1949-09-27

NAVIGABLE WATERS PROTECTION ACT


Mr. Rodney Adamson (York West) moved: for leave to introduce Bill No. 6, to amend the Navigable Waters Protection Act.
He said: The purpose of this bill is to amend and enlarge sections 19, 26 and 28 of the Navigable Waters Protection Act. When the act was originally passed it prohibited the pollution of navigable waters by saw mills. Section 19 of the original act prohibited the discharging of sawdust or other waste wood products into navigable waters or waters running into them. The proposed amendment enlarges the list of materials which may not be thrown or discharged into navigable waters, so that it will include oil or oil sludge, chemical wastes or other noxious substances likely to pollute the waters and adjacent shore line.
The second clause of this section deals with the discharging of raw sewage into navigable waters. It prohibits any municipality with a population greater than 3,000 from discharging such material.
Section 26 is amended to provide that the Minister of Transport may, if he deems it advisable, appoint inspectors at any plant situated on or near navigable waters, and these inspectors shall have the power to regulate the operation of the plant in this regard, the cost of such inspection to be borne by the plant in question.
The reasons for the amendments to this act are that during the summer of 1949 pollution by oil and the formation of oil slicks created such a hazard to the residents along the shore of lake Ontario that the medical officers of health in Toronto and many other municipalities had to ban the use of the beaches. Thus, in the Toronto area alone, a million people were denied the use of lake Ontario beaches because of the existence of industrial pollution. Whether this was caused by carelessness or otherwise is not important now; the fact remains that large sections of the shore of lake Ontario were made completely unusable. The loss to wild life was considerable, and the damage to shallow-draft and other shipping was extensive. Furthermore the fire danger, particularly in the
congested Toronto harbour area, was increased. Three of the beaches in my own riding of York West were put out of commission for considerable periods, including the beach at New Toronto, where the world champion swimmer, Cliff Lumsden, who subsequently won the marathon swim at the Toronto exhibition, had trained. This destruction of swimming and recreational facilities, particularly, as in this case, during one of the worst heat waves in our history, cannot be tolerated.
I believe it is within the competence of parliament to enact legislation which will safeguard the rights of people who wish to use the waters of our great lakes. The provisions of the bill are directed toward that end.
Motion agreed to and bill read the first time.



RAILWAY ACT AMENDMENT


Agar Rodney Adamson: for leave to introduce Bill No. 7, to amend the Railway Act.


Mr. Chevrier:: I think the hon. member should explain the bill.


Agar Rodney Adamson: The purpose of the bill is similar to that of the bill I introduced at the last session of parliament. It differs, however, in this way from the previous one: it requires permanent installations of the railway companies to comply with the smoke bylaws of the municipalities in which they are situated. The residual power is still vested in the board of transport commissioners, thus preventing any discrimination against railway companies. It is felt that where a municipality has enacted and enforced an anti-smoke bylaw in order to safeguard the well-being of the people within its boundaries, the railway companies, as well as other industrial plants, should comply with the local regulations. The present act, and the regulations, which were drafted in 1908, allow the emission of smoke and soot into the atmosphere in quantities which are certainly prejudicial to the neighbourhood in which any roundhouse is situated.
Evidence is being collected in York township and the adjacent area of the city of Toronto, and I hope that when the bill comes

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up for second reading the government will allow it to go to the railway committee so that all the facts can be brought out, with a view to adopting this or a similar amendment in order to prevent the present great annoyance.


Mr. Smith (Calgary West):: Does it apply to the city of Ottawa, for example?


Mr. Speaker:: I should like to point out to hon. members that when a bill is introduced a short explanation may be given, but the bill should not be discussed. See Beau-chesne, second edition, reference 738.
Motion agreed to and bill read the first time.



CRIMINAL CODE


Hon. Stuart S. Garson (Minister of Justice) moved: the first reading of Bill No. 4 (from the Senate) to amend the Criminal Code.
He said: With the permission of the house I should like to set forth the reasons why it is advisable, if it meets with the approval of hon. members, to have this legislation pass through its three readings today. To this end I spoke yesterday to the leader of the opposition (Mr. Drew), and to the leaders of the other parties, or their representatives.
At the last session a Criminal Code amendment bill was brought in covering a large number of sections, some of them contentious. It was not passed. Later this session it is our intention to bring down a further amendment to the Criminal Code containing these contentious sections, but we have taken out from the contentious sections those dealing with the two matters which are covered by this bill from the Senate.
Item No. 1 deals with the amendments necessary in order to adapt the Canadian Criminal Code to Newfoundland, and which are to be passed in consequence of the admission of that province into confederation.
Item No. 2 is an amendment to defer the coming into force of a new part XVI of the Criminal Code. This new part XVI of the Criminal Code was enacted by a previous parliament in legislation passed some time ago. It enacts that there should be substituted for the existing part XVI a new part dealing with the summary trial of indictable offences by police magistrates. That legislation was to come into effect on October 1, 1949, but we have received from the provincial authorities of Nova Scotia, New Brunswick, Ontario, British Columbia, and my own province of Manitoba, information that their magistrates' courts are not yet organized to administer part XVI in its proposed new form. They have asked that we, by means

of section 8 of the Senate bill now before us, should bring new part XVI into operation, not on October 1, as was originally provided, but by proclamation of the governor general in council. The idea is that they will let us know in due course when they are ready to enforce the new part XVI and then we will put it into effect.
Since these consequential amendments which are introduced in order that the Criminal Code may be brought into effect in Newfoundland, as well as the other matter referred to, are both non-controversial, it was thought there would be no objection on the part of hon. members to having the bill given its three readings today, so that it may be assented to by the governor general and take effect by October 1 next.


Mr. Drew:: I should like to mention just two minor points. Section 3 of the bill contains a provision that the Criminal Code shall be amended to read "in the province of Newfoundland, any judge of a district court," etc. The bills introduced to make the Criminal Code applicable to Alberta and Saskatchewan read "a judge of any district court". Is there any significance in that change?


Mr. Knowles:: On a point of order, Mr. Speaker-


Mr. Speaker:: I think I anticipate the hon. member's point of order.


Stanley Howard Knowles: Standing order 71.


Mr. Speaker:: Of course no debate is permitted on first reading of a bill, but I understood that the Minister of Justice was setting forth why he would like the bill to be given all three readings today. Would it meet with the approval of hon. members if we now give the bill first reading and then go on to the motion for second reading?
Motion agreed to and bill read the first time.


Stuart Sinclair Garson: I now move second reading of the bill. Before the motion is dealt with, however, I should like to reply to the question raised by the leader of the opposition.


Mr. Speaker:: Order. I would remind hon. members that on second reading it is not customary to discuss the clauses of a bill. That is done when the house goes into committee. The only question that may be discussed on second reading is the principle of the bill, and each hon. member is allowed to speak only once in that debate. The minister who has introduced the bill has the right of a reply.


George Alexander Drew: The Minister of Justice has introduced a bill and has asked for unanimous consent to have it proceeded with. Certainly

at some point the minister should answer minor questions which would have a bearing on the consent which may be given. I do not think there is any substantial objection to his suggestion, but this would seem to be an appropriate time for the minister to explain two minor matters, after which there may be no further comment on the measure. I suggest it might be done more appropriately now than in committee, because we are being asked to agree that this bill be given all readings today. I am sure there will be general agreement, but first we should satisfy ourselves as to these minor matters.


Mr. Speaker:: I should think that would be generally acceptable to the house. The minister might like to know what questions are being raised, in order that he may answer them. Perhaps the leader of the opposition would ask his questions now.


George Alexander Drew: The other point is in regard to the procedure under which the first seven sections of this bill will become operative. I understand that a step will have to be taken under the terms of agreement with Newfoundland in order to make these amendments applicable. I should think it would be of interest to hon. members from Newfoundland to know what steps will be taken outside of this bill to bring about that result.


Stuart Sinclair Garson: That was the second question?


George Alexander Drew: Yes; those are the two points.


Stuart Sinclair Garson: So far as the first question is concerned, I do not think there is any substantial difference in meaning between subsection (iva) as contained in section 3 of the Senate bill, where it says "any judge of a district court", and the language to which the hon. gentleman referred, "a judge of any district court", as used in connection with another province. I might add that the question of the district court judges is still in the course of negotiation, even with regard to their number. Many of them have yet to be appointed, so it may turn on that point; but I do not think there is any difference in substance at all.
With regard to the question of bringing this bill into effect, as I indicated on a previous occasion,-to which I suppose I am not permitted to refer-in dealing with amendments to our statute law consequent upon Newfoundland's entering into confederation, from the beginning there has been the closest co-operation and consultation between the law officers of the Department of Justice and the law officers of Newfoundland, and that will be continued in connection with the application of the Criminal Code. In connection with part XVI, for instance, it is necessary that the Criminal Code should be put
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into effect as soon as possible, but not until the provincial authorities are ready to administer it. In the meantime, of course, the criminal law of Newfoundland remains as it is.


Mr. T. L. Church (Broadview):: I want to refer to just a few matters on the second reading of this bill, which has come to us from another place. I believe this is the same bill that was before us a short time ago, relating to Newfoundland. At that time, when we were assembled here before Easter, I suggested to the Attorney General (Mr. Garson) that we should have in this house a legal committee to consider this and other similar bills. Some two years ago I asked the hon. gentleman's predecessor, in connection with this very matter of Newfoundland, whether he would consider setting up what they have in the various provinces-a legal committee which would properly consider bills of this kind, of which we have a large number. Some originate in this house; some come from "another place", which is the term they are now applying to the other house of parliament. There were some twenty of these bills during the last session. The provinces have found it a good thing to have such a committee. It goes over these bills; it has the law officers of the crown in attendance; it hears deputations of various kinds representing people interested in these matters.
It must be remembered that large numbers of people are concerned with these legal bills. Look at the fatalities resulting from the fact that we do not have such a committee. Look at the accidents on the highways and level crossings. I understood the minister's predecessor to say he would consider setting up such a committee. Then, as I said, I asked the present minister, who is also the Attorney General of Canada, whether he would consider it, and I thought he said he would. In my opinion such a committee would be a great help to the minister.
I cannot find any record of this bill having been sent to any committee in the other place, but it had summary discussion by three or four members of that chamber, and finally it was passed and sent to this house.
There are two or three things I should like to point out about Newfoundland. Newfoundland has become the tenth province of confederation. At the time, that province was under the jurisdiction of the British parliament and had a commission form of government which governed Labrador as well. Two years ago there was a discussion in this house about Labrador's natural resources- I was on the committee. Until recently Newfoundland had no parliamentary form of government. What is it proposed to give to the tenth province through this bill? It is

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supposed to be dealing with amendments to the Criminal Code, but it deals also with a large number of other matters.
I point out what has been said in the British parliament by Right Hon. Sir Hartley Shawcross. Mr. Churchill asked for law reform, and referred to the fact that of the
40.000	orders in council which had been passed, only three or four had reached finality in the privy council. You have been a great lawyer, Mr. Speaker, and, occupying the high office you do, you must appreciate the fact that no one knows the law contained in those
40.000	orders in council until it is finally decided in the court of last resort. Nearly
80.000	orders in council were passed here during the war.
The Attorney General of the United Kingdom was asked by the leader of the opposition, Mr. Churchill, about the state of the law. He said law reform was needed. Surely Newfoundland is entitled to some law reform. Years ago Canada was granted the right to abolish criminal appeals to the privy council. In the British House of Commons there was a discussion on means of securing finality on law reform. Law reform has been talked about in this country, but we have had no semblance of it. A private member can raise these questions in the house, but that is the end of it. As I said before, there were some
40.000	orders in council passed by the British House of Commons, but no one knew the exact state of the law. No one can be sure of the law until there has been a final determination by the privy council.
This is the sort of law you are giving to Newfoundland. Automatically Newfoundland is being given the laws to which she has been objecting. That is the point to which I am objecting in relation to this bill. I believe the bill should be re-introduced in this house, and a legal committee should be set up to consider it. I want to help the government, and I am giving them a constructive suggestion, namely, to beware of the law that is passed on to the tenth province. It is my understanding that this province has one small jail, and only a small percentage of the population has ever occupied it. I am told that a number of prisons in Great Britain have been closed. What means was used to do this? An opportunity was given offenders to delay the payment of fines.


[Stage Direction]
Motion agreed to, bill read the second time and the house went into committee thereon, Mr. Dion in the chair.
Sections 1 to 4 inclusive agreed to.

On section 5-Absolute jurisdiction in certain cases.
Mr. Fraser:: May I ask the purpose of setting out the cities of Saint John, Fredericton and Moncton in the province of New Brunswick? Have they laws which permit of a different arrangement?


Stuart Sinclair Garson: I am not sure that I heard the whole of my hon. friend's question; if I misinterpret it, I hope he will correct me. The purpose of this amendment, as is stated in the explanatory notes, is to extend to Newfoundland the provisions of paragraph (c) of subsection 1 of section 777, whereby magistrates are given absolute jurisdiction, without the consent of the accused, to try certain indictable offences. Such jurisdiction is not as a rule given to magistrates in small centres in certain provinces. It is for this reason that those cities are set forth in subsection (c) of clause 5 of the bill.


Gordon Knapman Fraser: There is that difference in New Brunswick, whereby only certain ones are selected?


Stuart Sinclair Garson: Yes.


Thomas Langton Church: How many magistrates are there in Newfoundland now, and how many is it proposed to have? Powers are given to magistrates which, with all due respect, I believe should not be given. The jurisdiction granted by this section is rather wide; it permits a magistrate to try grave offences. In England I believe the maximum sentence a magistrate can give is thirty days.
By this bill you are giving a magistrate all the powers of a county court judge. According to the marginal notes, the purpose of the amendment is to extend to Newfoundland the provisions of paragraph (c) of subsection (1) of section 777, whereby magistrates are given absolute jurisdiction, without the consent of the accused, to try certain indictable offences. It is my belief that magistrates in Ontario should not have this jurisdiction. Some grave cases are brought before magistrates, most of whom are not like the late Colonel Denison, who was senior magistrate, and the late Judge Morson, who presided over the first and tenth division courts. There are four or five county court judges doing the work Judge Morson used to do in the first and tenth division court. I object to conferring this jurisdiction upon magistrates in Newfoundland. It will necessitate the maintenance of a huge system which that province does not need. A county court judge could do this work.
I object to the system that is now operated in the city of Toronto, whereby magistrates, instead of trying a case and rendering a decision, merely remand the accused into

custody for a week. There is no place to put the accused. The Don jail and the isolation hospital are located in my constituency. For many years attempts have been made to have them removed. The city of Toronto built two jail farms, one for men and one for women, and at that time it was never intended they should be handed over to anyone else. When I was in charge of the affairs of the city, these two farms were built and the old jail was to be torn down, but it is still there, as hon. members know. I should like the minister to see it. About 400 people are in there; some of them are youths, and some are older. Under the system followed by some of the magistrates, where they remand a man for a week or two weeks, they allow him to get a taste of what the jail is like over there. It was built shortly after confederation. It was condemned when I was a controller. Dr. Hastings, a former health officer, said it was not fit for human beings. It has cell accommodation which is no larger than about the width of this table. It is equipped to handle only about 180 persons, and there are three or four hundred there now. I am objecting to that situation. When Mr. Hepburn was premier of the province he would not allow us to qualify for the fund which was in existence in your province, Mr. Chairman, under which the dominion gave a grant for public buildings. Three Rivers obtained a courthouse. We did not get anything. I ask the minister to consider carefully before he fastens this system on the people of Newfoundland-who have always been law-abiding-without their consent.


Arthur Leroy Smith: Is it the idea held by the law officers that there will be what we call travelling stipendiaries, or something of the kind? I am speaking of the quality of the people who will be giving judgment.


Stuart Sinclair Garson: Yes. Newfoundland had a system of magistrates prior to coming into confederation. At the request of the attorney general of Newfoundland we at this moment have an officer of the Department of Justice conferring with the attorney general's department in Newfoundland with regard to the judicial system by means of which the Criminal Code will be administered in that province. While it has not yet definitely taken shape, and the purpose of this consultation is to determine its main outlines, it is thought that it will take the form in part of magistrates who will be located at various central points and travel out from these points to hear cases.
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As I have no doubt they have been in the past, these will be men of good judgment and discretion, well qualified to exercise jurisdiction under section 777. This section, as the hon. member for Calgary West knows, deals with indictable offences such as theft, attempted theft, aggravated assault and indecent assault which, in larger centres only in some provinces, in the whole province in others, and not at all in other provinces, can be tried by the magistrates without the consent of the accused. This law has been applicable, in varying degrees, in all the provinces of Canada up until the present time. The only significance and the only purpose of this present amendment is simply to apply to Newfoundland this same law that has always been in force in the rest of Canada; it is not to make any alteration in the law. Magistrates or other judicial officers who are not competent to deal with cases of this kind will not be appointed.


Arthur Leroy Smith: I agree entirely with what the minister has in mind. From the little I know about the settlement of Newfoundland, it is largely along the sea-coast. The thought occurred to me that perhaps travelling stipendiaries might be appointed. They have them in Saskatchewan, I know.


Stuart Sinclair Garson: Yes.


Arthur Leroy Smith: I thought perhaps we could expect that that would be done.
Having regard to what is probably in the mind of the hon. member for Broadview, I was wondering about the limitation there might be on giving what is really very wide authority to a magistrate-because tremendous authority is given in this section. As I remember it, a magistrate is defined in the code as having the power of two justices of the peace, and I think there is a further definition which in certain cases does not permit those two justices of the peace to act, but rather a paid magistrate so to speak, who is generally a man with legal training; only to him would go cases of the kind we are now referring to. It would be a desperate thing, it seems to me, if we clothed an incompetent, or, to use a less unkind word, untrained person with the tremendous authority which is given there.
As will be observed, wounding is one of the offences dealt with, or assault occasioning actual bodily harm-one or the other. I know there is a distinction between the two, and I do not remember which one is within the offences dealt with; but serious offences come to them for hearing. It seems to me, in view of the spirit of comity which no doubt exists between the dominion justice

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officers and those of the provinces, consideration might be given to having travelling stipendiaries; otherwise you must take the prisoner all over the country, adding to the difficulties, to say nothing of the expense. I hope that is what is contemplated here, so that inconvenience may not be caused to many people other than the accused-and he is probably entitled to be discommoded at times.


Stuart Sinclair Garson: I am in a rather embarrassing position to forecast what will happen because this whole matter is now under consideration. I believe there is an excellent prospect, shall I say, of appointment being made of the kind of magistrate that the hon. member for Calgary West has in mind. He will see in the bill the definition of magistrate for the purpose of part XVI of the code; it is at the top of page 2. It reads:
In the province of Newfoundland a magistrate means and includes any judge of a district court,-
I am sure he would agree that any judge of a district court would be competent to try these cases.
-any stipendiary magistrate, any two justices sitting together, and any functionary or tribunal having the powers of two justices.


Arthur Leroy Smith: It is the last part of it that I was a little bit afraid of.


Mr. Carroll:: I should like to bring to the attention of the Minister of Justice the fact that there seems to be a drastic change, so far as Newfoundland is concerned, in the matter of persons charged with crime and wishing to have a speedy trial. I understand that in the province of Newfoundland all supreme court judges are located at and live in the capital, St. John's. If a person is charged with a crime at a place five or six hundred miles from St. John's where there is a district court judge-I do not know their locations down there, but I know there are some in the country-it would take a long time, I should think, for that person to come in to St. John's in order to get a speedy trial. I should like the Minister of Justice to give some consideration to this matter. The suggestion would come better from the lawyers of Newfoundland than from me, but it is just a thought. I am fairly well acquainted with the situation in Newfoundland. It will be inconvenient for criminals-not that we are here to make it convenient for them, but we are here at least to give them speedy trial-it will be inconvenient for those away beyond the bounds of the capital city to get a speedy trial if they can get it only by going before a supreme court judge in St. John's.


Arthur Leroy Smith: The accused is probably in the only jail there is, which is in St. John's.


Stuart Sinclair Garson: That is one of the most important questions which the representative of the justice department and the representatives of the attorney general's department of Newfoundland are studying at the present time. They are considering how many supreme court and district court judges will be required, and whether they should go on circuit for the purpose of conducting speedy trials. It is a matter which requires careful consideration, to balance, on the one hand, the convenience of the accused, and, on the other, in a province where there are great distances, the efficient carrying out, at not too great expense, of the administration of justice.


Mr. Coldwell:: In Canada a great deal of confusion exists through the use of the term "supreme court." I believe one or two of the provinces have named their courts differently. In order to avoid this confusion, could some arrangement not be made with the provinces to reserve the name "supreme court" for the court of last resort in Canada? Some who speak of the supreme court mean the Supreme Court of Canada, and others mean the supreme court of one of the provinces. We should try to have separate names for the provincial courts.


Stuart Sinclair Garson: I am afraid that would be infringing on provincial rights, and for that reason we may not be able to comply with the hon. member's request. Under the British North America Act, the setting up of provincial courts comes within the jurisdiction of the provinces.


Major James William Coldwell: I said by arrangement or agreement.


[Stage Direction]
Section agreed to.
Sections 6 and 7 agreed to.
On section 8-Coming into force.
Mr. Maclnnis:: Early this year I received a copy of a letter from the city council of Vancouver which had been sent by the deputy attorney general of British Columbia to the deputy minister of justice asking for the postponement of this legislation. I would not take the time of the committee to make the point now except for the fact that, by this amendment, the amendment to part XVI is to come into effect by proclamation. This may be a neat way of deferring the provision so that it will never come into effect. The Minister of Justice shakes his head. I take it that that is not what he has in mind. One of the important reasons put forward by the deputy attorney general of British Columbia-and it was also emphasized by the city council of Vancouver-was that if

this amendment went into effect it would result in the loss of revenue to the municipality.
When I received the letter from the city council, with the enclosures, including a copy of the letter to the deputy minister of justice, I did as I always do. Not being learned in the law, I wanted to know what the Minister of Justice said when he introduced the amending legislation in 1948. I have high regard for the then minister of justice, and I would require strong arguments before I would disagree with his conclusions on a matter of this kind. What he said on that occasion was brief, and I made it a part of my letter to the city authorities in Vancouver. He said as reported at page 5193 of Hansard of June 14, 1948:
In part XVI, at the present time magistrates in towns of over 2,500 population have jurisdiction that magistrates in towns under 2,500 do not have. Then there are some provisions for cities over 25,000. At the present time the provisions are very complicated indeed. Continual complaints are made about the necessity to ascertain population of a town or a city, and complaints about magistrates having jurisdiction in certain municipalities. The important change is that under Part XVI at the present time there are indictable offences for which an accused person may be tried by a magistrate, whether he consents or not. He does not have the option of trial by jury. If this amendment is passed, then he could not be tried by a magistrate without his consent. That is an important change.
That is what Mr. Ilsley said in explaining the purpose of this amendment when the bill came before the house. If, as the deputy attorney general of British Columbia maintains, this would mean a loss of revenue to the municipality, surely it is neither here nor there. The important thing is that the accused should have an opportunity of saying how he shall be tried; we should not make our courts the means of raising revenue for the municipality. I said this categorically to the city of Vancouver. As I have watched the imposing of sentences in the courts I have come to the conclusion that when a fine is levied, and it cannot be paid, a prison sentence is imposed, so that really in ninety-nine cases out of a hundred when a person is fined, or given the option of a jail sentence, he is jailed not for the crime but because he is unable to pay the fine. In other words he is jailed for being poor and not for having committed a crime. I urge upon the minister that he see that if this section of the bill is passed it be not used as a convenient way of killing the legislation. If justice is to be meted out, the accused must be taken into consideration, not the revenue that may be gained or lost to the city.


Stanley Howard Knowles: May I ask whether, if this section passes, the governor in council will have to wait until all the provinces want to
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have the act proclaimed, or will it be possible to proclaim it for such provinces as are ready for it?


Stuart Sinclair Garson: I think I should preface my answer to that question by saying that the new part XVI was introduced with the intention that it would come into effect in the ordinary course of events and be the law of the country, and it has been so received by those other provinces. I am told, and I believe, that they have made the best efforts they can to get their house in order so that they can do a good job of administering the new part XVI. Our hope is that with what they have already done they will finally achieve competence to administer the new part XVI. We would not wish to discommode anyone by delay in proclaiming the new part XVI. We are keeping in contact with the provinces and we intend to encourage any provinces that seem to be hanging back in preparing to take over the administration of that part.


[Stage Direction]
Section agreed to.
Mr. Riley:: With the permission of the Minister of Justice I should like to revert to section 5, where reference is made to "the cities of St. John, Fredericton and Moncton in the province of New Brunswick". If my memory serves me correctly, the corporate name of the city of Saint John does not permit any abbreviation such as appears in the subsection. We are jealous of the spelling of the name of our city. In addition, there might be grounds for taking a technical objection. Although a rose by any other name might smell as sweet, we should like to maintain the proper spelling of the name of our city.


Arthur Leroy Smith: Substitute "fish" for "rose" and you have it.


Daniel Aloysius Riley: I do not know who was representing my city when the original subsection was passed, but there would seem to be definite evidence of a progressive conservation of print.


Stuart Sinclair Garson: I think the hon. member's point is well taken. I would move that the word "St." be struck out and the word "Saint" substituted therefor.


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


[Stage Direction]
On the orders of the day:
Mr. Gordon Graydon (Peel):: I wish to ask the Minister of National Defence a question, of which I have given him notice. Last night

Inquiries of the Ministry and today urgent communications have been coming in to me by telephone and telegram from people who live in Lakeview, Ontario, a heavily populated area in which the Long Branch rifle ranges are located, protesting against the military operations carried out yesterday at the ranges. Heavy explosions are said to have occurred which shook the buildings over a wide section of the area, and dense smoke covered the district. Planes swept low over schools and homes as well. Will the minister make inquiries with a view to protecting the residents of this locality against future occurrences of this kind and give further consideration to changing the location of the ranges to a less populated area?


Hon. Brooke Claxton (Minister of National Defence):: I received notice of this question at quarter to three, not having been in my office when it was delivered. In the time since, I have been able to communicate with two senior officers of the army and air force, as well as a senior civilian official, who were present yesterday when this demonstration took place. Based on those inquiries, which represent the information available to me at this time, I may say it appears that five 3-inch and five 4-2-inch mortar shells were fired in this demonstration. In the opinion of these officials they landed at least three-quarters of a mile from the nearest house.
There seems to be some justification for the complaint concerning smoke, which, it was said, was about equal to what would result from a neighbourhood grass fire. Some Lancaster, Vampire and Mustang planes participated in this demonstration. The reports of low flying probably refer to a Lancaster which was demonstrating on the beach of lake Ontario the dropping of Lindholme lifesaving gear, and were flying close to the water.
I asked these officers and this civilian if they had any cause for alarm or concern about what they saw, and they said they had not. Viewing the demonstration were some three hundred representatives of industry who were members of the Canadian Industrial Preparedness Association, and none of them appeared to see any reason for making comment or indicating any cause for concern. However, the fact of the hon. member's bringing this to my attention emphasizes the need for the utmost care not to disturb the population in centres of this kind, and I shall see that instructions go out accordingly.
With regard to that part of his question as to the possibility of moving the Long Branch rifle ranges, I may say that this matter has been brought up on a number of occasions in the past. The department and myself have indicated that we should be very glad
[Mr. Graydon.l

to recommend to the government the removal of the Long Branch rifle ranges to some other suitable location that would be equally accessible and equally serviced, if that could be done without cost to the government.



LOTTERIES


[Stage Direction]
On the orders of the day:
Stanley Howard Knowles: I should like to direct a question to the Minister of Justice. Is the government taking notice of the declared intention of one of the provincial governments to defy the Criminal Code in the matter of lotteries? What stand is the federal government taking in this matter?


Stuart Sinclair Garson: I have no information other than that set out in newspaper reports, and under the circumstances I consider it inappropriate to make any comments.



INCOME TAX


[Stage Direction]
On the orders of the day:
Hon. Douglas Abbott (Minister of Finance):: The question asked by the hon. member for Winnipeg North Centre (Mr. Knowles) has served to remind me that on September 16 he addressed a question to the Minister of National Revenue and myself in the following terms:
In view of the recent favourable decision by the exchequer court,' what action will the government take to provide for the allowing of trade union dues as a deduction from taxable income for income tax purposes?
In reply to the part of the question which applies to my department, may I say that the exchequer court decision referred to by the hon. member for Winnipeg North Centre was in connection with a claim by a taxpayer that, in computing his 1945 income tax, union dues should be properly deductible in computing his income. The exchequer court upheld the claim, just as in two previous cases they had upheld the claim that fees paid to professional organizations were deductible by lawyers, even though they were receiving salary income.
The hon. member may recall that following these previous decisions in the Bond and Rutherford cases the Income War Tax Act was amended in 1948 to bring it into line with the previous general interpretation of the law, namely, that wages and salaries were net income for tax purposes. The law as amended in 1948 to conform with previous

practice was carried forward into the new act.
My colleague the Minister of National Revenue will answer the question in so far as it relates to years prior to 1948.


Hon. J. J. McCann (Minister of National Revenue):: The judgment of the exchequer court in the case of Cooper v. the Minister of National Revenue was in respect of the 1945 taxation year. In respect of claims by taxpayers for that year, and for the years 1946 and 1947, which are not statute barred, the department will make adjustments in accordance with the exchequer court decision.


Stanley Howard Knowles: Mr. Speaker, since it is not possible to pursue this matter on the orders of the day, I will do so on another occasion.



BELL TELEPHONE COMPANY


[Stage Direction]
On the orders of the day:
Stanley Howard Knowles: I should like to direct a question to the Minister of Transport. Has the Bell Telephone Company applied to the Board of Transport Commissioners for Canada for an increase in rates in Ontario and Quebec? If so, can the minister tell the house the status of the application?


Lionel Chevrier: The answer to the first question is no. The answer to the second question is: Answered by the answer to the first question.


Stanley Howard Knowles: Something's fishy.



INQUIRY OF MINISTRY


[Stage Direction]
On the orders of the day:
Mr. G. A. Cruickshank (Fraser Valley):: should like to direct a question to the Minister of Transport. Is the Canadian government or the Canadian National Railways considering the purchase of a "Train of Tomorrow" for the benefit of the Ontario and Quebec members? It is urgent, because they will need it on Thursday.



SUPREME COURT ACT


[Stage Direction]
The house resumed, from Friday, September 23, consideration of the motion of Mr. Garson for the second reading of Bill No. 2, to amend the Supreme Court Act.
Thomas Langton Church: I wish to continue what I was saying the other day and address the house on this measure. In the few minutes left at my disposal I desire
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to reassert some of the principles which I hold as to this particular bill. In the first place I wish to state that I was not offering any criticism of my leader the other day when I said to the Minister of Justice (Mr. Garson), who introduced the bill, that it was a strange proceeding. It was a very strange proceeding. I could not get a copy of the English version of the bill until some time after its introduction. The French version was not printed. In many respects the situation was similar to that which existed as to the Bell Telephone bill of 1947 in the other place. That bill was not printed in English and French. They only had a typewritten copy and they gave second reading to it. If we are to have rules, let us abide by them in this house and in the other place.
I should like to refer to what the minister said on the second reading of the bill on the 20th of September. I want to ask him if now is the proper time to introduce such a measure. It is nothing but a political bill. It is a coercion bill. Sir Wilfrid Laurier never introduced such a bill. It simply is a bill to coerce the two central provinces to accept something in which they do not believe. I can tell you that I have been opposed to such bills from the beginning, from the time when Mr. Cahan was in the house. 1 wish to point out to the house that we should have a legal committee to consider these bills word by word. Nobody knows what the language is. The other day I referred to what they did in England where, out of
40,000	orders in council, only four ever came before the court of last resort. In Canada only three or four out of 120,000 orders in council passed during the war have come before the Supreme Court of Canada. How can anybody know the law? There is no finality to it.
I object to the bill on the ground that the matters involved are only secondary. I named them on Friday. They are secondary matters which can be easily delayed. We should have a legal committee to go over such bills clause by clause and examine them word by word. We should have a proper committee to consider them. It is in the interests of the minister to have one. I do not know why he does not have such a committee. The matters involved are only secondary until such time as the primary matters are dealt with. For that redson I moved the six months hoist for the four bills that were introduced in the last four sessions by a private member of the house.
A much wider bill has now been introduced by a minister of the crown. I should like to ask him if this is the method that Canada should adopt in order to be free? Is it the life, the truth and the way for a young nation

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of only eleven-million people at this time? Is the method proposed by the government the only way? My answer to that is that it is not the only way. It is neither the time nor the life nor the truth nor the way, and this young nation should not follow such a course.
There are going to be nine judges of the Supreme Court of Canada. The United States, with a population of 138 million people, has only that number. Canada, with a population of a little over eleven million, is going to put on the airs and manners of a great nation and deal with status, autonomy and sovereignty. "Sovereignty" is the new word that is used. Away back in 1891 Sir John A. Macdonald said, "We govern ourselves as we please".
Canada is independent of the mother country. They have never tried to interfere with us. Sir John A. Macdonald said:
For a century and a half this country has grown and flourished under the protecting aegis of the British crown. Under the broad folds of the union jack, we enjoy the most ample liberty, we govern ourselves as we please, and at the same time we participate in the advantages which flow from association with the mightiest empire the world has ever seen.
He goes on to refer to the matter in that way. On the 30th of June, 1942, I said in the house, referring to the visit of the king and queen to Canada in 1939:
The visit in May, 1939, three months before the war, showed the great popularity of the king and queen in their visit here, but the decline and decay of our parliamentary institutions had already set in, because of the fact that we had surrendered our rights and privileges and functions to bureaucratic boards of all kinds and to the executive, especially under the present Minister of Finance (Mr. Ilsley).
I pointed out that was a serious mistake. Sir John A. Macdonald dealt with that question, and very properly so. As I said during the debate on the Cahan bill, we want a British North America Act for the living and not for the dead, a British North America Act brought up to date to meet changed conditions. The only way to do that is by a conference with all the provinces, as they seem to have had a pact or contract when they came into confederation. Especially do we need this now in 1949. After two long wars the subjects of education and public health should be written into the original B.N.A. Act. Until recently Canada had only a skeleton health department, although it did good work particularly with reference to immigrants. I support the motion of my leader for the six months hoist. I moved such a motion against similar proposals when privy council bills were introduced by private members. At that time I wanted a legal committee of the two houses of parliament to consider such measures, or a legal committee of the House of Commons. We should have had one long

ago in the house. When Mr. Ilsley was Minister of Justice he said he would consider my proposals, and I understood the present Minister of Justice (Mr. Garson) to say that he would do so too.
There are certain economic truths in connection with this measure, and I believe they should be applied here. We should have the maintenance of internal law and order so that men may reap what they sow. We should have impartial justice administered by the judiciary, freedom from interference and oppression on the part of the executive. You should not be afraid to tell the people you made a mistake, because these days the people do not expect their rulers to be gods. Always tell the people the truth, the whole truth and nothing but the truth. You can ask them to make sacrifices, without fear; but you cannot ask them to accept the sort of things that are in this bill.
This seems to be a conflict of lawyers. Sir Allen Aylesworth did not believe in this procedure. He was Minister of Justice in this house, probably the most able man we ever had. He used to appear before the court of appeal when I was a law student; and he was a great friend of the hon. member for Temiscouata (Mr. Pouliot). At times he would have the whole docket to himself. He had a great sense of humour, which is a wonderful thing for any man to have. About a quarter to five in the afternoon he would say, "Now, my lords, we have been sitting since ten o'clock this morning, and there are certain places that close at five o'clock in the afternoon." I do not know what those places were; they may have been department stores or other places but the appeal judges would all laugh at this act. Sir Charles Fitzpatrick was also minister of justice and attorney general of Canada and later lieutenant governor of Quebec. He was Chief Justice of the Supreme Court of Canada, a great lawyer; and he disagreed with the present government on this matter. So did my right hon. friend the Prime Minister when he was president of the bar association, and there have been many others, including Sir Lomer Gouin, former minister of justice and former premier of Quebec. Here is what the Lord said about lawyers in Luke 11, verses 43 to 47:
43	Woe unto you, Pharisees! for ye love the uppermost seats in the synagogues, and greetings in the markets.
44	Woe unto you, scribes and Pharisees, hypocrites! for ye are as graves which appear not, and the men that walk over them are not aware of them.
45	Then answered one of the lawyers, and said unto him, Master, thus saying thou reproachest us also.
46	And he said, Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne,

and ye yourselves touch not the burdens with one of your fingers.
47	Woe unto you! for ye build the sepulchres of the prophets, and your fathers killed them.
Then later:
52	Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.
53	And as he said these things unto them, the scribes and the Pharisees began to urge him vehemently, and to provoke him to speak of many things:
54	Laying wait for him, and seeking to catch something out of his mouth, that they might accuse him.
Then in chapter 12, in regard to hypocrisy:
25 And which of you with taking thought can add to his stature one cubit?
27 Consider the lilies how they grow: they toil not, they spin not; and yet I say unto you, that Solomon in all his glory was not arrayed like one of these.
34 For where your treasure is, there will your heart be also.
Those are the words of scripture, which were quoted in the other house by Sir Allen Aylesworth, who also quoted the Acts of the Apostles, which were written by the great prophet St. Luke. Here we have a division of lawyers. Fortunately, perhaps, this is not going to be dealt with by lawyers alone. When similar bills were introduced by hon. members to my left I moved the six months hoist. Many years ago, when Mr. Cahan introduced similar legislation, I also opposed it. At that time I said the Supreme Court of Canada was constituted by parliament under certain provisions contained in the act, which I read the other day and need not repeat at this time.
They had a situation like this in Quebec, and even away down in Louisiana. We all remember what happened down there, when Mr. Roosevelt was the great president of the United States and Huey Long was a supporter of his. As you will remember, Mr. Speaker, Louisiana was purchased by the United States from another country; but when Huey Long came into power he simply wiped out the treaty and everything else. The same thing would have happened in Quebec but for the privy council, which has always been the protector of the rights of the provinces and the municipalities. The other day in this house I was referring to the case of the Toronto Electric Commissioners v. Snider. First it was dealt with by a learned county court judge of the county of Wentworth, a great lawyer. He gave a decision, following which an application was made to Mr. Justice Mowat for a mandatory injunction, which was refused. Then the parties went to the Toronto assizes, where there was a trial and again the plaintiff lost. After that the matter was taken to the court of appeal, where the
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appeal was dismissed. That was the third defeat for the city. After that they did not bother to come here to this famous court; they asked for leave to appeal to the privy council, and leave was given. Following that appeal Lord Haldane gave an important decision, which helped the whole country. It was a declaration in regard to property and civil rights in the provinces. That judgment declared that the provinces were supreme; that matters between employers and employees came directly under the provinces, under section 92 of the British North America Act; and by that judgment the Lemieux act was upset.
The legislation before us today is directly opposed to that principle. I say it is also against the principles of Liberalism. It would be far better if we had a legal committee. It would be better if the minister would accept the suggestion of the leader of the opposition that we should have a joint committee of both houses to rewrite this statute. Certainly that would keep this government and the minister out of trouble, because the country is not ready for this yet. Our people are not going to make a scrap of paper out of the British North America Act. Why should we do that at the present time? We want an act for the living, not for the dead. How can the private members of this house, many of whom have come here from municipal councils, support a bill like this? I can tell you this, that although the government desires the passing of this bill, I do not believe it will ever be passed because this is not the proper moment for it.
There are one or two other matters I should like to mention. I agree entirely with the stand taken by Premier Duplessis in a speech he made the other day at the opening of a bridge. He said that although there are ten provinces there is only one province with a minority and that is the province of Quebec. The premier of Quebec says he is going to guard against any encroachment on provincial rights.
I quote from a newspaper report of the speech by Premier Duplessis:
In his speech. Premier Duplessis recalled the memory of the St. Eustache patriots, who, in 1837, fought to obtain responsible government, also events of 1841, when Quebec and Ontario were united, only to fail to come to reach accord on major national questions. In 1867, he said, representatives of the provinces of Quebec, Ontario, New Brunswick and Nova Scotia, had agreed on a confederative pact, handing -over to a central government powers to deal with national problems, but retaining unto themselves the full authority to deal with matters pertaining to the protection of their rights and privileges. It was a pact, a contract, not a statute, as suggested by Prime Minister St. Laurent, a pact that could not be changed without the full consent of the parties concerned, signatories to the pact.

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Mr. Ferguson, when he was premier of Ontario, was opposed to the passing of any measure such as this. I have always opposed these changes, and I believe that this is simply a coercion bill.
In 1898 the Laurier government came into office as a result of the general election which was held in June of that year. It so happened that education was not a federal burden but a matter expressly for the province. The Greenway government in Manitoba abolished separate schools in that province, and it was decided that Ottawa could disallow any provincial statute. Section 93 of the British North America Act says that the province can make laws exclusively on education. If it is the desire of the government to write a new British North America Act, then let it be done in the same manner as it was accomplished in the first place. The inclusion of the tenth province should be a fine opportunity. I do not believe in this way of doing business. The privy council has rendered decisions on sections 91 and 92 of the British North America Act, and some such independent body is needed to pass judgment in cases of this type. I do not believe there is any Canadian body that could give such decisions.
There are Canadians who are members of the imperial privy council. The meetings of this body are held in a private room and gowns are not worn. It has been stated that its central location is the only reason the privy council meets in London. In conclusion, may I say that I do not believe in this manner of doing business. The government will be sorry they ever touched this matter. I represent a large body of public opinion in this country that believes this is not the time, during the dollar-pound crisis, to give the mother country a black eye. This seems to be a separatist movement.
During the first war a million men went from this country, and what was good enough for them is good enough for those of us who stayed at home. I do believe the moment is not opportune for the passing of such a bill and this house would be well advised to let the matter stand for a year.


Mr. Jean Francois Poulioi (Temiscouaia):: I am sorry to have to disagree with the member for Broadview (Mr. Church). He has such a positive mind, I cannot understand how he could support a negative amendment such as the one sponsored by his leader. Perhaps he has forgotten that seventy-four years ago, when the supreme court bill was adopted, the then minister of justice drew the attention of the house to the fact that the privy council was no longer a court of prerogative. An English statute had changed it into a court of judicature.

Seventy-four years ago, the minister of justice said he hoped that before long appeals to the privy council would be abolished. At that time, Mr. Speaker, an amendment to that effect was moved by Mr. Irving, who was a British-born reformer. It is exactly the same language as section 54 of the Supreme Court Act, which reads as follows:
The judgment of the court shall, in all cases, be final and conclusive, and no appeal shall be brought from any judgment or order of the court to any court of appeal established by the parliament of Great Britain and Ireland by which appeals or petitions to His Majesty in council may be ordered to be heard, saving any right which His Majesty may be graciously pleased to exercise by virtue of his royal prerogative.
The only change was that in the amendment moved by Mr. Irving seventy-four years ago "His Majesty" was "Her Majesty". The obvious reason for the last part of this amendment, which is now section 54 of the act- -saving any right which His Majesty may be graciously pleased to exercise by virtue of his royal prerogative.
-is that the imperial act, which had been passed in 1874 and was supposed to come into effect in the autumn of that year, was postponed until late in 1875. The Supreme Court Act was sanctioned on April 8, 1875, and the imperial statute changing the court of prerogative into a court of judicature in England came into force several months later. It was entirely due to that interval of time that the reservation was made in the last line of section 54 of the act, which was section 47 of the original act, 38 Victoria, chapter 11.
If the leader of the opposition had read the reports of the debate of 1875 concerning the establishment of the supreme court he would have enjoyed reading the following remarks by the then minister of justice, as they appear at page 286 of Hansard of 1875.
In view of the law recently passed in England, which was intended to have come into effect on the 1st November, 1874, but the operation of which had been postponed up to 1st November next, establishing a supreme court of judicature, he thought the realization of his desire in respect to this matter was likely to be fulfilled. Under this law the jurisdiction of the judicial committee of the privy council would be transferred to the Supreme Court of Judicature sitting in London. He did not think the right of appeal would not then be prized so much as it was now, because the new court in London would be a court of law, and not as the privy council is, a court of prerogative. He would like very well to see a clause introduced declaring that this right of appeal to the privy council existed no longer. There were very strong reasons in favour of the right of appeal to the privy council, but the reasons against it were still stronger. The right of appeal had been rather extensively used, and he might add, considerably abused in the province of Quebec, by wealthy men and wealthy corporations to force suiters to compromise in cases in which they had succeeded in all the tribunals of the country. However, as he had

already said, he had made no mention of the matter in the bill now before the house, but left it to be disposed of at some future time.
He had preserved in the bill some provisions which had been put there by Sir John A. Macdonald, who was then the member for Kingston. This happened on February 23, 1875. I shall read further at page 755, from the remarks of the then minister of justice. But before I do so hon. members might be interested to have me point out- and it may surprise the leader of the opposition (Mr. Drew)-that everything was said in the third person. The word "I" was ignored. When the then minister of justice was speaking, he was speaking in the third person of the singular, of course. At page 755 we find the following:
He foresaw that at a day not distant, the appeal to the privy council would end, and he would not be so anxious to have this measure passed. After January next, instead of an appeal to the foot of the throne, as it was termed, we could only appeal to a statutory court in England.
Something which has been done for seventy-four years. I find it more interesting to read the debate on the Supreme Court Act than to quote any excerpt from Mr. Teece or Elliott Roosevelt about the change in the law.
I shall not speak for long, but I shall give two reasons why I favour this bill. The first is that the judges of the privy council in England are political judges. As they belong to the House of Lords, they are lawmakers and therefore they belong to various parties. Few of them are Liberals. Some are Conservatives. In England we see something that is almost unbelievable. We see some Labour lords. I find it to be a paradox, but it happens just the same over there. Each of the judges who sit in the privy council is a born politician; he is a politician first and a judge afterwards. I have seen articles about politicians being appointed to the bench. I do not see how the same party that condemns the practice of the Liberal party in appointing Liberals to the bench should advocate the continuance of appeals to the privy council or to judges who live far from here and who are politicians before being members of the bench. In fact, if they were not appointed to the House of Lords, they would not sit on that bench. Their appointment is their qualification to sit there. One may not be surprised that they afterwards render political judgments.
In our country the situation is entirely different, because no judge has the right to vote. All judges that are appointed by the dominion government are deprived of the right to vote in federal elections. This means that all those judges, even though they have been in politics previously, can no longer be imbued with any partisan spirit.
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The first reason why I support this bill is that with the cancellation and the abrogation of appeals to the privy council we shall no longer have anything to do with a tribunal in London which is composed of political judges. The second reason why I support it is for the sake of economy. We have enough appeals from one court to another; they must stop in some tribunal in this country. It is as true today as it was seventy-four years ago, when the supreme court was instituted, that few people have the means with which to carry a case to the privy council. That is a procedure for people who are well off, and for big concerns. They are the ones who are able to carry their cases there, appealing sometimes directly from the provincial supreme court, from the court of appeal or the court of king's bench in the province of Quebec, to frighten the parties who have not the same means from continuing the legal debate overseas.
In my opinion the time has come to put aside all prejudices. When Mr. Irving, who was a good Englishman and a good Liberal, moved that provision which I have just read and referred to, he was acting as a good Canadian. The time has come when we should consider every matter objectively, without any sentiment.
I cannot understand the amendment of the leader of the opposition (Mr. Drew) to give the bill the six months hoist. What is it? As I said before, it is a negative proposal. I am anxious that the bill should go before the committee of the whole. Then we shall have the opportunity of seeing whether the leader of the opposition has any constructive suggestion to make about the constitutional powers of the supreme court. He will then have an opportunity to make any amendment that he thinks will protect the provinces and will protect the minority. Will he do that? He may. I am so anxious to hear him speak on this matter that I will say no more at this time. I shall look forward to hearing his constructive amendments when we are in committee of the whole.


Mr. Howard C. Green (Vancouver-Quadra):: Once again, Mr. Speaker, I find myself on a different side from my good friend the hon. member for Temiscouata (Mr. Pouliot). There is only one compensation about being in that position, namely, that once more it proves I must be right.
I propose to speak for a few moments this afternoon in support of the amendment proposed by the leader of the opposition (Mr. Drew), which was to the effect that consideration of the abolition of appeals to the privy council should be postponed for a period of six

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months. I intend to give several reasons for my support of the amendment.
In the first place, in British Columbia, we place a very high value on the ability and the decisions of the privy council. We should like to see the right of appeal to that court retained. We have had the right for almost seventy-five years. In many cases the appeals have been taken direct from the court of appeal of British Columbia to the privy council. That has been a common practice. I was amazed to hear the Prime Minister (Mr. St. Laurent), when he spoke in the debate on the speech from the throne at the beginning of last session, express resentment against that practice in British Columbia. Hon. members will find the statement on page 65 of Hansard of January 28, 1949. The Prime Minister was giving the figures of the appeals that had been carried to the privy council, and I asked him how many appeals there had been from the court of appeal of British Columbia to the privy council. This was his reply:
I have long deplored this apparent tendency of the litigants of British Columbia to take their disputes to the privy council instead of taking them to the supreme court at Ottawa.
I can only say, Mr. Speaker, that the people of British Columbia have taken their appeals direct to the privy council because they wished to do so, and because they have had satisfaction from that court. Therefore, I repeat, the right of appeal is highly prized in my province, and that is one reason why I am speaking in favour of this amendment.
In the course of his speech in introducing this bill the Minister of Justice (Mr. Garson) tried to make quite a point of the argument that the privy council is only a rich man's court. That is truer of the Supreme Court of Canada than it is of the privy council, and I can give the house an example. A few years ago I was a junior member of a certain firm which had a case against the British Columbia Electric Railway Company Limited. The plaintiff was a widow who had no resources at all. She had fallen in getting off a street car and in the supreme court of British Columbia we were able to prove that she fell because there was a defective plate on the step. We obtained a judgment for $5,000 and costs. We held that judgment in the court of appeal, and then the British Columbia Electric Railway Company Limited appealed to the privy council on the ground that the action had been commenced at a later date than six months from the time of the accident. By the way, that delay was not a delay of our firm. The plaintiff had not come to us until the six months had expired. Under the provincial act which incorporated the company the limitation period was six

months. Under the Railway Act of Canada it is a year, and the point as to whether or not a claimant had six months or one year had never been decided. Therefore the company appealed to the privy council on that point and won. We were able to retain a young Canadian who had been a Rhodes scholar and who had been called to the bar in Great Britain. Before the privy council gave judgment they apparently decided that this widow should not be deprived of the amount of her claim. They took the position that they were sure that the counsel for the company would not ask that the widow be deprived of the $5,000 because the company had won its point. If anybody has any doubt of that, may I say that I hold in my hand the report of the case. It is "British Columbia Electric Railway Company Limited versus Pribble, 1926 Appeal Cases". At page 481 we find the words used by the honourable lords in bringing about this result:
Their lordships are further informed that in consideration of her injuries and of the fact that the general aspect of the matter concerns themselves alone, the appellants have voluntarily arranged with the respondent not to ask for the repayment of any sums already paid to her in consequence of the judgments below, a liberal proceeding to the spirit and justice of which their lordships think effect should now be given by making no order as to costs of this appeal.
The result was that the widow got her judgment. She got her costs in the supreme court of British Columbia and in the court of appeal. I have no doubt that the solicitor for the British Columbia Electric Railway Company Limited in Vancouver has ever since been a firm believer in abolishing appeals to the privy council. That was one case in which a poor woman got a benefit that she would not have received in the Supreme Court of Canada. Other cases are the carrying of appeals to the privy council in forma pauperis. There has been a case in British Columbia which has been carried twice to the privy council in that manner within the last two or three years. Let us not believe we are conferring a great benefit upon the poor man by the abolition of these appeals.
Another point made by the Minister of Justice was that Canada had never been represented on the privy council. I thought he spoke quite bitterly, as though this court had been set up by a foreign country and we were made subject to it and had nothing whatever to say as to who served on the court. The fact is, and the Minister of Justice knows it very well, that chief justices of Canada have served on the privy council. The late Chief Justice Anglin served on many occasions. Chief Justice Sir Lyman Duff, who is a hero to all the young lawyers of British Columbia, served on the privy council

time and again, and his judgments carried great weight all over the commonwealth. The present chief justice, Chief Justice Rinfret, has also served on the privy council. Canada could have been more fully represented at any time if its government had cared to ask for such representation.
Another reason I am in favour of this amendment is that I believe the abolition of the appeals is premature, particularly in the case of appeals on constitutional questions. It is perfectly clear, Mr. Speaker, that we should first work out a method of amending our constitution in Canada. I know that that is going to be a difficult job, but it is a field for the display of real courage and leadership by the government of Canada. There is a field in which there should be real leadership but by the measures which are promised in the speech from the throne the government is making no real attempt to solve that problem.
The government has said in the speech from the throne that it will arrange consultations with the provinces concerning the amendment of our constitution where there is a difference of opinion in regard to certain points. Obviously that is the first move. Once that move has been made and agreement reached as to the amendments to the constitution that should be made there could be far less objection to the bill we are considering today.
But instead of holding that consultation first the government is bringing in this bill to abolish appeals and is then giving notice that it will ask the parliament of the United Kingdom for the right to amend the constitution of Canada in relation to matters not coming within the jurisdiction of the legislatures of the provinces nor affecting the constitutional rights and privileges of the provinces or existing rights and privileges with respect to education or the use of the English and French languages.
The only real difficulties in connection with our constitution concern the respective rights of the dominion and the provinces. That is the only question to be solved. Let us see what will happen if the government course is followed. Appeals to the privy council will be abolished and the right to amend the constitution in connection with dominion matters will be given. As the Prime Minister (Mr. St. Laurent) said the other day, the Supreme Court of Canada is to be the arbiter. If there is any question as to whether the amendments deal with provincial rights, then the supreme court will make the decision. That will probably mean a whole series of new lawsuits having to do with our constitution and whether or not particular amendments affect the rights of provinces.
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I wonder whether the government is proceeding in this way in order to tie the hands of the provinces, in order to present to the provinces a fait accompli. If they will not agree to the amendments made by the dominion they will have to go to the Supreme Court of Canada. I wonder if the idea behind all this is not that the provinces, rather than face that necessity, will yield to the wishes of the dominion? It looks as though the dominion government were putting a gun to the heads of the provincial governments, and I suggest that that is a very high-handed procedure to follow. That is my second reason for supporting the amendment that the bill be considered six months hence.
My third reason is the resolution passed by the Canadian Bar Association at Banff a few weeks ago. That body is composed of leading lawyers from all over the country who belong to all different parties. Their deliberations are non-political and thoroughly objective. If any group in Canada should understand this particular question it is this group. I would point out to hon. members that included in the membership of the committee which recommended the resolution passed by the Canadian Bar Association were such outstanding supporters of the government as Senator J. W. de B. Farris, K.C., of Vancouver and Senator G. P. Campbell of Toronto. These men hold a high place in the public life of Canada.
I should like to quote from a statement made by Mr. Steer, the chairman of the committee. I do not know his politics, but I certainly have never heard of him as an active Progressive Conservative. He may be a Liberal, but as a matter of fact I do not think there was any political angle in the consideration of this question by the association. Here is what he said:
There is little doubt that the Privy Council is the most powerful court in the world. I suggest we should think very carefully before we throw away the right of appeal to such a court. There is no question of sovereignty involved. Sovereignty of Canada has been conclusively established.
I should like to quote from the resolution as follows:
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:
(i) That any bill for the abolition of the privy council appeal should contain the necessary provisions as to the organization and jurisdiction of the Supreme Court and the system by which its judges will be appointed.
Here is the portion of the resolution I wish to stress:
That sufficient time be given before the statute is enacted to permit the public to give consideration, both as to the question whether the abolition of the appeal to the privy council should take place and

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to the constitution and powers of the court that may replace it and also to the effect which the abolition may have upon provincial and minority rights.
The resolution then went on to make certain suggestions as to what should be done if the appeal were abolished, among which was the following:
(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.
In other words, that there be some provision that previous decisions of the privy council and the Supreme Court of Canada should be binding on the Supreme Court of Canada after this bill is passed. During his speech the Prime Minister professed great respect for the opinion of the Canadian Bar Association, but he then went on to wave aside their suggestion that the bill should be allowed to stand in order that it might be given further consideration. In effect he took the position that he knew what was best and that the Canadian Bar Association could just run along and play marbles or forget about the matter.
The other day he refused to insert a provision in the bill making previous decisions binding. The excuse given was that all the justices of the supreme court took an oath of office when appointed and therefore they were bound to follow previous decisions. It is not quite as simple as that. I do not question for one moment that the justices of the supreme court will carry out their oaths of office, but they may have different views of just what that oath implies. I have here a press dispatch which appeared in the Ottawa Journal of June 2 of this year, just a few weeks ago, which reads:
Not Bound by Privy Council says Rinfret
Jurisprudence laid down by the privy council does not necessarily bind Canadian courts, it was intimated by Chief Justice Thibaudeau Rinfret in the Supreme Court of Canada today.
The report continues:
"Why should we in Canada," queried His Lordship, "accept something that has been said 4,000 miles from here, where they have not the same mentality?"
And then again:
"You might say," His Lordship told counsel, "that the Supreme Court of Canada is the final court of the land and hence is not bound by judgments of the privy council."
"No, my Lord," replied Mr. Stein, "I don't believe I would care to go that far."
"Oh, don't hesitate," urged the chief justice.
Mr. Stein was counsel for the appellant.
There is the position with which we are faced in Canada today. I suggest that because of that stand, if for no other reason, a provision should be written into the bill that the decisions made in the past by the Supreme

Court of Canada and the privy council are to be binding. Otherwise we start interpreting our Canadian constitution all over again in the year 1949, and I do not think anybody in Canada wants that to happen.
A fourth reason why I am supporting the amendment is that by abolition of appeals to the privy council Canada will sever one of the links which hold the British commonwealth together. Such action may lead to similar or far more drastic action on the part of other nations of the commonwealth at a tune when Britain has her back to the wall as she has never had it since 1940. Some of our ministers have been getting up in the house this week to sympathize with her in her present plight, and yet by abolishing appeals to the privy council at this time the government may be adding to the burdens of the already overburdened United Kingdom government. The Minister of Justice (Mr. Garson) may laugh. He is much better at laughing than he is at propounding a sound argument on this particular subject.
Just as certainly as night follows day such action is sure to be interpreted in every capital of the world as a weakening of the British commonwealth, particularly in the capitals behind the iron curtain, when all democratic countries are rightly worried about the Soviet union having discovered the secret of the atom bomb. This step is taken precisely at the time when a strong commonwealth is necessary for world peace. I point out to you, Mr. Speaker, that one of the reasons why the world is in so perilous a position today is the fact that it is divided into two camps, the United States camp and the Russian camp. If the British commonwealth had been kept as strong as it was during the war, if we had a third camp between the other two, we would not have the whole civilized world apparently rushing into a third world war. That the situation is simply unbelievable, everyone in the house agrees. It is unbelievable when we reflect that fighting ceased only about four years ago. But such is the state of the world today.
It is only nine years ago that the British commonwealth stood alone, except for aid from gallant little Greece, and saved civilization. It is less than five years ago that sons of the commonwealth were plunging to their death together in flaming planes, and men of the other parts of the commonwealth were serving with Canadians in the first Canadian army.
I am incapable of expressing my regret that such a step should be taken by the Canadian government at this time, just as I regretted the refusal of the Canadian government in 1938 to allow Great Britain to send her young airmen here to take their training.

That action might very well have meant the destruction of civilization. It is only nine years ago that a few young commonwealth airmen saved civilization. We learn now that at that time the very last squadron was in the air. If there had not been enough of those airmen to save civilization, the responsibility for the consequences that might have ensued would have rested in large part on the Canadian government of that day.
Canada is now a senior partner in the commonwealth. No longer are we in the position of trying' to get something from Great Britain; and since we are a senior partner our influence and our responsibility are great. We should be doing everything in our power to strengthen the commonwealth, and the abolition of appeals to the privy council certainly does not strengthen the commonwealth.
My fifth reason for supporting the amendment arises out of the argument put forward by the Minister of Justice when he opened the debate on the bill. He asked support for the measure on the ground that the government was now achieving nationhood and autonomy for Canada. He even went so far as to say in conclusion that there must not be one instant's delay. That very statement was enough to convince one of the weakness of his arguments. He made a straight appeal to the isolationist and republican sentiment in Canada. I think the house should be told who it was that won nationhood for Canada, and when it was won. Nationhood was won for Canada in the first great war from 1914 to 1918. It was won by '.he young men and the nursing sisters, God bless then, who went over from this land and pla ei so splendid a part in that war. The names of those who won nationhood for Canada are inscribed in the Book of Remembrance in the Memorial Chamber of this building. It ill behooves any minister of the crown to rise in the House of Commons, in the year 1949, and make the claim that he is now winning nationhood for Canada.
Since 1919 Canada has been completely free to do as she wished. Neither the United Kingdom nor any other nation has stood in her way. Canada has been free to do as she wished. As my authority for that statement, I quote the Right Hon. Vincent Massey.


Stuart Sinclair Garson: Since what date?


Howard Charles Green: The Right Hon. Vincent Massey, who has been our ambassador at Washington and London. He is the Canadian who has had the greatest experience as an ambassador. I do not think anyone questions Mr. Massey's ability or his right to speak on questions of this kind. I have his book entitled, "On Being
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Canadian," published in 1948. On page 9 we find this statement:
We know that our sovereign independence is real, final and complete. If there remain vestiges of subordinate status, we ourselves are responsible and no one else. If, for instance, today we can alter our constitution only by appealing to the British parliament, it is because we apparently still wish to have it so, embarrassing as the arrangement is to the legislators at Westminster who naturally regard such matters as no concern of theirs.
All the talk of winning autonomy for Canada is faking the issue. If there is an autonomy problem before the Canadian people today it has nothing whatever to do with Canada's relationship with the British commonwealth, but with the United States of America. Mr. Massey elaborates that view on the same page. This is what he says:
There is truth in what was said not long ago: "It is hardly too much to say that in some quarters there is a surviving colonialism which cannot forget that the British connection once involved colonial subordination, and would willingly demonstrate independence of Britain by avowing dependence upon the United States." Such "new colonialism" is as damaging to national growth as was the old.
There is the real problem; and it is not imposed upon us by our fine friends the Americans. It arises out of world events. The real problem is how to avoid becoming subservient to the United States. I want to cite a few instances to show how this government has allowed Canada to become subservient to the United States. First I refer to a clipping under date of July 28, 1947, headed "Canada assures U.S. no Jap treaty 'bloc'." At that time the members of the commonwealth were to have a conference in Australia concerning a peace treaty with Japan, and the Canadian ambassador in Washington was instructed to go to the secretary of state there to assure him that there was no intention of setting up an empire bloc. Here is what the Canadian ambassador said:
I told Mr. Armour what I am sure he already knew, that this conference does not and could not mean the formation of a common British front at the peace conference.
That statement is also dealt with by Mr. Massey in his book, where we find this comment at page 105:
When it was reported in the press in 1947 that we had assured the United States government that the forthcoming commonwealth conference on the peace treaty with Japan did not foreshadow the formation of a British "common front," these representations seemed both unnecessary and undignified.
A second instance occurred in 1947, when the government was trying to save United States funds and the Minister of Finance (Mr. Abbott) brought in his austerity program. The prohibitions did not apply only to the United States but to all the members of the commonwealth, in fact to the whole world. When in this house the minister was challenged to say

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why he had done that, he replied that it was because the Americans did not like to be discriminated against, in other words because the Americans wanted it that way. We saw the same thing happen yesterday, when the minister rose in his place and announced that the ban on the importation of fruits from the United States was to be lifted. Today we see a Canadian Press dispatch which reads:
A government official said lifting of the controls resulted from pressure brought on U.S. government quarters by California fruit growers.
The inference, of course, is that the United States government brought pressure to bear on the government of Canada. Another dispatch which confirms what I have said appeared on July 30 of this year, written by one of the leading members of our press gallery, a man of great experience and in a very responsible post, who wrote:
The dependence of Ottawa upon Washington becomes more apparent every day. A colleague put it to me this way: "This subservience to Washington is far worse than it ever was to London. Ottawa used to stand up pretty firmly to the dominions office in London."
Another example may be found in the military exercises which took place along the Alaska highway a few weeks ago. The first reaction of the government at Ottawa was contained in a dispatch dated August 10, 1949, and headed "Canada to get American aid if invaded". It states:
Continental defence plans call for immediate United States armed intervention if any sizeable enemy force strikes Canada, informed sources say.
This is part of the official reaction to press reports on exercise Eagle, Canada's biggest peacetime land-air maneouvres, which were critical of the state of national preparedness it bared.
It is a pretty dangerous frame of mind to get into when you expect somebody else's sons to protect your country. I might mention other instances of this type, such as the attitude of the Minister of Trade and Commerce (Mr. Howe) in connection with atomic energy. He has had United States congressmen come up here to investigate our efforts, but has refused to set up a committee of the Canadian house to consider that very matter.
These things have an effect on the thinking of the Canadian people. We can never make Canada a great nation unless we change our ways in this regard. Furthermore, that is no way to maintain the respect of our American cousins. Mr. Massey deals with that point at page 101 of his book, where he quotes with approval the statement of a prominent American, Mr. Lawrence Hunt, to a Canadian audience. Mr. Hunt said:
The self-respecting friendship of a loyal member of the British commonwealth is vastly more important to the United States than the sly subservience of a satellite. We Americans don't want
any satellites. We want friends who can differ with us without fear and can agree with us without servility.
Later, at page 121 of his book, Mr. Massey sums up the situation very well by saying:
This, however, does not relieve us from the duty of making our views known and protecting our interests in all matters which concern both countries.
He is referring to the United States.
Someone has said that "it is the merest common sense, when one lives in the same house with a giant, to attempt to keep on good terms with him." This is no doubt true, but the United States is a very friendly giant who will respect us all the more if we do not take for granted that it is our duty to yield automatically when there are differences of opinion, and will appreciate our speaking with frankness and candour.
Those are my six reasons for supporting the amendment postponing consideration of this bill for six months. I urge that this be done. For these reasons, if for no others, I believe that should be the course followed by the government.


Mr. L. Philippe Picard (Bellechasse):: Mr. Speaker, I expected many reasons to be invoked by the opposition in favour of either postponing or killing the bill in one way or another, but I never thought the development of the atomic bomb by Russia would be suggested as a reason for maintaining appeals to the privy council. I have a great deal of respect for the hon. member for Vancouver-Quadra (Mr. Green). He is a hardworking member, whom I like personally, but I do not like the argument he has advanced this afternoon. Before entering upon the body of my own remarks I shall try to deal with a few of the points he brought forward.
The fourth reason advanced by the hon. gentleman for supporting the amendment of the leader of the opposition (Mr. Drew) was that abolishing appeals to the privy council would give a bad example to other parts of the commonwealth and create a bad impression in London, or cause the British government some trouble. I see the trend of thought of the Conservative party has not changed much since the days of Sir John A. Macdonald. I did as the hon. member for Temis-couata (Mr. Pouliot) did; I consulted the debates of 1875, and found this statement by Macdonald at page 981:
Great as would be the benefit of a supreme court to the dominion, it would not compensate for...the feeling of uncertainty it would excite in England as to whether there was not an impatience in this country of even the semblance of imperial authority.
On the same day, he said:
This amendment is the first step towards the severance of the dominion from the mother country.
At the time he was speaking about the abolition of appeals to the privy council, proposed in an amendment to the bill esta-

blishing the supreme court. He expressed concern about the feeling of uncertainty it would initiate in England. Today we heard my hon. friend bringing forward the same argument, that it might be wrongly interpreted in England if Canadians were to decide they have legal minds in their own country, men of integrity and ability who can interpret the terms of the constitution as well as any who are not so familiar with our institutions or so conversant with our body of legislation.
My friend talked about the question of autonomy, Mr. Speaker, and stated there was no question of autonomy involved in abolishing the appeal to the privy council. Does he forget that one of the elements of sovereignty is the establishment of courts within the country designed to interpret the constitution of that country? The fact that we are still taking appeals to the privy council is one badge of colonial status. The other badges are the fact that the constitution is not a Canadian constitution, but an act of the British parliament, and the fact that we have no flag. The removal of two of these badges at least is mentioned in the speech from the throne.
My friend says the country is not ready for such a move. The Prime Minister has gone from one end of this country to the other and has had the courage to speak about the matter and the answer of the people should be convincing. A moment ago we were told that, amongst the members present at the Canadian bar convention, there were some Liberals who helped draft that resolution. Certainly, there must have been Liberals there. The election results showed there were so many Liberals throughout the dominion there must have been some at the convention.
It has been stated that in British Columbia the decisions of the privy council are considered of great value. If the hon. member had represented Rockland avenue or the Uplands section of Victoria, such a statement would have been easier to understand. At any rate, I respect anyone who feels the privy council gave him better protection. I believe a majority of the people in Canada have reached a stage where they consider it necessary for Canada to have the power to amend its constitution, and to have a supreme court to interpret our institutions. A statement has been made to the effect that the abolition of appeals was premature, especially in so far as constitutional rights were concerned. We have been waiting seventy-five years for this.
The member for Temiscouata (Mr. Pouliot) quoted an amendment to the bill to establish the supreme court. This amendment was
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proposed by Mr. Irving and it carried by 112 to 40. That took place seventy-five years ago. During the course of my remarks I shall deal with the reason why this amendment has remained inoperative and who was responsible for it. This question has been before the Canadian public and this parliament for many years. Does my friend believe we should wait another seventy-five years before the people of the country will be certain we should establish a supreme court to interpret our own constitution?
My friend says we should start with the constitution. It is well known that any constitutional convention will sit for five or six years before any definite agreement is reached. It took a little less time, but not much less, for the fathers of confederation to come to a conclusion and at that time there was no particular political animosity brought into the discussion. Today, in some parts of the country, there are people who make political capital of such a question. Does anyone believe that a convention established this year could, within the normal course of six months or a year, bring forth a result that would enable the country to establish a new constitution? I venture to predict that any constitutional convention will have to sit for a number of years before reaching a conclusion.
This government did not want to wait for all this to happen. This government believes that the people of Canada are ready to do as the other countries have done, to establish a federal supreme court charged with the duty of interpreting the law. The government believed also that the moment had arrived to consult the provinces as to the first steps to be taken to summon consti-tional convention. This would take some time, but I believe the time has arrived for the country to take the step proposed in the bill now before us.
My hon. friend ended his long speecn, interesting in many respects but out of touch with the question of abolishing appeals, by speaking about our subservience to the United States. Mention was made of the military manoeuvres in western Canada and the joint continental defence. I feel no more satisfied with that than he does, but if there were trouble in Canada tomorrow, could we rely any more upon help from Great Britain than we could upon help from our neighbours to the south? Could we expect more people from Britain to come here to join our army in the defence of our northwest, than would come from the United States? The time has come for the people of Canada to think in terms of practicability rather than in terms of sentiment.

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I was surprised that the hon. gentleman brought forth so many points in his attempt to show the subservience of our country to the United States. He stated that at one time Mr. Massey, the Canadian minister to Washington, had stated there would not be a common British front on international matters. Perhaps today, perhaps tomorrow, the interests of Canada might be much more in harmony with the interests of the United States than with the interests of Great Britain. I do not especially rejoice over that fact, but we have to face the facts as they are. My friend comes here talking about oranges and grapefruit in his attempt to show that Canada is subservient to the United States. I do not imagine that it was the fruit growers of California who influenced the Minister of Finance (Mr. Abbott) in lifting the ban on imports. If the minister was influenced by anyone, he was influenced by the people of Canada who felt their babies ought to have citrus fruits.
The measure now before us, Mr. Speaker, is intended to abolish appeals to the privy council. The adoption of the amendment by the leader of the opposition would have the effect of preventing this measure from being passed at this session of parliament. I readily admit that after the brilliant presentation of the Minister of Justice (Mr. Garson) and the unequivocal declaration of the Prime Minister, there remains but little that can be said as to the advisability or timeliness of the bill.
I am prompted, however, to delve into the matter because of the pleasure I feel in being given the opportunity to contribute to the freeing of our country from one more of its colonial links, even if it be in the humble way of casting my vote for this measure. I also feel I must speak on this question for somewhat sentimental reasons. I have, as no doubt all members have, a great fondness for my constituency and an interest in its history. This interest extends to the doings of my predecessors, the members for Belle-chasse. It was the second gentleman after confederation who occupied the seat for Bellechasse in this house, the Hon. Telesphore Fournier, who sat from 1870 to 1875 who, as minister of justice in the Mackenzie cabinet, introduced the bill to establish a supreme court and a court of exchequer for the Dominion of Canada.
As the intent of any legislative measures can oftentimes be foreseen in the speech from the throne-although it is not always so, it sometimes is-it is not without interest
(Mr. Picard.)
to note that the bill had been described in the speech from the throne in 1875 as "essential to our system of jurisprudence and to the settlement of constitutional questions". It can be readily established thereby that from the very day of its inception the court was rightly intended to study and settle constitutional questions arising in the country, whether brought to the court by private citizens or by the constituted government, whether federal or provincial.
When considering a constitutional question such as that of the supreme court and that of amendments to the constitution, I have made it a practice to consult the documents of the past and to look into the reports of the discussions that took place among the fathers of confederation. The debates of 1875-and my friend the hon. member for Temiscouata (Mr. Pouliot) ably dealt with that point but I shall touch on it again-provide us with an enlightening outlook on the feeling of the house at the time. Prior to the introduction of that bill by the Hon. Telesphore Fournier, the former Prime Minister Sir John A. Macdonald had twice introduced-in 1869 and 1870-and later withdrawn bills for the establishment of a Supreme Court of Canada. When presenting his bill, Fournier-as my friend the hon. member for Temiscouata pointed out-went as far as asking for an amendment that might bring about the abolition of appeals to the privy council, but he outlined one of the aims of the new court as being that of arbiter.
. . . which would settle the extent of the powers of local legislatures when these powers were in dispute.
He also stated:
The bill has for its sole object the harmonious workings of our young constitution.
Fournier was less fearful in 1875 than some people in my province pretend to be in 1949 as to the fitness of a Canadian court of last appeal to settle the extent of the powers of local legislatures, and he was right then as we are right now in taking the same stand.
When proposing his amendment the leader of the opposition (Mr. Drew) stressed the fact that there was no urgency for this bill, just as my hon. friend said, with reference to the atom bomb, that we should wait for another period of time. The Canadian people have considered the question long enough, and I think the time has come for us to cast a vote in favour of ending what Sir John A. Macdonald described as one of the last golden links of colonialism.
In 1870 Sir John A. Macdonald, when proposing the establishment of a supreme court,

stated that he was in favour of keeping appeals to the privy council. It was the trend of the Conservative party then as it is today. Then Sir George Cartier felt the same way. Those who now bring forward Cartier's shadow in order to try to impress us with the idea that abolition of appeals to the privy council will mean the end of provincial rights stress that Cartier was against the abolition but they do not say that he was expressing his feelings as a political man. He was acting as a Conservative and it was his right for him to act that way. But today it is the right of good, thinking citizens of this country to believe that the time is ripe to abolish the appeals and that the time has come for us to think that, as the Prime Minister himself stated, there can be in this country men whose integrity and ability are high enough for us to trust them properly to interpret the principles included in the pact of confederation. Sir John A. Macdonald also said at the time, and I am surprised that my friend did not quote this:
We have no power to deprive a British subject of going to the foot of the throne for redress.
That question was ably treated a year or so ago by a gentleman who sat on the opposite side of the house and represented the constituency of Kindersley. I refer to Mr. Jaenicke who twice proposed a resolution leading to a bill such as the one we are considering now. To my mind, while he was here he made a considerable contribution to the work of this house, and I esteemed him highly. At the time he pointed out that the sovereign himself does not consider grievances, that it is through the judges that he does so, and that judges appointed by the sovereign government of Canada in the name of the king are the same advisers or constitute the same way of advising the sovereign as to which grievances should be heard. Mr. Jaenicke stated as reported at page 2498 of Hansard of 1947:
In making the Supreme Court of Canada the final court of appeal we simply substitute His Majesty's Canadian judges as the final arbiters upon any grievances brought before him by his subjects in Canada.
I can well understand Sir John A. Macdonald's trend of thought; he was speaking in the colonial period. I am less able to understand those who take the same attitude seventy-five years later. While my hon. friends like to boast of the position that Canada has reached, and of what her sons have done to make her a nation, they refuse to recognize one of the elements of sovereignty and try to postpone study of this bill in order to kill it. Mr. Speaker, this has 45781-19i
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been admitted as the Conservative view at all times. The Liberal view was somewhat opposite, even in 1875. As my friend the hon. member for Temiscouata pointed out, Fournier himself when presenting the bill invited an amendment, and the amendment brought forward by the then hon. member for Hamilton was carried, as I said only a moment ago, by 112 to 40. It would be interesting to see why this amendment, although included in the bill when it was passed in 1875, was never operative. The bill creating the supreme court introduced by the then member for Bellechasse was passed on April 8, 1875, and the amendment was included in it as clause 47. How is it that this clause was never operative and that seventy-five years afterwards we are still discussing whether the time has come to repeal this

right of appeals to the privy council? Frank MacKinnon, in a remarkable study entitled "The Supreme Court of Canada", gives a good account of what then followed:
The government was informed through Lord Carnarvon, the colonial secretary, that disallowance was almost inevitable in view of the strenuous objection of the lord chancellor and the law officers of the crown to the principle involved in the appeals clause. .
And he goes on:
Mackenzie and Blake, the latter having replaced Fournier as Minister of Justice, argued the matter with the imperial authorities both by correspondence and by personal visits to England.
Blake's attitude throughout this controversy was truly consistent with the Liberal policy of upholding the full autonomy of Canada.
A careful study of the correspondence exchanged between Blake and the colonial office should convince anybody from my province who might still have any hesitancy as to which attitude is consistent with Canada's dignity and autonomy. I shall say a few words about this correspondence. I shall outline only two or three of the numerous arguments brought forward by Carnarvon, the colonial secretary, and Blake, the Canadian minister of justice, in order that my remarks may not be unduly lengthened. The first concerns the actual decision of cases, and that would interest some of the people especially in my province. Carnarvon thought that British residents-and I do not mean especially those living in British Columbia- "who held rights, investments or property in Canada should be protected by the right of appeal to the privy council". That was the attitude of Carnarvon in the exchange of notes I just mentioned.

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To this Blake replied:
This practically presumes that British subjects and foreigners would not receive justice at the hands of Canadian judges while it affirms that the Canadians would receive justice at the hands of the British court.
Blake thus considered this objection as an insult.
Secondly, the argument that an outside tribunal might judge more impartially than a Canadian one the questions arising between the federal government and the provincial legislatures was put forward. This is in line with the attitude of some people in my province, less and less numerous, fortunately. It is in line with the trend of thought that has prevailed in certain quarters up to a few years ago, but fortunately this tendency has given way in the last ten or fifteen years to a more logical attitude. To this Blake answered directly, and the Prime Minister (Mr. St. Laurent) the other day was consistent with the Liberal tradition when he kept somewhat the same dignified language on Friday last.
Blake said then:
I cannot conceive anything calculated more deeply to wound the feelings of Canadians than an insinuation that impartial decisions are not to be expected from their judges.
With reference, said he, to the alleged values of the decisions of a court not included in the confederation:
I would observe that with the practical operation of the federal constitution of Canada, with the customs and systems which may have grown out of its working ... a court composed of English judges cannot be thoroughly acquainted.
A few years later, in 1879, Blake again touched on the same question. In the course of his speech he declared that the Canadian constitution would be unworkable without a national court to settle problems which would inevitably be arising thereunder. He indicated that it was an anomaly for persons to declare that, while Canadians had the right to make their own laws, there could not be found in Canada men capable of judging by what laws she should be governed. He emphasized the fact that the experience and modes of thought of the British judges were not conducive to the proper interpretations of Canadian conditions and legislation which had their roots in an entirely constitutional system. He concluded with the following words:
Now, a constitution like ours, complicated and delicate in its adjustments, requires for its interpretation that measure of learning, experience and practice which those who live under it, who work it, and who are practically engaged in its operation are all their lives acquiring. I deny that it can be well expounded by men whose whole lives have been passed, not merely in another but in an opposite sphere of practice; and these men must come to

the consideration of these topics at the greatest disadvantage and from the wrong point of view.
Blake's words are as true today as they were seventy-five years ago, and it is the anomaly existing over that period of time that this measure now proposes to abolish. For the edification of the timid souls in my province who may not yet have seen the light let us revert to the controversy of 1875. MacKinnon says:
The biggest issue involved in the question of appeals concerned the material connection, or, more specifically, the principle of enhancing Canada's status by the removal of appeals to an English tribunal. This principle was in line with Blake's policy of keeping the colonial office reminded of responsible government and of diminishing the appearance of colonial governance by making the Governor General responsible to his ministers rather than to himself or the British government.
Lord Carnarvon questioned the expediency of permitting through such means as clause 47 any doubts as to the stability of Canada's ties to the mother country, the same trend of thought that is prevalent amongst the Conservatives but not so openly mentioned today. Blake answered at the time:
The Parliament of Canada, which is composed of the Queen, the Senate, and the House of Commons has power to abolish any prerogative of the crown affecting the Canadian people within the range of subjects on which parliament is authorized to legislate. After all the Canadian judges are Her Majesty's judges just as much as her judicial officers who reside in England.
The British institutions have proven their greatness by their adaptability, and the empire and commonwealth have survived so long owing to the ability of its statesmen to find harmonious solutions to seemingly insoluble problems. The same was true on that occasion. The Supreme Court Act was not disavowed. An arrangement was arrived at in 1876 and clause 47 was considered inoperative, as it was finally agreed that it did not affect the appeals to the judicial committee of the privy council because the clause had read that there was to be no appeal to a court of appeal established by the parliament of Great Britain. The judicial committee was not a court established by the parliament of Great Britain, so clause 47 was inoperative, and did not apply here.
I have brought the debates of 1875 and the controversy as to the abolition of appeals to the attention of the house to illustrate the continuity and the attitudes of the Liberal leaders and to point out to the few remaining hesitant persons in my province the fallacy of their arguments, already refuted seventy-five years ago, as well as the true purpose of the insistence of certain people upon the maintaining of appeals.
One of the objections raised by certain provinces to the principle of this bill,

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Mr. Speaker, is that a federal court could not be an impartial judge in conflicts of jurisdiction between the central government and the governments of the provinces.
At six o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at eight o'clock.


Thomas Langton Church: the second reading of Bill No. 3, to amend the Criminal Code (pistols, air guns, motor vehicles, level crossings and the payment of fines).
He said: Mr. Speaker, this bill contains a number of amendments to the Criminal Code. On the motion for second reading a member is permitted to deal only with the principle of a bill. Two sessions ago the former minister of justice called attention to the fact that a similar bill dealt with many different subjects and was therefore different from most other bills.
The loss of life from motor accidents is appalling. The pages of the newspapers in our cities and towns are filled with details of these accidents. Just today a lady who was visiting this city was accidentally killed when trying to save her grandchildren from being run down. She had just as much right to live as has the person who killed her. This toss of life is one of Canada's greatest scandals.
Just last week end nearly as many people were killed by motor accidents in the Toronto district as were killed on our side at the battle of Queenston Heights. No one knows who is going to be next. Anyone is apt to be called into eternity in the twinkling of an eye by the mad race for speed against the laws of God and man. This is Bill No. 3 and hon. members will find it on their files underneath their desks. I do not intend to speak very long on this bill because I made some remarks when introducing it.
One section of the bill deals with the use of pistols by bandits, burglars and others. Men of this kind are liable to break into your home or into your hotel room when fully armed because it is so easy to buy a pistol. I called the attention of a former minister of justice to the fact that I could walk into a store on lower Spadina avenue and buy a gun or pistol that had been manufactured in Connecticut and imported into
Canada. There are about twenty different types of pistols that these bandits or burglars can obtain.
There should be a prohibition against the manufacture of these guns and pistols and their sale should also be prohibited as well as their importation into the Dominion of Canada. No one knows who may be the next victim from motorcars on our roads.
The loss of life in the United States, England and other countries through the means I have indicated totals more than the casualties in the first great war and nearly as many as the casualties in the second great war. Human life is the most valuable thing there is.
It is the duty of the government to protect the health, wealth, happiness and prosperity of the people. Unfortunately, we have overgovernment and overtaxation in this country. Section 92 of the British North America Act was adopted for political and not economic purposes. They do not have provincial legislatures in Great Britain and yet they have a population of 47,000,000 people. They did not have such provincial legislatures in New Zealand and Australia until just recently and from what I hear they would like to get rid of them.
The loss of life is appalling. I can remember when the late Right Hon. Ernest Lapointe, a former minister of justice, escaped being hit by a motorcar by only a few inches when walking over from the Rideau club. You cannot go down some of our streets without facing the possibility of being hit or killed. Now one can drive as fast as one likes in our cities and towns.
I do not want to speak too long because several other hon. members would like to pass opinions on these matters. The marginal note to section 3 reads:
The appalling fatal accidents and- injuries from highway traffic and level crossings in Canada is mounting steadily and has become a public scandal as almost every highway is coloured red with the slaughter. Nothing is done to avert these accidents as the mad race for speed goes on. Casualties from such accidents are almost as numerous as those from the second world war in persons so killed or injured.
The purpose of this amendment is to set a penalty where a driver is convicted of failing to stop after an accident. I have seen children knocked down on Danforth avenue in the riding which I represent at the present time and have seen the little white coffins in which they were buried. Some of them were on their way to school and that was the last that was seen of them. I think the hit-and-run driver is the most cowardly type of murderer there is. Parents are not given any notice. The father comes home from work and he finds the baby

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in a coffin, or the school child turned over to the undertaker the next day. The slaughter of these innocent children has aroused the sympathy of the people of the Toronto district. It has been going on for years. It is the most cowardly form of murder, the hit-and-run, I know of. They are left all alone on the highway and our Lord and the community take care of them. They have as much right to live as some of the reckless drivers, and I believe far more. There was an instance yesterday. If you pick up today's paper you will read about an elderly lady who came to town from Gananoque to see her grandchildren, walked across the road, and was killed. She will not see her grandchildren any more. She has been sent into the next world without a moment's notice. Clergymen, labour organizations, and many other people have been complaining. Then there is the deplorable economic loss involved in the death of workmen. It runs into millions of dollars for this small country alone.
Turning to one of the other sections, let me deal with driving while under the influence of alcohol. Nearly everyone is a driver of a car. I am not myself because I am too shortsighted. I do not drive any more, and it is fortunate I do not because I would not be here very long. I believe that we should change this section of the Criminal Code. I am not a teetotaler. 1 have a permit for this year but there is not an entry on it yet. I believe that the drunken driver is a pest on the highway. Most of you who drive cars know that to be true. The situation is becoming appalling on the Queen Elizabeth highway. The wider the highways the more accidents there are. The loss of life is deplorable, and so is the economic loss.
The hon. member for Vancouver-Quadra (Mr. Green) wants to take part in this debate. He took part in the debate of 1935 when he first entered the house. There are so many sections of the bill that I will just pass on. The bill deals with hit-and-run drivers. Then there is a section dealing with failure to stop at level crossings. Last year in the Toronto district educated teachers and others were killed. I proposed a bill last year that would have required motor vehicles to stop in the same way that buses stop. Let us suppose that the carpet between the desks is a railway track. Under the Highway Traffic Act, before a motorbus enters upon a railway track it must stop and open the front door. There are nearly 40,000 level crossings in Canada and this country cannot afford adequate protection for every one of them. In the house last year and the year before I proposed an amendment to the Criminal Code, that the driver of a car who did not stop, look and listen should be fined up to $50 for not

doing so before entering upon the right-of-way of the railway. In a country of eleven million people it is impossible to eliminate all level crossings. I think this amendment would be good legislation. I knew some of the teachers that were killed. The number of lives that were lost in the Toronto district last summer is deplorable. Educated teachers and others were killed at the level crossings of the country. It takes two people to cause an accident. Until such time as it is possible to protect all crossings properly I think it would be wise by a Criminal Code amendment to put the onus on two people.
There is also a section of the bill having to do with causing death in a culpably negligent manner. Then there is a section dealing with the trial of young offenders. I think that the parents should be notified when teen-age people get into trouble. These young persons should be represented by counsel. There is no reason why they should not be represented by counsel. Some of them have been tried and convicted without representation by counsel, and I believe it would be a good thing when these people get into trouble. We did not have such a provision after the first great war, but the Addington administration faced the problem in 1801 after the peace of Amiens. The younger Pitt faced it in the years when he was prime minister. These conditions arise after every war, not only divorce but all these other things that grow out of war and involve people who go to war and come back. I believe it would be a good thing if the parents could be notified. If you pick up any newspaper you will read about these cases in the police courts. I referred this afternoon to the Don jail which was built to accommodate a little over one hundred people. The city of Toronto built two jail farms, one on Yonge street for men and one at Concord for women; and should have closed up the old Don jail. There are 400 people there at week ends and it is not fit for 125 or 140.


Jean-François Pouliot: The Don jail is a dungeon.


Thomas Langton Church: I will soon be finished. You will notice on page 5 of the bill there is a provision for juries to decide whether an accused is guilty or not guilty. The explanatory note on the opposite page reads:
On the trial with a jury ol persons who cause death or serious injury, it is desirable that the functions of the jury should not be curtailed or abolished.
Sometimes the judge takes the case away from the jury. The duty of the judge is merely to tell the jury what the law is supposed to be and to add any comments he wishes to make, but leaving questions of fact for the jury to decide. Otherwise the jury

system might just as well be abolished. Jurors are required to take the law from the judge, but in many cases trial by jury is negatived by the judge taking the case away from the jury. There are so many loopholes, and many people who are guilty of negligence get off. The increased number of accidents requires that the law be brought up to date to meet changing conditions, but preserving the liberty of the subject.
In Great Britain they have what is known as the Summary Offenders Act. It would be a good thing if we had it in Canada because the figures I have show that half the jails in the old country after its adoption have been closed. People were charged under orders in council and other such regulations that were passed during the war, and there would not have been any chargeable offence if it were not for the war. The war is over but we still have the same system being continued. I believe we should have such a law in Canada made applicable and only adapted to our circumstances. It would enable such people to walk into the police station and pay their fines to the sergeant by instalments. I believe it would be a blessing to the people of Canada, especially the working classes, if we had such a law adapted and applicable to our circumstances.
I think that is about all I have to say. The power is given to the police to collect these fines. Many of these people never have been in trouble in their lives. Fines are pretty heavy in the Toronto district. I think there should be a graded scale of fines. I see no reason why people in the city of Toronto should be fined $1,000 and in some other place $5. A jeweler in Montreal was fined $5 for giving away two thousand pounds of butter contrary to the prices board rules as an inducement to sell his goods. He was fined only $5. If such an offence had taken place in Toronto he would have been fined anywhere from $1,000 up to $5,000.
The Prime Minister (Mr. St. Laurent) has been very popular in our city. He came there to open our winter fair. I remember asking him last spring if we could not have two or three hours to discuss the deplorable loss of life by fires in homes. He said that at that time the government had so much work ahead of it that he would have to name a time when a discussion might take place; but then we had an election and nothing could be done. I do hope that this year, however, the necessary time will be provided; and I would ask the hon. member for Van-couver-Quadra (Mr. Green) to second the motion, if he will.


Howard Charles Green: Mr. Speaker, I am very glad to second the
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motion of the hon. member for Broadview (Mr. Church) that this bill be now read the second time. As hon. members who were in the last house well know, the hon. gentleman has brought up these amendments on other occasions. All have been carefully thought out; all arise from a close and deep understanding of the things that are worrying the people out in the constituencies. I do not suppose any member of this house is more closely in touch with the thoughts, the wishes and the worries of his constituents than the hon. member for Broadview. In addition he has had long experience in municipal work in Toronto, and understands what goes on there in the courts, so I do hope the Minister of Justice (Mr. Garson) will give careful consideration to the proposals contained in this bill for the amendment of the Criminal Code. We all realize, of course, that in the ordinary course amendments to the Criminal Code are submitted by the attorneys general of the provinces. That has not been done in this case. Here we have submissions prepared by a member of the house who has taken the trouble to draft amendments which he believes will meet situations we all know exist.
I have no wish to take up further time; I do not want to be responsible for talking out the bill. However, I do hope the minister will give these matters consideration and that he may find it possible to go a long way toward meeting the suggestions advanced by the hon. member for Broadview.


Jean-François Pouliot: Mr. Speaker, it is a happy occasion when I am not bound to disagree with the hon. member for Broadview (Mr. Church) and the hon. member for Vancouver-Quadra (Mr. Green). The sponsor of this bill is a great humanitarian. I have known him for a number of years. He has always been interested in the humble man, the man on the street. He has done a great deal for his fellow citizens, and has found his reward in the popularity he enjoys in the Queen city and, indeed, throughout the country as a whole.
This bill is another indication of his interest in his fellowmen. I commend the hon. member who has supported the motion on the kind words he has used with respect to its sponsor, who certainly deserves them. So many accidents are occurring everywhere. The newspapers are full of pictures of automobile accidents on highways and at railway crossings, and it is time we did something in an endeavour to reduce the number of accidents. The words of the hon. member for Broadview and the timely remarks of the hon. member for Vancouver-Quadra will be

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broadcast throughout this country, and will serve as a lesson to all those who would take advantage of the fact that the law has not been clearly defined. I am sure this bill will serve a good purpose, and I hope the Minister of Justice (Mr. Garson) will give it favourable consideration.
There are one or two matters, however, on which the hon. gentleman might be more precise. For instance, it is provided that anyone who drives a motor vehicle while under the influence of liquor or narcotics will be guilty of an offence. What does it mean to be under the influence of liquor or narcotics? That should be well defined in the bill; otherwise a man who has taken a glass of beer will be unable to drive his car. In the summer when it is hot there is some excuse for a man taking a glass of beer, and he is not necessarily drunk or under the influence of liquor because he has done so. It is a relative matter; the effect of beer is not the same on every individual. This part of the law should be interpreted with wisdom by the judges who may have to decide upon it.
To summarize my remarks, again I congratulate both hon. members, who spoke very well. I hope the press will give the widest possible publicity to the remarks of the hon. member for Broadview, so that what has been said tonight may not be ignored and in future the number of accidents may be reduced as much as possible.


Stuart Sinclair Garson: Mr. Speaker, I want to add my congratulations to those which have been extended already to the hon. member for Broadview (Mr. Church) on the excellent effort he has made, as a layman, to deal with one of the most complicated branches of the law.


Some hon. Members:: He is not a layman.


Mr. Fleming:: Thomas L. Church, K.C.


Gordon Graydon: As one layman to another.


Stuart Sinclair Garson: Quite so. We have given very careful consideration to the provisions of this bill, and the law officers of the department are of the opinion that in its practical application a number of difficulties would arise which would greatly detract from its serviceability. Having regard to the fact that we now have an excellent committee actually at work revising the whole Criminal Code, I am wondering whether my hon. friend would consider having us submit the substance of this bill to that committee, in order that the points in it which commend themselves to their judgment may be incorporated in the revision they are now preparing.

I am afraid that in my capacity as Minister of Justice I could not recommend any other disposition, because I do not think we in the department could take the responsibility of recommending to hon. members that the bill should be passed in its present form. I would prefer not to go into detail in this regard, because if I were to do so I am afraid I might be accused of talking out the bill, but I might point out one of two examples of what I mean.
For example, clauses 1 and 2 now make it an offence, first, to point an imitation pistol at any person without lawful cause; second, to have upon the person an imitation pistol while committing a criminal offence; third, to sell or give an imitation pistol to a minor under the age of fourteen years who is not the holder of a permit in form 76F. The purpose of the proposed amendment seems to be, first, to say that anyone who feigns the use of a lethal weapon is to be regarded as equally culpable with the person who actually employs one, for there have been many cases in which holdups have been effected or attempted by the use of an imitation pistol. The second objective seems to be to prevent, traffic in imitation pistols that might possibly be used for such criminal purposes.
Now, the first point, and this is the type of practical point that could be considered by the committee revising the Criminal Code, seems to be that the substance of these two clauses of the hon. member's amendment is now already covered by section 446 as amended by section 15, chapter 55 of the statutes of 1947. This section, which is now in force, makes liable for imprisonment for life, and to be whipped, any person who, being armed with an offensive weapon or instrument or imitation thereof, robs or assaults with intent to rob any person. In other words, we would be seeking to superimpose upon an amendment passed in 1947 another amendment which, if not co-ordinated with the 1947 amendment, would leave the law on these points in a state of confusion.
As regards section 126, which deals with selling or giving of an imitation pistol to a minor, the proposed amendment would have some effects upon section 126 which I am sure the hon. member did not intend. Johnny, aged 13, could not buy a toy pistol without a permit in form 76F, although he may only want it to play cowboys and Indians. Johnny's dad, who wants a toy pistol for staging a holdup, could buy one without any permit at all. Furthermore, Johnny might be liable to prosecution for pointing his toy pistol during the course of his game.
If I might take another example, just taking them in their order, clause 3 of the amendment would increase the penalty for leaving

the scene of a motor accident without reporting it. I am told by those who have the responsibility of enforcing these provisions that in the criminal law, as in economics, you encounter the law of diminishing returns. A heavy increase in penalty does not necessarily result in stricter enforcement. At the present time the punishment for this offence is a fine not exceeding $1,000, or imprisonment not exceeding twelve months. According to the experience of the enforcement officers, to increase that penalty would simply increase the difficulty of securing convictions. In any borderline cases, the judge or jury cannot help but be influenced by the heavy penalty when deciding the guilt or innocence of the accused. The trend of opinion in connection with all these matters has been in favour of allowing a greater latitude to the court in the matter of the penalty that is imposed and has been away from the idea of increasing, as this clause seeks to do, the minimum penalty.
To take another example, clause 7 provides new sections which the members will see at the top of page 4, with regard to causing deaths in a culpable and negligent manner. I am informed by the responsible officers that this would add nothing but confusion to a branch of the criminal law that is already complicated. The criminal law in this branch is covered now by manslaughter, negligence and reckless driving sections. It is quite true that the jurisprudence bearing upon the punishment for causing death by the blameworthy operation of a motor vehicle leaves much to be desired. It is to be hoped that the persons now engaged in the revision of the Criminal Code will be able to put it into better shape; but I am perfectly certain, Mr. Speaker, that the passage of this particular clause would not have any effect except to make the relatively small amount of confusion we now have worse confounded.
There are a number of other cases in which I believe the proper course would be to consult the provinces. Some of these matters could be handled much more efficiently under provincial jurisdiction and by provincial officers who are charged with the enforcement of the law. For example, clause 5 is a clause which is submitted by the hon. member in a very praiseworthy attempt to increase the penalty and make more strict the law with regard to the failure to stop at level railway crossings. The advice I receive from my officers about this clause is that it is not capable of enforcement in its present form. There is no general opinion that the time has as yet arrived to take it out of the field of highway regulations by the provinces and put it into the field of criminal law by the section of the dominion. We believe it would be a much wiser move to adopt the sugges-45781-20
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tion of my hon. friend and send it back to the law enforcement officers of the provinces with the suggestion that they might consider whether, from their close experience with the matter, it should be put into effect.
I could continue to go into detail about the rest of the bill, but there is no purpose in my doing so. I do not think the Department of Justice, or I as its head, could take the responsibility of urging upon the members of the house the enactment of this bill. By that, I do not mean to imply there is not a great deal of merit in the hon. gentleman's bill or that many of the points he has incorporated in it, unfortunately with some accompanying disabilities, could not be carefully considered by the committee set up to revise the criminal laws. If my hon. friend has no objection, I believe that is the course we should like to follow in any event. In its present form, however, we could not recommend the passage of this bill to the members of the house.


Thomas Langton Church: As mover of the bill, Mr. Speaker, I believe I have the right to reply. I want to thank the minister for the extremely courteous reception he has given to this bill, but there are some matters which I should like to point out to him. I think we should have a legal committee to consider bills of this description. The House of Commons has never had a chance to revise the Criminal Code, except once, and that was when the code was first passed.


Mr. Fauteux:: I rise to a point of order, Mr. Speaker. I am sorry to interrupt my hon. friend, but I understand that he has already spoken and that on the second reading of a bill a member is not supposed to speak twice.


Thomas Langton Church: I was just referring to the fact-


The Acting Speaker (Mr. Beaudoin):: Order. I believe that the hon. member for Broadview asked for the opportunity to make a few further remarks following those which have just been made by the Minister of Justice (Mr. Garson). When he rose in his place, the hon. member mentioned the fact that he was merely taking the floor again in order to reply to the remarks made by the Minister of Justice.


Some hon. Members:: Yes.


The Acting Speaker (Mr. Beaudoin):: Therefore I believe the hon. member should be permitted to take that attitude and have the floor.


Thomas Langton Church: May I point out to you, Mr. Speaker, that I was ready to close the debate. I wish to offer some constructive suggestions to the government. I do not wish to disobey any of the rules of the house; far from it.

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With your permission, Mr. Speaker, I want to say to the minister that the rules with regard to the motorcar-and I refer simply to the provincial part of it-have been only to the effect that buses are required to open their doors. The constructive suggestion I had was this. If a penalty or fine of $50 were put into the code-because it takes two to make an accident-then the average person would have to stop before he entered the highway.
With regard to the appointment of a committee, I think that is a wise thing. I appreciate that fact. Its members are all fine lawyers and judges and all that kind of thing. They know more about the matter than do ordinary laymen. I have no objection whatever to the appointment of the committee. That is the only right and proper thing for the justice department to do. On it are some of the ablest men at the bar that we have in this country.
I want to point out to the minister that I really believe the time is coming when we should have a legal committee of the two houses of parliament to go over all these suggestions, as has been proposed by my leader. When the committee makes its report, I hope it will include some provision covering fires in homes and people who leave infants two years of age unattended in them. There should be some proviso. I hope the committee considering amendments to the Criminal Code will bring in some clause imposing a penalty on those who violate the law, resulting in the death of little children who have been left unattended in houses that have burned. I think that would be a wise proviso.
When the committee bring in their bill, I know they will probably have some suggestions to make. I hope that the house and the country will get some real law reform out of their efforts. I think one of the most important suggestions in this bill for law reform is with regard to the Summary Offenders Act. Over in England half the prisons have been closed as a result of it, and the expense lessened accordingly. The working classes-and there are a great number of them in the industrial ridings in our district in Toronto-have no opportunity to pay fines. They are too poor. As a result, only the wives and children are penalized. When the suggestions of the committee come down, I hope they will show that some improvement has been made along these lines.
I want to thank the minister for the courteous reception he gave the bill, and I hope and believe that we shall have a better Criminal Code.


Arthur Leroy Smith: I should like to say a word about this matter, Mr. Speaker, and it will be brief. I am saying it
fMr. Church.]
as a suggestion to the committee that are now studying this subject.


Thomas Langton Church: I have not withdrawn the bill.


Arthur Leroy Smith: I may say to
every one of them that I think you have a splendid committee engaged in this matter at the moment. But before we get through, I think we should get rid of an anomaly that exists. I am following up with respect to what we call motor manslaughter. Manslaughter by a person driving a motorcar is when you kill someone and you are guilty of negligence in that killing. The law has always been that you are guilty of manslaughter if it arises out of that negligence. But some years ago we made a change in the code and permitted a jury to find a person not guilty of manslaughter but guilty of reckless driving. But reckless driving is the sort of negligence that makes a man guilty of manslaughter. I know the courts all disagree with me, and they have worked the matter out in an ingenious way. But, as far as I am concerned, if manslaughter is the killing of a person as a result of negligence, then there is no foundation for what, in all our provinces, all our courts have done in permitting a jury to find a man guilty of reckless driving. Reckless driving is of course negligence. If the man is dead, it is manslaughter. But in all the provinces I think all our decisions are the other way.
That situation arose through sympathy in juries who did not want to find a person guilty of what he was guilty of, namely manslaughter. So they took the easy way out- and I speak, sir, both from the prosecution side and the defence side. It was sympathy that prompted them to take the easy way out and to find reckless driving where the penalty was less. I have often thought that our great difficulty in the whole business was in our terminology. To say that a man is guilty of manslaughter is to do something which shocks the conscience. It disturbs everybody terribly. I think we are using the worst name we can possibly use. For that reason, juries being composed of sympathetic people-they have been when they agreed with me, in any event-they are frightened by that word "manslaughter" and so is the whole public. The jury gets together. I am not supposed to know what takes place in the jury room; but as is well known, there is an infiltration to the ears of counsel on odd occasions. The jury are all frightened by this terrible word "manslaughter" where, if a man is found guilty, he may be imprisoned for life. This "life" is a tremendous thing in the eyes of the public and in the eyes of jurors. It seems to me that if we could eliminate a couple of words it would have a beneficial effect. One

of them is "life", because we know that nobody sentenced to "life" ever serves "life" unless he dies before a certain number of years have passed. We know that this word "manslaughter" is a terrific thing. You think of slaughter houses and hitting an old bull, like one of those raised by the hon. member for Dufferin-Simcoe (Mr. Rowe), on the head with a blunt axe or something. It terrifies everybody, and properly so.


Douglas Charles Abbott: That would not be manslaughter.


Arthur Leroy Smith: I did not hear what the Minister of Finance (Mr. Abbott) said. However, I think his kind of bull is different from the kind raised by the hon. member for Dufferin-Simcoe. If we could eliminate some awfully terrifying words from our Criminal Code we would find less difficulty-perhaps I should not call it difficulty -we would find less facetiousness in some of the verdicts of this country.
Once more I want to compliment you, sir, and this government on the personnel of this committee which I saw working for at least two weeks during the time that we were not members of parliament. They are working hard and I think will come up with something which' will satisfy the hon. member for Broadview (Mr. Church).
I commend him for introducing this bill, because he has put has finger on some very serious difficulties in connection with the administration of our criminal law.


The Acting Speaker (Mr. Beaudoin):: I
understand the hon. member for Broadview has indicated his wish to withdraw the bill.


Thomas Langton Church: I would consent to the minister's suggestion and have my bill sent to the committee to be considered.


Stuart Sinclair Garson: Yes, we will send it to the committee considering criminal law.


Thomas Langton Church: Send the bill over there.


The Acting Speaker (Mr. Beaudoin):: Has
the hon. member permission to withdraw his bill?


Some hon. Members:: No.


Stuart Sinclair Garson: On a point of order, perhaps I should make it clear that the committee I referred to is not a committee of this house. Therefore after second reading of the bill there is no way by which we can send it to that committee. My suggestion to the hon. member was that the government or the Department of Justice could not recommend the bill to the house but we would be glad to submit it in its present form, with particular emphasis on the substance of it, to the committee which has been set up to re-
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vise the Criminal Code, to which the hon. member for Calgary West (Mr. Smith) referred.


Thomas Langton Church: What would they do, consider the bill?


Stuart Sinclair Garson: Yes.


The Acting Speaker (Mr. Beaudoin):: understand that the hon. member is withdrawing his bill.


Gordon Graydon: Subject to the undertaking of the minister.
Bill withdrawn.



SUPREME COURT ACT


[Stage Direction]
The house resumed consideration of the motion of Mr. Garson for the second reading of Bill No. 2, to amend the Supreme Court Act.
Louis-Philippe Picard: Mr. Speaker, as I was saying just before the house took recess, one of the objections raised by certain provincialists to the principle of this bill is that a federal court could not be an impartial judge in conflicts of jurisdiction between the central government and the governments of the provinces. This is an argument that is based on wrong premises and was refuted on Friday last by the Prime Minister (Mr. St. Laurent) when he said, as reported at page 198 of Hansard:
Courts of justice have to be strictly objective and cannot regard themselves as the arbitrators of any party, but as the authority to decide between contending parties. That is the only sort of judicial body that can have the responsibility that has been exercised and discharged by the privy council.
The Prime Minister then rightly concluded that the present measure had as its object the:
.... substitution of one body of men for another body of men to pronounce upon conflicts which may arise in connection with provincial or minority rights. I cannot see how it could have any effect unless one takes the view that the body of men we intend to substitute are not as reliable as the body of men for whom they are being substituted. I am of the opinion that the body of men we intend to substitute will not be inferior in ability, in integrity or in learning to the body of men for whom they are substituted.
On this point, Mr. Speaker, it is to be noted that Canada is not the only confederation where jurisdictional disputes between states or provinces and the federal authority may exist; yet no other nation in the world is in Canada's position of having to go outside the country to a court of another state for the interpretation of its constitution. The United States, Switzerland and Australia are the three countries where the settling of

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jurisdictional disputes between constitutional authorities can be more suitably compared to our problems.
When presenting his amendment the leader of the opposition (Mr. Drew) said, as reported at page 194 of Hansard:
Questions have been raised as to the interpretation of constitutional matters by the Supreme Court of the United States, and it has beeil suggested there that it has not been wise in every case to place upon the Supreme Court of the United States the onus of actually writing the constitution. Because of that very fact the Supreme Court of the United States has in certain cases become the centre of political controversy. I should hope that, by every device within the wisdom of this parliament in both its houses, the respect for the Supreme Court of Canada will be preserved by keeping it aloof from anything that might savour of controversy.
I think, Mr. Speaker, it should be first admitted that the controversies which arose in the United States were more as between the executive and the judicial than as between the states and the federal authority. Every strong-minded president has had fights with the supreme court, because of its disallowance of federal laws. The question of states' rights was seldom referred to the courts by the states themselves, but rather by private interests trying to evade the consequences of federal legislation. Robert H. Jackson, who is now sitting on the supreme court, says in his book, "The Struggle for Judicial Supremacy": "States' rights have tended to become a vested private interest in federal impotency rather than a positive privilege of the states themselves."
It is generally admitted that the supreme court in the United States has seen its power considerably expanded and has become through its own interpretations a supreme arbiter between states and federal rights, although no such authority is mentioned in article III, sections 1 and 2 of the constitution of the United States, defining its duties. Section 2 reads:
The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens or subjects.
As Jackson says:
The exercise of a reviewing authority over state legislation, especially when supplemented by similar view of congressional enactments, made the court the arbitrator of those most persistent and difficult of our intergovernmental conflicts, those between state and nation. This has come about-

He confirms what I just said by reading tne constitution. I repeat:
This has come about although there is no express grant of jurisdiction over controversies between state and nation as there is over those between two states.
Yet it was found necessary through the development of the states for the supreme court to become the arbiter between the states and the federal government. What objection is there to our supreme court becoming the same arbiter between provincial and federal rights? Be that as it may, the United States in 1787 did not find it necessary to keep the appeals to the courts of their former mother country to decide their jurisdictional disputes. That country has had the benefit of a great national juridical institution that has nobly filled its part in the orderly development of United States governmental institutions.
The Swiss faced the same situation and it took them some time to reach a workable system of jurisdictional interpretation. Their difficulties were more in the nature of conflicts between the laws affecting the interests of private individuals of different cantons than disputes between the states and the central authority. I think that the first constitution of Switzerland that may be of interest to us as a point of comparison with our own situation is the constitution of 1848 which represented a compromise between federalism and centralization. No matter how much of an improvement it made over the period preceding, that constitution did not prove perfectly suitable. But it did promote unity in the country, equality between its citizens, and a reasonable degree of uniformity in the laws of the different states or cantons.
That constitution did establish a federal court but it had had jurisdiction over disputes between cantons or between the federal government and a canton only in matters which did not concern public law. The general task of watching over the observance of the constitution, the federal laws and the concordats was entrusted to the chief executive organ known as the federal council; jurisdiction over constitutional disputes between cantons was reserved to the federal legislature.
However, this procedure was found to be impracticable and cumbersome and was changed in 1874 when a new constitution was enacted, which constitution has remained in force until now. It has succeeded in doing away, as much as could be expected, with conflicts of law as between the different cantons. At the same time the federal court was granted wider jurisdiction by the constitution of 1874 so that it then became really

the supreme court of the land. The judges were appointed by the federal government and not by the states, as some people may want to do in our country. You never can tell, but we may be faced in this house with the proposal that while the principle is all right, the judges should be appointed partly by the provinces. In none of the confederations of which I have studied the institutions does the constitution provide for that procedure.
The federal parliament or the central authority appoints the judges to the high court or supreme court of the country. Nor do the statutes of any of these three confederations outside of Canada provide that a certain unanimity shall be asked from the judges who sit on that court on matters considered by the court. This may come before us and I think we should now settle in our minds that that would be a false premise to follow. We should continue with the supreme court that we have now, to be amended by the present bill.
The Swiss found a way to adjust their jurisdictional disputes through the medium of a federal supreme court and nobody has ever doubted the integrity and ability of those federal judges to interpret the constitution and to decide as between state and federal rights.
In Australia a federal high court was established by an article of the constitution and its jurisdiction is either conferred by the constitution or derived from parliament. The court has original jurisdiction by the constitution in all matters arising under any treaty; affecting consuls or other representatives of other countries, in which the commonwealth or a person suing or being sued on behalf of the commonwealth is a party; between states, or between residents of different states, or between a state and a resident of another state; in which a writ of mandamus or prohibition or an injunction is sought against an officer of the commonwealth.
Their parliament may also confer original jurisdiction upon their high court in any matter arising under the constitution or involving its interpretation arising under any laws made by the parliament, and so on. In that country the high court is supreme in connection with questions of jurisdiction as between state and federal rights.
It would be a sad state of affairs if we in Canada could not express the same confidence in the integrity and competence of those who may be called to sit as members of our highest tribunal. The time has arrived for Canada to assume all the attributes of nationhood. Let us rejoice that we are privileged to sit in a parliament that will take the necessary steps to emancipate us definitely. Let
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us rejoice that a Canadian statesman, the Prime Minister (Mr. St. Laurent), has had the courage to take the matter openly to the Canadian people in the course of an election campaign. Let us rejoice that our people had reached sufficient maturity and had enough pride in their nationhood to give such an overwhelming mandate to the man who spoke to them so frankly.
Before I take my seat may I remind the house that the Liberal party has been first and foremost in the emancipation of Canada. History recognizes that Laurier carried this country from its status of a colony to that of a dominion. It will also bear out that Mackenzie King raised it from the status of a dominion to that of a sovereign nation. Today, after consulting the people of Canada, the present Prime Minister is taking steps to erase the last vestiges of colonialism from our institutions. Strange as it may seem to my hon. friends opposite, the people of Canada seem to like it because they gave Laurier fifteen years of office, they kept at the helm Mackenzie King for the longest period any commonwealth or empire Prime Minister ever enjoyed the confidence of his people, and exactly three months ago today they returned the present Prime Minister witl. the largest majority in Canadian history.
Let us carry on the will of the people. Let us tonight, on this anniversary of that unequivocal expression of popular will, pass this measure with a sense of pride and satisfaction at having taken Canada one more step toward its glorious destiny as a sovereign nation.


Mr. J. L. Gibson (Comox-Alberni):: Mr. Speaker, it is with a certain amount of temerity that I rise to take part in this debate, realizing as I do that I follow'' distinguished legal luminaries and will be followed by other gentlemen who are noted in that field. At the outset may I say that as a Canadian I feel that I can support the general principles of this bill. However, there is one feature on which I should like to have some enlightenment which I am sure some of the distinguished legal gentlemen on the government benches will be able to supply.
It seems to me that in this particular case we are to some degree setting Quebec apart from the other provinces of the dominion. 1 hasten to assure you that I understand that the civil code of that province is different from the laws applying to the other nine provinces of Canada, but I still feel that there must be some way of overcoming this difference. Since coming down here in 1945 it has been my privilege to become the friend of a great number of members of parliament from Quebec. It seems to me that we give
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less than full measure of credit to their generosity, their tolerance, and their confidence in the rest of Canada, when we provide by statute that they should have some special protection. From my knowledge of my colleagues from the province of Quebec, I must say that I trust them sincerely, and I hope that I enjoy their confidence as they have always led me to believe that I do.
This is the twenty-first parliament. Canada has come of age. She is twenty-one parliaments old, and, if it ever existed, I think it is time we should forget the fact that there is a minority in Canada. I myself am the product of Scotch, Irish and English ancestors and a Protestant. I think in numbers that particular combination may be a minority in Canada. I have the feeling, however, that my French-speaking compatriots are the same Canadians that I am. In dealing with this particular measure in the twenty-first parliament of Canada, it would be a wonderful thing if we could say that we trust those Canadians who speak French, and that those Canadians who speak French trust us.
The people of Canada from coast to coast have just elected as Prime Minister an eminent barrister from the province of Quebec. Every province but one has given him its complete confidence. We have said to him in effect that he can appoint nine members of the supreme court. We have said to him that we trust him because we know he will be fair. I should like to believe that all the people of the province of Quebec share the same confidence in their Prime Minister that the rest of the provinces of Canada do. I am quite sure from the representation that the province of Quebec has sent to this house that the people of Quebec feel the same as we do in British Columbia and the other provinces. I do not think that Canadian public opinion would tolerate anything less than a complete measure of fairness to any minority. I am not willing to concede that French-speaking Canadians are a minority in Canada. As I said before, like myself they are Canadians.
I do not think the Canadian parliament has to demonstrate by a rigid statute that we will be fair to any section of our population. I do not intend to move an amendment to the bill when it reaches the committee stage. I think it would be a most difficult thing for any hon. member of the house either to vote to delete that clause or to retain it. I think it would be most difficult to define our feelings in that regard, but I hope that the Minister of Justice (Mr. Garson) and the Prime Minister will give consideration to removing it if it is possible, and at the same time retain that measure of confidence on the part of the people of Quebec that we all desire so much.
rMr. Gibson (Comox-Albemi).]


Mr. E. D. Fulton (Kamloops):: In rising to speak on this matter, may I say at the beginning that I believe it is one which should certainly be approached, as far as one can clo so, entirely free from prejudice, whether political or personal, and passion. I am going to endeavour to carry out that belief in the remarks I am about to make, but I feel that there are considerations which should be put before the house again in support of the amendment moved by the leader of the opposition (Mr. Drew) that the bill be deferred for six months.
There have been three main points advanced by speakers on the government side in support of the bill, one by the Minister of Justice (Mr. Garson) and two by the Prime Minister (Mr. St. Laurent). I should like to deal with those points briefly before going on to advance some contrary reasons why the six months hoist should be approved. The first point, made by the Minister of Justice, was made, I believe, in the first paragraph of his speech when he said that Canada suffers under two badges of colonialism, one of which is, as he put it, the fact that we have not a court of final jurisdiction in that we still have appeals to the privy council.
To my mind, Mr. Speaker-and I say this with deference

unfortunately that is an appeal to prejudice. I felt that it destroyed the validity of much that the minister said subsequently because it is so easy to make a general statement such as, it is a badge of colonialism, and thus to arouse all the feelings of nationalism, and to oppose the argument of those who do not favour the measure, by the suggestion that those who disagree are colonially minded. If you go on doing that, you soon get away from intelligent discussion, and the discussion proceeds on the basis of prejudice. I feel that something should be said about the question whether it is a badge of colonialism. Surely the proper definition of a badge of colonialism is that the country suffers under some disability. If it is unable to exercise its full sovereignty, then certainly I would agree that would be a badge of colonialism. But that is not the case here. We have had the right for eighteen or nineteen years, ever since the Statute of Westminster, to abolish appeals to the privy council. We have not yet chosen to do so, but the mere fact that we can do so at any time that it pleases us to do so seems to me to make it- again with deference to the minister-a ridiculous suggestion to say that our failure to do so is a badge of colonialism.
I would remind the house that the Statute of Westminster was passed while a Conservative was Prime Minister, the late Lord Bennett. As a free nation, a full nation, and a

sovereign nation, as we are and as we have been since the Statute of Wesminster, if we choose to say, "No, we find that there are certain advantages in keeping our right to appeal to the privy council and of our own accord we are going to keep that right," then I suggest that is the mark of a fully grown, mature nation. I suggest that it would be the mark of a childish nation to allow our feelings to be swayed by the unfounded statement that it is a badge of colonialism and, as it were, to throw out our chest and say, "Now I am a man, away with all the former trappings; we will have no more appeals to the privy council."
I think there is a great deal to be said for the more sane and sober approach, that this matter should be viewed on the basis of the question: Where do Canada's best interests lie? Will our interests be served by maintaining the right of appeal to the privy council? I believe we should approach the problem from that point of view, and that point of view alone. As I say, to my mind the minister's speech, based as it was on the first assertion that the retention of appeals was a badge of colonialism, loses what would otherwise have been a good deal of its validity.
The second point was made by the Prime Minister, in the course of his reply to the leader of the opposition, when he used words to this effect: If you believe that in Canada we are capable of setting up a court and finding men capable of being judges so that we can erect a court of final jurisdiction which will be a credit to Canada, then you will vote for the bill; but if you believe that we are not capable of doing that in Canada, then you will vote against the bill. I feel that that argument, Mr. Speaker, must also be rejected as an appeal to prejudice.
We are not arguing that the bill should be delayed because we cannot find or cannot build up in Canada a court competent to be a court of final jurisdiction. We are saying the bill should be delayed because there are considerations which should be borne in mind, which should be discussed and perhaps acted upon in order to make that a competent court of final jurisdiction, and that those things should be done before the bill passes. The Prime Minister (Mr. St. Laurent) certainly was not accurate in his argument; and I think he was not accurate because in this respect he is a partisan. I use that word in its proper meaning; he is a partisan of the point of view that the Supreme Court of Canada must be made the final court right now, and that appeals to the privy council must be abolished right now. That is his view. From a reading of his speeches and
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his statements I gather that this has been his view for some time. He is a partisan of that point of view, and that has led him to make that statement. As a result of his partisanship he sees in the mind of everyone opposed to his views some suggestion that we in Canada are not capable of building up a supreme court which can be a court of final jurisdiction. That is not the case at all. We have other grounds for opposing the passage of this bill at this time, and those grounds I shall advance in a few moments.
The third point to be made in support of the position of the government, and quite a strong point, is that only recently they received a mandate from the people to carry through this project and abolish appeals to the privy council. As I say, to me that seems a very strong point, but I do not think it is unanswerable when put forward as an argument in favour of passing this bill right now in its present form. After all, Mr. Speaker, the mandate received by the Prime Minister was to abolish appeals to the privy council. As I read his statements made at that time, nothing much was said about the details of the constitutional changes which might be presumed to accompany that step. Now we find the proposal to abolish appeals to the privy council brought into the house and being pressed through without any detailed indication of what other constitutional changes are to accompany it or follow it.
It may be that the provinces will have views as to what provisions should be enacted in reference to this question of amending the constitution in Canada. I do not know, and no hon. member of this house knows, what their views will be; but I do say they should be given an opportunity to meet at that constitutional conference and put forward their views, if they wish to do so, before this bill becomes law. In effect this bill is an amendment to the constitution, both directly and indirectly. I believe that statement can be made for the reason that while the Supreme Court of Canada at the present time is set up under a statute of the federal parliament, and what we are doing here is amending that statute, nevertheless if this bill becomes law our supreme court will become the court of final jurisdiction with respect to constitutional appeals. So, from the day this bill becomes law, if a constitutional conflict arises it will be settled by the Supreme Court of Canada.
As I will show in a moment, there is nothing in the bill which even says the law in effect at the present time, by virtue of the various interpretations placed upon the constitution by the privy council, shall be carried forward into the future if this bill passes.

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So we might And that in the very first case to come before the Supreme Court of Canada they would place an interpretation upon the constitution very different from the interpretations which have been placed upon it by the privy council. So almost directly, and certainly indirectly, we are providing machinery to amend the constitution. A moment ago I said I would make my address without appealing to prejudice, so I shall try to use reasoned words. I say it is unwise to proceed with this bill at the present time, before holding the conference forecast in the speech from the throne and giving the provinces an opportunity to put forward their views as to what should be the constitution of this court which we are making the court of final appeal, so it will have their confidence and the confidence of the people of Canada- as we on this side, as much as those on the other side, want it to have-as a court competent to have final jurisdiction in constitutional questions.
Some may say that I am drawing a long bow, that it is pretty far-fetched to suggest that, the day after this bill passed, the supreme court might place an altogether different interpretation upon the constitution. Well, here we are passing laws, and I think we have to examine all the possibilities if those laws go into effect. That is a possibility. Certainly that is so in view of the statement by the chief justice on June 2 nf this year, to which reference has been made already in this debate, in which he is reported as having said that the supreme court is not now bound by the decisions of the privy council, and particularly that we should not be bound by the decisions of a court which, as he said, is four thousand miles from here, where they have not the same mentality. Certainly I think it is within the bounds of possibility that almost immediately a completely different interpretation will begin to be placed upon the constitution, once this lav/ becomes effective, unless the legislation contains some safeguard against that possibility.
Another reason for saying that this is a constitutional change which should not be proceeded with at the present time, or until the other constitutional procedures have been worked out with the provinces, is that surely it is desirable to avoid anything which might destroy confidence in the court. The Supreme Court of Canada is the creation of the federal parliament alone. That being so, its constitution can be altered at will by a simple majority vote of this house. In the history of this country, as in other countries, majority votes have been taken as the result of appeals to prejudice and passion. I believe it is correct to say that in some instances those who have taken part in these majority votes have

perhaps regretted their action, or it has shown that the action was unwise or taken in haste. That could happen again.
I repeat that our Supreme Court of Canada is the creation of the federal parliament. It is not a part of the constitution, as is the case with the Supreme Court of the United States. In that country the supreme court is provided for in the constitution, and a change in the framework of the supreme court there involves a constitutional amendment, with a two-thirds vote of the states and a two-thirds vote of both houses of congress. So a change in the composition of the Supreme Court of the United States is very difficult to achieve; yet it has taken place within our own generation, and the change has been made for purposes which cannot be said to be other than political. One does not wish to cast aspersions on the United States, but the simple fact is, as we recall, that the Supreme Court of the United States has been packed by the addition of judges in the hope that those judges would hold the same political views as the administration of the day and therefore would give decisions favourable to that administration. That has happened in the country to the south of us, although the change in the constitution of their court is so difficult. How much easier it would be, how much more possible for the same sort of thing to happen here, where the composition of the Supreme Court of Canada is not provided for in the constitution but in an act of the federal parliament.
If we look at it from that point of view, Mr. Speaker, we can see what we are being asked to do by the passage of this bill. We are being asked to set up a new framework within which our constitution can be amended. In the speech from the throne we find a further indication that amendments to the constitution will be suggested with respect to those things which are under federal jurisdiction, and that a conference will be called to discuss the means of amending the constitution with respect to those things which are not entirely the subject of federal jurisdiction. This certainly suggests that the government feels that it is quite proper that it should decide which fields of legislation are federal and which are provincial. If the government feels a certain thing is within the federal field, then it will amend the constitution by an act of the federal house. I believe that is the position taken by the Prime Minister.
We have a court which, by this bill, we are making the court of final jurisdiction; yet the constitution of this court can be amended by a vote of this house. What tremendous possibilities are open to the federal government to say something is a

matter of federal jurisdiction and pass a law accordingly, then if any conflict arises sub-of the Supreme Court of the United States made the final court, and ask them to say whether they are right or wrong. What a tremendous field is opened up by such a situation! Hon. members may feel I am painting a far-fetched picture and that no responsible government would attempt to circumvent the constitution by such an obvious ruse. I only remind you again, Mr. Speaker, that a similar attempt was made in the United States in our own generation, and it succeeded even though the alteration of the constitution of the Supreme Court of the United States is much more difficult than the alteration of the composition of the Supreme Court of Canada.
It is not that we are opposed to the idea of making the supreme court the court of final jurisdiction, but for these reasons we feel it would be more statesmanlike, more conducive to national unity in Canada if, before proceeding with this bill with its far-reaching possibilities, the government were to summon the conference to deal with the constitution and receive the views of the provinces, the other parties to confederation. With those views in mind, the government could arrive at a method of amending the constitution, including a constitution for the supreme court which would be acceptable to, and would have the confidence of, all parties in Canada. I believe I can speak for this party when I say that, if that approach were made, it would certainly have the confidence of this party and, I presume, of the party opposite.
I believe I speak for this party also when I say that to hurry this bill through the house, with all the potentialities I have described, before calling that other conference could not do otherwise than inspire a lack of confidence in the motives and procedure being followed by the government.
Up to the present time I have been dealing with the points advanced by the government in favour of considering this bill tonight, and also in support of the resolution for a six months hoist. I realize that the six months hoist sounds ominous. I know how often it is used with the intention of killing a bill. We are at the beginning of a parliament, however. No one on this side is questioning the fact that the government has received a mandate to carry out these changes. Supposing it is alleged that is our motive in suggesting a six months hbist, what good would be accomplished? There will be another session next year, another session the year after, and one the following year. The government majority is not going to shrink too quickly. In looking at the faces
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of the members opposite, I may say they all appear reasonably healthy. I see no reason to suppose that, during the life of this parliament, the government majority will vanish overnight. There will be plenty of opportunity to implement this legislation. It is not necessary to push it through as the first business of the first session. I believe there are very compelling reasons why it should be delayed until a constitutional conference can be held.
Government speakers have made reference to prominent Canadian statesmen and jurists who felt Canada should abolish appeals to the privy council. I should like to refer to one prominent Liberal statesman, who I believe was minister of justice at one time and who did hold that view while he was a cabinet minister in Canada. Upon further reflection, he changed his opinion. Edward Blake, the minister to whom I refer, spent years advocating the abolition of appeals to tfie privy council. Later, he went to England and spoke in the House of Commons, of which he had become a member. In referring to this matter in the British House of Commons in 1900 he used these words, which are reported in an article in the Canadian Historical Review, volume 27, at page 267:
X speak from experience; because I know in the country whence I come, while a different set of circumstances obtains and there are different provisions, there is yet a written federal constitution; and it was found with us that where bitter controversies had been excited, where political passions had been engendered, where considerable disputations had prevailed, where men eminent in power and politics ranged themselves on opposite sides, it was no disadvantage but a great advantage to have an opportunity of appealing to an external tribunal such as the judicial committee, for the interpretation of the constitution on such matters.
I believe the remarks of Blake on that occasion are applicable to the controversies which have been raging in Canada within the last few years. Unfortunately, all the circumstances which he described have occurred and the feelings to which he referred have been aroused. In my view that is a statesmanlike utterance. Not only that, Mr. Speaker, but I believe it represents the true state of the facts. In such a circumstance, it is no disadvantage but a very great advantage to have an opportunity of submitting your differences to a judicial body quite removed from the heat, passion and prejudice of the discussion which has taken place.
Let me make this quite clear, too, that in taking the position we have in advocating this six months hoist we reject absolutely the suggestion that has been made-without hesitation, I say improperly made, whether it be made by the Prime Minister or anyone else -that we do not believe the Supreme Court of Canada is capable of being the court of final jurisdiction. We have no such feeling.

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We have the utmost confidence in the supreme court. We have the utmost confidence in the men who sit on the supreme court. We have the utmost confidence that other great and qualified men, capable of being judges of such a court, can be found in succeeding years. Our lack of confidence is in the ability of government-and, Mr. Speaker, I am not referring to this particular government. Our lack of confidence arises because we know that governments or those who form them are politicians and as such are subject to political prejudices and passions as human beings. We know that governments have been known to interfere with the constitution and with the composition of the courts.


George Alexander Cruickshank: The hon. member is talking nonsense now.


Edmund Davie Fulton: What we want to do, in so far as is possible in this country, is to see to it that the court which is set up in Canada as the court of final jurisdiction is a court which cannot be interfered with in that manner. That is our reason for moving the six months hoist.
There is another matter to which I wish to refer, and perhaps it is more a matter of detail than anything else, Mr. Speaker; it is the omission from this bill of any provision which would preserve the principle of stare decisis. This principle has been referred to before. It is not a legal matter of interest only to lawyers but is a matter of interest to every one of us as Canadians, because that principle means simply this. It means that law is a settled thing and that the circumstances under which a man finds himself today-that is, his rights, privileges and duties-shall be the same tomorrow, and that we cannot change the law overnight, as it were, so that we suddenly find ourselves with a different set of obligations, rights and duties. That is the basis of the principle of stare decisis. It means that you follow a set of consistent laws; it means that if one court has decided so-and-so, then the same court with perhaps different judges will be bound by that decision and cannot start off at a tangent. It affects every one of us in our daily lives, and I think it is a matter of great regret that the government has not seen fit to embody that principle firmly in this bill.
I have referred to the statement of the chief justice. It is only a newspaper report; and while I am not suggesting that he has been inaccurately reported, it may be that the reporter did not quite appreciate what the chief justice was saying. But it certainly gives rise to misgivings to find that the chief justice is reported as saying that we are not bound by decisions of the privy council,
	!
when we all thought that we were bound by them because of that principle of stare decisis. If there is no such principle embodied in this act, then on the day after the act becomes law, it is possible that the court can say: We are not bound by those former decisions and we are going to decide quite differently.
There are plenty of precedents for the embodiment of that principle in legislation when constitutions are set up or changed. My own province of British Columbia has it in the Laws Declaratory Act. I believe every new province of Canada which was created subsequent to confederation had a similar statute, the effect of which was that the law as interpreted by the courts, as in effect at the date that the constitution of the province was established, shall continue to be the law in effect from that day forward.


George Alexander Cruickshank: Is that British Columbia's idea now?


Edmund Davie Fulton: That is the statute of the province of British Columbia as found in the revised statutes of the province issued last year. I have it here before me. It is on the basis of that statute that I am making my statement.
As I say, there are plenty of precedents for it, and all it means is that it gives us a guarantee that the law as it exists today will be the law for tomorrow, without the possibility of a sudden overnight change. One recognizes, of course, that as time goes on the courts place different interpretations on the previous decisions. But one of the reasons that they modify the laws only gradually is that they regard themselves as bound by that principle of stare decisis. It is in our laws at the present time. If that principle were not incorporated in the act, the court would be free to launch out on any new tangent that it might choose to follow and change all the precedents overnight. I certainly believe that no restriction would be imposed upon the court and that a great deal of certainty would be engendered if such a provision were inserted in this bill.
I think the words I have put forward are all I have to say in this respect, Mr. Speaker. In conclusion I repeat that there is no suggestion of colonialism in a free and fully sovereign country saying of its own accord, if it wishes to do so, that we will preserve to ourselves the right or the opportunity, if we wish it, to submit disputes on questions between ourselves, where we know that passion and prejudice may be aroused, to a body not open and subject to that passion and those prejudices. We have had the right to end that for nearly twenty years. The fact that we do not exercise that right of

our own accord cannot be said to be a badge of colonialism.
Finally I just want to emphasize again the fact that in voting for the six months hoist, as I intend to when the vote is called, there is no suggestion of lack of confidence in the present supreme court within the realm of the duties for which they have been appointed; nor is there any suggestion of lack of confidence in our ability to set up a supreme court which may be a court of final jurisdiction. But I believe that there is a lack of confidence in various quarters of Canada or lack of certainty that the court as now constituted,-and I refer not to the personnel of the court but to the constitution of the court as such,-will, without anything further, command that confidence which we all want to see it command, when it is created, as it should be, a court of final jurisdiction.


George Alexander Cruickshank: I did not want to interrupt the hon. member when he was speaking but I should like to ask him a question.


@Acting Speaker: Order.


George Alexander Cruickshank: I am only asking a question. It is this. Can the hon. member who has just spoken tell me one municipality or one city which agrees that we should not abolish the appeal to the privy council? He brought the municipalities into it. I would ask him to tell me one municipality.


Edmund Davie Fulton: I do not believe I mentioned any cities or towns. I do not know of any that expressed an opinion.


George Alexander Cruickshank: The hon. member mentioned municipalities and he mentioned British Columbia.


Edmund Davie Fulton: I do not believe they have been consulted.


Mr. Daniel Mclvor (Fort William):: I should like to take this opportunity, Mr. Speaker, to make a few brief comments. To those of us who were born in the old land and got our start there, breaking the tie with the old land causes us to think. I do not think lightly in any way of the great benefits that have come to Canada from the people of Great Britain. I would say that the tie that binds us to the old land is stronger than a legal tie. It is the tie of the home, and the affection of a mother.
I must admit, as I sat on the other side of the house ten or twelve years ago listening to the Hon. C. H. Cahan, a former cabinet minister and an outstanding legal gentleman, I heard him say with great enthusiasm that Canada's connection with the privy council of Great Britain should be abolished. At that time I was rooming with a bright legal mind and we talked this thing over. During
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those years I came to my own conclusion.
I am not a lawyer but on many occasions I have been thankful for the advice that these bright minds have been able to give to me and keep me out of difficulties.
The reasons why I am going to support the motion are three. They are very plain and they are clear to me. The first is, as was stated by some others, it would cost too much.
I know an hon. member from Toronto said that he had a case appealed to the privy council. Well, that was all right if the city of Toronto was paying the bill. But suppose it was a farmer who had a car of cattle. He sold the cattle to a packing house and something went wrong, and he had to go to court. Suppose the case was appealed to the privy council. What farmer in Canada or anywhere else could pay a corporation lawyer's fee to go over to England to fight his case? He simply could not do it; it would cost too much. That is the first thing that the common people of Canada think a good deal about.
The second thing is, it is too slow to take a case to the privy council. I should like to ask the Minister of Justice (Mr. Garson) the history of some of those cases. They do not take three months or six months but several years, and the costs pile up all the time. We in Canada like to have a thing done. We like to get through it, win or lose, get back and settle down to business. Therefore I say that one of the outstanding arguments against appeals to the privy council from our Canadian courts is that they are too slow. We want action.
My third argument is this. Those of us who took quite a while to get through our courses know that our universities are thorough. They give a thorough training. I do not know much about our law schools except from the men who have come through them. I know that our law schools have been pretty thorough in training our young lawyers, and we have outstanding examples of that on all sides of the house. We know that the men are well trained. I have reason to think that the jurists of Canada need not take second place to the jurists of any country in the world, even Great Britain. Therefore I say that it is a slight to our jurists of Canada to have to send our cases across to the privy council. Our jurists understand Canadian life and are more familiar with it than the British jurists, who perhaps have never been out of the old land in their lives. We have a peculiar life in Canada. It is all our own. It is a blending of all the nationalities of the world, you might say, and we think we are the cream of the world and we are the best in the world. Therefore I say that it is a mistake to send our appeals to the privy council. These three reasons stand out, Mr. HOUSE OF COMMONS
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Speaker. I support this legislation because it costs too much to send appeals to the privy council, it is too slow, and our jurists are the equal of any in the world.


Mr. G. F. Higgins (St. John's East):: Mr. Speaker, I propose to speak in favour of the amendment moved by the leader of the opposition (Mr. Drew). I should like to advise hon. members that I do not intend to reiterate all of the arguments used by hon. members who spoke in favour of it, but I entirely agree with anything they have said. It is my intention to ask you, sir, to direct your attention to one point only, namely, that in this bill should be written a clause whereby the former decisions of the privy council would be followed.
I may say, Mr. Speaker, that of all the decisions of the privy council in the past eighty-two years, the most important one, so far as we of the province of Newfoundland are concerned, is that one which is popularly known to us at least as the Labrador boundary decision. I do not want to be thought entirely provincial in speaking this evening, but this matter is of such importance to us that I cannot help referring to it particularly. I may add that the decision of the privy council of March 1927, or a reference to it, was incorporated in the terms of union between what is now the province of Newfoundland and the Dominion of Canada.
Paragraph 2 of the terms of union states:
The province of Newfoundland shall comprise the same territory as at the date of union, that is to say, the island of Newfoundland and the islands adjacent thereto, the coast of Labrador as delimited in the report delivered by the judicial committee of His Majesty's privy council on the first day of March, 1927, and approved by His Majesty in his privy council on the twenty-second day of March, 1927, and the islands adjacent to the said coast of Labrador.
That particular provision was inserted in the terms of union for one specific purpose, namely, to allay the fears of the people of my province-and I am sure hon. members of the province of Quebec will excuse me when I say this-of the aspirations of the province of Quebec toward our territory of Labrador. When speaking a few days ago I said that so far as we of Newfoundland are concerned this decision is of paramount importance. A great body of iron has been discovered in Labrador, and the great body of ore which has been discovered in Quebec is, practically speaking, a continuation of the same body. Our ore body lies immediately adjacent to what is presumed to be the line of demarcation between the province of Quebec and our territory of Labrador. As hon. members

know, the paragraph in the terms of union which I read says:
The coast of Labrador as delimited in the report delivered by the judicial committee of His Majesty's privy council.
But the joker in that particular wording is this:	It has been delimited but it has never
been specifically marked out. I understand that that demarcation is taking place at the present time, but it is not final as yet, and no final decision as to the boundary is in existence at the present time. You can understand how that might bring about a reconsideration of the decision in this matter.
I am informed that some time in 1947 a survey was made by the Quebec authorities from which a supposedly official map was drawn. I saw that map myself and it takes in approximately 100 miles of our territory in Labrador containing a valuable part of the iron ore concession. I remarked the other evening that the premier of Quebec stated last year that he intends to reopen the decision of the privy council in this particular matter. If that is done, then greater importance must be given to the statement by the Chief Justice of Canada as quoted by the hon. member for Vancouver-Quadra (Mr. Green) and by the hon. member for Kamloops (Mr. Fulton). I assume that the chief justice was correctly reported because no objection has been raised in the intervening time. If what he says is true then Newfoundland may be in for a little trouble. I am sure you will bear with me when I repeat what the chief justice is reported to have said. He is reported to have said: Why should we in Canada accept something that has been said four thousand miles away? Then the chief justice went on to say that the Supreme Court of Canada is the final court of the land and hence is not bound by judgments of the privy council.
If that opinion is the correct one then it may well be that we in Newfoundland who have surrendered our sovereignty by joining this great dominion may now be placed in the position where we will lose a valuable part of our territory to another province. Is it fair that at this early stage of our becoming one of you we should be in fear of such a thing happening? Let me assure hon. members from Quebec that I have nothing but the kindliest feelings for them and for all the people of Quebec, but this matter is much too serious as far as Newfoundland is concerned not to be referred to in the way I have.
I should like to quote from Hansard and from the resolution passed by the Canadian Bar Association. I do not need to read all that resolution because I think hon. members are quite familiar with it, but I should like

to direct particular attention to one part of the resolution which was referred to by the Prime Minister when he was replying to the leader of the opposition. The Prime Minister is reported on page 197 of Hansard of September 23, 1949, as follows:
As to the resolution adopted by the Canadian Bar Association, I think it is worthy of great respect because I believe that all those who attend such a meeting, as do those who attend meetings of other professional bodies, attempt to act objectively and to give their fellow citizens the benefit of the best kind of opinion and advice they can tender. I think perhaps the most important provision of this resolution is that when the appeal to the privy council is abolished, provision should be made that the court consist of nine judges; and there are various organizational provisions that are contained in the legislation now submitted to this house. But subparagraph (g) of the resolution reads as follows:
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.
That is something with which I entirely agree.
I presume the Prime Minister was speaking on behalf of the government. If he agrees with that part of the resolution, then why not have it written into this bill? The Prime Minister went on 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 oE lower jurisdiction, until they are modified or set aside by legislative action.
Was there any modification or was there any setting aside by legislative action before the comments attributed to the Chief Justice of Canada were uttered? Certainly no such action was taken.
The previous speaker seems to have a good opinion of lawyers, or at least of some lawyers, and he seems to value the Canadian Bar Association highly. If you are going to build a house or make alterations in a house, what do you do? You call in an architect and obtain his opinion. But what has happened in this particular case? We are planning here to make alterations in our legal house and we have received the advice of the finest architects in the country. Judging from some of those that I have met, I would say that they are possibly the finest legal architects in the world. I am referring to the Canadian Bar Association.
These architects of the Canadian Bar Association have made definite recommendations with respect to the alterations proposed in this legal house of ours. Are you going to be wise and follow the recommendations of those architects whose business it is to give wise advice, or are you going to follow your own ideas? This matter is in our hands.
In so far as disputes between private individuals are concerned, I can see that there would be justification for such a bill, but
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when there are disputes between provinces to be settled it seems to me that we should have an independent tribunal to adjudicate the matter. If anyone can present a sensible argument against that contention I shall be glad to hear it. As Lord Hewart has stated, it is necessary not only that justice be done, but that it should seem to be done. In conclusion may I say that, in view of the proposed early consultation with the provinces, in view of the recommendation of the Canadian Bar Association, and in view of there being no logical reason for haste in the passing of this bill, the only sensible thing to do is to vote for the amendment moved by the leader of the opposition.


Mr. R. E. Anderson (Norfolk):: I should like to speak for a short time in support of the bill and against the amendment. I am a new member of the house, and being a farmer I do not know the finer points of law. From a practical standpoint, however, the bill seems to me to be reasonable and sensible. My forefathers came from Great Britain, and no man here could owe greater allegiance to Great Britain or be more patriotic. That allegiance is exceeded only by what I owe the Canada that gave me birth and a stake in this grand dominion.
I live with my family and my grandchildren in the county of Norfolk. I believe I shall have to apologize to the hon. member for Fort William (Mr. Mclvor) for what I am about to say because I may seem to be quoting him, but I had no opportunity to revise my remarks. I refuse to admit that there are in any country in the world men of greater ability, greater knowledge of legal affairs, more sensible, or better able to legislate for Canada than Canadians. Six months will make little difference in their qualifications. We are proud of our pioneers, we are proud of our soldiers, we are proud of our statesmen, we are proud of our Prime Minister (Mr. St. Laurent) and the government. Let us be proud of our judges and show our faith in them. I follow the leadership of the Minister of Justice (Mr. Garson) who is sponsoring the bill.


Agar Rodney Adamson: I wish to speak very briefly on this subject as a layman. We have heard a great many speeches by lawyers about the abolition of appeals to the privy council. I should like to give the point of view of one who has not been trained in the profession of law. May I say that in many ways I wish I had been trained in the profession of law because I have a very great admiration for lawyers, and I believe anybody who belittles the legal

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profession does so for reasons of jealousy or otherwise.
Twenty-two years ago this month the late Hon. Hugh Guthrie was discussing in this house a similar proposition. He set forth the difficulty of explaining the federal system, under which we have our constitution, to the privy council. At that time it was his opinion, expressed both in and out of the house, that there would be difficulty in having the constitutional difficulties of a federal system properly appreciated by a body of men who trained under a central government parliament, learned though they might be in the law. I think that has been demonstrated to be correct. I think that the history of the last quarter of a century has shown that decisions have been made by the privy council which indicated that possibly they did not appreciate the peculiar system of the Canadian federal constitution. That being so, there is strong reason for some revision in the status of the court of final appeal, but there are also great difficulties involved.
As I see it, the danger is not that of colonialism, but it is the danger, if, as and when we establish a court of final and absolute appeal, of the imposition of a one-party state. Hon. members may think that is perhaps remote, but I should like to remind them that there is grave danger of that happening during the life of the twenty-first parliament of Canada. If I were Minister of Justice one of the reasons why I would proceed slowly with this measure would be because of the overwhelming majority of the present administration. When there is an overwhelming majority it is a very simple and short step to a feeling of omnipotence. We have an indication of that on this continent in the example of what happened in the United States supreme court. You may say that the impact of the United States system has nothing to do with us because the constitution of the United States is not the same as the constitution of Canada. That is so, but nevertheless it is a federal constitution and its impact upon Canada, both economically and politically, is great.
Speaking as a layman, there is a great danger of the court of last resort being appointed by one political party. There is also the danger of the changing position of government in the state. There is also the danger and the possibility of a party being elected to power whose ideology is not that in which the vast majority of the members of the present house believe. That leads to the possibility, not now but should such a change take place in the composition of this house, of the appointment to the Supreme Court of Canada of politically sympathetic

justices. You may say that cannot happen. It certainly has happened in the United States, and in that connection I want to quote just one paragraph from the United States News:
Supreme court is expected to shift sharply to, the right in decisions to be made during the approaching term.
Justice Tom Clark is likely to add his weight to the non-radical contingent of justices on the nation's highest bench.
Radical bloc of four promises to be reduced to a minority of two active justices at the session that begins in October.


George Alexander Cruickshank: What are you quoting from?


Mr. Speaker:: Order.


George Alexander Cruickshank: He has to say what he is quoting from.


Agar Rodney Adamson: If the hon. member were able to listen as well as he is able to interrupt-though perhaps at the moment whether or not he can hear is something only he can determine-he would have heard me say that I was quoting from the United States News.
Having said that, Mr. Speaker, having seen what has happened in the United States, where we see a court that admittedly swings to the left or to the right, while we are operating under the federal system there is the danger that some time in the future we may face the same problems and difficulties that have arisen in the United States, i do not say there would ever be a packed court, but I do say there is the danger in future of having a court representing the political views of the administration in power rather than administering the laws as this supreme court of parliament wrote them. That was thought to be impossible in the United States, but it happened. All the Roosevelt appointees have contributed to a revision of constitutional law which shifts the protection of constitutional guarantees, speaking broadly, from the individual entrepreneur to organized collectivist associations. This has resulted in the enlargement of the discretion of legislative assemblies and more particularly of administrative agencies. Thus the trend toward the eclipse of the due process of law in the economic field, the alteration of the federal system by commercial and taxing powers, the decline of judicial review and the growth of absolutism have been fostered.
If this did not so closely fit the apparent over-all direction of the central government in Canada it would not be so alarming. Unfortunately, however, it quite accurately describes what the apparent policy of our government is and has been for some time. For this reason I believe in caution in dealing

with this irrevocable matter. The law must be administered objectively. That is why I am supporting the amendment.


Arthur Leroy Smith: Mr. Speaker, may I assure you and the house and the minister that I shall not speak long enough to delay a decision this evening.


George Alexander Cruickshank: At least you will know what you are talking about, which is more than can be said for the last speaker.


Arthur Leroy Smith: In reply to that remark I wish I could say there were two of us, but I am afraid I cannot make that statement at the moment.
If we were to take the opinion of the so-called man in the street, who after all is the man who sent us all down here, I am sure we would find that opinion overwhelmingly in favour of the abolition of appeals to the privy council, to put it in one short sentence. And if the minister had brought in a bill couched in that simple language I believe it would have received a tremendous amount of support from the people of Canada. But the matter is not quite that simple; and because that sentiment is so prevalent throughout Canada it seems to me that we who are here, who have to agree on the terms of legislation, who, if you will, seek to carry out the general will of the people, have imposed upon us perhaps a special duty to examine this legislation with the utmost care, first to see that their will is carried out, and second to see that in altering a status which has existed for scores of years we do not run into some pitfalls which would cause those people holding that point of view to criticize us for having failed to properly achieve their main objective.
Speaking personally, I have heard many discussions of this matter throughout the years. I have given it considerable thought and I say publicly now that broadly speaking I have been and am now in favour of the abolition of appeals to the privy council. I have taken that position for a great many years, and I still take it.


An hon. Member:: Will you vote accordingly?


Arthur Leroy Smith: Someone says, "and vote accordingly". When I have finished perhaps that hon. gentleman will not care to make the same remark. Together with that view, however, I have also held the reservation that somehow or other I wished to find a referee or umpire in connection with jurisdictional matters as between the provinces and the dominion. If we play games we try to have them on neutral ground, and we always try to have referees who do not live in either of the contesting towns. That
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is a natural human instinct. We do not say we do not trust our opponents to provide good referees; we simply say we will see that they do not have a chance to do anything else. So I have thought-I must say I am weakening to some extent-that we should not do the great big sweep all at once. In 1931, I believe it was, we eliminated appeals in criminal matters. I think now we certainly should eliminate appeals in civil matters; and to a great extent I agree with the statement of the hon. member for Fort William (Mr. Mclvor) that the question of cost is a very serious matter. It is a just criticism that appeals to the privy council cost money. Many people have not the money to carry the appeal to the ultimate court. I agree with that, so that is one of the many reasons which impel me to say I believe those appeals should be abolished. After all, that is merely a matter of dollars or of property, and that is about the only remaining appealable matter between person and person. I am therefore heartily in favour of the abolition of those appeals.
I shall not repeat many of the arguments which have been made with respect to jurisdiction as between the provinces and the dominion. I do not want someone to recklessly throw the statement at me that I am being political if I say what I have in mind. May I immediately add, sir, a compliment to you, the minister and the members of this house for the very high plane upon which this debate has been conducted. Listening to this debate, I have not heard a political word from either side of this house.
It does seem to me, however, that we have heard the constitution discussed. What is our constitution? Originally, it was the British North America Act of 1867, with such amendments as have been passed and such separate statutes as have been passed as, for example, the statute doing away with colonial laws validity, and the Statute of Westminster. We have not only that act, with its statutory amendments, but the interpretation of the act by our own Supreme Court of Canada and the privy council. This now forms a part of that same constitution. In a sense, it is an approach to what we call the constitution of the United Kingdom. There is not a word written, but it is a growth from precedent to precedent and is now as plain as can be. It seems to me that, in the light of that experience, the judicial interpretation has now become part and parcel of our constitution. We should do nothing to destroy that position.
I am not saying this bill does destroy it, but I realize that if we are to have a final court of appeal in Canada we cannot hamstring that court. We dare not do that. The

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fact is, however, that unless we have some qualifying restriction it is open to that court to throw out all the decisions of the privy council which are today a part of our constitution and, in that way, permit that court to write a constitution which should be written in this House of Commons.
When the provinces of Alberta and Saskatchewan were created, about 1905, there was a clause written in to the effect that the law of the provinces should be the law as it was on July 1, 1870 or 1871. That simple provision has never been found to hamper our courts in any way. At the moment I am inclined to think that a simple declaration of that character should be inserted in this court statute. This could be done easily without hurting anyone's feelings, and yet this simple provision would ensure that our constitution would not be changed by a court. The constitution would remain the same as it was on the day the statute came into effect. If there is anything wrong with that, I hope the minister will tell me about it in his reply. My examination, sir, leaves me in a position where I cannot find much wrong with it.
I turn now to one other feature, and with that I shall conclude. A few weeks ago I was in Banff with the Prime Minister (Mr. St. Laurent) and the Minister of Justice (Mr. Garson). We were all old members, perhaps too old, of the Canadian Bar Association. I am happy to remember that when the convention was held in Calgary some time during the thirties I had the honour of entertaining the president of the bar association in my home, the president being the Prime Minister of Canada at the moment. We have been very close to this question for a long time. It never received the attention it should have received from that body until recently. As we all remember, a private bill covering the matter was introduced by Mr. Jaenicke, who was then with us. I am inclined to think it was not introduced with sufficient consideration. I do not think there was any discussion on the matter in this house prior to the introduction of the bill by the late Mr. Cahan. I observe that the bill before us is practically in the same language as that used by Mr. Cahan.
At the moment, I am pleading for deliberation. I know the resolution of the Canadian Bar Association was brought forth because that organization felt it owed to the public a duty which had not yet been discharged- whether it be because of lack of opportunity or for any other reason does not matter. The bar association had not given the matter sufficient study. I look at the situation now and I say to myself, "Why is the matter so

urgent?" At the moment, I am aware of no appeals extant to the privy council concerning jurisdiction. There is one, I recall, carried by the Canadian Federation of Agriculture with respect to something called margarine. By the way, I had some margarine the other day in my home and I did not know it was margarine. This is the only outstanding case of which I am aware.
This parliament is going to meet next year. The Canadian Bar Association has a large council and, if I remember correctly-the minister will correct me if I am wrong-that council was to give further study to the matter. The council meets half-yearly. I realize that this six months hoist is attached to an effort to kill something. It is regarded by many of us in this room, and by a large section of the public, as a smart political trick in killing legislation one does not like.
Now, having said what I have as to my views, and I will at least be here for a year or two barring an act of God, because it would take an act of God to put me out of Calgary West as the minister knows, it will be seen that I am generally in favour of abolition. 1 am not satisfied, however, but I am open to conviction if you like, on this question of jurisdictional appeals, involving as it does the interpretation of our constitution.
Let me agree with many hon. members who have spoken. It is easy to say that we have just as good lawyers in Canada as there are anywhere in the world. We can get desk pounding without any trouble by assertions of that kind which are generalities and really mean nothing. But I think we have just as good lawyers in Canada as there are anywhere. I have no doubt that we have. But over there in England at the moment there is a court which has been creating precedents and dealing with these matters not only from the Dominion of Canada but from other dominions, colonies and dependencies throughout the British commonwealth; it is a court which has had much experience. Without casting any aspersions at all on our judges of the Supreme Court of Canada, I would say that they are human. I may appear there myself some day, and I know they are human enough that I should not say anything against them here, and I do not intend to do so. Let us have no doubt about that. But the judges in these courts are human beings.
This court is in a sense a dominion court. Its members live in Ottawa; they stay in Ottawa. While I will admit that they have all the attributes of Caesar's wife, they are nevertheless an Ottawa court. There is not

any doubt about that. As we are all going to be here for quite a while, I am asking the minister in all sincerity why this matter cannot stand. The debate has not been a long one. We have been on it for a matter of only a couple of days. I would ask why we cannot just let this matter stand. To do what,
I may be asked. I reply: First, in order to permit cloudy-minded members like me to make up their minds on that one important point. Second, to permit the bar association and its council to study the matter. As the minister well knows, they are not self-seeking people. They are people who are seeking in this manner to do the best they can for the Dominion of Canada. With the greatest respect and deference, Mr. Speaker, I am suggesting that the government do it in their own way. I say: Never mind the six months hoist. Do it your own way. You have the bill in your possession and have control of it. Get rid of all this criticism there might be if a six months hoist amendment passes. Let this thing stand. We have one hundred new members in this house; and, except for those who belong to this profession, I greatly doubt if any of them have ever before considered this matter in their lives. Why not let it go until next February, when we shall be back, in that way giving the Canadian bar a chance to make their views known? The government will lose nothing in prestige. I think we will solidify opinion along the way that I indicate, and that is along the way of abolition. But we will do it with practically a unanimous house. To me it seems a terrible thing that we who are so close together as we are, thinking together as we are, should come to an unfortunate disagreement or division, if you like. I think it would be a tragedy, because I credit every member of this House of Commons with the desire to do his best with this subject for the people who sent him here and for the people of the Dominion of Canada as a whole.
(Translation):


Mr. Wilfrid LaCroix (Quebec-Monlmorency):: Mr. Speaker, I have only a few remarks to make and I shall be as brief as possible.
On June 6 last, at a memorable meeting held at St. Roch, the Prime Minister (Mr. St. Laurent), speaking about the Canadian flag and the abolition of appeals to the privy council, stated the following:
The more such actions we take to assert our national independence, the sooner we shall achieve this absolute independence which we desire.
Needless to say, Mr. Speaker, I entirely share this view of the Prime Minister and I
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shall be pleased to vote in favour of the principle expounded during the debate on the second reading of the bill now before the house. This being said, I think it is our duty as members of the House of Commons, representing the people and the views of our provinces and our constituencies, to give careful consideration to the circumstances to be determined when we shall establish the Supreme Court of Canada.
I recently read in the September 19 issue of a Quebec city newspaper, L'Evenement, the following comments on the bill introduced by the government:
For that purpose, as everyone knows, the government will introduce a bill whereby the Supreme Court of Canada will become the final court in this country. The principle of that bill could hardly give rise to objections. Indeed no one can see why an outside court-the judicial committee of the
privy council in London

should be called upon
to solve the juridical problems of Canada. It all depends on the composition of the supreme court. Nowadays its members are appointed by the central authority. Without their scrupulous honesty being questioned in the least, it may be thought that they are naturally prone to decide in favour of federal arguments when these run counter to others. That is what Mr. Maurice Duplessis has already stated, and it must be admitted that his views are justified in that respect.
And that is an excerpt from a Liberal newspaper, published in Quebec city by a Liberal senator who is the owner.
Mr. Speaker, I believe it my duty to make a few suggestions to the government concerning this matter.
I note that section 4 of the bill reads as follows:
The supreme court shall consist of a chief justice to be called the Chief Justice of Canada, and eight puisne judges, who shall be appointed by the governor in council by letters patent under the great seal.
I wonder if it would be possible to have four of those judges appointed by the Canadian government from a list submitted to it by the lieutenant governors of the provinces. I do not specifically mention the province of Quebec but the lieutenant governors of the provinces.
As we have not yet reached the stage where each section is examined, the object of that suggestion is not that the provinces may themselves appoint the supreme court judges. I understand the problem which exists and which is as follows: the lieutenant governors in council cannot appoint the judges of the supreme court. This authority is vested in the federal government. Any change in this would call for an amendment to the constitution, that is to the British North America Act, 1867, which provides specifically that

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the judges of the supreme court shall be appointed by the federal authority.
Indeed, section 96 of the imperial act specifically states that the governor general shall appoint the judges of the superior courts. Section 101 of the same act further stipulates that the parliament of Canada may, from time to time, provide for the institution and organization of a general court of appeal for Canada and for the maintenance thereof in order to ensure a better administration of the laws of Canada.
It is therefore in accordance with the latter clause that the present measure is enacted to organize our supreme court. We must not forget that our constitution is the result of a compromise and of an agreement between the various parts of the whole, especially between Upper and Lower Canada and the provinces of Nova Scotia and New Brunswick. That agreement and the act which followed guaranteed not only the rights of the minorities but also those of the provinces. It is unfair to dissociate the rights of the minorities from those of the provinces, because a province would be unable to protect its minorities, its way of life, its philosophy and its traditions, were provincial rights-and especially those revenues which enable a province to provide for the maintenance of her institutions-constantly pared down.
I refer, in particular, to the subsections of section 92 which empower the provinces to legislate for the founding, the upkeep and the administration, within their boundaries, of hospitals, asylums, almshouses and sheltering homes intended for their citizens as well as for municipal institutions within these same geographical limits.
If the Supreme Court of Canada, a federal tribunal whose members are appointed by the central power, provides the final, the ultimate guarantee afforded a province in the event of a conflict arising between the said province and the federal authorities, would it not be fair that a province, and more particularly Quebec, the minority province, be pledged a minimum guarantee?
It may be argued that the government intends to appoint three judges from among the judges of the Court of King's Bench. These three appointees will be chosen by the dominion government. I do not object to this section. I feel, however, that the autonomy of the provinces as well as the rights and privileges they enjoy under the constitution should be safeguarded. This could be done by the appointment of four judges, of unimpeachable honesty and integrity,

chosen from a list of candidates submitted by the lieutenant governors in council. Such a step would prove satisfactory to the provinces and, I believe, afford minimum security to the province of Quebec.
There is another proposal which I take the liberty of submitting to the government. Obviously, the suggestion need not be accepted.
I believe that the decisions of the supreme court on all constitutional matters should be unanimous.
Whenever an accused is tried before a jury for a capital offence, conviction can only be secured when the twelve jurymen bring in a unanimous verdict. That is the request I make on behalf of my province. If we are to be condemned to lose some of our rights to the federal government, I request that it be only after a unanimous decision-a decision from which there can be no appeal-by the court trying our case.
I believe that this amendment which I now propose to the Supreme Court Act is quite fair and reasonable and that none of the rights-and I do not say privileges- which were guaranteed to us in order to induce us to enter into confederation should be, I shall not say abolished, but even reduced without it being done by unanimous agreement and decision.
Otherwise the dissents of the judges would be such as to indicate to the people of my province that their rights were abolished by a majority decision of the supreme court.
I will not go so far as to ask that there be unanimity in camera, as in the privy council. On the contrary I would suggest that the government accept the principle of unanimity in the case of the supreme court, so that the provinces may be assured that the members of this court are at least agreed on matters of litigation, when dealing, of course, with legal or constitutional disputes.
These are suggestions which I intend to submit to the government and I also intend to suggest proper amendments when we are in committee on this bill.
(Text):


Some hon. Members:: Question.


Some hon. Members:: Eleven o'clock.


Mr. Speaker:: Is the house ready for the question? The question is on the amendment. Those in favour of the amendment will please say "Yea."


Some hon. Members:: Yea.


Mr. Speaker:: Those opposed to the amendment will please say "Nay."


Some hon. Members:: Nay.


Mr. Speaker:: In my opinion the "nays" have it. I declare the amendment lost.


George Alexander Drew: On division.
Motion (Mr. Garson) agreed to, on division, bill read the second time, and the house went into committee thereon, Mr. Beaudoin in the chair.
Progress reported.
Business of the House BUSINESS OF THE HOUSE


Mr. Casselman:: What is the business for tomorrow?


Mr. St. Laurent:: As determined by the motion which was adopted the first day, tomorrow we shall resume the debate on the address in reply to the speech from the throne; if that is disposed of we shall take up the other matters which are on the order paper for private members' day.


[Stage Direction]
At eleven o'clock the house adjourned, without question put, pursuant to standing order.
[Stage Direction]
Wednesday, September 28, 1949