lapointe: That is the way to achieve real progress.


Charles Hazlitt Cahan: I am grateful that we have achieved very considerable progress in the two bills which the right hon. gentleman has introduced. In the discussion on the clauses there are one or two matters to which I should like to draw attention, but I am certainly in favour of the bill so far as it goes, and I
National Harbours Board

only regret that it does not meet fully the promises, or, shall I say, the suggestions made by the right hon. minister two years ago.


[Stage Direction]
Motion agreed to, bill read the second time, and the house went into committee thereon, Mr. Sanderson in the chair.
On section 1-Right of action against board.
Ernest Lapointe: Mr. Chairman, I must tell my hon. friend that my intention had been to have a similar bill apply to the Canadian Radio Broadcasting Corporation because it is another agency of the government that is carrying on what is really a public service; but there is a case actually before the courts which has reached the privy council, and a decision will be given, I suppose, in a short time.


Richard Bedford Bennett: Has it been argued yet?


Ernest Lapointe: Not yet, but leave to appeal has been granted.


Mr BENNETT:: It probably will not be heard until December.


Ernest Lapointe: Maybe, but meanwhile the court of final resort in the province of Quebec has decided that the corporation can be sued.


Richard Bedford Bennett: They must have read Hansard.


Ernest Lapointe: Possibly they have read the remarks of my right hon. friend last year and have been enlightened, as I have been myself.


Richard Bedford Bennett: That is not what I had in mind.


Charles Hazlitt Cahan: They refused to follow the advice of the Department of Justice on which the minister acted two years ago.


Ernest Lapointe: I would not go as far as that. The Department of Justice, of course, had to represent the corporation there and argue on its behalf. However, when the final decision is given, if there is necessity to have a bill like this-and this is more than a suggestion-I shall see to it that one is introduced.
So far as doing away altogether with petitions of right is concerned, I do not promise that. I did express what my personal view was at the time, but it was in an unexpected debate. My hon. friend had moved his amendment, and I spoke without having communicated with the various departments of the government. I promised that I would do this, and that is what I have done. I think the

same difficulty presents itself as presented itself in Great Britain, and which has prevented the enactment of the recommendations of the special committee which sat from 1921 to 1927 and recommended that very thing which my hon. friend would like to have in this country.


Charles Hazlitt Cahan: I do not know that I personally go that far.


Ernest Lapointe: I am glad to hear it. Practically they found it very difficult. It would be too long to put on Hansard the very strong objections coming from every department of the government to permitting actions to be taken indiscriminately against officers of the various departments, and it is pointed out that it would hamper their work to a considerable extent. But we are going the distance this bill goes in regard to the national harbours board, and if eventually the same thing is necessary with regard to the broadcasting corporation or with regard to any agency of the government that is really doing the same work that private corporations are doing-


Charles Hazlitt Cahan: We shall regard it as a precedent upon which we may build in the future.


Ernest Lapointe: I am willing that this should be considered as a precedent.


Richard Bedford Bennett: Mr. Chairman, I think we have already established a precedent in a small way in connection with small claims against the old Intercolonial railway.


Ernest Lapointe: Up to $500.


Richard Bedford Bennett: Yes. It will be recalled in connection with the larger question of petitions of right that the commission which dealt with it did not propose to permit actions to be brought in all cases, and the reason the commission was appointed was to determine where the line of demarcation should be set-between cases where no petition of right should be allowed, and cases where the right of action should accrue as against a subject. It was to determine where the line should be drawn that caused the long drawn out taking of evidence and the consideration of it by the distinguished law lord who died about two years ago.
I was going to suggest that possibly the minister might consider the advisability of amending the tenth line and using exactly the same words as are used in the Exchequer Court Act. My own observation has been that it is desirable, when you are dealing with the same matter, to use exactly the same

Excise Act
words; for then you have the decisions of the court always applicable to cases that may arise under either act. In the Exchequer Court Act we use the words, " while acting within the scope of his duties or employment," and it might be well if we used exactly the same words here, so that if there is a decision under the exchequer court section it would be equally applicable and binding under this statute. As I say, my own experience has taught me that it is desirable to use exactly the same language, if you can, when dealing with the same subject matter, so that the decisions are equally binding. It would only be necessary to insert in the twelfth line, after the word " his," the words " duties or for by turning to Bill No. 109 the minister will observe that those are the exact words used there.


Ernest Lapointe: I have
no objection to the addition of the words "duties or" before the word "employment" in the twelfth line.


Charles Avery Dunning: I move accordingly.


[Stage Direction]
Amendment agreed to.
Charles Hazlitt Cahan: If that amendment is accepted, then may I suggest a further change in the same section. In the ninth line I find the words "arising out of any death." I would suggest with all due deference that the words "any claim" should be inserted before the word "arising," so that the section would read:
Subject as hereinafter provided any claim against the board arising out of any contract entered into in respect of its undertaking or any claim arising out of any death.


Ernest Lapointe: I have
no objection to the change.


Charles Avery Dunning: I move accordingly.


[Stage Direction]
Amendment agreed to.
Charles Hazlitt Cahan: In line twenty-five provision is made for the service of process. As it now stands it reads:
In any such action, suit or other proceeding process may be served upon a member of the board or upon any port manager or officer or-
And so on. I suggest that this last word "or" be stricken out and that the words "of the board or upon any" be inserted, so that it would read:
-process may be served upon a member of the board or upon any port manager or officer of the board or upon any other person duly authorized by the board to accept such service-
And so on.


Ernest Lapointe: I have
no objection.


Charles Avery Dunning: I move accordingly.


[Stage Direction]
Amendment agreed to.
Richard Bedford Bennett: In view of the fact
the minister has made the declaration he has, indicating the intention to introduce legislation to enable the broadcasting corporation to be sued by private individuals, . I wish to ask the minister why an appeal was taken at all from a judgment of the court of last resort in Quebec which decided they could be sued, and then further legislation would not be necessary.


Ernest Lapointe: There
is the matter of costs, and other things, to be considered.
Section as amended agreed to.
Bill reported, read the third time and passed.



EXCISE ACT AMENDMENT


[Stage Direction]
Hon. J. L. ILSLEY (Minister of National Revenue) moved the second reading of Bill No. 123, to amend the Excise Act.
Motion agreed to, bill read the second time and the house went into committee thereon, Mr. Sanderson in the chair.
Section 1 agreed to.
On section 2-Packages warehoused to be marked; tobacco and cigars excepted.
Richard Bedford Bennett: I suppose manufactured tobacco includes cigars; is that the idea?


Mr. ILSLEY:: Manufactured tobacco includes all manufactured tobacco, except cigars. Apparently cigars do not come within that category, and manufactured tobacco takes in everything else, and chiefly cigarettes.


[Stage Direction]
Section agreed to.
Sections 3 and 4 agreed to.
On section 5-Licence to rectifiers.
Mr. STEWART:: The minister might explain this.


James Lorimer Ilsley: The rectifying of spirits is done solely by licensed distillers, and as there is no probability of the trade or the business of rectifying being carried on by, or licences being issued to, rectifiers alone, this section might just as well be repealed. There are no rectifiers.


Richard Bedford Bennett: Was there not one rectifier
in Nova Scotia?
Excise Act


James Lorimer Ilsley: The last rectifier's licence was issued in Toronto and was abandoned on March 31, 1920, and since that time no licences have been issued.


[Stage Direction]
Section agreed to.
On section 6-Section 132 of the said act is repealed.
James Lorimer Ilsley: There is no purpose in providing for a licence for importing and manufacturing stills alone; that is to say, the licence might as well cover not only importing and manufacturing but possessing and using, and so instead of having two sets of sections in the act as before, one set relating to importing and manufacturing and the other relating to possessing and using, under one section the licence will be issued to authorize the licensee to import, manufacture, possess and use.


Richard Bedford Bennett: Is the language of the other section broad enough to ensure the licence covering all these various activities?


James Lorimer Ilsley: As amended, yes. This bill provides for the amendment.


[Stage Direction]
Section agreed to.
On section 7-Application for licence for chemical still.
Hugh Alexander Stewart: Is this the section that contains the amendment?


James Lorimer Ilsley: This is part of it. This, taken with the next section, covers the situation. Section 133 deals with the application for a licence, and section 134 deals with the conditions of the licence.


[Stage Direction]
Section agreed to.
Section S agreed to.
On section 9-Distilling and rectifying licence fee, $250.
James Lorimer Ilsley: This takes out of the section the words relating to rectifying.


[Stage Direction]
Section agreed to.
On section 10-Licence fee for chemical still.
James Lorimer Ilsley: This section carries out still further the scheme of combining importing and manufacturing with possessing and using.


[Stage Direction]
Section agreed to.
Sections 11 and 12 agreed to.
On section 13-Abatement of spirits rewarehoused.
James Lorimer Ilsley: This section is perhaps a little more important; it effects some change

in the law. The effect of subparagraph (iii) of section 13 is simply to permit warehousing to go on for more than fifteen years. Subparagraph (iii) is the same as subparagraph
(iii)	on the opposite page of the bill with the exception of the words underlined. That authorizes the distillers to warehouse for more than fifteen years, without adjusting the legal abatement. There has been no provision for that up to the present, but I do not think there could be any possible objection to it. The next subparagraphs, (iv) and (v) call for a little attention. Subparagraph
(iv)	relates to distillery stock which is not warehoused stock, and it permits an abatement allowance of two per cent. That is not a new abatement, but it is computed on a different principle from the abatement now allowed.


Richard Bedford Bennett: It was not statutory
before.	.


James Lorimer Ilsley: No.


Richard Bedford Bennett: It was done by regulation.


James Lorimer Ilsley: Yes. There was nothing statutory before, nor was there anything scientific about it; there was nothing definite about it. The rather curious practice in vogue was this, that no matter at what temperature the spirits were tested they were read as of 40 degrees Fahrenheit, and the distiller was required to account only for the gallonage which there would be if the spirits were at 40 degrees Fahrenheit. That would be a quantity somewhat less than the actual quantity. The difference was the abatement allowance which the distiller had. The standard temperature at which spirits are warehoused is 62 degrees Fahrenheit; it is not the temperature at which they are distilled, which is considerably higher than that, and it is certainly not a low temperature such as 40 degrees Fahrenheit. It is proposed now to bring spirits to 62 degrees Fahrenheit, which is the standard temperature, and then make a flat abatement allowance not exceeding two per cent. When this section refers to two per cent it means not exceeding two per cent.


Richard Bedford Bennett: It says, "not exceeding two per cent." Why should we not say exactly that instead of leaving it open to argument?


James Lorimer Ilsley: The distiller is obliged to account for all the spirits he has and that may be only one per cent less than he started with. But if he comes along and has a deficiency of over two per cent, he is allowed

Excise Act
only two per cent. The reason for the allowance is to put a check upon any dishonesty or inefficiency.


Richard Bedford Bennett: Or dilution.


James Lorimer Ilsley: Yes. That would be either inefficiency or dishonesty or both.


Hugh Alexander Stewart: What is the effect of this? Is it to permit an increase in the allowance as it has existed in the past?


James Lorimer Ilsley: We had a hard time determining that question. It is disputed. In some cases the distillers have asked for a three per cent maximum instead of two per cent, and I really cannot answer the question. For gin there is no doubt that the present deficiency is greater than this, while for whisky it would appear to be somewhat less so far as I can ascertain.


Richard Bedford Bennett: Computed on the 40 degrees Fahrenheit basis.


James Lorimer Ilsley: Yes.


Hugh Alexander Stewart: I remember a debate
that took place some years ago in this house on the subject matter of this amendment. It was pointed out by a gentleman who was quite familiar with what he was speaking about that the custom had grown up of storing distilled spirits in enamel tanks and other containers in which there was practically no evaporation or absorption, and he contended that, under these circumstances, they were getting allowances which, under the former practice of storing in wood, would have been fair and reasonable but, which under the new practice, were quite the opposite. The minister, I am sure, has considered that. What is the answer?


James Lorimer Ilsley: The problem mentioned by my hon. friend would, I think, come under subparagraph V rather than subparagraph IV. It would be a loss in warehousing rather than in what is called distillery stock. What we are talking about now is an evaporation or loss in what is called distillery stock, that is before the spirits are warehoused.


Richard Bedford Bennett: Spirits in the vats, not warehoused.


James Lorimer Ilsley: I think the hon. member is talking about warehoused stock.


Richard Bedford Bennett: The warehoused stock is dealt with in the next subparagraph. Subparagraph IV deals with the distillery stock in vats.


James Lorimer Ilsley: Section 142 of the Excise Act provides for a difference in the abatement allowances as between wooden and
metal containers. In the case put by my hon. friend a large abatement allowance does not mean that the distillers necessarily make any more money; they have just a little more leeway for inefficiency or something else. The distiller is obliged to account, not for the original amount of stock less the allowance, but for all he has when the time comes to account; but if that is more than a certain percentage less than he started with he is allowed only that particular percentage.
The next subparagraph deals with warehoused stock, that is stock which is warehoused in wooden barrels. This subparagraph provides for an abatement allowance not exceeding three per cent of the quantity originally warehoused in wooden barrels. It provides that this abatement may be allowed for wood absorption. The department has been doing that for a year or two now. There was nothing corresponding with this particular allowance. This takes the place of the rinsing or "grogging" which they were carrying on. They had a practice of taking the barrels which had been drained of the spirits and running live steam in, which had the effect of extracting from the wood some spirits that they otherwise would not have got. We were obliged to credit that to them. In Great Britain no such practice is permitted, and in 1936 the department passed a regulation forbidding that practice. This three per cent allowance is to compensate the distillers for doing away with that practice.


Richard Bedford Bennett: The truth is that the liquor is measured out of the vats into barrels, and they become responsible for x gallons. Then, when it is withdrawn, they have a margin of three per cent to play with.


James Lorimer Ilsley: Right; to make up for wood absorption. There are other abatements in addition to that.


[Stage Direction]
Section agreed to.
On section 14-Least quantity to be warehoused or ex-warehoused.
Richard Bedford Bennett: Why decrease it from 100 to 30 gallons?


James Lorimer Ilsley: They are allowed now to put in as little as they take out; to warehouse as small a quantity as they are allowed to ex-warehouse. There is no particular reason why they should be obliged to put in 100 gallons if they are allowed to take out 30.


[Stage Direction]
Section agreed to.
Excise Act
[Stage Direction]
On section 15-When spirits may be entered for consumption.
James Lorimer Ilsley: Spirits, except gin, cannot 'be taken out unless they have been in for two years. In practice there has always been an exception made in favour of spirits manufactured from native wine, when these spirits are used for fortification purposes by registered wine manufacturers. This simply makes statutory the practice which has heretofore existed.


Richard Bedford Bennett: I am familiar with the discussion that took place at the time it was done, and the differences of opinion expressed. There was one group who felt that it should not be done; that the spirits used for fortification purposes should be at least two years old. But the exception was in fact made by regulation, and is now being made statutory. I suppose it is a sound exercise of the power of parliament to do it, but I know there was a sharp conflict of opinion at the time.


James Lorimer Ilsley: I am informed that it is satisfactory to the trade and has been carried on for seven or eight years now.


Richard Bedford Bennett: Yes, ever since they started to use the fortification after the inability to use certain types of sugar.


[Stage Direction]
Item agreed to.
On section 16-Second convictions under other provisions of same sections deemed subsequent offence.
James Lorimer Ilsley: There are two sections of the act which enumerate certain offences against the act, sections 164 and 169. Last year another section, 169B was passed, which does not add more offences, but has to do, if I remember correctly, with charges of having in possession. As the law stands, apparently, if an offender is convicted of one of the offences enumerated in these two sections, and then later is convicted of another offence, he can be punished on that second occasion only as for a first offence, although he is to all intents and purposes a second offender. The effect of this section is to make him punishable as a second offender even though it is a different offence; but it must be one of the offences enumerated in these two sections, 164 and 169. These sections are aimed at bootlegging.


[Stage Direction]
Section agreed to.
On section 17-Amount of bond.
Richard Bedford Bennett: Why raise it from $2,000 to $5,000?


James Lorimer Ilsley: The increase in the duty on malt to six cents doubles the amount there involved, and the bond was not increased at the time the rate was raised.


Richard Bedford Bennett: But having regard to the minister's well known economic views, surely he does not want to raise the bond from $2,000 to $5,000 in contemplation of the possibility of continuing the duty of six cents a pound on malt. It would be a monstrous sort of thing, to suggest that he would even think of it! Why should he raise the amount of the bond now merely because in a fit of economic unreasonableness parliament imposed a duty on malt of six cents a pound instead of, say, two cents, which would be in accordance with the tenets of Adam Smith and the free traders, or possibly only one cent?


James Lorimer Ilsley: That is one kind of freedom of trade, but not the kind we usually talk about.


[Stage Direction]
Section agreed to.
On section 18-Beer casks, barrels and bottles to be stamped with name and address of brewer or bottler, and other prescribed information.
Richard Bedford Bennett: Perhaps we have gone a long distance the other way now, Mr. Chairman. As the statute was worded originally, the label had to show in conspicuous type the name and address of the brewer or bottler of the said beer and also the percentage of proof spirits contained therein. Now we are going to leave the department to determine what information shall be given on the label. Is it not rather asking for departmental regulation of something which, in view of the policy indicated by previous sections-that is, making provision by statute for what heretofore has been a matter of regulation-should be dealt with in the same way? I suggest this is a movement in the wrong direction. So far the whole theory of the minister has been that it is desirable to have in the statute what we used to have in the regulations. Now we are going to reverse that and put in the regulations provision for a label that hitherto was provided for by statute. The minister will remember that there has been a good deal of discussion about this very matter. This is rather substituting for the will of parliament the will of the departmental official or officials. The section now reads:
-there shall at all times be securely fixed by the brewer or bottler of the said beer a label showing in conspicuous type the name and address of the brewer or bottler of the said beer and showing also the percentage of proof spirits contained therein.

Excise Act
Now we are going to have a label bearing such information as may be prescribed by departmental regulation. That is an entire departure from the general policy of the administration and is substituting for the will of parliament regulations made by individuals. It does not follow that you are going to have the name of the brewer on the bottle, whereas by statute we now have that. I suggest that if you are going to do this, you should leave in the words "showing in conspicuous type the name and address of the brewer or bottler of the said beer." Then you can add "such other information as may be prescribed by departmental regulations." I make that suggestion to the minister only because I think it will be admitted that there has been a great deal of difficulty about the names of the products of the breweries. Some of them have held that their labels have been copied, and matters of that sort. If we leave it as I have suggested, the label will show the name and address of the brewer or bottler of the beer and such other information as may be prescribed by departmental regulation.


James Lorimer Ilsley: I shall be very glad to accept that suggestion, and personally I am inclined to agree with it. There is no doubt that any regulation made would provide for the name and address-


Richard Bedford Bennett: But it might not.


James Lorimer Ilsley: That is possible. I shall ask the Minister of Finance to move the amendment.


Richard Bedford Bennett: After the word "label"
in line 28 there should be inserted the words "showing in conspicuous type the name and address of the brewer or bottler of the said beer and such other," which will come in before the words "information as may be prescribed by departmental regulations."


The CHAIRMAN:: The section as amended will read:

and on every bottle containing beer, there shall at all times be securely affixed by the brewer or bottler of the said beer a label showing in conspicuous type the name and address of the brewer or bottler of the said beer and such other information as may be prescribed by departmental regulations.


Charles Avery Dunning: I move the amendment.


[Stage Direction]
Amendment agreed to.
Section as amended agreed to.
On section 19-Subsection 2 of section 242 of the said act is repealed.
James Lorimer Ilsley: The only reason for this
subsection is that now the duties on raw leaf
tobacco are customs duties, not excise duties. Formerly the duties on imported raw leaf tobacco were called excise duties, but that is no longer the case. Therefore the sections relating to the duties on raw leaf tobacco should come out of the Excise Act, and a number of the sections following will take them out. The change was made in 1936.


[Stage Direction]
Section agreed to.
On section 20-Packages of tobacco and cigars to be marked.
James Lorimer Ilsley: This section is to provide
for a changed condition in the tobacco factories. Cigars are put up in cartons now, in many cases, rather than in wooden boxes. Under the old section information had to be stamped, burned or impressed into the box or indented in a legible and durable manner, and so on. This section provides that the information may be printed or stamped or burned or impressed on the package in such way as may be provided by departmental regulations.


Hugh Alexander Stewart: The main difference, as
I see it, is that the number of cigars in a box must now be stamped on the box, whereas under the old section such was not the case. I assume this is to meet the case where a dummy cigar is put in to make up a required number because of an increase in price, or for duty purposes or something of that kind.


Richard Bedford Bennett: I must say that I do
not think the minister should ask us to adopt this section. Having asked us to provide by statute what has heretofore been dealt with by regulation, and in my judgment properly so, he now asks us to abandon that principle and provide that the department shall have complete control of what is to be placed upon cigar boxes. This is an exact negation of the law that has been in force all these years. I believe that law has worked very satisfactorily. It has been provided that each package shall bear the registered number of the manufactory where made, the number of the excise division in which the manufactory is situated and the number of cigars contained in each box. I think that statutory provision has been of the greatest possible value. There is another reason. When you do it by regulation you are relying upon a knowledge of the law being possessed by everybody in the sense that they should possess it. By so doing, we have departed from the usual salutary rule that in connection with any statutory law there is an opportunity afforded to every man to know what the law is. If it is a departmental

Excise Act

regulation, he may never see it and he may unconsciously find himself violating a law which he has no desire or intention to violate. This is a negation of the theory upon which the minister has proceeded until the last two sections. I suggest that he say that all packages containing manufactured tobacco shall have stamped, burned or impressed into them or indented, the very words that appear here, namely, "the registered number of the manufactory where made." He should make no change in the law. The law now says that a positive and essential thing is to be done under departmental supervision or regulation. I think that should continue. To say that the department shall become the law making body is, I suggest, at variance with the minister's well known principles, however highly it may be considered for bureaucratic purposes by those who administer the act. The effect of that upon some officials is at once apparent.


James Lorimer Ilsley: I just want to point out
that there is a great difference between the subject matter of the previous section and the subject matter of this one. The matter of abatement allowances is an exceedingly important one and should be statutory in character. Prima facie a distillery should account for the amount of spirits which come into its hands. If abatements are to be allowed, that matter should not be left to departmental regulations. But here we are dealing with minor matters, giving the public-some information about-


Richard Bedford Bennett: The number of cigars
in a box, for instance. That is most important.
Mr. ILSLEY':	What motive could any
officer have for suppressing information like that? The officers will do the sensible thing in these matters.


Richard Bedford Bennett: It puts the officers just where they should not be placed. That is the reason why parliament did it. It did it for one definite and positive reason. You do not want to place the officials in the position where they have to determine these things. They may be subject to surroundings and conditions to which they should not be made subject. I have seen enough in the practice of my profession to know "how oft the sight of means to do ill deeds, makes ill deeds done." When an officer is in a position where he must say, "Mr. Jones, I cannot do this; parliament has done so and so," you realize how desirable it is that this should thus be done. But this is to be governed by regulation. I think that is wrong. I
[Mr. Bennett.J
know what my distinguished and learned friend the minister would say if conditions were reversed to-night and he were here and I were there.
Mr. ILSLEY': I think I would raise the question on something more important than the number of cigars in a box.


Richard Bedford Bennett: My own experience, when I was on the other side, was that the measure of fuss made was in direct ratio to the
insignificance of the point raised.


Hugh Alexander Stewart: What is the object in
making this change? What is the difficulty? What is wrong with the present working of the law?


James Lorimer Ilsley: The section had to be
changed to provide for printing instead of stamping and burning and so on, and the section has been widened so that if it is necessary to provide for any particular information on a container, that can be done by order in council. It is made more elastic. This is a small administrative matter.


Richard Bedford Bennett: Oh, no, it is not. Let me say something more to the minister since he has mentioned it. The history of this is rather interesting. I wonder if the minister realizes why it was stipulated that these words should be burned in? The story is very interesting. It was to prevent the putting on of faked labels. There is nothing more interesting than the history of the development of our institutions. There are many things on our statute books that may appear to be silly, but there are excellent reasons why they were put there. The burning of information upon the ends of beer barrels and upon cigar boxes was to prevent the very thing that during prohibition days in the United States became so prevalent. Labels were manufactured by beautiful steel engraving processes, sometimes abroad, and were placed upon bottles of liquor that had no real connection with the name upon the label. I happen to know that because I had to deal professionally with the matter. I fancy the minister remembers something of what happened.
We are now to do something we have never done before. We are substituting printing. I wonder if the minister has taken the trouble to look at the excise stamps that are put upon these packages? I took the trouble not long since to look at a wooden cigar box. I wondered at the time why so much particularity and pains had been taken to stamp the name of the manufactory upon the box. This box also contained an: excellently prepared stamp, and then I found certain words

Excise Act
had been burned in. I saw at once the reason. You will find that all this legislation
which has to do with matters of this kind is to make it more difficult to produce a bad article and palm it off as a good one. I really do not understand why this change is being made. A year ago, in connection with the Customs Act, I pointed out certain words in the statute and the minister told me that those words had been there a long time and had proved satisfactory. If he will turn up Hansard, he will find that was what he said. Here we have the same thing. This statute has been found eminently satisfactory. There has been no complaint. However, somebody has to show some justification for living and so he goes to work and says to the minister, "We are going to change this." It is said that you cannot burn this information into the cardboard cartons now being used. Of course you can; it is just a matter of placing the hot iron against the carton and searing it in.
It seems to me that in this great struggle for modernity we perhaps lose sight of the value of what to some of our bureaucratic friends may seem to be antique customs. It is well to remember that there is a good reason for all of these things. Long before my young friend was born, this was being done and it was found to be entirely satisfactory. After all, he should realize that the old rule is a sound rule. Unless the continuance of a rule will work a hardship, it is not a bad thing to cling to it. If he wants authority upon that, I have no doubt he will find it in the Book of Ecclesiastes. I do not remember the exact chapter, but the authority is very clear and it is powerfully put.
Section agreed to on division.
On section 21-Completion of manufacture of tobacco and cigars.


Richard Bedford Bennett: Reverting to section 20 for a moment, Mr. Chairman, did anyone ask for an amendment such as that?


James Lorimer Ilsley: No.


Richard Bedford Bennett: I thought it was born of the imagination.


James Lorimer Ilsley: I thought my hon. friend
was referring to section 21. Section 20 has been carried.


[Stage Direction]
Section agreed to.
Section 22 agreed to.
On section 23-Deficiency between raw material and products of manufactory.
James Lorimer Ilsley: The present deficiency allowance is six per cent in these tobacco factories,
and the experience of the department indicates that this allowance is too great. The amendment enables the allowance to be reduced by order in council, but the statutory limit of six per cent still remains. In addition, cigars are now for the first time brought within the provisions of the section.


Richard Bedford Bennett: I think that true Liberalism must find great difficulties in giving a reason for this amendment, having regard to what used to be said in days gone by. We are merely substituting the governor in council for parliament; that is all.


James Lorimer Ilsley: No; the statutory limit remains.	[DOT]


Richard Bedford Bennett: It may be so carefully and wonderfully made that I cannot read it properly, but the section as I read it says "may be established by the governor in council." Those are new words.


James Lorimer Ilsley: But it says, "but shall not at any time exceed six per centum."


Richard Bedford Bennett: Certainly. In other
words, you are doing something by order in council, which must be a very great strain-


Ernest Lapointe: It is.


Richard Bedford Bennett: I thought so, and so
very great a strain that I shall content myself with drawing attention to it.


[Stage Direction]
Section agreed to.
Section 24 agreed to.
On section 25-Tobacco stems and sweepings, etc.
Richard Bedford Bennett: They used to destroy them, but now I see we are going to dispose of them.


James Lorimer Ilsley: Any reason why we should
not?


Richard Bedford Bennett: I was going to ask, Is there any good reason why we should not destroy them?


James Lorimer Ilsley: It is a waste. They can be
used for the making of insecticides.


Ernest Lapointe: That is Liberal doctrine.


Richard Bedford Bennett: Quite.


[Stage Direction]
Section agreed to.
On section 26-Determining payment of duties.
Richard Bedford Bennett: That is in accordance
with the provisions of the previous section in connection with sweating tobacco?


James Lorimer Ilsley: Yes.
Excise Act


Richard Bedford Bennett: It is left now to the
imagination and good will of the officials.


[Stage Direction]
Section agreed to.
Sections 27 and 28 agreed to.
On section 29-Warehousing and ex-warehousing of tobacco and cigars.
James Lorimer Ilsley: This amendment just takes out the reference to raw leaf tobacco.


[Stage Direction]
Section agreed to.
Section 30 agreed to.
On section 31-Sections 275 to 283, both inclusive, and 292 to 294, both inclusive, repealed.
Hugh Alexander Stewart: Would the minister be good enough to explain just why this section is here? I have not read the act.


James Lorimer Ilsley: All these sections which are being repealed relate to foreign raw leaf tobacco, which is not now to be dealt with by the Excise Act at all because it is dutiable under the customs tariff and is subject to the provisions of the Customs Act. Formerly the Excise Act governed it, but now the Customs Act governs it.


Hugh Alexander Stewart: So these sections are really a duplication now?


James Lorimer Ilsley: Yes.


[Stage Direction]
Section agreed to.
On section 32.
Hugh Alexander Stewart: The note on section 32 says:
The paragraph designation "(a)" as it presently appears in subsection 1 of section 296 is improperly placed, and the amendment simply moves it to its proper place in the subsection.
The amendment simply moves it to its proper place?


James Lorimer Ilsley: Yes; there is no change in the wording.


[Stage Direction]
Section agreed to.
On section 33-Unlawful removal of tobacco or cigars.
James Lorimer Ilsley: This makes it an offence to permit or allow the removal of tobacco or cigars.


Hugh Alexander Stewart: What is the difference in the penalty?


James Lorimer Ilsley: It is not to be mandatory in the future, but there is to be an option of fine or imprisonment. In the past both fine and imprisonment were mandatory.


Hugh Alexander Stewart: But "and" is read "or" sometimes.
[Mr. Ilsley.l


James Lorimer Ilsley: It could not be in this case. It is either a fine or imprisonment. In the past it has been both fine and imprisonment. This is more lenient.


[Stage Direction]
Section agreed to.
On section 34-Coming into force of sections 20 to 31.
Hugh Alexander Stewart: Is this just to get it into the fiscal year? I see the note says:
It is not proposed to bring the sections referred to into operation until the commencement of the fiscal year 1939-1940.


James Lorimer Ilsley: The reason for delaying the coming into force of the section is because the regulations are being worked out. A great deal of work on the regulations is necessary, and has not been completed. Probably it will not be fully completed until next spring. It is for that reason it is asked that the sections shall not become effective until April 1, 1939.


Hugh Alexander Stewart: I suppose any of the old labels or materials complying with the existing act could be used up in that period of time.


James Lorimer Ilsley: That would be possible, yes; but it is not the purpose of the delay. I suppose it would be necessary to make some such provision in the regulations, and the delay enables that to be done.


[Stage Direction]
Section agreed to.
Bill reported.

[Stage Direction]
Hon. CHARLES A. DUNNING (Minister of Finance) moved that the house go into committee of supply.
James Shaver Woodsworth: Mr. Speaker, before you leave the chair I should like to call the attention of the house to a. serious situation arising out of the enactment of the so-called padlock law, properly entitled, "An act to protect the province against communistic propaganda."
Shortly after the bill was passed last year by the Quebec legislature-


Ernest Lapointe: Mr. Speaker, if the hon. member would permit me, I should like to call his attention to one or two points. I do not know whether a point of order should be raised, but I think a discussion of this matter is at least of doubtful order at this time.

Validity oj Quebec Statute
The disallowance of provincial legislation is not a matter subject to the parliament of Canada. I mean it is not the parliament of Canada which has to do with the disallowance of provincial acts. That does not come under section 91 of the British North America Act, which covers all that is within the jurisdiction of the parliament of Canada. It comes under a special section, namely section 90, which coupled with section 56 of the British North America Act provides that provincial statutes have to be sent by the lieutenant governor of the province to the Secretary of State, and that the governor in council, if it thinks fit, may within one year disallow this legislation, or allow it to take its proper course. It is an action for the governor in council, and not for the parliament of Canada.
Of course the parliament of Canada may criticize the action of the governor in council. The governor in council is responsible to parliament and when the governor in council has taken action under the constitution its action or lack of action is a proper subject for discussion by parliament. But so long as the delayed time within which legislation has to be considered and passed upon has not expired, and so long as no action has been taken, there is no possible grievance on the part of any member of parliament with regard to the action or inaction of the governor in council, and the discussion would be merely a discussion of a provincial act, which should not take place.
Moreover the Minister of Justice who has to consider such legislation first has to make his recommendation to the governor in council, not to parliament. And may I call the hon. member's attention to this fact:	I
shall not be able to answer anything he says to-night about it. I cannot give my report to him or to the house; my duty is to give the report and make the recommendation to the governor in council. So all the hon. member may say will be in the nature of representations which have been made by various parties with regard to this legislation. Does he not think that interference by the House of Commons in a matter of this kind, one which under the constitution has to be dealt with by the governor in council, is rather exercising a pressure amounting to almost intimidation upon the Minister of Justice; because I shall have to do my duty and deal with the matter as I think it should be dealt with, irrespective of what the hon. member may say to-night.
What I have said is in conformity with the practice. The practice is that when a 61852-214
decision has been reached in connection with a matter of this kind an hon. member may move for the production of papers, and then it is discussed in parliament by way of motion or otherwise. That is the proper time to do so. I would call the hon. member's attention to what Lefroy says at page 32 of his book, Canada's Federal System.
Moreover the dominion House of Commons cannot constitutionally interfere with the operation of provincial acts by passing resolutions urging their disallowance by the Governor General.
Lord Kimberley in a dispatch of June 30, 1873, said:
If such resolution were allowed to have effect, it would amount to a virtual repeal of the section of the British North America Act, 1867, which gives the exclusive right of legislating on these matters to the provincial legislatures.
As I have said, I hesitate to raise a definite point of order, but I do not think this is a proper way of proceeding with a matter of this kind. I would not like to establish a precedent whereby the legislation of provinces may be discussed in the House of Commons before action has been taken on them in the way provided for by the constitution. If it is done with regard to the so-called padlock law, nothing would prevent anyone from on another day raising the question as to why we should not disallow the recent legislation of the Alberta legislature, or that of any other province. This is not the way which the law provides for, and I believe it is establishing a bad principle. As I have said to my hon. friend, if he proceeds with his remarks, I am sorry, but I shall not be able to say a word about it in reply to him. And it is not very pleasant for any man not to have a reply made on a question of this kind.


Richard Bedford Bennett: My right hon. friend the Minister of Justice (Mr. Lapointe) must have overlooked the leading authority on the case. Listening to him, I at once realized that the greatest debate which has ever taken place in this house on the question of disallowance was with respect to the Jesuits' bill. On a motion to go into supply an amendment was moved. I have it beside me; I sent for it while the right hon. gentleman was speaking. It was moved by Mr. O'Brien:
That an address be presented to His Excellency the Governor General, praying him to disallow an act of the province of Quebec intituled: "An act respecting the settlement of the Jesuits' estates;" Debate thereon adjourned.

Validity of Quebec Statute

That will be found at page 56 of the index. My right hon. friend is not concerned about the several adjournments that took place, and therefore I quote the following:
The order of the day being read, for resuming the adjourned debate on the question which was, on Tuesday last proposed, That Mr. Speaker do now leave the chair (for the house again in committee of supply);
And proposed amendment thereto, That all the words after "That" to the end of the question be left out, and the words "it be resolved, That an humble address be presented to His Excellency the Governor General setting forth:
"1. That this house regards the power of disallowing the acts of the legislative assemblies of the provinces, vested in His Excellency in council, as a prerogative essential to the national existence of the dominion.
"2. That this great power, while it should never be wantonly exercised, should be fearlessly used for the protection of the rights of a minority, for the preservation of the fundamental principles of the constitution, and for safeguarding the general interests of the people.
"3. That, in the opinion of this house, the passage by the legislature of the province of Quebec of the act intituled: "An act respecting the settlement of the 'Jesuits' Estates'," is beyond the power of that legislature. Firstly, because it endows from public funds a religious organization, thereby violating the undoubted constitutional principle of the complete separation of church and state, and of the absolute equality of all denominations before the law. Secondly, because it recognizes the usurpation of a right by a foreign authority, namely, His Holiness the Pope of Rome, to claim that his consent was necessary to empower the provincial legislature to dispose of a portion of the public domain, and also, because the act is made to depend upon the will, and the appropriation of the grant thereby made is subject to the control of the same authority. And thirdly, because the endowment of the Society of Jesus, an alien, secret and politico-religious body, the expulsion of which from every Christian community wherein it has had a footing has been rendered necessary by its intolerant and mischievous intermeddling with the functions of civil government, is fraught with danger to the civil and religious liberties of the people of Canada.
"And this house therefore prays, that His Excellency will be graciously pleased to disallow the said act," inserted instead thereof;
And the question on the amendment being again proposed: The house resumed the said adjourned debate.
And the house having continued to sit till after twelve of the clock on Friday morning;
Friday, 29th March, 1889.
And the question being put on the amendment; the house divided: and the names being called for, they were taken down, as follow:
Yeas, 13; nays, 188.
So it passed in the negative;
Then, the main question being put; It was resolved in the affirmative.

Ordered, that Mr. Speaker do now leave the chair.
The house accordingly again resolved itself into the committee of supply.
The amendment was moved on March 26, 1889, and taken up on the next day on the motion to go into supply. It was again adjourned. It was maintained day after day until finally disposed of on March 29. I am speaking only from memory, but I have sent for Hansard of that date. My recollection is that Sir John Thompson on that occasion made that great speech which established his reputation, in answer to Mr. McCarthy; and if I remember rightly, he did not make any point as to the amendment not being in order. He made the great speech of his life on that occasion.


Ernest Lapointe: He had made up his mind against disallowance at the time he spoke.


Richard Bedford Bennett: The question whether
he had made up his mind or not had not been indicated because the motion was that it should be disallowed.


Ernest Lapointe: Yes; but it was because they were still within the delay of one year. But everyone knew that the government refused to disallow.


Richard Bedford Bennett: No. The minister's memory, again, is not playing him fair. The governor general himself referred the matter to the law officers of the crown in England

[DOT] the Attorney General and the Solicitor General of England-and among the letters of Sir John A. Macdonald, which I happened to be reading a few nights ago, I came across that one in which he dealt with a particular phase of the matter, namely, the date when the opinion of the law officers might be expected. It is also within my memory that Sir John Thompson sent him a memorandum with respect to his views upon a certain phase of the question, namely, the reference to the supreme court. The minister will recall that it was later proposed it should be referred to the court for an opinion and that was negatived. At page 842 of the Commons' Debates of March 27, 1889, we find Mr. McCarthy's speech; Sir John Thompson's speech begins at page 862 and continues for several pages, and in the course of it he reviews all the authorities.
Then the matter was debated by other members. My memory is that Mr. Mills of Bothwell made a substantial contribution to the debate. Sir John A. Macdonald was still living, and Mr. Mills commenced his speech by complimenting him upon the skill with

Validity of Quebec Statute
which he had avoided the difficulty which had confronted him. He said, as reported at page 872 of Hansard of that year:
The hon. gentleman finds himself face to face with what may become a dangerous agitation, involving the administration of which he is the head. That agitation was begun by a journal conducted with more than ordinary ability, and characterized by what may be called a spirit of aggressive protestantism; and it has gradually drawn to its side a large portion of the press of the country, and a very great deal of discussion adversely criticizing the conduct of the government has taken place in public meetings at several places in the province of Ontario.
Sir John A. Macdonald was then in the house because he intervened to ask a question with respect to what had occurred. He said, among other things, that the preamble is not part of the bill. So as far as this matter is' concerned, it is merely a discussion by this chamber of something wdthin its right, namely, to express an opinion whether or not the right hon. gentleman should exercise his power if an hon. gentleman does move a motion, as to which he has not yet indicated his intention.
There are two phases of the matter to which Sir John Thompson directed attention. The first was what might be described as the customary view, namely, the question of leaving the matter to the courts, which was subsequently debated at length; and the second, the question of policy, whether or not it was desirable as a matter of policy to deal with it in a certain way. And as a matter of policy the language of the debate makes it abundantly clear that this chamber should at all times have the right by a majority of its members to instruct the government how it should discharge a duty. That has been from time immemorial the right of this chamber, and I fancy will continue to be long after we have gone; the right to say by a majority that this government, or some other government which may be put in its place if the majority so wills, shall discharge its duty in a given way. That is the high function of parliament. When it comes to a question of this kind, which is not a question of law but of policy, the right is clear beyond peradven-ture and has been established by a series of amendments to the motion to go into supply by which instructions have been given from time to time to the government. I will give an illustration at once-the New Zealand treaty. Am amendment was moved to the motion to go into supply suggesting that the New Zealand treaty should be terminated, and the Minister of Finance accepted that amendment and gave notice terminating that treaty.
51952-214}
That is within the memory of many hon members who were in the house in those days. He reconstituted his committee of supply on the strength of it. Under those circumstances it is clear that on that occasion what we did was to intimate by our votes, which ultimately became unanimous, that in the opinion of the house a certain policy should be pursued, which policy was in fact pursued by the government accepting the amendment on going into supply.


Charles Avery Dunning: But that was a different situation entirely.


Richard Bedford Bennett: No; exactly the same, not the slightest difference in the world. The fact that a lawyer is concerned about making up his mind has nothing to do with the question of policy. And the address that was presented by Mr. O'Brien was that his excellency in council do so and so; that the government of the day do so and so. It would seem fatuous to suggest that any question could arise with respect to that. It was that his excellency in council should take certain action. It has been the right of parliament since the days of Queen Anne to determine by its vote in the Commons house the action that should be taken by the executive. In other words, to use the language of a lord chancellor in England in connection with a Canadian reference, "Parliament can always control the executive." Those are words that must always be kept in mind. And in a matter of this kind that means the House of Commons, because under our constitution there must be a majority in support of the government in the Commons house of parliament in order that the government may exist.
So we have a very simple situation, about which there can be neither doubt nor dispute; the right of this chamber on going into supply to indicate by its vote if it so wishes the policy that should be pursued by the administration with respect to any matter with which it is within the power of this parliament to deal. And this parliament may condemn action that is taken or it may by a majority determine what action should be taken. I take the New Zealand treaty as a striking illustration in connection with that great speech of Sir John Thompson which I have not read for some years but some portions of which come back to my mind as I stand here; the reasons are apparent why he did not raise the question as to whether or not this house had the right to take suggested action. It was not the accomplished fact he was dealing with but something which it was suggested he should do and that the government of which he was.
Validity oj Quebec Statute

a member should do as a matter of high policy. And the House of Commons negatived it by a vote of only thirteen opposing the government view on the merits of the case as presented to the house by Sir John Thompson on behalf of the government and by Mr. McCarthy really from a legal standpoint on behalf of Mr. O'Brien who made the amending motion on going into supply.


Ernest Lapointe: Mr. Speaker-


James Shaver Woodsworth: Shall I get a chance to say a few words on a point of order?


Ernest Lapointe: I have now to raise the point of order. I did not do so when I spoke first but the remarks of my right hon. friend compel me to raise the point of order. I absolutely disagree with and contest the contention that the House of Commons may instruct the governor in council as to whether provincial legislation should or should not be disallowed. It may condemn the government afterwards-*


Richard Bedford Bennett: They did it on the New Zealand treaty.


Ernest Lapointe: The
governor in council is answerable to parliament and if parliament condemns the action that has been taken the government goes; it has lost the confidence of parliament because of the action it has taken. But under the British North America Act this House of Commons cannot instruct me as Minister of Justice as to what recommendation I must make to the governor in council as to the validity or fairness or constitutionality of legislation. The governor in council must act after that recommendation has been given, but the House of Commons cannot instruct me as Minister of Justice as to what recommendation I should make. I am surprised that my right hon. friend should contend-


Richard Bedford Bennett: There is no doubt
about it.


Ernest Lapointe: -that I should receive instructions from him or the hon. member for Winnipeg North Centre or anybody as to my recommendation to the governor in council.


Richard Bedford Bennett: No; the direction is that the governor in council disallow.


Ernest Lapointe: But I must act first; the governor in council acts upon my recommendation.


Richard Bedford Bennett: That has nothing to do with it.


Ernest Lapointe: Even there I will follow my right hon. friend. This House of Commons cannot instruct the governor in council as to a duty-


Richard Bedford Bennett: Oh, yes. it can.


Ernest Lapointe: -which is given to the governor in council by the constitution. This House of Commons can dismiss the government after it has acted because the action of the government does not meet the approval of the House of Commons, but it cannot instruct the governor in council as to what should be done.


Richard Bedford Bennett: It did about the New Zealand treaty.


Ernest Lapointe: That
was a matter of trade and commerce. This is within the jurisdiction of the parliament of Canada, under section 91, while this other matter is given not to the parliament of Canada, but by section 90, to the governor in council, to the queen in council, when this power of disallowance existed as far as dominion legislation is concerned. I say that I cannot be instructed as to what action should be taken, but I am responsible to parliament afterwards if the action of the governor in council does not meet with the approval of parliament.
My right hon. friend (Mr. Bennett) quotes the instance of the Jesuits' estates motion in 1889. When he quoted that I told him the government of the day had then made up its mind not to disallow the legislation. The whole debate was on the question as to whether the government had done well to refuse to disallow the legislation. Sir John Thompson made that great speach to which my right hon. friend alluded, showing that the legislation should not have been disallowed and that the government did well not to disallow it.


Richard Bedford Bennett: No, no.


Ernest Lapointe: I will show it; I have a reference here too. I am going to show the house and my right hon. friend that the government had reached that decision before the debate took place in the House of Commons. I quote the words of no less a personality than Sir John A. Macdonald, the then Prime Minister. At page 908 of Hansard for March 28, 1889, showing clearly that he had decided that the bill was not to be disallowed, he said:
I agree strongly with the language used by the hon. member for North York (Mr. Mulock). Supposing this bill had been disallowed, Mr. Mereier would have gained a great object. He would have been the champion of his church. The moment it was announced that this bill

Validity oj Quebec Statute
was disallowed there would have been a summons for a meeting of the legislature of Quebec. They would have passed that bill unanimously, and would have sent it back here, and what would have been the consequence? No government can be formed in Canada, either by myself, or by the hon. member who moves this resolution (Mr. O'Brien), or by my hon. friend who sits opposite (Mr. Laurier), having in view the disallowance of such a measure. What would be the consequence of disallowance? Agitation, a quarrel-a racial and a religious war would be aroused. The best interests of the country would be prejudiced, our credit would be ruined abroad, and our social relations destroyed at home. I cannot sufficiently picture, in my faint language, the misery and the wretchedness which would have been heaped upon Canada if this question, having been agitated as it has been, and would be, had culminated in a series of disallowances of this act.
Clearly, plainly, the government had then decided that there would be no disallowance, and Sir John A. Macdonald was pointing out to parliament at the time what dire consequences would have resulted if the legislation had been disallowed by the governor in council. So I think it is clear that the two cases are not identical. At the time the twelve month period had not expired


Richard Bedford Bennett: It has not expired in
this instance, either.


Ernest Lapointe: In this case nothing has been done; we are still within the period. We shall have to do something. There will be a recommendation; the governor in council will act; then, I repeat, the action of the governor in council will be subject to the approval or disapproval of the House of Commons, and the life of the government will be at stake. That is all. Until that happens, I do not think it is proper for either the hon. member for Winnipeg North Centre or any other member of parliament to try to instruct me as to the recommendation I should make, or to try to give the governor in council instructions, as my right hon. friend has used the word, as to the action that should be taken.


James Shaver Woodsworth: As yet I do not
think the Minister of Justice has definitely raised a point of order.


Ernest Lapointe: I have.


James Shaver Woodsworth: Then I would ask the Minister of Justice to state the point of order.


Ernest Lapointe: I cannot state it more plainly.


James Shaver Woodsworth: Then will the
minister let me go on until he finds that I am not in order?


Ernest Lapointe: We cannot both speak at once.


James Shaver Woodsworth: I was speaking
when the minister interrupted me, and prior to that time there had been nothing whatever that was out of order. The minister interrupted and brought on a discussion without being able to point out any particular in which I was out of order. Taking the words out of his mouth, I should like to say that I am not seeking to instruct the government. I have no such idea in mind, and in the few introductory remarks I made there was no suggestion of anything of the kind. Further than that, I have no motion before the house, nor do I intend to make one. How, then, can the Minister of Justice talk about instructing the government, before there is any motion before the house?


Ernest Lapointe: Let my
hon. friend be fair. He knows that those words were used by the right hon. leader of the opposition.


James Shaver Woodsworth: I am speaking to
the point of order, or the suggested point of order. I say the Minister of Justice had no right to interrupt me when there was no motion before the house. I am under a debt of gratitude to the right hon. leader of the opposition (Mr. Bennett)


Joseph-Arthur Bradette: Oh, yes.


James Shaver Woodsworth: For what? For
attacking this question of disallowance, but as a matter of fact I had no intention of bringing up the matter of disallowance.


Ernest Lapointe: Then,
what is the hon. member talking about?
Mr. WOODSWORTH. Give me a chance to tell the right hon. gentleman. The minister has been talking quite beside the point. I wish he would not be quite so jittery about this matter.


Ernest Lapointe: So what?


James Shaver Woodsworth: So jittery; so
frightened.


Mr LAPOINTE (Quebec East):: That is
another word I do not know.


James Shaver Woodsworth: So nervous. Jittery is a word used a great deal on the street these days, and I commend the minister to look it up in some of the slang dictionaries. I wish the minister would not go off on a tack and make remarks that are quite beside the point. Let me repeat:	Far from trying
to intimidate the government, I have not even a motion to propose, and I had no idea of asking for disallowance. I stand here to
Validity of Quebec Statute

bring before the house some grievances of the people of Canada, and I think the minister-who has some streaks of Liberalism in him, anyway-will not deny me the right to do that.


Ernest Lapointe: We all
have some streaks of something.


James Shaver Woodsworth: The question has
been raised as a point of order. I looked up another case away in the past having to do with this same question of the Jesuits' Estates Act, to which the leader of the opposition referred. My reference, however, has nothing to do with the famous speech of Sir John Thompson. My reference is to a subsequent debate the following year, on April 30, 1890. On the motion to go into supply Mr. Charlton said:	-
Before you leave the chair, sir, I wish to place in your hands a motion of which I gave notice a few days ago, with a few slight changes in the verbiage, with reference to submitting the Jesuits' Estates Act to the Supreme Court of Canada.
After a number of whereases the motion concluded:
This house is of the opinion that the question of the constitutionality of the said act should have been submitted to the Supreme Court of Canada, in pursuance of the powers conferred by the Supreme and Exchequer Courts Act, when the question could have definitely been determined by such court.
Here you have the curious case of a member of the house, after disallowance had been refused, rising in his place the following year to bring in a motion of want of confidence in the government. This was done on going into supply in connection with a matter that had been settled already.


Charles Avery Dunning: Quite right.


James Shaver Woodsworth: To-night I am rising to urge upon the government that in view of a situation which exists, in view of the suffering being caused to citizens of this country, consideration should be given to these grievances. The minister says that he is not able to answer me. I am sorry if he will not answer what I have to present. All I can do is to petition the government, and it is for the government to say whether they will listen to me, whether they will say nothing in connection with the grievances which I am bringing forward. That is for the government to say. I cannot instruct the minister even in that small matter. That must be determined by his own conscience and by expediency.


Ernest Lapointe: It is determined by the constitution.
fMr Woodoworth.]


James Shaver Woodsworth: I cannot force the minister to speak, but I rather resent what he said when he referred to the house interfering in this matter. What is this house except a forum in which we can discuss the affairs of this country? Why am I sent here if not to bring grievances, if such exist, to the attention of the house?


Ernest Lapointe: There is no grievance here.


James Shaver Woodsworth: The duty of this house is to guard the people's liberties. When anything affects those liberties, such as the existing arrangements in Quebec, then I have the right to defend those liberties. I would be recreant in my duty as a member of this house if I failed to do that.
I brought up this matter some fourteen months ago, and the minister promised that he would take it under consideration. Outside of asking one or two questions, we have refrained this session from bringing before the house these grievances which affect a very considerable section of the people. I do not think we should be asked to refrain any longer. All I am doing is to present the case, and the minister can choose whether he will say anything in answer. He can continue his stony silence if he likes; that is for him to decide. However, I want to make it clear from the very commencement of my remarks that I am not asking him to state whether he is going to ask for disallowance. My plea last year was not for disallowance; it was for the reference to the supreme court of a very troublesome matter.
On March 30 of last year I brought this matter to the attention of the house. I do not want to repeat the speech I made at that time, but let me quote shortly from Hansard of that date, as follows:
Premier Duplessis in introducing the bill stated, according to the Gazette of March 18, that since the parliament of Canada repealed section 98 of the criminal code, there was no means of preventing communist meetings. I submit that that statement in itself is an admission that that legislation is an indirect attempt to legislate in the field of criminal law, and as such it is in reality ultra vires. The important sections are 3 and 12. Section 3 reads:
It shall be illegal for any person, who possesses or occupies a house within the province, to use it or allow any person to make use of it to propagate communism or bolshevism by any means whatsoever.
And then section 12:
It shall be unlawful to print, to publish in any manner whatsoever or to distribute in the province any newspaper, periodical, pamphlet, circular, document or writing whatsoever propagating or tending to propagate communism or bolshevism.

Validity oj Quebec Statute
I pointed out to the minister then, and I do so again to-night, that communism was not defined in the act. In the upper house in the course of a debate one member sought to identify communism and socialism. The premier said there would be little difficulty in making decisions, for communism could be "felt." That really means that any one whom the premier does not like may be termed a communist. For example, the premier stated that Mr. Joseph Schubert was a communist. Mr. Schubert is an alderman of the city of Montreal. I pointed out at that time that there were two courses which the government could take. Either they could disallow, or they could refer the legislation to the supreme court. I drew attention to some of the evils that were likely to follow if this legislation remained on the statute books, a number of which evils have already come about. I pointed out that if this legislation remained in force, all bibles might be seized and destroyed and all ehurches padlocked.


Mr. DUPUIS:: Have they been?


James Shaver Woodsworth: Their distribution
has been prevented. I suggested that some of the passages from the writings of the early Christian fathers might not be permitted under the terms of that act. I referred to many of the reformers in Great Britain who could be termed communists under this legislation. I suggested that it might be possible to padlock McGill university. That has not been done as yet, but certain individuals have not been permitted to speak at that university. I suggested that it was indeed fortunate that this House of Commons was situated where it is because even our library might be padlocked.
The Minister of Justice did not give a very satisfactory answer at that time. Speaking as a responsible member of the government he said:
For many years the power of disallowance has not been resorted to by the government of Canada.
The minister referred to the fact that the power of disallowance of dominion legislation by the imperial parliament no longer existed. He continued:
I would not say the same condition would apply to provincial legislation, but it has often been stated by the courts that within the sphere of their own jurisdiction the provincial legislatures are sovereign. I do not think that in a federation such as this the power of disallowance could easily be exercised by the central government. I believe the provincial legislatures feel that they are still supreme and sovereign within the sphere of their jurisdiction.
He rather laughed at my suggesting that this legislation should be referred to the supreme court.
I believe that fundamentally the case which I presented some fourteen months ago still stands. At that time the Minister of Justice promised the most serious consideration of this matter. If he has been giving effect to that promise, his mental processes must be working very slowly. I suggest that they must work more rapidly if a great injustice is not to be done to still greater numbers of our Canadian citizens.
Since March of last year events have moved on, and there have been many applications of the act. The organization to which I belong has been called into question. In Le Canada of October 26 there is a report of an interview which Mr. Duplessis gave in connection with the padlock law. During that interview he said:
If the law was worthless why has the C.C.F. and other movements of communist inspiration opposed it so strenuously for the past year?
And so on. If I, a member of the Cooperative Commonwealth Federation, am told by Premier Duplessis that this organization is of communist inspiration and I am thereby brought under this law, it is a pretty serious thing for both myself and the Cooperative Commonwealth Federation. I consider that I have a perfect right to bring my grievance and the grievance of this organization before this house.
Since that time there has been so much opposition to the act that a society has been formed, originating in the city of Montreal but spreading to various parts of Canada, called the Canadian Civil Liberties Union. I notice on their letterhead the names of W. D. Lighthall; Hubert Desaulniers; R. L. Calder; Raoul Trepanier; D. T. Goodwin; J. K. Mergler-not a group of foreign communists but a group of quite well known and highly respected citizens. I think that in itself gives us pause and makes us understand that the situation is a serious one. May I give a few facts gleaned from the bulletins which they send out.
The first action under the " padlock " act (passed March 24, 1937) took place November 9, 1937. Between November 9, 1937, and January 27, 1938, the act was applied fifty times. Four places were padlocked: Clarte (French weekly paper), November 9; the Artistic Print Shop, November 9; the Old Rose Print Shop, November 10; the Ukrainian Farmer and Labour Temple Association (alleged communist school), January 25.
Validity of Quebec Statute


Ernest Lapointe: The representatives of the Liberty League had a better argument than my hon. friend. He should be satisfied with them.


James Shaver Woodsworth: I want to read a few more sentences from this document:
The inhabitants of Quebec, no less than the inhabitants of other provinces of Canada, have certain constitutional rights as Canadians.
And again:
The law of sedition can stop all preaching of violence, the law of seditious libel can stop all revolutionary propaganda in newspapers, the law of unlawful assembly can prevent riotous and disorderly meetings. The padlock act in so far as it goes beyond them is itself destructive of the institutions it seeks to uphold.
And again:
The factum submitted by Your Excellency s government to the Supreme Court of Canada in the reference on the Alberta press bill says: "The authority that can impose some restriction on the freedom of the press, a freedom which is in a legal sense now complete, can impose any restriction."
There is the situation. I told the house, at the beginning of my speech, I was not asking for disallowance. But I would point out that disallowance, which was practically ruled out by the Minister of Justice a year ago, has since been made use of by this very government with regard to the Alberta legislation, and there are still some cases pending.
Surely we have not arrived at that stage in Canada when one law applies to one province and another law to another province or, more closely, when the same law can be used in one province and not used in another. I continue my quotations:
Counsel for Your Excellency's government, Mr. Geoffrion, in this ease is reported by the Canadian press as adding: "The rights of the public as well as those of the newspaper publishers had to be considered. There was a right on the part of the public to have the channels of information kept open. This right was of the essence of democracy. If the people were to pass judgment on governments, governments could not interfere with the information the people were to receive. Democratic government and a free press were inseparable. Democracy could not function without a free press, and other forms of government could not function with one. Wherever democracy fell, the freedom of the press disappeared. It was the right of the public to obtain information for which people fought in past years in both France and England. Interference with the newspapers of Alberta affected Canadians from coast to coast. People in all parts of Canada were entitled to know what was happening in every other part and what the people of other parts were saying. They were also interested in having people in other parts know what they were saying. If a province could control the newspapers at all it could establish complete control. The bill before the court,
if held good, might be a forerunner to the complete domination of the newspapers in any province by the provincial government, to the licensing and control of reporters for papers outside the province, and to the placing of policemen at provincial borders to stop information from going in or out."
The petition comments:
All this is as applicable to the padlock act as if the learned counsel had been discussing that act in set terms.
Emphasis is given to some points that I have already raised.
. . . the padlock act appears to be a clear invasion of a field of jurisdiction exclusively assigned to the dominion pai'liament. .	.	.
Sections 3 and 4 of the padlock act clearly create a new crime and provide a penalty for it, though the padlock act seeks to evade the provisions of the British North America Act by leaving that crime undefined. . . . Sections 12, 13 and 14 of the padlock act, in addition to creating a new crime, restrict and regulate the freedom of the press. Such legislation it is submitted, is ultra vires the province on three grounds, set forth in the factum submitted by Your Excellency's government to the Supreme Court of Canada in the reference on the Alberta press bill.
The grounds are then set out. I believe I shall not go farther with this document. It is in the hands of the minister. I wish it had been possible to put it earlier in the hands of every hon. member. All of us should know the seriousness of the situation.
May I point out that many protests against the legislation have been coming in. One came from a committee of the Canadian Bar Association. There was one from the Social Service Council of Canada. I have had scores from all kinds of labour organizations. I submit the government cannot possibly escape its responsibility in the matter.
Only a year ago the Ottawa Journal spoke in these terms:
Actually, this bill is not aimed against lawlessness. It is aimed against liberty, against liberty to write and speak, to discuss and debate. It is a vicious law because:
1.	It enables an executive officer to punish a man (by padlocking his house) before any court has found him guilty.
2.	It puts the burden of proof of innocence on the person thus attacked.
3.	It bars any appeal from the decision of a single judge of the superior court.
4.	It enables any peace officer to seize literature, not only of a communistic sort (with interpretation of what constitutes communism left to the government) but also of a sort "tending to produce communism."
Validity of Quebec Statute

The Financial Post, which is not a particularly radical paper, has this to say in an article headed, "Personal Liberty Worth Preserving" :
Communism is an economic and social theory which is offensive to a great many people. But those who believe in communism have as much right to present their point of view to the public as those who believe in capitalism, a competitive economy, or state socialism . . . There are some things worse than the propagation of new and even unpleasant and unsound doctrines. Among them are the tyranny of the state and the loss of personal liberties.
I was interested in reading an article in the Montreal Star, from which I took two or three extracts. My colleague suggests that this is another communist paper I Reference is made first of all to the situation in the United States:
Written right into the constitution of the United States is the following clause:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Great Britain has no written constitution. But she has a very definite and well understood unwritten constitution, established by usage and "broadened down from precedent to precedent." In this constitution there is no more firmly fixed principle than the freedom of the press.
Now we come to Canada:
We are the legitimate heirs of England's slowly shaped postulates of justice, of her imposing framework of court practice and legal axioms, of her many blood-bought bulwarks of liberty from Magna Charta down.
Is it not a fair inference to say that we are also the heirs of her three most signal achievements in establishing freedom within her borders, free speech, freedom of conscience and a free press? Are they not as much a part of our constitution as if they had been written into its folios?
And one sentence from the Free Press of my own city:
There is no guarantee of freedom so long as that threat exists; and in the absence of a Bill of Rights embodied in our constitution, the solution for lack of a better one rests in active and stringent use of the powers of disallowance of provincial legislation vested in the federal government.
Yes, this further one:
The responsibility that lies upon the dominion government is therefore very great. Its power of disallowance is relatively unimportant in so far as provincial laws are concerned which are merely ultra vires. In such cases there rests an adequate appeal to the courts. But it is in other fields, where the fundamental liberties of the citizens are threatened by laws legally passed by provincial legislatures, that the danger lies.

I cannot but think how different is the general indifference in this country to the passing of this kind of legislation to the keen interest shown in the motherland in preserving fundamental liberties.
Let me read a few words of the Secretary of State for the Home Department, Sir John Simon, upon introducing legislation which would help control the difficulties met by all governments these days. Sir John said:
If honourable members will take a broad view of the events of the last few years it will be agreed that since the war developments in Europe have tended to let loose extremist doctrines-whether doctrines of the Right or the Left does not matter-which in their application have this special quality, that are essentially intolerant and determined to browbeat and overthrow contrary doctrines. The adherents of these doctrines deny the right of others to hold different opinions. If they succeeded they would do their utmost to stop the expression of different opinions. In the meantime they are ready, if not to use, at least to display force to spread their own views. In contrast with this the great characteristic of British political life is its tolerance. All the things which we prize-freedom of opinion, freedom of speech, and freedom of meeting- are all based on our conception of political and civic toleration. . . .
I am not discussing whether it is communists who make fascists or fascists who make communists. That is not the point. The point is that we should do our best to act even-handedly in the matter and base ourselves on general principles.
That is all that I ask from this government. I am quite confident that the Minister of Justice must be stirred by an appeal to the traditions of Liberalism, but I would say to him that he cannot avoid the heavy responsibilities which are placed upon him in his position - to-day.


An hon. MEMBER:: He can take the
responsibility.


James Shaver Woodsworth: Well. I assume
he must! I have said that again and again. But we have had fourteen months of waiting; fourteen months during which there have been these arrests, which I think most of us would call illegal arrests; fourteen months in which there has been suppression of freedom; fourteen months in which homes have been closed; fourteen months in which people in one province in this dominion have not been allowed to exercise their inherent rights as British subjects. How much longer are we going to wait? It is said, "Let the minister decide." Of course, he will have to decide; the government will have to decide. But as I said in my opening remarks, I am here to present these facts in the parliament of Canada where I think they should be

Validity oj Quebec Statute
presented. I am here to plead with the Minister of Justice and the government, that they refer this matter to the Supreme Court of Canada and thus give relief to a numerous class of the citizens of Canada.


Mr. L. D. TREMBLAY (Dorchester):: I
must express surprise at the remarks of the hon. member for Winnipeg North Centre (Mr. Woodsworth), who certainly has no mandate whatever to express the feeling of the province of Quebec, but who seems so much interested in something that has happened in that province. We in this house- quite a few of us-who have been elected by the citizens of the only French province in this confederation think we are authorized to speak in the name of our constituents. I realize perfectly well that I am just a young member of this house, elected for the first time in 1935. Before coming to this house I was aware that Winnipeg North Centre had a brilliant representative in parliament, but we never thought he was authorized to speak in the name of our province.


James Shaver Woodsworth: I rise to a question of privilege. I was not speaking in the name of the province of Quebec; I was speaking as a citizen of Canada.


Léonard-David Sweezey Tremblay: I like to hear my hon. colleague say what he has just said, but I contend that we in the province of Quebec are certainly as much authorized to express our own feeling as is the hon. member for Winnipeg North Centre.


James Shaver Woodsworth: Quite so.


Léonard-David Sweezey Tremblay: I am glad the hon.
gentleman admits that, and he is only logical in doing so. I have my own personal opinion with regard to the "padlock" law, and the hon. member has a right to his own opinion.	I say, however, that after his
appeals to bonne entente, to good will among Canadians, he should not bring before the house a question that concerns exclusively the province of Quebec. If a majority of the citizens of my own province think they should oppose those who preach opinions which we do not approve in that province; if they think that we should have such a law, it is up to them because we are still living in a democracy, and while I do not think the majority should dictate, at the same time the will of the majority should prevail.
The hon. gentleman said that the Minister of Justice (Mr. Lapointe) who is from the province of Quebec, should assume the responsibility. I know the hon. member for Winnipeg North Centre well enough to believe he will recognize that we in the province of
Quebec 'have reasons to be proud of the Minister of Justice. Personally I am proud of the fact that in the House of Commons the majority, to whatever party individual members may belong, have recognized the merits, the knowledge and the distinction of our leader in the province of Quebec, the Minister of Justice. Only on Saturday it was my privilege to witness the way in which the Minister of Justice is appreciated on all sides. That is a satisfaction to us. Every one will admit that he has done in the past, is doing now and in the future will continue to do his duty in attempting to unify the nine provinces of the Dominion of Canada. But, in my opinion, it is wrong for an hon. member of .this house to rise in his place and discuss a question that concerns more particularly a minority, but an important minority in our great dominion.
In the province of Quebec we are different from our fellow citizens of the other provinces of this dominion. But surely no one in this house will forget that we love British institutions; we are attached to them; we owe our liberty to British institutions. But we do not like that someone outside the province should try to control the opinions of our province. I do not want to express my own opinion of the "padlock" law, but I say to this house, Please do not interfere with whatever the province of Quebec thinks. We still have more confidence in the Minister of Justice than in the hon. member for Winnipeg North Centre, although we appreciate him.


Mr. C. G. MacNEIL (Vancouver North):: May I point out to the hon. member for Dorchester (Mr. Tremblay) that the question of preserving our fundamental civil liberties is a question to be determined by this parliament. If we were asked what constitutes the civil liberties we are pledged to uphold in this parliament, we would probably say that in this country we have freedom of speech and expression, freedom of lawful assembly, a free press and generally complete freedom to do anything which is not a quite unreasonable interference with our fellows. An authority on constitutional law states, "The liberty of the subject results from the principle that he may do as he pleases, provided he does not commit breaches of the substantive law or infringe the legal rights of others." May I point out to my hon. friend the words of Mr. Justice Cannon, appearing in Votes and Proceedings of March 4 last, page 48:
Under the British system, which is ours, no political party can erect a prohibitory barrier to prevent the electors from getting information concerning the policy of the government.
Validity nj Quebec Statute

He was referring to Bill No. 9 of the Alberta legislature, entitled "An act to ensure the publication of accurate news and information." He continues:
Freedom of discussion is essential to enlighten public opinion in a democratic state; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest. There must be an untrammelled publication of the news and political opinions of the political parties contending for ascendancy. As stated in the preamble of the British North America Act, our constitution is and will remain, unless radically changed, "similar in principle to that of the United Kingdom." At the time of confederation the United Kingdom was a democracy.
I ask my hon. friend to note this:
Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting^ the state within the limits set by the criminal code and the common law.
He goes on to say further, and this sentence may be of special interest to my hon. friend:
The federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press and the equal rights in that respect of all citizens throughout the dominion. These subjects were matters of criminal law before confederation, have been recognized by parliament as criminal matters and have been expressly dealt with by the criminal code. No province has the power to reduce in that province the political rights of its citizens as compared with those enjoyed by the citizens of other provinces of Canada.
I submit that this act, the "act to protect the province against communistic propaganda," assented to on March 24, 1937, infringes all these rights which I have mentioned, the right of freedom of speech, freedom of expression and of assembly, the right of presumption of innocence before the law; and on every count does so by flagrant invasion of dominion jurisdiction. Over a year has passed since that law was put into force. Ample evidence has been secured to show the manner of its application and the degree in which it has been employed to violate fundamental democratic rights. According to statistics I have secured from the Civil Liberties Union of Montreal there have been five padlockings and 124 raids and seizures, including two or three in the city of Quebec. And these figures do not include raids and seizures outside the cities of Montreal and Quebec which have been reported in the Montreal Star. In not a single instance have any of the persons or organizations affected been charged with any offence under due process of law, or convicted. These incidents can be described only as acts of terrorism.

It has been contended by those who defend this legislation that it is necessary to suppress dangerous but undefined communistic or bolshevistic propaganda. I propose to show that in its application it has been seized as a convenient instrument to persecute those whose views do not meet with the approval of the premier of Quebec.
On February 23, Hon. Mr. Bouchard, leader of the Liberal party in the province of Quebec, publicly complained that copies of his newspaper, En Avant, had been seized under the padlock law in a raid in Montreal, and that the provincial police refused to return them. On March 23 some person or persons unknown entered the Montreal apartment of John MacCormac, Montreal correspondent of the New York Times, whose comments on the Quebec situation had been the cause of bitter resentment on the part of the premier of Quebec. Nothing was taken, but Mr. MacCormac's papers were thoroughly searched. The explanations offered by the provincial police were highly unsatisfactory.
Early in April the provincial police invaded the Cooperative Commonwealth Federation provincial headquarters, carefully inspected a display of posters, and issued a warning that the office was under close surveillance. On February 5, a parade of cars with banners in support of the boycott upon Japanese goods, organized by the Quebec Cooperative Commonwealth Federation and the League for Peace and Democracy, was stopped by the " red squad " and the banners confiscated. Several previous parades had been held without interference. Some months ago the chief of police at Quebec city refused in writing to allow the Grande Ligne Baptist mission to distribute the New Testament by colportage. This mission was warned not to hold prayer meetings in private houses, under threats that these private houses would be padlocked. Several raids were made upon the Montreal headquarters of the Canadian friends of the Soviet Union, and the premises were padlocked as a result. The material seized included:
Ten issues of Saturday Night.
Several publications of the Carnegie Endowment for International Peace.
Pamphlets and posters distributed by the Canadian Pacific Railway Company, who are agents of Intourist.
Four copies of Current History, one copy of which was returned, apparently, because it contained no article on Russia.
Eighty issues of The New Commonwealth. Twelve issues of The New Republic.

Validity of Quebec Statute
Pamphlets containing the speeches of Major A. S. Hooper of London, England delivered before the Military Institute of Canada at Victoria.
A projector for slides and film strips.
Four thousand letterheads of the World Committee of Friends of the Soviet Union, and some of its envelopes.
Reports of the 1936 and 1937 congresses of peace and friendship in London, England.
A framed coloured view of the city of Tiflis, and another of a cathedral at Leningrad.
In addition, they took the trousers and small change of the unfortunate secretary.
In Montreal in February the community hall of the Church of all Nations, United Church of Canada, was visited by four detectives who seized publicity material relating to a concert. It was stated then that they intended to close up what they called " Katsunoff's International Brigade," by which they evidently meant the International Brotherhood, one of the religious activities of the church under the superintendence of the Rev. R. G. Katsunoff, D.D. Now that is the direct application of the law.
It has not been directed only at those suspected of communistic activities. May I indicate a few of the trade union officials whose homes have been raided under this act: Among others, the Jewish cultural centre and the Young Communist League; A. Perrault, E. Cote and Victor Larouche, president, secretary and officer of the Quebec Federation of the Unemployed; Alex. Gault, delegate of the Plumbers' Union to the Montreal Trades and Labour Council; Sidney Sarkin, business agent of local 116 of the Amalgamated Clothing Workers; Abraham Rosenberg, official of the same union and delegate to the Jewish Congress of Culture in Paris, 1937; and E. Mitchell, financial secretary of the Amalgamated Association of Iron, Steel and Tin Workers. All these were between January 11 and 14. Others were: C. Perry member of the Cooperative Commonwealth Federation, provincial council and organizer for the Montreal district; Adelard Duval; Paul Gauthier; Napoleon Nadeau; L. Vallieres; L. Shaip; Berthe Caron; Georges Caron; Willibrod Couturier, president of the Butchers' Union; the Jewish Workers' Library; E. Robert, and Lucien Dufour, president of the Amalgamated Association of Iron, Steel and Tin Workers and business agent for the Committee of Industrial Organization. So I might submit a long list indicating how trade union officials have had their homes invaded without due process of law.
There has been a further form of intimidation which has made it difficult for proprietors of public halls to permit ordinary meetings to be held. On February 10, Reverend R. B. Y. Scott, professor of the United Church theological college, was informed that a meeting which he was to have addressed, on The Perils of Fascism in Quebec, had been cancelled because the proprietors of the Jewish Educational Institution, where it was to have been held, had been visited by an investigator, apparently from the provincial police, and they feared that their building might be padlocked. A week earlier a similar meeting which was to have been addressed by Mr. J. K. Meigler, counsel for the Civic Liberties Union, also had been cancelled on similar grounds. Doctor Scott, on behalf of the Civil Liberties Union, also applied for permission to use the hall of the Montreal high school for a meeting of members of the union. The principal gave her consent, but the assistant superintendent referred the matter to the officials of the Protestant board of school commissioners. Permission ultimately was rejected on the ground that the high school might be padlocked.
As hon. members are aware, two months ago the McGill university social problems club arranged a series of meetings at which representatives of all parties were to present their views. Mr. Arcand, leader of the fascist party, had spoken. Mr. Tim Buck of the communist party was to be next. The students' council, however, refused the use of McGill Union for fear it would be padlocked. The student body has since voted unanimously for the repeal or disallowance of the "padlock" act and has requested the university authorities to restore freedom of discussion on the campus. It has been contended by Mr. Duplessis and others that this law is similar to the padlocking of disorderly houses. They have omitted to add, however, that disorderly houses can be padlocked only if their owners are convicted, in open court, of a defined offence.
I wish to direct attention to the character of the men who have courageously led the opposition to this infamous law. As the hon. member for Winnipeg North Centre (Mr. Woodsworth) has mentioned, Doctor Light-hall is president of the 'union. I wish to refer also to Mr. R. L. Calder, K.C., who has publicly declared his intention to devote the balance of his career to the fight in defence of civil liberties. I had the pleasure of making the acquaintance of Mr. Calder years ago and heard him make an eloquent and impressive plea before one of the largest gatherings of ex-service men ever held in the
Validity oj Quebec Statute

dominion. At that time he pleaded for a better understanding of the problems of the French-Canadian people, and made a noteworthy contribution toward allaying the bitterness which was in evidence at that time, arising from the conscription issue. I consider it to be quite consistent with the ideals which he championed at that time that he should now appeal to the Canadian people in terms of Canadian unity and in defence of the liberty of the subject.
May I quote from an editorial appearing in the Winnipeg Free Press, which says:
No recent visitor to Winnipeg has made so deep an impression upon the public mind as Mr. R. L. Calder, K.C., of Montreal; nor is it easy to remember a case pleaded with more cogent force than his plea for the federal disallowance of the infamous Quebec padlock law which-make no mistake about it-is a matter of deep concern to the whole dominion. . . . The padlock law strikes at the heart of those civil liberties without which Canada cannot exist; and without which, it is pertinent to point out, the guaranteed position of Quebec itself in confederation would become untenable. The principle of the padlock law is two-edged. Its present form may, or may not, command the admiration of the majority of the people of Quebec. But in another form it may take a shape which would be distasteful and repugnant to them who, having swallowed the first, would perforce accept the other also. . . .
Mr. Calder is not a communist or an atheist. He is a native of Quebec province, a Roman Catholic, a student of both Laval and McGill universities, a believer in capitalism, a distinguished member of the Quebec bar, a former crown prosecutor of the city of Montreal. He joined the C.E.F. in 1915, and won the military cross at Amiens when serving with the 13th Highlanders. . . . This is not the record of a fly-by-night agitator out to destroy the structure of Canadian society. It is the record of a Canadian citizen of whom this country has every reason to be proud. He has lived in Quebec province all his life, and it is because of this history that his argument commands very special attention.
Similar editorials appeared in practically all the principal dailies across western Canada. I submit, Mr. Speaker, on these grounds, that this action on the part of the Duplessis government is a direct challenge to the principles of Liberalism professed by the hon. gentlemen who sit on the treasury benches. It is more than that; it is a direct challenge to our democracy and national unity. I submit further that there is only one appropriate answer which the Minister of Justice (Mr. Lapointe) can give to our plea; that is, the
assurance of definite protection for those who have been deprived of those fundamental civil liberties guaranteed them under our constitution.
Mr. J. A. BRADETTE (Cochrane); Mr. Speaker, coming from northern Ontario where we have had to deal sometimes with strikes and labour troubles, I must state at the outset that I am absolutely intolerant of intolerance. I have listened attentively to the previous speakers, and I must say that in some particulars I believe the padlock law now under discussion goes too far, while in other particulars it does not go far enough.
As far as I am concerned I shall never have any patience with communism, for a very simple reason. It is a poison which is absolutely foreign to the mentality of the great majority of the Canadian and British peoples. It is of no use for us to try to delude ourselves with the belief that communism is simply a political philosophy. It goes much deeper than that. I have not the intention of analysing the studies of Karl Marx as they were applied in the Russian revolution, nor have I any intention of discussing the causes of that revolution. If the leaders at that time had been satisfied to try their experiment in their own country, that would have been satisfactory to me. But the leaders of the Russian revolution made it a religion; they decided that they were going to spread that gospel into every section of the civilized world, and they have their apostles here.


James Shaver Woodsworth: Mr. Speaker, a
few moments ago a reference was directed to me. I should like to know whether or not this reference is also directed to me.


Joseph-Arthur Bradette: During the twelve
years I have been in this house, Mr. Speaker, I have never made a personal allusion.


James Shaver Woodsworth: I am glad to hear that.


Joseph-Arthur Bradette: I repeat that communism was a virus that might have been satisfactory to a small minority of the Russian people-


Walter Edward Foster: Eleven o'clock.


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

[Stage Direction]
y