1953-03-25

[Stage Direction]
Right Hon. L. S. St. Laurent (Prime
Minister): Mr. Speaker, fifty-two years ago, on the 8th of February, 1901, our predecessors in this house adopted an address of condolence to their new king to express their sorrow at the loss of a great sovereign lady, Queen Victoria. Twenty-seven years ago, on the 19th of January, 1926, the house early in the proceedings of that session paid its last respects to another great queen, Queen Alexandra. The influence for good throughout the far-flung British empire, and indeed throughout the whole world, of these great sovereign ladies had been very remarkable and far-reaching.
Today we meet to pay a respectful tribute to the memory of another great queen. All Canada mourns since last evening the passing of Queen Mary. Her Majesty's death will be a personal sorrow for Canadians, and indeed for all the peoples of the commonwealth. The wide scope of her work and influence can be measured, like that of her illustrious predecessors, by the universal admiration with which she was regarded. Her sympathy, kindness and graciousness over so many years have won all our hearts.
During the long reign of King George V and afterward, Queen Mary devoted herself to the welfare of her peoples, particularly to those who had suffered in the two world wars. 1 know that countless Canadian servicemen and their families will always be grateful for her kindly and active interest. The memory of the late queen will long be cherished throughout Canada and all the nations of the commonwealth which she had personally visited on more than one occasion. The example of her family life, her great charity and dignity, will never be forgotten. The sympathy of the Canadian people will go, I am sure, in fullest measure to Her Majesty Queen Elizabeth, to the Queen Mother, to Princess Margaret and the other members of the Royal Family; and to express it in the traditional form I move, seconded by the Leader of the Opposition, that a
humble address be presented to Her Majesty the Queen in the following words:
To the Queen's Most Excellent Majesty:
Most Gracious Sovereign:
We, Your Majesty's dutiful and loyal subjects, the Commons of Canada, in parliament assembled, approach Your Majesty with the expression of our deep and heartfelt sorrow at the demise of Her Majesty Queen Mary. We mourn the loss of Her Majesty, whose kindness, graciousness and great influence for good over so many years won the respect and admiration of us all, and there has come to each of us a sense of personal bereavement which, we say it with all possible respect and duty, makes Your Majesty's sorrow our own.
We pray that the God of consolation may comfort Your Majesty and the members of the Royal Family in your bereavement, and that Your Majesty may long be spared to continue the eminent public services of your great predecessors.
Mr. George A. Drew (Leader of the Opposition):: Mr. Speaker, in rising to join with the Prime Minister (Mr. St. Laurent) in the motion adopting the address of sympathy to Her Majesty the Queen, I simply wish to add a few words to those in which the Prime Minister has expressed the sympathy of every one of us and the sympathy of Canadians generally to Her Gracious Majesty the Queen and to the members of the Royal Family in the loss of one very dear to them and dear to all of us.
I am sure that not one of us will ever in our lifetime forget a picture which appeared in the press just about a year ago. It was a picture of three queens standing together in mourning, with faces of tragic sorrow, watching the beloved body of a son, husband and father being carried to its last resting place. Now one of those queens is gone. She has been so much a part of the life of every one of us that it is still difficult to realize that she has passed from this mortal scene. If anyone in any other country should ask today why it is that with disappearing monarchies in many lands our monarchy still stands so firm and strong, I think the answer is to be found in the characteristics displayed by Queen Mary throughout the whole of her life.
Her life itself was the best example of those great qualities of heart and mind and spirit which have been identified with our thoughts of royality. Her life was one of constant devotion to duty. It was the duty of her life as a mother, as well as a queen, that established her position in the minds of all who knew her.

The late Queen Mary
I know that there are many in this house who recall as I do the dramatic scene in London in 1935 when King George V and Queen Mary passed through the streets of London at the time of their jubilee. I think it came as a revelation, even to the people of Britain and certainly to the rest of the world, to see the outpouring of affection on the part of the people who were there and which indicated the place that Queen Mary as well as King George V had taken in the heart of everyone.
I remember also after they had returned from St. Paul's cathedral and came out on the balcony of the palace there were two young girls beside them at that time. One of them is the present Queen. To her the sympathy of every Canadian goes out at this time because of a deep bond of affection which endeared her to all of us. We extend our sympathies not only to a queen but to the granddaughter of a woman who will always command the respect of everyone who loves decency and the traditions to which we adhere.


Mr. M. J. Coldwell (Roseiown-Biggar):: Mr. Speaker, I am sure that all members of this house join in supporting this address. There are times in history when personalities often mark the end or the beginning of an era. With the passing of Her Majesty Queen Mary the last link with the Victorian era has been severed. That was the thought that came to my mind last evening when I learned that she had passed away.
All in this commonwealth, which in her lifetime was transformed from an empire into a commonwealth, revered this great lady, a wife, a mother and a queen. She was a stately figure whom we not only revered but recognized as a symbol of an age that has passed away.
In joining in support of this motion I do not think we can do better than to remember the great example of womanhood and motherhood that she gave to the people of the British commonwealth and the world.


Mr. Solon E. Low (Peace River):: Mr. Speaker, the group for which I speak would like to join with the Prime Minister (Mr. St. Laurent) and the Leader of the Opposition (Mr. Drew) in support of the address that they have moved, and also to be associated with the tributes they have paid to England's grand old lady. I had the privilege of meeting Queen Mary at Buckingham Palace in 1948. At that time I did not find her to be the severe dowager that she was so often portrayed; I found her to be rather more a queen. I was struck by her kindness of heart, by her regal bearing and 
by her remarkable self-discipline even although at that time she was eighty years of age.
Those who were well acquainted with Queen Mary say that she will be best remembered for her extreme neatness of mind and the probing thoroughness with which from the time she was a young girl she set about satisfying her intense curiosity about the world around her. Wherever she went or in whatever she was interested she brought order out of chaos and she gave unusual attention to little things.
Queen Mary was indeed a remarkable woman in many ways and she has left the imprint of her sterling character on the whole Royal Family. To us she had been for many years what others have so well referred to as a symbol of the royal idea in Britain, that come what may, the crown abides.
We join with all hon. members in this house in paying our deep respect to her blessed memory and in extending to the Royal Family our sincere sympathies in this time of their sorrow.


Mr. Speaker:: The house has heard the motion moved by the Prime Minister and seconded by the Leader of the Opposition. Will the house rise for a moment's silence? Whereupon the house rose in silence.


Mr. St. Laurent:: I move, seconded by the Leader of the Opposition, that the address be engrossed.
Mr. Speaker, I further move, seconded by the Leader of the Opposition:
That a message be sent to the Senate informing Their Honours that this house has passed an Address to Her Most Excellent Majesty the Queen, expressing the deep regret and heartfelt sorrow of the house at the demise of Her Majesty the late Queen Mary, and requesting Their Honours to unite with this house in the said Address, and that the Clerk do carry that message to the Senate.


[Stage Direction]
Motions agreed to.


Mr. H. W. Winkler (Lisgar) moved:: That the report of the civil service commission respecting the organization of the library of parliament laid on the table of the house on Tuesday, March 24, 1953, be now approved.


[Stage Direction]
Motion agreed to.

[Stage Direction]
SURPLUS CROWN ASSETS-MISCELLANEOUS SCRAP Mr. Robichaud:
1.	What are the particulars of the miscellaneous scrap sold to Sorel Industries Ltd., Sorel, Quebec,

for $6,847.31, as surplus crown assets, as shown at page 16 of the Crown Assets Disposal Corporation report for 1951-1952?
2.	Where was this miscellaneous scrap located at the time of the sale?
3.	Were tenders invited for the purchase of the said scrap?
4.	If so, what are the names, addresses and amounts of tender of each tenderer?

Mr. Balcom:: What were the fisheries landings and landed value by species for the years 1951 and 1952, district D23, Halifax, Nova Scotia (Peggy's Cove to Hubbards area)?


Mr. MacNaughl:: Species	1951	1952	Landings	Landed Value	Landings	Landed ValueCwt.	$	Cwt.	$Cod 	7,760	27,412	6,434	29,3842,699	13,420	2,619	13,7253,838	5,442	7,698	16,7521,213	1,934	859	1,55153	53	410	846	109	27328	440	6	12982	298	29	8256	8479	158	984	1,646	7,380	10,2128,967	31,986	5,238	38,64353	53	19	740	48	2,1821,276	8,871	1,202	7,9051,464	63,094	1,534	66,795103	645	82	17816	560	22	770Totals	29,044	157,598	33,316	188,668


AIR FORCE STATION, TIGNISH, P.E.I.-SURPLUS BUILDINGS
Mr. MacLean (Queens):: 1.	Have the buildings at the air force station in Tignish, Prince Edward Island, been declared surplus?
2.	If so, have they been sold?
3.	Were they sold by tender?
4.	If so, who was the successful tenderer, and what was the amount of the bid?


Mr. Blanchette:: 1.	No.
2.	Not applicable.
3.	Not applicable.
4.	Not applicable.


TELEVISION-SHORTWAVE RELAY CONTRACTS
Mr. MacLean (Queens):: 1. Has the Canadian Broadcasting Corporation entered into a contract with any company for the use of shortwave relay facilities between any point in the United States or the United States border and any city in Canada for the purpose of relaying television programs?
2.	If so, what is the amount of such contracts, for what period is each contract and how many hours of program have been transmitted over such systems to date?


Mr. McCann:: 1.	Yes, as part of a general contract with the Bell Telephone Company of Canada for a microwave network service connecting Toronto, Ottawa and Montreal together for Canadian television program exchanges, and with the terminal of the American Telephone and Telegraph Company in Buffalo for American exchanges.
2.	This contract sets the total annual basic cost for the Toronto, Ottawa, Montreal service, together with the Buffalo-Toronto connection, at $225,486 and it provides for a detailed tariff for occasional, duplicate and reversal service. The period of the contract is for 5 years commencing May 1, 1953. However, programs have been transmitted on the Buffalo-Toronto circuit on an interim basis since January 19, 1953, for a total of approximately 30 hours.

Questions


IGOR GOUZENKO
Mr. Diefenbaker:: 1.	Is the safety of Igor Gouzenko being assured by police or protective agencies?
2.	Has there been any suggestion that police protection is to be taken from him? If so, what justification can there be for following such a course?


Mr. Garson:: The hon. member for Lake Centre (Mr. Diefenbaker) and I have discussed this question and have come to the
conclusion that, under all the circumstances, it should be withdrawn.


Mr. Speaker:: Dropped.
FISHERIES LANDINGS AND VALUES, DISTRICT D20 Mr. Balcom:
What were the fisheries landings and landed value by species for the years 1951 and 1952, district D20 (Ship Harbour to Jeddore area)?


John Watson MacNaught: 1951		1952	
Species	Landings	Landed Value	Landings	Landed ValueCwt.	$	Cwt.	%Cod	11,000 4,907 3,430 695	40,445 25,940	6,922 1,421 3,400 815	28,273 7,999 6,800 1,679 304
3^ 694 821		
				
	56	93	152	
			1	10
88	157	169	338Halibut	722 5,613 3,810 2,580 2	16,740 9,608 23,150 3,450 13	603 12,098 1,227 1,526 1	14,075 24,542 6,125 2,302
7
17	680	39	1,735 3,47562	1,540	138	30	180	190	950140	2,866 161,998 50,030 94	154	3,4154,670 18,723 47	5,657 13,760 116	198,025 59,685 223
1	20
			3	35
	14	70		
				
	56,592	341,569	48,393	360,017


OLD AGE PENSIONS
Mr. Gingues:: 1.	How many persons received old age security
pensions in 1952,	(a) in Canada; (b) in each
province?
2.	What amount was paid by the federal government in 1952 for old age security pensions, (a) in Canada; (b) in each province?


Mr. McCusker:: 1.	As of December, 1952:-
(a)	680,579;
(b)	Newfoundland, 14,767; Prince Edward Island, 6,525; Nova Scotia, 36,048; New Brunswick, 25,621; Quebec, 146,617; Ontario, 253,188; Manitoba, 40,062; Saskatchewan, 39,947; Alberta, 39,430; British Columbia, 77,930; Yukon and Northwest Territories, 444.
2.	(a) $317,031,529.79.
(b) Newfoundland, $6,918,220; Prince Edward Island, $3,119,000; Nova Scotia, $17,030,077; New Brunswick, $12,106,960; Quebec, $68,506,576.66; Ontario, $117,821,610.43; Manitoba, $18,638,200; Saskatchewan, $18,577,545.70; Alberta, $18,264,040; British Columbia, $35,838,220; Yukon and Northwest Territories, $211,080.


SHAUGHNESSY MILITARY HOSPITAL
Mr. Cruickshank:: 1.	What were the amounts of the tenders for ice cream at the Shaughnessy military hospital?
2.	Which firm received the contract, and for how long?


Mr. Mutch:: 1.	One call for tenders was made for the supply of ice cream to Shaughnessy hospital, including Hycroft Wing, and George Derby health and occupational centre, for the period April 1-September 30, 1953. The following tenders were received: Shannon Dairies Ltd., Vancouver, $1,769.10; Arctic Ice Cream Co., Vancouver, $1,920.99; Palm Dairies Ltd., Vancouver, $2,193.90; Hazelwood Creamery Ltd., Vancouver, $2,235.60; Peters Ice Cream Co. Ltd., Vancouver, $2,504.33.
2.	Shannon Dairies Ltd., for six months.


CANADA-UNITED STATES    IMMIGRATION AND EMIGRATION
Mr. Higgins:: 1.	How many persons left Canada in 1952 to take up permanent residence in the United States?
2.	How many persons left the United States in 1952 to take up permanent residence in Canada?


Mr. Harris:: 1.	Statistics not maintained.
2.	14,013. This includes 4,707 returning Canadians.
IMMIGRATION AND EMIGRATION, 1952 Mr. Higgins:
1. How many immigrants entered Canada in 1952?
Questions
2. How many emigrants left Canada in 1952?


Mr. Harris:: 1.	164,498 were admitted to Canada.
2.	Statistics not maintained.


FISHERIES LANDINGS AND VALUES, GUYSBOROUGH COUNTY, ETC.
Samuel Rosborough Balcom: What were the fisheries landings and landed value by species for the years 1951 and 1952, (Guys-borough county. Port Bickerton and Liscomb areas)?


John Watson MacNaught: 


FISHERIES LANDINGS AND LANDED VALUE BY SPECIES FOR THE YEARS 1951 AND 1952 GUYSBOROUGH COUNTY, PORT BICKERTON AND LISCOMB AREAS
[Stage Direction]
1951				1952			
Species	C-16 Coddles Harbour-Port Bickerton Area	C-17 Liscomb-Marie Joseph Area	C-16 Coddles Harbour-Port Bickerton Area	C-17 Liscomb-Marie Joseph Area	Landings	Landed Value	Landings	Landed Value	Landings	Landed Value	Landings	Landed ValueCwt.	*	Cwt.	$	Cwt.	$	Cwt.	$Cod	30,023	96,257 69,361 5,188 6,414 30	7,233 6,635	22,813	30,411	104,839	9,062	27,41812,904 4,099 4,057 30	34,387	7,364	41,011	2,660	13,654834	1,288	6,635	8,262	2,189	3,3152,072	3,024	3,248	5,987	1,445	2,159
13	39		
1,306 407	2,142 7,092 703	175	217	996	1,825	228	32494	1,762	246	5,388	89	1,999346	16	19	136	338	2	34,065 5,472 11 31	4,395 16,182 11	654	1,368	3,367	3,400	2,164	4,328502	2,008	6,719	21,343	580	1,94024	44	1,220	65	2,536	20	800	107	4,39396	1,943	10	150	110	2,462844	39,558	2,073	57,074	2	303,026	73,389	3,301 293	73,415	3,849	105,536	3,912	104,937854	1,586	4,391111	3221,478 9	2,997 215	345	690	1,179	2,096	491	9491	20	4	79	15	270	
63,123	325,424	22,316	146,344	66,294	358,211	24,738	172,624


Mr. Fulton:: 1. How many contracts have been entered into in each of the three years ending December 31, 1952 for construction, alteration, etc. of buildings, or other installations, by each department or agency of government (except the departments of defence and defence production and any agency thereof, or crown corporation under the jurisdiction of the minister thereof, and excluding contracts having to do with atomic energy matters) without advertising or calling for tenders?
2. In the case of each such contract, what is (a) the date of the contract; (b) the location of the property (giving city or town and street number where applicable); (c) the name of the building (where applicable); (d) the department or departments or crown company or agency to be accommodated or other description of the purpose of the building as applicable; (e) the name and address of the builder or contractor; (f) the agreed cost of construction; (g) the final cost of construction; (h) the builders or contractors fee where the contract was awarded on a fixed fee basis?

Inquiries of the Ministry


LUNAM CONSTRUCTION COMPANY
Mr. Diefenbaker:: 1.	How many building or repair contracts have been granted to the Lunam Construction Company of Saskatchewan or the Lunam Construction Company Limited, in all departments of government other than public works, since the first of January, 1948?
2.	What were the contract prices of each of the said contracts and how much has been paid on account of each of them to the said company?
3.	Was work on one or more of said contracts discontinued by the said company before completion, and if so, in respect to which contracts?
4.	What did it cost to complete the contracts which were uncompleted by the said company?
5.	Were any materials or services unpaid by the said company?
6.	If so, what is the total amount of such materials or services on which any of the departments have notice or information?



MOTIONS FOR PAPERS


Mr. Robichaud:: For a return showing a list and the price of all materials and/or supplies purchased for any purpose whatsoever and the amounts paid out for labour in connection therewith, in any way concerning the Renous, New Brunswick, naval ammunition depot, during the year 1951-52 and from the 1st of April, 1952 to and including the 31st day of December, 1952, also a copy of the payrolls in any way concerning the maintenance of the said naval ammunition depot, during the year 1951-52 and from the 1st of April, 1952 to the 31st of December, 1952, inclusive.
He said: I have discussed this notice of motion with the Associate Minister of National Defence, and as the information will be available to me from other sources I now move to withdraw this motion.


Mr. Speaker:: Dropped.
fishermen's floats, cow bay, b.c.


Mr. Applewhaile:: For a copy of all letters, telegrams and other communications from the 1st day of January, 1951 to date, between the Department of Public Works and the government of the province of British Columbia or any department thereof respecting the proposed transfer of the fishermen's floats at Cow Bay, Prince Rupert, British Columbia, to the government of Canada from the government of British Columbia.


Mr. Fournier (Hull):: There is no objection to this motion passing, with the usual reservation that we obtain the consent of the province to the tabling of the document.


[Stage Direction]
Motion agreed to.


[Stage Direction]
On the orders of the day:
Mr. H. R. Argue (Assiniboia):: I should
like to direct a question to the Minister of

Trade and Commerce arising out of a news report this morning. Has the United States government placed further restrictions on the importation of Canadian dairy products? If so, is the government prepared to make strong protests to the United States authorities?


Right Hon. C. D. Howe (Minister of Trade and Commerce):: Word has reached this
department this morning that a complete embargo on the import of dried whole milk, dried buttermilk and dried cream becomes effective April 1. The existing controls on other commodities and products remain unchanged. These include the import embargo on dried skim milk, butter, flaxseed, linseed oil, peanuts, peanut oil and rice. The import quotas on cheddar and other types of cheese remain at the levels already in effect.
In answer to the second part of the question, I would say that the government has forwarded three strongly worded protests, the last within four weeks, and the government will continue to protest as effectively as diplomatic procedure will permit.



INTERNATIONAL WHEAT AGREEMENT-INQUIRY AS TO RESULT

[Stage Direction]
On the orders of the day:
Mr. J. G. Diefenbaker (Lake Centre):: should like to direct a question to the Minister of Trade and Commerce in connection with the international wheat conference in Washington. This being the last day of that conference, is the minister in a position to say whether or not he is still hopeful that an agreement is going to be reached?


Clarence Decatur Howe: Well, Mr. Speaker, I just
returned to Ottawa this morning. I have tried to get in touch with our representatives at Washington, but I have not been able to do so. I have heard indirectly that the meeting arranged for today has been adjourned for 24 hours. I presume that indicates that the representatives are still hopeful. I do not think I should tell the house whether I am optimistic or pessimistic about an agreement, because 1 do not think it makes any difference. As soon as a decision is arrived at I shall be glad to communicate it to the house.



COMBINES INVESTIGATION ACT


[Stage Direction]
On the orders of the day:
Mr. Arthur Laing (Vancouver South):: I
should like to direct a question to the

Minister of Justice. Has his attention been drawn to a very disturbing situation in the retail tobacco trade in Vancouver which seems to be induced by special discounts to large distributors?


Stuart Sinclair Garson: Mr. Speaker, I wish to thank my hon. friend for giving me notice of his question. The director under the Combines Investigation Act is conducting a general inquiry into the possible existence and extent of discriminatory pricing and its effect, particularly upon the smaller independent retailers.
In the course of this study cigarette prices will be considered as well as the prices of a large number of other representative commodities. The situations in Winnipeg and Vancouver have been brought to the director's attention and he is gathering information about them in connection with the study I have mentioned and also in connection with a study of "loss-leadering" which the director is also carrying out. These are general studies and that is why I am in a position to refer to them. As to whether the director is investigating any particular industry upon suspicion of contravention of the Combines Investigation Act or the related sections of the Criminal Code, I cannot, for the reasons that I have so often explained in this house, disclose information in advance of any report that may be made.



NATIONAL DEFENCE


[Stage Direction]
On the orders of the day:
Mr. Leon Balcer (Three Rivers):: Mr. Speaker, I should like to direct a question to the Minister of National Defence. Has the minister received any protests against the installation of a rifle range and other defence projects at Baie-du-Febvre, Quebec; and if so, what is the Department of National Defence going to do about them?


Hon. Brooke Claxion (Minister of National Defence):: Mr. Speaker, I have not had notice of this question. I shall be glad to take the question as notice and look into it.



UNEMPLOYMENT INSURANCE


[Stage Direction]
On the orders of the day:
Mr. Stanley Knowles (Winnipeg North Centre):: Mr. Speaker, I wish to direct a question to the Minister of Labour arising out of a Canadian Press dispatch of a day 68108-207i
Inquiries of the Ministry or two ago. Is it the intention of the government to introduce at this session amendments to the Unemployment Insurance Act so as to provide for the continuation of unemployment insurance benefits to recipients who are taken ill while on benefit?


Hon. Milton F. Gregg (Minister of Labour):: Mr. Speaker, while I join with all hon. members in welcoming back to the house the hon. member for Winnipeg North Centre, I am not in a position to answer his first question on his return.


Stanley Howard Knowles: I would rather have had an answer than the welcome.



FISHERIES


[Stage Direction]
On the orders of the day:
Mr.  W. Chester S. McLure@Queens: 
John Watson MacNaught: Mr. Speaker, I shall have to take the hon. member's question as notice and give an answer tomorrow.



EXCISE TAX ACT


[Stage Direction]
On the orders of the day:
Mr. Jean Lesage (Parliamentary Assistant to the Minister of Finance):: Mr. Speaker, yesterday the senior member for Queens (Mr. McLure) asked whether the Minister of Finance (Mr. Abbott) had received a letter from the fisheries council of Canada in which certain representations were made with regard to the Excise Tax Act. I may say that the Minister of Finance yesterday received a letter from that council dated March 23. The representations therein contained had already been submitted to the government by the Minister of Fisheries (Mr. Sinclair). They are now under consideration and I should be in a position to comment on them tomorrow, I hope, when we reach consideration of the amendments to the Excise Tax Act.

Emergency Powers Act EMERGENCY POWERS ACT



PROVISION FOR CONTINUATION OF ACT FROM MAY 31, 1953 TO MAY 31, 1954

[Stage Direction]
The house resumed, from Tuesday, March 24, consideration in committee of the following resolution-Mr. St. Laurent-Mr. Robinson in the chair:
That it is expedient to introduce a measure to amend the Emergency Powers Act to provide for the continuation of the act for a further period of one year, that is from the thirty-first day of May, 1953, to the thirty-first day of May, 1954.
George Alexander Drew: Mr. Chairman, I know that it
will bring some measure of satisfaction to the leader of the house when I tell him that it is not our intention to extend this discussion at this stage. We have presented the arguments which have been put forward in the hope that the government might reconsider its decision. That has not been done. There will be an opportunity to have a recorded vote when the bill comes forward for second reading. We intend to defer the vote until that time as there is no procedure by which a recorded vote can be taken earlier. I only hope that there will be no suggestion that, when we permit this measure to pass on this occasion, on division, it is to be taken in any way as qualified approval.


The Chairman:: Shall the resolution carry?


George Alexander Drew: On division.


Louis-René Beaudoin: Shall I report the
resolution?


Mr. Graydon:: On division. Do not forget that.
Resolution reported and read the first time.


Stuart Sinclair Garson: that the resolution be now read a second time and concurred in.


The Acting Speaker (Mr. Robinson):: Is it
the pleasure of the house to adopt the motion?


Some hon. Members:: Agreed.


George Alexander Drew: On division.
Motion agreed to on division and resolution read the second time and concurred in.
Mr. Garson (for Mr. St. Laurent) thereupon moved for leave to introduce Bill No. 279, to amend the Emergency Powers Act.


The Acting Speaker (Mr. Robinson):: Is it
the pleasure of the house to adopt the motion?


Some hon. Members:: Carried.


George Alexander Drew: On division.
Motion agreed to on division.


Stuart Sinclair Garson: that the bill be now read the first time.


The Acting Speaker (Mr. Robinson):: Is it
the pleasure of the house to adopt the motion?


Some hon. Members:: Agreed.


George Alexander Drew: On division.
Motion agreed to on division and bill read the first time.


The Acting Speaker (Mr. Robinson):: When shall the bill be read a second time?


Some hon. Members:: Next sitting.


The Acting Speaker (Mr. Robinson):: Next sitting of the house.


Gordon Graydon: On division.



CROWN LIABILITY


[Stage Direction]
The house resumed, from Thursday, January 29, consideration of the motion of Mr. Garson for the second reading of Bill No. 105, respecting the liability of the crown for torts and civil salvage.
John George Diefenbaker: Mr. Speaker, this bill is one respecting the liability of the crown for torts and civil salvage and represents another step in the removal of anomalies that go back to the thirteenth century in that it was a principle of British law and tradition that the Queen could not be compelled to answer in her own courts. That same protection was extended as well to petty lords who presided over petty manors. This bill is one that follows more or less the lead of the United Kingdom which in 1947 removed this anomalous condition, one no longer applicable to the present-day conditions for the reason that not only are the Queen and her subjects equals but that as well Her Majesty, through her council, not only engages in business but also *creates emanations of the crown which engage in competitive business ordinarily responsible only to private enterprisers.
I join with the minister in commending this step. It is one that is necessary, and has been necessary for a number of years. Indeed, since 1940 I have been advocating in the house the need for this change. Many other hon. members have done the same thing, because the principle that is being changed has no place in modern times. The fact that the United Kingdom gave the lead in this direction rather gives the answer to those who say that Britain is falling behind.
In 1947, when the legislation was introduced in the British house, there were still some who feared that the effect of the introduction of this legislation would be a

diminishing one on the authority or on the prestige of the crown. I thought today, as this house paid its homage to the late Queen, how much we in this country owe to the traditions ordinarily incident to the British sovereignty, and as the Prime Minister and the Leader of the Opposition, together with other hon. members, paid their tribute to the late Queen Mary one could not but be deeply impressed not only with the solemnity of the occasion but as well by the unity that binds us together and permits that continuity of succession in the monarchy that gives to our system of government a stability known to no other.
I suggest once more to the minister that, as the effect of this legislation will be to diminish the prerogative of the crown, he give the same consideration he did to the suggestion I raised on a previous occasion that the crown's prerogative cannot be diminished without specific reference to that fact. In other words, before third reading of the measure the minister will, in the British tradition, be required to state that the Queen's pleasure in this matter will be signified, and that the Queen, having been made aware of the purport of this legislation, recommends it to the house.


Stuart Sinclair Garson: I might advise my hon.
friend, Mr. Speaker, that in his absence, at the earlier stages of this matter that was signified.


John George Diefenbaker: It did not appear in the record.


Stuart Sinclair Garson: Yes, it did.


John George Diefenbaker: Two years ago, when the matter was before the house, I raised it at that time and the minister followed the suggestion. On this occasion the record did not indicate it, and that is the reason why I referred to it in passing.
Furthermore, I should like to say that similar legislation has been passed in four of the provinces. The time may not be far distant when this anachronism will have been entirely removed. My mind goes back to May 28, 1951, on the occasion that legislation -was before the house for the removal of fiats in respect of those types of action that the individual could then take against the crown under petition of right. The minister said on that occasion, at page 3481 of Hansard:
However, in recent years the expanding role of government has given more prominence to the position of the crown as a litigant in court proceedings. As the role of government has grown its activities have impinged much more frequently upon the citizens at large, and as a result there has been some increase in the volume of litigation between the crown and the subject.
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I asked on that occasion whether or not the government would give consideration to permitting action to be taken as against the crown for torts which, as the Minister of Justice has explained, are the wrongs, the nature of which he has outlined in detail. The answer given by the minister on that occasion was that he did not feel that such a suggestion merited attention at the time, and that it was not necessary.
A little later on, on the same occasion, I said this:
I suggest that having gone so far along the road in extending to the subject equality with the king, one thing more remains to be done, namely, to extend the rights of the individual so that there will, in fact, be in the king's court equality of the individual with the king and his representatives.
There has been quite a change in the attitude of the government in this regard in recent years. I go back to 1945, when the hon. member for Eglinton (Mr. Fleming), on December 13 of that year, asked a question, as reported at page 3467 of Hansard:
What progress, if any, is being made in the department with reference to the matter of petitions of right? It has been such a sore point for so long, and I think the courts and the bar are looking for some leadership in this matter. I know the Minister of Justice has had this matter brought actively before him for a long time. When may we look for some action in the direction of elimination of petitions of right in actions against the crown?
The minister of justice of that time is the Prime Minister of today and he replied most unequivocally in these words:
Not while I am Minister of Justice.
But the changing circumstances of the years brought about an introduction of this legislation; and while yesterday some question was raised by the Minister of Justice as to the contribution an opposition could make in parliament, may I say this, sir, that throughout the last years over and over again on this side of the house in Her Majesty's loyal opposition we have advocated these changes; and, through the creation of public opinion, final unanimity has been secured and they have been introduced.
Having said that, and having welcomed this legislation, may I make a few suggestions that I believe might be given consideration by the Minister of Justice, particularly when this legislation is in committee. The first is: It is not clearly set forth whom action may be taken against when there is any doubt as to the person or persons who committed negligence or who committed any other tort covered by this legislation. In the United Kingdom provision is made where there is any doubt that civil proceedings may be instituted against the attorney general of the United Kingdom. That same change

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should be made in this bill in order to clarify the situation. It has been found in Britain, as a result of experience, that very often it is impossible to point out with clarity and with certainty the identity of that person or persons who committed the tort.
I welcome this legislation for one reason: I think it is an example that indicates the danger to the subject when the crown is above the law. About three years ago one of the departments of government, the income tax department, communicated with an insurance company in Winnipeg and advised that company that their agent in the province of Saskatchewan who had borne, and still bears, a very high reputation, was in default in his income tax and was not paying it. As a result that man suffered not only the opprobrium of letters suggesting that he was dishonest, but even removal from his position as a general agent. It was only after a very considerable correspondence had passed between these persons and others that that man, who as a result of that slanderous statement had suffered wrong, was reinstated. Then he had no action; now he has.
And, Mr. Speaker, I can give an example which occurred in the Exchequer Court two or three years ago when the president of that court said that in the event that a member of the administration or of the civil service, acting under a government order, were to order the destruction or to permit the destruction of any goods or property of a citizen, there was no right of action as against the crown. He pointed out that in that case a Canadian subject had suffered damage to the extent, as I remember it, of $25,000, through the wanton act of a servant of the crown. And yet the crown assumed no responsibility for that. The person who did the wrong was worthless, financially; and the Canadian subject suffered the damage to which I have referred.
I mention these cases because I believe this bill in its present form should be made effective as an instrument to protect Canadian citizens within a period that would go back as far as the limitation of actions in the respective provinces. In other words, it seems unfair to me that those individuals to whom I have just referred should be denied the right of action even today, when this legislation is brought into effect, the wrongful conduct being within a period within which, under the laws of the various provinces, a right of action continues and lives. I do suggest it is rather unfair that under this legislation, late as it is in being introduced, having regard to the fact that the necessity for petitions of right was done

away with in respect of certain matters some years ago, individuals in Canada whose right of action still exists under the limitation acts should be denied proceedings under this act.
Then, next, with regard to the exclusive jurisdiction of the courts, with the exception of county and district courts where damages are asked for in amounts less than a thousand dollars, the right of the individual to sue in the Queen's courts in the various provinces is denied. I think the individual should have the right not to be required to go to the Exchequer Court, and in the various provinces should have the right to take action in the courts of those various provinces. That right is granted, so far as county or district courts are concerned, when damages are restricted to a thousand dollars. Why deny the right in so far as the superior courts are concerned?
Personally, I cannot see any justification for that. Certainly the Queen's superior courts should not be denied within a province jurisdiction that is being granted under legislation to the inferior courts. And I point out this, further, that the action in the Exchequer Court will be much more costly than in the superior courts of the provinces. That has been the experience of the last few years. If the individual is to have the right of recourse to the courts, then when we are establishing equality between the crown and the individual I can see no reason why the individual should be denied recourse to those courts that, ordinarily, would be the courts available for the purpose.
The next point I wish to raise, and which I ask the minister to bring within the ambit of the legislation, is that during the last few months there have been a number of cases in which innocent men have been convicted and appeals have taken place. The appeals have indicated that the accused persons were innocent and had been wrongly convicted.
Only yesterday in Ontario two men, sentenced to die on Tuesday next, on appeal to the court of appeal in Ontario were freed on the ground that there was no evidence upon which a court or jury should have acted. Now, it was not because of a mistake in the law or in direction on the part of the judge, for in that case new trials would have been ordered. But these two men in the shadow of the gallows finally got their case before the appeal court in Ontario because of the action of two young men who undertook to plead their cases. The result is that the court of appeal in Ontario said yesterday that there was not a vestige of evidence against these two convicted men.

Then, I come to another case to which reference was made in the Toronto Telegram.


Stuart Sinclair Garson: Would the hon. member tell us the name of the case to which he referred just now?


John George Diefenbaker: I have not the names here, but I had reference to the two men who were convicted up in northern Ontario of a murder committed five years ago.


An hon. Member:: Yesterday's Globe and Mail.


John George Diefenbaker: I have not the names, but I am referring to that case. It is recorded not only in the press but also in the Osgoode Hall notes of yesterday.


Stuart Sinclair Garson: Is my hon. friend suggesting that some cognizance should be taken and some provision should be made in this bill because of that case?


John George Diefenbaker: Recently there was
another case-


Alphonse Fournier: would like to know everything connected with that case. Kindly explain it.


Mr. Casselman:: Get the newspaper and read it.


Mr. Fournier (Maisonneuve-Rosemont):: cannot get the information in newspapers.


John George Diefenbaker: It is reported in the press under the legal notes column, and indicated that the Chief Justice of Ontario had said that there was no evidence upon which any jury conceivably could convict.


Sarto Fournier: And
who was right, the jury or the appeal court?


John George Diefenbaker: Oh well, I am not going to get into a controversy about that.


Sarto Fournier: It
is fortunate this is not a court of justice-


Mr. Ferguson:: I am not as used to courts of justice as you are. We are discussing this in the House of Commons.


Sarto Fournier: The
hon. member is talking about a case. I want to know something about it.


The Acting Speaker (Mr. Robinson):: Order.


Julian Harcourt Ferguson: He knows more about courts of justice than you do, I can tell you that.


John George Diefenbaker: Then, some weeks ago there was a case which received general notice throughout the country, and to which particular reference was made by Mr. Richard Henry in the Toronto Telegram. This was the case of a man by the name of Ronald
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Power, who was convicted and sentenced to a considerable term in jail and who, at the end of nine months, was discharged, it being found out that there was a case of mistaken identity, and that the man was innocent.
Then, several years ago there was a case in Brandon, Manitoba-


Stuart Sinclair Garson: Mr. Speaker, this is all very interesting, and I do not wish to cut my hon. friend short, but I think that he will agree, will he not, that these subjects which he is now exploring have no relevancy whatever to the present bill


John George Diefenbaker: Oh yes, I will make them relevant.


Stuart Sinclair Garson: -for this reason-


An hon. Member:: For your reason.


Stuart Sinclair Garson: -that any claim that there may be in respect of improper conviction or improper imprisonment of these gentlemen to whom he is referring is not a claim against the federal crown but a claim against the provincial crown, and therefore has nothing at all to do with this house.


Alphonse Fournier: That is it.


John George Diefenbaker: That is the excuse that is being used to deny these people compensation.


Stuart Sinclair Garson: No.


John George Diefenbaker: I am not saying that under the law there is responsibility, but I do say that there is no right of action anywhere for such individuals; and when we are endeavouring to bring about changes in the law to give to individuals rights against the crown, would it be too much to suggest, as I suggested to the minister, that we do what is done in Great Britain, pay compensation under these circumstances.


Stuart Sinclair Garson: May I ask my hon. friend this question? Does he think that it is within the constitutional power of the federal parliament to impose -upon the provincial crown -the obligation of paying compensation in cases of that kind?


John George Diefenbaker: That question answers itself. Nobody suggests that.


Jean Lesage: What do you suggest?


John George Diefenbaker: If my hon. friend would wait-he is all -right on defence. He thinks so himself.


An hon. Member:: Is he?


John George Diefenbaker: We suggest that in the interests of justice provision should be made so that persons who have -been wrongly convicted-

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Mr. Dickey:: By whom?


John George Diefenbaker: -will not be incarcerated without having a right of compensation and action. I am not arguing that we should place the responsibility on the provinces. We cannot do that.


Stuart Sinclair Garson: No, we certainly cannot.


John George Diefenbaker: But if the provinces are not accepting the responsibility then I say that the Minister of Justice (Mr. Garson) is the keeper of the queen's conscience and I suggest that provision should ibe made, with the Criminal Code being the responsibility of the federal parliament and with administration resting on the provinces, so that individuals who have been wrongly convicted without justification will not be put aside simply with the excuse that it is somebody else's responsibility.


Jean Lesage: That has to be an obligation of the provinces.


John George Diefenbaker: It may not appeal to my hon. friend that an innocent man has suffered but it does appeal to the sensibilities of the Canadian people that it is most unfair and unjust.


Jean Lesage: It would be imposing on the provinces.


John George Diefenbaker: We are not imposing on the provinces. The provinces have nothing to do with this discussion.


Jean Lesage: Who would do it then?


John George Diefenbaker: After all, this House of Commons is the place where we have authority, and there is nothing whatever to prevent parliament making provision for compensation under those circumstances.


Jean Lesage: Who will pay?


Stuart Sinclair Garson: May I ask this question? Is it my hon. friend's suggestion that this parliament through the federal government should underwrite the liability of all the provinces of Canada in respect of any improprieties which arise in the discharge of their responsibilities for the administration of justice? Does he mean that we should do that?


John George Diefenbaker: That is a very ambiguous question. What I do feel is that-


John Horace Dickey: A very logical question.


John George Diefenbaker: -justice deserves to be underwritten. Where right of action is going to be given as against the crown, there should be provision for compensation under this legislation in an action based on the fiction that the crown is indeed responsible in the person of the Minister of Justice wherever wrongdoing occurs.


Jean Lesage: The crown in the right of whom?


John George Diefenbaker: I listen to my hon. friend at all times.


Julian Harcourt Ferguson: You do not hear much.


John George Diefenbaker: Well, I listen, and petty interruptions like that have no place in a serious discussion.


Jean Lesage: Mr. Speaker-


John George Diefenbaker: I have the floor.


Jean Lesage: Would the hon. member permit a question?


Julian Harcourt Ferguson: We all know he graduated at the bar.


John George Diefenbaker: I cannot understand why there should be any antagonism.


Jean Lesage: No. We want to be
enlightened.


John George Diefenbaker: I am simply advancing a proposition that most hon. members, other than the interrupter, can understand, namely, that justice is not a matter of dominion or provincial legislation when Canadian citizens can lose their liberty wrongly in courts, the judges of which are appointed by the Minister of Justice. I am not speaking about the division of responsibility between the dominion and the provinces in the administration of justice. I am saying that surely in 1953 the Minister of Justice-and when I speak of him in that capacity I speak of him as custodian of justice for all Canadians- will not rely on any fictions to deny compensation under this act to Canadians who are wrongly convicted and incarcerated. Somebody was negligent. Somebody was wrong. When a man is sentenced to death and escapes the gallows by a matter of only a few days, surely we are not going to argue that that person's rights are to be based upon some constitutional division of power when the judges who preside over these courts are the chosen of the Minister of Justice and the cabinet of Canada. I realize that, as the law now is, there is no right of action-


John Horace Dickey: Would the hon. member permit a question?


John George Diefenbaker: You would not have it in the Japanese trials, but I am speaking about justice in this country. In this country surely parliament is not the place where we are going to say to these people: You were in the shadow of the gallows, Her Majesty's courts have said you are innocent-


Jean Lesage: That is the most phony thing I have ever heard.


John George Diefenbaker: -depart. There is the case of the man in Toronto who was innocent but served nine months in jail. All he receives is a certificate that he was innocent and he goes forth into the world without any compensation. When we are removing these anachronisms that deny to the individual equality with the crown, I believe that this is something that deserves the consideration of the Minister of Justice.
In addition, as the law now stands, if an action is taken against Her Majesty the Queen and production of documents is asked, all a minister of the crown has to do is to say that it is not in the public interest to produce them and the documents are not produced. In Great Britain the judge has the right to look at the documents for the purpose of ascertaining whether or not there is in fact any basis for the claim of the minister who raises the objection that production of the documents is not in the public interest. But we, under the authority of a case that came from Australia which was heard by the privy council, have not that right. I do not want to deal with any cases that have taken place in recent days when the production of documents has not been considered in the public interest, but I believe that that excuse, which lends itself to spuriousness and to circumventing justice, should not be permitted now that the right of the individual to sue the crown for tort is being established.
I do not want to see documents produced when their production is not in the public interest. Therefore I suggest that we establish under this legislation a practice similar to that which is in effect in Great Britain whereby the judge looks at the documents and determines whether or not it is in the public interest that they should be produced. Unless that provision is made in our law I can well see a minister of the crown, who is brought before the courts in an action by a citizen against the crown and asked to produce documents which would establish the citizen's right, adopting the simple expedient, with more or less justification, of saying that the production of the documents would not be in the public interest, the result of which would be, if that production was in the public interest, that justice would be denied. Therefore I suggest that in making this legislation effective provision should be incorporated so that examinations for discovery and production of documents should be placed on an equal footing in actions taken against the crown as in actions between individuals.
Finally, I should like the minister to state whether he does not consider that in these actions, being such as peculiarly involve the 68108-208
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consideration of facts, within limitations the trial should take place before a judge and jury. In recent days one or two judges have criticized trials by jury in civil cases. The minister will recall that recently he attended a meeting of the council of the Canadian Bar Association at Niagara Falls at which outstanding counsel were strong in upholding the need of juries in cases of fact where the experience and wisdom of jurors would enable them to come to conclusions based on their experience as men of the world. I was pleased to read the arguments advanced by those outstanding counsel. Today we are too often departing from the principle of a person being judged by his peers. Almost without exception these outstanding counsel took a stand in firm support of the jury system and the need for the preservation of that system and of assuring citizens of Her Majesty of the right to jury trial.
I suggest that when the minister replies he outline the considerations that occurred to him in making provision in this legislation for trial only by exchequer court judges when the amount involved is over $1,000.
What I have tried to do is to place before the house a few views which I believe are worthy of consideration. They may not be agreed with in their entirety, but I have advanced them in a spirit of constructive criticism. I believe that this legislation is a step, in fact a final step, in removing an anomalous condition that goes back to the thirteenth century under which the crown was not answerable in her own courts. We have raised the dignity of the individual in his relationship to the crown to that of equality, subject of course to the qualifications in the bill itself that one or two other steps should be taken.
The reaction today to two or three of my suggestions was quite similar to the reactions to the suggestion made several years ago that this type of legislation should be adopted. There were interruptions of the same kind by those who do not believe in advancing with the times. After a period of three, four or five years ideas that at one time were regarded as being unworthy are today accepted. After all, every reform was once a heresy.


John Horace Dickey: Mr. Speaker, I shall not detain the house long. I followed the remarks of the hon. member for Lake Centre (Mr. Diefenbaker) with a great deal of interest and I must confess with some amazement as well. I do not propose to deal fully with what he said, but it seemed to me that at one stage of his speech he was arguing that the federal authority, more particularly the Minister of Justice, should underwrite the

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administration of justice in the provincial courts because judges of those courts are appointed by the governor in council on the recommendation of the Minister of Justice.
The difficulty of that theory, with which I do not propose to deal in detail, I think is sufficiently shown by one of the examples the hon. member employed to bolster his argument, and that was that two individuals accused of murder and found guilty by a jury had been freed on appeal to the Supreme Court of Ontario just a few days before the date of execution.


John George Diefenbaker: The trouble of course was that the judge did not seem to realize there was no case and he left a non-existent case to the jury.


John Horace Dickey: I think it is clear to everybody in the house and to anybody-


Mr. Croll:: May I interrupt for a moment. I listened to the hon. gentleman and I hope that what he said was not considered to be a reflection upon the judge who tried them. I do not think he intended that. The judge is a personal friend of mine and I studied law under him. I just wanted to make sure that no reflection was intended.


John George Diefenbaker: Every time a counsel appears on appeal he naturally argues that what the judge placed before the jury or instructed them to do was not correct, that he erred. Judges are only human; judges err. There is certainly no reflection upon any judge to say that he erred, because to err is human.


John Horace Dickey: I must confess that I did think that the point the hon. member was trying to make was a little different from the question of appeal and the position of a barrister representing his client in an appeal to a higher court from a decision of a lower court. However, I do think the example cited by the hon. member shows the inconsistency and unreasonableness of his position.
I am sure that this debate will be read by members of the bar in all parts of Canada and I rose simply to point out on my own behalf, and I think on behalf of a good many of my colleagues in the house who are lawyers, that we do not agree with either the legal or the constitutional position taken by the hon. member this afternoon. In view of the fact that all his remarks during that part of his address were out of order on this particular bill, there is no necessity for any extended reply.


Julian Harcourt Ferguson: My hon. friend may be speaking for all Liberal lawyers when he says they are in agreement. They generally are.


Jean Lesage: Are you a lawyer?


Julian Harcourt Ferguson: I may not be, but I know something about the law business. At least, I will always know as much as you know. I do know what my hon. friend has tried to put over to a group of Liberal lawyers when he was speaking to the highest court in the country for justice to the people, and he was not getting anywhere.


The Acting Speaker (Mr. Robinson):: Order; the hon. member for Gloucester.


Alphonse Fournier: Why not discuss it with us?


Julian Harcourt Ferguson: If I discussed it with you, you would not know what I was talking about anyway. You sit there and interject, but you do not know what we are talking about.


Jean Lesage: Oh, horses.


Julian Harcourt Ferguson: You know all about horses.


Sarto Fournier: At
your next national convention, why don't you vote for a change?


The Acting Speaker (Mr. Robinson):: Order; the hon. member for Gloucester.


Albany M. Robichaud: I should like to add a few brief remarks to the very pertinent suggestions which have been made by the hon. member for Lake Centre (Mr. Diefenbaker). 1 have carefully studied the bill now before the house, and I agree with the suggestions put forward by the hon. member for Lake Centre when he pointed out that there should be no limit imposed on the jurisdiction of our provincial courts in dealing with matters coming within the ambit of this bill.
Remarks were made from the other side of the house while the hon. member for Lake Centre was making a suggestion to the Minister of Justice (Mr. Garson) which, in my submission, was not tantamount in any way, shape or form to the underwriting-as the hon. member for Halifax (Mr. Dickey) has pointed out by repeating the words already put forward by the Minister of Justice-of the administration of justice in the provinces. I could not analyse the remarks of the hon. member for Lake Centre as amounting to that much.


John George Diefenbaker: They did not, either.


Jean Lesage: Oh, oh.


Albany M. Robichaud: If hon. members opposite like to interrupt-


Jean Lesage: We want to understand.


Albany M. Robichaud: You want to learn something?


Jean Lesage: Yes.


Albany M. Robichaud: Well, just keep silent for a moment and you might. Hon. members opposite seem to delight in interruptions. I do not mind them. I would ask you to bear in mind that under the criminal law, as we all know, all criminal cases are styled in the name of the King or the Queen, without any reference in the indictment to the Queen in the right of Canada or in the right of the province. This is the first thing that I wish to underline. As has been pointed out by the hon. member for Lake Centre, our judges are appointed by the Dominion of Canada or through the recommendation of the Minister of Justice. Thirdly, and I think this is something which should not be forgotten-we all know it, but it is well to remind ourselves sometimes of the things we know-our Criminal Code is promulgated by the Dominion of Canada.
At this moment, as the Minister of Justice knows, he and I should be in the committee which is studying the famous bill for the revision of the Criminal Code. As the minister will recall, on two or three occasions remarks similar to those made this afternoon by the hon. member for Lake Centre have been made at the sittings of the Criminal Code committee; that is, what steps can be taken to provide a means of compensation for Canadians unjustly incarcerated and deprived of their liberty through an error, such as cases of mistaken identity, etc.
Now, I do not wish to repeat-I hate to be repetitious-what has been so tersely put forward by the hon. member for Lake Centre. I do wish, however, to concur with him most heartily in his remarks about juries. Some years ago the people of New Brunswick were entitled, as by right, to jury trials in all civil cases in county courts, Queen's bench division or superior courts. A few years ago this right of trial by jury was whittled down to a considerable extent in civil cases in the Queen's bench division so that now we are left with but a few instances in which a party to a civil case can obtain, as of right, a trial by jury.
If my memory serves me right, I think malicious prosecution is one of those, and false arrest and imprisonment and possibly trespass are the others. Here are possible cases which might arise under this bill: malicious prosecution, false arrest and imprisonment; and it seems to me that by depriving the right of a litigant in my province to a trial by jury, when by our present provincial law we have that right, just because the crown is a party to the proceedings, the Minister of Justice is going a little far in this legislation. I wish to register my approval of whatever remarks the hon.
68108-208i
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member for Lake Centre made on this score, that is jury trials. I realize quite well that under the present Exchequer Court Act, section 39 I think it is, trials must be before a judge of that court and not before a judge and jury. It seems to me that when we make provisions in this bill for the trial of certain actions against the crown in provincial courts, it is rather dangerous to invade the domain of provincial jurisdiction and say that, even in cases where the provincial law gives the litigant the privilege of trial by jury, as a matter of right when the crown is a party this same litigant shall be debarred from this right granted under the provincial laws.
Now, I respectfully suggest to the minister certain other things which have not been brought to the fore so far. I wish to draw to his attention the procedure that is laid down under this bill. May I preface my remarks by saying that, in my humble submission, there is an attempt, through this bill, to invade or trespass upon the rights of the provinces to prescribe the rules of practice and procedure in their own courts. No one will gainsay or deny that the provinces have the exclusive right to make and prescribe the rules of practice and procedure in their own courts. I agree wholeheartedly with the principle in the bill which gives the right to the subject, if the amount involved is not over $1,000, to sue in a provincial court. Again I say, however, that there should be no limit to the amount for which a suit may be brought in the provincial courts. We say in effect, to the provinces, that we give the litigant the right to sue the crown in provincial courts, but the dominion parliament shall prescribe the rules of practice and procedure.
For instance, if we just glance at the bill now before the house to see how proceedings are instituted, we find that the claimant must give at least 90 days' notice, before the commencement of proceedings, to the deputy attorney general of Canada, with sufficient details of the facts upon which the claim is based to enable him to investigate it. To this preliminary item of procedure, I have no objection. These proceedings are commenced, as they are in our provincial courts, by a writ of summons or any other instrument originating the proceeding. This writ or other instrument originating the proceedings, or a copy thereof, is served upon the deputy attorney general of Canada. But, Mr. Speaker, what I object to is that even after all those proceedings-90 days' notice before action is initiated or instituted, the

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service of the writ of summons which provides for the appearance to be filed within ten days-which in my submission is surely enough protection thrown around the office of the deputy attorney general of Canada, this bill goes further and says that even when all this has been done, if no appearance is filed within the time prescribed by the writ of summons no judgment by default can be taken against the crown unless by leave.
I shall never profess to know law because, Mr. Speaker, in my estimation the study of law is almost eternal. Although I have practised actively before our courts for the last quarter of a century, I know that I have quite a lot of law to learn yet. But I submit that this is a wide departure from recognized legal practice and procedure, when we give 90 days' notice to the deputy attorney general of Canada before instituting the proceedings, then issue a writ of summons which gives him ten more days to file an appearance, and then if he fails to do so we have no right, under the rules provided and prescribed by this bill, to sign judgment by default without leave, which I greatly doubt would be granted even if we applied for it.


Jean Lesage: That is leave from the court.


Albany M. Robichaud: I will point out to my friend the hon. member for Montmagny-L'lslet (Mr. Lesage) that any lawyer who knows a little bit of law when he mentions leave in referring to a matter such as this means leave of the court. The hon. member should know that.
Mr. Speaker, these are briefly the remarks which I wanted to submit to the Minister of Justice (Mr. Garson). Again I repeat that I am totally in accord with the principle of the bill, but in the wake of the hon. member for Lake Centre (Mr. Diefenbaker) I point out that there should be no limit to the jurisdiction; that is, no limit to the amount involved in cases where provincial jurisdiction is permitted.
Second, I suggest that the bill should not contain any provision giving the right, as this one does, to the governor in council to prescribe rules of practice and procedure which would apply to provincial courts if proceedings are instituted therein under the provisions of this bill; because in my submission this is a dangerous invasion of recognized provincial rights in the matter.
Third, I wish to go on record as being strongly in favour of at least the same privilege with respect to jury trial, in cases under this bill or within the ambit thereof, being accorded to litigants as they now have

and enjoy in the various provinces where proceedings might be instituted under this bill.


Mr. H. W. Herridge (Kootenay West):: Mr. Speaker, in rising to have a few words to say-and they will be few-in this debate, I am somewhat like a non-swimmer jumping into deep water. I have not the knowledge of the fine points of the law which the hon. member for Simcoe North (Mr. Ferguson) has. However, I wish to bring one or two things to the attention of the minister. In reading the bill-and I am speaking as a layman-I notice that the explanatory notes read as follows:
The purpose of this bill is to place the crown in substantially the same position as a private person as regards liability for
(a)	torts committed by servants,
(b)	torts arising out of breach of duty attaching to the ownership, occupation, possession or control of property,
(c)	damages caused by a motor vehicle upon a highway, and
(d)	civil salvage,
and to permit certain actions to be taken against the crown in the provincial courts.
As I indicated before, Mr. Speaker, I am not competent to deal with the constitutional aspects of the question as has been done by hon. members who have spoken previously. Therefore, as a layman, in order to get some comprehension of what this matter is all about I want to proceed from the abstract to the concrete.
A constituent of mine last summer suffered a serious motorcar accident in Kootenay national park. He claimed that the accident was caused by the negligence of the employees of the federal government, who were at that time repairing a road in that park. As a result of communications with and explanations from this constituent-who I thought, from his explanations to me, had a watertight case so far as negligence was concerned on the part of servants of the crown-I wrote to the deputy minister of the Department of Resources and Development; and I received from Mr. C. W. Jackson, acting deputy minister, a reply which is in the following terms:
Dear Sir:
In the absence of Major General H. A. Young this will acknowledge yours of the 13th of September, enclosing copy of a letter which you have received from Mr. John B. Varcoe of Trail, British Columbia, regarding a motor vehicle accident suffered by Mr. R. H. Varcoe while travelling through Kootenay national park.
Without prejudice and without admitting any liability, Mr. Varcoe has been requested to furnish a detailed statement of the facts on which he bases his claim, together with a detailed statement showing how the claim is computed. When the full

details have been received here, the matter will be referred to the Department of Justice for a decision on the responsibility of the crown.
Your sincerely,
C. W. Jackson,
Acting deputy minister.
That letter is dated September '24, 1952. Then on December 18 the solicitors of the injured person, Messrs. Parker, Williams and Varcoe, of Trail, British Columbia, received a letter from Mr. J. Smart, director, Department of Resources and Development. It reads as follows:
Dear Sirs:
Attention: of Mr. John B. Varcoe
Motor Accident-Kootenay national park
Claim of Mr. R. H. Varcoe
The Department of Justice has now handed down a ruling in connection with the claim for damages forwarded on behalf of Mr. R. H. Varcoe to the effect that material submitted does not establish any legal liability on the part of the crown. In the circumstances, it is not proposed to take any further action in connection with the claim submitted.
Then quite recently I wrote to the Minister of Justice (Mr. Garson) and asked what were the reasons for the crown denying liability in connection with this accident. I simply bring this one case to the attention of the minister and the house because, as a layman, I think it gives me an opportunity, when the minister replies, to have a better understanding of what this act really means. I should like the minister to explain what effect this bill will have in circumstances such as those of which I have just spoken; and second, in order that we poor laymen in the audience, shall I say, can understand, I should like him to explain what is the general effect of this legislation upon the subject at this time.
Mr. G. C. Nov/lan (Annapolis-Kings):	Mr
Speaker, when the resolution on this matter was before the house some weeks ago I raised a question with the Minister of Justice and at that time he suggested that I had better wait until I saw the bill and then I would have my answer. I certainly found the answer there. There are other matters which perhaps could be dealt with in committee; nevertheless since we have been referring to certain specific matters which it is suggested could be dealt with by amendment, I propose to refer to them now.
In the first place I certainly want to agree with what has been said by others. On the principle of this measure, as far as it goes, I am sure we are all in agreement. It is something the country has needed for some considerable time. It is legislation which probably should have been introduced before, and we welcome and support it in so far as it applies.
Crown Liability
I agree, however, with the statements which have been made by the hon. member for Gloucester (Mr. Robichaud) as to some of the limitations of this bill. I regret the fact that the right of trial by jury has been limited. I can quite understand that the Minister of Justice, with the responsibilities of his office, and perhaps having some slightly jaundiced suspicion of juries, might feel that if the crown were represented on the one side and a poor layman on the other, the lay jury might be inclined, not to violate their oath of course, but possibly to cast a sympathetic eye upon the litigant and say, "Well, after all, the Dominion of Canada is wealthy and they can afford to pay a substantial amount of money".
That is a risk, of course, which all litigants take when they go into court; nevertheless I do not think it is something, sir, which should infringe or restrict our right to trial by jury. I think we have all seen cases-I know there was one brought in our own court recently- involving a tremendous amount of money, at least to the parties concerned, running into many thousands of dollars, which could not be tried before a jury. It dealt with damages done to a breeder of foxes. He alleged that substantial damages were caused by the flight of government planes over the fox ranches at certain times, and as a result he was deprived of damages which I think possibly he should have received. If that is government policy, then all we can do is suggest that it is a mistaken one, and that this matter should be enlarged to permit of trial by jury.
I do not follow the minister in the fact that he permits trial in provincial courts up to $1,000 and precludes them above that amount. After all, a thousand dollar item is perhaps a fairly substantial one. If you recognize our county court judges or district court judges as having ability to try these cases-and they have-then I suggest, sir, there is every reason in the world why judges of superior courts should also be recognized and given the right to try all these cases.
It is all right to say, "We now give you the right to bring action in our courts", but for many of our citizens, sir, it is an expensive procedure to go before the Exchequer Court of Canada, and the practice is somewhat different. I am sure there are many lawyers practising in smaller centres who have some diffidence about, and little experience in, dealing with that practice; and it raises real difficulties which I do not think are necessary.
I do say that this legislation, once the principle has been adopted, should permit action

Crown Liability
being brought in all the provincial courts instead of limiting, as it does now, the claim to $1,000. If you have a claim under $1,000 you can bring it in your own shire town before your own county court judge, which would be Kentville in my case; but if it is $1,100 you have to reduce it to under $1,000. You cannot do it by way of a counterclaim. I suggest that is wrong, and it is a matter in defence of which, when we are in committee, the minister should give very substantial arguments.
We are still faced with the problem which I raised on the resolution stage. There is nothing to preclude the minister bringing an action in the Supreme Court of Nova Scotia, for instance-as incidentally he did in two cases in which I was involved-and thus restrict you in so far as a counterclaim is concerned. In both these cases there was good ground for counterclaim, but I cannot counterclaim in the supreme court; so I would have to bring a separate action in the county court or bring an action in the exchequer court. That is a matter on which we want some explanation. The minister says there is provision for it in the legislation. If there is that will clear up that difficulty.
In these two cases in which I was involved there was a claim arising out of interest in the ownership or occupation of property. In these cases you must give notice within seven days, or else you are precluded from bringing such an action. I can recall a case where the crown in another right, in the right of the province, was in occupation of certain premises and did some blasting in connection with highway construction and ruined a well. The owner was away in Florida at the time and did not return for six weeks. In these circumstances he would be precluded from bringing action because he could not give notice within seven days. I cannot see why there should be the definite limitation of seven days' notice in a matter arising out of damage through occupation of property.
Then there is a very general, perhaps unnecessarily general, provision here for the transfer of matters to the exchequer court. I think once you start in the provincial court you should stay there, unless the interpretation of a dominion statute might be involved. But after all there is always going to be the interpretation of a dominion statute involved. We will always have this act in front of us, and if the minister or his agent in Nova Scotia wishes to be technical or difficult, with or without instructions, he can apply to have the matter transferred to the exchequer court and thereby greatly limit the effect of this act. I am sure the present minister would not

want to be a party to such a transaction, but I am sure he will admit that with that provision as it is, it will be open at any time to practically preclude the operation of this act.
These are matters which I think indicate that, while welcoming the act in general, as we do, we feel there are definite limitations here which may be amplified or explained before it finally passes.


Julian Harcourt Ferguson: This afternoon we have heard interruptions from Liberal lawyers and such remarks as "Are you a lawyer?" In my opinion this is the highest court of the land, and thank goodness we have a diversification of occupations of hon. members sitting in the House of Commons. When a layman who is not a lawyer interjects on behalf of the district he represents in the Dominion of Canada, then lawyers on the Liberal benches interrupt him and ask the question: "Are you a lawyer?" By doing so they insinuate that otherwise you should not debate this question, you have not a drop of human kindness in your heart for your fellow citizens.
Well, I heard the same hon. members debate oil in Alberta, Manitoba and Saskatchewan, and no person to my knowledge said, "Are you a well digger? Have you been drilling for oil? Have you pushed around oil equipment?" No, they did not ask those questions. They believed that the Liberal lawyers of this house were trying to inquire into something that was beneficial to their constituencies. I listened to the remarks-


The Acting Speaker (Mr. Robinson):: would remind the hon. member for Simcoe North that we are discussing the principle on second reading of the bill respecting liability of the crown for torts and civil salvage, and we are not discussing the lawyers in the House of Commons. I would ask the hon. member to confine himself to the principle of the bill.


Julian Harcourt Ferguson: I was coming to that point; but I wanted to emphasize it in my opening remarks. From a layman's point of view this legislation should be altered to give greater protection to the people of the Dominion of Canada irrespective of the lawyers views. It is a fact that if an employee of the federal government today commits an illegal act the injured party cannot always sue.
Let me cite a case. In the city of Peterborough a federal government employee was driving a federal government truck. He was intoxicated during working hours and during the hours he was in the employ of the federal government. The truck got out of control and smashed the front of a residence. The

woman claimed damages through the Department of Justice and was informed that in the opinion of that department she had no claim. If it had been a truck belonging to the Imperial Oil company that woman could have sued without having to go through all the red tape that she has to go through now. She could have sued the Imperial Oil company, and any fair and decent court would have awarded her the actual positive damages caused by the truck of the employee who was drunk during working hours and who was on the payroll of the Imperial Oil company. That has happened on previous occasions.
In this particular case the man was on the payroll of the federal government, a government belonging to the people and for the people; but that woman was denied the right that she would have against a private corporation under similar circumstances. As a layman and as the representative of the people of Canada in my own part of the country, I can see, as any jury could see, many things that a lawyer cannot see about this which are wrong and should be adjusted in some manner or other. That is why the horn, member for Lake Centre (Mr. Diefen-baker) has appealed on this occasion to the Attorney General (Mr. Garson). He should be listened to and not .laughed at by hon. members and lawyers in the Liberal party.


Stanley Howard Knowles: Mr. Speaker, when the Minister of Justice (Mr. Garson) was speaking on January 29, in the debate on second reading of the bill, he made certain comments to which I should like to draw his attention at this time. At page 1471 of Hansard he set out the history of this matter, and made particular reference to the act of 1887 which, as he said, gave the exchequer court jurisdiction to hear and determine every claim against the crown arising out of any debt, injury to the person or to property or any public work, resulting from the negligence of any officer or servant of the crown while acting within the scope of his duties or employment.
A little later in the same speech and at the same page he said this:
Actions against the crown in tort are still con-Ined to negligence.
And later, again on page 1471, he said:
Upon the passage of this bill the crown will be liable not only for all torts committed by agents or servants of the crown, but also for torts that may be committed without the intervention of a servant or agent, namely torts arising out of the ownership, occupation, possession or control of property including motor vehicles.
Like my colleague from Kootenay West (Mr. Herridge) I have to look at this problem from the concrete rather than the abstract
Crown Liability
point of view. On that basis I would like to draw a case to the minister's attention and, when he concludes the debate-which I imagine will be in a few moments-invite his comments.


Stuart Sinclair Garson: Mr. Speaker, I am rising now on a point of order only, and not to close the debate. I wonder if we might discuss these individual cases when we are in committee, because we are now supposed to be discussing the principle of this bill. I cannot, without impropriety and offending against the rules of the house, go into those various individual cases which have been mentioned. I think hon. members in the opposition will find that they can make their cases more satisfactorily when we are discussing the clauses of the bill.
I must say with regard to at least two cases the misunderstandings under which my hon. friends are labouring are misunderstandings of the facts. These were cases in which there probably was no negligence on the part of the crown. However, I think it would be preferable not to discuss matters of that kind when we are discussing the principle of the bill.


Stanley Howard Knowles: If the minister will make that a request rather than a point of order he will find us co-operative.


Stuart Sinclair Garson: I make it as a request.


Stanley Howard Knowles: Then I am prepared to leave the details of the case before me until we get into committee on the bill. I will say only this, without referring to the case in particular, that I would like to have cleared up the point as to whether or not, once this bill is passed, it will be possible for citizens to collect damages from the crown in cases other than those where negligence is proven.
In the particular case I shall bring to the attention of the minister in committee, the defence by a colleague of his for not responding to a request was that no negligence on the part of officers or servants of the crown had been proven. I hope the minister will clear up that point, even in the abstract, before Mr. Speaker leaves the chair. Then when we get into committee I shall bring to his attention the particulars of the -case I have before me.


Mr. G. F. Higgins (St. John's East):: Mr. Speaker, I wish to address myself to one particular point which has not been covered by my learned colleagues and which, I believe, should be mentioned. I am not satisfied that it is covered in the bill itself. If it is not, I think it should be.
I refer to the question of torts committed by members of the United States armed forces,

Crown Liability
and by civilians of that country, on the various bases in Newfoundland. It may be contended that they should foe considered as agents of the Canadian government, or that they might come under the section having to do with torts arising out of 'breach of duty attaching to the ownership, occupation, possession or control of property, because the ownership, occupation, possession or control of the property leased by the United States is in Canada. Such cases might be considered to come within that class. However, I am not satisfied that they do.
If they do not, then I suggest a section should be inserted in the bill to cover torts arising out of actions by nationals of the United States and by members of United States armed forces. I am thinking particularly of a couple of motorcar collisions which have caused damage to property, and where members of the United States armed1 forces and civilians of that country have been transferred from Newfoundland back to the United States. In such event the only procedure for the injured party is to have recourse to the unsatisfied judgments fund, which was set up in Newfoundland only within the last year. Payments have been made out of the fund to cover such eventualities, but I am not satisfied that this is a fair way of handling the matter.
As Canada is directly responsible for the occupation of the bases, I believe provision should be made to take care of any injury arising out of that occupation and caused by members of the United States forces. I am not sure whether this is covered; but if it is not I feel it should be.


The Acting Speaker (Mr. Robinson):: When the minister speaks he will close the debate.


Stuart Sinclair Garson: Mr. Speaker, the present debate is concerned with the principle of the bill; and as sponsor of it I cannot help being gratified by the fact that all the speakers who have taken part in the debate have supported wholeheartedly that principle. It is only in matters of detail that they disagree with the bill. I believe they would agree, one and all, that those matters of detail can be discussed more properly in committee.
Therefore I think it would be improper for me to detain the house for any length of time simply to restate a principle which has already met with complete agreement from hon. members in the opposition. However, there are one or two points which I should clear up, in the abstract, as the hon. member for Winnipeg North Centre (Mr. Knowles) has said. I do this of course without prejudice to my willingness to discuss any details hon. members may wish to have discussed when the bill reaches committee.

The hon. member for Winnipeg North Centre quoted from my remarks of January 29 when I set out the purport of this measure, and wanted to know whether, upon reflection, I still feel that what I said at that time contains a true statement of the effect of this legislation. I wish to affirm that most assuredly I do think it is a true statement, and that after this bill is passed the liability of the crown, which is now confined pretty largely to the tort of negligence, will be extended to embrace all those other torts covered by the bill. Whether or not it covers my hon. friend's case is quite a different matter, and this applies also to the hon. member for Kootenay West (Mr. Herridge) and the hon. member for Simcoe North (Mr. Ferguson). Whether a 'given case, which in the eyes of a layman may appear to be an eminently just case, is covered by any statute or any principle of law will depend upon whether there is any foundation for legal liability, not on the basis of the facts as stated by one party to the case but upon the real facts as established definitively.
In nearly all these cases, if any advice has been given by the Department of Justice to some other department of the government to the effect that there was no legal liability, it was because, upon the facts as we were informed of them by the statement made on behalf of the claimant on the one hand, and by the reports which we got from civil servants and crown officers on the other, the necessary facts did not seem to be established upon which legal liability could be founded.
Therefore in a case of that kind, we would advise that the department had no reason for diverting public money to the payment of a claim which was not properly founded upon legal liability. The officers of the government have not access to a treasury into which they can dip their hands to take out some money and pay it to John Jones, John Doe or Richard Roe because he has made a claim against the crown. The only basis upon which we can justify to the auditors of the crown such payment is by showing either that there is a legal liability for which we should settle or, as in some cases, the circumstances are so difficult as to make it proper that as a matter of grace the crown should pay some compensation to the claimant.
May I now refer to the case raised in very general terms by the hon. member for Simcoe North, in which he said, as I understood him, that an intoxicated servant of the crown, acting within the scope of his authority, has caused damage to another motor vehicle which damage had not been paid for as it would have been, according to his statement, had it been committed by an employee of the Imperial Oil company. I must say that the

present bill will not introduce any change in the law which would help in a case of that sort. For many decades the law has been that actions against the crown based upon negligence could be launched in the exchequer court. If I mistake not, the set of facts which the hon. member posed to us this afternoon establish negligence if they establish anything.
Therefore the present bill, introducing no change in the law in that respect, would not improve the chances of my hon. friend's friend of getting compensation. But I think if he went over the facts to which he referred in such general terms with greater care- with something approaching the care with which they are gone over in a court of law, where the people who are asserting them are subject to cross-examination-he might find first of all that there was no negligence, or that there was contributory negligence, or that the servant of the crown was not in fact acting within the scope of his authority. In a great many cases of this sort where the man is in charge of a motor vehicle and is intoxicated, he is not in the course of doing the crown's business. He has usually got the business done, has tarried on the way to take one or two drinks and has gone off in some other direction, and has strayed a long way from any path upon which his responsibilities alone would have taken him. Upon facts of that sort the case would turn not upon the condition of the law as it was before this bill was passed or the condition of the law as it will be after the bill has been passed. It will turn upon these facts, and on these facts the position of the crown would be the same as the position of the Imperial Oil company; that is to say, that although a claim may be made against the servant, the master cannot be made responsible unless the servant has committed this negligence within the scope of the authority with which the master has invested him.
There is one other point upon which I should like to make a few general remarks. I refer to the proposal made by the hon. member for Lake Centre (Mr. Diefenbaker) that, if I understood him correctly-and I hope he will correct me if I have not done so-in the bill we should make some provision whereby, if the provincial authorities in the discharge of their exclusively provincial constitutional responsibility for the administration of justice bring about a miscarriage of justice, or even if it just happens that there is such a miscarriage, we should step in and pledge the treasury of the federal government to pay for the shortcomings of the provincial authorities in the administration of justice.
Crown Liability


John George Diefenbaker: That is not quite correct. The point I am making is that there is a moral liability in the appointment of judges, and if in the administration of justice, in consequence of those human errors that we all commit, judges cause injury or damage we should not be playing around and saying that the responsibility is somebody else's because, after all, all citizens are citizens of Canada.


Mr. Hodgson:: Who appoints the judges, and who pays them?


Stuart Sinclair Garson: I am glad my hon. friend made this interjection to make it clear that our moral liability would arise because of the fact that we appoint the judges.


John George Diefenbaker: It could not arise in any other way.


Stuart Sinclair Garson: No, it certainly could not arise in any other way. That would be our position upon the one hand. I put it to my hon. friend if it is not a fact that upon the other hand when a criminal prosecution is undertaken, it is launched either by a representative of the provincial attorney general or by a police or legal officer employed by a municipality, which is a creature of the provincial authority.


John George Diefenbaker: Or by the mounted police.


Stuart Sinclair Garson: Or by the mounted police acting in eight of the provinces as officers of the provincial attorney general, except in those cases where they are prosecuting under federal statutes, in which cases there would be no question about our being responsible. But in all the other cases in the general administration of justice the proceedings would be initiated, carried on, continued and controlled exclusively by the provincial authorities.
In point of fact the federal government and the federal authorities would have no relationship whatsoever to these proceedings until after a conviction had been made. The first manner in which we would become concerned would be in the event of a penalty exceeding two years, when the convicted person would come into the custody of a federal penitentiary, or in the other case of a conviction under the Criminal Code or a federal statute which might come before our remissions branch for consideration of commutation and remission of sentence. Apart from that we would have no control whatsoever over these provincial proceedings and nothing whatsoever to do with them.
Under those circumstances does it seem reasonable that in a matter over which we have no control, in connection with which

Crown Liability
we have no constitutional responsibility what- beyond question, where the judge has dis-soever, we should intervene and conduct an charged his duties beyond question, where the investigation-which we would have to do jury has been conscientious and fair within to provide some basis for the expenditure of the limits of human fallibility, yet where the public funds-into the conduct of provincial result which is grossly unfair to an individual authorities in the -carrying out of a provincial might almost be termed pure misadventure, function. Then having reached that -con- Now I am not suggesting for a moment that elusion should we say that we condemn those because it is a misadventure, because there is
provincial authorities, and because we -condemn them we are going to pay some money out of the federal treasury? Does my hon. friend think that would be the sort of conduct or sort of principle that would make for harmony in relations between the federal government and the provincial authorities?
Does he think it would be a prudent -expenditure of federal money to pay it out in that way? Does he not think it would be infinitely preferable in each of these -cases that the provincial authorities should in their corresponding crown liability acts or in other relevant provincial legislation make some provision for protecting those who have been adversely affected by some miscarriage of justice, administered by the province?
I would point out something my hon. friend did not -cover and with which I think he will agree. In order to justify the payment from one litigant to another, whether that litigant be the crown or an individual, it is first necessary under any conception of law that there must be established some foundation for the legal liability of the person against whom the judgment is to be made.


John George Diefenbaker: The minister has asked that as a question. In the first place, the province takes the attitude that the dominion is responsible.


Stuart Sinclair Garson: If I may-


John George Diefenbaker: In Great Britain there is no legal liability, but compensation has always been paid when wrongdoing such as that is done.


Stuart Sinclair Garson: My hon. friend is anticipating my argument and stealing my thunder.


John George Diefenbaker: We are exchanging ideas. You asked a question. If you ask me a question I will answer it.


Stuart Sinclair Garson: Will my hon. friend not agree that as between Richard Roe and John Doe, if there is to be a judgment against the latter there must be established in the -court -proceedings a foundation for the legal liability which is imposed upon the defendant by the judgment of the -court? In the case he is discussing, where there has been a miscarriage of justice, I think he will agree also that you may have a miscarriage of justice where the conduct of the prosecutor has been

no technical establishing of any foundation for legal liability for this result, that the injured individual should not be compensated on the ground you mention.


John George Diefenbaker: The Queen in the United Kingdom does so.


Stuart Sinclair Garson: The United Kingdom is a unitary country and there is- no division of responsibility as between federal and provincial governments. I grant that there, in cases in which- it seems proper, the -crown has provided for compensation. There is no reason in principle why a provision like that should not be made in this country, but I suggest that it should be made and can only properly be made, and as regards the relations -between the federal and -provincial authorities it will be mischievous if it is not made by the provincial authorities who have control of the matter from beginning -to end.
I can remember when the case my hon. friend referred to as having taken place in Brandon was raised in the Manitoba legislature. There was no suggestion in the discussion that followed there that this- was a matter the federal government had to take care of, or for which the federal parliament had to provide an appropriation. The question at issue was whether upon the facts of that particular case there was warrant for the provincial authorities making that compensation. I think upon reflection my hon. friend-


John George Diefenbaker: What was the decision on it when you were premier of Manitoba?


Stuart Sinclair Garson: Yes, I think I was premier. The decision was that upon the facts of that case no compensation should be paid.


John George Diefenbaker: The man served nine months, and he was innocent.


Stuart Sinclair Garson: It is very easy to make these glib references and to sum up the facts of the matter in about 25 words, the way my hon. friend frequently does. The then attorney general of Manitoba, with whom I am sure my hon. friend was well acquainted, was a most conscientious public servant, and he tendered the advice which the government accepted that payment should not be made on the facts of that case.
My hon. friend has told us of cases in the United Kingdom where compensation has

been paid, but he has not made any reference to cases which were considered ini the United Kingdom and in which on the basis of the facts compensation was not paid. I think upon reflection he will probably agree that the provision for taking care of cases of that kind is one which is wholly within the limits of the provincial responsibility, and should be made by the provincial authorities.


[Stage Direction]
Motion agreed to, bill read the second time and the house went into committee thereon, Mr. Robinson in the chair.
On section 1-Short title.
John George Diefenbaker: In the British act the liability is for servants and agents but in this act "servant" is defined as follows:
(c) "servant" includes agent, but does not include any person appointed or employed by or under the authority of an ordinance of the Yukon Territory or the Northwest Territories.
What is the reason for that clause, having regard to the changes that are now taking place in the set-up of the government of the Yukon?


Stuart Sinclair Garson: The employees of those territorial governments are not included because each of such governments has its own employees who are subject to the control of the local government. Therefore it was felt that damages in respect of any action should be taken care of by the local governments.
As my hon. friend knows, these territories are being given an increasing measure of self-government as the years go on; and we feel, rightly or wrongly-I think myself undoubtedly rightly-that in the discharge of that measure of self-government they should discharge their own responsibilities in all their aspects.


William Alfred Robinson: The question the minister has just answered would seem to come under section 2. Do I understand that section 1 has carried?


Stanley Howard Knowles: Perhaps under clause 1 the minister might comment on the kind of case which I sought to bring to his attention when we were at the second reading stage. I was glad to hear his reaffirmation of the statement he made on January 29 to the effect that this legislation will broaden the basis upon which citizens who have suffered wrong or damages may try to obtain a settlement.
The case I have in mind is one which appears to have been turned down by the Minister of National Defence on the ground that there was no evidence of negligence. May I be quite specific and outline briefly the particulars of the case. Back in 1947 an R.C.A.F. aircraft crashed in British Columbia,
Crown Liability
and a number of lives were lost in that crash. It was not until late in 1952 that the remains of the aircraft were found, and it was established that all those on board had lost their lives. Amongst those who have approached the government as a result of that crash is a certain gentleman whose name I have before me, who has brought forward the plight of three infant children of a man and wife, former Winnipeg people, who lost their lives in that crash. When the parents were killed, these three children were left without any visible means of support.
In due course, once the remains of the aircraft were found, an official letter went to the uncle of the children confirming the fact that the parents had been killed, and expressing sympathy and so on. That seems to be as far as the matter has gone thus far. At any rate, the uncle has not taken the matter to court, but rather has made an appeal to the government for compensation to assist in the bringing up and education of these three children who were so unfortunately orphaned as a result of that crash of an R.C.A.F. aircraft.
After certain other appeals had been rejected the matter was brought to my attention. As a matter of fact, if I were to give the minister the name he would recognize it as quite a well known family in Winnipeg. The Minister of National Defence gave some study to the matter, and finally wrote me to this effect on January 5, 1953:
I refer to your letter of November 21 in connection with the matter arising out of the crash of an B.C.A.F. aircraft in 1947.
I am informed by the legal advisers of the department that there is no evidence of any negligence on the part of the R.C.A.F. which contributed to the accident and that there would be no justification for making any payment in respect of the deaths of-
-the persons about whom we had been corresponding. He goes on to say:
Your concern in this matter is very much appreciated, but in view of the foregoing, I feel sure you will understand the position of this department.
The Minister of National Defence seems to take the position very clearly that his department would not be justified in doing anything, for the one reason that negligence was not established. If this type of legislation is passed so that the basis upon which the subject may sue for damages is broadened, will that not also change the attitude of the government generally and the advice of legal officers in other departments, as well as the advice of the Department of Justice in cases of this kind?


Stuart Sinclair Garson: Well, Mr. Chairman, I hope my hon. friend will correct me if my remarks

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indicate that I have misunderstood him. My understanding of his statement of the facts is that in this instance the law officers of the Department of National Defence, not the Department of Justice, have informed the Minister of National Defence that, after going into the facts of the case, there was no evidence of any negligence which contributed to that accident. That being the case, to expect compensation in respect of the death of any individual in that airplane accident would be tantamount to asking the federal treasury to provide accident insurance for all airplane passengers without any premiums being paid.
In reply to my hon. friend's question as to whether this bill will make any change in the legal position of a case of that sort, I would say "No". If there were any foundation for legal liability upon the facts lie has stated surely it would be upon the basis of negligence. If negligence is not established, then there would not be any claim either under the old law or under the new. In this context the main thing which the new bill does is to add a number of other claims in tort in addition to those based upon negligence. Unless the claimant in the particular instance of which my hon. friend is speaking could bring his case under the heading of negligence or some of these other torts, this present bill would not be of any assistance to him.
I think my hon. friend will see that if it is to be the responsibility of the government to pay compensation to people who have been killed in airplane accidents where there is no negligence that would be an obligation to which, in the taxpayers' interest, we would have to give careful thought before we embarked upon it. If he examines it carefully I think he will see that what he has said has nothing to do with torts at all, because it would be only in the event of the facts disclosing negligence that a question of tort could arise.


Stanley Howard Knowles: Are we not being taken around in a circle? May I make it clear that this was not just any aircraft, but was an aircraft owned by the government. The minister puts his hand up in a strange fashion; but one of the points it seemed to me, as a non-lawyer, he was trying to make was that the basis of claim was broadened so that it would include more than negligence and would include torts arising out of ownership, occupation, possession or control of property, including motor vehicles.
May I put this question to the minister. Is it not a fact that he has now told us that the value of this legislation is that it broadens 
the basis so that it goes beyond negligence? But the minute I bring up a case which involves something other than negligence he says that the claim has no basis unless negligence can be established. In that case would he tell us, abstractly or concretely, what is the value of this supposedly broadened basis?


Stuart Sinclair Garson: Well, Mr. Chairman, I am afraid we will have to transform ourselves into a law school for just a minute. Let us leave the crown out of this for the time being. In order for John Doe to get a judgment against Richard Roe under the circumstances outlined by my hon. friend, negligence must be shown. Where John Doe is riding in Richard Roe's airplane and Richard Roe's airplane crashes without any negligence on the part of Richard Roe, John Doe has no claim for compensation. For the only way in Which John Doe can get a judgment is by showing that that accident was due to the negligence of Richard Roe. Clearly, if I am driving along the street and ask my hon. friend if I can give him a lift home, and then when we are on the way home some accident takes place which is no fault of mine at all and he is in the car with me and gets killed, I am not liable for damages.


Stanley Howard Knowles: It would look extremely suspicious.


Stuart Sinclair Garson: No, I do not think so. You cannot dispose of court actions upon suspicions of that sort. When my hon. friend says that it extends to torts arising out of ownership and possession of property, may I say that if he will just suspend his judgment in this regard until we get into those sections dealing with torts arising out of the ownership and possession of property he will see that they do not include or cover the set of facts that he has named.
The type of tort arising out of the possession of property is this. If I have a house, and if I have a broken step in the front of it; then if some total stranger comes along, his ankle goes down into this hole and he breaks his leg, that is the type of tort referred to. It is a species of negligence, if you like. But certainly does not cover the case where you have an airplane accident take place without any negligence, because that is pure misadventure. There is no foundation for legal liability there at all.


Stanley Howard Knowles: In the case which the minister just mentioned-


Stuart Sinclair Garson: May I continue?


Stanley Howard Knowles: -that is the case of the person who breaks his ankle, has the minister there not come right back again to negligence? For the moment I am dealing in the abstract.
I should like to see whether this supposedly

broader basis means anything. It seems to me the minister is coming right back to negligence.


Stuart Sinclair Garson: As I said, in an abstract sense perhaps it may be termed a species of negligence, but it is not the personal negligence of a servant of the crown. It is not the personal negligence that you can pin on any one person as in the case of a man who drives a car improperly. It is just the failure to keep one's property in proper shape so that people who go on it will not hurt themselves. Really the liability there arises from the facts. You do not have to prove that any one person, the agent or the principal, is negligent. The condition of the property speaks for itself, and your legal liability is founded upon that fact. My hon. friend's case is one of misadventure-accident, if you like-where an airplane has crashed without there being any evidence that that crash was caused by the negligence or any other tort of anybody.


Stanley Howard Knowles: There might have been something wrong with the aircraft.


Stuart Sinclair Garson: There might have been. No person knows. But I am sure my hon. friend is aware of the fundamentals of a lawsuit and understands that if you are going to make a defendant liable so as to secure a judgment against him, you must prove that he has been negligent or that he has committed some other tort. You have to bring evidence to that effect. Courts do not just take your say-so for it. You must prove it. Moreover a defendant can bring evidence to prove that it is not so, and it is not until the tort has been established that you have any foundation for legal liability.
It may be that there should be in this country a law under which the federal treasury would provide compensation every time a person was killed in an airplane accident, and do so without getting any insurance premium at all. But if we need a law of that sort it has nothing to do with this bill. That would be another measure altogether.


Mr. Green:: I should like to ask the minister for a further explanation of his answer to the hon. member for Lake Centre a few moments ago, dealing with actions in the Yukon and the Northwest Territories. I understood him to say that the purpose of paragraph (c) of section 2 is to exempt claims for the negligence of, for example, an employee of the Yukon territorial council. That can only mean that if a person were run down by a car driven by an employee who happened to be paid by the Yukon territorial council, the act would not apply; whereas if he were run down by a visiting inspector from the Department of Mines and
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Technical Surveys, the act would apply. Does the minister not think that is a rather fine distinction? Does he not think that people should be covered, regardless of whether an employee happens to be paid by the council or directly by the dominion government?


Stuart Sinclair Garson: I do not think that is a fine distinction at all. I think the federal crown by this act should be, and will be, responsible for the actions of federal civil servants. But where, as in the case of these territorial governments, we have set them up separately -they have their own budgets, their own revenues and so on; they run their own show to quite an appreciable extent now, and we are hoping to increase the extent of their self-government-I think the responsibility for the acts of their servants should be borne by them in the same way as the responsibility for the acts of a British Columbia civil servant is that of the British Columbia government.


Howard Charles Green: Yes; but the difficulty is this. The dominion government apparently is not making any provision whereby the Yukon territorial council will assume a similar responsibility. The minister would be quite right if these territorial councils were going to enact measures which would make them liable in just the same way as the dominion government is now accepting liability; but if that is not the case, it seems to me there is an unfairness here. After all, in both cases the employees are dominion civil servants, are they not?


Stuart Sinclair Garson: Oh, no. My hon. friend has put his finger right on the point. I can quite understand my hon. friend's argument. If he thought these were dominion employees his point would be well taken, and I would not argue the matter for a moment. But they are not dominion employees. These men are employees of the Yukon territorial government, which is a separate government by itself with power-and I think perhaps this will cover my hon. friend's point-to pass ordinances. They are a self-governing body, and they have power to pass ordinances making themselves liable in the same way as we are making ourselves liable. We do not have the power to make them liable. They themselves have the power to pass that ordinance. They have much the same jurisdiction in that respect as has Ontario, Manitoba, British Columbia or any of the other provinces. If public opinion in that territory demands this sort of legislation, they have the power to provide it. That is the distinction. They are analogous to a provincial government but without quite the same powers of self-government.

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John George Diefenbaker: Mr. Chairman, a little while ago the minister said that he was taking up the role of a professor in law school. I thought his explanation of the law of negligence revealed him to be an outstanding potential aspirant for such a position because he has covered with great clarity an extremely difficult subject. I now want to ask him another question. I am wondering whether or not-


Gordon Graydon: You are going to make him a judge before long.


John George Diefenbaker: Well, things like that have happened before.


Gordon Graydon: It could happen again.


John George Diefenbaker: I wanted to ask him this question. Is there anything in the Post Office Act or in the defence act that, under the Post Office Act, denies an action for failure to transmit letters; or under the defence act, where army, navy, or air force officers commit acts of negligence toward members of the forces, specifically exempts the crown from action? The minister knows what I have in mind.


Stuart Sinclair Garson: I would not like to commit myself just offhand to a statement as to the other acts which my hon. friend has named. In the case of the Post Office Act my recollection is that there is a provision of registration and insurance whereby a person sending a letter can at a very nominal cost protect himself against the loss of any letter, and accompanied with that is an absence of liability upon the post office for the safe delivery of letters which are not registered and not insured.


John George Diefenbaker: It is very important that the minister should be fully aware of the regulation in this regard; otherwise the door will be open under this legislation to a multitude of possible actions. In the act passed in Entain there is an exception of the post office and also of the armed forces. I have beiore me the Canadian Bar Review of 1948. There is an^ article by Sir Thomas Barnes, treasury solicitor, and he goes on to point out that under the English act the crown and any servant of the crown is protected from any liability in respect of the carriage of ordinary mails. Later on he says:
Unless, therefore, some provision exempting the crown from liability existed, a multitude of claims might well be made in respect of loss of mails or delay in their carriage or in the transmission of messages.
That is carriage by government telegraphs. A little later on he says there is also the exemption of claims by one member of the armed forces of the crown against another. In the training and maintenance of the

armed forces the crown and its officers have to undertake duties which, if done by a private individual, would not only be unlawful but might also be criminal. He gives as examples the use of live ammunition in training the army and the deliberate flying and close formation necessary for training the air force. There is a section that exempts from liability both the crown and any member of the armed forces in respect of death or personal injuries suffered by another member of the armed forces:
(a)	When he is on duty and is either killed or injured by the act of another member of the forces while on duty; or
(b)	When, although not actually on duty, he is killed or injured by the act of a fellow member of the forces on duty if the event causing the death or injury happens on military premises, or on a ship, aircraft or vehicle used for military purposes;
The British act again exempts the crown and any member of the forces from liability. It is to be observed that that exemption applies only to death or personal injury, and not to the other torts. I have read and re-read this bill, and I am wondering whether or not the matters I have brought to the attention of the minister have been considered. If they have not, the minister is going to be faced with a lot of actions he does not anticipate. For instance, I send a letter in which I accept an offer. If that acceptance arrived in time it would mean in the normal course of events that I would have been able to make a certain sum of money. Owing to the negligence of the post office in transmission, that letter gets put into some out of the way place; and unless that is excepted the crown will find itself in the position where it is going to buy itself a lot of good actions for the litigants, but not so good for the crown.
Then again, in connection with the armed forces in the United Kingdom it was found necessary to particularly exempt the armed forces; otherwise, as was stated in the House of Lords by the Lord Chancellor in a debate some years ago, everyone who survived the battle of Balaklava and who was wounded would have had a right of action, and the beneficiaries of any who lost their lives would have had, under Lord Campbell's act, a right of action. One can think of all the eventualities that might occur in a training camp where live ammunition is used, where musketry training is going on and a live cartridge finds its way into one of the rifles for use. Unless that is excepted, as it is in the United Kingdom, this bill may have much wider consequences than were ever anticipated. That is why I asked particularly whether in the defence act and in the Post Office Act the crown is not liable. The

minister said he was not sure. I think he will agree that that is a matter that deserves consideration.


Stuart Sinclair Garson: Perhaps I had better clarify
my previous statement to this extent. When my hon. friend asks me as an effort of my casual, offhand memory to relate to him the provisions of these other statutes providing for the crown's position in these cases. I am sure I could not reproduce them for him, but if he has the bill in front of him he might well look at clause 4, subsection 1, and he will see that it reads:
No proceedings lie against the crown or a servant of the crown in respect of a claim if a pension or compensation has been paid or is payable out of the consolidated revenue fund or out of any funds administered by an agency of the crown in respect of the death, injury, damage or loss in respect of which the claim is made.


John George Diefenbaker: That is only when a
pension is payable.


Stuart Sinclair Garson: Yes. Upon a little notice I
could trace the process myself, although it would be a rather long one, but if my hon. friend would take that clause and match it with the clauses in the defence act, in the Aeronautics Act, in the employees compensation act and in the various other federal statutes he would find that the composite effect would be to relieve the crown from the claims of which he speaks.


John George Diefenbaker: If the minister can say
that section does that, then my objection is withdrawn; but it does not seem to cover it so far as I am concerned.


Stuart Sinclair Garson: This section was drawn in
the light of a comparable British section, modified to fit our own circumstances here, and our impression is that it covers the whole thing. It may be that our opinion in that regard is wrong, but that is our opinion.


John George Diefenbaker: When the minister says
the British section is modified to cover the hypothesis I have raised, I must say that it begs the question, as I see it, because the British not only have a section similar to section 4(1), but they have gone beyond that. They have specifically stated in sections 9 and 10 of the United Kingdom act that there is no right of action under the circumstances outlined by me, in the transmission of messages by the post office, and injuries sustained in the armed forces. Section 4(1) states simply this:
No proceedings lie against the crown or a servant of the crown in respect of a claim if a pension or compensation has been paid or is payable out of the consolidated revenue fund or out of any funds administered by an agency of the crown in respect of the death, injury, damage or loss in respect of which the claim is made.
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Now let us take the case of a person to whom no pension was payable. In such a case in the armed forces would the liability still not be maintainable as against the crown for the negligence of an officer or a non-commissioned officer? I leave that question with the minister. Certainly my reading of this bill indicates to me that it is very doubtful whether under the wording of section 4 (1), or that of any other section, the situation to which the British parliament has given considerable attention has in fact been met.
If the door is open, then certainly it should be closed against the plethora of cases which will be the result. If the department is in a position where all it can say is, in common with the minister, that it believes the door is closed, then I feel that there should be some amendment which would assure that it is in fact closed.


Mr. Adamson:: I am sorry I was not in
the chamber during the whole discussion, and I do not know whether the question I shall ask has already been asked. This question arises from an accident to a military vehicle whose driver had stolen it from a car park, and at the time of the accident was not on military duty. He was a member of the armed forces, and he was driving a military vehicle. The accident resulted in severe injury to two other persons. The military vehicle was very much in the wrong, but the Department of National Defence ruled that because the driver was absent without leave and was not on military duty at the time, they had no responsibility and were not in any way liable for the accident. It seems to me something should be done to cover such a case.


Stuart Sinclair Garson: I think in a case of that kind-and of course I am speaking offhand- the Department of National Defence would apply to the facts of that case precisely the same rule as would be applicable to all torts committed by a servant beyond the scope of his master's authority. If for example my hon. friend employs a chauffeur whom he asks to take a guest to, we will say, the city of Hamilton, and then to come home; and if the chauffeur, after taking the guest to Hamilton, fills himself up with a cargo of liquor and goes gaily off to St. Catharines, and while he is there commits a tort against someone and causes great damage, I do not think under those circumstances my hon. friend would be liable because the chauffeur is not acting within the scope of my hon, friend's instructions. The liability of a master in such cases is a liability in respect of the acts of his servant, acting within the scope of his authority. It would be an unjust result for

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my hon. friend, if he had to pay $25,000 or $30,000 damages, because his chauffeur went off, beyond his instructions, and indulged in an escapade of that kind.


Agar Rodney Adamson: While I realize that in all probability that is the law, nevertheless I believe most prudent people carry insurance to cover that sort of thing. So despite the fact that a servant of an individual uses his master's property without his master's authority, in the light of the very peculiar situations that develop today before juries in accidents of that kind, I would hate to be a respondent in such a case.


Stuart Sinclair Garson: I would be very much surprised indeed if, when my hon. friend goes home this evening or at some convenient time, he were to look at his insurance policy, and find any clause which would make his insurance company liable under the circumstances he has described. For I do not know why they would want to make themselves liable in respect of a matter for which my hon. friend himself would not be liable. Why would they?


Jean Lesage: It would be excluded.


Gordon Francis Higgins: Would the minister tell me
if I have interpreted correctly the liability with respect to United States nationals committing torts arising out of the occupation of bases in Newfoundland? Would that come within this act?


Stuart Sinclair Garson: Obviously it does not, because one of the powers we do not possess in this parliament is that of imposing any liability upon the government of the United States of America. It would be quite beyond our power to do that. If my hon. friend would raise the point when the estimates for the Department of National Defence are being considered, I think he would discover that the point he mentions is covered by the Visiting Forces Act. Even by the greatest stretch of the imagination we have no power in this parliament to create a liability upon the government of the United States.


Gordon Francis Higgins: I am not asking for the
creation of any liability. I am referring to a liability created by a member of the armed an agent of this government, when those an agent of this government, when those forces are occupying territories owned by Canada. Surely they come within the purview of some act. At the present time the Visiting Forces Act does not cover them.


Stuart Sinclair Garson: Oh, yes.


Gordon Francis Higgins: Oh, no. It does not cover
them.


Stuart Sinclair Garson: I think it does. I have before me the act, as it is set out in chapter 28 of the 1951 statutes. I find that section 16, part III, says:
For the purposes of paragraph (c) of subsection one of section nineteen of the Exchequer Court Act, negligence in Canada of a member of a visiting force while acting within the scope of his duties or employment shall be deemed to be negligence of an officer or servant of the crown while acting within the scope of his duties or employment.


Gordon Francis Higgins: But the minister is not
dealing with the matter I have in mind. Perhaps I did not state it clearly. I am referring to an accident which happens as the result of a United States serviceman, or a United States civilian employed at a base, but who is off the base and not on duty. At the present time when accidents occur, these people may leave Newfoundland and the person who has suffered has no redress, except through the unsatisfied judgments fund. I do not think that is fair, because the fact that bases have been provided by Canada has made it possible for these accidents to happen. I feel that some provision should be extended to cover Newfoundland in a case of that kind.


Stuart Sinclair Garson: My hon. friend is asking for
a provision which would apply to the case of the servants of visiting forces, or the members thereof, who caused damage by their negligence while acting beyond the scope of their authority.
As was pointed out in the case which was cited by the hon. member for York West a moment ago, no provision is now made in the law that my hon. friend should be liable for the negligence of his servant acting beyond the scope of his authority. The law does not create any such liability upon my hon. friend as a master. No provision is now made for any civil servant while acting beyond the scope of his authority creating a liability upon the part of the Canadian government. No provision exists unless it is in the Newfoundland law, in which there may be a provision to that effect, that a civil servant of the Newfoundland government, acting beyond the scope of his authority can create any legal liability upon the Newfoundland government. It would be a most extraordinary proposition, it seems to me, that we should visit or attempt to visit, even by diplomatic methods, a liability upon the government of a friendly state for acts of their representatives acting entirely outside the scope of their authority while here. Then we should be applying to them for the benefit of our own people a much more onerous rule of law than is imposed upon any of our own Canadian governments.


Gordon Francis Higgins: But at the same time the minister will bear with me in this case. I think the minister is aware of the general provisions of the funds set up for unsatisfied judgments in motorcar accidents. It does not seem quite fair to me when quite a large number of visiting Americans, both civilians and members of the armed forces, are in Newfoundland with the complete concurrence and I presume in some cases at the express wish of the Canadian government. If these United States citizens or army men have a judgment against them and are transferred, as has happened on a number of occasions, then the fund that has been established is going to be completely eaten up.
Inasmuch as the Canadian government has to a large extent made it possible for numbers of Americans to be in this country,
I feel that some care should be taken to see to it that the province is not penalized in such cases. Under the provisions of the act an ordinary citizen has certain penalties assessed against him. He cannot drive any more until he makes good the damages, and there are other similar penalties, as the minister well knows.


Stuart Sinclair Garson: Of course, as a lawyer my hon. friend is aware-not that I am suggesting that it might be of any value-that so far as the individual whose negligence is the cause of the accident is concerned, he can be proceeded against as a person within the jurisdiction. I will grant you that is not much satisfaction because in most cases you cannot recover your execution from him.


Gordon Francis Higgins: You cannot proceed outside the country.


Stuart Sinclair Garson: No, you cannot proceed against him if he is outside the country. In those cases I admit that it does impose a burden upon the unsatisfied judgments fund, if that is the right term, of Newfoundland. But the same type of problem is encountered in several of the other provinces of Canada. In the province of Ontario, for example, there are tens of thousands of United States tourists who come here; and if any of them become involved in an accident here caused by their negligence, then any judgment recovered against them as citizens of another country may not be exigible. In such a case the judgment creditor in Ontario will have recourse, I presume, against the Ontario unsatisfied judgments fund and the fund will have to bear that burden. That is a burden which I suggest is not very great in total and is part of the price we pay for having in the one case visiting forces and in the other case tourists in our country who make somewhat of a contribution to our economy and whose presence most provinces
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-I think this would be true of Newfoundland also-rather welcome.


Gordon Francis Higgins: I agree entirely as far as the benefits are concerned, but in spite of that fact I still say that these bases are a major industry in Newfoundland, and I still do not think it quite right that the fund should be made to bear the entire responsibility.


Agar Rodney Adamson: I wish to say to the minister that I realized that I would not be liable if my car were stolen or taken by somebody else without my knowledge, and an accident ensued. I am pointing out what I might call a de facto situation. If a servant of mine were involved in an accident, with our courts as they are constituted at the present time and with the strange prejudiced attitudes of juries, on the one hand I can see myself being held liable for the accident yet having the insurance company at the same time saying that they had no responsibility.
I can see myself in those circumstances being caught and found liable in a court and at the same time having the insurance company deny responsibility. It is the de facto situation that exists.


Stuart Sinclair Garson: It is indeed a de facto
situation but, with respect, it is not open to the interpretation, if I may say so, that my hon. friend puts upon it. Would he not agree that a contract of insurance is a contract of indemnity? They agree to indemnify you in respect of your liability. Your liability is based upon the general law which applies to everybody and is based also upon the facts of the particular case in which you become involved. If the jury is able in its verdict to so connect those facts with the requirements of the law as to establish liability against you, then your insurance company will have to pay the judgment under the indemnifying terms of your insurance policy.
But what I am saying is that to these cases the general law that the master is not responsible for the acts of his servant committed outside the scope of his authority will apply. A marginal case, perhaps, as considered by a jury, may be decided against my hon. friend, but the usual run of cases of this sort will not be, and in these the insurance company will not have to pay. I venture to say that my hon. friend will not see any clause in his policy which says that the insurance company will protect him against liability arising from acts of his servants committed beyond the scope of their authority.


Agar Rodney Adamson: Oh, yes; that is so.

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Stanley Howard Knowles: May I ask the minister one other question with respect to the case about which I was speaking some minutes ago? I refer to the case of the air crash in British Columbia. After the passing of this legislation will it be possible for the people who are concerned for the children who are left to sue in a manner which was not previously possible? I am not asking the minister to say whether or not they would be able to establish their claim, but would they have a right to sue for something other than negligence, a right which I take it was not theirs previous to the passing of this legislation.


Stuart Sinclair Garson: It is pretty hard to answer
a question involving the laws of the different provinces of Canada. I think they could sue provided it was not statute barred, but whether it is statute barred I do not know. Where did the accident take place; British Columbia?


Stanley Howard Knowles: In British Columbia.


Stuart Sinclair Garson: I do not carry in my mind
what the statute of limitations of British Columbia is. The hon. member for Gloucester signals to me that it is six years, but for a tort I doubt it. I think my hon. friend is thinking of a contract. I think the limitation period for a tort would be less than six years.


John George Diefenbaker: As a matter of fact, provision is made in this measure that there is no right of action at all for anything that has happened prior to the passing of this bill. That is one of the points I raised, and we will come to it in due course. Anything that has happened up to the present time, regardless of whether or not it was a tort, is barred.


Stuart Sinclair Garson: This illustrates the difficulty of discussing these cases. That is quite true; but my hon. friend will realize, will he not, that so far as negligence is concerned his right of action is unchanged by the present legislation.


John George Diefenbaker: That is true.


Stuart Sinclair Garson: So if he had a case that was within the statute of limitations he could still take it, anyway.


John George Diefenbaker: That is perfectly correct.
I come to one other matter. Who is sued under these proceedings? I have placed before the minister the example of a person who lives adjacent to a military camp. The military authorities engage in musketry practice, carelessness follows and someone is wounded when going about his ordinary business on his own property. No one knows 
who fired the shot; there is no identification of the person who fired it and therefore there is no individual to sue. You cannot sue an imaginary defendant or create a Richard Roe or John Doe, to use the expressions of the Minister of Justice.
In the United Kingdom provision is made, in a case where you cannot identify the wrongdoer, to sue the attorney general. Is there any provision under this legislation to cover a case such as I have placed before the minister? Should there not be something similar to that provided in the United Kingdom act, where there is no identification of the wrongdoer, so the right of action shall not be lost?


Stuart Sinclair Garson: As a matter of fact, I think
our provision is superior to that of the United Kingdom statute in the respect that my hon. friend has just raised. It runs in my mind that under the British statute the suit has to be brought against the department of government involved, which would involve establishing in which department the servant was against whom negligence or some other tort was charged. In Canada the suit in the exchequer court is against Her Majesty regardless of the department in which the matter arose. In the provincial courts it would be against the Attorney General of Canada. I think my hon. friend will find that provided for in section 10, subsection 2.


Albany M. Robichaud: Section 12 provides that
there shall be no judgment by default against the crown when the proceeding is instituted in a provincial court. Is there such a provision in the exchequer court practice? After the filing of a petition of right is there provision barring the entry of judgment by default against the crown? I have tried to get Audette on "Exchequer Court Practice" but they tell me in the library that it has been taken out from the shelves, so I am not just sure of the practice. Could the minister clarify the situation? I would like to know if there is a similar provision in the exchequer court practice.


Stuart Sinclair Garson: Speaking from memory I do not think there is. I am sure my hon. friend will recall that up until a year or so ago actions against the crown could not be taken until a fiat had been obtained from Her Majesty permitting suit to be brought. In the process of considering whether or not the fiat should be issued the crown was put upon notice; and this facilitated the by no means uncomplicated process of the Department of Justice conferring with the department concerned, which in turn might have to confer with some employee in a remote part of British Columbia, for example. Under the fiat system the matter of getting a proper

statement of facts could be properly looked after from the standpoint of the crown.
Under this new provision we are making the crown directly liable for actions which may be started in provincial courts all over Canada, from Newfoundland on the east to Vancouver island on the west. It will be a difficult task for the Department of Justice to keep track of a mass of claims and a mass of litigation which can be taken in the provincial courts. The business of getting proper instructions for the carrying on of defence is much more complicated and difficult than that which would be experienced by my hon. friend from Gloucester, with his numerous clients who are right at hand, and whom he can reach conveniently in order to get his instructions.
We have put in this provision as an experimental protection in a Canadian statute which will not be administered in some compact country like Great Britain but in a vast extent of territory and in the courts of ten different provincial jurisdictions, now that we have opened up the provincial courts to these claims against the federal crown. I am quite prepared to say that if we find on experience that we can relax this present provision, we will be glad to do so. We have in the first instance drafted the bill in this way only because we cannot foretell just how long it will take to run these cases down in order to find out what the facts are and put ourselves in the position where we can adequately defend them. Getting a statement of facts from a federal surveyor in northern British Columbia is a much more complicated business than for my hon. friend to get instructions from his client.


Albany M. Robichaud: I thank the Minister of Justice for making a comparison between my clientele and that of the Department of Justice, but I think it is rather farfetched because in my little office I have not the numerous legal officers available that I assume the Attorney General of Canada has.
I realize that the jurisdiction under this act is quite extensive, but it must be borne in mind that there is a 90-day notice preliminary to the institution of the proceedings. It seems to me that in 90 days, with the men available in the Department of Justice, there should be ample opportunity to check on every detail of the claim. If a writ of summons is issued immediately after the 90 days have expired there is another 10-day leeway in which to put in a defence, in which to file an appearance; and then under our procedure the statement of claim would have to be filed, which provides for another leeway in filing the defence. I think the
Crown Liability
time element is fully covered, and there should be no excuse there.
I am just a newcomer to Ottawa and I have not set my foot inside the offices of the Attorney General of Canada, but I assume there is quite a staff there. I assume that every means must be at his disposal in order to make the necessary investigations within the 90 days, to which would be added another 10 days. There is a total of 100 days in which to investigate a claim, so I cannot see any justifiable reason why there should be this section which debars the litigant from obtaining a judgment by default where no appearance has been filed. Can the Minister of Justice point to a similar provision in the British practice?


Stuart Sinclair Garson: I do not know whether there is a similar provision in the British practice, and I would be surprised if there were. As the hon. member for Lake Centre pointed out this afternoon, they have had legislation similar to this since 1947, and during that time they have no doubt built up a procedure which enables them to deal with these matters more expeditiously than we can at the beginning. Then, of course, if my hon. friend stops to consider that you can take the whole of the British Isles and drop them into a corner of even our second smallest province whereas we have to cover the whole width of the continent of North America, he will see that it is hardly fair to draw a parallel between the United Kingdom and Canada. If he will examine the Ontario statute which parallels this one in setting up crown liability, he will see that the period of time is much the same.
This arises from the fact that, in this matter, the federal Department of Justice does conduct the litigation not with a large staff of law officers but with a staff of about 20 who, along with a great mass of other work, run about 1,000 cases on the current docket. As some cases come on, others go off, but that is the current load that is carried. In these matters we have to contact the heads of other departments, they have to get a statement of the facts from some employee who is often away down the line, and then it has to come back to the higher-ups in the other department, and thence to us. We have settled upon this time, as the province of Ontario has done, realizing that if we could do it in a shorter period of time we would be glad to do so.


Albany M. Robichaud: Has the province of
Ontario a similar provision as to no judgment by default without leave?


Stuart Sinclair Garson: Yes, they have.
32S0

Crown Liability Section agreed to.
Section 2 agreed to.
On section 3-Liability in tort.


Howard Charles Green: When the resolution preceding the bill was under debate on January 23, I asked the minister this question as recorded on page 1271 of Hansard for that date:
May I ask the minister whether this measure will cover the case of a person suffering damage before the bill becomes law? For example, suppose a person was injured a year ago by reason of neglect in the care of a government building, would it be possible to sue in respect of that negligence under the new act? I would hope that would be the case. I do not think it would be fair to restrict the right to causes of action which arise after the bill has been passed, provided the causes have not been outlawed by provincial law.
At that time the minister said he would answer when the bill was under debate.


Stuart Sinclair Garson: The answer is no, Mr. Chairman.


Howard Charles Green: Why is the bill worded in such a restrictive way? It does seem to me the test should be whether or not the cause of action is outlawed. If a person were injured six months ago and has not yet sued, why should he not have the benefit of the provisions for suing, for example, in the county court?


Stuart Sinclair Garson: If we examine the nature of the legislation which is being brought forward, it will be seen that what we are doing is creating for the benefit of certain groups of claimants throughout Canada, as of this date, causes of action which formerly did not exist at all.	We are doing that at the
expense, not of the crown except in a rather unreal sense, but at the expense of the Canadian taxpayer. We have thought that since a line has to be drawn somewhere, the proper way to draw the line is to make the act applicable to those cases which arise after the act has been passed.
My hon. friend says we should go back to the period of limitation which would mean, I presume, since this is a matter of property and civil rights, that it would be governed by the statute of limitations of the various provinces. These would vary from province to province. In view of all the considerations which could be taken into account, we thought the proper way was to do it as indicated in the bill.


Howard Charles Green: The minister said these are new causes of action provided by the bill, but that is not accurate, is it?


Stuart Sinclair Garson: Yes, it is accurate.


Howard Charles Green: The bill applies to some causes of action which people had before, but which had to be taken in the exchequer court.


Stuart Sinclair Garson: No, the causes of action which are covered by this bill are those for which Her Majesty was not previously liable in law.


John George Diefenbaker: It includes all torts, so
it would include negligence, too.


Stuart Sinclair Garson: So far as negligence is concerned, there is a continuity there.


John George Diefenbaker: A moment ago the
minister mentioned that whatever was ordered by the courts to be paid would have to be paid by the people of Canada. Having regard to the number of claims that have been made which could not be considered because of the fact that the crown was not liable, would the minister estimate what this would cost the Canadian people per year? It will be surmise in part, but it will be based also on the number of claims during the last year that, but for the fact there was no liability on the part of the crown except for negligence, would have found their way into the courts.


Stuart Sinclair Garson: If I may say so, I doubt
very much if any estimate could be made for which any claim of accuracy could be established. If one were interested in arriving at an abstract result, the best way would be to compare the experience of the British over the last five years. It is true, as I have said in previous debates on this general subject in this chamber, that the great majority of claims in tort against the crown are based upon negligence. We have no means of knowing, even to an approximate extent, what claims for these other types and conditions would amount to until we create the liability. When there is no liability and there are lots of sets of facts upon which claims might now be based, which were not made before because it was known there was no use in making them,
I think it would be quite a useless undertaking to make an estimate.


John George Diefenbaker: What did the British
find?


Stuart Sinclair Garson: I could not tell you that.


John George Diefenbaker: What does section
3(1) (b) mean when it says,
-in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.
I ask that because of the limitation on the right of action in respect of that section which is provided for in section 4.


Stuart Sinclair Garson: It comprises, Mr. Chairman,
claims which are based upon a breach of duty to invitees on premises, to licensees on premises, to trespassers upon premises, to neighbours coming upon premises-but perhaps I had better spell this out. It will take some time, but I think it will make for clarity in the end.


Hazen Robert Argue: Six o'clock.


Stuart Sinclair Garson: This is quite a large subject, so perhaps we had better stop here.
Section stands.
Progress reported.
Business of the House BUSINESS OF THE HOUSE


Alphonse Fournier: Mr. Speaker, tomorrow we will consider Bill No. 279, to amend the Emergency Powers Act; Bill No. 105, respecting the liability of the crown for torts and civil salvage; Bill No. 227, to amend the Customs Tariff; Bill No. 226, to amend the Excise Act, 1934; Bill No. 225, to amend the Excise Tax Act; and, if we have time, Bill No. 143, to amend the Farm Improvement Loans Act, 1944.
It being four minutes after six o'clock, the house adjourned, without question put, pursuant to standing order.



END OF VOLUME III