1955-02-07

Hon. George C. Marler (Minister of Transport):: Mr. Speaker, on Friday last the hon.
member for Winnipeg North Centre (Mr. Knowles) asked a question regarding an item in the Winnipeg Free Press attributing to Mr. F. H. Keefe, general manager of the Canadian National western region, certain remarks about reductions in the railway budget. Later on that same day the hon. member took the opportunity afforded by the debate on the address to comment on the statements attributed to Mr. Keefe.
I shall not reply to the comments of the hon. member but in fairness to Mr. Keefe and the management I think I should draw the attention of hon. members to the dispatch appearing in Saturday's papers in which Mr. Keefe flatly denies that at any time in his remarks did he mention Mr. Gordon or the management at Montreal. In his statement to the press, as reported by the Montreal Gazette of February 5, Mr. Keefe said he had intended to indicate that recent layoffs had been the result of falling traffic and that if business continued to decline other economies might be necessary. The Gazette report goes on to say that Mr. Keefe stated he had added in a jocular way, the occasion being a social banquet, some reference to his own job being at stake unless expenses were kept down. No statement was made by the president of the railway such as attributed to him in the Winnipeg Free Press report.
It will be of interest, I think, if I remind the house that in the dispatch containing Mr. Keefe's denial there was also a statement by Mr. J. R. McMillan, vice president of the railway in Winnipeg, that while avenues of economy are constantly being studied the present outlook is for traffic to continue at its present volume, and I particularly mention his opinion as reported in the same dispatch that no further staff layoffs are anticipated.



AIR TRANSPORT


[Stage Direction]
On the orders of the day:
Mr. John B. Hamilton (York West):: Mr. Speaker, I should like to direct a question to the Minister of Transport. Is the minister aware that Queen Charlotte Airlines of Vancouver has received an offer or offers of purchase substantially in excess of the asset value of the company, and is it the government's intention to attempt to recover part or all of the quarter sf a million dollar subsidy paid to the said company in the last two years if the sale transaction is consummated?


George Carlyle Marler: Mr. Speaker, I shall have to take the hon. member's question as a notice and reply to it tomorrow.



PRIVATE BILLS


Mr. J. W. Monteith (for Mr. Mitchell, London) moved: the second reading of Bill No. 9, respecting the Huron and Erie Mortgage Corporation.


[Stage Direction]
Motion agreed to, bill read the second time and referred to the standing committee on banking and commerce.

Mr. John Hunter (Parkdale) moved: that the following bills be read the second time:
Bill No. 10, for the relief of Daisy Ruth Kirk Stanistreet.-Mr. Hunter.
Bill No. 11, for the relief of Irene Christina Edwards Mackay.-Mr. Hunter.
Bill No. 12, for the relief of Barbara Elinor Richardson Jones.-Mr. Hunter.
Bill No. 13, for the relief of Wira Pushkar Tereshtshenko.-Mr. Hunter.
Bill No. 14, for the relief of Stella (Stephania) Burnatowska Holowaty. - Mr. Hunter.
Bill No. 15, for the relief of Harry Evert Finlayson.-Mr. Hunter.
Bill No. 16, for the relief of George James Nangreaves.-Mr. Hunter.

Private Bills-Divorce
Bill No. 17, for the relief of Carmela Lanza Morash.-Mr. Hunter.
Bill No. 18, for the relief of Meyer Francis Doyle.-Mr. Hunter.
Bill No. 19, for the relief of Julia Mary Collen Dwyer Rose.-Mr. Hunter.
Bill No. 20, for the relief of Bela Koschitza Brawerman.-Mr. Hunter.


Mr. R. R. Knight (Saskatoon):: Mr. Speaker, I am well aware that since this is Monday any discussion of these divorce bills would cut down the time to be devoted to private members' resolutions. Therefore I propose to say nothing in detail about these particular bills but I do want to express the hope that some other method may be found for dealing with these divorce bills than having them come before this house.
Since these bills concern only two provinces may I offer the suggestion that hon. members from those provinces-


Mr. Speaker:: May I interrupt the hon. member to remind him that we are at the beginning of a new session. During previous sessions we have had debates as to how these divorce bills shall be dealt with on second reading. It being the beginning of a new session perhaps one may be permitted to adopt a new resolution. I have resolved that no matter how much latitude I may be inclined to give I shall not allow any discussion except that which relates to the principle of the bill. I do not think hon. members will find that they are referring to the principle of these bills when they stand up and offer suggestions as to how they should be dealt with. That is not the manner in which this can be brought about.
If the hon. member wishes to submit by way of a bill some other method by which these divorce bills can be dealt with, he will have ample opportunity to incorporate whatever suggestions he may have to offer. But I do not think it is in order on the second reading of these bills to make such suggestions, and I would like the hon. member's co-operation in respect to this point.


Robert Ross (Roy) Knight: Mr. Speaker, I quite agree with what you have said. I am quite aware also that I have the right to go into the details of these bills. I could go into them thoroughly and keep the house for at least the next 40 minutes. But that is something that I do not want to do. Also I could have asked that each bill be called and dealt with separately, but that is something which I think would be completely wrong. I may have only 30 seconds left now, but the suggestion I was going to make would have taken but 30 seconds. However, that is your ruling and I bow to it.
[Mr. Hunter.)


Mr. Speaker:: The hon. member may do whatever is in order no matter how long it may take, but he cannot do anything that is not in order.


Robert Ross (Roy) Knight: It would not be in order to suggest that the members of parliament who are from those provinces might meet and consider this matter and call in consultation interested people and devise some method agreeable to those provinces?


Mr. Speaker:: I am sorry; the hon. member has asked a question. My reply is that it is not in order. Shall these bills be read a second time now?


Some hon. Members:: Agreed.
Motion agreed to and bills read the second time.



QUESTIONS


Mr. Hamilton (Notre Dame de Grace):: 1.	What are the physical measurements of radioactivity?
2.	How many times has radioactivity been detected, at what strength, and for what periods, in (a) Ottawa; (b) Montreal?
3.	Has any consideration been given to requesting the United States government to hold their proposed February atomic bomb tests in some location more distant than Nevada?


Mr. Blanchelfe:: 1.	Radioactivity is measured in roentgens.
2.	Radioactivity can be detected in the atmosphere at all times but following atomic and thermonuclear explosions the radioactive content is increased. Since March 1951 the defence research board has been measuring the radioactive content of the atmosphere in the Ottawa area and, while an increase in radioactivity has been noted following explosions, the increase has never been sufficient to constitute any hazard to human, animal or plant life. The defence research board has not made any examination of the radioactive content of the atmosphere in the Montreal area.
3.	For the reasons given to the house on another occasion, Hansard of April 5, 1954, at page 3645, no danger of contamination is anticipated from the proposed February atomic bomb tests in Nevada. Hence, there is no need to ask the government of the United States to hold these tests at a more distant location.


MEAT AND POULTRY IMPORTS
Mr. Charlton:: 1.	How many pounds of (a) beef; (b) pork; (c) lamb or mutton; (d) poultry, have been imported into Canada each year from and including 1950?
2.	From what countries, and of what dollar value in each case?


Mr. Dickey:: Questions


TWO CENT POSTAGE RATE
Mr. Knowles:: 1.	What steps has the Post Office Department taken to inform the public as to what items can be mailed in Canada in unsealed envelopes for two cents postage?
2.	What are the items that can be mailed for two cents postage?
3.	Is consideration being given to make this information more widely known? If so, in what ways?


Mr. Kirk (Shelburne-Yarmoulh-Clare):: 1.	By means of: (a) The postal guide and monthly supplements thereto; (b) The booklet of postal information (available free of charge); (c) Display of notices in post office lobbies; (d) Paid advertising in newspapers, magazines, radio and other similar media; (e) Personal addresses by public relations officers to schools, service clubs, church groups and business organizations.
2.	(a) Circulars, catalogues, books, greeting cards and other matter which is entirely printed; (b) Partly printed and partly written


Mr. Kirk (Shelburne-Yarmouth-Clare):: Subject
18th International Red Cross conference ...
Sir John J. C. Abbott	
Alexander Mackenzie	
Wildlife conservation
Polar bear	
Moose	
Bighorn sheep	
Coronation, H. M. Queen Elizabeth II	
Wildlife conservation
Walrus	
Beaver	
Sir John S. D. Thompson	
Sir Mackenzie Bowell	
items not having the character of personal correspondence such as federal and provincial government statistical returns, notices of meeting cards, notice of polling cards, price lists.
3.	The department takes advantage of every reasonable opportunity to disseminate postal information and will continue to do so.



NATIONAL DEBT

Mr. Hodgson:: What was the national debt at the end of the fiscal years 1935, 1940, 1945, 1950, 1953?


Mr. Benidickson:: See page 119 of the public accounts of Canada for the fiscal year ended March 31, 1954.



POST OFFICE DEPARTMENT-SPECIAL STAMPS

Mr. Knowles:: 1.	How many special stamps have been issued by the Post Office Department since January 1, 1952?
2.	What are the particulars of each such special stamp?
Colour	Denomination Date of Issue Cents	
blue and ;	red 4	26th July, 1952rose	3	3rd November, 1952orange	4	3rd November, 1952blue	2	1st April, 1953brown	3	1st April, 1953gray	4	1st April, 1953purple	4	1st June, 1953gray	4	1st April, 1954blue	5	1st April, 1954purple	4	1st November, 1954blue	5	1st November, 1954



PROPORTIONS OF TAXES RECEIVED AND SPENT

Mr. Balcom:: 1.	What proportion of each dollar received by the government comes from (a) individual income taxes; (b) corporation income taxes; (c) excise taxes; (d) customs duties and other taxes; (e) loans, etc?
2.	What proportion of each dollar, received by the government, is spent for (a) national defence; (b) national welfare and social services; (c) veterans pensions?


Mr. Benidickson:: 1.	(x) (a) 27 cents* in 1953-54; (b) 27 cents*; (c) 20 cents*; (d) 17 cents.
*Excluding old age security tax receipts.
(x) These taxes total 91 cents. The remaining 9 cents is received from non-tax revenues and special receipts and credits. (See page 21 of the public accounts of Canada for the fiscal year ended March 31, 1954).

2.	(a) 42 cents in 1953-54; (b) 12 cents *; (c) 3 cents.
*Excluding old age security pension payments.



DEBTS OWING BY FOREIGN COUNTRIES

Mr. Thatcher:: 1.	Are regular payments being made by China, Czechoslovakia, Rumania and Greece on their outstanding debt to Canada?
2.	If not, what reason is given in each case?
3.	Have any of the above-mentioned nations indicated intention to keep up regular payments in the future?


Mr. Benidickson:: 1.	China, Greece and Rumania are not making any payments on their debt to Canada. Czechoslovakia has resumed payments on its indebtedness to Canada.

2.	The government of China has indicated that it is unable to meet its obligation to Canada because of a shortage of foreign exchange and heavy military expenditure.
Rumania has not paid interest on its indebtedness since 1941 and no reasons have been officially communicated to the Canadian government.
Greece has not paid interest on or principal of its indebtedness since 1931, stating that it is unable to make such payments.
3. Czechoslovakia-Yes.	China, Rumania and Greece-No.



REVENUES RECEIVED FROM PROVINCES

Mr. Hahn:: What was the sum total of all revenues received from each province by the federal government for each of the years 1950, 1951, 1952, 1953 and 1954?


William Moore Benidickson: The federal government does not receive revenues from provinces outside of small amounts for rentals, sales of publications, etc.



GRAIN HANDLING

Mr. Johnson (Kindersley):: 1.	How many box cars suitable for grain had the (a) Canadian National Railways; (b) Canadian Pacific Railway, in each of the years 1952, 1953 1954?
2.	How many carloads of grain were handled (a) by the Canadian National Railways; (b) by the Canadian Pacific Railway, in each of the years 1952, 1953, 1954?
3.	How many cars of grain were loaded in Saskatchewan (a) by the Canadian National Railways; (b) by the Canadian Pacific Railway, in each of the years 1952, 1953, 1954?


Mr. Dickey:: 1.	Information not available in the dominion bureau of statistics.
2.	Carloads of grain loaded in Canada-
1952	1953	1954
Canadian National
Railways	 264,421 249,916 171,968
Canadian Pacific
Railway	 268,100 249,181 169,285
3.	Information not available in the dominion bureau of statistics. The tonnage of grain loaded in Saskatchewan by each of the specified railways is shown below.
Tons of grain loaded in Saskatchewan- 1952	1953	1954
Canadian
National
Railways.. 5,558,662 6,121,903 3,704,260* Canadian Pacific
Railway . . 5,776,845 6,240,001 3,646,999* *11 months ending November 1954.
Questions



GAGETOWN CAMP


Mr. Thomas:: 1.	Is the Department of National Defence selling pulpwood obtained from the clearing of certain areas in the Gagetown camp?
2.	If so, to whom is it being sold?
3.	What is the price obtained for this pulpwood?


Mr. Blanchette:: 1.	No. Contracts for clearing operations at Gagetown grant to contractors the right of the timber removed. Bids by contractors for these contracts, which were publicly advertised, were based on estimates of the value of such timber.
2.	Not applicable.
3.	Not applicable.



CATONS ISLAND

Mr. Thomas:: 1.	Has the Department of National Defence purchased an island in the Saint John river, known as Catons island?
2.	If so, from whom was it purchased?
3.	What was the price received?


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



HAROLD C. BANKS

Mrs. Fairclough:: 1.	On what date did Harold C. Banks make application for landing to the Department of Citizenship and Immigration?
2.	Did he complete form 1000?
3.	Was question 17 included on the form he completed?
4.	Was he asked to file again on a corrected form?
5.	If so, how long was this incorrect form in use?
6.	How many applications were filed on the incorrect form?
7.	How many of these applications were subsequently required to file a corrected application which included this question?


Mr. Pickersgill:: 1.	May 8, 1952.
2.	Yes.
3.	Yes.
4.	No.
5.	There was no incorrect form.
6.	Not applicable.
7.	Not applicable.



QUESTIONS PASSED AS ORDERS FOR RETURNS


Mr. Green:: 1.	From what firms has fish been purchased for Shaughnessy hospital in Vancouver, during the past two years?

Orders for Returns
2.	In each case, what other firms, if any, tendered for the sale of such fish?
3.	What were the amounts of the respective tenders including those that were accepted?
HIGHWAY SAFETY CONFERENCE Mr. Knowles:
1.	Has the federal government, or any minister thereof, given consideration to inviting the appropriate representatives of the various provinces to meet for the purpose of discussing highway safety programs in order that efforts might be made to reduce the number of deaths and injuries on our highways?
2.	If so, what is the result of such consideration?
3.	Has a tentative date for such a meeting been proposed?
N.H.A. LOANS NEAR AIRPORTS Mr. Knight:
1.	Has the government recently issued regulations prohibiting the making of loans under N.H.A. for building in the vicinity of airports?
2.	If so, what was the date of the announcement of such regulations?
3.	What are the distances from the airports to which such prohibition applies?
4.	Has the government announced any regulations tending to protect life in the areas prohibited where residential buildings have already been erected?
5.	Near what airports are there such residential buildings, other than government buildings, within the prescribed area?
6.	Has the government considered prohibiting future erection of any and all residential buildings within the prescribed areas?
7.	If so, what has been the result of such consideration?
MONT JOLI AND RIMOUSKI AIRPORTS Mr. Balcer:
1.	What amount has been spent by the Department of National Defence at the Mont Joli airport since 1940?
2.	What amount has been spent at the Mont Joli airport by the Department of Transport since its transfer from the Department of National Defence?
3.	What are the existing facilities at the Mont Joli airport for commercial transportation such as, runways, lighting, hangars, radio direction, etc.?
4.	What amount was spent during the last five years by the Department of Transport at the Rimouski municipal airport?
5.	What is the distance by air between the towns of Rimouski and Mont Joli?
FUEL PURCHASES, ATLANTIC PROVINCES Mr. Purdy:
What was the cost of fuel purchased by the federal government for use in each of the four Atlantic provinces, during the fiscal year ending 31st March, 1954, under the following headings: Nova Scotia coal, New Brunswick coal, other Canadian coal, United States coal, other imported coal, fuel oil?
FUR IMPORTS FROM RUSSIA Mr. Pearkes:
1.	What quantity of fur, raw and processed, has been imported into Canada from the U.S.S.R. since October, 1953?
2.	What is the total value of such furs?
3.	Of what varieties are the furs thus imported?

4.	What tariff is imposed upon these furs?
5.	What Canadian firms purchased pelts from Russia?
6.	Have any muskrat skins been imported from any European country? If so, in what quantities and from what countries?



MOTIONS FOR PAPERS


Frederick George Hahn: -
For a copy of all correspondence, letters, telegrams, and other documents exchanged between the Department of Transport, the board of railway commissioners and/or others, pertaining to Mr. A. G. Webster, conductor, relative to a train wreck on Canadian National Railways track at Avola, British Columbia, on May 28, 1942.
He said: I had an early understanding that this motion would stand for the time being.


Mr. Speaker:: Motion stands.



QUEEN ELIZABETH HOTEL, MONTREAL

Mr. Diefenbaker:: For a copy of all letters and communications since the first day of September, 1954, that have passed between the Department of Transport and the Canadian National Railways respecting the lease of the Queen Elizabeth hotel in the city of Montreal to the Hilton Hotels Corporation.


George Carlyle Marler: This motion asks for the production of correspondence between the Department of Transport and the Canadian National Railways respecting the so-called lease of the Queen Elizabeth hotel.
May I say at once that arrangements concerning the hotel are not a lease but an agreement for the management of the hotel, and with deference I submit that as the management of the hotel is clearly a matter of internal operation of the railway this motion should not be accepted by the house.
As hon. members know, parliament has consistently maintained the view that the management of the railway should not be required to make public information relating to the affairs of the system that their competitor is not obligated to produce.
In the circumstances I would hope the hon. member will agree to withdraw his motion.


Mr. Speaker:: The motion is withdrawn?


John George Diefenbaker: No.


Mr. Speaker:: The hon. member says no, and naturally he expects me to collect the voices. I do not want to offer any objection to that today, but I want hon. members to follow my reasoning and think it over so that they will decide themselves perhaps what they should do in the future with respect to these motions. It is simply this: the house is entitled to get only what it is allowed to get. Bourinot claims that the

house is not entitled to ask for confidential documents, documents of a private nature or for any documents which the minister may decide that it is not in the public interest to produce. When a minister rises in his place and says, "I cannot produce these", and an hon. member says "I would like the opinion of the house to be decided by a vote", it means one of two things; either the member who is now asking that I collect the voices for the purpose of provoking a division does not believe the minister when he says that the documents asked for are not in the public interest to produce, and therefore he is not accepting the minister's word, which in all cases must be accepted in this house. Whenever a member declares a thing to be such and such he declares it on his honour, and therefore his word must be accepted. If, on the other hand, the house should vote upon the motion in an affirmative way, it would mean that although a minister of the crown has declared that it is not in the public interest to produce certain documents, the house would override that and would force the production of confidential documents or documents which it is not in the public interest to produce, and thus the house would insist upon having documents which it is not entitled to obtain.
I would like hon. members to think that over because it seems to me that in most cases, as far as one can look back in Hansard since confederation, that was the decision arrived at. Of course, there was a time when these notices of motions for production of papers were debatable and long debates took place upon them. But all leaders of parties, in or out of power, have always agreed that they should not insist upon production of papers which are declared not to be in the interest of the house to get. See Bourinot, fourth edition, pages 249-254; Todd's Parliamentary Government in England, revised by Spencer Walpole, volume II, pages 157160. See also debates, March 17, 1921, pages 1003-4, volume II, 1921.
Today, as I say, I will just leave these remarks for the consideration of hon. members, and perhaps later on I shall hear comments of hon. members on this reasoning. Does the hon. member for Prince Albert wish to say something?


John George Diefenbaker: Mr. Speaker, in view of the fact that Your Honour has seen fit to give a summary of the past procedure in giving an indication that any such appeal at this time would indeed be almost in the nature of an appeal from your own view, I am not going to press it at this time.
Motions for Papers


Mr. Speaker:: I tell the hon. member from Prince Albert that I sincerely appreciate the attitude that he is taking on this particular matter. As I said, I do not want to impose a ruling today, but I should like hon. members to think over carefully what I have said because I do not see how one can get out of it. To me the situation is simply this. You can put on the order paper a notice of motion for the production of papers. If you were to ask for documents that it is not in the public interest to produce, the clerk of orders and notices would tell the hon. member who would like to put such notice of motion on the order paper: "You cannot put it on the order paper; I cannot accept it". You cannot ask for the production of confidential, private or personal documents or those documents that it is not in the public interest to produce. If you ask for documents and the minister says it is not in the public interest to produce those documents, if you do not accept his word it is tantamount to saying that the minister is not telling the truth. If he is telling the truth, there is only one thing to do and that is to have the motion dropped. For today the motion is to be dropped.


Mr. Fulton:: May I make a suggestion, Mr. Speaker? I know that I am not entitled to question Your Honour but I make the suggestion that some opportunity be provided for further discussion on the point at another date this session. I take the liberty of suggesting that, as Your Honour has pointed out, in the old days these motions were debatable. It would then be open to the minister to satisfy or to attempt to satisfy the house as to the justification for his position that it was not in the public interest to produce the document. In the same way it would be open to the party seeking its production to try to satisfy the minister and the house that it was in the public interest. Your Honour has pointed out that that sort of debate is no longer permitted. I think it is for that reason that the practice of having a vote on such motions has arisen; because some members of the house may genuinely and sincerely disagree with the suggestion that the matter is against the public interest. Before we appear to accept the suggestion that such motion should not be the subject of division, I would again repeat my suggestion that there be further opportunity to discuss the matter.


Mr. Speaker:: May I suggest that nowadays the motions are still debatable, but not when introduced in this way. If the hon. member looks at standing order 51 he will see this:
. . . but if on any such motion a debate be desired, it will be transferred by the Clerk to the order of "notices of motions".

Veterans Affairs



COMPETITIVE VALUE OF GAS IN INDUSTRY

John George Diefenbaker: For a copy of the report made in 1954 by Dr. Hume and Mr. Arch Crozier containing the results of an investigation made regarding the competitive value of gas used in industry.
He said: With the leave of the house may I ask that this motion be withdrawn?


Mr. Speaker:: Is it agreed that the motion be withdrawn?


Some hon. Members:: Agreed.



FIELD OFFICERS, P.F.R.A.-P.F.A.A.

John George Diefenbaker: For a return showing the names of all personnel in the P.F.R.A. and P.F.A.A. who are officials or field officers, coupled with the salaries and expenses paid to each of them during the year 1954.



VETERANS AFFAIRS


[Stage Direction]
On the order:
Mr. MaeDougall-The following proposed resolution:-That, in the opinion of this house, the government should give consideration to the advisability of increasing the war veterans allowance and permissive income.
Mr. MaeDougall:: Stand.


Mr. Speaker:: I do not think I will allow the hon. member to let his notice of motion stand. I am sorry to appear to be so destructive today. Hon. members will notice that this motion deals with the war veterans allowance and permissive income. On the order paper there are two other notices of motions on the same subject, one in the name of the hon. member for New Westminster (Mr. Hahn) and the other in the name of the hon. member for Hastings-Fron-tenac (Mr. White). Hon. members will also have noticed that on the order paper, under government orders, there is in the name of the Minister of Veterans Affairs (Mr. Lapointe) a resolution which reads as follows:
That it is expedient to amend the War Veterans Allowance Act to increase the allowances and the permissible income; to further extend the benefits of the act . . .
And so on. If we were to allow debate on this motion, it would anticipate a debate on a government order which has priority because the motion which stands in the name of the Minister of Veterans Affairs is one which is the first stage of a money bill. If hon. members will look at Campion, An Introduction to Procedure of House of Commons, page 144, under the heading "Rules relating to Substantive Motions", paragraph (5), they will find this:
Finally, certain matters by their very nature are

inadmissible in debate, whether upon motion or otherwise. Such are matters anticipating an order of the day, and matters which have already been decided during the current session.
Then if the hon. member will look at page 152, under the heading "Anticipation in Debate", he will see this:
In applying the anticipation rule preference is given to the discussion which leads to the most effective result, and this has established a descending scale of values for discussions-bills, motions, amendments, etc. Thus a bill or other order of the day must not be anticipated by . . . discussion of a motion, amendment, or subject raised on another motion, such as that for the adjournment of the house.
By virtue of this rule the notices of motions standing in the names of the three hon. gentlemen I have mentioned must be dropped from the order paper because they are not admissible in debate.
This notice of motion, No. 7, is dropped.



HUMAN RIGHTS


John George Diefenbaker: That, in the opinion of this house, immediate consideration should be given to the advisability of introducing a bill or declaration of rights to assure amongst other rights:
1.	Freedom of religion, freedom of speech, freedom of the press and of radio;
2.	That habeas corpus shall not be abrogated or suspended except by parliament;
3.	That no one shall be deprived of liberty or property without due process of law, and in no case by order in council;
4.	That no tribunal or commission shall have the power to compel the giving of evidence by any one who is denied counsel or other constitutional safeguards.
And that as a preliminary step the government should consider the advisability of submitting for the opinion of the Supreme Court of Canada the question as to the degree to which fundamental freedoms of religion, speech and of the press and the preservation of the constitutional rights of the individual are matters of federal or provincial jurisdiction.


Mr. Speaker:: Of course, with respect to this motion which has to do with human rights, hon. members will also have noticed that there are on the order paper two other motions on the same subject, one in the name of the hon. member for Rosetown-Biggar (Mr. Coldwell) and the other one in the name of the hon. member for Spadina (Mr. Croll). I want to tell these hon. gentlemen that there will be only one debate on human rights and since this motion is now being taken up, we will be dealing with this one.


Mr. Coldwell:: If there is to be only one debate on human rights, Mr. Speaker, may

I have the privilege, with the unanimous consent of the house, of withdrawing my motion?
Human Rights Article 2
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. '


Mr. Speaker:: Is that agreed?


Some hon. Members:: Agreed.


Mr. Croll:: In the light of your suggestion, Mr. Speaker, I also wish to withdraw my motion.


Mr. Speaker:: Is that agreed?


Some hon. Members:: Agreed.


John George Diefenbaker: 
Mr. Garson:: Might I ask my hon. friend a question? These are the material-


John George Diefenbaker: I have one more.
Article 11
The above articles shall not be deemed to abridge or exclude any rights or freedoms to which any person is otherwise entitled.


Stuart Sinclair Garson: I should like to ask my hon. friend if these are not the articles approved by the Senate committee which my hon. friend used in the last speech he made upon the subject in the last parliament. * They are the same articles?

Human Rights


John George Diefenbaker: They are identical with the provisions which 1 placed before the house in 1952 and, I would say to my hon. friend, represent the result of the lengthy consideration by the committee headed by Senator Roebuck in the other place, subject to one or two amendments that I have added thereto in order to cover the situation as I see it.
Some contend that there is no reason for a discussion of fundamental freedoms in this house. Let me point out that Sir Wilfrid Laurier on the 19th of March, 1918, said this:
Eternal vigilance is the price of liberty, and the universal testimony of history is that unless there is eternal vigilance on the part of a strong and resolute opposition, encroachments upon freedom and abuses in office will creep in, just as surely and just as certainly as weeds and tares will invade and choke the crops of the husbandman if he is not constantly on the watch. . . . Nothing is more certain than that one illegality will lead to another; that, as a logical consequence, wrong will be followed by wrong.
To indicate the value of the discussions which have taken place from time to time during the last eight or nine years, I point out that since 1952, when these matters were last discussed in this house, changes have been brought about in large measure due to the creation of public opinion respecting matters about which criticism was made at that time. One of the statutes introduced by the Minister of Labour (Mr. Gregg) whereby discrimination on federal contracts is made punishable was a matter that had been discussed on several occasions in the house. Second, the Action that the king can do no wrong, which throughout the years denied the subject, except in qualiAed circumstances, the right of action against the crown, in consequence of public opinion created through previous debates and through publicity, has been abolished within the last few years.
Another matter that was complained about in 1952 was that there was no right of appeal to the courts against the arbitrary denial of appeal against orders made by judges for contempt of court. Objection to the absence of the right of appeal was raised on more than one occasion when the subject of human freedoms was before the house, and public opinion was created. Newspapers had their own experiences when they found that there was no right of appeal, and ultimately the house passed an amendment which allowed the right of appeal. Finally, one other matter to which strong objection was taken because of its challenge to human freedoms and fundamental rights was the emergency powers act which a year ago now was allowed to lapse.
People say to me, what interest is there in the country in this subject? More than
[Mr. Garson.l
800,000 Canadians have signed petitions on two occasions asking that Canada have the same protection for its rights and fundamental freedoms that 30 other countries with a federal system have, including India. The Canadian Daily Newspapers Association, a body with a membership of 86 of the 89 English and French language daily newspapers in Canada, representing 99-4 per cent of the circulation of all Canadian dailies, an organization that has no political connection, has taken a formal position in favour of a Canadian bill of rights. They pointed out the fact that while Canadians consider fundamental freedoms as part of their heritage, fundamental freedoms can be interfered with in the absence of a bill of rights. I quote from the brief of the Canadian Daily Newspapers Association:
. . . the daily newspapers of Canada urge that consideration be given to a constitutional guarantee of fundamental human rights, it is because they are convinced these rights are insecure. They know that threats have been made to freedom of speech, freedom of the press and other freedoms in the past. They feel sure that threats will be made in the future.
Then, again, from the same brief:
The Canadian Daily Newspapers Association submits that . . . constitutional safeguards . . . not only prove that freedom of speech and freedom of the press lack adequate safeguards in Canada, but place the representatives of this country in a weak position, open to destructive attack, in implementing the obligations of this country as a member of the United Nations in respect to human rights and fundamental freedoms.
The board of directors of the Canadian Daily Newspapers Association, at a special general meeting in October, 1945 and in October, 1947, unanimously resolved that a statutory guarantee of essential freedoms might be covered in the following terms.
The amendments suggested by the daily newspapers association are as follows:
No act of the parliament of Canada nor of the legislature of any province shall abridge the freedom of speech, of the press or of assembly or of worship or the right to petition the parliament of Canada or the legislature of any province for the redress of grievances.
I believe that an amendment in that form might invade the powers of provincial legislatures under the British North America Act. Therefore I would not approve of such a course being followed until, as I intend to suggest later on, a submission is made to the Supreme Court of Canada.
In this brief of the Canadian Daily Newspapers Association the following appeared:
In Canada we have been coasting insecurely upon British precedents and sometimes violating them, and in the light of Canada's membership in the United Nations and its responsibility as a member, the Canadian Daily Newspapers Association urges that the parliamentary committee on human rights and fundamental freedoms give favourable consideration to a constitutional amendment guaranteeing these fundamental freedoms.

I point out, sir, that that brief was advanced by the newspaper association before the recent case of Blair Fraser in which the freedom of the press comes into issue. I shall not refer to the action in general as it is before the courts. Mr. Fraser was called to give evidence on an examination for discovery in an action commenced against him and Maclean's magazine for libel. He was asked who furnished him with the information upon which he based the allegations he made in an article in Maclean's magazine. He refused to give answers as to the identity of the individuals from whom he had secured the information. An application was made to a supreme court judge in British Columbia, in which province the action was commenced, to compel him to answer these questions.
The judge before whom the motion came directed him to answer these questions, and an appeal was taken to the court of appeal of British Columbia. The appeal was dismissed, one judge dissenting. A subsequent appeal was made to the Supreme Court of Canada but the supreme court refused leave to appeal, following generally the principle of that court in refusing to hear appeals dealing with questions of procedure in the courts.
The interesting situation in connection with the order made in the Blair Fraser case was this. Unless the law is changed, the result must be a drying up of the sources of information upon which the press in Canada must depend. In Great Britain the course followed by the courts on examination for discovery is very much different from the course followed as a result of continuing precedent in this country. Mr. Justice Freedman of the court of queen's bench in Manitoba, a great advocate of freedom before going to the bench, in an article in the Canadian Bar Review states:
There is in England a rule of practice which is applied in the discretion of the court for the benefit of newspapers sued for libel, under which the defendant, except in special circumstances not very clearly defined, is not obliged to disclose the source of his information.
Then His Lordship went on to say this:
It is of interest to note, however, that recently a Canadian judge refused to apply this English rule of practice to the different system of discovery prevailing here . . .
In this case the doctrine of the sanctity of the freedom of the press is undermined to a degree which has not been experienced in recent years in our country.
The situation in the United States is dealt with in Chaffee's book, "Government and Mass Communications", in which he says:
The trend of the best legal judgment is away from all occupational privileges, even that of attorney and client, which is much the oldest.
Human Rights
As you know, sir, the only relationship that is entirely confidential is that between the lawyer and his client. He says:
The reporter's claim to silence is less persuasive than that of the doctor, and the physician and patient privilege. ... It would be absurd to safeguard the press confidences and leave the secrets of the confessional without legal protection.
The author states that in the United States, however, what happens when a press man is asked to reveal the identity of those from whom he received the information is that he relies on the fifth amendment, contending that, his answers would implicate him and that is the end so far as further questioning is concerned.
How serious this precedent is may be gained from the fact that the newspaper trade publication, Editor and Publisher, in an editorial, describes what happened in the Blair Fraser case as an "unbelievably dangerous precedent". It says this:
This means that newspaper men cannot publish information received from confidential sources without fear of libel action they cannot defend if they are determined to protect their informants.
I believe, sir, that there is another example of the abridgement of fundamental freedom, the jurisdiction over which I am not at the moment discussing which, if allowed to remain unchanged, constitutes a dangerous encroachment upon the rights of the press to secure information. I believe that it is a question that deserves to be considered seriously, and that we in our country might well give attention to following the British precedent, whereby the sanctity and the independence of the press is maintained, except within very narrow limits. British experiences through the years have shown the necessity for the preservation of the independence of the press.
Is there indeed a substantial body of opinion within the country that believes in the necessity of consideration being given to a bill of rights, to one advocated not only by myself but also by the hon. member for Rosetown-Biggar (Mr. Coldwell) and the hon. member for Spadina (Mr. Croll)? I am not going into detail in that connection, except to say that the comprehensiveness of the appeal for action, enunciated again in the Blair Fraser case to which I have just referred, is indicated by the support given by the following church organizations who have joined together in a demand for a bill of rights. These are the Church of England in Canada, the Baptist Federation of Canada, the Churches of Christ, the Evangelical United Brethren, the Presbyterian Church, the Reformed Episcopal Church, the Ukrainian Orthodox Church, the United Church of Canada, the Salvation Army, the Society of

Human Rights
Friends, the affiliated members of the Canadian Council of Churches, the national council of the Y.M.C.A., the national council of the Y.W.C.A. and the Student Christian Movement of Canada.
On June 6, 1950, they set forth their views in their joint brief at page 341 of the proceedings of the Senate committee on human rights and fundamental freedoms:
We are prepared to support every honest endeavour to secure a Canadian bill of rights which will adequately safeguard the personal, social, economic and political rights of every citizen. We seek after and pray for a society in which freedom is the freedom of men who acknowledge responsibility to justice and public order, and where those who hold political authority or economic power are responsible for its exercise to God and to the people whose welfare is affected by it. We do not feel that it is the duty of our council to propose the practical measures which might or should be taken to establish a bill of rights. Nor do we suggest that the wording of this brief is the final language which should be used to describe these human rights and fundamental freedoms in a legal document. We are convinced, however, that it is our duty and responsibility to declare that man, because of his worth in the sight of God, has rights which should be respected by all and safeguarded by law.
The Church of England in Canada presented its brief on May 9, 1950, and at page 247 of the proceedings of the committee it stated its belief that government in recent years has of necessity intruded into personal and family affairs in a way not visualized even a generation ago. It concluded that certain rights and freedoms before the law which may thereby be jeopardized will be more certainly recognized and respected if set forth in a statute or under the constitution.
I am not going to read the entire list of those who supported a bill of rights whose brief was presented by the late Bernard K. Sandwell. It is to be found at page 209 of the proceedings of the Senate committee on May 3, 1950. Here are the names of a few of those who asked for a bill of rights for Canada:	Such clergymen as the Rev. W. A.
Cameron of Toronto; Dr. John Coburn, Rabbi Feinberg, Canon Judd, Dr. Charles Russell. Among editors are included Oakley Dalgleish of the Globe and Mail, Grant Dexter of the Winnipeg Free Press, George Ferguson of the Montreal Star, Mrs. John Bird of Ottawa.
Educators are represented by Dr. Sidney Smith of the University of Toronto, Dr. Norman MacKenzie of the University of British Columbia, Dr. A. W. Trueman, now head of the national film board; Dr. E. J. Pratt, Professor Lower, Professor Scott, Dr. Malcolm Wallace and others; jurists by Samuel Freedman and L. Y. Cairns, in Alberta; businessmen by Joseph Harris of Winnipeg, F. G. Winspear of Edmonton and
[Mr. Diefenbaker.l
A. E. Grauer of Vancouver and others; labour leaders-several of them-including C. H. Millard; professional men by Sir Ernest MacMillan, Roger Ouimet, C. C. Papineau-Couture, Q.C., Dr. Penfield, Paul La-fontaine, Hugh MacLennan and others; and various members of parliament, including the hon. member for Vancouver South (Mr. Philpott).
I mention their names to indicate that there is a widespread demand in Canada for action in this regard. There are some who say that free peoples value freedom less than was done 50 years ago, and that the movement is toward restricting and curtailing free speech of those who are unorthodox. There are some who would make the human mind a replica of the Soviet parliament in which not a single negative idea is permitted. There are those who would deny trial and error, and free discussion. There are those who would deny the right to try ideas before the bar of public opinion.
I point out, in answer to those who might view freedom of speech as something dangerous to security and survival, that free speech is not licence. It denies censorship in advance. But anyone who speaks becomes subject to punishment when his words strike at the security of the state, or the rights of others.
Free speech is and always will be the essence of democracy. Free speech is simply free enterprise of the mind, which allows for the development of the full capacities of the individual, and with the state punishing wrongdoing when the use of free speech endangers the state or the equal rights of others.
The cold war and two world wars have taken a heavy toll of freedom. That is not alone a peculiarity of our country. In Great Britain one of the great Liberals, Lord Reading, has pressed for a bill of rights in that country, to meet the invasion and infringements of today. Lord Sankey and his distinguished committee dealt with this question at length and came to this conclusion:
Under the stress of the new conditions, insecurity, abuses and tyrannies increase: and liberty, particularly liberty of thought and speech, decays. Phase by phase ill-adapted governments and controls are restricting that free play of the individual mind which is the preservative of human efficiency and happiness.
In yesterday's New York Times I read an article by that great tribune of liberty, Mr. Justice Learned Hand, who is recognized not only in the United States but throughout the world. He said this, in referring to the nonconformist:
It has generally proved impossible to smother him and when it has, the society that succeeded has declined.

I have one quotation to make in support of the view I express. It is from a book which enjoys a market that no other book on human freedom has achieved in the last 25 years. I refer to "Freedom, Loyalty, Dissent" by H. S. Commager, who says:
We do not protect freedom to indulge error. We protect freedom in order to discover truth. We do not maintain freedom in order to permit eccentricity to flourish; we maintain freedom in order that society may profit from criticism, even eccentric criticism. We do not encourage dissent for sentimental reasons; we encourage dissent because we cannot live without it.
There he is referring to the democracies.
Ours is a system of freedom-freedom of inquiry, of investigation, of criticism and of creation.
Having said that, I come now to Canada and refer in particular to a book written by a Canadian political scientist, Professor Dawson. In his "The Government of Canada" he has set forth his views as to whether there is a need for a bill of rights. Referring to the traditional attitude taken in Great Britain, he states, at page 86:
There is a need of a bill of rights. There is a growing conviction in Canada that this is not sufficient and that certain fundamental liberties and privileges should be singled out for special mention in the written constitution, so that they will not be at the mercy of any intolerant group in a legislature or a cabinet which may for a time happen to command a majority. That this is no imaginary problem is clearly illustrated by a number of infractions or threatened infractions of these rights which have occurred in very recent years.
After setting out what they were, he says this:
None of these, moreover, occurred during the war, when certain of these rights might conceivably have had to be temporarily relinquished, although those conducting the spy cases pleaded as a justification an overriding concern for public safety.


Mr. Pouliot:: Would the hon. member be kind enough to tell us what are the encroachments upon fundamental freedoms that he complains of in Canada?


John George Diefenbaker: I am glad that my hon. friend has mentioned that. I will give him the federal instances, particularly brought to the attention of the Roebuck committee by Mr. B. K. Sandwell. An order in council was passed, which the privy council said was perfectly legal, which if it had been enforced would have exiled without charge or trial about 10,000 Canadian citizens because of their race.
An order in council in the Eldorado case was passed which provided that the administrator of Eldorado might examine any person and that person was denied the right to have counsel or to exercise his constitutional right of non-incrimination unless protection
Human Rights
was granted. Additional provision was made in the order in council that, however illegal or unlawful the administrator's acts might be, there was no right of action against him for his wrongdoing.
Another mentioned in the brief is the federal law which for a long time refused to allow a married man who was a citizen of Canada to bring his wife and children here because of their race.
An order in council was passed in 1945 whereby the freedom of movement of people of a certain race was restricted so they were not permitted to go to one province without a permit.
The right of habeas corpus has been denied by order in council in Canada, something that has never been done in that way in Great Britain at any time. When habeas corpus becomes the plaything of the governor in council, then indeed is human freedom in danger.
Several statutes passed by parliament have been amended by order in council without there being any provision in the statute for amendment. One of the recent ones was in connection with the annuities act where the interest was increased to a degree not provided by the law.
The next I might mention is the foreign; exchange control act, now no longer law. Provision was made that if any person's rights were interfered with unfairly, unjustly, and illegally, that individual might assert his rights in court and secure an; order of the court against the wrongdoer. Until the statute was passed the order in council denied anyone the right, however illegal an order of the administrator might be, of appeal to the courts. When the order in council was translated into statutory form by parliament provision was made for a right of action, but no matter how much a person may have lost in consequence of the illegality he was restricted to nominal damages of $1 with no costs being allowed. There was opportunity for recourse to the courts, but refusing to the person wronged the damages to which he was entitled.
There are several orders in council denying the right of appeal to the courts. In the department of immigration there are regulations that are contrary to law and which are unreviewable in court.
Then there is the regulation with respect to security as applied to the civil service to which the hon. member for Kamloops (Mr. Fulton) directed the attention of the house at the last session of parliament. McCarthyism is dead; at least we hope so. The monstrous burlesque in the United States whereby under the merciless glare

Human Rights
of publicity and T.V. persecution achieved its legislative nadir does not exist here, but as far as the civil service are concerned those who are suspect of being dangerous to the state by reason of the opinions that they hold have not the rights that exist in Great Britain, namely, the right to be placed before their accusers or at least to see the evidence upon which the suggestion as to their disloyalty is based.
The age-old excuse of those who remove human freedoms has always been the security of the state. I am not going to mention the provincial ones because we are dealing exclusively with the federal authority.
I come to another example. Under former tariff item 1201 provision is made whereby newspapers, magazines and books may be denied admittance to Canada by an officer of the Department of National Revenue. One of the outstanding speeches ever made in opposition to such a course was made in the other place by Hon. Rupert Davies on December 5, 1949, in which he set out the dangers of an individual acting so as to exclude these things from Canada with the decision not challengeable in the courts.
There are other examples, but the few I have given will indicate something of the trend. There is another manner in which the freedom of speech and of radio is challenged, and that is in connection with the Canadian Broadcasting Corporation, which is in the position of being not only a competitor but also a judge. It may be said that the power that is possessed by the C.B.C. is not used against private stations; but, sir, the -experience of history has been that the possession of absolute power has great persuasiveness even when it is unused.
How can that be changed? By the simple *expedient that we have endeavoured to have parliament accept over the years, namely the setting up of a regulatory power in the nature of the board of transport commissioners. I hope that at this session the government will see fit to bring that about; for, Mr. Speaker, you will have noticed that the Young Liberal Association of Canada has now come out in favour of that which we have been advocating throughout the years.


Mr. Deputy Speaker:: Order. I am extremely sorry to interrupt the hon. member, but I am obliged to advise him that his time has expired.


Some hon. Members:: Continue.


John George Diefenbaker: I thank hon. members very much. I come now to the question as to what should be done. It is often argued- the Minister of Justice (Mr. Garson) has made

one or two speeches on the subject-that the passing of a bill of rights would not accomplish that which I have in mind. The Minister of Justice has said that the passing of a bill of rights would display a distrust of parliament; that the inclusion in our constitution or in a statute of our fundamental freedoms would derogate from parliament. We already have a bill of rights, in the British North America Act. As far as the Canadian constitution is concerned, it consists not only of that act but also of 129 statutes which we have inherited from Britain, full reference to which interested parties may find in Maurice Ollivier's work "Problems of Canadian Sovereignty".
We already have in the British North America Act protection for minorities, a bill of rights in which fundamental rights are guaranteed. Section 133 provides for the two official languages; section 93 provides for the school rights of this country, and section 20 for the annual session of parliament. Another section provides for the right to a general election every five years except when parliament by two-thirds majority determines otherwise.
These indeed are fundamental. They are rights guaranteed under the constitution, and they are an answer to those who say that we do not require other fundamental freedoms incorporated into our constitution. There is of course a provision that states that the statutes of Canada and of Quebec are to be printed both in English and in French. There is also the language provision in the legislature of Quebec, in the House of Commons and in the federal courts. All of these things are indeed of the essence of fundamental freedoms and individual rights.
On May 19, 1952, the Ottawa Citizen dealt with a speech made by the Minister of Justice to the University of Manitoba alumni in Ottawa. In that speech the hon. gentleman said:
The essence of a bill of lights is a distrust of parliament. This rebuke is hardly fair. In these days when governments and bureaucracies have increasing responsibilities, the individual needs more than ever to know his rights and be able to defend them. Moreover all the numerous offences against civil liberty in recent years have mostly involved provincial legislation and matters of civil law. Though Canada is a federal state, surely Canadian citizenship confers common rights that can be explicitly declared.
I come now to the question of what can be done. Are civil liberties a matter of federal or provincial jurisdiction? I have but to ask the question of a lawyer to have the answer as to the tremendous difficulties inherent in arriving at a decision on the basis of the judgments that have been given. Professor Dawson says, in answer to those

who say that the British system does not contemplate statutory or constitutional control of parliament:
The dominion parliament has not at all times proved to be sufficiently zealous in upholding the rights and liberties of the individual. The people of Great Britain have acquired a veneration for statutory and common law rights which is derived from many centuries of constant endeavour and stubborn resistance to abuses and which has made them extremely jealous of any threatened encroachments; but the tradition is not nearly so strong or so deep rooted and hence affords an inadequate safeguard against attack. While it is true that deficiencies m what has been called the constitutional conscience cannot be overcome by mere legal or constitutional enactment the latter can supply a certain valuable definitive support.
I mentioned the judgments of the courts. The first major judgment to which reference has been made on many occasions-


Stuart Sinclair Garson: Will my hon. friend give me the citation for the last quotation he used?


John George Diefenbaker: I have not the page number. It is from Dawson. I will let my hon. friend have the page number; I have it in another document. The first leading case on the subject of jurisdiction is the Alberta press case. It is called the accurate news and information act. This is a judgment of the Supreme Court of Canada and can be found in the 1938 Supreme Court Reports. I am reading from page 142. It was a bill placed on the statute books of Alberta by the Social Credit government, which was called the press bill. The recital said:
It is expedient and in the public interest that the newspapers published in the province should furnish to the people of the province statements made by the authority of the government of the province as to the true and exact objects of the policy of the government and as to the hindrances to or difficulties in achieving such objects to the end that the people may be informed with respect thereto.
It provided that any man who published a newspaper in the province would be required from time to time by the chairman of the Social Credit board to publish in the newspaper any statement furnished by the chairman and any release that might be given out, and set out that publication had in fact been made by the consent of the chairman.
That obviously was quite a drastic step in interfering with freedom of the press; for if newspapers were to publish only that which the chairman of a board of the government in power desired them to publish, to say the least freedom of the press would have ceased.


Mr. Blackmore:: I wonder if the hon. gentleman is aware of the fact that he has just misrepresented the position taken by the government in Alberta?


Mr. Deputy Speaker:: Order.
Human Rights


John Horne Blackmore: The hon. member has just misrepresented the position taken by the government in Alberta.


Mr. Deputy Speaker:: Order.


John George Diefenbaker: Mr. Speaker, I intend to read from the judgment of Mr. Justice Cannon, whose son, incidentally, is a distinguished member of this house. My hon. friend certainly would not suggest that the judge would misstate the situation. I did not expect to get into a controversy over this matter or I would not have brought it up; but now that I have brought it up, I shall read what the judge said:
It seems obvious that this kind of credit-
That was "Alberta credit."
-cannot succeed unless everyone should be induced to believe in it and help it along. The word "credit" comes from the Latin: credere, to believe. It is, therefore, essential to control the sources of information of the people of Alberta, in order to keep them immune from any vacillation in their absolute faith in the plan of the government.
This is the judgment I am reading from. To continue:
The Social Credit doctrine must become, for the people of Alberta, a sort of religious dogma of which a free and uncontrolled discussion is not permissible. The bill aims to control any statement relating to any policy or activity of the government of the province and declares this object to be a matter of public interest. The bill does not regulate the relations of the newspapers' owners with private individual members of the public, but deals exclusively with expression of opinion by the newspapers concerning government policies and activities. The pith and substance of the bill is to regulate the press of Alberta from the viewpoint of public policy by preventing the public from being misled or deceived as to any policy or activity of the Social Credit government and by reducing any opposition to silence or bring upon it ridicule and public contempt.
I agree with the submission of the Attorney General for Canada that this bill deals with the regulation of the press of Alberta, . . .
And so on. That was the first case. Two of the judges, namely the former chief justice of Canada, Sir Lyman Duff, and Mr. Justice Cannon, decided that as our constitution carried with it the fact that we built upon British parliamentary procedure, such an interference constituted reduction of the freedom of the press, whereas the public interest would not permit any provincial government to infringe upon it. However, throughout the years cases have come up-


John Horne Blackmore: Mr. Speaker, I know the hon. gentleman does not want to be responsible for misrepresenting, and that he has no desire to do so. I do not wish to cast any reflection on the honourable judge who made that statement, but I will point out that, if he will read exactly what that press act said, the hon. member will find that there is much misrepresentation not only in the quotation

Human Rights
which he read but in his own remarks. There was no desire on the part of those who passed that bill to interfere with the press in any way but to see to it-


Some hon. Members:: Oh, oh.


John Horne Blackmore: I was right there. I know. I have seen the acts.


John George Diefenbaker: Mr. Speaker-


John Horne Blackmore: Just a minute. If the hon. member will permit me to do so I should just like to say that the whole object was to see to it that the officials-


Mr. Depuly Speaker:: Order. The hon.
member will realize that he must not interrupt the hon. member who has the floor without his consent.


John Horne Blackmore: On a question of privilege, Mr. Speaker, may I say this. I know the hon. member simply does not want to misrepresent-


Mr. Deputy Speaker:: I have listened carefully to the hon. member and I really do not think he has raised a proper question of privilege.


John George Diefenbaker: I am not going to enter into a controversy with my hon. friend. ,


John Horne Blackmore: You had better not.


John George Diefenbaker: Human Rights
freedom? Can freedom-loving nations preserve freedom and defend themselves without destroying it? Do we have to emulate the enemy? I do not think so. I believe, sir, that our ultimate salvation and survival rests on the free world maintaining its unquenchable wells of freedom under the law. The history of the British peoples has been this. The great and abiding achievement in the heritage of common law has been made possible under the rule of law, in the climate of freedom. In that climate free men are able to give full play to their creative genius. Yet often today we are afraid of freedom.
Barbara Ward summarized our fear in these words:
The crusaders for freedom and progress, for man's ever renewed struggle to build a just and holy society, appear to be on the defensive before those who seek to eliminate human freedom and restore the twin tyrannies of fate and government.
The idealists retreat before the materialists . . . indeed the realists seem to have turned themselves into materialists and to fight their war of words in calculations and statistics while their adversaries sing of deserts blooming and spring returning to a resurrected humanity.
I believe, sir, a bill of rights is necessary in our country today to provide a framework for our thinking and to crystallize the spiritual values in the concept of freedom. The situation before 1914-since when there have been two world wars and a cold war-has been proven inadequate today. Our fundamental freedoms were not written into the British North America Act because it was believed at that time by philosophers that never again would those fundamental principles be in danger of being undermined.
We have learned today, with the experience of the years of war and a cold war, that freedom has to be paid for in every generation; that it cannot be purchased at bargain counters; it cannot be purchased on credit with payment to be made in the future. It can only be purchased by action. I ask that the government give consideration, not to the introduction of a bill of rights at this time but to ascertaining first the constitutionality of a bill of rights and then, having so determined, that they ensure the preservation of fundamental freedom in our country, under law and under the constitution.


Stuart Sinclair Garson: In rising to take part in this debate, Mr. Speaker, I should like first of all to congratulate my hon. friend upon his eloquence, which we have learned to expect from him. Inasmuch as I cannot hope to emulate that eloquence I believe that, following out the non-partisan approach the hon. member has recommended, I cannot do better than attempt to examine the methods by which his
fMr. Diefenbaker.]
eloquent suggestions might be carried into effect. For that reason I am glad today to discuss the terms in which, under our constitutional law, the objectives which he has stated would have to be realized.
When I came to Ottawa six years ago, sir, this resolution was on the order paper, where it has remained ever since. It was a matter of very great regret to me that on the only occasion in the interval upon which it was spoken to I happened to be at home ill. I am, therefore, doubly grateful for the privilege of discussing it on the present occasion.
I should like to make it clear, since this is a private member's resolution and not an item of government business, that I have not discussed it with my colleagues and I am not speaking for the government. Indeed, that will be apparent from my remarks as I continue. My effort, as I have stated, will have more to do with the matter of method and will be really an attempt to clarify the true nature of the problem, rather than to suggest immediately any policy which might be considered as a solution to it.
Now, I think we all agree, as the hon. member who has just spoken has said, that this resolution deals with an exceedingly difficult problem. New members have not been in this house very long before they become acquainted with the fact that the mere relationship between the central government and the provincial governments in our Canadian federal system of governments are themselves notoriously difficult. This difficulty is encountered on every occasion on which the powers of government are divided, in a federation, between the central government and the provincial or state governments.
In view of the fact that, as compared to the constitution of the United States, our constitution over the years has occasioned a relatively small amount of litigation, our constitutional law is a little known field. There is, therefore, only a comparatively small group of lawyers in Canada who are very familiar with the problems of constitutional law. I am glad to see the hon. member for Prince Albert (Mr. Diefenbaker) shaking his head in assent to this statement. It is into this complex and difficult field of federal-provincial relationships in the field of constitutional law that this, shall I say, emotional and political issue of a bill of rights has been projected. This issue has been created by the thoroughly praiseworthy and Christian aspirations for equal rights and fundamental freedoms for all citizens of Canada, regardless of race, colour, class or creed.

The introduction of this deceptively simple but rather emotional issue into such a complex field creates a problem which, as the hon. member for Prince Albert said, and I agree with him, is an extremely difficult one. It is the problem of superimposing a bill of rights, after the United States fashion, upon the federal constitution of Canada, whose main feature, inherited from the constitution of Great Britain, is the sovereignty of its legislative bodies. The feat of superimposing such a bill of rights upon such a constitution is, at least on its technical side, a very difficult feat indeed.
Now, this feat which is being urged upon us by the hon. member who has just taken his seat, and other members, is one which, so far as I know, has never yet been accomplished in any country in the world. I might point out just one of its difficulties. It is one thing to withhold from the provincial legislative bodies legislative powers when the constitution of a country is originally formed. It is quite a different thing to withdraw from the provinces 88 years later provincial legislative powers on the strength of which at least the original provinces could argue that they entered confederation. And that is involved in the issue now before the house.
One of the facts in this connection is that so few advocates of a bill of rights for Canada seem to recognize the difficulty of this task which they suggest we should carry out. We have this long and imposing list my hon. friend has read, consisting of businessmen, journalists, theologians, professors and others, who themselves would regard the views of constitutional lawyers about their specialties of theology, business, journalism and science with impatience, if not with disdain. Yet they show even greater impatience with the humble objections of constitutional lawyers to their idea in the field of constitutional law of superimposing a bill of rights upon the sovereignty of Canadian legislative bodies. They seem to have reached the conclusion that a bill of rights is so obviously a good thing that those who in the slightest degree question its efficacy, or even concern themselves as to the practical methods by which it may be brought about, are hardly on the side of the angels. But, sir, I suggest that the problem is by no means as simple as this virtuous attitude indicates. Indeed there are few fields of public interest and public debate in which it is more necessary for the debaters to know what they are talking about than this one. And because our constitution, as compared with that of the United States of 50433-58
Human Rights
America, for example, as I indicated a moment ago, has produced a very small amount of litigation, the number of those who really do know what they are talking about in this field is very limited indeed.
It is not surprising therefore that much of the discussion about bills of rights could be a good deal more illuminating than it is. For example we have one group in Canada who favour a bill of rights along the lines of that suggested by my hon. friend from Rosetown-Biggar (Mr. Coldwell). We have another group who would not favour the bill of rights he advocates, but who do favour a quite different bill of rights, along the lines of that suggested by that great liberal newspaper, the Winnipeg Free Press. And we next have a group urging resolutions and arguments such as those we have heard this afternoon from the hon. member for Prince Albert (Mr. Diefenbaker).
These resolutions and arguments purport to support either or perhaps both of these bills of rights to which I have just referred. But I suggest with great respect that they have only occasional and seemingly accidental relevancy to either. For these arguments actually deal with matters which, if they require reforms, can be reformed by simple statutory amendments to our law, without any bill of rights whatsoever.
Now, to take a case at random. My hon. friend referred to the Blair Fraser case. He must remember in the last session of parliament asking across the floor of the house what was to be done to correct what he regarded as an injustice which had arisen as a result of the judgments in that case. I notice that he nods his head indicating that it was he who asked the question. If he will recall, I pointed out to him that inasmuch as the jurisdiction over the subject matter of that case was vested in the British Columbia legislature, if it were thought to be desirable that the effect of those judgments should be changed, it could be done through the introduction and passage of a bill in that legislature.


John George Diefenbaker: Would the minister permit a question?


Stuart Sinclair Garson: Yes.


John George Diefenbaker: Would he not consider that an act in a legislature that did in fact interfere with freedom of the press would be a matter of federal jurisdiction, in view of the decision in the Alberta press case?


Stuart Sinclair Garson: Well, my hon. friend is really asking for a legal opinion, which I shall endeavour to give-although I am not accustomed to giving them off the cuff in this way.

Human Rights
He asks this: Is this result in British Columbia in any way affected by the Alberta press case? My answer to the question is No. What was involved in the British Columbia case was a question of libel law, a matter of property and civil rights. Notwithstanding the judgment of the supreme court in the press case to which he refers, in my view it would be quite possible, if thought desirable, for the British Columbia legislature to pass a bill changing the law to which my hon. friend objects, but this has nothing whatsoever to do with a bill of rights.
Our present constitution is not perfect; but there are few if any that are any better. And if we are going to improve it we must have a thorough and accurate understanding of both its virtues and its defects, in order to make sure that the bill of rights proposed would correct those defects without at the same time adversely affecting its virtues. We must be sure that it is technically possible for us to do what no one has yet done in the world, namely superimpose a bill of rights upon the constitution of a federal state, the main feature of which is the sovereignty of its legislative bodies.
And if we decide to attempt this task we should also try to do it in such a way that we can undo it and restore our present constitution, if a bill of rights in Canada is found in practice, as it has been found in every country in which it operates, to work less satisfactorily than the principle of the sovereignty of parliament works in the United Kingdom and in Canada.
In a word, Mr. Speaker, we must understand the nature of this problem. A good place to begin is, first, to understand what is not the problem. In this connection it seems to me the resolution and arguments of the hon. member for Prince Albert are invaluable; for I suggest that what he argues is not the problem. I submit that most of his material is irrelevant and, in due course, I shall offer the proof of this submission.
But, first of all, let me accept and admit the force of his relevant material. And by far the most impressive and most convincing is this list of names of eminent and public-spirited citizens of Canada who, like my hon. friend, are supporting a movement for a bill of rights.


John George Diefenbaker: Has the minister forgotten that Senator Roebuck and Senator Gouin, distinguished members of the Senate and lawyers, came to the same conclusion, and made the same recommendation?


Stuart Sinclair Garson: Does my hon. friend contend that the senators whom he has named came to the same conclusion as he did? If he does,

then my hon. friend must pardon me if I do not agree that they did. But, as I have said, this list of names is most impressive. With the exception of the communists, who are very prominent supporters of a bill of rights in Canada, all these men and women are estimable citizens-many of them close personal friends, as a matter of fact-with whom one is reluctant to disagree. Indeed with some of their statements I agree completely. For example, I agree with the members of the civil rights association when they say:
. . . on the basis of Christian doctrines and the Christian values which have been accepted by our society that we can justify a declaration of human rights against those whose systems of thought and whose policies deny to the individual any rights of his own.
No person in his right mind would dispute that generalization. But against whom are we justifying these rights? Which are the Canadian parties whose policies deny to the individual any rights of his own? Surely no member of this parliament belongs to any such party. Indeed the only party that I know of in Canada which denies human rights to the individual is the communist party. Yet there is no political party or organization in Canada today which is more active than the communist party in its support of a bill of rights. Why? Because I suggest that a Canadian bill of rights would suit the interests and plans of that party.
Another assertion by the civil rights association with which I think we will all agree is that without these elementary rights a man cannot completely use the talents with which God has endowed him and that a recognition of these rights would receive, and indeed does receive, the wholehearted support of the Christian people of Canada.
My submission is that a bill of rights which is advocated in any of these forms which have been suggested is not the most effective form in which the recognition of those rights can take. I suggest to the hon. member for Prince Albert (Mr. Diefenbaker) that there is no country in the world whose constitution includes a bill of rights which recognizes and protects those rights as effectively as they are recognized in the United Kingdom and in this country of Canada. The United Kingdom has no bill of rights in the sense in which the hon. member for Prince Albert and the hon. member for Rosetown-Biggar (Mr. Coldwell) use that term as referring to something which they would like to add to our Canadian constitution.
This afternoon the hon. member for Prince Albert stated that there was some agitation going on in the United Kingdom seeking to add to their constitution at this time, in 1955,

that which throughout the centuries they have done without and yet managed to achieve the greatest amount of civil liberties of any civilized country on the globe. In the United Kingdom they have their own guarantees of the liberties of their citizens which in actual practice have been more effective than any bill of rights in any country.
Here I would point out to the hon. member for Prince Albert something which I dare say he is probably well aware of already, that in the preamble of the British North America Act we find these words:
Whereas the provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion under the crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom.
In this Canadian constitution of ours, as I think the hon. member for Prince Albert noted this afternoon, are incorporated all the guarantees of the liberties of the citizens of Canada which are enjoyed by the people of Great Britain including the Magna Carta and the Bill of Rights of 1688. In my submission the real question here is whether we should permit the guarantees of our human rights and fundamental freedoms, which we have inherited from Great Britain and which work very well in actual practice, to be superseded in this country by an American style bill of rights which looks better to some people on paper but which-as my hon. friend in his reference to McCarthyism this afternoon indicated-does not necessarily and automatically protect the civil rights of the people of that country.
I am inclined to think that if many of the advocates of a bill of rights knew that what they were proposing was an exchange of the British type of fundamental freedoms for the American type, they would not be so enthusiastic about their advocacy of this change. I believe the communists know this point; but speaking of the others I cannot believe that many of the other advocates of a Canadian bill of rights believe that respect for civil liberties is greater in the United States of America than it is in either Great Britain or Canada.
"Oh, yes," they may say, "but if we have a bill of rights in Canada our provincial authorities, which under our constitution are charged with responsibility for the administration of justice, would enforce our Canadian bill of rights more strictly than some of the American states enforce their bill of rights." I suggest that this contention would possess validity only to the extent that in the steps which were taken to provide a Canadian bill of rights we did not ride 50433-58i
Human Rights
roughshod over existing rights which our constitution gives to the provinces of Canada.


John George Diefenbaker: That is perfectly clear;
I made that very clear.


Stuart Sinclair Garson: With great deference, I do not think it was too clear. I am glad to have my hon. friend make his present statement.


John George Diefenbaker: I said it three times.


Stuart Sinclair Garson: I shall refer to this point in somewhat more detail later on in my remarks.
With great deference I would suggest that the extent to which this real issue between the British type of guarantee of human rights and fundamental freedoms and the American type is misunderstood, is nowhere more clearly shown than in the arguments with which the hon. member for Prince Albert has from time to time supported a resolution such as that which we are now discussing.
May I suggest that those arguments at no point actually come to grips with the real issue. For example, the hon. member has argued that we need a bill of rights to correct certain shortcomings in the body of our law. He referred to the Blair Fraser case. He referred to the right of the subject to sue the government. He referred to the fact that there should be an appeal where a newspaper had been convicted of contempt of court.
What have those to do with our constitution or a bill of rights? As my hon. friend himself told us this afternoon, all that is required in any of those cases is to introduce amendments to our existing law. Amendments have already been introduced in connection with the latter two of those three cases. They were introduced by the government, supported by my hon. friend and passed by this parliament. There is no necessity in matters of this kind for a bill of rights. All that is needed is an amendment to the law.
I must say that my hon. friend brought forward some new examples this afternoon which I have not had time to examine with care. However, I examined all the cases he cited in his remarks on this subject matter in the preceding parliament; and I could not find a single case in which the alleged abuses he was complaining about could not be cured by a simple statutory amendment to the existing law, providing of course that my hon. friend could get enough members of parliament to support such an amendment.
Well, supposing he cannot get sufficient support. This is a free country. If my hon. friend does not like the attitude of the present parliament toward his statutory amendments we have, as he pointed out in his remarks, an

Human Rights
election at least every five years. At the next election my hon. friend can get together with his friends and try to elect a parliament that will bring in the statutory amendments to our law which he thinks are necessary. All of these things are completely irrelevant to the question of whether or not we should have a bill of rights in this country. As an example of this, he says:
.. .that no tribunal or commission shall have the power to compel the giving of evidence by anyone who is denied counsel or other constitutional safeguards.
Well, my hon. friend can go to the clerk tomorrow and put a notice on the order paper for a bill to provide that no person who is called upon to appear before a tribunal or a commission shall be denied in any case the right to counsel. But this has nothing to do with a constitutional amendment. All these things remind me of the episode in the story of Tom Sawyer and Huckleberry Finn where the two boys wanted to get out of the house they were in. One of them insisted upon pretending that it was a jail. All they needed to do was walk out; but that was not enough. They had to go through the very elaborate process of crawling through a window and using elaborate methods of raising the window and so on, in order to carry out the spirit of the adventure. That is all right in fiction, but when we are dealing with a problem in constitutional law I do not think it is necessary for us to complicate these matters unnecessarily. In order to get an amendment to our statute law, or to the law of the country, surely we do not have to go so far as to amend our constitution by changing what until now has been one of its cardinal principles, namely, the parliamentary sovereignty of the Canadian parliament and provincial legislature, and to attach to our constitution a series of limitations such as are attached by the United States constitution to the powers of the United States congress and the state legislatures of that country.
Let us examine just one of the limitations that he wants to attach. He says in his motion:
...that no one shall be deprived of liberty or property without due process of law, and in no case by order in council.
I suggest to him-I hope he will correct me if I am wrong-that is the analogue of the due process of law clause in the constitution of the United States of America. Such a clause would limit the sovereignty of the Canadian parliament and of our provincial legislatures in a manner which has been the delight of the corporation lawyers representing the public utility corporations of that country for the last 150 years; and the total

cost of the litigation in relation to which the people of the United States, either as consumers or as taxpayers, have had largely to defray.
My hon. friend seriously brings this suggestion forward as a concrete example of what he wants to add to our constitution. Let us see what a prominent United States lawyer, one of the greatest living United States lawyers, thinks about this due process of law clause as applied under more appropriate surroundings in the United States of America itself where parliamentary sovereignty is not involved. The Hon. Mr. Justice Frankfurter in a book of essays entitled, "Law and Politics" published in 1938 and covering his writings from 1913 to 1938, said this concerning the two clauses of the United States constitution which correspond to the four clauses of my hon. friend's resolution:
The due process clause of the fifth amendment, a limitation upon the federal government and the due process of law and the denial of the equal protection of the laws of the fourteenth amendment, limiting state action and subjecting every local act of every state to the scrutiny of the supreme court at Washington-


John George Diefenbaker: What does the fourteenth amendment say?


Stuart Sinclair Garson: I shall read this again, putting in the sub quotation marks, and my hon. friend will see.
The "due process" clause of the fifth amendment, a limitation upon the federal government, and the "due process of law", and the denial of the "equal protection of the laws" of the fourteenth amendment, limiting state action-
Fifth amendment limiting the federal, fourteenth amendment limiting the state; I continue:
-and subjecting every local act of every state to the scrutiny of the supreme court at Washington . . . these broad guarantees in favour of the individual are expressed in words so undefined, either by their intrinsic meaning, or by history, or by tradition, that they leave the individual justice free, if indeed they do not actually compel him, to fill in the vacuum with his own controlling notions of economic, social and industrial facts with reference to which they are invoked. These judicial judgments are thus bound to be determined by the experience, the environment, the fears, the imagination, of the different justices. For it cannot be too often made clear that the meaning of phrases like "due process of law" and of simple terms like "liberty" and "property", is not revealed within the constitution; their meaning is derived from without. As a great legal scholar has put it, social legislation of the twentieth century is declared unconstitutional by putting eighteenth century Adam Smith into the constitution. As an outstanding and candid member of the federal bench, Judge Charles M. Hough, reminds us, due process of law is a phrase of "convenient vagueness". "Convenient" for whom or to what end?
I now recommend the last paragraph of this same article to the house and particularly

to the hon. member for Prince Albert (Mr. Diefenbaker). It reads as follows:
What is needed is a thorough understanding of our constitutional system in action, as a basis of determining what is the proper scope of judicial control, and what conditions are most likely to insure the exercise of this tremendous power by ordinary mortals, to avoid at once the abuses of tyranny and the timidities of dependence. Particularly does it behoove progressives not to content themselves with mere abuse of abuses, nor to fall back upon mechanical contrivances when dealing with a process where mechanics. can play but a very small part. An informed study of the work of the supreme court of the United States will probably lead to the conclusion that no nine men are wise enough and good enough to be entrusted with the power which the unlimited provisions of the due process clauses confer. We have had 50 years of experiment with the fourteenth amendment, and the centralizing authority lodged with the supreme court over the domestic affairs of 48 widely different states is an authority which it simply cannot discharge with safety either to itself or to the states. The due process of law clauses ought to go. It is highly significant that not a single constitution framed for English-speaking countries since the fourteenth amendment has embodied its provisions.
Justice Frankfurter then goes on to say- and I recommend this particularly to my hon. friend:
One would indeed be lacking in a sense of humour to suggest that life, liberty or property is not amply protected-
In certain countries which he names, and the first of those countries so named is Canada.


John George Diefenbaker: That was in 1938.


Stuart Sinclair Garson: It is in the book of essays to which I have referred.
I am sure we all appreciate my hon. friend's anxiety to improve our constitution, but I do submit that we are not likely to improve it by adding to it a clause of this character.
This afternoon my hon. friend said that since this parliament abolished appeals to the privy council, Canadians whose fundamental freedoms were interfered with have no right of appeal to the Supreme Court of Canada as a final court of appeal for this country such as they formerly had to the privy council. I do not think I should spend a great deal of time upon this particular point because it is a simple point of fact or law. I regret that I must flatly contradict this statement made by my hon. friend by saying that Canadians have now a right of appeal to the Supreme Court of Canada which is just as full and complete as that which they previously had to the privy council itself.
At the time appeals to the privy council were abolished we instructed parliamentary counsel to provide in our legislation here the means of enabling Canadians to have the
Human Rights
same kind of appeal to the Supreme Court of Canada as they had previously to the privy council. So far as I am aware, these instructions have been carefully followed with the result which I have just stated.
When my hon. friend is urging upon us that we should have a bill of rights in the United States manner, I think it might not be inappropriate if I contrast this unlimited right of appeal to which I have just referred with the appeal provided by the United States bill of rights where the Supreme Court of the United States may summarily, without stated reasons, refuse to review the judgments appealed against. Fowler Harper, professor of law at Yale university, in an article in the Atlantic Monthly for April, 1952, entitled "Decision by Silence" says at page 46 that the Supreme Court of the United States of America-
. . . exercised its discretion in denying review in a thousand cases last term . . . Therefore, the opinion is offered that of the 1,002 cases which the court summarily and without stated reasons refused to review, there were 31 cases which were of vital interest to the nation and thus merited the attention of its highest tribunal. Of course, 31 cases out of a thousand doesn't sound like much, but if you put it in terms of 31 issues of national importance, it sounds different. For whatever significance it has-and it has great significance-17 of the 31 cases involved some aspect of civil rights.
Is there anything in that item of information that would move us to adopt a bill of rights similar to that of the United States?


Some hon. Members:: No.


Stuart Sinclair Garson: When my hon. friend fronr Prince Albert was delivering his remarks this afternoon, he was good enough to permit an. interruption and to reply to my question as to whether the 11 articles to which he was referring as having come from the Roebuck committee in the senate were the same as those he was mentioning this afternoon and also the same as those which he had mentioned in a previous speech to us in the house. Having considered those articles carefully, I should like to say that in my view there is not one of them that is not amply protected by the existing laws of Canada at the present time, if those laws are properly invoked and administered. I admit that the request for a bill of rights to guarantee these human, rights and fundamental freedoms-which I say are now properly protected-implies that these rights are not protected; and I believe that was my hon. friend's argument.


The Acting Speaker (Mr. Applewhaite):: Order. I hesitate to interrupt the minister but it is my duty to inform him that his time has expired.


Some hon. Members:: Go on.

Human Rights


The Acting Speaker (Mr. Applewhaite):: With the unanimous consent of the house the minister may proceed.


Major James William Coldwell: I believe the minister has unlimited time in replying to a motion.


The Acting Speaker (Mr. Applewhaite):: do not think the motion made by the hon. member for Prince Albert (Mr. Diefenbaker) was one of non-confidence. I therefore thought it was my duty to advise the minister that his time had expired. However, with the consent of the house he may proceed.


Major James William Coldwell: Why was the hon. member for Prince Albert allowed to go on for an hour and twenty minutes?


An hon. Member:: By consent.


The Acting Speaker (Mr. Applewhaite):: think that also was with the unanimous consent of the house.


Major James William Coldwell: I think the reply should be on the same basis.


John George Diefenbaker: Certainly, with consent. The hon. member was not here at the time.


Stuart Sinclair Garson: As I was saying, I took it that my hon. friend

and I hope he will correct me if I am wrong-was implying by his reference to these articles that the present law was not in a satisfactory state. From having carefully examined all of these articles I suggest that those who imply this either disregard what the law now is or, it may be, they mistakenly regard as defects in the existing substantive law what are really not substantive defects at all, but merely defects in the administration of that law by the responsible authorities. What we must remember in this context is that all law is as administered by human beings who are fallible, who make mistakes, and who sometimes perhaps have prejudices which they should not have. But the defects in the administration of the law due to human prejudice and fallibility, I suggest, cannot be substantively changed by constitutional amendment or otherwise to protect human rights and fundamental freedoms. Indeed the experience of other countries shows clearly that even if we had a bill of rights in Canada, it might be difficult to secure what some Canadians might regard as a proper administration of the laws with regard to human rights and fundamental freedoms by some authorities who, because they strongly disagreed with certain clauses in the bill of rights, consciously or unconsciously would misinterpret them or improperly or inadequately enforce them. There are many examples of this sort of thing in the other countries which have constitutions and bills IThe Acting Speaker (Mr. Applewhaite).]
of rights which, on their face, are admirable. The hon. member for Prince Albert has made this statement:
it-
A bill of rights.
-would give positive evidence that when Canada, at the United Nations assembly two years ago, accepted the universal declaration of human rights, that acceptance was a dedication of the Canadian people not only internationally but nationally as well.


John George Diefenbaker: What is my hon. friend quoting from?


Stuart Sinclair Garson: I am quoting my hon. friend from Prince Albert.


John George Diefenbaker: When?


Stuart Sinclair Garson: The last occasion when this matter was discussed.


John George Diefenbaker: Oh, yes.


Stuart Sinclair Garson: From that remark I inferred that my hon. friend was of the view that Canada's acceptance of the universal declaration of human rights involved us in some changes in our laws within Canada itself as well as internationally.


John George Diefenbaker: Mr. Speaker, does my hon. friend not know that the declaration of human rights has never been submitted to the parliament of Canada?


Stuart Sinclair Garson: If my hon. friend will examine the Hansard record


John George Diefenbaker: Does he not know that?


Stuart Sinclair Garson: Oh, yes; I know it.


John George Diefenbaker: That is fine.


Stuart Sinclair Garson: That does not prevent my hon. friend from arguing-and from his point of view it is probably quite a good argument- that we should do something about it in Canada. I have never thought we needed to amend any law in Canada in order to bring the body of our law into conformity with this declaration of human rights to which we subscribed at the United Nations.


John George Diefenbaker: No one suggested that.


Stuart Sinclair Garson: When I was at the United Nations assembly in Paris in 1952 I made it my business to confer with a noted Canadian lawyer whom I took to be the highest authority in this field at the United Nations at that time. He confirmed my own opinion that the condition of the Canadian law today is such that Canada does not need to pass a single law of any kind in order to be in complete compliance with the universal declaration of human rights to which Canada subscribed some years ago. This brings me to the text of my hon. friend's resolution.


John George Diefenbaker: Who was that lawyer?


Stuart Sinclair Garson: Mr. Humphrey of McGill University, who was seconded there.
This brings me to the text of the resolution moved by my hon. friend and to the arguments by which he has supported it. He wants us, and I quote from his resolution, to submit "for the opinion of the Supreme Court of Canada the question as to the degree to which fundamental freedoms of religion, speech and of the press and the preservation of the constitutional rights of the individual are matters of federal or provincial jurisdiction."
Now, sir, with great deference I suggest that we cannot hope to secure a judgment which would be of any value for the hon. member's purposes by an abstract reference to the Supreme Court of Canada of a mixture of subject matters, some of federal jurisdiction, some of provincial jurisdiction, some in one aspect of federal jurisdiction and in another aspect of provincial jurisdiction, and some of mixed jurisdiction. Indeed, I doubt whether the Supreme Court of Canada would even consider a reference in the terms in which the hon. gentleman has suggested it. For I would point out that the words "fundamental freedoms of religion, speech and of the press and the preservation of the constitutional rights of the individual", taken by themselves and unrelated to any specific piece of legislation, are so abstract that I question whether any kind of useful response could be secured from the Supreme Court of Canada on a reference of that general character.
I am sure the hon. member is aware that when a question of constitutional interpretation comes before the Supreme Court of Canada it usually comes in the form of a federal labour law, for example, that was before the supreme court the other day. We say in effect here is a law which we have passed. We have invoked our jurisdiction. The question is whether the law we have passed is within our powers. In other cases, it may be a provincial law, but it is always something of a concrete nature like that. There is no group of human beings, no matter how subtle their intelligence or how able they may be, who can say that fundamental freedoms of religion, speech and of the press and the preservation of the constitutional rights of the individual are under federal jurisdiction or under provincial jurisdiction.
Take, for example, freedom of the press. It is not a subject which falls completely under federal jurisdiction or even completely under provincial jurisdiction. That abuse of freedom of the press which takes the form of a criminal libel is part of the criminal law and under federal jurisdiction. On the
Human Rights
other hand, the laws relating to the bringing of actions against newspapers for damages for libel are provincial laws which deal with property and civil rights.
It is conceivable that either the federal parliament or provincial parliaments by legislating unreasonably could abridge the freedom of the press. In fact, as my hon. friend pointed out this afternoon, one provincial legislature did so. But I think it would be impossible for the Supreme Court of Canada to say that freedom of the press per se or the freedom of speech per se were wholly a matter of federal or provincial jurisdiction.


John George Diefenbaker: Would the minister allow a question there?


Stuart Sinclair Garson: Yes.


John George Diefenbaker: Does he agree with Senator Roebuck, Senator Gouin who, I think, was on the committee, and several other very distinguished lawyers that a draft such as the one I have placed before the house today should be submitted to the Supreme Court of Canada for its decision?


Stuart Sinclair Garson: Well, Mr. Speaker, having regard to the fact there was nothing in my hon. friend's last speech and nothing in his resolution to indicate he was going to submit an argument of this sort, I must say in all candour that I have never considered it. It is a matter upon which I would not want to express an opinion unless I had considered it carefully because I think there is nothing more unhelpful in a matter of this kind than the expression of unconsidered opinions.
My hon. friend, amongst other things, wants an assurance of freedom of religion. I suggest that we have freedom of religion in Canada right now. We have every kind and description of religion. Each sect practises its religion in any way it chooses, and none is barred unless in the course of practising its religion it breaks the law of the land. Let us, for example, take an extreme hypothetical case, and I am taking this case because there are no examples of it. I could take cases of a religion concerning which people who believe in that religion have been found guilty under the Criminal Code of not providing necessaries for those who were dependent upon them, but I am taking this other case because there are no examples of it and therefore it will not give any offence.
Let us take a religion that offered up human sacrifices, which at one time in the world's history was a practice of some religions. I have no doubt that there would be a general desire to have the offering of human sacrifices prohibited by law, not as an interference with freedom of religion but merely to stamp out a practice which was

Human Rights
disapproved by an overwhelming majority of Canadian citizens. Now, sir, I know of no constitutional amendment which would protect a Canadian citizen who had, for example, for religious reasons offered a human sacrifice of this sort. There is no protection that would interfere with the visitation of a penalty upon him.
I would point out that all constitutional guarantees must be interpreted by the courts, and the court in this hypothetical case I have mentioned-


John George Diefenbaker: But the hypothetical case would not concern freedom. The United States supreme court dealt with the point and said there is no freedom in an action such as the minister contemplates. That is exactly the point.


Stuart Sinclair Garson: That is right. I agree with my hon. friend.


John George Diefenbaker: The minister is raising a straw man.


Stuart Sinclair Garson: In a case of that sort the court would hear the evidence and would have to decide upon the evidence adduced in the case before it whether in substance what the accused had done was to practise freedom of religion or to break the law against human sacrifices. If the courts of any country in which these constitutional guarantees exist find that what has happened is that human sacrifices have been offered, the existence of the constitutional guarantees in favour of religious freedom would not protect the person charged.


John George Diefenbaker: I would hope not.


Stuart Sinclair Garson: My hon. friend may not agree with the judgments of the courts in certain cases because, like the hon. member, myself and all members of the house, judges are human beings and like all of us they are fallible. That is why we have courts of appeal, and the courts of appeal are also fallible. But does the hon. member think that by a bill of rights we can make judges infallible or that we can protect ourselves against the human fallibility of judges who have to interpret these bills of rights?
My hon. friend mentioned freedom of speech. Well, sir, I should have thought that we have a very great measure of freedom of speech in this country. I can recall my hon. friend's own leader and several of his colleagues, who were very voluble in the former parliament and in the election campaigns of 1949 and 1953, supporting the thesis with resounding eloquence that the communists of this country enjoyed far too much freedom of speech and freedom of the press, and that this government was derelict in its duty for not taking steps to curtail the 
freedom of speech of these gentlemen, or perhaps to curtail their freedom of movement, or perhaps to curtail their freedom- period. Now at that time my hon. friend's thesis was that there was too much freedom. Today, he says there is too little. His arguments oscillate with time and place.
My hon. friend wants to guarantee freedom of the press. Well, sir, I should like him to tell us, if he will, what freedom of the press it is that is not now available to the newspaper and other publishers of this country. During the last parliament his colleague, the hon. member for Kamloops (Mr. Fulton), introduced a bill which we all supported to interfere with the freedom of the press with regard to obscene publications and crime comics. Was it not proper that we should have done so? If we had a constitutional amendment guaranteeing freedom of the press, there might be some question although I think properly interpreted there would not be. But at least I think this is a case in which we can trust the good judgment of parliament.
If my hon. friend can think of any example of a curtailment of the freedom of the press would he not, upon reflection, agree that it could be removed by either a provincial enactment or a federal enactment, depending upon whether the particular case fell under federal or provincial jurisdiction? It is not so very long ago, and the hon. member for Prince Albert brought this matter up this afternoon, when one of the provincial legislatures passed a law which, as we could see this afternoon, offended my hon. friend's views as to the degree of freedom which the press should have in this country. What happened? Action was taken in the courts, the same courts that would be interpreting a bill of rights-


John George Diefenbaker: If the minister would allow me to correct him, I would say that action was not taken. The dominion government was asked to disallow that enactment, but they did not disallow it. It was submitted, then, to the supreme court. No action was taken.


Stuart Sinclair Garson: My hon. friend is quite correct.
I was referring to that, improperly, as an action.
The matter came before the court. This was the same court which, now being the final court of appeal, would interpret any bill of rights we would have in this country. It was there held that under the present law of Canada the freedom of the press in that province could not be curtailed in the manner proposed by the legislature of the province. This happened under the present law.

Another point which my hon. friend from Prince Albert makes is that habeas corpus should not be abrogated or suspended except by parliament. I suggest that no one can name a single case in which habeas corpus has been abrogated or suspended in Canada except under the authority of parliament. Under our existing law habeas corpus is available to every subject who wishes to invoke it, and the only way it can be rendered unavailable is by an act of the appropriate legislative body which, in certain cases, is the parliament of Canada and in other cases is the provincial legislature.
When my hon. friend speaks of orders in council having done this or orders in council having done that, surely he must remember that every order in council which is used for any purpose by either the governor in council at Ottawa or by the lieutenant governors in council in the provinces, is open to challenge in the courts of this country. If a lieutenant governor in council or the governor general in council has passed an order in council which is not properly authorized by statute, no action can take place under it and the effect of any such action can be and will be quashed if it is challenged in the courts. So far as the necessity for a bill of rights to protect habeas corpus is concerned, I would submit it is not essential in any respect.
In the third paragraph of his resolution, the hon. member says:
That no one shall be deprived of liberty or property without due process of law, and in no case by order in council.
I wonder if my hon. friend realizes the extent to which a literal application of this portion of his resolution would go. Does he mean_ to say that municipalities could not exercise any of their functions which they exercise under authority delegated to them by provincial legislatures, except by due process of law?


John George Diefenbaker: That is the only way they can act, by due process of law.


Stuart Sinclair Garson: Quite. My horn, friend does not mean that they should have to have due process of law. Does he mean that we could not use an order in council to affect property? He says, "in no case by order in council". Would he think it was necessary for us in this chamber to pass a statute in every case in which the government of Canada was going to acquire any property? That is what his language states. Surely my hon. friend is quite aware of the fact this government cannot by order in council do any of the things with which my hon. friend charged it in a number of
Human Rights
the details he cited this afternoon, except under the authority of some statute of this parliament or, in very exceptional cases, under the royal prerogative. All of those cases which he cited as based on an order in council, and which he seemed to suggest had some measure of illegality or impropriety about them, could be successfully challenged by my hon. friend acting for a client if those orders in council were not properly authorized by a proper statute of parliament.
It is on the basis of such arguments as these that the hon. member wishes us to believe that in 1955 he and others who are again urging this bill of rights have seen a light which Sir John A. Macdonald, Sir George Cartier, Hon. Edward Blake, Sir Oliver Mowat, Sir John Thompson, Sir Charles Fitzpatrick, Sir Allen Aylesworth, Sir Robert Borden, the Right Hon. Arthur Meighen, Sir L. Gouin, the Right Hon. Ernest Lapointe, the Right Hon. R. B. Bennett, the Right Hon. L. S. St. Laurent and the Right Hon. J. L. Ilsley have all failed to see in their time. Perhaps he is right and they have all been wrong, but for my part I think that is improbable. The fact is, as has been accurately and succinctly stated by the hon. member for Spadina (Mr. Croll), that the basic freedoms are more highly regarded and more secure to the individual in Canada than in any other country in the world with the possible exception of Great Britain.
Why are they secure? Because they are protected by the British principle of the sovereignty of parliament. It is this British principle which the hon. member for Prince Albert proposes to abridge by attaching constitutional limitations to it in the manner of the bill of rights in the United States constitution.
My hon. friend speaks for the Conservative party in this matter. Why then, may I ask him, do he and his party not believe and advocate that we should conserve what has worked well? Why do they not advocate that we should keep our meddling with the Canadian constitution to an absolute minimum? What kind of conservatism is this? Can the hon. member, looking around the world, name a single country in which a bill of rights such as he advocates has worked as well as the sovereignty of parliament has worked in both the United Kingdom and in Canada? It is a strange kind of conservatism that attempts to discard that which has worked well and to replace it with something which, wherever it has been tried has not worked nearly so well as the principle of the sovereignty of parliament in this country.

Human Rights
I have attempted to discuss all the main arguments of the mover of the resolution.
I must say, in all frankness, that if we were going to consider a bill of rights in this country I would prefer at least the language of the proposal made and standing in the name of the hon. member for Kosetown-Biggar (Mr. Coldwell). I would be glad to discuss the proposal he has suggested and to indicate the methods by which I think it would have to be introduced, if introduced at all. But I would think it would be much preferable to do that after having had the benefit of a fuller expression of his views. For that reason I think I should bring my present remarks to a close.


Major James William Coldwell: Mr. Speaker, I approach this particular topic with a good deal of trepidation, stepping in where angels fear to tread. I am not a lawyer. Certainly I am not a constitutional lawyer, and I hojie to demonstrate that by speaking more briefly than either of the two hon. gentlemen who have preceded me.
The hon. member for Prince Albert in introducing his motion this afternoon said he hoped there would be an opportunity for a vote on the proposal for the writing into our constitution of a bill of rights. With that of course I want to agree immediately. I did not know, when the hon. member rose to speak, that he was going to incorporate in his speech, though not in his resolution, the points made and the proposals suggested by the committee set up in the other place.
The motion I put on the order paper originally and which the house was good enough to allow me to withdraw this afternoon, spells out what I think should be a satisfactory bill of rights for this country. I am going to say immediately that while that resolution is in my name and was discussed with me very thoroughly, I had some of the best constitutional and legal advice in the country before I drafted it and placed it on the order paper. And I believe that is the kind of thing upon which the vote should be taken. Previous to this afternoon the hon. member for Spadina (Mr. Croll) told me that if I moved my resolution he would be glad to let his stand, and would be prepared to second what I had moved. What I am going to do this afternoon is move the substance of my motion as an amendment to the motion of the hon. member for Prince Albert. Then if the hon. member for Spadina will allow me, I shall add his name as seconder of the amendment, despite the reference made by the minister to a statement he made in a previous debate.
If I have that consent-and I understand I have-in a moment I shall move in the
[Mr. Garson.l
form of an amendment the motion which stood in my name. I think the need for explicit amendments was substantiated in several of the instances to which my hon. friend from Prince Albert referred this afternoon. And if I may say so, his reference to the religious case which was before the supreme court, and upon which there was a difference of opinion among the judges, indicates the futility of making a reference to the Supreme Court of Canada such as is suggested in the main motion, without having something far more specific than the motion indicates.
I say further that it is the duty of this parliament, representing all the people of Canada, to decide whether or not we shall have a bill of rights written into our constitution. It is not therefore the function of the supreme court to decide; it is the function of this parliament to decide.
So, as indicated, I move:
That the resolution be amended by striking out all the words after the words "advisability of" in the preamble of the resolution, and substituting therefor the following:
"The taking of whatever steps are necessary to amend the British North America Act so as to include therein the following headings and sections:



XII HUMAN RIGHTS

[Stage Direction]
148.	Notwithstanding anything in this act. it shall not be lawful for the parliament of Canada or the legislatures of any of the provinces to make laws:
(a)	Abridging freedom of speech and expression, or freedom of religion, or of the press or other means of communication or the right of lawful assembly, association or organization.
(b)	Depriving any person of life or liberty by arbitrary or abusive measures, or denying to any person the equal protection of the laws.
(c)	Requiring or imposing excessive bail or cruel or unusual punishment or exiling Canadian citizens.
(d)	Subjecting any person to unreasonable interference with his or her privacy, family, home or correspondence.
(e)	Subjecting any person to arbitrary arrest or detention or denying to any person the right after arrest to be informed promptly of the charges against such person and to trial within a reasonable time or to be released.
(f)	Suspending the right to habeas corpus or depriving any person of a fair trial or the right to be represented by counsel.
149.	The rights provided in section 148 shall be enjoyed without distinction of race, sex, religion or language and the right to vote in any election of members of the parliament of Canada or the legislative assembly of any province shall not be denied or abridged on account of race, religion, language or sex.
150.	The rights conferred by sections 148 and 149 hereof of this act shall not be deemed to abridge any existing right of any person."
May I say that the need for a bill of rights of this description is certainly not of recent origin. In spite of the closing words of the Minister of Justice (Mr. Garson), over the years, and during the times of the

gentlemen to whom he referred, from time to time there have been serious infringements of individual rights and the securing of justice. For example, there comes to my mind the case of the Winnipeg strike in 1919, when the government of this country by telegram ordered the arrest of certain people in the city of Winnipeg. I believe it instructed that deportation be carried out but my memory is not clear on that point. The telegram said that legislation would be brought down later to validate the arrests or actions or whatever was being undertaken at that time. That was 36 years ago, and during the intervening period there have been many occasions on which interference with fundamental rights has been undertaken by various governments.
As has been said already this afternoon, in 1950 a committee of the other place sat to consider human rights and fundamental freedoms. After hearing many representations it recommended that parliament should adopt a declaration of human rights to be followed by consideration of the writing of a bill of rights so these rights might be embedded in our constitution. Of course since then parliament has done neither the one nor the other, although on occasion we have debated the question in this house.
In order to bring the matter to a head, I make the motion which I am now moving as an amendment to the main motion. I do that so we may take whatever steps are necessary to amend the British North America Act in a manner that will secure without peradventure to every citizen of Canada the common right of individual freedom in this country.
As the hon. member for Prince Albert pointed out this afternoon, we are a signatory to the international declaration of human rights. Canada's signature is attached to that document even though we have not approved it by resolution of this parliament. I point out that under that declaration of human rights-I was representing Canada on the committee that wrote this into the constitution-we pledged ourselves to achieve in co-operation with the United Nations the promotion of universal respect for the observance of human rights and fundamental freedoms. That was at Lake Success. We are signatories to that declaration.
Despite what the minister said, it seems to me that we have an obligation to see that we do within our own country what we propose other countries in the world should do. Therefore I think that within our own constitutional rights we should take the necessary action here to fulfil our obligations and pledges.
Human Rights
I want to say further that this parliament speaks for all the citizens of Canada. What I suggest is surely no infringement of provincial rights. Certain areas are suitable for provincial action in the defence of freedom. That is quite true. Certain areas in the defence of freedom may be suitable for municipal action. But the prerogatives of this parliament cover a greater area for our own protection than the area covered by all ten provinces together. This is the place in which our fundamental rights are either protected or not protected, or even interfered with.
As citizens of the whole country we must look to this parliament to protect our human rights as common citizens of a common country we call Canada. We have our act dealing with citizenship. Citizenship is a privilege conferred by this parliament, not by provincial legislatures. Citizenship is the responsibility not of the provinces but of Canada as a whole.
From time to time, as the hon. member for Prince Albert indicated this afternoon, there have been attempted and in some cases carried into effect in various parts of Canada certain limitations and serious infringements on the basic rights of freedom and citizenship in this country. The hon. member this afternoon referred to the Alberta press act of 1937. I am not going to enter into a controversy with the hon. member for Lethbridge (Mr. Blackmore) or anyone else sitting in this house, but I am going to say that the judgment of the supreme court was that it was an infringement of the fundamental rights of the press in this country.
Although it was not mentioned, the padlock law in another province of Canada surely was an infringement of the rights of individuals in that province. In the same province certain legislation limits the right to distribute literature, and even goes so far as to prohibit the posting of posters at election time, providing that all literature shall be submitted to the chief of police of the city by the people who want to post bills or distribute leaflets. They cannot do that without obtaining a licence and getting permission from the city during a federal election.
That I say is a serious interference with the rights of citizens at any time and particularly during an election, when people have the right to all the information that may be available to them in order that they may make up their minds as to how they shall cast their ballots. As I say, there have been these infringements, and I could enumerate others along the same line.
[Stage Direction]
Human Rights
I noticed the Minister of Justice said that there had not been interference with the operation of habeas corpus, that individuals have had access to the courts and so on. I know that the reason for the incarceration of individuals incommunicado in the espionage case has often been said to have been valid and essential to national security. Here we had people incarcerated; their friends did not know where they were; they had no access to counsel, and their individual rights were sadly interfered with. Even if it is argued that the end justified the means I never can believe that the end justifies the means in matters of that description.
The proposals that I seek to place before the house for its consideration, and I hope its support, have been carefully drawn with all these things in mind and, as I said earlier, with the advice and assistance of persons whom I am sure the Minister of Justice (Mr. Garson) and the hon. member for Prince Albert (Mr. Diefenbaker) respect as competent constitutional lawyers in this country.
The mere adoption of this resolution asking for the consideration of such a bill of rights would not enact that bill of rights but it would clearly indicate our opinion. Enactment of the legislation is something that can only be done with the approval of the government, I take it; so what we might do is make a declaration expressing our belief in the great principles of human freedom which, as the minister said, everybody in this house without distinction, I believe, will profess.
I hold in my hand Professor Scott's brief which he presented to the committee which was established in 1949 and 1950 in the other place. Professor Scott said that principles similar to those I suggest should be written into our constitution. I am going to quote only a few words from the brief. He said this would become a recognized part of public policy, and would thus assist judges in the interpretation of both statutes and private contracts.
It is a well-known principle of law that private agreements cannot violate public policy. If we adopted a declaration of this description it would become public policy, and consequently it could be used for the guidance of the courts and would help in the interpretation of law. He then went on to say-and I am summarizing him now-that embedded in the constitution it would influence the course of future legislation in parliament by inhibiting the adoption of later statutes in conflict with it, although of course there would be no absolute barrier to subsequent amendment of the bill itself. We
[Mr. Coldwell.l
know that an act can always be amended in this parliament, no matter how well it may be written; but I would remind the house of this. The British bill of rights-and there is a bill of rights there that was adopted in 1688 by, as it then was, the English parliament; it was not a British parliament at that time-has never been interfered with since. Like Magna Carta, it is embedded in the constitution of the United Kingdom; and as a matter of fact these United Kingdom declarations or whatever they are, such as Magna Carta, have had a tremendous influence not only in the commonwealth countries but in countries which have derived their institutions from the United Kingdom, such as the congress of the United States.
While a bill of rights could be amended, it would bind the executive and administrative branches of government at all times to the will of parliament as expressed in the constitution. That expression, that declaration, that bill of rights, would express the will of parliament in the particulars which I have enumerated in the amendment I have moved. If we had such a declaration, no order in council could issue unless a statute giving power to the executive had first been enacted. I go back to the question of the Winnipeg strike and the order in council. The telegram was sent without a statute behind it giving the authority which the government claimed and intended to use.
Of course a bill of rights could be a separate statute instead of being written into the constitution; but I think the protection becomes much more specific if it is written into the constitution itself. It thus becomes much more valuable to the people of Canada, and much more certain. Written into our constitution, the rights and freedoms enumerated would ensure to the people of Canada that temporary legislative majorities -and we may get temporary legislative majorities here and there in this country in the future that would interfere with human rights to a greater extent than those rights have been interfered with in the past-would be prohibited from, or at least, if not prohibited, would find more difficult the setting aside of proper democratic procedures to interfere with our fundamental rights.
The advantage, too, of adopting a constitutional amendment is that it brings together in one place a statement of the rights and the freedoms of Canadians, some of which are already embedded in our constitution. For example, section 133 of the British North America Act relates of course to the use of the two languages in our country. In this parliament of Canada, in the province of

Quebec and in the federal courts of Canada, English and French are on equal footing. There is a constitutional right embedded in the constitution. Section 93 of the British North America Act gives the right of separate schools in the provinces where separate schools had existed or where subsequently, as in my own province and in the province of Alberta, the autonomy acts included a provision for those separate schools, just as in other provinces like Manitoba and British Columbia it is within the jurisdiction of the people to decide that they shall have a non-sectarian school system.
Those rights are embedded in our constitution, and as far as I know no one wishes to interfere with either of them. And of course when the matter of taking power to amend our own constitution was before this parliament we in this group were insistent that there should be embedded in the constitution the provision that a general election should be held at least once every five years. In the constitution before that, under section 20, we had the obligation of the government to call parliament together at least once a year, and it so remains.
There are those who say that a bill of rights is unnecessary because the preamble of the British North America Act says that the Canadian constitution-and the minister quoted it this afternoon.-shall be similar in principle to that of Great Britain. Only the minority rights that were not a part of British tradition-and I have named them-were mentioned specifically in our constitution, particularly language and education.
Because of the disposition at times since then to infringe upon traditional rights that had been established in the United Kingdom, it is my opinion that it becomes necessary to write them more specifically into our constitution. I could of course have used my own language, but I happen to have here some reflections on a bill of rights by Professor Lower. I am not going to quote it at length, but he quotes at great length the representations that were made in Winnipeg some years ago in connection with a bill of rights.
I am just going to quote one part. It is rather lengthy, but I am going to quote from part of the material which he quotes. The quotation is from the brief submitted to the royal commission on dominion-provincial relations, Winnipeg, Manitoba, December 8, 1937, by Mr. Justice Coyne, Professor Lower and Professor MacFarlane. I should like to place this on record. Some lengthy quotations have been placed on the record this afternoon, and I am going to do the same thing. After talking about the difference
Human Rights
between the British institution of parliament and the United States congressional system they say that the Americans therefore thought it advisable to set out a bill of rights specifically, and they go on to say:
But the fathers of confederation, in the different circumstances of 1867, did not consider such specific provision to be necessary, especially when disallowance and reservation were there to protect them.
We have disallowance and reservation now, but the government has been loath to use either reservation or disallowance in recent years. I think the most outstanding case of that was when there was such tremendous pressure both in this house and in the country to disallow the padlock law in the province of Quebec, but the government refused to act. They go on to say:
The necessities of our situation, with nine provinces, imperatively require equality everywhere to some minimum degree-some common rights of Canadian citizenship. Such rights must be beyond provincial interference, whether or not they are embodied in a bill of rights. The British North America Act was a product of its times.
I think everyone will agree with that statement. The year 1867 and the year 1955 are 88 years apart. The times then were very different from the times in which we now live; nor indeed was there such a threat throughout the world to political freedom-and I am speaking about political freedom, because I do not go along with the view that all our freedoms have been restricted over the last few years. As a matter of fact there has been much extension of economic and social freedom at the same time as in some places and under some circumstances there has been restriction of both political and religious freedom.
Whatever there was of freedom in British institutions in 1867 passed into ours. We, in Canada, were the heirs of all the liberties won in previous centuries. It was inconceivable that the bodies set up for the government of Canada and its provinces, any more than that of Great Britain itself, would betray this fundamental of all British and Canadian life. Had not Creasy just said that Magna Charta had provided freedom to the utmost "for everyone that breathes English air"? To the people of the time, there seemed no more need to recapitulate those rights and incorporate them in an act than there was to incorporate the ten commandments. English liberty was taken for granted. It was basic in our constitution. It may therefore be asserted that in the British North America Act, by the very necessities of its existence, there must be found embodied as rights of Canadians as such, those fundamentals historically known as the liberties of the subject. These liberties are traditional. They are the warp and woof of our way of life, as that of all other Englishspeaking communities, and a part of the democratic system and philosophy. They are the foundation of our conception of citizenship and of the institutional structure of the dominion and all its provinces, that is to say, of representative and parliamentary government and the reign of law among a free people, as opposed to the conception and exercise of dictatorial will. To the fathers it
[Stage Direction]
Human Rights
was unthinkable that they should ever be in danger from any British legislature, for that legislature was simply a manifestation of the free men who stood behind it. These rights, to them, were too plain to need expression, they were underlying, basic, implicit and unchallengeable. The fathers therefore, felt no necessity of especially referring to or safeguarding in express language the traditional and fundamental liberties of the subject from provincial curtailment or annihilation. The spirit of the times has now changed and experience has shown that the liberties of the subject are no longer completely safe in the legislative hands of the provinces.
I think a case was made for that this afternoon. They continue:
What of the dominion? If the legislature represents the "will of the people", recent experience has tended to show that ''the will of the people" may not necessarily be in the direction of traditional liberty. But shall established liberty on that account be jettisoned? Liberties sometimes have to be maintained not by, but against, majorities . . . In invading the liberties of the subject, in attempting to curtail the full rights of the citizen of Canada, the province at present professes to act within its own sphere of civil rights. Even if the matter be put on no higher ground than that of preserving uniformity of citizenship throughout the dominion, a superior plane of civil rights must be recognized above the jurisdiction of the provinces, especially dedicated to guardianship of the civil rights of the citizen as a citizen of Canada.
That is precisely what I have in mind in urging the house to support the amendment. I should like to say something more about the amendment after recess. I shall be just a few minutes more. I would ask you, Mr. Speaker, kindly to call it six o'clock.
Mr. Philpott:: Will the hon. member permit a question before six o'clock, because I should like to hear from him afterward?


Major James William Coldwell: Yes.


Elmore Philpott: Is he aware of the effect this would have in case of war, when it is necessary for the government to have power to act quickly?


Major James William Coldwell: Yes, naturally. This parliament has declared, as has the government, that in the event of war or apprehended war parliament will be called together and parliament will make a decision as to whether or not this country will issue a declaration of war.
I know of only one instance in recent years when that was not done, and that was the day we declared war on Japan. There had been in this house such unanimity of opinion, regarding Japan's activities before Pearl Harbor that Mr. Mackenzie King telephoned the leaders of the opposition parties and asked for their consent to issue a proclamation on Sunday, December 7, with a very good object in view. The object was that, since the United States had been extremely considerate of our needs prior to her entry into the war against Japan, the government

of Canada would like it to be the first country in the world to declare war on Japan. The leaders of the opposition parties in this house agreed and the proclamation was issued that night. That is the only time I can remember when it was not done by parliament assembled.


Elmore Philpott: The hon. member has not quite caught my meaning. I am not talking about the technique of declaring war. I am talking about the necessity for a government, in time of war, to have power to act quickly in such things as the restriction of freedom of speech.


Major James William Coldwell: The hon. member was not here during the war. Had he been here he would have been aware of and acquainted with the War Measures Act which this house passed years ago and which gave the government all the powers they required to do almost anything they needed to do in wartime.


Stuart Sinclair Garson: Will the hon. member permit a question? Would not a bill of rights make it impossible to pass an act like the War Measures Act?


Major James William Coldwell: No, I do not think so.


Elmore Philpott: That is the point I had in mind.


Major James William Coldwell: It must be remembered that a bill of rights is always amendable by parliament. In the event of the outbreak of war, if an amendment were needed to set aside certain aspects of a bill of rights I have no doubt this parliament would give immediate consideration to it and would give the necessary power to the government. I therefore see no objection to it on that score.
At six o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at eight o'clock.
Major James William Coldwell: Mr. Speaker, I shall conclude as quickly as possible. Just before the dinner recess the hon. member for Vancouver South (Mr. Philpott) asked me if I did not consider that a bill of rights of this description might interfere with Canada taking action on the outbreak of war.
During the dinner recess I looked up the War Measures Act of 1914, brought forward in the revised statutes of 1927 and appearing again as chapter 288 of the revised statutes of 1952. The War Measures Act not only sets aside provincial boundaries of legislation and so on but gives the government very

wide powers indeed in the event of apprehended war, civil strife or war itself.
I do not think these powers could be set aside by the enactment of a bill of rights, and if there was any danger of that I have no doubt that parliament itself would soon find a way to give to the government all the powers it needed in the event of such a catastrophe. I see the Minister of Justice (Mr. Garson) wants to interrupt me.


Stuart Sinclair Garson: Would my hon. friend permit a question? Is not the point here that a bill of rights in the terms of the amendment of my hon. friend would make it impossible for parliament to pass a war measures act at all?


Major James William Coldwell: I do not think so because in any event the legislation is on the statute books. As I understand it, legislation that we place on the statute books does not become retroactive. Consequently I think the War Measures Act would still be in effect among the revised statutes of Canada and could be proclaimed without any fear of being challenged under a bill of rights. However, as I say I am not a constitutional lawyer, and I am not going to dispute with the minister. I have no doubt that he can find ways and means of getting around a situation of this description if it should prove to be sufficiently important and awkward.


Edmund Davie Fulton: It would have to come before parliament.


Major James William Coldwell: It would have to come before parliament. The minister by order in council could not do it, but I take it that parliament is always supreme and anything parliament does can be undone or amended by parliament. I noted that the committee in the other place stated in its report:
What is required in Canada is a broad statement of human rights leaving, as did the drafters of the United States bill of rights, the detail of application and the necessary qualifications and exceptions to the courts.
They go on to say:
Many of the provisions suitable for inclusion in a bill of rights already appear in some portions of our law,-
I pointed that out this afternoon.
-but they are not always of nation-wide application. Some fundamental rights are already expressed in the constitution. Other provisions of freedom and security are in the statutes and still others in decisions of the courts, together with custom or the commonly accepted way of doing things.
They go on to say, and this is what I have attempted to do and where I agree with them:
What is required in Canada is one grand and comprehensive affirmation, or reaffirmation, of
Human Rights
human rights, equality before the law and of security, as the philosophical foundation of our nationhood, that will assure continually to each Canadian that he is born free and equal in rights and dignity with all other Canadians, that he cannot be held in personal slavery, or arbitrarily arrested, that he will always be presumed innocent of any offence until proven guilty, that he has freedom of thought, conscience, expression and movement, and so on through the universal declaration. Thus will Canadians know of their freedom, exercise it in manly confidence and be proud of their country.
That pretty well sums up the view that is held fairly generally, I think, by those of us who are supporting the passage of such a bill. It is spelled out in the amendment in detail. I have no doubt that further consideration by the government might result in some changes in the phraseology, but since the amendment calls for consideration by this house of such a bill and its preparation, I think that purpose would be served by the adoption of the amendment to the motion.


David Arnold Croll: Mr. Speaker,
I am pleased to be associated with the distinguished member for Rosetown-Biggar (Mr. Coldwell) in the amendment he has presented that is now before the house. It is not often I have the privilege of associating with him in the common interest as I can on this occasion, although on many issues we see eye to eye. We had a great afternoon today in that we were privileged to listen to two brilliant constitutional lawyers, the hon. member for Prince Albert (Mr. Diefenbaker) and the Minister of Justice (Mr. Garson). I too am a lawyer, but I am not much of a constitutional lawyer.
I listened very intently to both hon. gentlemen discuss the constitutional issue, and I must admit that it has added to my confusion, which I now share with the Supreme Court of Canada and the privy council. I have come to the conclusion that the only ones who are not confused by this issue are the people. They know what they want. They call it a bill of rights. The Minister of Justice said there was a great deal of difference of opinion as to the kind of bill of rights that was wanted. There was one bill of rights wanted by the Winnipeg Free Press, another by the hon. member for Prince Albert, another by other eminent gentlemen and another by recognized organizations.
I am not so much concerned with the differences between these people as I am with the fact that they all agree that there is a need for a bill of rights. When the Minister of Justice tells us that our rights are protected and we do not need a bill, and what we are talking about in effect are defects in administration, I assure him that it is a little deeper than that. I listened very carefully to

Human Rights
his presentation, but it left me firm as to purpose and a little uncertain as to method.
At the present time, because the quality of our citizenship is not defined, we are in danger of having ten separate and distinct types of citizenship in Canada, one for each province. It is my view that all freedoms are related. If freedom of the press can be threatened by provincial legislation as it was on one occasion, freedom of conscience and freedom of religion may also be threatened, as has also been the case.
I think we should distinguish between freedom and sovereignty. Sometimes the latter is taken for the former. They are not the same. To give examples of the dangers, there is the Duplessis padlock law which is still the law of one province, the Alberta press act which was disallowed, and the recent amendment by Duplessis of the freedom of worship act which has as its purpose to get around a decision by the supreme court which favoured Jehovah's witnesses. Individual freedoms are not a law of nature but the will of man, and in a fiercely competitive world they cannot be taken for granted.
The desire for a bill of rights arises from a popular determination to be free from the tyranny of states and masters. Some people have expressed the view that a bill of rights is superfluous. They believe that individual freedoms are sufficiently implied in our constitution. That point of view has been expressed in the house. There are others, and they are in very large numbers, who believe that the absence of a bill of rights is an alarming thing. Many people are aware of the perils of the delay in having one written into our constitution. The majority seldom need constitutional justification for their rights. They usually, in some way, get what they want. The laws of arithmetic protect them.
As has already been indicated by one of the speakers, free speech in Canada is guaranteed by no statute. It is tolerated by the courts and it is allowed by the public so long as it does not radically affect public opinion. Duplessis has never been prevented from padlocking newspapers or clamping pamphlet distributors into jail. Freedom of worship is guaranteed by no law on our statute books. At the United Nations we defend freedom of worship, speech, press, religion and freedom from arbitrary arrest; thus we should be pinned down to guarantee them at home.
I suggest it is time we defined these freedoms and protected them by writing them into our constitution. A bill of rights gives the individual citizen the same protection by the courts in maintaining his freedom as the courts afford governments in imposing their will upon individual citizens. I have said

before and I repeat now that a bill of rights is not an academic subject, but a real and very live one. It is something that is greatly needed by Canadians today, if only for its moral and ethical force.
There is no fundamental law in Canada guaranteeing civil liberties. There is no fundamental law in Canada forbidding the exercise of power in the denial of civil liberties. Ours is a negative freedom. Free speech is in a position where it is not forbidden, as are the other basic freedoms. I agree with the hon. member for Rosetown-Biggar, and I urge that there is a need for a formal restatement of the fundamental principles of individual freedom. The people of Canada want to know what are their rights. They have a right to know that.
Let me indicate for a moment some of the things I have in mind for a bill of rights. There are, of course, the racial discrimination cases which are widely reported in the press. There are a great number of cases which do not come to the attention of the public and are unknown except to the parties involved. One of the fundamental freedoms in any bill of rights is the freedom from discrimination on the ground of race, colour or creed. Equally a right is the freedom of the individual to practise his religion according to his beliefs. Any bill of rights must protect these most precious and personal of all freedoms, which cannot be limited or qualified.
In Canada we have no preferential religion. In the eyes of the law and at the bar of justice all religions are valid and deserving of respect. This must be affirmed in a bill of rights so it will be a constant reminder to those who may be tempted to instil intolerance by reason of their numerical or economic superiority. We are a land of minorities, religious as well as racial. The Protestant, the Catholic, the Jew, the Mohammedan-[DOT] yes, the Jehovah's witness-practises his religion not on sufferance but as of right.
Political freedom is equally important. I referred before to the Duplessis padlock law, which is an abridgement of the right of assembly and which is still part of the law of one of our provinces. I speak of the right of assembly, and that brings to mind old phrases that are well remembered, such as the right to join the union of one's choice; freedom of the press and freedom of communication. I do not suggest that legislation in itself is a complete answer, but it does have the effect of focusing the problem and spotlighting for many citizens the real difficulty. Once awakened to the truth they are ready to take action.
The Minister of Justice quoted part of a speech I made in this house in 1952. I now

gladly acknowledge and am quite ready to repeat what I said then. I do so with considerable pride. I said that the basic freedoms are more highly regarded and more secure to the individual in Canada than in any other country in the world, with the possible exception of Great Britain. All I ask is that those basic freedoms be put into writing and written into the constitution. Democracy implies the right of any individual to think differently from the majority. One of the real tests of democratic strength is how well it can stand minority pressures and differences of opinion, yet at the same time defend itself from subversive and destructive forces which would destroy it without employing the methods that are used by totalitarian states.
The purpose of a bill of rights is to guarantee that the basic freedom of the individual will not be violated, while at the same time restricting that freedom which might jeopardize the safety and security of the state. What I ask in a bill of rights is freedom under the law depending on two basic principles: One, that the individual may do and say what he pleases, so long as he does not transgress the substantive law of the land; two, that public authorities may only do those things which are authorized by common law or statute. Within that framework our Canadian bill of rights can be constructed. We have approved the charter of the United Nations and the universal declaration of human rights has been approved by our representatives, though not by this house. As a matter of fact we have been active in promoting both of these. If we fail to embody them in our constitution we say, in effect, that we agree but we are not prepared to put them in writing.
We, as representatives of the people, have no power to invade the rights or trample the liberties of those whom we represent. As a result of our discussion on the bill of rights both in and outside this house, progress has been made in Canada. We have fair employment practice legislation in the federal field and also in a number of the provincial fields. The racial restrictive covenant was declared invalid by the Supreme Court of Canada, and in my own province of Ontario it has been prohibited by law. In recent years there has been a definite increase in the antidiscrimination legislation. Discrimination in advertising has been outlawed in my home province as well as elsewhere. Our labour legislation in general prohibits discrimination in employment and anti-labour activities by employers.
But liberties are in danger, and we must guard against those dangers. They are in
Human Rights
danger in two ways; first the direct conflict with a power which does not believe in them and which certainly wants to impose its philosophies on as many of the world's population as it can. And, as a reaction to this danger, there is the widespread distrust of anything in anybody that diverges from the accepted or established viewpoint. In some parts of this country it would take a brave, even a foolhardy man, occupying a white-collar position, who would express openly his belief in socialism, or even his doubts that our present economic system left room for improvement.
Constantly we are being told that democracy is something special, something just for us, and that the rest of the world does not quite seem to understand it. What we call democracy is not limited by any place, race or nation. I believe that men yearn for it and are fitted to work toward it in the east as well as in the west. I share with the house the belief in the good life for everyone. But I believe in concrete ways of making things better, rather than in the magic of an imported slogan.
So, Mr. Speaker, until we are prepared to guarantee the freedom of the individual and place it in a broadly conceived bill of rights, supported by all the ethical and social sanctions our society can command, we will go ill-armed into the great ideological conflict being waged in the world today. It is my belief that there is a great need for a charter of human rights, which should be translated into a bill of rights. The need for it is both overwhelming and self-evident.


Stuart Sinclair Garson: Mr. Speaker, in rising to offer a few comments upon the amendment moved by the hon. member for Rosetown-Biggar (Mr. Cold-well) I would like to express my appreciation of his action in clarifying what I think is the real issue in this matter, by submitting the type of bill of rights which he has offered in this amendment in, if I may say so, apt and appropriate terms.
My hon. friend's ideas on previous occasions have been the subject of consideration by persons other than myself and I should like to quote, and make my own, some language from an editorial from the Winnipeg Free Press of July 9, 1954, because I think it expresses succinctly exactly what it is this bill of rights, in the form which has been moved, would do. The language of the Free Press is as follows:
Mr. Coldwell has attempted in fact to graft an American constitutional method to a Canadian constitution, British in origin. The American constitution was carefully designed to curb the powers of government in general, and of the federal government in particular. On the other hand the

Human Rights
British constitution, while curbing the powers of the crown under King William's bill of rights, never attempted to curb the powers of parliament. They are absolute and unquestioned.
In his amendment the hon. member for Rosetown-Biggar says that we should consider taking whatever steps are necessary to amend the British North America Act so as to include therein certain headings and sections-and then he proceeds to set out his bill of rights. I do not know of any better way in which one's co-operation can be shown in respect of a motion of this sort other than to do exactly what the amendment says; that is, to consider the taking of whatever steps are necessary, and to examine just what steps would be necessary. Because I think that those who try to bring this subject down out of the zone of rhetoric into the zone of actuality, by examining what it is that needs to be done, have at least as great a claim upon the approbation of those who seek a bill of rights as others who make speeches but will not take part in an examination of the method by which their speeches can be implemented.
So let us assume that, in defiance of the lessons of history, we are prepared to discard the tried and approved British principle of the sovereignty of parliament, and to substitute for it the by no means as well proven American principle of a bill of rights. In doing so I suggest that as a matter of technical necessity we must make allowance in this country for our Canadian division of legislative powers between the parliament of Canada on the one hand and the legislatures of the provinces on the other.
If to protect human rights we desire to limit the legislative powers of the Canadian parliament, the limitation we devise for this purpose must be considered as dealing with a subject matter which falls within the jurisdiction of this parliament. If on the other hand we desire to limit the legislative powers of provincial legislatures in general, then we are dealing with a matter which would come within the legislative powers of the provinces of Canada.
Why is this so? It is so because, from the time it was passed, the British North America Act gave to the provinces under the first heading of section 92 the power to amend the provincial constitution in any respect in which the provincial legislature desires. And as hon. members who were members of this House of Commons in 1949 will recall, at that time we in parliament took power to amend the Canadian constitution in respect of those matters of purely federal concern. And so far as matters which are of purely provincial concern on the one hand or purely federal
| Mr. Garson.]
concern on the other are concerned, they can be dealt with by the provincial legislatures and by this parliament, respectively, without recourse to any legislative authority outside of Canada.
But as matters now stand when we are attempting to restrict the powers either of parliament or of the provincial legislatures in respect of a matter of joint concern to the federal parliament and to the provincial legislatures, then the present position is that that restriction could only be imposed by the imperial parliament at Westminster to which we would have to go for our amendment. Incidentally if the amendment moved by the hon. member for Rosetown-Biggar (Mr. Coldwell) were given effect the resultant constitutional change would limit, not only provincial powers in other respects but it would limit the power which provincial legislatures always have had to amend the constitutions of the provinces, by imposing upon them the restrictions which are outlined in his proposed bill of rights.
It is considerations such as these which make the enactment of a bill of rights in a country like Canada in which the jurisdiction is divided between federal and provincial legislatures so complex and difficult. As I think most hon. members are aware, we have been engaged in the past in conferences with the provinces with a view to devising some method whereby we could amend in Canada those matters of joint concern to parliament and to the provincial legislatures without being under the necessity of having to go to the imperial parliament to secure such amendment.
In my view I think it is the course of prudence that we should postpone the question of securing a bill of rights, even if it were desirable upon other grounds, until we shall have achieved at least in substantial part this constitutional reform of being able to amend our constitution in our own country without recourse to the parliament at Westminster.
There are three reasons for this. In the first place, I think we shall make better progress if we do not consider more than one difficult and complex matter at a time.
Secondly, having regard to the fact that the administration of justice falls within the jurisdiction of provincial governments, and that any new provisions brought into existence in the form of a bill of rights will have to be enforced as part of the law of the land by the provincial authorities, it would seem that a bill of rights would operate much more effectively if it were concurred in by the provincial authorities who will have to play such a large part in its administration.

Human Rights
My third reason is a more difficult one. It has to do with this question of divided jurisdiction in a federal state like Canada. To explain this point involves comparing the British constitution, the United States constitution and the Canadian constitution.
One of the first principles of the constitution of the United Kingdom is that which I have referred to already, the sovereignty of parliament. In the United Kingdom no court may declare any act of parliament ultra vires. Because parliament is supreme in that country that question never arises. No matter to what degree statutes of parliament in the United Kingdom may destroy human rights and the fundamental freedoms of its citizens, they are nevertheless valid as being within the sovereign powers of parliament. The great landmarks of English constitutional development such as Magna Carta, the habeas corpus act and the bill of rights act of 1688 can be repealed or amended by a statute passed by a mere majority in the House of Commons and the House of Lords. These so-called charters of liberty are merely part of the law of the land which parliament can amend at will.
It is true that these charters do protect the citizens against arbitrary action by the crown or by the government, but since these charters are themselves subject to the sovereignty of parliament they cannot protect a citizen against the action of parliament itself. As long as the United Kingdom retains its present constitution, it is impossible from a legal standpoint for the United Kingdom to provide a charter of liberties, a bill of rights, which a subsequent parliament could not change.
Yet I ask you to note that it is under this principle of the sovereignty of parliament, with no limitations upon the powers of parliament, with no charter of liberties which parliament cannot change or repeal at will that a greater degree of political liberty over a longer period of time has been achieved than in any other nation in human history. In many cases it is in this country where there is no charter of liberties that the nationals of other countries, whose human rights and fundamental liberties are supposed to be guaranteed by constitutional bills of rights, find sanctuary as political refugees. It is under this same principle that in Canada we have found a degree of political freedom throughout our history which i? second only to that of the United Kingdom.
On the other hand, in the United States the overriding legal sovereignty is not in congress, nor is it in the state legislatures. At the end of and as a consequence of the successful American revolution the legal sovereignty of that great nation resided in the
rebelling citizens themselves. As you will recall, in the beginning of the American declaration of independence we find the words "We the people". Having successfully rebelled they went about the setting up of their own governments. It was they who clothed their congress and their state legislatures with all the legislative powers which they possess. The constitutional restrictions which make up the American bill of rights in the American constitution and which protect American citizens' liberty and property are simply powers which the people of that country withheld from their congress and their state legislatures for themselves, the American people. For example, the due process of law clause to which the hon. member for Prince Albert (Mr. Diefenbaker) referred this afternoon is a restriction upon the legislative powers withheld from the American lawmaking bodies both in the federal and state spheres by the American people.
When Canada, as a newly-created nation, inherited from the United Kingdom its present constitution, it inherited with it this principle of the sovereignty of parliament. The privy council has held that the Canadian parliament, upon the one hand, and the Canadian provincial legislatures, upon the other, are sovereign within their respective jurisdictions and that together they are authorized to exercise the whole field of legislative power.
But because Canada was created as a federal nation made up of the federal government and provincial governments the necessity arose of dividing legislative power between the federal parliament on the one hand, and the provincial legislatures on the other. This division has imported into our constitution two ideas which are in some degree inconsistent with one another and for which we must make allowance in our approach to this problem of a bill of rights.
On the one hand, Canada and the provinces have together inherited the whole sovereignty of the British parliament. On the other hand, this division of legislative power between the parliament of Canada and the provincial legislatures has imposed specific limitations on their respective powers. For example, the parliament of Canada cannot legislate with regard to those matters which come under provincial jurisdiction. The provincial legislatures cannot legislate with regard to those matters which come under federal jurisdiction. As regards matters of joint concern to the Canadian parliament and the provincial legislatures of Canada, any restriction upon the legislative powers of the Canadian parliament and the provincial

Human Rights
legislatures that might be required by a bill of rights such as that moved by the hon. member for Rosetown-Biggar must be provided, as matters now stand, by the parliament of the United Kingdom, the legislative body which enacted the British North America Act in the first place.
Let us suppose that before we can agree with the provinces as to a method of amending our own constitution within Canada in matters of joint concern we ask the British parliament, as we should have to do, to impose upon this federal parliament and upon the provincial legislatures constitutional restrictions similar to the United States bill of rights, or, to be more specific, of the type which the hon. member for Rosetown-Biggar moved in his amendment this afternoon.
What does it mean to impose such constitutional restrictions? It is just another way of saying that we withdraw from our parliament, or the imperial parliament withdraws from our parliament and our legislatures, the lawmaking powers to pass a certain type of law, a law in the terms of my hon. friend's amendment for example:
Abridging freedom of speech and expression, or freedom of religion, or of the press or other means of communication or the right of lawful assembly, association or organization.
When that restriction has been imposed, then from that time on it will not be possible for this parliament or provincial legislatures to pass a law of that kind, and the power to do it in all matters of joint concern will be reserved not in any legislative body in Canada, but in the imperial parliament in England.


Mr. Knowles:: May I ask the minister a question on that point? Does he think that the parliament at Westminster would pass any legislation of that kind, apart from a request of the Canadian parliament?


Stuart Sinclair Garson: I do not suggest that it would.


Stanley Howard Knowles: Then it is a meaningless argument, is it not?


Stuart Sinclair Garson: No, not at all because the difference is this. In the United States they secured the eighteenth amendment to their constitution by a method provided in their constitution for amendments of that kind and withdrew from their legislative bodies the power to pass laws authorizing the sale of spirituous liquors and thereby brought about prohibition in that country. When this prohibition policy proved to be a colossal failure they had in their constitution, already provided for in advance, the means whereby they could repeal the eighteenth amendment and abolish the colossal failure. But in our case,
[Mr. Garson.1
if a corresponding amendment to our constitution had to do with a matter that was of joint concern to the federal parliament and provincial legislatures, the legislative power withdrawn from parliament and our provincial legislatures would then rest in the imperial parliament at Westminster, and we should have to go back later as suppliants and ask them to please repeal that amendment and restore such legislative powers to the parliament and provincial legislatures of Canada.


Stanley Howard Knowles: That is no different from what happened in the United States; they had to go back over the same route.


Stuart Sinclair Garson: There is this difference. When we shall have taken, as I am confident that ultimately we shall take to ourselves in Canada the power to amend our own constitution and also at the same time to repeal any amendment that we do not wish to maintain, that will be the time when it would be proper to consider the superimposing of a bill of rights upon our constitution.
I said a few moments ago, sir, that our parliament and our provincial legislatures are supreme and sovereign within their respective spheres of jurisdiction. Acts of parliament of Canada can be held to be ultra vires because they deal with matters which come under provincial authority. But they cannot be held to be ultra vires because they may authorize emergency procedures such as those under the War Measures Act, or because they confiscate property without compensation, or because they interfere with private contracts. I must say, with great deference to the hon. member for Rosetown-Biggar, that it seems to me that if we had grafted upon our constitution, or I should say superimposed upon our constitution, a bill of rights in the form in which he has suggested, our legislative power to pass an act like the War Measures Act to deal with national emergencies in wartime would be very seriously open to question. Indeed I have suspected that the great zeal and enthusiasm with which the communists have supported the campaign for a bill of rights is because they would like to put us precisely in that position.
We are in a position here in which we have to secure from the parliament of the United Kingdom amendments to our own constitution with respect to all of these matters of joint concern to Canada and the provinces. Thus bill of rights restrictions upon the powers of parliament and provincial legislatures would result in the subject matter of such restrictions resting with the imperial parliament during the interval that the bill of rights restriction continued. My view is

that instead of moving into such complications of a bill of rights before we have acquired full powers to amend our constitution in Canada we would be better off to adhere to the principle of the sovereignty of parliament which has served us very well in the past, and has also served the United Kingdom well.
When we look at that country and think that in times of direst national peril elections did not cease to be held, and parliament did not cease to sit and deal with matters in open discussion in the freest possible manner, and that there was a minimum invasion of human rights and liberties even in wartime, it makes one reflect as to whether the sovereignty of parliament is something that we should lightly cast aside in favour, sir, of what? In favour of constitutional guarantees such as the following excellent ones. I should like to read these into the record:
Article 87. All court cases are heard in public and the accused is guaranteed the right to be defended by counsel.
Article 88. Judges are independent and subject only to the law.
Article 94. Citizens have the right to rest and leisure.
Article 100. Citizens are guaranteed by law: (a) freedom of speech; (b) freedom of the press; (c) freedom of assembly, including the holding of mass meetings; (d) freedom of street processions and demonstrations.


Edmund Davie Fulton: Is this the United Nations' declaration?


Stuart Sinclair Garson: No; I shall tell my hon. friend what it is when I have finished. I continue:
Article 102. Citizens are guaranteed inviolability of the person.
Article 103. The inviolability of the homes of citizens and privacy of correspondence are protected by law.
Article 111. Elections of deputies are equal: each citizen has one vote; all citizens participate in elections on an equal footing.
Article 115. Voting at elections of deputies is secret.
These, sir, are the articles which form part of the constitution of the Byelorussian Soviet Socialist Republic of February 19, 1937, as amended and supplemented up to and including July 11, 1947. They are a pretty good example, both in their content and in their operation, of the fact that you do not make a new heaven upon earth by passing a bill of rights.
Thus, Mr. Speaker, I suggest that the choice which faces us here in Canada, and which has been placed before us on the order paper by the hon. member for Rose-town-Biggar, is the choice between placing our faith in the sovereignty of parliament and in the good sense of the Canadian people who elect parliament on the one hand, or in constitutional provisions such as those which I have just read, as interpreted by the courts.
Human Rights
If purely as a matter of theory-if words on paper or bills of rights or anything of that sort can in themselves be our salvation-I think you cannot get a much better constitution than the one I have just read.
But when we come to administer any form of bill of rights this question is at once raised: If we are afraid of parliament and of public opinion which elects parliament, what of the courts? Are they completely immune from public opinion? Should they be completely immune from public opinion? We well may wonder whether, in the last analysis, there is much choice between these two alternatives. In a democratic country such as Canada surely, in the last analysis, it is public opinion-that is the contents of the minds of the people, their character and their intelligence-which governs their voting and elects their parliaments. In spite of all the guarantees which may be given in any constitution, I suggest that the experience in many, if not all, of the countries that have constitutional guarantees, is that it is the state of judicial opinion, in the light of the state of public opinion, which determines to what extent constitutional guarantees of human rights and fundamental freedoms are to possess reality and effectiveness.
In the poll tax states, for example, the bill of rights written into the American constitution is what the courts of those states say it is, and persons who are guaranteed the franchise by the constitution do not necessarily get it. The constitutional rights possessed by any people are limited by public opinion and by the remedies which are actually available in the courts to enforce those rights. I think that he would be a most .naive and unobservant man who would compare unfavourably the human rights and fundamental freedoms enjoyed by the people of the United Kingdom or Canada under the system of the sovereignty of parliament with those enjoyed by any other people anywhere in the world under the constitutional guarantees of a bill of rights.
There are some other difficulties in this connection, and I do not think that we are honestly approaching this question if we do not face them. There are some offences or alleged offences against human rights and fundamental freedoms which are not breaches of the law which any bill of rights guarantee can prohibit or prevent. They are breaches of ethical personal conduct in that sphere of one's life which, in a free country, is beyond the reach of the law. Suppose, for example, that an otherwise admirable citizen, who is sufficiently eminent that his approval or disapproval is of some consequence, happens to have strong racial views; and suppose

Human Rights
that at a public gathering or otherwise he snubs another man because of his race. The wound here may be infinitely more painful than any from which the law could protect the other man. Yet it is questionable indeed whether any bill of rights could protect against such a wound. Some of the worst cases of discrimination occur in the field of ethics. They are not susceptible to legal solutions, constitutional or otherwise. I suggest that the sooner we recognize them as ethical misdemeanors, the sooner we understand that the only way in which we can cure them is by educational enlightenment and the force of public opinion, the sooner we shall make some real progress in their cure.
Upon the whole, I submit that we have fared rather well in Canada under this inherited principle called the sovereignty of parliament. For a country which, when it began, was a small frontier and an extensive wilderness and is now a larger area of settlement with a large frontier and still quite a large wilderness, the human rights and fundamental freedoms which our people have enjoyed throughout our history, the administration of our justice, the character of our political life, the distribution of our national income even, will compare not unfavourably with those of most other countries in the world. Our treatment of minorities will not compare unfavourably with that of the United Kingdom herself. The law as well as the practice of our federal government and of our provincial governments is democratic. We already enjoy a large measure of political liberty. Ask any Canadian soldier who fought in Europe how we compare in these respects with the nations through which he travelled.
By virtue of the act passed by this government in 1946, Canadian citizenship is now clearly defined; and so far as I know, no race nor creed is barred. Our immigration laws upon the whole are enlightened and just. We have universal franchise for adult men and women, without property requirement of any kind. There is no restriction upon citizens as regards the holding of office. Anyone can start a new political party who can find the people to listen to him and accept his views. There is no limitation upon the views which he may expound. We even permit communists to criticize most severely our own system of government, and some of those who advocate a bill of rights censure us for doing so.
I mention these things, Mr. Speaker, merely to inject a little bit of realism into our consideration of this matter. We certainly should not be smug. Certainly we can improve our

position in relation to human rights and fundamental freedoms. I have mentioned these matters because I believe that in a great deal of the discussion which has taken * place on this subject, adequate consideration has not been given to the merits of our constitution which is modelled upon thatfjof Great Britain. I suggest that before we change from the British principle of the sovereignty of parliament to a bill of rights similar to that of the United States of America, we must thoroughly understand what we have in order to be very sure that that which we substitute for it is really an improvement.
I must confess, Mr. Speaker, that for my own part it would require much stronger arguments than those which have so far been brought forward to make me think that the superimposition upon our British constitution of a bill of rights in the form advocated by the hon. member for Rosetown-Biggar (Mr. Coldwell) would improve the present protection which we now enjoy. But I am only one citizen of Canada. If there is a majority of my fellow citizens who would prefer to have a bill of rights such as that suggested, I still would venture to suggest that there would be much less confusion if, before attempting to secure it, we should first dispose of another major constitutional issue with which this parliament and the provincial legislatures are now concerned, namely that of agreeing upon a method of amending our Canadian constitution in Canada in matters of joint federal and provincial concern.
Moreover, in relation to the actual enactment of a bill of rights, I think it will be necessary and wise for the government of Canada to confer with the governments of the provinces in this matter. A bill of rights will certainly affect (1) matters of joint concern to parliament and the provincial legislatures; (2) matters which come wholly under federal jurisdiction; (3) matters which come wholly under provincial jurisdiction; (4) matters-and there are a number of them- which in some aspects, such as freedom of speech, freedom of the press and the like, are under federal jurisdiction and in other aspects are under provincial jurisdiction. This being the case, it seems to me that the whole question should be considered in consultation with the provincial governments before the Canadian parliament, by a joint address of the Senate and the House of Commons, requests the parliament of the United Kingdom to enact anything approaching a bill of rights.
There are several good reasons for this. Let me mention only two. The first is one to which I have already referred. Since the

provinces, under the British North America Act, are responsible for the administration of justice, the operation and enforcement of a bill of rights of the American type would be exceedingly difficult, if not impossible, without the full co-operation of the provincial authorities. The second reason is that we are not likely to have such provincial cooperation if we in the federal field take the initiative to impose limitations upon provincial rights and powers without consulting the provincial governments. In considering the amendment-


Stanley Howard Knowles: Before the minister leaves that, would he permit a question?


Stuart Sinclair Garson: Yes.


Stanley Howard Knowles: Is he in a position to say when it is intended to reconvene the conference of the federal and provincial governments to discuss that very important matter of finding a way to amend our own constitution here in Canada, in all its aspects?


Stuart Sinclair Garson: No, I am not. I would imagine that there probably would be a consideration of that matter along with the conference on fiscal matters which has been suggested, but I am not in a position to confirm that. That does not come within my sphere of jurisdiction. The amendment of our present British North America Act which has been recommended by the hon. member for Rosetown-Biggar (Mr. Coldwell) in his amendment would, for example, limit the legislative powers of the provincial legislatures under at least four headings of section 92 of the British North America Act. It would limit their powers under heading No. 1, which is:
The amendment from time to time, notwithstanding anything in this act, of the constitution of the province, except as regards the office of lieutenant-governor.
At the present time this power resides in the provinces. What is proposed by the bill of rights is a series of provisions that would certainly alter the constitution of the provinces. Then it would interfere with heading No. 13, "property and civil rights in the province." It would interfere with heading No. 14, "the administration of justice in the province", and so on, and it would also interfere with heading No. 15, which is as follows:
The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section.
In addition, I should think that the amendments proposed by the hon. member for Rosetown-Biggar would likewise supersede provincial legislation such as the Saskatchewan bill of rights act and the Ontario fair accommodation practices act of 1954.
Human Rights
While, therefore, it would perhaps be possible-and I think this was the point that the hon. member for Winnipeg North Centre (Mr. Knowles) was making-for the parliament of Canada, by a joint address of the House of Commons and Senate, to get the imperial parliament at Westminster to act, by means of that joint address, to impose limitations upon the legislative powers of the parliament of Canada and of the provincial legislatures, I feel certain that such an action would be regarded by the provincial authorities as a federal interference with provincial rights, and that they would certainly feel this way if we were to take that step without any previous consultation with them.
I would suggest that this would be a poor way indeed of securing the necessary cooperation of the provincial authorities in the administration of justice if indeed it did not in other respects set up a regrettable and unnecessary resentment. It is for these reasons that I submit that the steps that the hon. member for Rosetown-Biggar says should be taken to lead up to this bill of rights which he recommends should be steps taken by the federal government in consultation with the provincial governments of Canada.
I certainly wish to thank hon. members, Mr. Speaker, for the patience with which they have listened to me, and I desire to repeat, as I said at the beginning of my remarks this afternoon, that I am not speaking for the government. In my remarks I have attempted to clarify the nature of the problem. If my remarks have contributed to this end, I shall be more than content because that is all that they purport to do.


Jean-François Pouliot: Mr. Speaker, the first paragraph of the motion refers to freedom of religion, and it reads thus:
That, in the opinion of this house, immediate consideration should be given to the advisability of introducing a bill or declaration of rights to assure amongst other rights:	1. Freedom of
religion . . .
I am sure that the sponsor of the motion, who is one of our most learned colleagues and one of the ablest lawyers in the house, must know that freedom of religion already exists in this country and has existed for over a century. He must be familiar with the statute 14 and 15 Victoria, chapter 175, passed in 1851, which reads thus:
Whereas the recognition of legal equality among all religious denominations is an admitted principle of colonial legislation;
And whereas in the state and condition of this province, to which such a principle is peculiarly applicable, it is desirable that the same should receive the sanction of direct legislative authority, recognizing and declaring the same as a fundamental principle of our civil polity:

Human Rights
Be it therefore declared and enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the legislative council and of the legislative assembly of the province of Canada, constituted and assembled by virtue of and under the authority of an act passed in the parliament of the United Kingdom of Great Britain and Ireland, and intituled, an act to reunite the provinces of Upper and Lower Canada, and for the government of Canada, and it is hereby declared and enacted by the authority of the same-
This is the point to which I direct your kind attention.
-that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, so as the same be not made an excuse for acts of licentiousness, or a justification of practices inconsistent with the peace and safety of the province, is by the constitution and laws of this province allowed to all Her Majesty's subjects within the same.
My hon. friend and the other hon. members who have spoken unquestionably know that legislation had the sanction of Queen Victoria. Moreover, it was in the Revised Statutes of Canada of 1859, title 7, religious matters, chapter 74, with the following marginal note which speaks for itself: "Freedom of religion guaranteed by law". This was before confederation, but after confederation this legislation was incorporated in the statute books of the province of Quebec. My references are 1877, chapter 214; 1887, chapter 235; 1925, chapter 198; and the revised statutes of 1941, chapter 307. For the province of Ontario the references are 1877, chapter 214 and 1887, chapter 235. I have not found it in the last revised statutes of the province of Ontario. As it was part of the legislation that united Canada before 1867, and as it has been incorporated in the statute books of Quebec and Ontario respectively after confederation, it shows that it is a provincial matter, even if it is not in the latest edition of the revised statutes of Ontario.
Now, Mr. Speaker, the hon. gentleman quoted the opinions of the leaders of some churches to the effect that we should have a bill of rights. Probably they had not been informed that such legislation existed, otherwise they would have made their representations to the competent authority which, in this case, is the province of Ontario and the other provinces. A friend of mine told me that similar legislation exists on the statute books of Nova Scotia, but I did not have time to verify that fact. It may be so. This is purely a provincial matter; it is a matter of civil rights.
The matter of religious freedom being established and guaranteed by law, let us look at the other freedoms. The other freedom mentioned by the sponsor of this motion was the freedom of speech. This is a relative matter. What constitutes freedom of speech? My hon. friend has too much experience to
[Mr. Pouliot.j
contend that freedom of speech is boundless. It is not, because after he had spoken for 40 minutes he was interrupted. The rule prevented him from speaking longer than 40 minutes, but unanimous consent was given to let him proceed further. The same privilege was made available to some other hon. gentlemen.
Now, there are other things, too. One cannot use bad language with regard to Her Majesty or the royal family, or with regard to our colleagues in the house. Sometimes we go to extremes. It is seldom that the freedom of speech of any individual is questioned when he is abiding by the rules. Of course no one ever suffered more than I did, personally, in so far as my fundamental freedoms and human rights were concerned. I thank my friends the hon. members for Winnipeg North Centre (Mr. Knowles), the leader of the C.C.F. party (Mr. Cold well), and the hon. member for Cape Breton South (Mr. Gillis), among others, for offering to come to my rescue in some difficult circumstances. But the hon. member who sponsors this motion concerning freedom of speech did not come to my rescue. I would have been glad to have had his assistance.
I had some difficulties in this house. I was abiding by the law, but the interpretation of the law was different. I thought the hon. member would come to my rescue with his eloquent voice in order to have my rights restored and my fundamental freedoms unimpeached. Unfortunately it did not happen in that way.


Stanley Howard Knowles: We do not have the
eloquence, we just love you.


Jean-François Pouliot: He was preparing a speech on some other matter which was of more importance to him at that time than the question of freedom of speech.
I have just checked the record, Mr. Speaker, and noted that in the year 1947-1948 there were numerous sittings of the committee on human rights. My hon. friend shone by his presence and was missed very much when he did not attend the sittings. Upon looking at the record for 1947 I find he attended two sittings of the committee and missed six. In 1948 he attended three and missed ten. This is unfortunate, because if he _ had attended all the sittings of the committee the report would have been much more conclusive as a result of his experience, and perhaps now we would have legislation on human rights and fundamental freedoms. This is a fact.
We have spoken about freedom of speech, and there is freedom of the press. Freedom of the press is another thing that is very interesting. When I was in London in 1937, at the time

of the coronation, I recall that the press imposed censorship upon itself on news concerning the Duke of Windsor and his marriage. There was no regulation, but they thought the atmosphere existing at the time did not permit the press to give some of the details about the marriage and wedding trip of the Duke of Windsor. Now, that was a curtailment and it was self-inflicted. Is my hon. friend so sure that the press is free? It is not, and no legislation can change it because the press is the mirror of the views of its owner.
What newspaper is free from its own owner? I ask my hon. friend that question. With his wide experience he knows quite well that if the owner of a newspaper is in favour of a certain thing, that newspaper will not speak against it; otherwise the editor will be fired. He knows it. What law can change it? How can he change the relations that exist between the owner of a newspaper and his editor? Naturally, some owners of newspapers are more broadminded than others. It happens sometimes. There is a time when they may say to the editor, "Stop", or "Go". My hon. friend, with all his learning and with all the fine speeches he has made about freedom of the press, cannot change it.
Now, the press is not free from the advertisers. For instance, an advertiser who pays for a full page daily advertisement deserves recognition by the newspaper that prints his advertisement. Can my hon. friend deny it? Can anyone deny it? This is a tie; this is a string. This string may become a big, strong, powerful cable. Can my hon. friend change It? No, sir, he cannot. And when we begin to analyse his motion we see that while it is wonderful theoretically, in practice it is hard to apply.
And then, as to radio, I happen to be in different places, and on one occasion I attended the silliest thing I have ever seen. It was a conference of the Canadian Bar Association on the uniformity of law. Does my hon. friend know about it? Well, I was there, and all the attorneys general of the provinces were there. Some were asleep; some were awake.


Stanley Howard Knowles: The former were as bright as the latter.	[DOT]


Jean-François Pouliot: Their idea was to pass the same resolutions again and again a week before the Canadian Bar Association met. This meant that the attorneys general and the small fry of their departments were to have an extra vacation of one week before the convention to discuss the same matter. Always platitudes. On this occasion, referring to radio, they passed draft legislation of the 50433-59
Human Rights
kind my hon. friend uses in his motion. It was to the effect that when someone speaks over the radio and in doing so is guilty of slander, the one who speaks is not to be held responsible but that the radio station must accept responsibility. That draft legislation was adopted by the committee on the uniformity of law, but it was never passed by any legislative body.
Then, as to habeas corpus, my hon. friend should not be concerned about that. When habeas corpus is abrogated or suspended, otherwise than by immediate legislation, it is in virtue of an act of emergency powers passed by parliament because of particular circumstances, where the state could be in danger. But I will add something to that. I wish to convert my hon. friend to my views. I will tell him honestly that he is such an able lawyer that habeas corpus would have no importance to his clients. There is no one he could not get out of jail, and that would settle the question.
I have taken some notes, one of which relates to the Canadian Daily Newspapers Association. The hon. member for Prince Albert referred to the case of Mr. Blair Fraser, and made a fine dissertation about the examination for discovery. That was a civil case; it was not a criminal case. And as it was a civil case it came under the jurisdiction of the provinces. Ottawa had nothing to do with it, and my hon. friend knows that better than anyone else.
Then he mentioned the names of a few illustrious sponsors of a draft bill of rights. They are great men in this country. Opinions are free; but they spoke like philosophers or dreamers, and they did not mention a fact. They were speaking theoretically and in an academic fashion. My hon. friend, who is realistic and a man of action, took the trouble to transcribe in longhand some of those utterances. I cannot understand them.
Is it true, sir, that we value freedom less than we did 50 years ago? We value it more, because this country has reached the point where there is no other country that offers greater freedom than Canada. But some people speak about more freedom. Where does freedom stop? It would be very interesting to know that; because on the one hand, where freedom is not limited my hon. friend and others who think as he does can rise when they feel like it and speak in support of human rights and fundamental freedoms. But, outside of fair limits, limits sanctioned by law, can they come to the defence of one who has exceeded those limits?
In order to discuss the matter properly my hon. friend should tell us what the limit

Human Rights
is. He should tell us where liberty and freedom end and where licence begins. The hon. member was fair in that respect, but he was not clear enough. He said that free speech is not licence, and I agree with him on that. He said that anyone who speaks becomes subject to punishment when his words strike at the security of the state, the rights of others or are blasphemous. And I agree with him on that. But on the other hand this statement is a denial of the first part of his argument.
I would like him to explain-and he can do so-who can complain, if they have struck at the security of the state and the rights of others, or have been blasphemous. It is a very difficult matter, and no one realizes it better than the hon. member.
I took careful note of what he said when he asked this: Who denies the right whereby ideas may be tried before the bar of public opinion? Nobody denies it. My hon. friend is free to say anything he likes to the people. They can listen to him; they can approve of what he says or they can disapprove. They have the same right to be free as he has. When has my hon. friend been prevented from submitting ideas to the bar of public opinion? Never. This is an exaggeration of language.
He said that we already have a bill of rights in the British North America Act. He referred to the Saumur case and quoted Bora Laskin, a professor at the University of Toronto. I am not familiar with the top jurists of the University of Toronto. As I say, my hon. friend referred to the Saumur case and the various opinions expressed by the justices of the supreme court. Mr. Bora Laskin says that this extraordinary division of opinion creates a result that is as curious as it is unsatisfactory.
Then my hon. friend suggests that his draft bill be submitted to the supreme court. How can he suggest that when he quotes and takes as his own an opinion expressed by a Toronto professor to the effect that the decision of the supreme court in a similar case was as curious as it was unsatisfactory. Then he insists upon a parliamentary committee.
I appeared before the parliamentary committee on human rights and fundamental freedoms. Along with two of my colleagues I had been abused. One colleague is still living but the other, my good friend Mr. Church, the hon. member from Toronto, is dead. We were abused because we did not share the views of a certain editor regarding the United Nations. That editor employed language which would have been considered unparliamentary. I appeared before the committee on July 4, 1947, to ask that it redress

a wrong and restore my fundamental freedom and give me back my human rights. But I found the committee impotent. They told me their reference from the house did not cover that. I found out that a committee which had been set up by this house was not able to protect the liberty of a member of the house who had been abused by the press. What is the use arguing any longer? That is enough. I am fed up with it. I shall vote against the motion and the amendment.


Mr. F. D. Shaw (Red Deer):: Mr. Speaker, there are two things I should like to make abundantly clear right away. First, I would not want to have it construed that our lateness in participating in this debate results from any lack of interest. We had good reason to believe that we would have an opportunity to express our opinion earlier in the day. We feel that in a debate of this kind, particularly where the time is limited, each party in the house should have an opportunity to express its views.
In the second place, I shall not allow myself to be put in a position where it can be said that I talked out the resolution. I shall conclude before ten o'clock even though it means stopping in the middle of a sentence or even in the middle of a word. We are not endeavouring to talk out this resolution. We are interested; we have certain convictions which we are prepared to express, and we are prepared to take a position if and when a decision is rendered by this house on this resolution.
When the house commenced the debate this afternoon we were dealing with resolution No. 8, which is made up of four specific sections. In lines 3 and 4 appear these words: "assure amongst other rights"; and then at the end of the resolution is a paragraph relating to the advisability of submitting for an opinion of the Supreme Court of Canada the question as to the degree to which fundamental freedoms of religion, speech and of the press and the preservation of the constitutional rights of the individual are matters of federal or provincial jurisdiction.
To us that resolution was all-embracing. However, the hon. member for Rosetown-Biggar moved resolution No. 16 as an amendment to resolution No. 8. Resolution No. 16 in our view is not one whit broader than resolution No. 8. It is couched in slightly different language. It asks for an amendment to the constitution, whereas resolution No. 8 merely calls for the enactment of a bill or declaration of rights. By virtue of his seconding of the amendment to resolution No. 8 the hon. member for Spadina (Mr. Croll) has agreed in effect that resolution No. 8 as amended contains that which is incorporated

in resolution No. 10. So actually and in effect we are dealing with the subject matters as set forth in three resolutions.
We find that there is a very specific difference of opinion in Canada with respect to this particular matter. I am sure there can be no difference among the membership of this house with respect to the desirability of preserving the freedoms as set forth in the resolution or the amendment. I am quite confident that no hon. member of this house is going to object to clause No. 1 which is designed to guarantee freedom of religion, freedom of speech, freedom of the press and of radio. I am sure that if a vote were taken and all hon. members of this house were to express themselves they would indicate approval of that section.
Section No. 2 states that habeas corpus shall not be abrogated or suspended except by parliament. I am quite sure that no one will disagree with that.
Then the next paragraph states that no one shall be deprived of liberty or property without due process of law, and in no case by order in council. I am not going so far as to say they would all agree with that. We have already heard the Minister of Justice (Mr. Garson) say in effect that he could not agree with the latter part of it. To me the general principle set forth in that section is one that could be supported.
Then the next paragraph states that no tribunal or commission shall have the power to compel the giving of evidence by anyone who is denied counsel or other constitutional safeguards. In the amendment we find slightly different language. It states:
(a) abridging freedom of speech and expression or freedom of religion, or of the press or other means of communication or the right of lawful assembly, association or organization.
I am sure a majority of us, anyway, agree with that clause, and so it goes through the entire amendment; but we find ourselves, interestingly enough, in agreement with a good deal of what was said by the Minister of Justice.
In my own approach to this amended resolution I must ask myself this question: Do you believe in the right of the provinces to exercise their jurisdiction as laid down by the British North America Act? Well, certainly I do, Mr. Speaker, and for the life of me I cannot understand how the government of Canada could bring in legislation and the parliament of Canada approve it and cover all the guarantees set forth in this legislation without invading fields which are set down clearly and definitely today as being, if not in whole in every case, at least in part within the jurisdiction of the provinces. To 50433-59J
Human Rights
my mind action of that kind could easily precipitate civil war in the country.
Until such time as a formula is found by which we can amend our own constitution here in this country, this kind of procedure would be extremely dangerous. I can envision what stand many of the provinces of this country would take if such legislation were enacted. In fact, if we have had any difficulties in our relationships prior to this time, certainly we would have real ones if action of this type were taken.
I certainly do not want it thought or said that by virtue of having taken that position one might be in disagreement with certain very desirable objectives in the resolution before us. I for one have examined these resolutions carefully. I have followed them from the time they first appeared on the order paper; I have secured all available information, and certainly feel in the first place that I would agree with the general principles as laid down, if I cannot agree with the method of bringing them about.
As I said a moment ago, Mr. Speaker, I agree with much of what the minister has said. There are many Canadians who feel that our approach should be such as was made in the United States of America. There are other Canadians who feel that the United States of America, with its bill of rights, with certain other constitutional guarantees so-called, is a classic example of where they have altogether too many of the things we are trying to prevent.
As a matter of fact, their bill of rights in the United States has not offered the guarantees of freedoms that so many persons assumed would naturally follow from the passage and implementation of certain legislation. In my opinion it takes far more than legislation. Heritage and tradition play an extremely important part in this field, particularly in relation to the matter of colour, creed and race. I am inclined to the belief that if a person is determined to engage in discrimination on the basis of race, colour or creed, he is going to do it and he is going to get away with it regardless of whatever legislation there may be on the statute books.
_ By virtue of heritage and tradition, by virtue of good common sense on the part of our people, there has been the minimum of that type of discrimination in this country.
I will admit there has been some discrimination, but there are too many persons who are too anxious to magnify it out of all proportion to its importance. As a matter of fact, owing to the publicity that has been given to it, it has actually caused further discrimination that might never have taken place had it not been for the publicity and. attention given to it.

Human Rights
We who live in this country are extremely fortunate. We can stand to the rest of the world as a wonderful example of a country in which so many of these freedoms are enjoyed by so many people. It is true that governments have been responsible from time to time for encroaching upon certain freedoms of the people; but, as the minister asserted, we have our parliament and we have public opinion, both of which are very potent factors in a matter of this kind.
After looking at resolution No. 10 on the order paper and noting the reference to the United Nations declaration of human rights, and also the reference made to it by the hon. member for Spadina (Mr. Croll), and to the fact that Canada, actually endorsed it at the United Nations, I am sure it was intended to offer guarantees to the people of other countries to make them feel that there was a future, rather than for our own country and to any need that might exist within it.
We feel that this whole matter could be considered by the federal authorities dealing with the provincial authorities; but personally I would be very much opposed to our trying to do everything by legislation when so much depends upon good sense and the education of our own people. In that connection, very recently I had occasion to offer the suggestion that probably our schools, churches, service clubs and other organizations within the nation could do considerably more than they are doing now or have done in the past to remove any desire on the part of the people to engage in discrimination based on race, colour or creed. As I say, there may be sections in the country where this sort of thing is indulged in to a greater extent than in others, but in my experience there has been an absolute minimum of it.
The minister referred to the fact that they have legislation in the United States. He also referred to the fact that the communist party itself has pressed hard for such legislation. When he said that I was reminded of the fifth amendment. The fifth amendment was designed originally, I presume, to give protection to honest citizens, but we know to what extent it has been used by communists in the United States to serve their own ends and protect themselves while engaged in their nefarious practices. I could not help but recall that at the very moment the minister made his assertion.
I wanted to refer to a number of things, Mr. Speaker. Four or five different speakers have referred today to what they called the press bill or the press act of Alberta. Had time permitted I fully intended to deal with that act, which was not a press act at all or press bill. It was the accurate news and

information act of 1937. Because I do not think it has ever been done, I had intended to indicate to the house the exact circumstances under which such legislation had come into being. I intend to do that at a later date, but I could not do it now without being guilty of the very offence that I said I did not want to be guilty of.
Once again, and in conclusion, may I say that we find no fault with this parliament and the provinces of Canada laying down procedures, if they are acting within their own jurisdiction, as a contribution toward the preservation of certain freedoms, or of all freedoms, as a matter of fact. But we cannot agree that the method of procedure should be as set down here, because it would be done in utter defiance of what we have all, I believe, in this house asserted from time to time, namely our conviction that the rights of the provinces as set forth under the constitution should be respected and honoured.


Edmund Davie Fulton: Mr. Speaker, I appreciate the fact-as I am sure do all hon. members-that the hon. member for Red Deer (Mr. Shaw) has concluded in time for a vote to be taken on this motion. I assure you that I also intend to compress my remarks within a brief compass so as still to leave that time.
I am going to deal with one question only, namely the position in which we find ourselves as a result of the amendment moved by the hon. member for Rosetown-Biggar (Mr. Coldwell), who has in effect eliminated most of the operative words of the motion of the hon. member for Prince Albert (Mr. Diefen-baker) and has substituted therefor the positive proposal to amend the British North America Act by adding three specific sections.
In the past on frequent occasions we have stated our position as being one of respect for the constitution. The hon. member for Prince Albert, who introduced his motion, referred to the difficulties of deciding, particularly in the uncertain state of the jurisprudence on the matter, just what are the rights of the dominion parliament and what are the rights of the provincial legislatures. Therefore as a preliminary step he suggested the reference of the whole matter to the Supreme Court of Canada to decide what parts of his suggestions lay within dominion competence and what lay within provincial competence.
In his amendment the hon. member for Rosetown-Biggar has eliminated that suggestion. We are therefore placed in the position that in effect we are being asked to decide this matter for ourselves. I fully agree with the hon. member for Red Deer that in any decision of this sort we must respect the position of the provinces. We have therefore

decided that we would support the amendment of the hon. member for Rosetown-Big-gar in a vote, on one understanding and one understanding only. The preliminary words of his amendment make the motion read as follows:
That, in the opinion of this house, immediate consideration should be given to the advisability of the taking of whatever steps are necessary to amend the British North America Act so as to include therein the following headings and sections:
And then follow the operative words. We will support his amendment with the reservation that those words will be taken as meaning that the matter will be submitted to the Supreme Court of Canada for decision and determination by that court, as one of the necessary steps to amend the constitution, of the extent to which the proposed amendment lies within the competence of the dominion parliament. Because we feel in principle that a bill of rights is necessary, we intend to support the amendment; but because we feel that the respective rights of the provinces must be maintained, we say we support it on the condition that one of the necessary steps be the preliminary submission of the whole question to the Supreme Court of Canada.


Mr. Angus Maclnnis (Vancouver-Kingsway):: Mr. Speaker, I do not want to prevent the vote. I merely say that I do not think it is within the competence of anyone to say that the amendment means something except just exactly what it says. However, I am sure I am speaking for the hon. member for Rosetown-Biggar when I say that he would be perfectly agreeable to the suggestion made by the hon. member for Kamloops (Mr. Fulton).


Some hon. Members:: Question.


Mr. Pierre Gauthier (Portneuf):: Mr. Speaker, there cannot be any question of taking the vote tonight, because I have too many things to say on the amendment and on the main motion. One of those things is that I cannot accept a declaration of rights like the one which was contained in the universal declaration of human rights by the United Nations. Article 16 reads as follows:
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
Consequently they accept divorce in their declaration of human rights. That is something I cannot accept. I am asking myself this question.


Mr. Winch:: Make sure you get a good answer.
Human Rights


Pierre Gauthier: Don't worry; the answer may be as good as any you can give. I ask myself whether it would be infringing upon the rights of the two provinces which do not want any divorce court within their boundaries. I refer to Newfoundland and Quebec. I ask myself whether it would not be infringing on their rights if, by a vote of the federal parliament, we were to impose upon them a divorce court, whether it be the exchequer court or any other court.


Stanley Howard Knowles: That is not included in the motion before the house.


Pierre Gauthier: No, but it is a
question of human rights just the same. I am asking myself that question, and I have a right to do that. It is a pertinent question to ask.


Harold Edward Winch: As I expected, you got a foolish answer.


Pierre Gauthier: I never thought that my friend was so good a judge of good sense or bad sense.


An hon. Member:: He has never proved it.


Pierre Gauthier: No, he never did.


An hon. Member:: They never do.


Pierre Gauthier: I think the declaration made by our Secretary of State for External Affairs (Mr. Pearson) was good when he said this at the United Nations:
I wish to make it clear here, . . . that, in regard to any rights which are defined in this document,-
That is the declaration of human rights.
-the federal government of Canada does not intend to invade other rights which are also important to the people of Canada. By this I mean the rights of the provinces under our federal constitution.
I never heard anyone here say that the Secretary of State for External Affairs is not a man of good sense. The quotation continues:
We believe that the rights set forth in this declaration are operated and well protected in Canada. We shall continue to develop and maintain these rights, but we shall do so within the framework of our constitution which assigns jurisdiction in regard to a number of important questions to the legislatures of our provinces. Because of these various reservations on details in the draft declaration the Canadian delegation abstained when the declaration as a whole was put to the vote in the committee.


An hon. Member:: Ten o'clock.


Some hon. Members:: Question.


Stanley Howard Knowles: Saved by the clock.


Pierre Gauthier: I can go on if you
want me to. Maybe I can speak in French.


Mr. Deputy Speaker:: Order. It being ten o'clock I do leave the chair.
934	HOUSE OF
Special Committee on Procedure HOUSE OF COMMONS



PERSONNEL OF SPECIAL COMMITTEE ON PROCEDURE

Mr. Harris:: Before you leave the chair, Mr. Speaker, may I have the unanimous consent of the house to revert to motions in order to correct a minor error that was made in a motion some days ago. I have explained it to some of my hon. friends and I think they agree.


Mr. Deputy Speaker:: Has the minister leave to revert to motions at this time?


Some hon. Members:: Agreed.


Walter Edward Harris: In the motion which was passed on Monday, January 17, constituting the committee on procedure, at that time the following words were omitted: "notwithstanding the provisions of standing order 65". By way of explanation I may say that means that the members who were appointed at that time to sit on the committee were in excess of the 15 provided by that standing order. Therefore I ask leave to move that those words, "notwithstanding the provisions of standing order 65", be added to the motion which was then made by the hon. member for Portage-Neepawa (Mr. Weir).


Edmund Davie Fulton: Retroactive?


Walter Edward Harris: Yes.


Stanley Howard Knowles: Do you not have to give notice of this motion as required by standing order 65?


Walter Edward Harris: No, I took it for granted my hon. friend would be agreeable on this occasion.


[Stage Direction]
Motion agreed to.

Walter Edward Harris: Tomorrow we shall call the motion in the name of the Prime Minister under government notices of motions with respect to a committee to consider estimates. Then we shall resume debate on the second reading of Bill No. 3, respecting the construction, etc., of river improvements; then Bill No. 4, and then the resolution standing in the name of the Minister of Trade and Commerce with respect to certain amendments to the Canada Grain Act.


[Stage Direction]
It being two minutes after ten o'clock the house adjourned, without question put, pursuant to standing order.
[Stage Direction]
Tuesday, February 8, 1955