1949-10-04

Right Hon. L. S. St. Laurent (Prime Minister):: In accordance with the undertaking I gave the house yesterday, and with, I assume, unanimous consent, I should like to move, seconded by the Minister of Agriculture (Mr. Gardiner):
That when this house adjourns on Friday, the 7th instant, it stand adjourned until Tuesday, the 11th instant.


[Stage Direction]
Motion agreed to.


Hon. Stuart S. Garson (Minister of Justice) moved: that the house go into committee at the next sitting to consider the following resolution:
That it is expedient to amend The Judges Act, 1946, to increase the salaries of the judges of the Supreme Court of Canada and to provide salaries for an increased number of judges of the Supreme Court of Ontario: also to amend the present provision respecting travelling allowances to a judge of the Supreme Court of New Brunswick.
He said: His Excellency the Governor General, having been made acquainted with the subject matter of this resolution, recommends it to the consideration of the house.


[Stage Direction]
Motion agreed to.


Stuart Sinclair Garson: that the house go into committee at the next sitting to consider the following resolution:
That it is expedient to amend the Royal Canadian Mounted Police Act by increasing the amount of refund payable to members of the force in respect to prior service in a provincial police force where they were retained in the force beyond the maximum period of service that may be counted for the purpose of computing a pension.
He said: His Excellency the Governor General, having been made acquainted with the subject matter of this resolution, recommends it to the consideration of the house.


[Stage Direction]
Motion agreed to.


Louis Stephen St-Laurent: Whereas the office of chief electoral officer has become vacant by resignation of Jules Castonguay;
And whereas subsection two of se'ction four of the Dominion Elections Act, 1938, provides that in the event of a vacancy in the office of chief electoral officer the vacancy shall be filled by resolution of the House of Commons;
Be it therefore resolved, that Nelson Jules Castonguay, executive assistant to the chief electoral officer, be and he is hereby appointed chief electoral officer.
He said: Mr. Speaker, in submitting this motion for consideration of the house I wish to say first of all how much we regret the illness which necessitates the resignation of Mr. Jules Castonguay from the office of chief electoral officer. For twenty-two years Mr. Castonguay has held that office, and I believe everyone will admit that during those years he has done a thoroughly good job. Through five general elections he has supervised our electoral machine, and at times this supervision has kept him and his small office staff working almost day and night. Even between elections he and his few associates have been kept busy with plenty of routine planning and revision work.
Mr. Castonguay's work as chief electoral officer has not been without its endless worries, inquiries and sometimes protests. But through it all he has displayed a remarkable impartiality. In my eight years of public service I have yet to hear a word of adverse criticism of Mr. Castonguay's handling of the many electoral problems with which he has been faced. To him we owe many of the laws which govern Canada's voting-laws which have been studied by other countries of the commonwealth, and copied in other countries of the commonwealth and elsewhere.
Canada is indeed fortunate in having been served so faithfully and so long by Mr. Castonguay. He has discharged his duties with distinction, and with credit not only to himself but also to the office which has been his, and to the public service at large. I am sure every member of the house would wish you, Mr. Speaker, in conveying to Mr. Castonguay this tribute of our appreciation of his public service, to extend to him also our best wishes for his speedy return to health so that he may enjoy many years of well-earned rest, freed from the cares of that office.

Chief Electoral Officer
Mr. Jules Castonguay's resignation, coming as it does just prior to the forthcoming by-elections, necessitates the immediate appointment of a successor. Since 1934 Mr. Nelson Jules Castonguay, his son, has been in his father's office, and for the last few years has been his father's righthand man. In 1941 his work was interrupted when he entered the navy. As a wartime naval officer, rising from the rank of probationary sublieutenant to that of lieutenant commander, he served on two destroyers and became captain of a frigate. Shortly after returning to Ottawa and to his father's office he was promoted to his present position of executive assistant to the chief electoral officer. It is my opinion, and one which I am sure many will share, that his promotion would probably have been more rapid had he not been Mr. Jules Castonguay's son.
As executive assistant to his father, Mr. Nelson Castonguay served in an advisory capacity in matters having to do with preparations for Newfoundland's recent provincial election, as well as for the federal election which followed; and I am told he was largely responsible for the setting up of the electoral machinery in that province prior to that provincial election. I am told, too, that it functioned, as we would expect it to function with the good will of our new Canadian fellow citizens in Newfoundland, in an admirable manner.
Just this summer Mr. Nelson Castonguay travelled to Colombia, at the request of the government of that South American republic, to explain our electoral system to officials of their electoral court. As a result of these and other experiences in close association with his father, Nelson Jules Castonguay has become an expert in electoral matters under the kind of system we have in this country. It is my opinion that no one else has in the same degree the experience and knowledge necessary for the proper discharge of the duties of this responsible position.
It is particularly fortunate that we should find these qualifications in one who had such an excellent war record, and, if the house sees fit to adopt this resolution, not only shall we be expressing confidence in a competent public servant, but we shall be honouring the body of veterans of which he is a distinguished member.
Because of the large number of by-elections now in progress, as I have already intimated, the appointment of a successor to Mr. Jules Castonguay is urgent. Accordingly I move the resolution which you, Mr. Speaker, have read to the house.


Mr. George A. Drew (Leader of ihe Opposition):: Mr. Speaker, I wish to associate myself with the remarks of the Prime Minister (Mr. 
St. Laurent) in regard to Mr. Jules Castonguay, and to express regret, which I am sure everyone will share, at his having found it necessary, because of ill health, to resign. Mr. Jules Castonguay has established a reputation not only for himself, but for our electoral system, in which all of us may share some measure of pride. I know all hon. members will join not only in extending best wishes to him for speedy recovery from his present illness, but also in expressing the hope that he may long be spared to enjoy the many associations he has made in all parts of the House of Commons, and in every section of Canada, by reason of the important responsibilities he assumed.
It does present a unique opportunity when we find that Mr. Castonguay's son, who has been associated with him, should have had the experience of executive assistant to his father in this very important work. I feel sure there will be general approval of the promotion to this office of one who, having acquired this background of experience, has demonstrated that he possesses high qualifications for the extremely responsible public position which carries with it the duty of making the electoral system of this great democracy work to the satisfaction of all our people.
Mr. Nelson Castonguay has shown himself a gallant Canadian in the service of his country in war, and has demonstrated his knowledge of the work in which he is about to engage. I trust that in the years ahead he will continue to uphold the high standards which have been established in the conduct of the business of that office.


Mr. Angus Maclnnis (Vancouver East):: Mr. Speaker, on behalf of the Co-operative Commonwealth Federation group in the house I wish to concur in what has been said about Mr. Jules Castonguay, who for many years has been our chief electoral officer.
It was my good fortune to know Mr. Jules Castonguay fairly well because of my serving on nearly all the committees of the house on the Dominion Elections Act. I have also known him in connection with the conduct of elections. I am glad to associate this group with what has been said by the Prime Minister and the Leader of the Opposition, and to add that no one could possibly have been fairer than Mr. Jules Castonguay in all his dealings with the public. I regret that ill health, and perhaps advancing years, have compelled him to relinquish the duties of chief electoral officer, and I wish him many years of good health in which to enjoy his retirement.
Although I have met Mr. Nelson Castonguay in connection with the sittings of com-

mittees of the house, I do not know him quite as well. Since he was subordinate to the chief electoral officer, one did not have the same opportunity to judge of his qualities. But training under his illustrious father should be a good beginning for filling the responsible position to which he is to be appointed, and I wish him long life and much success in that office.


Mr. Robert Fair (Battle River):: Mr. Speaker, on behalf of the Social Credit group I should like to associate myself with the Prime Minister, the Leader of the Opposition, and the hon. member for Vancouver East in what they have said in appreciation of the services of Mr. Jules Castonguay. Having been the representative of this group on the privileges and elections committee since 1936, I can truthfully say that we could not have had a better administrator of our election law than Mr. Castonguay. I found him to be very fair and helpful, and on many occasions he invited suggestions for the improvement of our election law.
During the past two years I have become acquainted with Mr. Nelson Castonguay, and I feel that he. will give service similar to that which was rendered by his father. On behalf of this group I wish to express the hope that Mr. Jules Castonguay may soon be restored to health and able to enjoy the years to come. I should like also to express the hope that his son will continue to serve Canada as chief electoral officer for a considerable number of years.


[Stage Direction]
Motion agreed to.


[Stage Direction]
On the orders of the day:
Mr. Howard C. Green (Vancouver-Quadra):: I should like to address a question to the Prime Minister, in the absence of the Secretary of State for External Affairs. I believe there is considerable concern on the Pacific coast about the present situation in China, particularly having regard to the recognition of the communist regime by the soviet. There are press reports to the effect that conferences are being held between the countries of the commonwealth and the countries which are signatories to the Atlantic treaty. Can the Prime Minister tell us whether Canada is taking part in these conferences? Perhaps he will make a statement with regard to the situation.


Louis Stephen St-Laurent: I think it would be going beyond the ordinary meaning of words to say that a conference is being held. Discussions are in 45781-32i
Inquiries of the Ministry process among the members of the commonwealth, our associates in the North Atlantic pact, and others who are concerned in the Pacific situation. As soon as any decision has been reached, the Secretary of State for External Affairs will make a statement to the house as to the conclusions arrived at; or, if he is not present at the time, the statement will be made either by the Acting Secretary of State for External Affairs or by myself.



FRUITS AND VEGETABLES


[Stage Direction]
On the orders of the day:
Mr. G. K. Fraser (Peterborough West):: should like to direct a question to the Minister of Finance, or, if he cannot answer it, to the Minister of Agriculture. When the Minister of Finance stated on September 26 that all restrictions would be removed on the import of fresh fruits and vegetables, did that mean that the seasonal or dumping restrictions would also be removed?


Hon. Douglas Abbott (Minister of Finance):: If my hon. friend heard the statement I made, he will recall that I said that only restrictions under the Emergency Exchange Conservation Act were being removed. Of course that would not cover the normal seasonal restrictions which exist under the Customs Act.


Gordon Knapman Fraser: On September 26 the minister said that the government had decided to suspend the present import restrictions on all kinds of fresh fruits and vegetables. There was some doubt in the minds of members of the Canadian Federation of Agriculture and many others in regard to this, and I thought it should be clarified.


Douglas Charles Abbott: If there is any doubt, I am glad to clear it up.



HOUSING


[Stage Direction]
On the orders of the day:
Angus MacInnis: should like to direct a question to the Minister of Reconstruction and Supply. Has the minister received any protest from the retail fuel dealers of Vancouver in connection with the policy adopted by Central Mortgage and Housing Corporation of equipping most of the houses built in greater Vancouver with oil heating units? If so, is the minister prepared to make a statement in that regard?

Inquiries of the Ministry


Hon. Robert H. Winters (Minister of Reconstruction and Supply):: The hon. member was good enough to send me notice of his question, and a copy of a telegram from the Greater Vancouver retail fuel dealers' association. The hon. member for Coast-Capilano (Mr. Sinclair) has also spoken to me in this same connection.
The only veterans rental housing project now under construction by Central Mortgage and Housing Corporation in Vancouver is the project known as Fraserview. Half of the 1,100 houses in this project will have basements. The houses with basements are heated by gravity hot air furnaces burning solid fuels such as wood, coal, sawdust, et cetera. Houses without basements, because of limited storage area, are heated by under-floor heating units burning liquid fuels. It would add to the cost of the house to provide sufficient space in a house without a basement for the installation of a satisfactory solid fuel heating unit and storage of solid fuel. Married quarters being built for the Department of National Defence are equipped with heating units burning liquid fuels. In houses with basements, the heating equipment is of a type which can be converted to burn solid fuels.



ANSWER TO QUESTION BY MR. CHURCH ON MONDAY, OCTOBER 3

[Stage Direction]
On the orders of the day:
Mr. T. L. Church (Broadview):: Mr. Speaker, I have a matter which I should like to bring up in connection with an answer given in the house yesterday to a question standing in my name. I addressed a question to the Minister of Transport (Mr. Chevrier) who made a reply as reported on page 440 of Hansard of October 3. The minister made a touchdown assisted by the minister in charge of housing, but he forgot to inform the house that under the Railway Act-


Mr. Speaker:: Order.


Thomas Langton Church: I can bring this up on the motion to go into supply; perhaps that would be better.



PUBLIC BUILDINGS


[Stage Direction]
On the orders of the day:
Mr.  W. Chester S. McLure@Queens: should like to direct a question to the Minister of Public Works. As I have just received the communication to which I shall refer, I was unable to give the minister notice, so he can answer the question tomorrow. A number of land owners, home owners and tenants have written me about their properties and leases in the section of Charlottetown

where the new dominion buildings are to be erected. When will the department or the government make a definite statement about these properties, so that these land owners, home owners and tenants can make arrangements for other locations in the future?


Hon. Alphonse Fournier (Minister of Public Works):: As soon as possible.



CANADA LAND AND IRRIGATION COMPANY


[Stage Direction]
On the orders of the day:
Mr. W. D. Wylie (Medicine Hat):: I should like to direct a question to the Minister of Agriculture, based upon reports which appear in the Medicine Hat Daily News, and the Brooks Bulletin, which I have just received. My question is-


An hon. Member:: Where is that?


Angus MacInnis: Not in the Fraser valley.


Mr. Speaker:: I must ask hon. members to allow the hon. member to put his question.


William Duncan McKay Wylie: Both papers report that the dominion government has purchased the Canada Land and Irrigation Company. Is the Minister of Agriculture in a position to make a statement?


Right Hon. J. G. Gardiner (Minister of Agriculture):: The present position is that negotiations are being carried on now in the city of Regina in connection with the purchase of the Canada Land and Irrigation Company.
Mr Wylie:	Obviously the newspaper
reports are either true or false. May I ask the minister what is the truth?


James Garfield Gardiner: I do not publish either paper.



LABOUR CONDITIONS


[Stage Direction]
On the orders of the day:
Mr. W. Ross Thatcher (Moose Jaw):: should like to direct a question to the Minister of Labour-I have been asked to do so by the city council of Moose Jaw. In view of the increased number of people drawing relief in certain parts of Canada, and the heavy burden thus placed upon municipalities, has the government given consideration to paying a share of relief costs as was done prior to the war?


Mr. Speaker:: Order. I could not hear the question, but in any event I would inform the hon. member that if he has a question to ask he should ask it as briefly as possible.


Mr. Cruickshank:: Don't make a speech.


Wilbert Ross Thatcher: I was not going to make a speech.


George Alexander Cruickshank: What are you doing now?


Wilbert Ross Thatcher: Then I will put my question. Has the government given consideration to paying a share of relief costs as was done prior to the war?


Hon. Humphrey Mitchell (Minister of Labour):: The Department of Labour is watching the unemployment situation very carefully. Through reports from the national employment service and the unemployment insurance returns, a close check is kept on the employment situation in Canada. At the present time there is a very high level of employment. The last figure we have is for June 4, 1949, when there was a total of 5,121,000 in the labour force. On the same date in 1948 the figure was 5,030,000. This is the latest month for which we have comparative figures.
There is not as acute a demand in Canada this fall for some types of workers as there was last year, and there is an increase in the number of unplaced applicants. In September, 1948, the total number was 87,207, whereas on the same date in 1949 the total was 140,892. But the hon. member will agree, I am sure, that with a total working force of over five million the number of unplaced applicants, even at 140,892, is not high in a comparative sense.
Representations have been made by two of the larger cities, one in eastern Canada and one in the west. From an examination of the statements made, I know that the concern is not about the immediate expenditure on relief but about what certain individuals feared was going to happen. It is my opinion that we have very little to fear, and that we shall be able to maintain a high level of employment in Canada.


Wilbert Ross Thatcher: Will the minister state
whether at the forthcoming dominion-provincial conference the matter of relief costs will be discussed with the provinces?


Mr. Speaker:: Order. I hardly think that is a question of urgency at the moment.


George Alexander Cruickshank: Are there any unemployed members of parliament from Moose Jaw? If not, why not?



SUPREME COURT ACT


[Stage Direction]
The house resumed, from Tuesday, September 27, consideration in committee of Bill No. 2, to amend the Supreme Court Act- Mr. Garson-Mr. Dion in the chair.
Supreme Court Act
On section 1-Constitution of court.
(Translation):
Mr. LaCroix:: Mr. Chairman, I move that clause 1 of the bill be amended by the addition thereto at the end of section 4, substituted for the one that is now repealed, of the following words:
Provided that four of the puisne judges be chosen among the candidates proposed by the lieutenant governor in council, and that one of the four above-mentioned judges be chosen among the candidates proposed by the lieutenant governor in council of the province of Quebec, each province having to propose at least three candidates.
Of course this does not amend section 6, but merely section 4. I consider that under this amendment at least one of the judges provided for by section 6 will be chosen among those proposed by the government of the province of Quebec.
(Text):


The Chairman:: As I have no translation of the amendment, I will ask the Deputy Clerk to supply me with one, and I will read it.
Section stands.
On section 2-Appeals from final judgments.


Joseph-Alfred Dion: Shall section 2 carry?


Some hon. Members:: Carried.


Mr. Fulton:: Mr. Chairman, did you call section 2?


Joseph-Alfred Dion: Yes.


Some hon. Members:: It is carried.


Edmund Davie Fulton: We did not hear section 2 called.


Howard Charles Green: I should like to ask a question on subsection 2 of section 1. I understand that this is the one which amends section 6 of the act. The new section provides that three at least of the judges shall be appointed from among the judges of the court of king's bench, or of the superior court, and so on.


Mr. Si. Laurent:: That is section 1, and it has been allowed to stand. We are dealing with section 2 of the bill.


Joseph-Alfred Dion: All of section 1 stands. Shall section 2 carry?
Section 2 agreed to.
On section 3-Judgment to be final.


Mr. Fleming:: Mr. Chairman, I think you just said that clause 1 stands and clause 2 is carried. I thought it was the other way round.


Joseph-Alfred Dion: Section 1 stands. Section 2 is carried.	.


Donald Methuen Fleming: I did not understand that was what the Prime Minister said just now.

Supreme Court Act


Joseph-Alfred Dion: Order. I gave the floor to the hon. member for Kamloops but he did not take it, so I gave it to the hon. member for Grand Falls-White Bay.


Mr. Ashbourne:: While we are dealing with section 3 of the bill I should like to direct a question to the Minister of Justice. Under this section appeals to the privy council are to be abolished. Would this in any way affect the decision of the privy council of March, 1927, relating to the delimitation of the New-foundland-Labrador boundary?


Stuart Sinclair Garson: The answer to the hon. member's question is no; but if that reply were left upon the record by itself it might not answer the question as fully as it should be answered. For that reason I think perhaps it is desirable to make a statement upon the rather important point the hon. member has raised.
In the application of the rule of stare decisis it is what lawyers call the ratio decidendi, or the principle of the case, which binds. By the application of the principle of the case to the facts of the case the issue of the case is decided. When the issue has been decided it becomes what lawyers call res judicata, or an adjudicated matter, and as such it is forever binding upon the parties to the case. It cannot subsequently be opened up, even though the principle upon which the res judicata or adjudicated matter was decided may be distinguished or overruled by a subsequent judgment of the same court in another case.
Therefore when the privy council rendered its judgment in the Quebec-Labrador boundary dispute it fixed the boundary, as far as it is possible legally to do so, between Labrador and Quebec, and thereupon that matter became res judicata, so the parties to that controversy are forever bound by the terms of this judgment. But in any case the boundary between Labrador and Quebec has been fixed by the terms of union between the province of Newfoundland and Canada. Not only do the terms of union state that the province of Newfoundland shall comprise the same territory as at the date of union; they go on to expressly adopt the privy council judgment. Moreover, provincial boundaries generally are protected by the British North America Act, 1871, which requires the consent of the legislature of a province before the boundaries of that province may be altered in any way.
I understand the boundary line has not yet been marked out or surveyed, and I believe that was one of the points raised by the hon. member for St. John's East in his remarks the other day. In this respect, however, I would say the Newfoundland boundary does not differ from the boundaries of some other
provinces. The process of marking out provincial boundaries in Canada has been continuing ever since the provinces were formed, and conceivably some unsurveyed boundaries still remain, including this one now under discussion. Obviously the legal limits must be established before the actual boundary line can be marked out on the ground; and in the course of marking a boundary line it is conceivable that there may be differences of opinion as between surveyors or engineers as to how the actual line on the ground should be drawn. Should any such disputes arise they can be settled by the courts; and in deciding any particular dispute the courts of course would be bound by the privy council decision and the terms of union. In delivering the judgment of the privy council in this boundary dispute case Lord Cave, in 137 Law Times Reports, 187, at page 200, said:
. . . the boundary between Canada and Newfoundland In the Labrador peninsula is a line drawn due north from the eastern boundary of the bay or harbour of Ance Sablon as far as the fifty-second degree of north latitude, and from thence westward along that parallel until it reaches the Romaine river, and thence northward along the left or east bank of the river and its headwaters to their source and from thence due north to the crest of the watershed or height of land there, and from thence westward and northward along the crest of the watershed of the rivers flowing into the Atlantic ocean until it reaches Cape Chidley; . . .


Edmund Davie Fulton: The remarks of the minister have been of great interest to the committee and particularly, of course, to the members from the new province of Newfoundland and perhaps also those from Quebec. It would seem rather conspicuous that the minister did not deal at great length with this question of the principle of stare decisis in general terms. The matter was discussed during the debate on second reading, and I do not want to go over the ground covered at that time, but there are certain points which I think should be emphasized, and we feel the matter is so important that it should be incorporated in the bill by way of amendment to this section.
What the minister has just said with regard to res judicata is of course the general principle which is understood by lawyers, though perhaps not so well understood by those who do not belong to the legal profession. The simple principle, which is of great moment to every Canadian, is that the law as settled by previous decisions should be the law which applies and which is binding in future. That is a principle which, during the discussion on second reading, the Prime Minister said is acceptable. The first point I make, then, is that since that is acceptable there should be no objection to having such a principle incorporated in the bill, in order to place the matter beyond question.

I think it important that this should be done because of the statement by the chief justice to which reference was made during the debate on second reading, a statement which certainly gives rise to well-founded misgivings in the minds of those concerned with the preservation of this principle. That statement, as reported in the Ottawa Journal of June 2, certainly would seem to bring into question whether the supreme court would regard itself as bound by the previous decisions of the privy council in so far as they relate to Canada, after it is made the court of final jurisdiction for Canada.
So in the first place I say it is desirable to have that principle recognized. It is important, because of the statement to which I have made reference, that the principle should be incorporated in the bill. Furthermore there is no lack of precedent for such a step. In my own province of British Columbia we have it in our Laws Declaratory Act. Some may object that if the principle is recognized and applied by the courts there is no need to go the length of incorporating it in the statute. My answer in part is what I have already stated, but in addition there is precedent for that being done in the statutes of most of the provinces of Canada.


Stuart Sinclair Garson: Is not what my hon. friend is referring to in the case of British Columbia, and Manitoba as well, the setting up as of a certain point of time-July 15, 1870, in the case of Manitoba-of a whole body of law to apply to a new province coming into being? Now that, I suggest to him, is a very different thing from putting a provision in the Supreme Court Act directing the supreme court to apply the rule of stare decisis.


Edmund Davie Fulton: I do not think so, Mr. Chairman; it seems to me the provisions are the same. Up until that time the province of Manitoba, to take the case referred to by the minister, had been a part of Canada and had, therefore, presumably been under the laws of Canada. But not only were we creating a new province, we were setting up courts to administer justice within this province. It was then thought important to lay down the theory that the courts would be bound by the law as it existed at a certain date. I submit the parallel is very close. We are not setting up a new court, but we are investing the Supreme Court of Canada with final jurisdiction in all cases arising within Canada. I submit that, by the same line of reasoning as was followed in the earlier cases, we should provide that the court will be bound by the law as it was declared to be in the judgments of the privy council which, until now, has been the final court to which these questions were referred.
Supreme Court Act
I should like to read the provision of the Laws Declaratory Act of the province of British Columbia. It does not say the law of British Columbia, a new province, shall be the law as it existed on a certain date, but it says the new courts which were being set up would be bound by the law.
Subsection 6 of section 2 of the Laws Declaratory Act of the province of British Columbia, found in the Revised Statutes of British Columbia, (1948), volume 2, reads as follows:
Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the court and every judge thereof shall recognize and give effect to all legal claims and demands and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as the same would have been recognized and given effect to in the court if this Act had not passed.
It will be seen that the court itself was to be bound by the law as it existed at the time this act was passed.


Stuart Sinclair Garson: That was on the occasion of the setting up of a new province.


Edmund Davie Fulton: The law was declared to be the law as of April 29, 1879. What we are doing here is investing the Supreme Court of Canada with final jurisdiction. It cannot be denied, therefore, that we are altering either the jurisdiction or the competence of that court. In the absence of an express statutory provision to the contrary, it would be open to the court to say, "We are now the court of final jurisdiction for Canada." Perhaps it would not be said directly but indirectly-the chief justice has said it directly-"We feel that the decisions of the privy council are the decisions of a court four thousand miles away. We have a different set of circumstances." There is nothing in the remarks of the chief justice to indicate that he was referring only to decisions in cases that did not arise in Canada. His remarks have equal application to privy council decisions in cases coming from Canada as well.
That remark, which was made in the course of a case before the court, certainly indicated that the court would feel itself free to branch out into entirely fresh law. Since we believe it is so important that the people of Canada should know the state of the law, in the interests of uniformity of decisions in the future as in the past, we feel some provision must be incorporated into the act to the effect that the court is bound by the law as it was stated to be in the previous decisions of the privy council. I want to observe that such a provision in no sense puts a court in a strait-jacket. It certainly has not put our

Supreme Court Act
courts in the west in a strait-jacket because there was a provision stating the law would be the same as it was prior to April 1, 1879.
As the minister has said, cases can be and probably will be distinguished. Where the facts are clearly distinguishable, then decisions will vary. I believe it is important to the people of this country and particularly the provinces of this country whose rights, not only as against the dominion, but as against each other have, in the past, depended upon and been settled by the decisions of the privy council, that those provinces should know that the principles which guided the privy council in coming to its decision shall continue to bind what is now to be the court of final jurisdiction in Canada.
This is not a dry legal question. It is a question that affects the welfare and interest of every private citizen as well as of our different governments, provincial and federal. The Prime Minister having accepted the principle, I submit that the wording of the amendment I am now about to move gives no more than formal recognition of that principle and carries it into the wording of this statute. I therefore move, seconded by Mr. Fleming, that section 3 of Bill 2 be amended by inserting immediately after line 17 on page 4, the following, to be numbered as subsection 4 of section 54 of the act:
Subject to any enactment of the parliament of Canada or the legislature of any province in exercise of their respective powers, the Supreme Court of Canada shall be bound by the law as declared in all orders of His Majesty in council hitherto made on the advice of the judicial committee of his privy council and in the reasons assigned therefor by the said judicial committee, in so far as the said law is applicable to Canada.
If I may continue for a few moments, Mr. Chairman, the committee will observe, and I direct the minister's attention to this particularly, there is no attempt being made to impose upon the court or upon this dominion a static set of laws. If at any time it may properly be felt that a law as it was declared to be in a particular decision is restrictive or hampering, it is quite open, as it obviously must be, for this parliament, or the legislature of a province acting within its proper sphere of legislative power, to enact a statute amending the law and bringing it more into line with what is felt to be the need under those circumstances.
In considering the detail of this amendment, the second point to be observed is that it is only the law as declared in those decisions of the privy council made heretofore which have a bearing upon the law as it is applicable in Canada which, by this amendment, we are seeking to declare binding on the Supreme Court of Canada in its future deliberations. I think it will be seen that we

have safeguarded here against the possibility that those whose rights, duties and obligations have been settled in the past by the law as declared by the decisions of the judicial committee of the privy council will suddenly find those rights, duties and obligations, whether they be of private citizens or of provincial governments or of the federal parliament, changed overnight. I have sought to safeguard against that and at the same time to take care not to impose upon the court or the parliament of Canada or the legislature of any province a legal strait-jacket by making it perfectly clear that parliament or a legislature can, should it so desire, enact legislation changing the law as it was declared to be in the previous decision.


Mr. Pouliot:: What the hon. member for Kamloops has said reminds me of Swift the author of "Gulliver's Travels". Once Gulliver went to Lilliput. He was tired. It was a long journey. He lay down to sleep, and then all the dwarfs came with twine and tied Gulliver to the soil. He could not move. What does my hon. friend think of the independence of the supreme court? Where does he put it? How can we think of a court of any kind that will be tied up with the past? It would be impossible for judges to make their own decisions about matters which will come before them.


Edmund Davie Fulton: May I ask my hon. friend whether he is in accord with the principle of precedents?


Jean-François Pouliot: I will tell my hon. friend to be quiet and to listen to what I have to tell him. I listened in silence to what he was saying, and I want to have some clarification of his idea, which I have not received so far. He was very obscure in his language. I understood from what he said that he expressed the view that the supreme court will be tied by all the long line of precedents of the privy council. All the bad judgments of the privy council will be imposed forever on the supreme court. Is he serious? He cannot be serious. A lawyer of his experience and standing talking such nonsense in the House of Commons is something unbelievable. I never thought that my hon. friend, who is well gifted, who is one of the best debaters of his party, the ranks of which were decimated on June 27, but who is nevertheless a legal light-that time the light was out-would use such an argument. It is unfortunate, but I cannot conceive of any court which is the final tribunal of this land being subject to all the precedents of the past, all the bad as well as all the good judgments rendered by the privy council. My hon. friend will admit that the privy

council has rendered sometimes good and sometimes bad judgments. Where will be the line of demarcation between good and bad judgments?


Wilfrid Lacroix: For instance, the Labrador decision.


Jean-François Pouliot: How can he put it on the statute books? I leave this matter aside for the time being. I do not discuss the Labrador case at all. I discuss the whole thing as a matter of principle. If it is enunciated and put on the statute books as a matter of principle that the supreme court will be tied up in the future by the precedents of the privy council, I say to the hon. member for Kamloops that it is sheer nonsense.


Mr. Brooks:: The hon. member does not agree with the barristers' society of Canada.


Jean-François Pouliot: I do not agree with the law society of upper Canada or of lower Canada or of the maritimes or with the Canadian Bar Association, and I shall tell the committee why. On one occasion I was with one of my friends from the Quebec bar. At the present time he is a cabinet minister in the Quebec government. He is a criminal lawyer of note. I refer to Mr. Rivard. I was sent by the general council of the Quebec bar to what was called a conference on the uniformity of laws, or something like that, held in Niagara Falls. We met there together, and we met all the somnolent deputy attorneys general of Canada. They were pleasant gentlemen of a certain age who could go to sleep very easily. We had a round-table discussion, and it was precisely a week before the convention of the Canadian Bar Association. The attorney general of British Columbia was there. He was a friend of my hon. friend. I will not mention his name because he is dead now. He was a prominent Tory and a great legal light of British Columbia. There were others there. We discussed several matters that were to be submitted to the provinces. They called it draft legislation, and they submitted it every year. It was a pretext for meeting a week ahead of the Canadian Bar Association's meeting. They were all there. Their expenses were paid by the provinces. It was quite happy and glorious inasmuch as one could be happy and glorious in his sleep. They were redrafting certain laws by changing a comma into a semicolon, and other important things. It was done in great solemnity. It was a tremendous job, and finally one of the legal luminaries from British Columbia, and some others from other provinces, decided that there should be a new section placed in the Criminal Code. My friend, Mr. Rivard, was on that committee.
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He had his code in his hand and he listened to the argument that it was in the public interest, and that there was great necessity to draft a new section of the Criminal Code. There they were. They worked hard. They were sweating. It was a very hot day. The weather was hot in Niagara Falls. Sometimes there was a word of wisdom and an odd suggestion that would come from the august lips of the deputy attorneys general. They were arguing, they were discussing and they were submitting new reasons for new sections. They were changing a word, adding another word, changing a comma into a semicolon and a semicolon into a comma, or putting a period in the middle of a sentence, and it was very well done. Finally, Mr. Rivard came with his Criminal Code and with the amendments, and he said to the illustrious lawyers: "Is not that article already in the Criminal Code?" That was prior to the meeting of the bar association.
I can tell my hon. friend the reason why the Canadian Bar Association has insisted so much on the maintenance of appeals to the privy council. It is because those who go to the privy council are the heads of the organization. That is the whole story. I do not believe in it. I do not believe in the privy council at all. I have read their judgments pretty carefully, and I am ready to take a chance on the supreme court. I hope that the amendments suggested by my hon. friend will be turned down at the earliest possible moment.


Donald Methuen Fleming: The hon. member for Temis-couata has just finished pronouncing the judgment of extinction on one legal light of this house, as he describes him. I am afraid at the same time he cut a very wide swath because he nearly pronounced judgment of extinction on one other very distinguished legal light in this chamber who sits on the other side. I refer to the Prime Minister. If my hon. friend will refer to Hansard for September 23, at page 197, the second column, he will find the Prime Minister has expressed himself as being fully in support of the application to the Supreme Court of Canada of the principle of stare decisis. He made specific reference to that particular branch of the resolution passed by the Canadian Bar Association at its meeting last summer, as follows:
(g) that the rule-
And the Prime Minister is quoting it at this point-
-of stare decisis ought to continue to be applied with respect to past decisions of the court-
That is, the supreme court-
-as well as-*

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And I ask my hon. friend and other hon. members to note this well-
-with respect to past decisions of the judicial committee.
That is the resolution passed by the Canadian Bar Association. The Prime Minister's comment immediately upon it is-
That is something with which I entirely agree.
We have now the opportunity with respect to this principle of making a choice between the view expressed by the hon. member for Temiscouata and that expressed by the Prime Minister. For my part, I begin with an acceptance of the principle laid down by the Prime Minister which, if I may speak with respect, I conceive to be perfectly sound. That is to say, if we are going to have an orderly system of jurisprudence, if litigants, whether they be provinces or individuals, are to know what the law is, and that the law as declared by the courts is to be binding until overruled by parliament or by a legislature, this principle of stare decisis must have recognition.
The Prime Minister has said that he shares the view expressed by the bar association, that the principle of stare decisis applies to decisions of the privy council up to this date.
I should like to direct my observations for a moment, if I may, to those members of the house who are not lawyers, because there is always a very great danger in discussion of a measure of this kind that many members, especially when they hear a few Latin expressions hurled around, such as stare decisis and ratio decidendi, will say, "Oh well, this is all a fog; what does it all mean?". I should like briefly to deal with the meaning of stare decisis.
When we are talking about the principle of stare decisis we are simply talking about the recognition of precedent-that is to say, past decisions in matters germane to the subject under discussion before the court. For instance, where the privy council at any time past has made a decision, we will say on an appeal from a provincial court-let us say the Supreme Court of Ontario-or it may be from the Supreme Court of Canada, the decision of the privy council on that matter is the law. It is the law until that law is changed by the competent legislature which, in some cases, might be the parliament of Canada and in other cases might be the legislature of a province concerned. Until the competent legislature or parliament intervenes to say that the law shall be otherwise than as declared in the highest court, that law as declared in the highest court is final. The courts must follow that decision. It is precedent; it is binding. That decision must be followed whenever it is applicable.
{Mr. Fleming.]
That is to say, so long as the principle involved in the case is the same principle that is at issue in the case at bar, and so long as the facts in the case at bar bring it within the scope of the decision or, as we say, within the four corners of the decision in that highest court, it is accepted as a precedent.


Mr. Lesage:: Would the hon. member permit a question? Would he tell me if he contends that this principle of stare decisis applies to the civil law in Quebec?


Donald Methuen Fleming: It is quite obvious that a decision of the privy council on a common law question has no application to civil law in Quebec.


Joseph Arthur Lesage: No, on a civil law question.


Donald Methuen Fleming: Because you are under a quite different system of law.


Joseph Arthur Lesage: Does the hon. member contend that a decision of the privy council respecting the civil code of Quebec is binding?


Donald Methuen Fleming: My hon. friend knows
perfectly well that, if a question came before the Supreme Court of Canada respecting the interpretation of the civil law of Quebec, and an appeal were taken from there to the privy council, the decision of the privy council would be binding, yes. The decision of the privy council would be binding.


Joseph Arthur Lesage: But what about other cases?


Donald Methuen Fleming: It would be binding in courts which are applying the civil law in the same circumstances.


Joseph Arthur Lesage: No.


Donald Methuen Fleming: That is the principle of stare decisis, and that is the law.


Joseph Arthur Lesage: It is not the law in Quebec.


Donald Methuen Fleming: I would point out that that is the principle upon which the courts proceed, and that principle has not been challenged-the principle of stare decisis, the principle of the binding effect of a precedent. That is the situation with which we are faced today.
When this bill becomes a statute we are saying, in effect, that the privy council is no longer the court of final appeal. The Supreme Court of Canada, which hitherto has not been the court of final appeal, then becomes such court of final appeal.
The next question is this: Is the Supreme Court of Canada hereafter to be bound by decisions of the privy council-not decisions in the future, because they are not involved here at all; not decisions made from this point forward. Is it to be bound by decisions of the privy council to date, decisions of the privy council which to date are the law of this land?

Nothing is being done to change the law. I dare say-and I am not making a bold guess at this-that if one were to consult the jurists of this country he would find that very few of them would say that even in the face of the adoption of the present bill the principle of stare decisis would not continue to be binding, that the decisions of the privy council to date would not continue to be binding upon the Supreme Court of Canada, even if this enactment comes into effect.
But this parliament cannot leave that subject in the realm of conjecture or uncertainty, because we have no less a pronouncement than that of the Chief Justice of Canada himself on that subject.


Louis Stephen St-Laurent: Would the hon. member allow me to interrupt? I do not think I should permit that to go unchallenged. I have discussed with the chief justice the report appearing in Hansard and the facts are that this had to do with a recent decision in England dealing with a matter of seditious libel. It was being argued that that decision was binding upon the Supreme Court of Canada. His opinion was that it was not, because for many years now the Supreme Court of Canada has been the final court in criminal matters in this country. The question which arose then was merely whether the Supreme Court of Canada was to be bound, since it has become the final court in criminal matters, by decisions made elsewhere, by courts in another country, on similar criminal matters.
What he stated-and he does not admit that the newspaper report as cited at page 286 correctly reported what took place there- was that it was merely a reassertion of the opinion he had expressed four years ago, and which is reported in the Supreme Court Reports for 1945 in re Storgoff where, at page 538, he states:
In addition to that, the Supreme Court of Canada is now the court of last resort in criminal matters; and although, of course, former decisions of the privy council, or decisions of the House of Lords, in criminal causes or matters, are entitled to the greatest weight, it can no longer be said, as was affirmed by Viscount Dunedin, delivering the judgment of their lordships in Robins v. National Trust Company Limited (4) at page 519, that the House of Lords, being the supreme tribunal to settle English law, the Colonial Court, which is bound by English law, is bound to follow it.
It was merely distinguishing between the effect on a court of last resort of a decision made by another court of last resort and saying that decisions made elsewhere by another court of last resort were entitled to the greatest weight as authorities but had no legally binding effect upon another court of last resort. I think it is only fair to the chief justice that the impression should not go abroad that he is in any way quarreling
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with the proper application of the doctrine of stare decisis.


Donald Methuen Fleming: I thank the Prime Minister for making the statement he has and giving us the assurance he has in connection with the interpretation placed by certain newspapers upon the views expressed by the chief justice. Those newspaper reports have had a disturbing effect upon the minds of many people including members of this House. One can understand the views of the chief justice in connection with a case such as that explained by the Prime Minister. It is now quite clear and understandable and I again thank the Prime Minister for making the statement at this particular time.
Leaving aside the statement by the chief justice to which we have been referring, and seeing that we seem to be in agreement as to the desirability of the continued recognition of the principle of stare decisis by the Supreme Court of Canada after this bill is in effect with regard to decisions hitherto made by the privy council in so far as they are applicable to Canada, the only question that could remain is whether such an enactment is necessary.


Louis Stephen St-Laurent: Or advisable.


Donald Methuen Fleming: I should like to deal with the first point with respect to the necessity of such a measure. If the Supreme Court of Canada is certain to recognize the decisions of the privy council which have been made up to the time this bill goes into effect, then presumably this amendment would not be necessary. But I am arguing that it is highly desirable that this amendment be inserted in the bill. Hon. members will recall the view taken by the Canadian Bar Association. After all, in matters of law, and this is a technical legal question, the views of the jurists of the country as represented in the Canadian Bar Association-and the association embraces not only practising lawyers but judges who participate freely in the discussions on legal questions-should receive consideration. That association has indicated in a resolution that this is a safeguard that ought to be written into the measure.


Louis Stephen St-Laurent: If the hon. member will read the resolution I think he will find that it does not go that far. The resolution is merely to the effect that the rule of stare decisis ought to continue to be applied with respect to past decisions of the court. There was no expression of opinion as to what should be done to have it continued to be applied; there was merely a statement that it ought to continue to be applied. I think on that point at least the hon. member and

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I are in full agreement. I think if he reads the resolution he will not find any expression of desire that that be written into the law.


Donald Methuen Fleming: I think the Prime Minister and I are on common ground to this extent. I did not intend to convey the impression that the bar association had said that they wanted an amendment in precise terms. What the bar association did say, and I think it is set out in plain terms, is that if parliament is going to proceed to abolish appeals to the privy council, then it should be done on certain terms, and one of those terms should be that the rule of stare decisis ought to continue to be applied with respect to past decisions of the judicial committee as well as with respect to past decisions of the court.
If we could be assured in advance that the supreme court will recognize the principle of stare decisis with respect to decisions of the privy council, then there would have been no need for the bar association to pass such a resolution. That would have been unnecessary because it would follow in any event. But what the bar association has said is that, if appeals to the privy council are going to be abolished, then-this is the plain meaning of the resolution-there should be assurance of the continuance of the rule of stare decisis.
How can you assure that continuance? I think it would be humiliating to the Supreme Court of Canada if parliament were to ask the court for an assurance of this kind in advance. Therefore, the body that is being called upon to abolish appeals to the privy council, the body to which the citizens of this country as well as the bar association under the clear terms of its resolution look for an assurance of guarantee of recognition by the Supreme Court of Canada of this principle of stare decisis, should provide for that continuance. If we wish to achieve now a guarantee of that continuance of the application of the principle of stare decisis, the only way to do it is by an amendment of this kind.
One who ought to have some knowledge of the intentions of the bar association with respect to this resolution has said something on this subject since the debate on the second reading of this bill commenced. I read from a Canadian Press dispatch from Saint John, dated September 28, reporting an interview with Mr. A. N. Carter, president of the Canadian Bar Association. This reads as follows:
A. N. Carter, president of the Canadian Bar Association said tonight in a statement that proposed federal legislation to make the Supreme Court of Canada the last court of appeal should contain a clause forbidding the court from reversing previous decisions.
"The rule of stare decisis ought to be continued to be applied with respect to past decisions of the court as well as with respect to past decisions of the privy council," the statement said.

The Canadian Bar Association, at its annual convention last month, suggested the bill, now passed second reading in the House of Commons, be delayed.
Though it is the practice for the Supreme Court to abide by the rule of stare decisis, Mr. Carter said, "it is not bound inflexibly to do so."
Such an enactment by parliament would safeguard provincial and minority rights, he said.
I submit that that statement is entitled to great respect. It is an authoritative interpretation by the president of the Canadian Bar Association of the intentions of that association as recorded in a resolution passed at its annual meeting less than two months ago. I want to ask hon. members, whether they be learned in the law or whether they follow other callings in life, to consider what could happen if the principle of stare decisis were not recognized in the future by the Supreme Court of Canada with respect to decisions hitherto made by the privy council. It is a matter of history that in the early days of the Supreme Court of Canada the trend of the decisions of that court in constitutional cases was in favour of the powers of this parliament. I do not say that that was improper, but the view taken by the court at that time had the effect of increasing the powers of parliament and of the dominion government in connection with matters which were in conflict as between the dominion and the provinces. In many instances those early decisions of the Supreme Court of Canada were reversed by the privy council. The emphasis placed by the privy council, as every student of constitutional law and constitutional history knows, was in the other direction.
The privy council decisions in the latter part of the nineteenth century and in the twentieth century were in favour of the enlargement of the powers of the provinces as those powers were debated in the courts. Had there been in those years no privy council to which appeals could be taken from the decisions of the Supreme Court of Canada, had the decisions of the Supreme of Canada been the final and binding interpretation of our constitution, we would have had a very different kind of constitution today from that under which we live, as interpreted by the courts including the privy council. We would have had a constitution, as a result of that interpretation, with great emphasis upon the powers of the central government and the powers of this central legislature, this parliament. You would have had a very great diminution in the powers of the provinces, their legislatures and their governments, compared with the powers they enjoy today as the result of these binding interpretations of the constitution.
In approaching the question of stare decisis, I ask hon. members not to regard it as some-

thing in the nature of the dry bones of the law. It is far from it. When you deal with the interpretation of the constitution of the country you are dealing with something that is of the absolute essence of our national existence. There are changes that should be made in the constitution of the country, and I shall be happy to discuss them at the proper time.


Mr. Hellyer:: Do you think that the judicial committee of the privy council has, from the time of the passing of the British North America Act in its original form, followed the principle which you are now citing?


Donald Methuen Fleming: They have professed to follow it. There are some nice questions that the constitutional lawyers like to discuss as to whether the principle has really been honoured, but nevertheless the privy council has professed to follow its own decisions. It is true that in some of the decisions in later years they have had considerable difficulty in distinguishing some of the earlier ones, but nevertheless there has been a recognition of the principle.
There are changes that ought to be made in the constitution, but the way to make them is not to throw overboard the principle of stare decisis. That would be something that would cut to the whole root of our constitution as we understand it in Canada today. If we are going to tackle that subject I submit we ought to find another way.
The Prime Minister may urge-and I take it in the light of his last remarks it is his view-that it is not necessary to insert an amendment in the bill that the Supreme Court of Canada shall follow the decisions previously made by the privy council. I hope it will until they are changed properly either by parliament or by the legislatures, whichever may have the required competence. This amendment of course does not attempt in any respect to invade the rights of the provinces or the legislatures, but let us be sure of this thing. This matter is too important to the whole national fabric of Canada to be left to any doubtful dispute. Why should we leave it to dispute? We are sitting today as the sovereign parliament of Canada. We are proposing that hereafter there should be no appeals of any kind from the Supreme Court of Canada to the privy council. We are proposing that the Supreme Court of Canada shall be the court of exclusive and final jurisdiction in all causes arising within Canada. It is the simplest thing in the world for a parliament that says that to go forward and do the thing that ought to be done to assure that there will not be any change in the established interpretation of the constitution
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unless it is carried out in the proper way by parliament and the provinces.
I think the amendment puts it as simply as it can be put, that the decisions of the privy council, which are binding today upon the courts of Canada under the principle of stare decisis, shall continue to be binding after the Supreme Court of Canada becomes the court of final and exclusive jurisdiction, saving always the right of change by parliament in matters within the jurisdiction of parliament, and saving the right of change by the legislatures of the provinces in matters falling within their jurisdiction.
For that reason I submit that the amendment is necessary, that there cannot be any objection to it by any member of the house who shares the view expressed by the Prime Minister as I read it from page 197 of Hansard, and that in doing this we are taking a step that is vitally necessary to safeguard especially the rights of the provinces.


Stuart Sinclair Garson: First of all, I want to express my thanks and appreciation to the hon. member for Kamloops and the hon. member for Eglinton for the illumination which they have shed upon this subject. I think that the former in the language of his amendment has indicated clearly, for reasons that I shall state later, that we would be attempting to do something that is beyond our constitutional powers.
The hon. member for Eglinton has very properly expressed some concern as to the position of the lay members of the house in connection with this rather technical legal discussion. I think it would not be amiss if I were to attempt to review those points upon which the Prime Minister and the two hon. members to whom I have just referred, and myself seem to be in agreement. The first is that a decision of the privy council on a Canadian appeal is a conclusive interpretation or statement of the law. When it is delivered it becomes an integral part of the law of Canada, and it must remain an integral part of the law of Canada until the proper legislature changes it, or until it is reversed by the privy council itself. I am sure the hon. member for Kamloops and the hon. member for Eglinton will agree with that proposition.


Donald Methuen Fleming: Entirely.


Stuart Sinclair Garson: The question is whether we in this house have enough confidence in the Supreme Court of Canada as a court of last resort that we think it competent and willing to apply the privy council decisions as an integral part of the law of Canada. I say that if we have not that degree of confidence in the Supreme Court of Canada then not only should we not make it the court of last

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resort for Canada, but I think there is a grave question whether we should continue it at all as an institution of the country. If or when we get to the stage in Canada, in a provincial court for that matter, and certainly in our court of last resort, that we as a legislative body have to sit here and as a part of the legislative function of government direct the judicial branch of the government as to how it should exercise its judgment, then we should have reached a very low state of judicial competence, and a very low state of the legal profession in this country.
That is the simple issue. My hon. friends in this, as in previous statements which they have made concerning this bill, indicate that they are afraid that Canadians should attempt to exercise the ultimate judicial functions in our country, and are showing in this amendment another example of that apparently utter lack of confidence which they have in the idea of our abolishing appeals to the privy council and of attempting to decide our own legal cases for ourselves.
Well, sir, we of the government do not share that lack of confidence. We are satisfied that the rule of stare decisis, which as the hon. member for Eglinton has said is part of the settled law of this country, will be properly applied by the Supreme Court of Canada. In that connection I think it would be relevant for me to point out that the rule of stare decisis has long governed the Supreme Court of Canada. If the hon. member for Eglinton and the hon. member for Kamloops are in doubt on that point, I would refer them to the judgment of Mr. Justice Duff, as he then was, and Mr. Justice Anglin in the case of Stuart v. Bank of Montreal, 41 Supreme Court Reports at 516, where in the most explicit terms they say they are bound by this rule.
The only interpretation we can place upon this amendment is that it expresses lack of confidence. The amendment reads:
Subject to any enactment of the parliament of Canada or the legislature of any province in the exercise of their respective powers, the Supreme Court of Canada shall be bound by the law as declaredand so on. If the law as set out in the decisions of the privy council, which we are going to enact that the supreme court should follow, by the express terms of my hon. friend's amendment, is law which it would be necessary for the legislature of a province to enact or amend, then by the express terms of this amendment he is asking us to invade provincial jurisdiction; and, if we were so unwise as to attempt to do that, it would be clearly beyond the powers of this parliament.


Mr. Graydon:: Are you not rather mixed up there?


Stuart Sinclair Garson: No, I am not at all mixed up. My hon. friend's amendment reads:
Subject to any enactment of the parliament of Canada or the legislature of any province in exercise of their respective powers, the Supreme Court of Canada shall be bound by the law as declared in all orders of his majesty in council hitherto made on the advice of the judicial committee of the privy council-
In other words, he is asking this parliament to direct the Supreme Court of Canada to follow those decisions of the privy council which deal not only with matters coming under the jurisdiction of parliament itself but with matters which come under provincial jurisdiction. We in this house can legislate in connection with the procedure or organization of the supreme court. We have that power under section 101 of the British North America Act. When we undertake to say by way of statutory enactment, however, that decisions of the privy council dealing with matters which come within provincial jurisdiction shall be followed by the court, I think we are clearly invading the jurisdiction of the provincial legislatures and doing something beyond our power. In the view of the government this matter of applying the rule of stare decisis is a judicial rather than a legislative function; and when we interfere legislatively with a judicial function we can only make for confusion in a matter which, if left as it stands, is perfectly clear.
I am sure the hon. member for Eglinton and the hon. member for Kamloops are in complete agreement that the rule of stare decisis is part of the settled law of Canada; they have said so within the last few minutes. The whole issue is whether we think we can trust this body of men whom we are proposing to clothe with the very great responsibility of being the court of last resort for Canada with the simple, plain and clear task of applying the settled law of this country to the cases that may come before them. If we are not prepared to entrust them with that task we should not consider making them the court of last resort in this country. If we adopted this amendment we would be saying in effect that we have so little confidence in the ability and willingness of the court to do what is its sworn duty that if we did not direct it to do its duty we do not think that it would be done.
My principal objection to this amendment is that in the manner I have indicated it clearly invades the field of provincial jurisdiction. Under section 101 of the British North America Act this parliament is empowered to set up the Supreme Court of Canada and do all those things and enact all those laws and provisions ancillary thereto. When we come to direct that court

to follow privy council decisions which deal with provincial matters, however, that direction in its pith and substance is an enactment of substantive law and not an enactment of procedural law, which under section 101 we have authority to pass. In the course of giving a general direction as to the whole body of privy council law it is inconceivable that we would not deal with matters coming under property and civil rights, for example, and such a provision would be a clear invasion of the provincial field of legislation.
Then it would be open to the other objection. When we direct the supreme court to say that a given statute of the dominion is valid because it has been declared valid by the privy council, in my opinion there is grave doubt as to whether we are not attempting to accomplish a statutory interpretation of the British North America Act itself. If we have power to direct the Supreme Court of Canada to consider itself bound by a privy council decision which says that a certain act of parliament is valid, then equally we must have power to direct the supreme court that it shall not follow the privy council decision, and shall hold the act in question invalid. Were we to do so, the effect of our enactment would be to amend the British North America Act itself. It would amount to a constitutional amendment taking the form of a direction to the Supreme Court of Canada to follow or not to follow privy council decisions.
In drafting the bill we have endeavoured to avoid any invasion or prejudice of the provincial field of jurisdiction. Thus, so far as the government and Department of Justice are concerned, there is no intention of recommending to the members of this house that they should risk invading provincial jurisdiction by directing the Supreme Court of Canada as to what decisions of the privy council it must or must not follow or that the supreme court should apply the rule of stare decisis. The government has such confidence in our supreme court and in the citizens and public men of Canada that we are willing to rely on the court to apply, in a proper judicial manner, to the cases which come before it, the rule of stare decisis or any other part of the settled law of Canada. We are willing to rely upon the public men of Canada not to interfere with the judicial functions of the court just as the government, in submitting this bill in its present form to the members, is not interfering with the judicial functions of the supreme court. If this amendment is refused, we will continue not to interfere with the functions of the supreme court. But, if the amendment is accepted, then we will certainly be interfering with the functions of the supreme
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court. If I mistake not, that is the very thing which my hon. friends said would be one of the worst offences of which the government could be guilty in connection with making the supreme court the court of last resort in this country.
There have been certain implications that, in time of trouble and bitterness or political excitement in this country, it is a fine thing to be able to take constitutional cases to the privy council. The plain implication of that is that it is not advisable, under such circumstances, to go to our own court. I should like to put on the record-


Donald Methuen Fleming: On a point of order,
Mr. Chairman, we are in the committee of the whole and I take it it is not proper for the minister to reopen the debate that was closed on second reading of the bill. Those who have spoken in this debate in the committee this afternoon have said nothing of the matters to which the minister is now referring. He is setting up a straw man and will proceed to knock him down. There can be no return to or reopening of the debate on second reading; that is closed. My hon. friend the member for Kamloops (Mr. Fulton) and I have scrupulously refrained from saying anything on the principle of the bill. The principle was adopted on second reading. Are we going back and thresh over that old straw? The minister is clearly out of order.


Stuart Sinclair Garson: My friend is so proud of the stand he took on second reading of the bill, he is not anxious to repeat it.


Donald Methuen Fleming: On a question of privilege, the minister has no right whatever to make any such statement, because this is the first time I have spoken on this bill at any stage.


An hon. Member:: He is speaking about the amendment.


Donald Methuen Fleming: The minister is dealing with the principle of the bill and I ask you, Mr. Chairman, to call him to order.


Stuart Sinclair Garson: Upon any strict interpretation of the rules of the house, I believe it would be in order for me to say what I have said in relation to the amendment which is now offered to the house. The amendment can have no other meaning than that the man who has moved it has not sufficient confidence in the supreme court of this country.


Edmund Davie Fulton: On a question of privilege, Mr. Chairman, the minister has no right to make such a statement. Lack of confidence in the court is not inherent in the amendment nor is it suggested by it. It is a product of a fantastic turn of mind to suggest it could be.

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Furthermore, I suggest it is an improper reflection upon the motives of the members of this house and should be withdrawn.


Stuart Sinclair Garson: I said nothing whatever about my hon. friend, or about his motives. I was speaking about his amendment, and that speaks for itself.


Edmund Davie Fulton: With respect, sir, I would ask for a ruling.


Stuart Sinclair Garson: May I speak to the point of privilege my hon. friend has raised? I say, sir, that the amendment which is offered says that we must direct the supreme court to apply the rule of stare decisis, which is a part of the settled law of the land. If that does not show a lack of confidence in the supreme court on the part of the member who moved that resolution, then I do not know what would show a lack of confidence.
Such a lack of confidence is not warranted, I suggest, Mr. Chairman. I checked back as to the number of cases on constitutional points which had been decided by the Supreme Court of Canada from about 1918 to the present day. I found that there were 60. Of those cases there were two in which, in spite of this influence which living in Ottawa is said to have upon the members of the supreme court, the court was unable to do other than arrive at an equal division of the judges. Of the remaining 58 cases, in exactly one-half the dominion view of the case was upheld, and in the other 29 cases the provincial view was upheld.
I am not suggesting for a moment that any rule of thumb computation of this sort proves the impartiality of the supreme court decisions on constitutional matters. I do suggest, however, that, upon the surface at any rate, it appears as if the Supreme Court of Canada had not been guilty of any great partiality. Of the 60 decisions rendered in the last 30 years, 29 have upheld the dominion view and 29 upheld the provincial view. It is for these obvious reasons, sir, that, while agreeing with the member for Eglinton (Mr. Fleming) and the member for Kamloops (Mr. Fulton), that the rule of stare decisis is a part of the settled law of this country, we are prepared, nevertheless, to leave it to the court itself to exercise its judicial, not legislative, discretion and apply the settled law to the cases which come before it.


Thomas Langton Church: I wish to refer to section 3 of this particular bill. I have not taken up much of the time of the house in connection with it. I did make a short address the other day, but I wish to refer to the differences between what was done before and what is being done now in this committee. I am objecting to the method and manner of carrying this out. This particular proposal goes
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much further than the private bill for which I moved the six months hoist at an earlier session. It is a much wider bill and, if you ask me, it makes a scrap of paper out of the British North America Act in two ways.
Under the British North America Act British subjects have certain rights and privileges. On the first and second readings of the bill I asked two questions. Did this government propose to make a scrap of paper out of the British North America Act? Is that Liberalism of the twentieth century? Is that the kind of Liberalism that we were promised in Quebec and Ontario during the last election? I say no, it goes much further than that. I am objecting to the method and manner of carrying it out. It can only be done as the hon. member for Temiscouata said the other day. He was objecting to the same thing, the method and manner of bringing it about.


Mr. Cannon:: The hon. member is not now speaking on the amendment; he is clearly speaking on the principle of the bill.


Thomas Langton Church: You can make your own speech later. I would like to get some order in the committee, Mr. Chairman. I am not saying anything out of the way. I would like to get some order especially from those behind the curtain. If they want to speak on the bill let them speak out.
We know that this is nothing else but a political bill. It is a political bill first, last and always, and was promised in the late election. The very same promises were made right across Canada. What were those promises?


Charles-Arthur Dumoulin Cannon: The hon. member admits that he is speaking on the principle of the bill.


Thomas Langton Church: No, I am not. There are certain rights which we have always had, and we had them long before confederation. We have had them ever since we were a country, and dear knows I have been one of those who appreciate that we have the province of Quebec in this country. I paid tribute to them on many occasions. I paid tribute to them when they had fewer friends in this house than they have now. I say that the manner and method of carrying this out is altogether wrong. It will be noticed that all through the bill it says: "This is new; the amendment will abolish appeals to the privy council." Because the Minister of Justice says so it does not make it so. The provinces have a contract. The other day I quoted from the Statute of Westminster. I quoted from a textbook, Wheare on the Statute of Westminster, which is one of the greatest authorities we have on this particular statute. I said the other day that sections 6 to 13 of the Statute of Westminster

did not apply to either New Zealand or Australia. They were wise to contract themselves out of it.
This particular bill is unconstitutional. In the first place, the government has no power to bring it in. It is going to make a scrap of paper out of what? Out of the British North America Act, out of the provinces and out of the right of a subject to petition his king, which he has always had. That was Liberal doctrine. It was Liberal doctrine that a subject had a right, as a matter of grace, to petition his king as to his citizenship and property. Every subject in this country, whether French or English, or wherever he comes from, has the right as a matter of grace to send a petition right up to the king on the throne.


Jean-François Pouliot: He may write to the king.


Thomas Langton Church: And he is sure to get the king's reply. Now you are going to take away that right. Is that Liberalism? Is that the Liberalism that we of the older provinces were promised at confederation? It is not a constitutional question. This bill tears up all the case law and the decisions which were reported here at some length by some hon. members of this side and the Minister of Justice. I am surprised at the Minister of Justice bringing in such a bill as this. I say that if this bill goes through I have no doubt it will be declared unconstitutional. It cannot take away the contract which was made in 1844, and long before that in this country. As this textbook on the statute says, the provinces had a contract when they came into confederation. We first got this law by the Constitutional Act of 1791. At that time so much of the law of England was copied in by two provinces of Canada as was applicable and adapted to our circumstances. That was the law. As I said the other day, the king had to have his courts. He could not do it all himself and administer justice. That is how courts of law came into being.
The other day I referred to several fine Liberal ministers of justice. They were absolutely opposed to the method and manner indicated in this bill. There is a difference between this bill and bills which have been introduced in the past. They widened the bill, if you please, to include what? To include something regarding the use of the French language. If there ever was a body that protected minorities it was the privy council. They held a pretty fine balance. I quoted the doctrine of stare decisis when I spoke in 1921 and 1922 on the matter when it was first proposed in this house. I was quoting that doctrine because some of the decisions were given by magistrates. There
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were 180,000 orders in council passed in this country during the war, only four of which ever got to the supreme court, this famous body to which they want to hand over the law. Only four of them ever got to the privy council. One was in regard to margarine.
This new bill seeks to use this new system of Liberalism. Sir Allen Aylesworth was one of the ablest ministers of justice the country has ever had. I quoted him the other day. He said it could not be done. He is probably one of the greatest lawyers this country ever produced. He was on the Bering sea arbitration. There was also a great lawyer from Quebec. He was solicitor general in the Laurier cabinet at the time, and I got him to kick off the football at Rosedale grounds in a game between Queen's and Osgoode Hall. He became the attorney general of Canada and minister of justice. He became chief justice of the Supreme Court of Canada and lieutenant governor of Quebec. What did these men say? They were absolutely opposed to the method proposed in this bill as suggested by the Minister of Justice and the Prime Minister. We want something better than that from Liberalism.
As I said the other day, and as I said twenty years ago, we want a British North America Act for the living and not for the dead. We want it brought up to date to meet changing conditions. The two debates which went on yesterday showed a need of some change for the working class of this country. Are we going to make a scrap of paper out of the British North America Act? Although the government desires the passage of this bill, I do not think it will ever get past the courts.
During the election the Prime Minister spoke in our city. He was very popular there. He got a great reception, but he should have told them about the bill of rights which he proposed to have introduced. If he had told the people of Ontario, the west and the mari-times, that he was going to wipe out with one sweep of the hand all the rights and privileges which they enjoyed when they came into confederation, things might have been different. If he had told the people of Toronto that, and also the people of the maritimes, things might have been different. As this textbook says, Ontario and Quebec came in on a contract. It was hard to get them into confederation. Their contract cannot be altered without their consent, or without an address from both houses of parliament to His Majesty. Afterwards, other provinces were joined. Is that twentieth century Liberalism as we have it today?
His Majesty the King visited this country, including the province of Quebec. In no part of Canada was he given a better reception

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than in Quebec, thus showing the tremendous popularity of the monarchy at the present time. But what are we going to do? We are proposing to take away the right to petition the king if anything goes wrong with property or civil rights of the subject or citizen. That is going to be wiped out forever by this parliament, where we say, "This is new; we will abolish appeals to the privy council."
But the fact that the Minister of Justice says so, and the Prime Minister says so, does not make it so. As the hon. member for Temiscouata has said, the method and the manner are all wrong. First they have to have a petition from both houses of parliament. Every amendment to the British North America Act has been preceded by a petition. And it is addressed to whom? The petition is to the foot of the throne. That has been done when amendments have been asked to the British North America Act. It will be noticed that at the present time Saskatchewan has some appeals pending in connection with margarine.
I believe this proposal is made to sever relations altogether with the mother country; there is no doubt about it. We have motions on the order paper now to that effect. One wants to change the office of governor general, so that we may have a Canadian in that office. One newspaper in Toronto has gone so far as to announce who he is going to be. Another hon. member has a motion on the order paper to change the flag, there are motions to change the national anthem, to change the name of Dominion day, and to abolish appeals to the privy council.
As I have said, all these matters are only secondary. But there are other primary matters of vast importance which we should be considering. I could read a long list of those matters, which I placed on record the other day. This bill is founded on what? It is founded on an appeal to separatism, to autonomy. Let us not forget that a million men fought in the first war, under their own sovereignty and autonomy. They did not go over to fight for Britain, but they fought by her side-and 130,000 of them fell on the field of battle. What they did changed the whole history of the world.
What was good enough for the men who went overseas in the first war is plenty good enough for me, and it ought to be good enough for all of us who stayed at home because some of us were not able to go. They went over there to fight by Britain's side and, in so doing, they changed the the whole history of the civilized world.
When these are only secondary matters, is this the time or the place to go the distance we are asked to go today, and to wipe out all these appeals? I say no, it is
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not. And I can tell you this, that it seems to me we are getting farther out of the empire all the time. There are some who seem to want to make all these changes, until we have now reached a point where we have very few links left.
One of those links is that the king is still the king of Canada. He is still the king of Canada, and no one can prevent his being the king of Canada. We have the right to petition him in any matter affecting the rights of the citizens. These are known as matters of grace, and anyone may have that right-not even the privy council can take it away.
This bill deals only with matters which may be dealt with properly by the courts. It is not in any sense a bill which could be considered otherwise. In my view this is a bill of coercion, a bill to coerce some of the provinces, and it is not one which we should pass at this time. It seems to go further than any of the other bills which have come before us. The present measure has been widened out to include the matter of language. There has never been any doubt of the fact that the privy council has always been the protector of minorities-because let us remember that minorities have rights, just the same as majorities. Both groups have always had rights.
We could never have made progress as a country if minorities had not been given rights. They have the right of language and of religion. We will recall how in Louisiana Huey Long, then governor of the state, came along to support the late president of the United States, Franklin D. Roosevelt, in the south. He wiped out the treaty altogether, and abolished their language and religious rights-something which the privy council never would have done. It has always been the protector of the rights of minorities and of majorities.
I object to the method and the manner in which this is being done. I believe it is a political bill first, last and all the time, particularly at a time when there is a wide division between our people, and when there are more important matters to be considered.
This is not the time to bring up the matter of sovereignty or autonomy. Now is the time when we should be discussing primary matters. In the second world war almost five times as many men went overseas, under the same status we now enjoy. They did the right thing, accordingly.
This textbook I now hold in my hand, Wheare on the Statute of Westminster, sets out the rights of the provinces, and it states that they have no right to change the contract made by the four original provinces, including the maritimes. It also makes refer-

ence to what was done in New Zealand and Australia, and makes special reference to sections 6 to 13 of the Statute of Westminster.
That is the statute which caused all this trouble. Had it not been for the Statute of Westminster, which I have always looked upon as one of the most mischievous statutes we have ever known, we would never have had this bill before us. The privy council has given its decision on that statute.
We are widening the breach. We are permitting ourselves to be looked upon as being outside the empire altogether. Why does Canada want to be out of the empire, as we will be if we are going to accept this bill? If the subject is not to be allowed to petition his king, when his property and rights are in danger, what is the use of our talking about it any more? Why do we not get out of the empire altogether, and have a separate country, as some want to do on the banks of the St. Lawrence? We would have a separate flag, and anthem, and all that kind of thing. This textbook says that we have no such right, and that a contract is a contract whether it be made by an individual or by a statute. I hope the bill will not pass. It never should have been brought before the House of Commons. It seeks in a roundabout way to do what never should have been proposed; it refuses to give the right of petition to the king in matters of grace.
(Translation) :


Wilfrid Lacroix: Mr. Chairman, as we are still on section 3, I have an amendment to introduce. I move that section 3 be amended by the addition at the end-


Joseph Arthur Lesage: Mr. Chairman, I rise to a point of order. The hon. member for Quebec-Montmorency (Mr. LaCroix) moves an amendment while there is already one before us-


Wilfrid Lacroix: We are dealing with section 3 and-


Joseph Arthur Lesage: I am sorry to interrupt the hon. member, but I must say that we are now dealing with an amendment moved by the hon. member for Kamloops (Mr. Fulton).


Joseph-Alfred Dion: We are now considering an amendment moved by the hon. member for Kamloops and relating to section 3. The committee will have to dispose of it before another one can be moved.
(Text):


Edmund Davie Fulton: Mr. Chairman, I believe some answer should be made to some of the statements made by the Minister of Justice in discussing the amendment. The first of these was not so much an attempt to deal with the actual merits of the amendment as it was an attempt to call into question the motives behind the amendment. The minister has
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said that the amendment could be taken only to mean that those who support it have not confidence that the supreme court can be relied upon to apply the law as it now exists.
I think that argument is answered by reminding the minister again of the declaratory acts of the various provinces. Does the minister contend that the enactment of those statutes was an indication that the provinces had no confidence in their own courts? All that those governments were seeking to do was to say what would be the law which should be applied by those courts, and how they should apply it. They were not laying down rules of procedure but rules of substantive law defining the law as it should be applied and followed by their courts. This amendment merely seeks to do the same thing for the Supreme Court of Canada and for the people of Canada.
There cannot be found anywhere in it any suggestion that those who support it lack confidence in the supreme court or the judges who now form the supreme court or in our ability to find other judges of the highest calibre to sit on that court. I suggest that no judge now on the court or subsequently to be appointed to the court would resent in any way the fact that this parliament of Canada, the law-making body of Canada, has seen fit to discharge its duty to the people of Canada, its duty of saying what shall be the law to be applied by that court. That is all that this amendment does. The minister has in fact strained words out of all their possible meaning in an attempt to find an argument against an amendment which on the face of it is quite unobjectionable.
Then dealing with the actual content of the amendment the minister raised the point that the amendment would be unconstitutional because-here I must confess that I could not follow his argument; I found it just as strained as his other argument-we would be seeking to direct the Supreme Court of Canada to apply certain laws with respect to the provinces and in doing so we would be infringing on provincial jurisdiction. This amendment does nothing of the sort.
This amendment merely recognizes that the provinces have the right to pass legislation changing their statute law with respect to property and civil rights. This amendment merely recognizes that right. I was going to say it merely safeguards it, but it is not necessary to safeguard it. The position is that in the past the privy council heard appeals from individuals in Canada who were citizens of this or that province. Let us say that there was an appeal by a citizen from the province of British Columbia concerning the rights of that citizen as against the rights of another citizen. Those are determined by

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the laws of the province of British Columbia. However, those decisions of the judicial committee are now the law of this country. The province of British Columbia could change the law within its proper sphere of legislative power. The amendment reads in part:
Subject to any enactment of the parliament of Canada or the legislature of any province in exercise of their respective powers-
That is merely a recognition of the rights of the province to change the law within the province with respect to its citizens. There is no attempt to infringe on provincial jurisdiction.


Mr. Stewart (Yorkton):: If the hon. member is not afraid of the constitution of the court, and if he is not afraid of the court exercising proper jurisdiction and following precedents, what is the necessity for the amendment? What is the hon. member afraid of?


Edmund Davie Fulton: I have not said that I am afraid of anything. I doubt if the hon. member himself will disagree with me when I say that the proper function of a legislative body is to define with as much accuracy as possible what it is trying to do and what are the laws and the rights and the duties which it seeks to create by the statute it may be passing. We are considering a statute here to give the supreme court final jurisdiction. I take it from the words of the Prime Minister and the Minister of Justice that there is no objection to the principal of stare decisis being followed and applied by that court, but there is a possibility, and we are dealing here with statutes, we are enacting laws-


Alan Carl Stewart: Why is there a possibility?


Edmund Davie Fulton: We are enacting laws affecting all the people of Canada and it is conceivable that as a result of this law an entirely new set of decisions will be started. This does not call into question the constitution or the personnel of the court; it is simply a safeguard against that happening. It is only part of our legislative process and in the absence of further fundamental objections I am not in the least bit weakened in my support of this amendment. This is particularly so since the president of the Canadian Bar Association, which, as has been pointed out, embraces in its membership a large number of judges of Canada, has stated since this debate started that in his view, speaking as the president of the association, such an amendment should be written into the bill which is now under discussion.


Jean-François Pouliot: I was struck with what my judicious friend has just said, and I wonder if he could tell us if in his capacity as member of parliament he has any judicial capacity,

although he may be very judicious. This is very important. Judicial powers and legislative powers are in tight compartments and must not be confused, although they seem to be in the mind of the hon. gentleman.
I ask him again how he got any judicial authority when he was sworn in as a member of parliament, and from whom? He may be a justice of the peace and as such may be able to speak with judicial authority, but the fact that he is a member of parliament does not mean that he is a justice of the peace. I have listened to justices of the peace who were a little less dogmatic than the hon. member for Kamloops, who were quite ponderous in their thinking. My hon. friend may be a justice of the peace, he may be a judge of the commissioner's court, he may have authority to give an oath, but that is not because he is a member of parliament. His only jurisdiction as a member of parliament is legislative jurisdiction. Does the hon. member not agree with me?


Edmund Davie Fulton: I thank my hon. friend for the lecture he has just given me.


Jean-François Pouliot: It is not a lecture; I am speaking what I have in my mind.


Edmund Davie Fulton: I quite agree.


Jean-François Pouliot: I was not clear enough, unfortunately. I should like to be understood by the hon. member.


Edmund Davie Fulton: If you think it worth it.


Jean-François Pouliot: Oh, yes; otherwise I would not rise to speak in answer to him. How can we give what we do not possess? Even the Prime Minister, who has one of the clearest and brightest legal minds in the country-hon. members will agree that is not flattery-has no judicial authority although he discharges one of the most important functions in the house. The Speaker and you, Mr. Chairman, have the right to reprimand members. It is a semi-judicial authority over your colleagues; perhaps it is judicial. How could the hon. member for Kamloops, who has a logical mind, confer upon the Supreme Court of Canada a power that he does not possess as a legislator, as a lawmaker, as a member of the House of Commons?


Edmund Davie Fulton: He is not trying to do that.


Jean-François Pouliot: My hon. friend will admit that we cannot do collectively in this manner what we cannot do individually and separately. Now he seems to be more confused than ever. I have tried to come to his rescue.


Edmund Davie Fulton: Because I have been listening to you.


Jean-François Pouliot: I am trying to make it clear. I ask my hon. friend what is the section of the House of Commons Act, what is the section of the B.N.A. Act, that confers upon

parliament the right to exercise judicial authority and to pass legislation that is equivalent to a direction to the Supreme Court of Canada? That is new jurisprudence. In that regard I am surprised that the president of the Canadian Bar Association has shown such gross ignorance that he has confused both. He suggests that the House of Commons should exercise judicial authority by telling the Supreme Court of Canada what to do. I have spoken perhaps jocularly, but when I make a serious argument and am not understood I have to use metaphorical language.
I have a question to ask the hon. member for Eglinton, who should be named a doctor of laws, honoris causa, by every university on the North American continent, for his lecture this afternoon to the Prime Minister and other members of the house. I had my part in it, and I am very grateful for it. There is nothing like the virtue of humility. I ask him to answer the question that was put to him by the hon. member for Davenport. The hon. member for Eglinton told us not to forget the voluminous jurisprudence of the privy council. What should we do?


Mr. Knowles:: Stare decisis.


Jean-François Pouliot: It may be black, it may be white; it may be grey, black and white at the same time. Accordingly the hon. member for Davenport, who is one of the new members of the house, used a pin to prick the balloon. I hope that the hon. member for Eglinton will be kind enough to give us further illumination on the contradictory jurisprudence of the privy council.


Charles-Arthur Dumoulin Cannon: I should like to say a few words on the amendment. We have had some extraordinary suggestions this afternoon. We have heard the hon. member for Kamloops suggest that the Supreme Court of Canada, after having been reformed by the legislation that is now being introduced, should be bound and gagged for all practical purposes. He has suggested that we should reform the Supreme Court of Canada and then say to it: You shall not be free to make your own decisions; you shall be bound by the previous decisions of the privy council, appeals to which we are abandoning.
We have heard another extraordinary suggestion made by the hon. member for Eglinton. He has suggested that we on the government side intend to throw overboard the doctrine of stare decisis. There is no suggestion that members on this side of the house want to throw overboard the doctrine of stare decisis. On the contrary, as the Prime Minister has said, we think it should continue to
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be applied; but it should be applied according to the law, and according to the true nature of the doctrine. I will return to that point in a minute.
The third thing, and the most extraordinary one that has happened this afternoon, is that we have been given a lesson in Liberalism by the hon. member for Broadview. I certainly did not expect to receive such a lesson from him because he has never been accused, by any stretch of the imagination, of being a Liberal.
To return to the doctrine of stare decisis, it seems to me that there is a certain misapprehension among members of the house about the true nature and scope of that doctrine. In countries that base their judicial process on the common law, the doctrine of stare decisis is very important because, as we know, the common law is a development of decisions of the courts one after the other that built up the wonderful edifice of the law that we all admire, and which is known as the common law. That law is based upon judgments of the courts and not on statutes, and it is essential that those judgments should be followed by judges applying the same law.
When it comes to statutory law, and in particular the statutory law of the province of Quebec as incorporated in the civil code, we have not the same principle at all. There decisions of the court have not the force of law. They are simply interpretations of the law as it exists in the statutes, and have the value of authority, not the value of a statute.	.
To revert to the argument of the Minister of Justice, that if such an amendment were passed it would infringe upon the rights and prerogatives of the provinces, let me give this example. Suppose we passed the amendment, and suppose we told the Supreme Court of Canada that they were bound by the doctrine of stare decisis in that they had to follow past decisions of the privy council. In effect we would be telling them that they could not alter anything that had been decided by the privy council even on matters concerning the civil law of the province of Quebec. In effect we would be incorporating in the civil code of Quebec decisions of the privy council which may be erroneous. What shows that they have been erroneous is that in the past they have contradicted themselves. The decisions of the privy council on the interpretation of the civil code of the province of Quebec have been far from uniform. The jurisprudence has varied.
That is a clear example, and it demonstrates the value of the argument of the Minister of Justice when he says that we cannot do this thing because if we did so

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we would be encroaching upon the rights of the provinces, and that in an indirect manner we would be introducing an amendment into the legislation of the provinces, and particularly into the civil code of my province.
While I am speaking on this amendment I should like to set one other matter right. Reference has been made to the decisions of the Canadian Bar Association at its meeting last month. I happened to be present at that meeting, and I was also present at the meeting of the committee when the resolution was passed. I want to emphasize here that those who drafted and adopted the resolution purposely refrained from expressing any view as to whether or not appeals to the privy council should be abolished. I have heard several hon. members opposite state that the Canadian Bar Association said it was not in favour of abolishing these appeals. The resolution, which is in Hansard where it can be read by anyone, says in express terms that the Canadian Bar Association refrains from expressing any such views.
I just wanted to re-establish that fact. For these reasons, Mr. Chairman, I shall vote against the amendment.


George Alexander Drew: Mr. Chairman, this amendment can very easily be the subject of a difference of opinion as to whether or not it is desirable. That is something on which the opinions of hon. members are bound to divide. But whatever reasons there may be for not dealing with this amendment, they are not the reasons that have been put forward by the Minister of Justice. He has resorted to a device which was used at an earlier stage of this debate to create an impression that has no relationship to the arguments that have been put forward in support of this amendment, or to the reasons the mover gave for introducing it. The minister suggested that the only interpretation we could place upon this amendment was that it was an expression of lack of confidence in the Supreme Court of Canada. Not a word in that amendment can be so interpreted in any reasonable reading of it. The amendment may or may not be worded exactly as each legal brain would say best interpreted the desire to preserve the doctrine of stare decisis in regard to those cases that have been decided over the years; but if the words do not appropriately express that idea a better way could well be pointed out. However, I repeat that there is not a word in the amendment which justifies any suggestion of lack of confidence on the part of the mover of the amendment in the Supreme Court of Canada as a court capable of rendering judicial decisions upon such matters as may come before it.

The minister went further and said that to incorporate in the legislation itself an explicit declaration in regard to the principle of stare decisis would also, by inference, be a reflection upon the Supreme Court of Canada and an expression of our lack of confidence in that court. Let me come back to the resolution of the Canadian Bar Association. In doing so I emphasize the fact that as far as I am aware no hon. member has suggested that the opinion of the members of the Canadian Bar Association has any more validity or weight here than the expression of opinion of a group of men who, in spite of what may be said by the hon. member for Temiscouata, are mainly the senior members of a profession qualified to deal with subjects of this kind. As recently as four weeks ago, at the very time the Prime Minister and the Minister of Justice were in Banff, they passed the resolution unanimously. In addition to urging that any steps of this kind should not be proceeded with until there had been some opportunity for an examination of their effect upon minority rights, the constitutional position and so on, they made certain other recommendations in regard to the judges of the supreme court which it would appear to be the intention of the government to follow, whether or not that is a result of the resolution. Moreover, in that resolution they declared that the principle and doctrine of stare decisis should be preserved.
The Prime Minister has said that he is in agreement with that idea; but with all respect to the position he occupies and to his great legal standing, his support of that idea does not become an incorporated part of any statute that may be passed by this house. What will subsequently determine the effect of any legislation that may be passed is the wording of the statute itself, not what may have been said by any hon. member of this house, the Prime Minister or anyone else, as to what he thought should be done once the bill became a statute. But it goes further than that. We have something in the nature of an interpretation of what was in the minds of the members of the bar association. Hon. members have heard read a press report of a statement by the president of the Canadian Bar Association, presumably speaking in his official capacity, who said that in his opinion there should be a declaration of the acceptance of the doctrine of stare decisis.
That being so, if it can be suggested that the desire to have adopted an amendment which will place in the act itself a declaration of that principle reflects in some way upon the confidence enjoyed by the Supreme Court of Canada, then most certainly can it be said that by their unanimous vote the members of the Canadian Bar Association were reflect-

ing upon the Supreme Court of Canada. I do not believe for a moment that any hon. member of this house would suggest that this was the thought behind the resolution adopted by the bar association, which contained a recommendation which this amendment seeks to interpret in statutory form.
It is open to debate, of course, whether or not the wording is perfect. Different members may have different views as to whether this is the best expression of the request of the Canadian Bar Association. It is an attempt, however, and I believe a reasonable and well-worded attempt to carry forward into statutory form the desire expressed by the senior members of the Canadian bar.
In view of some suggestions that have been made that any proposal of this nature is a reflection on the Supreme Court of Canada and the ability of this country to produce lawyers of the stature necessary to meet the high standards of the judiciary, let me say most emphatically that no such suggestion has ever been contemplated in anything that has been said by any member of the party I have the honour to lead. I am as confident as any member of this House of Commons that the legal profession, despite the humorous comments that may be forthcoming from time to time about some of the members of that profession either from the member for Temiscouata (Mr. Pouliot) or from others, has in all the ten provinces established a standard that gives Canadians reason for being proud of that pool of legal talent from which the judges of this country are drawn, whether for the Supreme Court of Canada, the superior courts of the provinces or the county courts and district courts within each of those provinces.
This amendment is an attempt to put into statutory form a statement consistent with the unanimous recommendation of the Canadian Bar Association that the principle of stare decisis be applied: in other words, that the background of decisions of that court, which throughout these long years has passed upon constitutional and other matters, shall still be given their full legal effect. I believe it is important, Mr. Chairman, that all of us recognize the extent to which our constitution is, in fact, a combination of the British North America Act and the legal decisions which have interpreted some of the general terms within that basic constitution of Canada.
Under sections 91 and 92 of the British North America Act, there is a division of responsibility and jurisdiction between the national government and the provincial governments. Many of the expressions were in general form and many of those things which, since the date of confederation, have
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become an essential part of the administrative as well as the legislative powers of both dominion and provincial governments, have been the result of interpretations of that constitution by the privy council. When differences of opinion arose, this tribunal was called upon to decide where the actual responsibility and jurisdiction lay.
There are a few comparatively recent examples of such decisions. At the time the British North America Act became our basic constitution this country was in the early stages of its development. Anyone who might have told our forefathers that we would be listening to the words of people passing between each other without benefit of wires would have been laughed at. Yet, within recent years the privy council was called upon to decide whether, under the wording of the British North America Act, the control of radio rested with the national or the provincial governments. So it was in the case of the control of aviation. The question arose whether that came under the provinces as a result of the reference to property and civil rights, or whether it came under the control of the national government. The privy council made its decision and that decision has, in effect, become part of our constitution.
And so it goes in regard to many of the things that are done both by the government of Canada and by the governments of many of the provinces.
Progress reported.
At six o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at eight o'clock.


Edmund Davie Fulton: the second reading of Bill No. 10, to amend the criminal code (portrayal of crimes).
He said: In view of the comparatively short time available on this occasion for the discussion of this bill I ask the forbearance of the house if I deal with only some of the highlights of the matter involved in the suggestion I have to make because I understand that several hon. members have something to say on this matter. Therefore I shall keep my remarks to as short a compass as possible in the hope that they may be able to say something and still leave time for expression of opinion on this bill.

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This is not the first time the matter has been before the house. It has been before the house in discussions on the estimates of the Department of Justice in 1947 and again in 1948. While I have a bill here which deals with crime comics I should say that one or two remarks have been made indicating a view to this effect:	Well, after all, is
there much sense in going after the comics in the daily papers and depriving the children of their ordinary reading? May I make it clear, Mr. Speaker, at the very outset that the type of publication I have in mind is not the ordinary comic strip in the paper, but it is what is commonly called the crime comic; in other words the pulp paper magazine which retails for about 10 cents, vast numbers of which can be found on any of our newsstands.


Mr. Gibson (Comox-Alberni):: Coming from Toronto.


Edmund Davie Fulton: I believe that a large number of them are printed in Toronto. The hon. member who has just spoken and any other hon. member who may be wondering a little bit whether this matter is worth wasting much time on would be, I think, as I have been, amazed if he were to go down and make a study of the magazine stands in any news shop of this city or in any other city across Canada. If he will actually look through the racks in the shops he will be astonished to find how widespread is the distribution of these magazines. Again I refer to the kind of magazine, forty or fifty pages of which portray nothing but scenes illustrating the commission of crimes of violence with every kind of horror that the mind of man can conceive. May I lay before the house, Mr. Speaker, a description of the type of thing I have in mind. At this stage I do not want to use my own words; I want to use the words of a very respected minister of the government which is in office at the present time, a man of most temperate character, a man little given to exaggerated or violent words. In 1948 I sent the then minister of justice, Mr. Ilsley, now Mr. Justice Ilsley, a copy of the type of magazine which I had in mind. It was entitled "Crime does not Pay." A little later when his estimates were up for discussion in the house the minister referred to the particular magazine that I had sent him and he used these words, to be found on page 4939 of Hansard of June 9, 1948:
The hon. member for Kamloops sent me a shocking instance of the abuse of freedom of the press. I agree with him that it is just that.
As illustrated by the number of resolutions and letters which I have received from organizations from coast to coast, there is a very widespread feeling that this type of crime comic does immense harm to the youth of this
IMr. Fulton.]
nation. May I read to the house some of the words used by an experienced psychologist in discussing the type of thing with which I am dealing. I hold in my hand a book entitled "The Psychopathology of Comic Books", an extract of the symposium held by the association for the advancement of psychotherapy held in New York city and written by Frederic Wertham. The first paper was read by a Mr. Gerson Legman. I shall read from page 473 of the proceedings of the association. I read these words because they are a perfect description of the type of publication which I have in mind:
The comic books concentrate on aggressions which are impossible under civilized restraints-with fists, guns, torture, killing, and blood. The internalized censorship of both artist and child makes this attack respectable by directing it against some scapegoat criminal or wild animal, or even against some natural law like gravity, rather than against the parents, teachers, and policemen who are the real sources of the child's frustration and therefore the real objects of his aggression. At the same unconscious level that the child identifies himself with the heroic avenger, he may also identify whoever has been frustrating him with the corpse.
Violence displaced in this way from its intended object invariably appears in larger and larger doses, more and more often repeated. Twelve years ago, in 1936, there was not one comic book published in the United States. Today, at a conservative estimate, there are five hundred million yearly.
May I pause here to remark that that estimate is already out of date, because the last authoritative estimate in the United States is that 60 million of these publications hit the magazine stands in that country every month, or 720 million a year. I regret that I have not been able to obtain authoritative figures on the numbers which are circulating in Canada; but, as I have said, if any hon. member wants to see for himself the threat which they are he has only to go to any newsstand in any otherwise reputable magazine shop in this or in any other city.
The article continues:
The secret of this unprecedented success-the greatest, fastest literary success the world has ever seen-is, of course, violence. All comic books without exception are principally, if not wholly devoted to violence.
The price being only a few cents apiece, and the distribution national, every city child can, and does, read from ten to a dozen of these pamphlets monthly, an unknown number of times, and then trades them for others. If there is only one violent picture per page-and there are usually more -every city child who was six years old in 1938 has by now absorbed an absolute minimum of eighteen thousand pictorial beatings, shootings, stranglings, blood-puddles, and torturings-to-death, from comic books alone. The fortification of this visual violence with similar aural violence over the radio daily, and both together in the movies on Saturday, must also be counted in. The effect -and there are those who think it has been a conscious intention-has been to raise up an entire generation of adolescents who have felt, thousands upon thousands of times, all the sensations and

emotions of committing murder, except pulling the trigger. And toy guns-advertised in the back pages of the comics-have supplied that.
There are many other statements which could be given and I hope the house will forgive me if I rely upon the statements of experts in the matter, rather than upon my own observations.
I should like at this stage to refer to a lecture given by Mr. Arthur J. Freund, chairman of the American Bar Association committee on motion pictures, radio broadcasting and comics in relation to the administration of justice. The American Bar Association has had this matter under study for over two years, having been disturbed by the vast number of these publications which are reaching the newsstands every month, their effect in turn being multiplied by the movies, radio and, at present, television.
My appeal is directed exclusively to crime comics, the pulp type of magazine publication which is usually known by that name. The committee to which I have referred has made an extensive study of the matter as it is portrayed in what they describe as the various media. When they use the word "media" they mean crime comics, the radio and motion pictures.
The address delivered by Mr. Freund at the meeting of the special committee of the American Bar Association held in November of 1948 contains this very interesting passage:
After a consuming and intensive attention to this subject for two years as chairman of this committee on behalf of the American Bar Association; with the great volume of correspondence which has poured upon my desk decrying the evils of crime portrayals by the media, and as the result of many conferences and much correspondence with members of my profession, publicists, psychologists, psychiatrists, educators, social scientists, and other professional and interested lay persons, I am of the personal conviction, to paraphrase the findings of the National Broadcasting Corporation, that the vivid, living portrayal of crime by the media has a profound impact upon the mind of the juvenile, adolescent and impressionable and that grave harm has already resulted thereby to uncounted and, perhaps, uncountable numbers of our society.
Mr. Freund continues by dealing with the representation one hears from time to time that, after all, crime comics are only the up-to-date form of the old stories of violence which are found, it is said, even in the Bible, or in classical fairy tales such as Robin Hood. Then, there are other stories which are not necessarily fairy tales, in which category would come Treasure Island. The point is made that it is ridiculous to suggest that these crime comics, which are only up-to-date versions of these other tales, in fact contribute to juvenile delinquency.
Mr. Freund deals with that suggestion as follows:
During the past two years I have repeatedly heard representatives of the media say that the
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crime portrayals in their respective fields are a stimulus required by our changing society and that they are, after all, no worse than the crime episodes told in the Bible, portrayed in fairy stories and in some of the classics which are the foundation of much of our great literature. I cannot accept this thesis. On the contrary, I believe it is one thing for an adolescent to live in a world of fantasy stimulated by stories in the Bible, by fairy tales and by great works of classical literature unrelated to his Immediate environment or to the realistic possibilities of his every-day life. But it is my view that it is a wholly different experience for the impressionable mind to be stimulated into a world of apparent reality where criminal and morbid activities in which he can actually participate in his day-to-day living are delineated repetitiously for him with blueprint accuracy.
Those are the words of people who have made an intensive study of the problem. Thus far however it must be admitted that my remarks have been in the realm of theory. I should now like to relate them to the realm of actuality by pointing out to the house a number of cases in this country and in the United States where the commission of crime by juveniles has been directly attributed to crime comics. Before giving the actual illustrations let me remind the house that this type of comic publication is turned out in such a way as to impress most vividly on juvenile minds the subject matters with which they are dealing.
It is well recognized by teachers that the easiest way to impress a lesson upon a juvenile mind is by illustration. That is exactly what these crime comics do. They present in coloured pictures the commission of crimes of violence, showing every possible detail. Secondly, it should be borne in mind that children are natural imitators, and that they frequently copy what they have seen others do without any thought of the moral aspect involved, whether it is right or wrong. They just copy it as a natural sequence, having seen it done before. When they see it repeated in pictures hundreds upon hundreds of times they are more apt to copy it, and to do exactly what they have seen the criminal doing, without any thought as to whether it is right or wrong-until they are suddenly brought to court to face charges of having committed crimes.
Then, these crime comics almost invariably portray the law and the administration of justice and decency as a slow, stumbling and stupid process; whereas the gangster, the man of violence, is portrayed as acting directly, quickly and forcefully. In this way the sympathies of children are directed toward the wrong side.
I now come to the actual evidence of crimes having been committed or contributed to by crime comics. First I would refer to a statement made by Mr. J. V. Bennet,

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director of the bureau of prisons in Washington, D.C. In the course of one of the studies to which I have referred he states:
We have in one of our institutions a boy who carried out a kidnapping plot following the precise pattern he had read about in a comic magazine called Crime Does Not Pay.
May I pause to remind the house that it was one issue of that magazine, which I sent to the former minister of justice, which brought from him the comment that this was an example of a shocking abuse of freedom of the press. Mr. Bennet continues:
Not only did the boy confess that he got the idea from the crime comic but the facts surrounding the execution of the crime bore out his statement. There are a number of cases, notably one in Ohio where two boys attempting a kidnapping shot and killed a citizen, which indicates pretty strongly the influence of comic magazines on the young boys who plotted the crimes.
Then it should be recalled, sir, that this magazine "Crime Does Not Pay" circulates freely in Canada. The second piece of evidence I should like to lay before the house concerns the trial of two boys aged eleven and thirteen for murdering James Watson of Dawson Creek, in Canada, in the fall of 1948. During the trial positive evidence was produced to show that the boys' minds were saturated with what they had read in crime comics. One boy admitted to the judge that he read as many as fifty crime comics a week, while the other admitted having read thirty. After the case was concluded, the presiding judge delivered a most direct and scathing criticism of crime comics, laying the blame for this murder almost directly upon their influence.
Many other cases could be cited. In Montreal a boy aged 12 years beat his mother to death with a bat while she was sleeping and at the trial said he had seen that sort of thing in the comics. In Philadelphia Symon Levin, aged 16 years, killed a 12-year-old boy with a pair of scissors. His room was found to be littered with crime comics. In Los Angeles a 14-year-old boy poisoned a 50-year-old woman. He said he had got the idea from a comic book as well as the recipe for the poison. In the same city a 13-year-old boy was found hanged in a garage with a crime comic illustrating that type of thing at his feet.
These are only examples that I am giving to prove that crime comics have a direct bearing on the commission of crime by juveniles. Apart altogether from the statements of experts who have studied the matter, there is other evidence in the form of resolutions passed by parent-teacher associations and other groups experienced in training young

minds from coast to coast of Canada. A campaign has been started by the Kiwanis clubs across the country and each club is asked to pass a resolution dealing mainly with obscene books but by implication with these crime comics as well. The resolution ends with the following words:
Therefore be it resolved that the Minister of Justice be respectfully requested to fully investigate and to recommend prosecutions of the publishers, distributors and vendors of obscene books, especially of the inexpensive paper bound type, in order that the further corruption of the youth of Canada may be prevented and thus alleviate some of the ever increasing tendencies towards juvenile delinquency.
That is the background of the situation. I think hon. members will agree that the evidence shows that there is a real menace to the youth of our country in the widespread publication and circulation of crime comics. We are then faced with the question: How are we going to deal with it? Various methods have been suggested. One is direct censorship by the government and the other is the setting up of some sort of bureau which would ban certain publications. I say without hesitation that I am against both of those methods. I am unalterably opposed to the idea of government censorship of the press in any form whatsoever in peacetime. There are too many dangers involved in that type of solution.
I have the utmost confidence in proper legal processes which have been worked out in this country over the years; I have the utmost confidence in our courts and jury system, and my suggestion is that the proper approach is along these lines. If it is demonsirated by such evidence as has been given here that a course of action is obviously against the public welfare or public morals, then it should be made an offence by a properly enacted statute. We should define the offence as accurately as we can and then provide the mechanism whereby the person accused of the offence can be brought before our courts. It should be left to our judicial system to determine whether or not the person accused has in fact committed the offence or rather committed the acts which constitute the offence as defined in the statute.
That has been the approach which has been followed here. At the present time there is no satisfactory definition which would make it an offence to print, publish or distribute the type of crime comic which I have been describing. No satisfactory means exists of starting an action against a person who may print, publish or distribute these comics. I would refer again to the words of the former minister of justice when he was discussing this matter. I have referred already to his remarks as reported on page 4939 of Hansard

of June 9, 1948. After stating that I had sent him a shocking instance of the abuse of freedom of the press, the former minister went on to say:
I agree with him, that it is just that. I am afraid, however, it is nevertheless legal; it is not an offence to publish the kind of material which was published and which is being distributed in various parts of Canada.
At the present time there is no means of dealing with that type of publication and means must be found. The means which I have sought, which are in accordance with the principles which I have just laid before the house of defining an offence and then setting up the mechanism whereby the person accused can be tried, are suggested by the present Criminal Code. This bill seeks to amend section 207 of the Criminal Code by adding a further offence, the offence of printing, publishing or distributing crime comics.
Section 207 of the code as it presently exists is within that part of the code dealing with offences against public morals, decency and so on. That section sets out three types of offence. It states:
Every one is guilty of an indictable offence and liable to two years imprisonment who knowingly, without lawful justification or excuse,
The section then goes on to define the three types of act which if committed will render a person liable to that penalty. The three acts are: first, the making, manufacturing, selling or exposing for sale of obscene literature or pictures; second, exhibiting any disgusting object; and, third, the sale of harmful drugs. There are set out the three categories of offence. My suggestion is that to those three categories there shall be added a fourth category which is to be found in the bill, namely, and I quote from the bill:
(d) prints, publishes, sells or distributes any magazine, periodical or book which exclusively or substantially comprises matter depicting pictorially the commission of crimes, real or fictitious, thereby tending or likely to induce or influence youthful persons to violate the law or to corrupt the morals of such persons.
Anyone found guilty of committing the offence there set forth would be subject to the penalty imposed by section 207. In placing this bill before this house I am attempting to comply with requests which I have received-I know other hon. members have received similar requests-from civilian organizations that something be done to cope with this increasing menace. Not only have requests of that sort been received from civilian organizations; similar requests have also been received from some of the law enforcement officers of the provincial governments.
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When the matter was discussed in 1948 the then minister of justice, Mr. Ilsley, said that a request for some such legislation had been received from the attorney general's department of British Columbia. I understand- and the minister will have more knowledge of this than I-that the attorney general's department of Manitoba would like to see some such legislation. I do not mean exactly the same, but they hope that it will be found possible to introduce legislation providing an effective means for dealing with the problem I have been describing. I know that the attorney general's department of the province of Ontario say that they find that under the law as it presently exists there is nothing they can do to deal with the problem. I believe that they too would like to see some solution found.
In the previous discussions it was stated by the then minister of justice that, although he was well aware of the problem, it had not been found possible to devise any legislation which would provide a satisfactory solution. Here is a suggested solution. I am not saying it is perfect. It is probably far from it, but I want to impress upon the house that the draftsmanship of the bill is not mine. The bill is in the exact form which was drafted by the Department of Justice and was read to the house during the previous discussion by the then minister of justice, Mr. Ilsley, when this whole matter was being discussed during the passage of his estimates.
In discussing the matter on June 14, 1948, the minister said that the problem had been drawn to his attention by the representations which I had made, and which others had made, and that an effort had been made to draft legislation that would form a satisfactory answer. He assured the committee at one stage that he would either introduce such legislation at a later date or, if he did not introduce it, he would give his reasons for not doing so. On June 14, in committee of supply, he stated that the matter had been considered and a draft had been prepared, but he was not ready at that time to introduce the draft as a government bill. He read the draft which had been prepared and considered in the department, and it is found at page 5200 of Hansard of June 14, 1948. Hon. members who may care to turn it up will find it is in exactly the same form as the bill now before the house.
In discussing the matter at that time the minister said that the draft that he read, and which is now incorporated in this bill, had certain weaknesses. First he said it was difficult to define the matter clearly enough to make it possible to take effective action by way of prosecution without at the same time running the possibility of involving some

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innocent person. I think the answer to that is found in the acceptance of the principle that, under this bill, if a prosecution were to be laid, the person accused of the offence would be brought before the criminal courts on a jury trial, and it would be up to the jury to say whether the publication complained of was in fact of such a nature as to be likely to influence youthful persons to commit crime. It would not be open to the minister, or anybody else with improper motives, to launch an improper prosecution against an innocent person. It would be up to the twelve men of the jury, parents of children or possibly even printers and publishers, who would have the publication complained of before them, to say whether in fact it fell within the definition which would then be incorporated in the Criminal Code of a book or publication tending or likely to influence youthful persons to violate the law.
Then again the minister argued against the proposed legislation at that time that it would be of general application across Canada, and he said there might be provinces which did not want to apply it. There might be a province where they did not want to bring such prosecutions. I think the answer to that is found in the fact that there are certain provinces which have requested legislation to deal with the matter. The proposed legislation leaves it open to the attorney general of the particular province. If in that province it were felt that the matter is a threat to morals, then the attorney general would presumably press prosecutions. If in another province no such feelings were prevalent, then no use would be made of the section. There is nothing in the bill that compels the attorney general to bring a prosecution. It is only if it is felt by the law enforcement officers of the province that something should be done.
I think one can sum up as follows: No harm can result from the bill. It will not bring in any form of censorship or banning of publications, but it will put publishers and news vendors on their guard to see that they do not publish or sell any magazine within the category defined. It will not give any powers of coercion to any board or bureau. No attorney general or law enforcement officer is compelled to act if he does not want to do so. It is left to the provinces if it is an obvious offence. Therefore the bill has no harmful features, but it has, I believe, a great potentiality for good.
Some may say that -there has been an exaggeration of the evils of crime comics. I would refer them again to the factual evidence which I have placed before the house. I suggest to anyone who thinks that crime comics really are not harmful that,

if he will look into the question, if he will go to the newsstands, if he will pick up one of these things and see what they portray and the examples they lay before the youth of the country, he will not deny that there is a real menace in them. Even if there were only one case of a crime, the commission of which was influenced by crime comics, even if the enactment of the bill only prevented one murder, one crime of violence being committed by a juvenile, I would say that the act, if passed, would have served its purpose, that the bill would have been worth while.
I hope that it will receive general support from the house. As I say, I realize it is not perfect, but it does seek to deal with the situation, and if it merely focuses public attention on it it will have been worth while If it should be passed, and if it should prevent the commission of one crime by a young person in this country, then it will have beer worth a hundredfold any effort the house may devote to it. I bespeak its support.


Mr. Daniel Mclvor (Fort William):: First i should like to commend the hon. member foi Kamloops (Mr. Fulton) for bringing a question of this kind before the house. He is a young man full of life and energy. I read the funnies, as you might expect. I read Smitty, Orphan Annie, Superman, Blondie Napoleon and a lot of others. I think the funnies emphasize a sound principle of the teaching profession, that of making an impression through the eyes. Anybody wil admit that the more you read about a thing and the more you look at it the more yoi become like it. .1 do not forget the period of my boyhood when I did not need much prodding to be bad, and I do not think there is an hon. member of this house who has noi passed through such times, when he did noi need much to suggest bad thoughts; and a: you think, so you are.
Had I known this subject was coming uj tonight I would have had some samples ol the sort of thing that is printed in Canada and that comes across the border. I am sure no hon. member of this house would wan' the youth of Canada to practise the suggestions that come from those displays. ] am sure everyone will admit that many o1 these pictures suggest the breaking of the seventh commandment, and the great thril that is supposed to come to youth as a result Those of us who are older realize that the Great Teacher has said that if you break one commandment you are guilty of breaking them all. Our educational system is of a very high order; and I speak now of Ontaric and Manitoba, with which I am bes' acquainted. Each of our churches tha' amounts to anything has an educational

system as well. We are teaching our boys and girls to be true men and women, to act courageously in facing the problems of life. But the devil-perhaps I should not call him that, though that is what he is; I will call him his satanic majesty-has plans for our youth. You can almost hear him saying, "Get them young. That is the time to get them". Our Sunday school teachers can work their heads off and still not succeed in combating an agency such as obscene literature. It is a curse. Sometimes a clerical gentleman is held up to ridicule, and you see the effect on our youth. Sometimes a good mother and father are held up to ridicule in these obscene pictures; then it is suggested that they should break the seventh commandment and get a great thrill.
I know the Minister of Justice (Mr. Garson) as I knew his dad, one of the outstanding citizens of Winnipeg, a contractor who had no trouble getting contracts because he did an honest business. As I think of the background of the minister I am sure that in his own way he will give serious consideration to the bill which has been presented by the young member for Kamloops (Mr. Fulton). If I may refer again to his satanic majesty, if he finds that not only the churches in Canada, not only our public schools and Sunday schools but also the members of the House of Commons are lined up against him, then he will think the thing over and back out.


Mr. E. G. Hansell (Macleod):: Mr. Speaker, I have a great deal of pleasure this evening in rising to support the action of the hon. member for Kamloops (Mr. Fulton) in presenting this bill to the house. I believe it is needed as part of our Criminal Code. I do not rise to support the amendment necessarily or particularly because of my profession; I want that understood. I do so because I believe that is the reasonable thing to do, and also partly because before I entered the ministry I had a great ambition to become some day a famous cartoonist, and in the process perhaps become a millionaire. Well, I did become a cartoonist, connected with one of Canada's daily newspapers. I never became a millionaire, however. I created a comic strip which was said by those who read it to have some merit, but I never did make a million dollars, and I think I know why. There were perhaps two reasons in particular. In the first place it was not sexy enough, and in the second place it contained no crimes. Any man who can put enough sex and crime into his drawings or his writing and get away with it can make a million dollars any time he cares to try it.
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Because of my interest in cartooning, Mr. Speaker, I have followed these particular publications over the years. I have watched the trend, and I know something of the extent to which publishers have gone in their greed for the almighty dollar. They are not concerned with the future of our citizenry as long as they can fill their unholy coffers. Since there has been some revolt on the part of the people of Canada, however, these publishers have taken some steps, or shall I say have put up some sort of front, in their own defence. Not so long ago the association of comic magazine publishers met in New York and drew up a code of ethics for the publication of crime comics. I am not going to take time to read that code, because I have only ten minutes before the hour expires. The code itself is not bad, but of course the difficulty is that it has no teeth. If the code is broken, what matters it, anyway? I could say something about this section of the Criminal Code which my hon. friend is seeking to amend. That section has teeth if only the authorities would do their duty and use it to prosecute those who publish obscene and undesirable literature. I agree that this section as it now stands does not specifically cover crime comics, but it does cover unwholesome literature.
I have been building up quite a file of this material over the past few years. I have the hardest job in the world keeping my youngsters from reading crime comics. I told them I was against them, and every once in a while they come running to me calling, "Daddy, daddy, here is one you should have for your file", so I have quite a nice little stack of them piled up. Here is a publication called "Crime Does Not Pay", which has been referred to. On the cover is the word "Crime" in large letters. I think, Mr. Speaker, you can read that from where you are sitting, but I will bet a million dollars you cannot read the type underneath which says "does not pay". It is so small it is almost negligible.
The youngsters get this book and read it. I did not read it but I went through it and looked at the pictures. I am going to tell you how I have categorized these pictures. The list is as follows:	Those depicting a punch
or bludgeoning with a blackjack or something else, 11 times-that is in one issue; burning or torturing, 8 times; you can see blood running twice and guns depicted 14 times. You can see a corpse 4 times; drinking bouts, 5 times. You can see somebody in the electric chair twice; poison is used three times and gassing once. I ask any reasonably minded man, is that the sort of thing our young people should be reading? That is a book entitled,

Criminal Code
"Crime Does Not Pay". The publishers circumvent the law by using the words "does not pay". You see, we all know that is only a way of getting around the law. They are interested in the commercial end of it.
In the few minutes at my disposal, Mr. Speaker, might I emphasize once again that, apart from crime comics, if the Minister of Justice, who has the administration of the E.C.M.P. under his department, or if the various cities with their own police forces would take that section of the Criminal Code and enforce it, sending a few of these publishers to jail for a couple of years, I have no doubt but what it would make a difference in the type of publications in this country. Do not say you cannot get any evidence. If the minister wants evidence I will let him have my files.
I show you now a publication entitled "Girls on City Streets". Now, I want hon. members to know that I am building up a file on this subject. I purchased this copy in a coffee shop in a small western town. There was only the one coffee shop and newsstand and this publication was sold there. Things appear in this that I would not dare read in this chamber. I can tell you that no boy or girl would take it into the home for fear dad would take them out to the woodshed and paddle them for reading it. Anything a youngster would be ashamed to take home should never be published.
I have another publication to show you. Apparently the police did not ban this publication or another issue would not have appeared. I want you to remember I am building up a file and I did not obtain this merely to read. Of course, I had to read it, Mr. Speaker, or I would not have the evidence. Here is an article on the life of a prostitute. It might be said the publisher could get around the law by showing that the poor girl paid for her crimes, but that is not the reason some of our young people would buy this book to read. If you would like to read it, Mr. Speaker, I will send it to you. I shall do the same for all hon. members, but please, after the adjournment, do not rush me. This article is concerned with the life of a prostitute. It tells how she got into the racket. It tells something of her experiences on the first night she was in a bawdy house. Do you want me to read it? It tells how she was taught the technique of the game and it goes on to depict a lot of gutter scenes. That is what I bought with my hard-earned money- but only to build up my files.
I am serious about this, Mr. Speaker. Surely that sort of thing cannot go unnoticed by the police. Such a publication would be sold to my boy. Have not we, the men who are responsible for the making of our laws,
[Mr. Hansell.i
the right to stand up in this parliament and protest? Have we not the right to ask the government to take some action to put teeth in our legislation? I am surprised, Mr. Speaker, that it has been left for a private member to introduce a bill of this sort. It is well known that home and school associations, parent-teacher associations, have sent in resolutions-one of the largest denominational churches adopted a resolution at a convention a year ago and sent it to the government. The government knows all about that. These resolutions have been coming in to the government by the score. If the government desire to argue, it is well known they can argue all sorts of technical things such as the freedom of the press. I am not even suggesting censorship. What I am suggesting is that the Criminal Code be used to prosecute when offences are committed against it. I am sorry that the time appears to have been exhausted because there are many other things in my files which I should like to present to you. I do urge this house to consider the adoption of this bill.


Alphonse Fournier: that the house go into committee of supply.



RADIO LICENCE FEES

Mr. D. F. Brown (Essex West):: Before going into supply, there is a matter I should like to draw to the attention of the government, having in mind a newspaper article that appeared in an Ottawa paper this evening. It was stated that the request for an increase in radio licence fees has been brought to the cabinet level. It may be well, Mr. Speaker, for one to have some idea of the geography of the constituency of Essex West which I represent. This constituency, comprising one of the three constituencies of the county of Essex, is the most southerly part of the Dominion of Canada. As a matter of fact, it is south of the most northerly latitude of northern California. My constituency is surrounded on three sides by the United States.
We have in that constituency, Mr. Speaker, a radio station which carries some C.B.C. programs as well as some programs of the Mutual Broadcasting System. Recently the power of the station was increased to 50,000 kilowatts and I presume it can be heard readily in this locality. Recently the Canadian Broadcasting Corporation made a recommendation to the Canadian cultural commission that radio licence fees be increased to $5 per set or per family, I am not sure which. Since that suggestion was presented to the commission I have received a

resolution passed by the Windsor city council on September 20,	1949, which reads as
follows:
That a strenuous protest be made to the dominion government against the proposal of the Canadian Broadcasting Corporation to increase the annual radio licence fees from $2.50 to $5, particularly in view of the general opinion in this area that no fee should be charged for receiving sets; and further that copies of this resolution be forwarded to the local members of the government.
I propose, Mr. Speaker, to address myself solely to one point, namely, the inequality, the unfairness of the imposition of a radio licence fee of any kind. I do this because of an answer given by the appropriate minister to a question which I had on the order paper. As I said, I am not going to discuss the economics of the Canadian Broadcasting Corporation. I am not going to discuss the value of the Canadian Broadcasting Corporation. The Canadian Broadcasting Corporation is doing a fine job probably under difficult circumstances, but I do say that the imposition of a radio licence fee is an unequal and unjust imposition of a charge on the Canadian people who pay it. The bureau of statistics informed me that at the last census there were 2,706,089 households or families in the Dominion of Canada.
I give that figure because that is the year in which the census was taken. It is estimated by the said bureau that in 1948 there were
3,235,000	households in Canada. The bureau of statistics gives the number of radios in the various provinces of Canada in 1941. I will give Manitoba first. In Manitoba 79 per cent of the households had a radio. In Saskatchewan 75-7 per cent had radios. The total in Canada was 77-8 per cent. I quoted these two provinces because they were the 1941 figures. But a census was taken in the western provinces in 1946 which shows that in the prairie provinces the number of radios in the households had increased to 91-5 per cent. That figure applies to Brandon and other cities. Flin Flon had 92-5 per cent, and so on. From those figures, Mr. Speaker, it is my opinion that about 90 per cent of the homes in the prairie provinces have radios. We can safely assume that a minimum of 90 per cent of all the homes in Canada have radios. Let us look at the sale of radio licences. In 1940-41 there were 1,454,717 radio licences sold. In 1948 there were 2,057,799 radio licences sold. In 1941, therefore, judging from the figures I have quoted and assuming that there were 75 per cent of the households with radios, of the 2,706,089 households 25 per cent did not have radios. That would mean that there were 676,522 households which did not have radios, leaving 2,029,567 which did have radios. I do not want to bother the house with statistics.
Radio Licence Fee
In 1941 two million and some odd thousand did own radios. There were 1,454,000 odd radio licences sold. Therefore there were about 575,000 persons who did not buy radio licences, which is considerably over 25 per cent of those owning radios who did not purchase a radio licence.
Again quoting the 1948 figures of the bureau of statistics, there were 3,235,000 households. Ninety per cent of them owned radios. In other words, 2,911,000 odd owned radios; but there were only 2,057,000 radio licences sold. Therefore there were 854,000 odd who did not purchase radio licences.


George Alexander Cruickshank: Shame.


Donald Ferguson Brown: My hon. friend says "Shame". I hope he is not one of them. That means, Mr. Speaker, that between 25 per cent and thirty-three and one third per cent or one-quarter and one-third of the Canadian people did not purchase radio licences. I cannot see therefore that the imposition by the present method of a radio licence is at all justifiable because of the fact that three-quarters or two-thirds of the people are paying for a licence and the other one-quarter or one-third are not paying anything whatsoever. Therefore, so that the government may have some idea of what is thought by one member of parliament who represents a constituency which is not at the present time serviced by the Canadian Broadcasting Corporation, I would strongly recommend that the government totally abolish the imposition of a radio licence fee and take the funds out of the general fund of the Dominion of Canada so that there may be equality and justice to all such persons resident in this Dominion of Canada.



LOCATION OF TERMINUS OF OIL PIPE LINE

Howard Charles Green: Mr. Speaker, the subject I wish to place before the house tonight comes, in reality, in the form of a question, namely-whether the terminus of the main oil pipe line from western Canada should be in the United States or at the lakehead in Canada? I bring this matter up in this way and at this time because while the government appears to be partially committed to a terminus in the United States, I believe it is not yet too late to make a change in that policy. This is one of those questions, the decision concerning which may have far-reaching effects on the nation.
For that reason I make no apology for bringing this matter before the house tonight. In doing so I realize the Minister of Trade and Commerce (Mr. Howe) will probably have an opinion contrary to my own.

Pipe Line Terminus


Mr. Howe:: You state yours, and let me state mine.


Howard Charles Green: Well now, I started out trying to be on friendly terms with the minister but, as he does so often, he has very quickly flared up, and shown this dictatorial attitude which does not go down well in Canada. I would remind the minister that on other occasions, when he was so sure he was right, he was completely wrong. Two examples are, first, when he said we could not possibly make tanks in this country, and secondly when we proposed to the government that there be merchant ships built in Canada, when shipping was so short during the war, and he said that it was foolish to waste our time in the peacetime occupation of building ships. Shortly after that his ship was torpedoed on the way across the Atlantic, and it was not very long until Canada was right into a big shipbuilding program.


Clarence Decatur Howe: This is a pretty intelligent discussion!


Howard Charles Green: I am just pointing out that the minister has been all wet before.


Clarence Decatur Howe: And they send people down all the way from Vancouver to talk like this!


Howard Charles Green: And I think he is all wet on this question. 1 hope that a great many members of the house, regardless of the party to which they belong, will agree with me-or at least will give the question the very serious consideration it merits.
I should like to outline the steps which had been taken by the house. As a result of the discoveries of oil in Alberta the government at the spring session brought in a bill called the Pipe Lines Act. It was a bill laying the legislative framework for regulating pipe lines in Canada. Wide powers were given under the act to the board of transport commissioners, included among which was the power to rescind, change, alter or vary any order or decision that they might have made. I point that out because they have already made an order in connection with the routing of this pipe line.
Then there were several private bills brought in incorporating different companies. The government policy was that a company which was to establish a pipe line for oil or for gas must be incorporated by act of parliament. I believe that was a wise provision. One of the companies so incorporated was known as the Interprovincial Pipe Line Company. It is a company controlled, I believe, by Imperial Oil Company Limited. There may be other oil companies interested in it, but I think control is in the hands of Imperial Oil.
The bill incorporating the Interprovincial Pipe Line Company was sent by the house to the committee on railways, canals and telegraph lines. This happened in the last day or two of the session, when there was a great rush and the committee sat for only a few minutes. During that time it considered several bills, so that there was very little opportunity to go carefully into the plans of these different companies.
Some evidence was given before that committee that the Interprovincial Pipe Line Company might be running their pipe line through the United States rather than to the lakehead in Canada. But as I remember it, the statement with regard to the routing of the pipe line was not a definite one.
Subsequently, in June, the company applied to the board of transport commissioners for permission to construct a pipe line from Edmonton to Regina, and permission was given. I am not quarreling with that order, because I think it was proper that they should be given that right. There is however one feature about it which gives me some concern. We understood last spring that these pipe lines were to be common carriers. In other words, they were to carry the oil offered by all companies no matter how large or small. But while the chairman of the board appears to have raised the point during the hearing, the order does not state that this pipe line is to be a common carrier. I do not understand why such provision was not made.
Then about a month ago they applied for permission to construct a pipe line from Regina to Gretna, on the boundary between Manitoba and the United States.


Mr. Carroll:: What is the name of that place?


Howard Charles Green: The place is called Gretna. One finds in looking over the evidence and reading the judgment of the chairman of the board of transport commissioners that it was clearly understood that the pipe line was not to stop at Gretna, but was to go right through to Superior in the state of Wisconsin, Superior being a port on lake Superior.
We find also that the capacity of the pipe line was to be 70,000 barrels daily, of which
35,000	was to be piped through the states in bond, and then shipped down to the Imperial Oil refinery at Sarnia. The other 35,000 barrels apparently was to be refined at Superior, or at some other point in the United States. Finally the company obtained an order from the board of transport commissioners on September 12.


Then they had to get a permit from the Minister of Trade and Commerce before they could build a pipe line. They got that permit on the following day, September 13.


George Alexander Cruickshank: Of this year?


Howard Charles Green: This year, just a few weeks ago. That permit by the Minister of Trade and Commerce (Mr. Howe) was issued under the provisions of the Electricity and Fluid Exportation Act, which is chapter 54 of the Revised Statutes of Canada. Under that act wide power is given to issue licences and also to revoke them. Section 7 contains a provision which I think is significant and which reads:
Any such licence may provide that the quantity of power or fluid-
Oil would come under "fluid".
-to be exported shall be limited to the surplus, after the licensee has supplied for distribution to customers for use in Canada power or fluid to the extent defined by such licence, at prices and in accordance with conditions, rules and regulations prescribed by the governor in council.


George Alexander Cruickshank: Has this company the necessary finances available?


Howard Charles Green: The board found that the company is adequately financed.


George Alexander Cruickshank: Have they those finances now?


Howard Charles Green: Imperial Oil Limited has given an undertaking that it will stand behind the company in the event that the company's own finances are not sufficient.


George Alexander Cruickshank: I am against the way this is being done. That is why I ask.


Howard Charles Green: I think that is a good provision in the act. It shows that the legislators- apparently the act was passed as far back at least as 1907-believed that Canada should be looked after first before power or fluid was exported. That is the essence of my submission tonight, that Canada should be looked after first.
Construction of this pipe line between Edmonton and Regina may have been commenced, but I understand no construction has been started on the line from Regina to Superior and it may not be too late for this question to be given further consideration.
A most significant statement was made last week by officials of Imperial Oil Limited. There had been agitation at the lakehead to have the pipe line go through Canada to which the answer was given that it would cost approximately $10,600,000 more to construct it to the lakehead than to Superior and over $400,000 more each year for operating expenses. It was stated also that there would be some delay in building it to that point;
Pipe Line Terminus
in other words, that the pipe line could not be completed to the Canadian lakehead as quickly as it could be to Superior. My argument tonight is in spite of the admission of all those facts. Imperial Oil officials went to Fort William last week and a press dispatch from there dated September 27 reads as follows:
If government assistance is given Imperial Oil to study the possibility of an easily transversed pipe line route through northwestern Ontario, and, if necessary, to subsidize the project, the company will consider terminating the line here, top officials of the oil company stated today.
The officials who were there were P. H. Hewitson, chairman of the board; G. L. Stewart, president; J. R. White, vice-president; and Dr. O. B. Hopkins, president of the subsidiary company, Interprovincial Pipe Line Company. The press dispatch goes on:
The oil men told a gathering of lakehead civic officials and other local citizens at Fort William today that the purpose of the proposed pipe line from Alberta is not to serve the American markets, but to supply their refinery at Sarnia.
You will remember that the evidence before the board was that half the oil was to be refined in the United States. The report continues:
They said it was decided to terminate the line at Superior, Wisconsin, rather than at the Canadian lakehead, because the American route would cost less and could be built sooner. Since the company had to borrow the money to finance the project, the economic factor had to determine the route. Time was also of utmost importance.
That statement has not been contradicted by the officials since the press dispatch appeared. The hon. member for Moose Jaw (Mr. Thatcher) asked the Minister of Trade and Commerce about it on September 28 as reported on page 317 of Hansard. His question reads:
Has the attention of the Minister of Trade and Commerce been drawn to the reported offer made yesterday to civic officials in Fort William by Imperial Oil Limited to build its pipe line through Canadian territory to Port Arthur if government assistance is forthcoming? Will the government investigate the offer, with a view to reconsidering its former decision?
The Minister of Trade and Commerce gave a peculiar answer which I am going to read to the house:
My hon. friend suggests that the government has made a decision. So far as I know, the government has made no decision. A private project has been placed before it, and the appropriate branches of government acted upon that project as required by law. The government has received no proposal in the matter, and I doubt whether a proposal will be made to the government concerning a private project of this kind.
This is not a private project in the ordinary sense; it is a project of vital importance to every part of Canada and it should be treated as such. My submission is that the main pipe

Pipe Line Terminus
line should be laid in Canadian soil. All this brings to mind what happened when the Canadian Pacific was built across Canada. One of the moving spirits in that project was Mr. James J. Hill, Jim Hill. He was originally one of the directors of the Canadian Pacific Railway Company and believed that part of the line should be built through the United States. When he was unable to get his way with the board he left the Canadian Pacific and established the Great Northern which was built across the United States. He ran feeder lines into Canada in as many places as possible in an attempt to get Canadian trade for his main line in the United States. I know there were several branch lines running up into British Columbia to tap the resources of that province.
I suggest that in 1949 we do not want to have anything of that kind happen. I believe most sincerely that the main pipe line should be laid in Canadian soil.
Apparently some of the oil is to be shipped to Sarnia. I believe that it should be shipped from one Canadian port to another. Dock facilities are to be built at Superior, Wisconsin, instead of at the Canadian lakehead. I would remind hon. members from the maritimes of the trouble they have had for decades because Canadian freight was shipped from Portland, Maine, instead of from Halifax and Saint John. No one can justify that. 1 believe that those two great Atlantic ports have been dealt with most unfairly by Canadian governments, and we do not want a situation of that kind arising in this case. Let us have this oil shipped by Canadian tankers from one Canadian port to another.
I also believe that the oil should be refined and used in Canada to the greatest extent possible. Certainly we should sell any surplus to the United States; but let us use this oil in Canada to the greatest possible extent. The same question will arise in a year or two with regard to the iron ore of Quebec and Labrador. The house is going to be faced with the problem of whether that iron ore is to be made into steel in Canada, or be shipped to Cleveland, Boston or some other centre in the United States, and turned into steel there.
Another reason why I believe there should be a change in the plan is because of what this can do for Canada if the line is kept in our country. Let us take the situation at the lakehead. The trans-Canada highway is to be built very shortly, I hope. There will be tremendous traffic through the lakehead cities on the trans-Canada highway, not only tourist traffic but also trucks. I am looking forward to that time because I am quite sure the trucking will be a check on railway freight rates. That is one way in which

western Canada will get freight rates reduced to what they are in Ontario and Quebec. There is certainly going to be a great deal of traffic on the trans-Canada highway through the lakehead cities if the trans-Canada highway is a proper road.


Clarence Decatur Howe: Tell me about the lakehead.


Howard Charles Green: We may be facing a similar situation on the west coast a few years from now. We may have the suggestion made then that it is cheaper to run a pipe line down to Seattle, Spokane or Portland, and we may have oil from the prairies or from the Peace river portion of British Columbia piped into those United States centres for refining. At the moment it is the great lakes area that is involved, but eventually the west coast may be facing a similar problem.
Finally I believe that in the oil development and in the iron ore development we have tremendously important factors in the building of a great nation. They are perhaps the two most important developments that have taken place in Canada in the lifetime of anyone in this chamber tonight. I hope that Canada's oil is not merely to be used as a reserve to be taken down into the United States when it is needed there after their oil fields have become exhausted. There is a real danger of that taking place if the policy is to be formulated by oil companies rather than by the Canadian parliament. It would be a tragedy if that should happen.
I do not believe that the government can evade its responsibility in the matter. I think that the Minister of Trade and Commerce (Mr. Howe), in his answer to the hon. member for Moose Jaw (Mr. Thatcher) on September 28 and also in his answer to an earlier question on September 19, which will be found at page 29 of Hansard, was not facing up to his responsibilities. I am quite sure that, if the government so desires, this plan can be changed and the main pipe line can be laid to the lakehead. I urge upon the private members of the house that they take a stand on this question even though the minister may seem very determined to maintain the present plan. I hope that private members of the house of all parties will go into the question thoroughly, and that they will not be afraid to take a stand on this issue which, in my opinion, is of vital importance to the nation.


Clarence Decatur Howe: I have heard many arguments in the house, and none so fallacious as the one to which we have just listened. One would think that this is the first pipe line ever built in Canada to market oil which crosses the Canadian boundary. Most hon. members know that Canadian interests built

a pipe line from Montreal to the seaboard within the last ten years. If the argument of my hon. friend is valid it was quite improper to build that line from Montreal to Portland. The line should have been built from Montreal to Saint John, or possibly from Montreal to Halifax. True it would have raised the price of oil in the Montreal area by two or three cents, but what is that? My hon. friend would say that two or three cents a gallon on oil is nothing at all if national pride and the little Canadian viewpoint can be preserved. Anything built to serve Canada must be built through Canada.
I would also remind the hon. member that for a great many years Canada has been served at Sarnia by a pipe line built from the mid-continent field of the United States. I can say that, if that pipe line had not crossed the international boundary to serve Canada, Canada would not have fought very much of a war in the last conflict.
What is the purpose of the pipe line from Alberta? It is to bring Alberta oil to market. My hon. friend says that the markets must be in Canada, and since we believe we have there one of the great oil fields of the world he follows through and says, "All right, if it is necessary to market the oil, pipe it down to Halifax."


Howard Charles Green: I did not say that.


Clarence Decatur Howe: Certainly you said it. You said that the oil must be used in Canada.


Howard Charles Green: Mr. Speaker-


Clarence Decatur Howe: Well, now, sit down and let me make a speech.


Howard Charles Green: On a question of privilege, I do not mind what the minister says provided he does not put words into my mouth. He said that I said a pipe line to Halifax. I said no such thing. He must stick to what I said if he is going to quote me.


Clarence Decatur Howe: Where would this line stop, at the lakehead?


Howard Charles Green: Yes.


Wilbert Ross Thatcher: Stop at Port Arthur.


Howard Charles Green: Stop at the lakehead.


Clarence Decatur Howe: I know quite a lot about Port Arthur, and I know the purpose of the speech which has just been made.


Howard Charles Green: The minister is imputing
motives. I made my speech because I believe in what I said. He has no right to say that it had to do with anything else. He has no right to impute motives.


Mr. Speaker:: I did not understand the minister to impute any improper motives.


Gordon Knapman Fraser: He certainly did, Mr. Speaker.
45781-34J
Pipe Line Terminus


Clarence Decatur Howe: If I may resume, the purpose of the pipe line is to bring Alberta oil to market. If it is reasonable to carry that oil to Halifax in order to find a market in Canada, then the market should be confined to Canada. As a matter of fact the only permit issued under the Electricity and Fluid Exportation Act is one to transport oil from Alberta to the Sarnia refinery. No permit has been issued as yet for the marketing of oil in the United States. However, I think the province of Alberta has a distinct interest in this pipe line. After all, crude oil prices in Alberta will be determined by the refinery prices at the marketing points less the cost of transmission, and the cost of transmission will include the operating expenses and amortization of the cost of the pipe line. My hon. friend said, "Add another $10 million to the cost; add another $400,000 or $600,000 to the operating expenses. Let the province of Alberta pay that."


Howard Charles Green: I .did not say that.


Clarence Decatur Howe: Well, who is going to pay it?


Howard Charles Green: Go ahead and make your speech, but don't misquote me.


Clarence Decatur Howe: Certainly the cost of the pipe line must be paid by the oil it transmits; I know of no other source of income for a pipe line. Therefore the board of transport commissioners considered an application to build a pipe line from the oil fields in Alberta to Superior, Wisconsin, to transmit oil to Sarnia. That is a Canadian movement. The ships carrying the oil to Sarnia from Superior must be Canadian ships, under the coasting laws of this country. I think the board of transport commissioners were right when they said it had been proved that this was the economic route from Edmonton to Sarnia. They looked into the financing and found that the American portion was going to be financed in the United States, so there would be no drain of American dollars from the Canadian reserves. They found that the Canadian portion was going to be financed in Canada. They found that there would be a definite saving in the cost of marketing oil by that route, and accordingly they approved the application. The government, through the Department of Trade and Commerce, issued a permit for the transportation of oil through that pipe line from Edmonton to Sarnia.
Those are the true facts of the case, distort them as you like. My hon. friend says this private venture-for it is a private venture- should not have been permitted, that we should have told the owners, "If you want to build this pipe line at all you must spend another $10 million to take it to the lake-head." I cannot see the economics of that

Pipe Line Terminus
situation, what would be the quid pro quo for the extra $10 million. It is true that there would be a pipe line terminating at the lake-head instead of at Superior, but is that worth $10 million? There is no possibility of a refinery at the lakehead, as far as I can see. Refineries are built in centres of distribution, and it is very unlikely that the lakehead would ever be a centre of supply. So my hon. friend would assess the province of Alberta and its oil resources a capital payment of something over $10 million and < additional operating costs of at least $400,000 a year in order that his ideas of geography might be followed. I claim that the economics of the situation, the common sense of the situation and every other factor involved indicated that the application of Imperial Oil should be approved.
My hon. friend objects to marketing Canadian oil in the United States. Let me point out to him that it is very fortunate for Canada that the United States have not taken that viewpoint. We have been beggars for oil in the United States. In the tightest situations in that country-and I can tell my hon. friend there have been some tight situations-when oil was rationed from one end of the country to the other, Canada was always given the supplies of petroleum the country needed. In my opinion international commodities such as oil, that move freely from country to country and continent to continent, should not be confined by geography. The sensible way to market international commodities such as petroleum is to move to the markets nearest the source of supply. If this House of Commons should say to Alberta, "We are very sorry, but we need that petroleum in Canada, and you cannot market any in the United States until you serve all Canada," not only would the oil economy of the province of Alberta be wrecked beyond repair, but the good relations that have existed between the United States and Canada with respect to the supply and distribution of petroleum also would be wrecked. Certainly it is in the interests of the users of petroleum to get that commodity from the cheapest source. For eastern Canada and perhaps in the Montreal area that cheapest source is still the Caribbean or the gulf ports of the United States. The best market for Alberta oil is that which could be made available nearest to the source of supply, and part of that market eventually may be in the United States. To market oil in the United States simply means that you convert that oil into American dollars which you use to obtain oil from the cheapest source for other parts of Canada, and that is the sensible way to view the marketing of petroleum.

My hon. friend speaks of iron ore. Iron is in exactly the same position. We have been a deficit country in iron ore, but the fact that we have not had iron ore has not prevented the development of the steel industry of this country. We have in Canada a very efficient steel industry. The iron ore for that industry, as far as central Canada is concerned, has come largely from the Mesabi range in the United States. In part that is being replaced by ore from Canadian sources, from Steep Rock and from the Helen mine in the Algoma district, but a large proportion of our iron ore still comes from Mesabi, while a large percentage of the Canadian ore is sold to the United States. I do not know whether my hon. friend sees anything wrong in that; it is a natural movement. The ore is sent where it brings the best price; if it has the proper qualities it is bought by the steel companies whether it is Canadian or American ore. It moves without trade restriction and as the economy dictates. I cannot follow my hon. friend at all when he says Canadian ore must be used in Canada. It does not make sense. That is the viewpoint of a little Canadian. This a trading country, and any supplies we have in surplus should be traded for supplies in which we have a deficit.
Getting back to the pipe line, I stand on the statement I have made; that the government had no reason whatever to interfere with the project of the Imperial Oil Company for the marketing of Alberta oil. So far as my department is concerned, it issued a permit for the movement from Alberta to Sarnia through the route of the pipe line. I have no apologies to make.


George Alexander Drew: Mr. Speaker, I think it should be possible to discuss this subject without getting away from the basic contention of the member who raised it. There are two points of view that have been expressed by the minister that do not go hand in hand. First of all, he made a statement that this pipe line was being carried through to Superior but that no licence had been granted for marketing the oil in the United States. The oil is to be carried to Sarnia. The rest of his argument was directed to the proposition that we should sell our oil in the United States. It is one or the other.


Clarence Decatur Howe: Oh, no.


George Alexander Drew: The point is this. If the oil is to be carried to Superior for the purpose of selling it in the United States then let us know that now. The statement of the minister lends support to the belief that is developing that the construction of the pipe line to Superior is not for the purpose of carrying

oil to eastern Canada but is to supply the Chicago area with oil. The geographical relationship of Superior to that natural market is apparent.
There is every reason why we should have regard for the extremely generous way in which the United States has made its supplies of oil available to us. There is every reason why there should be a high measure of free interchange of understanding and good will between these two nations. Long before there was a pipe line built from the mid-continent field to the refineries at Sarnia, the United States centres had been supplied by pipe line. They made certain of their own supplies, as was their legitimate duty. It is the duty of Canadians to make sure they have pipe lines where they are needed before this new supply of oil is shipped to outside points. There is a vital need for oil in our country. It is one of our deficit resources.
Within the past few years, we have seen one of the most remarkable developments in the whole world. On the basis of the clearest evidence than can be obtained, there is every reason to believe the Alberta field is merely the core of one of the greatest oil fields in the world. Canada has been a beggar for United States oil, as the minister has said. It is a strange thing for a beggar to start giving away the thing he was begging the minute he gets it into his own hands. We are just commencing to reach a position where we can meet this great domestic need of modern industrial nations. Oil is the basis of modern transport. The use of it in our homes and elsewhere has been growing to an extent no Canadian visualized. We now see before us a great source of oil. At such a time our first obligation is to supply our own centres with that vital fluid by means of a pipe line. Let us make every barrel of oil which is surplus above our requirements available to our neighbours.
The right hon. the Minister of Trade and Commerce tMr. Howe) has stajed, and stated very properly, that we should export our surplus, trading it for what is a deficit. We are a long way yet, a very long way, in spite of the prospects before us, from being in a surplus position in regard to oil. This is our first venture of this sort. We have only begun to realize the potentialities of this vast field. This pipe line is the first that is to bring the oil from this great field to the east. The minister may dismiss the statement that was made, that, if necessary, it is worth an extra $10 million to carry that pipe line through to the lakehead. This country has spent a great deal more than $10 million on things less productive of results for the future of Canada. It is true that it might cost an additional
Pipe Line Terminus
$400,000 per year in servicing charges for the extra pump that would be required because of the additional 120 miles that would be covered in going through to the lakehead instead of Superior.
If that argument is sound, then why did we ever build railroads across Canada? In some places, we could have used the United States lines. We built railway lines in Canada because we wanted our own transportation system for the opening up of our own areas. In the building of this pipe line we must look not only to the immediate use of the oil, not only to the immediate consuming power of the lakehead area, but also to the future of that whole area from Sault Ste. Marie through to the Manitoba boundary. This area would naturally be served by a refinery at the lakehead. I mentioned going through to the Manitoba boundary because I understand there will be refineries at different points farther west along this line that would meet the consumer demands of centres of population such as Winnipeg and Regina.
When the minister says there should not be any reason for building a refinery at the lakehead it strikes me as strange, in view of the fact there are many places which must be within the knowledge of the members of this house in which refineries have been built to supply areas that consume a great deal less oil and gasoline than would be consumed in the lakehead area. It is a rapidly developing section of the country. This area is not confined to the lakehead cities alone, but would include the mineral developments to the northeast, to the north, and to the northwest, to say nothing of the tourist demands in that area. All this would create a greater demand for gasoline and oil than the amount consumed in many smaller nations of the world today in which refineries have been built to meet the local demand. If, for the sake of argument, the demand now might seem a little less than would call for the construction of refineries elsewhere, one has only to look at the immense potentialities of that area of Canada, to realize what has happened in the past few years and what is going to happen in the years immediately ahead, and to understand that with this source of gasoline and oil available new industries and new developments would be established.
After all, it seems to me that is one of the first things to which we should be looking as Canadians. We have seen the development that is taking place in Canada from one coast to the other through the employment of our great water resources. We have seen the development that has occurred through the use of our other raw materials. Now, when this new and rapidly expanding source of



S26 HOUSE OF COMMONS

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development is becoming available, then it seems to me that, in every way that is within the power of the representatives of the people of Canada, this oil should first be made available to the people of Canada for the development of Canadian opportunities.
We have a very long way to go before we shall begin to meet our own demands. I understand that we are bringing in from the United States something in the neighbourhood of 350,000 barrels of oil a day. It is going to be a very long time before any of our friends in the United States can reasonably say to us, you are being unfair if you make use of these new sources of oil for your own country to fill the gap which is at the present time such a very heavy drain upon your own Canadian dollars. Yes, it is true that we shall receive Canadian dollars for such oil as may be piped outside of Canada, and in the very statement that the minister made he indicated his own belief that the oil that is going to Superior is going to the United States and not to' Sarnia. There would have been no meaning in that statement if he did really believe that the oil was going to Superior, then to be carried by Canadian ships to Sarnia. Certainly, that is where it is going. Look at the map. It is going into the Chicago area unless there is some explanation that has not been put before us. It is the reasonable location for that oil, and the minister makes it quite clear that he thinks we are going to reap American dollars from the export of oil through this pipe line. Let every one of us hope that this vast field will reach such a point that we shall produce more oil than we need in Canada. Let us hope also that, with the pilot plants which are now being built, within the not too distant future a practical system of cracking the oil from the oil sands in Alberta will have been discovered; and when that happens the greatest concentration of oil in the whole world will have been made available. At such time as we have met our own basic requirements and opened such possibilities of development as reasonably accompany this new source of production, let us have interchanging lines. This is only the first line. There will be many others, and the producers of Alberta will certainly want to see a number of lines carrying oil.
Let us remember that this pipe line is not just a pipe line of a subsidiary of the Imperial Oil. It is a common carrier to carry oil for any company that will be supplying oil through that pipe line. In its own particular way it is a common carrier such as the railways might be. If Canada was wise in the past in facing the heavy costs of building railways across the north shore of lake
tMr. Drew.]
Superior instead of following the easier course south of the border; if we were right in the costly construction of lines through the Rocky mountains instead of simply diverting the lines down to use the United States lines that were already built there at costs far in excess of anything involved in this case: then it seems to me that for the very same reasons and for the very same motives, and for motives that would appeal to our American friends, the strength of whose nation was founded on legitimate self-interest, they would understand perfectly well why we are doing this, and would acclaim our common sense in making sure that as the first step when we put our first oil line in it goes to a Canadian outlet where our ships from a Canadian port can carry that oil to Sarnia or to any place else; and that such oil as is not carried in that way can be refined, if not immediately, at some time in the not distant future, when the expansion in that area will itself be encouraged by the availability of this supply, and when that very expansion will encourage those who are concerned with this into the construction of a refinery at the lakehead, not merely for the Iakehead cities but for that whole great area with its agricultural, its mineral, its forest and its enormous resources, in addition to the industrial possibilities related to iron and the other metals which are available in that area, as well as to the industries based upon wood products and the other resources that are there.
There may be reasons on both sides, but let us be quite clear about this. In the latter part of his statement the minister was clear that in his mind there is going to be an export through Superior to the United States. By all means let us co-operate in every way with our friends in the United States; but let us make sure first that we do the same thing in Canada that they did to build the United States, and that in the first stages we make sure that we get the fullest possible development that will result from these new discoveries that challenge the imagination of young Canadians in the years ahead.
Mr. Solon E. Low (Peace River):: For two
main reasons I rise to say a few things about the problems that have been discussed here tonight. First, I want to join with the hon. member for Essex West (Mr. Brown) in protesting against any increase in the fees charged by the Canadian Broadcasting Corporation for radio licences.


Mr. Speaker:: May I draw to the attention of hon. members a citation from Beauchesne's parliamentary rules and forms, third edition, which has a direct bearing on the discussion of grievances which are raised when a motion

to go into supply is before the house. I refer hon. members to paragraph 345, the latter part of which reads as follows:
Members may discuss various matters on the motion for the Speaker to leave the chair without any amendment being proposed; but once debate is stopped on one matter and another matter intervenes, members cannot again discuss the former.


Solon Earl Low: Yes. Mr. Speaker, oftentimes it is difficult for you to see hon. members who want to take part in the discussion of a certain topic, and I presume you did not see me try to rise in my place on one or two occasions. However, that is beside the point at the moment. I do want to throw a little light on the subject that is now under discussion, namely, the question of the pipe line which was introduced by the hon. member for Vancouver-Quadra (Mr. Green). In this house debates often seem to generate much more heat than light and I am afraid that this is one of the occasions when that has happened.
There is one point that nas not been made clear, and i am sure that hon. members would want to know all sides of the question before the debate is closed. I can quite agree with the hon. member for Vancouver-Quadra and with the leader of the opposition (Mr. Drew) that every hon. member should be much concerned about where the pipe line is to go and what the end result is to be.
I believe every member will agree that the first call on the oil being produced in Alberta should be from the Dominion of Canada. I do not think anyone questions that, not even the minister himself. I believe he agrees that under normal circumstances we should have the first call on the oil right here in Canada, provided we can bring it into the market at a competitive price. That is something that enters into this whole problem.
Pipe lines are costly, and to reach markets of any size, from the province of Alberta where oil is being produced, there are great distances to cover in Canada. If it is possible to effect an exchange of oil with the United States under which we agree to supply them with oil from Alberta in areas closer to the source of the supply, they in turn to bring oil across to us in Canada at a lower price, then it seems to me that the people of Canada are gaining by the arrangement.
I should like to mention something which perhaps was overlooked in the debate in the speech from the throne. On September 28 the hon. member for Wetaskiwin (Mr. Thomas) placed on Hansard a statement that had been made in Alberta by the Hon. N. E. Tanner, minister of lands and mines in the legislature, dealing with this important topic. I
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believe it is quite clear on this one point we are now discussing, where it states:
... a petroleum exchange agreement may soon be signed with the United States allowing Alberta to export oil to that country. Under the agreement, the United States would buy oil at the lakehead; eastern United States producers in turn would sell oil to eastern Canada. Mr. Tanner said such an agreement would only be possible alter the completion of a proposed pipe line from Regina to the great lakes.
Mr. Tanner said that if such a policy were not agreed to by the United States, Alberta oil could only be shipped to eastern Canada at a greater cost.
That is reasonable and right. Surely we in Alberta, who are very much concerned about the markets for our oil, are going to watch every one of these possibilities, and we are going to try if we possibly can to see to it that priority is given to Canadian needs. But at the same time if we can see to it that oil is placed in the homes of Ontario and Quebec at cheaper prices by piping some of our oil from Alberta into the United States, then I think that is good economy.
I believe this point was not made sufficiently clear, and I inject these remarks into the debate only to try to clarify the point. Let me emphasize that we in Alberta are anxious to see that all the Canadian people, so far as is possible, do benefit from the discovery and the development of the oil industry in our province. We want to see to it however that, if we can assist the United States, which, as the minister has said, has certainly assisted us, then we should do so, while at the same time making every agreement we can to ensure that eastern Canada can benefit also by an exchange agreement.
Motion (Mr. Fournier, Hull) agreed to, and the house went into committee of supply, Mr. Beaudoin in the chair.



DEPARTMENT OF FISHERIES

[Stage Direction]
101. Departmental administration, $360,900.
Item stands.

[Stage Direction]
172. Departmental administration, $365,500.
Item stands.

[Stage Direction]
326. Departmental administration, $264,135.
Item stands.

[Stage Direction]
413. Departmental administration, $468,107.
Item stands.

[Stage Direction]
526. Departmental administration, $2,157,024.
Item stands.
Progress reported.
[Stage Direction]
Supreme Court Act SUPREME COURT ACT


[Stage Direction]
The house resumed consideration in committee of Bill No. 2, to amend the Supreme Court Act-Mr. Garson-Mr. Beaudoin in the chair.
The Deputy Chairman:: At the adjournment the committee was considering an amendment by the hon. member for Kamloops to section 3.


Donald Methuen Fleming: Mr. Chairman, I have only one or two observations to make, and I make them in reply to the observations uttered this afternoon by the Minister of Justice.
I wish to take up first of all his assertion that those who had any part in supporting this amendment were prompted by a lack of confidence in the Supreme Court of Canada. I reject his assertion in its entirety. I would tell him, if I may, that by introducing red herrings of that kind I do not think he contributes anything constructive to the debate.
I should think he would appreciate that what is involved here is a point so important as to have commanded not only the attention of but also a resolution from the Canadian Bar Association. If the minister is correct in his statement, that those who introduced and supported the amendment now before the committee were prompted in doing so by a lack of confidence in the Supreme Court of Canada, then he must say the same thing about every member of the Canadian Bar Association, from the president down, including judges who in large numbers are members of that body, and who took precisely the same position as that embodied in the amendment before the committee tonight.
If he is consistent in making a pathetic assertion of that kind, it means also that every time a body such as parliament undertakes to change a law, as it has been interpreted by the courts, parliament is expressing a want of confidence in the courts. It is utter nonsense to make an assertion of that kind in the House of Commons-utter nonsense.
It means, too, that legislatures of the provinces are expressing a want of confidence in the courts when they introduce measures which are to be found in every province throughout Canada in the form of declaratory acts. Every time a new court is set up there has to be some definition of the law to be applied, and we know perfectly well that when the superior courts of all the provinces were set up declaratory acts were passed to define the body of law which those provincial courts should apply.
If the minister is right, then every time a provincial legislature enacted a law of that

kind it was expressing want of confidence in the courts of the province. To state a proposition in that form is to expose its utter absurdity. All I have to say, in conclusion, concerning that example of empty demagoguery which was offered to the House of Commons this afternoon by the Minister of Justice, is to say that it is utterly absurd.
I want to deal with something that has some substance because I gather from the questions that have been asked by some hon. members that there is some difficulty about it. I refer to how far we may go in assuming that the principle of stare decisis will be acknowledged by the Supreme Court of Canada with respect to past decisions of the privy council unless some such legislation as is proposed by the present amendment is introduced into this bill. The hon. member for Yorkton asked a question this afternoon somewhat to this effect: If the Supreme Court of Canada gave effect to the principle of stare decisis with respect to past decisions of the privy council, what would be the need of this amendment? I point out to the hon. member that if we proceed on that basis we are assuming that the Supreme Court of Canada will apply the principle of stare decisis to past decisions of the privy council. I do not think we are entitled in a matter of such vast importance, not only for the established jurisprudence of this country but for the preservation of the rights of the provinces, to make that assumption.
When we are taking the far-reaching step involved in section 3 of this bill of giving the Supreme Court of Canada final and exclusive jurisdiction in connection with all litigation in Canada, we are not entitled to leave a matter of such importance in the realm of uncertainty. That is why it is incumbent upon this parliament in enacting this measure to see that safeguards which are absolutely vital and which may yet prove to be highly essential are provided.
The minister treated the matter as being rather a simple one in this regard. Having in mind the long course of litigation in the courts of this country and in the privy council on constitutional questions which seemed to many people at one time or another to have presented simple issues, I think any man would be displaying a great deal of temerity to say that any question concerning the respective fields of jurisdiction in this country and the method of determining such disputes can be regarded as a simple one. It certainly never has been in the past.
Finally, as to whether this amendment is necessary: This parliament has frequently enacted legislation when it was thought that the law was established in the same way as the measure before the house is being

enacted to settle the law, but parliament at times was not prepared to take any chance as to the interpretation that the courts would put upon a situation. The legislatures of the provinces have done the same thing times without number. We have in mind instances where enactments have been passed, either by this parliament or by the legislatures, out of what we call in the courts an abundance of caution, just to be perfectly sure that nothing is being left to the doubtful outcome of litigation in the courts. Whatever may be the view of the majority in this chamber today, we have no right to assume in a matter of such vast and momentous importance to this country that this principle will be applied by the Supreme Court of Canada with respect to past decisions of the privy council after this measure has been enacted. Let us not leave it in the realm of doubt. We have it in our power to dispel any doubt, to put this matter beyond all possibility of challenge in the courts. Let us do so.
There is one subject that the minister has raised by way of challenge of the point that I have just made. He questions whether it is within the legislative competence of parliament to enact a measure of this kind because he says it is going to create substantive law and the power of parliament with respect to the Supreme Court of Canada does not extend to substantive law. That is an extraordinary proposition for anyone wearing the mantle of the Minister of Justice to offer in this chamber. Parliament is enacting substantive law all the time, law which is bound to come before the Supreme Court of Canada.
My submission is that this amendment does not go beyond the legislative competence of parliament. If there is any field where parliament might say to the Supreme Court of Canada that it shall be bound by the decisions of the privy council hitherto rendered, then certainly parliament within its own field of legislative competence is entitled to say that. If there is anything at all in the argument of the Minister of Justice in that respect it would mean that parliament in connection with those matters concerning which it possesses legislative competence is entitled to say what is said in this amendment to the Supreme Court of Canada. It would mean also that the legislatures of the provinces could say the same thing to the Supreme Court of Canada in connection with questions with regard to those subject matters that are confided by the British North America Act to the legislative jurisdiction of the provinces.
With respect to that point my submission to this house, and I think it is a fair one, is that so far as the legislative competence of this parliament extends, that is to say
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with regard to all those subject matters that are confided by the constitution of this country to parliament, as distinct from the legislatures of the provinces on the other hand, this measure is clearly within the legislative competence of this parliament.
I ask the house to consider the importance of this subject. If it is within our power to enact this measure, then surely it is within our power to say what the Supreme Court of Canada shall do with respect to applying the principle of stare decisis to that body of law laid down by the privy council.
Do not take my word for it. Apparently there is a difference of opinion among hon. members as to the necessity for it. In a situation of this kind, should we not have regard for the opinion expressed on this subject by the Canadian Bar Association? Should we not have regard for the statement by the president of the Canadian Bar Association which I read in the chamber this afternoon? That statement deals specifically with this very subject and was issued by him after the bill had been given second reading and this question had been raised in the house. There you have a clear expression of feeling by the Canadian Bar Association, which as I have said embraces judges as well as lawyers, that an amendment of this kind is needful and necessary and is within the legislative competence of parliament.


Louis Stephen St-Laurent: Mr. Chairman, I should like to associate myself with the Minister of Justice in the opinion that the adoption of this amendment would be an expression of lack of confidence in the supreme court and share the opprobrium that flows from the strong language used by the hon. member for Eglinton. My reason for saying so may appear to him to be demagogic, but I shall submit it as briefly as I can for the consideration of hon. members.
I think he and I agree that the rule of stare decisis would make it the duty of the supreme court to follow the decisions that have hitherto been rendered and have become the law of this country. The judges of the supreme court have pledged their oaths to apply the law. If we are to express doubt that they will do so, we express a lack of confidence in their respect for their oaths. That seems to me to be elementary. If it deserves the strong language the hon. member for Eglinton used a few moments ago, I wish to share the opprobrium with the Minister of Justice.
The second point I should like to make is with respect to this resolution of the Canadian Bar Association. The hon. member has stated and repeated, in spite of the fact that I read the terms of the resolution, that it

Supreme Court Act
does mean a request by the Canadian Bar Association to have that kind of amendment written into the bill. If that is so, then why did they pass a resolution-


Edmund Davie Fulton: In the light of the later statement.


Louis Stephen St-Laurent: In the light of the later statement by the president of the Canadian Bar Association? I submit with all respect that no one man, whatever be the position he occupies in the Canadian Bar Association, and I have occupied the office of president of that association-in my day-has the right to enlarge or modify the terms of the resolution adopted by that association. The argument of the hon. member is that because the resolution can have no other effect it must mean that the Canadian Bar Association wished it to be written into the bill. That is the best reason in the world for not putting this kind of amendment in the bill, because it is quite unnecessary, and there might be some honourable judges who, like the hon. member for Eglinton, would say: Parliament cannot have put that provision in there for no purpose whatever; let us find some use to which it can be put. That is what the hon. member does with the resolution of the Canadian Bar Association, and I think that is a most conclusive reason for not writing unnecessary provisions into statutes.


Jean-François Pouliot: Listen to that.


Louis Stephen St-Laurent: The third point has to do with the constitutional rights of this parliament to enact, on matters which normally are not within its jurisdiction, what would amount to substantive law. If this parliament has the right to say, otherwise than because it is the existing law, that the court shall do such and so, it would have a similar right to say that the court shall not do such and so; and to lay down a rule that the court would not be bound by the application of the stare decisis principle would be, I submit, something beyond the powers of this parliament.
If we have the right to deal with a subject matter we have the jurisdiction to deal with it as we see fit. If we see fit to say that stare decisis should apply, then it would be within our jurisdiction to say that it shall not apply, and in doing so we would certainly be attempting to enact substantive legislation in fields that might well be outside the jurisdiction of this parliament. I know that is not the position taken by the hon. member. He says that the rule of stare decisis is already a part of the law, and that by putting it in the bill we do not enact anything new. If we do not enact anything new then I submit it has no place in the bill, and that we should not

write provisions into the bill, along the lines of the resolution of the Canadian Bar Association, that will have no effect whatsoever but be merely an empty affirmation of something which is quite as valid without it.


Mr. Browne (St. John's West):: Mr. Chairman, I rise with great hesitation because what I am going to say is somewhat in opposition to what has been said by the Prime Minister. I have before me the eloquent speech which he made on the 23rd of September, and in which he was dealing with the question of stare decisis, I think in terms a little less careful than those in which he dealt with it this evening. May I be permitted to read what he said. He quoted the decision of the Canadian Bar Association that the rule of stare decisis ought to continue to be applied with respect to past decisions of the court, as well as with respect to past decisions of the judicial committee. I should now like to quote what the Prime Minister said, which is to be found at page 197 of Hansard of September 23, 1949, and reads as follows:
That is something with which I entirely agree.


Jean-Paul Stephen St-Laurent: Yes.


William Joseph Browne: He went on to elaborate and to say:
I think it is a part of the system of the administration of justice in British countries that the decisions are regarded as binding upon themselves and upon all courts of lower jurisdiction, until they are modified or set aside by legislative action. I think that forms part of the duties which a lawyer promoted to the bench promises on his oath to carry out.
Then he went on to say, as he said this evening, that he would not reflect upon the men who were appointed to the supreme court bench by suggesting for a moment that they would not carry out the duties of their oath of office. No one here is reflecting upon the ability and the integrity of the judges appointed to the Supreme Court of Canada, but what really incited us to put forward the amendment was the statement, which was quoted in the Ottawa Journal of June 2, of no less a person than the Chief Justice of the Supreme Court of Canada.


Mr.   Si. Laureni@: Will the hon. member permit a question? Was he here when I explained that situation this afternoon?


William Joseph Browne: Yes, I was present and I listened very carefully to what the Prime Minister said. I studied as much as I could about the decision because I greatly regretted, when I heard of the case in which the chief justice was reported as having made that extraordinary statement, that I could not find the case. I hunted through the library of parliament and it is not available. There is a report of the

Quebec case in the constituency of Beauce, the Independent member for which is present, and I found a picture of the Prime Minister eating ice cream at that place.


Louis Stephen St-Laurent: In the law books? I should like to have the reference to that interesting volume of the law reports.


William Joseph Browne: It is not in
the law books, but it happened that on the 2nd of June, when this pronouncement was made by the chief justice of the supreme court, the Prime Minister was campaigning in the place where the defendant, who was appealing to the Supreme Court of Canada, had been originally arrested and tried. It was in the course of my investigation that I came across interesting things that were said during the campaign in Quebec, some of which would not bear repetition in the house.
This afternoon, when the Prime Minister was giving an explanation of the statement of the chief justice he said that he had had an interview with the chief justice. Of course nobody can question what the chief justice said because there is no report except a newspaper report. There is no official report at the present time, and I doubt if there is any official report to come. The Prime Minister referred to the case in re Storgoff. I took the trouble to go and look it up. I am sure that the Prime Minister did not have the time to read it because it takes about 75 pages of the Supreme Court Reports. I have not had time to read it all, but I have looked up page 538 where, as the Prime Minister said, the chief justice gave a pronouncement four years previously in similar language to that which he used in the more recent case. Incidentally, I might say the Storgoff case was that of a person who was arrested for appearing nude in public in British Columbia. He was convicted on summary conviction and sentenced to three years' imprisonment. Somebody applied to Judge Coady for habeas corpus, and the prisoner was released from jail. The attorney general appealed against that decision to the Supreme Court of British Columbia and the prisoner was rearrested. Then an appeal was taken to the Supreme Court of Canada, and I believe the decision was that he could not be rearrested. That is what it was about.
Before I read the extract from the judgment to which the Prime Minister referred I should like to say for the benefit of those who are not lawyers, and who may be listening to me, that the privy council at the present time is the highest court of appeal in the British commonwealth, and its decisions are binding upon judges of Canada in civil matters but not in criminal matters,
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because that was removed from its jurisdiction some years ago, as this judgment says. That is the point; they are not binding in criminal matters. Here is what Chief Justice Rinfret said in this case in re Storgoff, in 1945:
Moreover, the question now before our court may not be discussed from the viewpoint of the English constitutional law. In this country we have to apply the British North America Act and the Criminal Code, two statutes which, of course, do not apply in England and do not call for interpretation and application in the English courts. In addition to that, the Supreme Court of Canada is now the court of last resort in criminal matters; and although, of course, former decisions of the privy council-
This is what the right hon. gentleman read this afternoon.
-or decisions of the House of Lords, in criminal causes or matters, are entitled to the greatest weight, it can no longer be said, as was affirmed by Viscount Dunedin, delivering the judgment of their lordships in Robins v. National Trust Company Limited at page 519, that the House of Lords, being-*
"the supreme tribunal to settle English law . . .
the colonial court, which is bound by English law,
is bound to follow it."
It can no longer be said that the Supreme Court of Canada is bound to follow a decision of the House of Lords.


Joseph Arthur Lesage: It never has been.


William Joseph Browne: If therefore it could be said in 1945 that after the abolition of criminal appeals to the privy council the Supreme Court of Canada was not bound to follow decisions of the House of Lords, it may still be said that it is not bound to follow decisions of the privy council.


Charles-Arthur Dumoulin Cannon: If I may ask my hon. friend a question, has he looked up the difference between the House of Lords and the privy council?


William Joseph Browne: Yes, I appreciate the difference between the House of Lords and the privy council; but taking the two things together, the statement by the chief justice which has been quoted and the manner in which this question has been dealt with in the Storgoff case, is it beyond the realm of imagination that in future the judgments of the privy council will be followed less than they have been in the past?
During the course of this debate we have heard remarks from several hon. gentlemen on the other side of the house which would indicate that if they had any say in what should be done by the supreme court, that court should not feel itself bound by any decisions given by the privy council in the past. The hon. member for Montmagny-L'lslet asked whether the supreme court should be bound by decisions concerning

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civil law. The implication of his remarks, as I gathered it, was that he did not think it should. Then we had the hon. and humorous gentleman from Temiscouata giving us the illustration of Gulliver being bound by the Lilliputians; and I suppose we were the Lilliputians binding the supreme court.


Jean-François Pouliot: Not at all, if the hon. member will excuse me. The Lilliputians were the judgments of the privy council binding the supreme court judges.


William Joseph Browne: I think the hon. gentleman really meant that we were the Lilliputians binding the supreme court to follow the decisions of the privy council. Is it not a fact, Mr. Chairman, that the hon. member was ridiculing the idea that the supreme court should be bound by any decisions which had been given by the privy council?


Jean-François Pouliot: Surely.


William Joseph Browne: I am glad to have the hon. gentleman's admission; and I wonder if that represents the opinion of other hon. members opposite. Even the hon. gentleman who I understand has proposed an amendment has not answered that.
We feel, Mr. Chairman, that it is no reflection upon either the integrity or the ability of the members of the supreme court to have this provision inserted in the act, since the right hon. Prime Minister has said that he entirely agrees with the resolution put forward by the bar association. I know he would not wish to cast any reflection or to even suggest that any reflection might be cast upon those gentlemen who will be required to interpret the laws of this country; but if it was no reflection upon the judges of the courts of British Columbia to have a provision inserted in the laws of that province that they should be bound by the law as it was prior to the date mentioned by the mover of this amendment, then I do not see why the members of the supreme court should feel injured or hurt in any way if a similar provision is inserted in the bill now before the committee.
Before I sit down I should like to say that the prestige of the right hon. gentleman whom I have been criticizing is extremely great. His reputation as a lawyer is well known. He ranks with the foremost in the legal profession throughout Canada. He has held the highest position in the gift of that profession, president of the bar association. Because he held that high position I suggest that it should be he who would give us an example of the respect that should be shown
(Mr. Browne (St. John's West).]
to so great and illustrious a body as the bar association, by adopting their recommendations in this respect.


Stuart Sinclair Garson: Mr. Chairman, this subject is getting pretty threadbare, but in view of the numerous references-not all of them completely accurate

that have been made to the resolution of the Canadian Bar Association, I think it might not be amiss to read the exact text of that resolution, in order that it might speak for itself. I read the relevant parts:
Be it resolved that the Canadian Bar Association, without expressing any view as to the wisdom or otherwise of the proposed abolition, is of the opinion . . .
(ii) If, as and when the appeal should be abolished, it is the opinion of this association, as at present advised . . .
Then I go down to the part dealing with this rule of stare decisis:
(g) that the rule of stare decisis ought to continue to be applied with respect to past decisions of the court, as well as with respect to past decisions of the judicial committee.
There is not a syllable in any part of that resolution which recommends that parliament should pass a law instructing the Supreme Court of Canada to apply the rule of stare decisis.
This is the text with which the right hon. Prime Minister is in agreement, and with which I think we are all in agreement. But using this text as a basis, and not making too accurate reference to it, our hon. friends of the opposition come along and say this is a foundation for asking that an amendment be passed by which this body will instruct the Supreme Court of Canada to apply the rule of stare decisis. In doing this I think they have been making quite improper references to and quite an improper use of the resolution of the bar association.
Before I take my seat, I should like to deal with one other quite fallacious analogy which has been drawn in connection with this matter and to which reference has been made by almost every opposition speaker participating in this debate. It has been suggested by them that because the statutes of Manitoba and British Columbia contain a provision making a whole body of law available for the use of the citizens of that province as of a certain date, the same procedure is being and should be followed in the amendment now before us. In the case of Manitoba, the date set was the date when we entered confederation. At that time, we were a very small community and instead of going through the long and stupid process of gradually building up a body of law of

our own, we very intelligently availed ourselves of the whole body of English law as it stood on July 15, 1870.
When a reference is put in a provincial statute or even in a dominion statute to the appropriation of a body of laws for the purpose of some new province which is created, there is no analogy, Mr. Chairman, between that act and what is proposed here. It is not right to say that whenever provinces or the dominion have established a court, a provision is enacted defining the laws that are to be applied. True there are such declaratory provisions in the statutes of British Columbia and in the statutes of Manitoba, but if my hon. friend will prosecute his research in this matter a little further, he will see that they have their counterparts in a statute of the imperial parliament, a constitutional enactment which created that province and provided a body of laws with which it could carry on. The hon. member need not confine himself to British Columbia. The same thing can be seen in the terms of union with Newfoundland, and in the Saskatchewan and Alberta acts. These acts all contain such provisions.
Such a constitutional provision is one which this parliament or the provincial legislature, in themselves, have not the jurisdiction to enact, even though the provisions may be repeated in their own statutes. As I have said, it is true that such provisions can be found in provincial and federal statutes, but it is the British North America Act itself or some amendment of the British North America Act which introduces effectively a body of law into the new province. To say that because that has been done with regard to the various provinces that have entered into confederation is something that justifies the amendment moved by the hon. member for Kamloops (Mr. Fulton), and that there is some proper analogy between the two cases, is in my view wholly incorrect.


William F. Carroll: May I make one observation? A great deal has been said about the resolution that was passed by the bar association at its last annual meeting. I want to say that, so far as section (g) is concerned, in which it says the rule of stare decisis ought to continue to be applied with respect to past decisions of the Supreme Court of Canada, a great deal of effrontery was shown by the committee of that organization in passing this resolution. It may not have been with the intention of throwing any doubt on the integrity of the Supreme Court of Canada, but I say I believe the judges of the Supreme Court of Canada know as much as the bar society of this country about their rights in keeping the theory of stare decisis intact.
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To place this amendment on the statute books of this country might, in my opinion, interfere somewhat with the rule itself. There are two ways of getting clear of stare decisis at any time in the laws of any country. One way is by overruling the laws in existence, and that has been done innumerable times not only by the House of Lords but by the privy council of the United Kingdom. Suppose, for example, the principles of law as enunciated by the House of Lords and the privy council many years ago were changed by the very courts who followed this rule of stare decisis. Suppose, for example, that three days or ten days after this act becomes effective, the privy council should overrule some of the judgments it has made with regard to the commonwealth. Would we be in a position to change our minds if this amendment became effective? I think not.
There is another method of changing the rule of stare decisis which has been followed in this country for years. The common law of England was brought over to this country and it was stare decisis; but the legislatures of this country, especially the three original provinces, followed the method of changing the rule of stare decisis by enacting certain pieces of statute law. The rule of stare decisis is not such a sacred thing that the privy council, the House of Lords or our own Supreme Court of Canada can never overrule a decision.


Louis-René Beaudoin: Is the house ready for the question?


Some hon. Members:: It is eleven o'clock.


Louis-René Beaudoin: I shall have to have the unanimous consent of the house before I put the question. Is the house ready for the question?


Some hon. Members:: It is eleven o'clock.


Louis Stephen St-Laurent: If there is any objection from any hon. member, I think the chairman should recognize that it is eleven o'clock.


Stanley Howard Knowles: That would be the rule of
stare decisis.


Louis Stephen St-Laurent: Yes; that would be the rule and I think it should be followed whenever any hon. member objects to consent being given.
Progress reported.



BUSINESS OF THE HOUSE

Alphonse Fournier: Tomorrow is private members' day.
It being five minutes after eleven o'clock, the house adjourned, without question put, pursuant to standing order.

Wednesday, Oclober 5, 1949