1958-09-05

[Stage Direction]
On the order:
Introduction of bills-The Prime Minister-Bill intituled: An act for the recognition and protection of human rights and fundamental freedoms.
Hon. Howard C. Green (Minister of Public Works):: Mr. Speaker, last night the suggestion was made that first reading of this bill should be delayed until after orders of the day. If members of the house wish that course to be followed the government is quite agreeable.


Mr. Speaker:: Is it agreed?


Some hon. Members:: Agreed.


EXTERNAL AFFAIRS
[Stage Direction]
On the orders of the day:
Hon. Sidney E. Smith (Secretary of State for External Affairs):: Mr. Speaker, I desire to table an exchange of notes between the Canadian and United States governments concerning the establishment of a Canada-United States committee on joint defence. Hon. members will recall that the Prime Minister informed the house on July 11 of the agreement reached in the course of the visit of the President of the United States to Canada to establish a joint ministerial committee with authority to consider all matters bearing on the common defence of the North American continent. The exchange of notes which I am tabling today simply records the formal agreement of the two governments in this matter.
The decision of the two governments to establish such a joint ministerial committee stemmed from the recognition by both governments of the need to supplement existing channels of consultation in the defence field. It is intended that the committee will give periodic consideration not only to the military aspects of our common defence but also to the political and economic factors bearing on defence problems.


[Stage Direction]
On the orders of the day:
Hon. L. B. Pearson (Leader of the Opposition):: Mr. Speaker, I am not sure to which minister I should address this question. Perhaps in the circumstances I might address it to the Prime Minister. I regret not having been able to give him notice but the matter was just brought to my attention. It arises out of a Canadian Press dispatch of September 4 to this effect:
Two Mustang fighters were flown out of Calgary yesterday as the vanguard of nearly 100 Canadian fighter planes which have been disarmed and sold to a New York group. . . . The planes have been sold by Crown Assets Corporation to J. H. DeFuria and F. J. Ritts of De Witt, N.Y., for an undisclosed sum. Included in the purchase are more than 40 Sea Furies only recently taken out of active Royal Canadian Navy service. Eventual destination of the planes is being kept secret.
I should like to ask the Prime Minister whether in fact this sale of 100 planes has been made and what steps have been taken to ensure that these planes do not reach an undesirable destination.


Right Hon. J. G. Diefenbaker (Prime Minister):: Mr. Speaker, I wish the hon. gentleman had been able to give notice so I would have been in a position to give a complete statement. However, I will do that tomorrow and go into detail. Whatever sale was made was as a result of the property in question being declared surplus to the corporation. With respect to the latter part of the statement, I may say that every course will be followed to assure that the undesirable end to which the hon. member has made reference will be prevented.



COMMUNIST CHINA


[Stage Direction]
On the orders of the day:
Mr. H. W. Herridge (Kootenay West):: Mr. Speaker, I wish to address a session-ending question to the Secretary of State for External Affairs. In view of the statement issued by President Eisenhower and Secretary of State Foster Dulles warning the government of China that the United States may use military force, including possible bombing of the Chinese mainland, if necessary to protect the islands it considers essential to the defence of Formosa; and in view of the minister's assurances on August 25 and

Inquiries of the Ministry August 30 that the Canadian government has made no commitment to become involved in the dispute between the communist government of China and the Chinese nationals on the offshore islands, can the minister indicate how unilateral action on the part of the United States government would affect Canada and its arrangements under the NORAD agreement? Can the minister inform the house whether the government has made representations to both parties in this dispute? Has the minister any information he can give to the house with respect to developments in this most disturbing situation?


Sidney Earle Smith: Mr. Speaker, as I came into the house I received a copy of the question which the hon. member has now addressed to me. I would observe that the hon. member is seized of the situation and that he is quite correct in using the word "may", that the United States "may" use military force.
Coming to the question "can the minister indicate how unilateral action on the part of the United States government would affect Canada", may I say that I stated in the house, as the hon. member observed, on August 25 and 30 that we have made no commitment in respect of any dispute or conflict in the Taiwan straits. In addition to that, I would say that unilateral action on the part of the United States would not involve Canada in any possible conflict in that area.
With respect to the second part of the question I point out to the house that under the earlier co-ordinated air defence scheme in North America as well as under NORAD, our air force defence squadrons would be called upon to defend Canada against an attack on Canada by hostile aircraft.
With respect to the third question, I can tell the house that I have no information to give about the situation in the Formosa straits in addition to what has appeared in the newspapers. I can assure the house that we are keeping in close touch with the various capitals with respect to this situation.


Mr. Hazen Argue (Assiniboia):: If I may, I should like to ask the Secretary of State for External Affairs a supplementary question because of this grave emergency and great danger to world peace. Will Canada consider making representations to both nations in opposition to any acts that might result in a global war?


Sidney Earle Smith: May I ask
for an elaboration of that question, Mr. Speaker. What does the hon. member mean by "both nations"?


Hazen Robert Argue: By "both nations" I mean the United States and red China.


Sidney Earle Smith: In reply to that question I would say that, as is well known in the house, we have no representation in red China. With respect to the United States, we have made our position very clear and we share with that country, and this has been explicitly expressed, their grave concern about the situation and the appreciation of the great need for restraint.



PARLIAMENT BUILDINGS


[Stage Direction]
On the orders of the day:
Mr. Harold E. Winch (Vancouver East):: Mr. Speaker, I should like to address a question to the Minister of Public Works. Can the minister inform the house as to why a most unusual procedure is followed, in that after six o'clock in the evening a member of the R.C.M.P. acts as security guard inside a government building on parliament hill, namely the west block? Why do employees of the House of Commons and Senate whose offices have been there for many years now have to sign: in and sign out after six o'clock, though engaged in the work of the Senate and the House of Commons? Why, sir, do members of the House of Commons, keeping an appointment after six o'clock in the west block, have to be interrogated by the R.C.M.P. as to their business there, and sign in on the entry book before they are allowed to keep an appointment? This happened to me, sir, last night.


Howard Charles Green: This is a very interesting question. There may be many implications, but unfortunately it does not come under the Department of Public Works. We have not yet taken over the Royal Canadian Mounted Police.


Harold Edward Winch: I understood that all the buildings came under the Department of Public Works. I think, sir, that indirectly the matter of security and the employees of parliament comes under you, Mr. Speaker. In view of the statement of the minister, may I redirect my question now to the Minister of Justice?


Hon. E. D. Fulton (Minister of Justice):: Yes, the hon. gentleman may redirect his question to me, but I cannot give him a complete answer at the moment. I was not aware until now that any member of parliament had been stopped., I shall have to look into the matter and see what the instructions are which have been issued to

the security guard before I am able to answer. I shall do that right away and let the hon. member know.


Harold Edward Winch: Since when have the R.C.M.P. taken over the job of security in these buildings?


Edmund Davie Fulton: That has been the case for some time. The Royal Canadian Mounted Police are not in charge of security inside the centre block where the houses of parliament actually meet, but it is my understanding that for some time the Royal Canadian Mounted Police have been in charge of security in the other buildings, that is the east and west blocks. I know that ever since I have been here I have been accustomed to seeing a mounted police constable at the door of the east block.


Harold Edward Winch: I am speaking of inside the building, not outside.


Edmund Davie Fulton: The constable stands inside. The security staff or the protective staff of parliament operate only in the centre block, to my knowledge, and the security arrangements for the other buildings are not under the control of the protective staff of the house or the Senate.


Mr. G. J. Mcllrailh (Ottawa West):: Mr. Speaker, I wonder if I might have your indulgence to mention one fact. There seems to be some confusion about what the particular point is. The point concerns the House of Commons administration. Hon. members know that part of the west block was set aside for the use of the House of Commons staff, and it is the interference with the work of the House of Commons staff and the members in the performance of their duties that is at issue, as I understand it. This is quite a different thing from the point raised by the Minister of Justice.


Edmund Davie Fulton: Not at all; the point raised by the Minister of Justice was that, as I understood it, for some years the east and west blocks have been using the security services of the R.C.M.P. To my knowledge there has never been previous objection to that. If hon. members find that questioning by the R.C.M.P. in the west block is not acceptable, then I think-


George James McIlraith: That is not it; that is part of the House of Commons administration. It should be the protective staff.


Edmund Davie Fulton: If the hon. member would permit me to complete the answer, I have just pointed out that this is the first time, to my knowledge, that the point has been raised or that anyone has found it objectionable. I was going on to say that if that is the case-if there is objection-then it seems to
Inquiries of the Ministry me I might have a discussion with His Honour, Mr. Speaker, about the matter and perhaps with the leaders of the parties to see if the present system is satisfactory or whether some other system might be worked out in so far as that portion of the west block is concerned which is assigned to the House of Commons staff.


Harold Edward Winch: I must not be misunderstood. The point is that there has always been a commissionaire at the door of the west block, and now there is an R.C.M.P. constable inside the door of the west block. Now, for the first time in history, the civil servants who have to work there at night because we are sitting have to sign in and sign out and state their business. Why the sudden change? That is all I am asking.



TRANSPORT


[Stage Direction]
On the orders of the day:
Mr. G. E. Nixon (Algoma West):: I should like to direct a question to the Minister of Transport. Will the subway now under construction at the Wellington street crossing of the Algoma Central Railway in Sault Ste. Marie stand to benefit to the extent of 80 per cent of the cost out of the grade crossing fund, as provided in the legislation passed at this session?


Hon. George H. Hees (Minister of Transport):: I wish to thank the hon. member for advising me of his intention to ask this question. I have been in touch with the board of transport commissioners, who advise that the order approving construction of the subway on Wellington street was issued on January 22, 1957. As was made clear in the house when the estimates of this department were being considered and when the bill was presented, the legislation recently passed increasing the grant that may be made from the grade crossing fund does not apply to projects that were approved prior to January 31 of this year.



IMMIGRATION


[Stage Direction]
On the orders of the day:
Mr. J. R. Taylor (Vancouver-Burrard):: would like to direct a question to the Minister of Citizenship and Immigration. In view of the strong possibility that William Heikkila will once again be deported from the United States through the port of Vancouver, would the minister say whether the Department of

Inquiries of the Ministry Citizenship and Immigration will assume custody and control of that person or of any similar person during his or her temporary stay in Canada?


Hon. Ellen L. Fairclough (Minister of Citizenship and Immigration):: This, of course, is a hypothetical question. The hon. member probably is aware, or should be aware, that the department is not responsible for the custody of such persons. The responsibility for their custody lies in the hands of the United States authorities, and they make their arrangements with the local police.



C. G. HANNA    INQUIRY AS TO DISPOSITION OF APPEAL

[Stage Direction]
On the orders of the day:
Hon. J. W. Pickersgill (Bonavisla-Twillingate):: I wonder if I might ask the hon.
lady if she would say whether the appeal of Mr. Hanna has yet been disposed of?


Ellen Louks Fairclough: I do not think so. If it has been disposed of, this has happened so recently that I have not received any word of it.



STATEMENT ON REPORTED EXTENSION OF U.S. IMPORT QUOTAS

[Stage Direction]
On the orders of the day:
Hon. Gordon Churchill (Minister of Trade and Commerce):: Mr. Speaker, several days ago the hon. member for Assiniboia asked me to comment on a press story which attributed to Mr. Weeks, secretary of commerce of the United States, certain remarks about United States policy regarding imports of oil.
We have been fully informed by the government of the United States about its plans to reorganize regulations respecting the import of oil into the United States east of the Rocky mountains, so far as those plans have progressed to date. Since the press report to which the hon. member referred Captain Carson, the administrator of the oil import control program, has announced that there will be no change in the import quotas until the beginning of 1959. In the interval the proposed new arrangements will be published to enable interested parties to make representations, in the light of which the United States government expects to put the proposal into final form.
I can assure hon. members that the Canadian viewpoint will be kept before the government of the United States at all times.


Hazen Robert Argue: As a supplementary question, may I ask whether the minister is able to tell from the information

he now has whether the United States move is directed at increasing or reducing the so-called voluntary 15 per cent reduction of imports? In other words, is what is now being done in the United States a further danger to Canada or is it likely to be of assistance to us?


Gordon Minto Churchill: I am not sure that I can give a complete answer to the hon. member's question, but the information I have received is that the Canadian position with regard to the export of oil to the United States is not endangered.


Lester Bowles Pearson: May I ask as a supplementary question whether it is the intention of the government to put this matter on the agenda of the first meeting of the United States-Canada ministerial committee on defence?


Gordon Minto Churchill: Mr. Speaker, that will be taken into consideration.



BRIDGES


[Stage Direction]
On the orders of the day:
Howard Charles Green: Mr. Speaker, yesterday the hon. member for Kootenay West asked the following question:
Will the minister inform the house when the department of public works of British Columbia filed plans with his department for a proposed second bridge across the Columbia at Trail, and would the minister also inform the house of the developments to date with respect to approval of those plans?
The answer is that on August 13, 1958, an application under the Navigable Waters Protection Act was received from the department of highways of the government of the province of British Columbia in respect of a highway bridge proposed to be built over the Columbia river at Trail.
The proposal is being studied by engineers of the department and we are awaiting a report from the district officials.



HUMAN RIGHTS


John George Diefenbaker: for leave to introduce Bill No. C-60, for the recognition and protection of human rights and fundamental freedoms.
He said: Mr. Speaker, because of the circumstances which have arisen, the lateness of the session and the desire of hon. gentlemen to have this matter given the fullest possible consideration, I propose on this occasion simply to follow the course that was

taken in the first session of 1957 by the then prime minister, Right Hon. Mr. St. Laurent, and I shall refer to the bill in some detail, with the permission of the house.
Thereafter views will be expressed by the Leader of the Opposition and by the hon. member for Assiniboia as the leader of his group and this measure will then remain until next session, to be introduced at the earliest possible date after full representations have been received from those organizations and individuals in our country whose interest over the years has been directed to the necessity for a bill of human rights and fundamental freedoms in our country.
I would be less than frank if I did not say that in introducing this bill I do so following years of endeavour in this regard, years of representations in which were joined others who were then in the house and by two such members in particular, Mr. M. J. Cold-well and Mr. Croll, who is now a member of the other place. I believe the introduction of this measure marks an important day for all Canadians, since it represents the attainment of a goal to which many had looked forward. It is a measure with respect to which, from 1942 onward, I have spoken in this house from time to time, and in support of which I have moved resolutions on a number of occasions.
To draft such a bill has been difficult. The desire has been to keep it strictly within the constitutional powers of the federal parliament. Its aim and purpose has been to give to parliament the opportunity of removing any future danger to the fundamental freedoms of our country, danger which has not been unapparent in the past.
The aim has also been to clothe this bill in simple language. I know there will be criticism of it in that regard, but I would point out that from the earliest biblical times those charters of freedom which have taken their places as landmarks in man's march to liberty, including the Gettysburg speech, were declarations of the rights of man phrased in vital but simple words; for, sir, human rights and fundamental freedoms require no grandiloquent words to contribute to their greatness and importance.
Today what I shall do is underline some of the steps that have been taken during the years in the advocacy of the need of a bill of rights, the necessity for a bill of rights, and the terms. Then I should like to refer to one or two matters for the purpose of assuring that the record in this regard be kept clear, to answer questions that will naturally arise such as why was a constitutional amendment not asked for rather than embodying those rights in a statute; what will happen to the other freedoms that are part and parcel of
Human Rights
our constitutional rights which are not specifically included; what are the provisions in this bill that will assure the maintenance of the security of Canadians in the event of war or other similar national disasters?
This bill of rights and its form represent action to be taken by parliament to carry out one of the major principles of the charter of the United Nations which was designed to assure international co-operation and to ask for the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
I said this represented the first step toward the achievement of what has been in the minds of Canadian people for many years. Indeed, two petitions were brought to parliament during the years 1947 and 1948, signed by 500,000 in one case and by more than
700,000	in the other, asking for legislation to assure the maintenance of fundamental freedoms in the federal jurisdiction. To that end two committees of parliament were set up which dealt at very great length with the issues, the needs as well as the suggested draftsmanship.
I would like to refer to the divisions of this bill. It consists of two parts, the first being the bill of rights as such. It makes very clear that this bill is entirely within the legislative jurisdiction of parliament. It states:
It is hereby recognized and declared that in Canada there have always existed and shall continue to exist the following human rights and fundamental freedoms-
May I paraphrase those freedoms. They are the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; the right of the individual to protection of the law without discrimination by reason of race, national origin, colour, religion or sex; freedom of religion; freedom of speech; freedom of assembly and association; and freedom of the press.
I would point out that radio as such or broadcasting in general is not included, because freedom of the press has been defined as including freedom respecting broadcasting. Then in order to make doubly sure that there shall never be a challenge in the future there is provision which states that all the acts of the parliament of Canada enacted before or after the commencement of this portion of the bill and all orders, rules, regulations and laws in effect in Canada or in any part of Canada at the commencement of this part which are subject to be repealed, abolished or altered by the parliament of Canada, shall

Human Rights
be construed and applied so as not to abrogate, abridge or infringe any rights of human freedom.
Then as to the rights of the individual; the right not to be subject to cruel, inhuman or degrading treatment or punishment; to be deprived of one's rights; to be informed as to the reason for his arrest; of his right to retain and instruct counsel; also the right not to be deprived of any right except after a fair hearing in accordance with the principles of fundamental justice; the right of an individual to a fair and public hearing by an independent and impartial tribunal for the determination of any criminal charge.
Then in so far as habeas corpus is concerned no one shall be deprived of the remedy by way of habeas corpus for the determination of the validity of his detention or his release if the detention is not lawful.
Then, sir, because of the fact that the United States and many other jurisdictions have adopted bills of rights since the United States did so by the first amendment to the constitution, so as to assure that other fundamental freedoms which are not specifically designated shall not by reason of their absence be considered to be non-existent there is a provision in part II which says:
Nothing in part I shall be construed to abrogate or abridge any human right or iundamental freedom not enumerated therein that may have existed in Canada at the commencement of this act.
This section is placed in the bill to meet the situation to which I have already made reference. A similar section was recommended by the committee of parliament presided over by Senator Roebuck as necessary to meet the situation to which I have just referred.
Then during time of war provision is made, in keeping with the experience of the United States and also the practice and procedure in the United Kingdom, that in so far as the War Measures Act is concerned the effective sections in question, 3, 4 and 5, shall come into force only upon proclamation of the governor in council declaring that war, invasion or insurrection, real or apprehended, exists. Then in order to maintain the supremacy of parliament, provision is made that the proclamation declaring that war, invasion or insurrection, real or apprehended, exists shall be laid before parliament forthwith after its issue or, if parliament is not sitting, within the first 15 days thereafter.
In other words, while experience has shown both in the United Kingdom and in the United States that in time of war rights on occasion have to be placed in pawn as security for victory, that decision hereafter must be made not by the governor in council but by parliament, thereby restoring to the representatives

of the people the right to declare whether or not, for a period to be designated during the progress of war or an international catastrophe similar thereto, any rights shall be deprived except in consequence of the act of parliament.
I mentioned a moment ago that I would refer to the need for a bill of rights, for there are those who say there is no need. I read recently that the Leader of the Opposition had taken the stand that there was no need. Well, I point out that all across this nation, as a result of experiences which I raise not for the purpose of controversy but simply as a requisite in order to ascertain whether there is a need, there has been a widespread demand for action of this kind in order to preserve and maintain rights against the invasion of an all-powerful state, and I refer at all times to the federal government and federal parliament.
The Canadian constitution, it is said, grants us those rights. Well, our constitution is largely made up of the British North America Act although there are traditions, liberties and prior statutes that are part and parcel thereof as well as that unwritten heritage which is ours. Under the British North America Act it is stated that the Canadian constitution is similar in principle to that of the United Kingdom, but in the experience of the past it has been shown that this declaration does not in any way preserve and maintain fundamental freedoms or those civil liberties and human rights that should be binding on the parliament of Canada. I have here "Charters of our Freedom" prepared by the late Professor Trotter, in which he defines the question of civil liberties in these words:
Civil liberty, or liberty of the person, means one's opportunity to live his own life free from arbitrary or illegal interference by government, or by other persons, with his movement, conduct and opinion. Enjoyment of such freedom by the members of a community can never be complete, for the very laws that safeguard the individual's liberties can do so only by placing restrictions on all persons to prevent them from conduct harmful to one another. Law guards the liberties of each of us by limiting the liberty of all. It must restrain even the rulers themselves In the exercise of their authority over their subjects.
There are many who contend that we do not need a bill of rights because parliament has in the past and can be trusted for the future to safeguard our rights and freedoms. But, sir, unfortunately that has not been the experience. The United States found it necessary to provide for a bill of rights after the constitution had been determined because immediately it became apparent that while fundamental freedoms were generally accepted as being part of the tradition and heritage of the United States and the original colonies, there were such invasions as made

action necessary. Thomas Jefferson contended that it was far better and was the only safe course to have safeguards for personal freedom on the statute books than to trust to the discretion and whims of a majority.
History also reveals that few governments with large majorities want at any time to have their power restricted. I expressed that view sitting on the other side of the house on March 24, 1952. I repeat it today because then I was in a small opposition and today I am on the government side of the house with no small membership. Experience has shown that freedom is not always safe in the custody of an overwhelmingly powerful government supported by an overwhelming majority. Large parliamentary majorities do not always ensure omnicompetence in the preservation of freedom.
I want to refer to several examples in this regard, not for the purpose of bringing up the past but simply to provide enlightenment for the future. In December, 1945, some months after hostilities had ceased and without reference to parliament, three orders in council were passed and declared to be valid by the judicial committee of the privy council, which would have exiled to Japan some
7,000	people of Japanese origin, a large proportion of whom were Canadian citizens. The fact that the privy council said that this could be done, that it was lawful, following the end of hostilities indicates the need of some restraining influence and the declaration of some principle to assure that there shall not be repetition in the future.
On October 4, 1945 an order in council was passed which swept aside habeas corpus, which denied the right of an individual to counsel. Whatever the merits may have been of the action taken, events then and subsequently established that an invasion such as that of a primary fundamental right can be made by the parliament of Canada or under order in council.
As a further example I might cite the Foreign Exchange Control Act. Provision was made under that act that anyone who in the opinion of an official had broken the law, whether or not there was any justification, however illegally he was treated, had no right of recourse to the courts. Finally that was changed. It started under order in council, strong objection was raised here in the House of Commons, and a change was made in the law, Mr. Speaker, to provide that if illegal actions were taken under this act the individual had a right of recourse to the courts; but whatever his loss, whether it amounted to $10,000 or more, the amount
Human Rights
he could recover in the courts in the event of his success was nominal damages of $1 and no costs.
Now, these are just examples. I am not covering the ground, but I am laying the basis for an argument that there is a need. There was an order in council passed setting up a committee to investigate Eldorado. The commission had the power to examine, legally or illegally, lawfully or unlawfully, and to deny an individual who was charged or examined the right of counsel, at the same time denying any right of appeal. Unless restrained, Mr. Speaker, the pathways of power lead to the degradation of the rights of individuals. We are all human and Lord Acton's famous aphorism, sometimes misquoted, that absolute power corrupts absolutely is true whatever your party affiliations may be.
Then in December, 1945, there was introduced the transitional powers bill, subsequently withdrawn but none the less within the power of parliament, whereby the cabinet was asking, by order in council, for the complete control of property in Canada; the forfeiting of property at its will; the control of transportation by railway, water, road and air; and control over business in Canada. Subsequently alterations were made in that bill. It was withdrawn and a new bill was substituted, but those are indications of what will happen when you have a powerful parliament unless there is an overriding declaration to preserve the rights of the individual.
I can think of another example, and I opposed this but I am not saying the stand was correct. I am not here to judge. Legislation was introduced in April, 1946, which provided that from then on no transportation company in Canada could operate civil air lines. This legislation went through, but later on it became inconvenient. There was not an order in council passed, but there was a minute of council passed that operation of the statute, which had become law, should be postponed.
I might cite another example. Again I say I am mentioning these cases merely as a basis for answering those who say that a bill of rights is not necessary. In 1946, a Mr. Oatman started an action against the wheat board for certain rights which he claimed. The case came finally before the court of appeal of Manitoba. He was then in a position to launch an appeal to the Supreme Court of Canada. I do not know what the merits of the case were, whether he was right or wrong, but he was a Canadian who had the right of appeal to the courts. An order in council was passed denying him the right to appeal to the supreme

Human Rights
court; indeed, it denied anybody else the right to commence a similar action, or to continue an action which he had legally started.
There are many other cases here before me, but I shall not make reference to them now. They do support the stand taken by the Canadian Daily Newspapers Association, representative of 97 per cent of the English and French newspapers of Canada, that experience of the past had shown that a bill of rights was necessary and ought to be brought into being. Bruce Hutchison, writing in 1947 between May 30 and June 3, used these words:
-the people and parliament of Canada are beginning to think that safeguards are necessary because, in recent times, basic human liberties have been infringed in this country.
He said at another time in the same series of articles:
Thus, after assuming for 80 years that liberty was safe in Canada without any sure legal guarantee, parliament has been compelled to realize that liberty has lately been infringed by the state in a fashion unforeseen by the framers of our constitution. The infringement as yet is small, but it can grow. The purpose of a bill of rights is to make sure that it does not grow.
I have here as well the views of one who, like Mr. Hutchison, has not been known as a supporter of the party to which I belong. I refer to Professor A. R. M. Lower of Queen's University. In an article entitled "Some reflections on a Bill of Rights", he pointed out the need for a bill of rights on the basis of past experience.
If it is accepted that there is a need, then the next question that arises is this. Should it be by a constitutional amendment? I pointed out at the beginning that we in parliament have certain powers under the constitution. I have referred to some of the things that took place which are unchallengeable. Should it be by statute or by constitutional amendment? If it were a constitutional amendment, that affected only the federal jurisdiction, it could be passed by both houses of parliament and would be subject to repeal at any time in the same way a statute could be repealed.
May I digress for a moment, Mr. Speaker, and say this. If a statute is passed by parliament, the experience of the past has been that subsequent parliaments are extremely loath to make any changes in a declaration that provides for freedom on behalf of the individual. In any event, if a constitutional amendment were passed affecting only the jurisdiction of the parliament of Canada, it would be subject to repeal at any time by a vote of both houses as would a statute. On the other hand, I realize that there are many

who feel that there should be a constitutional amendment binding on the federal parliament and the provincial legislatures.
All I have to say in that regard is this, Mr. Speaker. Let us clear our own doorstep first. In so far as a constitutional amendment would be concerned, the experience of 80 years indicates very clearly that the provinces, jealous of their jurisdiction, would not support a constitutional amendment applicable to themselves.
A group of distinguished Canadians submitted their views on a bill of rights to the joint committee of the Senate and the House of Commons in 1947. The list of those who urged members of parliament of all parties to establish a bill of rights contains the names of Canadians in every province, outstanding and distinguished in their respective fields including educators, legislators, newspapermen, representatives of labour and of industry. Indeed, it is a group of names that reads like a "Who's Who" in our country. They suggested that it should be by way of a constitutional amendment binding on the national government and the provinces.
I have answered that suggestion. We do not intend to refrain from proceeding with a bill of rights effective in the parliament of Canada or to delay that step, postpone it and ultimately not achieve action, when we have available here the power, the right and the exclusive jurisdiction to bring in a bill of rights within the constitutional power and the legislative ambit of the national government. Again I quote from Professor Lower in this regard:
The question to be initially faced is whether a bill of rights should be a simple statute or whether it should be a constitutional amendment. The latter is preferable, but at our Canadian rate of proceeding it will take many years to effect. A statute, on the other hand, is repealable. Yet such a statute would constitute a declaration of principle, it would give a text from which to preach, it would form one additional hurdle for parliament to take when it next consented to abrogation of civil liberties, and would make that abrogation a much more solemn thing than It has hitherto been.
I am not going to refer in particular to the authorities on the division of power as between the federal government and the legislatures in respect of this subject. There have been a number of them in recent years. It is interesting, Mr. Speaker, to note that there was never a case in the privy council at the time when it was our supreme law body wherein an interpretation was given of the constitutional division with respect to civil rights. Some recent cases are the Saumur case, (1953) 2 Supreme Court Reports, 299; the Winner case, (1951) Supreme Court Reports, 887 which deals with interprovincial jurisdiction; the Birks case, (1955) Supreme

Court Reports, 799; and the Switzman case, (1957) Supreme Court Reports, 285.
However, in reading these authorities one feels that the question as to the division of the constitutional power over fundamental freedoms has as yet been far from interpretation and delineation. That is another reason why we, proceeding in parliament to bring about the achievement of fundamental freedoms, must scrupulously respect whatever provincial jurisdiction exists in reference in whole or in part to this matter.
As I said a moment ago, a constitutional amendment which was passed by parliament in so far as those rights are concerned and which would permit of such a declaration being made by the federal parliament would be subject to repeal as is a statute. A constitutional amendment that went ahead and did not have regard to provincial jurisdiction whatever phase of provincial jurisdiction was concerned, would simply be declared ultra vires in so far as it infringed upon provincial jurisdiction. It is for these reasons that we have determined that the course to take is to place before parliament a statute covering those freedoms which are within the jurisdiction of parliament in so far as the laws that are passed by parliament in the days ahead are concerned, or that have been passed heretofore.
In the past there have been those who have stated that a bill or rights would make ineffective that unity of action which is necessary when our security is challenged in war. That matter has been covered by the section to which I have made reference, which gives to parliament, representing all the people, the right to take positive action when and if those freedoms must be infringed upon. Britain has had similar experience and in her tradition for freedom has followed a similar course. It is interesting to note that the bill of rights of the United States, in so far as fundamental freedoms are concerned, covers only those freedoms which are subject to legislation by congress. That is something which is often forgotten. In other words, the United States congress cannot legislate on the preservation of human freedoms except those which come within the ambit of the congress of the United States. The later provisions dealing with the civil rights of individuals and constitutional amendments may be construed as applicable to individual states, but the initial ones dealing with fundamental freedoms are entirely within the jurisdiction of legislation which can be passed by the United States congress.
I mentioned habeas corpus, and I referred to an instance when it was swept away by
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a simple order in council. It is well to understand the position taken by Britain and by the United States in this regard. In the United Kingdom the habeas corpus act has been suspended by the British parliament. It was done in 1715, in 1745 and in 1794; it was done with respect to Ireland in 1881. This was done in each case by an act of parliament, a suspending act of a temporary nature only, and it was followed in each case by an act of indemnity to protect the executive. In the first and second world wars there was no form of suspension of habeas corpus, but wide powers were conferred on the executive by the defence of the realm act and the emergency powers act in 1914 and 1939 respectively.
In the United States the privilege of the writ of habeas corpus shall not be suspended unless when, in the case of rebellion or invasion, public safety may require it. In 1863, when it was suspended, congress authorized the president to suspend the writ and the delegated power was exercised not only by President Lincoln during that war but by President Grant during the reconstruction period.
Sir, if parliament passes this statute it will be taking a step, a major step, forward to stop the erosion of the rights of the individual within the jurisdiction of the national government. It will do more than that. I do not wish to repeat what has been said on other occasions, but I think the house will allow me to quote from my words in 1947, and, in the light of the intervening years, this still constitutes my point of view. At page 3152 of Hansard for May 16, 1947, I said:
What would a bill of rights do? It would establish the right of the individual to go into the courts of this country, thereby assuring the preservation of his freedoms.
A bill of rights would be a contract between the individuals of Canada and the government of Canada. It would assert the right of the individual: it would assert the right of a minority to be protected in the exercise of its rights, against the majority. It would, above all, assure that each of us would have a legal right to be heard in the courts of this country.
Then in 1952, as recorded at page 720 of Hansard for March 24 of that year, I said:
A bill of rights would deny the right of any majority to interfere with my serving God as my conscience demands. It would deny the right of any government to interfere with my right to speak or write so long as I did so within the law.
Later on I had this to say:
A bill of rights would redefine the landmarks of liberty, which are almost erased as a result of the pathways of war becoming the permanent highroads of peace.
When I say that, sir, it is not in criticism of any political party in this country; it is

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a simple statement of fact. A similar situation arose in the United Kingdom because those pathways which are short-cuts in wartime are so easy to maintain that they tend to become the permanent institutions of peace.
A bill of rights would do something more; it would make parliament freedom-conscious. It would make parliament realize that rights are to be preserved. It would make parliament more cautious in passing laws that would have the effect of interfering with freedom. It would act as a landmark by means of which Canadians, through parliament, would have redeclared those things which have made Canada great. It would preserve those spiritual wells in legislative form without which freedom cannot survive. It would give to Canadians the realization that wherever a Canadian may live, whatever his race, his religion or his colour, the parliament of Canada would be jealous of his rights and would not infringe upon those rights which are dear to us all.


Some hon. Members:: Hear, hear.


John George Diefenbaker: The cynics will say it does not go far enough. It is a first step. As the Chinese say, every journey by mankind, even a journey over a thousand years, begins with just one step taken by some individual who sees the possibilities for the future and tries to make it possible to equalize the opportunities for those of his own generation. This bill will not do everything, but I do think fair minded Canadians will agree that it is a major step forward.
I can only hope that Canadians as a whole will give to parliament the benefit of their suggestions and ideas in the next few months so we shall be able to make such amendments in the bill to be presented to the next parliament as will still the heart stirrings of those who fear for freedom in our country, assuring always the maintenance of the constitutional rights of provincial jurisdictions.
It will be a landmark as well for Canadians. Realize this; that henceforth, except within the limitations that security demands, Canadians will know that their rights are not to be loosely disregarded, and parliament will have before it at all times the warning which is emphasized in this bill of rights, namely that fundamental rights and freedoms within the federal jurisdiction shall not be made light of by this or future parliaments.
I shall say no more at this time. I hope we will be enabled next session to discuss this question again fully and completely, and that out of the counsel of parliament and the representations of our fellow Canadians, whatever changes should be made in this bill of rights can be made in the bill then to be

presented, always assuring that it shall be constitutionally within the powers of parliament and in no way can transgress the constitution.


Lester Bowles Pearson: Mr. Speaker, the house will have listened with the interest which the importance of the subject demands to the words of the Prime Minister in introducing this bill. I am sure that hon. members on all sides will approve the procedure which the government has adopted with regard to it, that is, giving it first reading in the closing hours of this session and then submitting it for examination and consideration at the next session of parliament.
There can be no more important questions than those of human rights and fundamental freedoms, and no questions more appropriate for parliamentary consideration. The existence and the free exercise of human rights and freedoms are the very roots of our democratic life. When these weaken, society becomes stagnant and finally servile.
It is of course true, as the Prime Minister has said, that only preliminary consideration by three members of the house can be given to this bill at this time, and no detailed analysis seems to be called for now. But, as the Prime Minister himself has indicated, it needs very careful study indeed. I am the more impressed by the necessity of this because, to me at least, it seems a little ambiguous and unclear in places, and its effect, especially in part II, might be other than is intended. It is also unclear in my mind as to the overriding effect of this bill on other legislation which might follow and the influence it might have on such legislation. That, of course, remains to be determined.
For instance, what would be the relationship of a bill of this kind to a bill which would give the governor in council power to take citizenship away from a Canadian if upon the report of a minister the governor in council was satisfied that such a Canadian did not at the time of taking the oath of allegiance intend to comply with that oath? Yet that is in a bill which we will be discussing immediately after this one. It is therefore very difficult to come to firm conclusions as to the contribution this bill can or should make to the objective we all have in mind, the more complete and the more assured protection of human rights in this country, than which, of course, there could be nothing more important.
As the Prime Minister has said, we will all have a chance to give a more considered opinion on this matter at the next session of parliament. Today, therefore, I shall confine my remarks to the general objectives of the bill which we on this side fully and

warmly support, and to the general problem of the preservation and strengthening of fundamental rights and freedoms in our Canadian democratic society. I will try to treat this subject, and that objective, in the nonpartisan and rational manner which its nature warrants.
In discussing fundamental freedoms there is one which is not usually enrolled with the others but which, in my view, should guide our consideration, namely freedom from illusion. We have to approach this subject, if we would approach it constructively, free from illusion, though not, I hope, free from ideals. Let us ask ourselves first, then, what is the present situation in Canada with respect to our rights and our liberties, and I am talking now about the rights and liberties of the individual, without which there can be no rights and liberties of the state. What is our heritage in this matter? Are our rights and freedoms threatened and, if so, what can we do about it?
Those who talk about rights and freedoms usually refer, and quite rightly, to their parliamentary and democratic foundations in the United Kingdom as something we have inherited and something which can protect us, as something very precious which is ours both in law and in custom. And, of course, this heritage is a matter for Canadian pride and satisfaction.
The two British contributions to this heritage which seem to be an indispensable part of every speech on this subject are Magna Carta and the bill of rights of 1688. But it is interesting, as an illustration of how things can develop in a way which was never intended, to realize that Magna Carta when signed was a feudal, not a people's, declaration or charter. The rights and liberties which it embodied were those which the feudal lords demanded only for themselves against a despotic king. It had no provisions which gave rights or protection to the people, and no thought of promoting their democratic progress. The law to be observed was feudal law, and the liberties to be guaranteed were feudal franchises.
So far as the 1688 bill of rights is concerned, it did not proclaim or guarantee abstract rights or enunciate lofty democratic principles. It was a strictly practical document designed to ensure that governmental abuses of arbitrary monarchs should not recur.
In the light of history what, then, is the importance in political and democratic development of documents such as Magna Carta and the bill of rights? What meaning has this development and such documents for us in Canada? Their importance lies not in what these things meant at the time, but what
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they were made to mean by later interpretation; in the slow progress toward popular and democratic rights, progress which would certainly have been most strenuously opposed by the barons of Runnymede and by the gentry who overthrew James II. Those documents became a symbol, and therein lies their importance for the future.
Therefore we ask ourselves, can this declaratory bill in its present form, and in our federal system, become such a symbol when the very limited authority behind it to deal with civil rights is specifically recognized in its own terms? Or-and this is another question-will this recognized limitation, enshrined in a federal statute, make progress perhaps more difficult, rather than less difficult, and hinder rather than help the effort to ensure that all Canadians, wherever they live and under whatever jurisdiction they may be, will have certain basic rights and fundamental liberties guaranteed to them, rights which cannot be diminished let alone destroyed by any legislative process from any Canadian source apart, of course, from temporary and necessary surrender during a period of war or national emergency.
That surely, Mr. Speaker, is the ideal we must seek to realize while preserving the constitutional rights of every province; while preserving also the necessity, which is a primary one but which can be abused, of ensuring the security of the state. Therefore I ask again, does this bill make any advance toward this realization? Can we do more, and how? Before we can even try to answer this question we have to consider a matter which the Prime Minister has touched on, namely the position in our country in regard to jurisdiction over these matters.
Where does the constitutional authority lie in our country to deal legislatively with civil rights and fundamental freedoms? Where lies the duty to protect and to strengthen, and the power to limit and perhaps restrict them? Does it lie in the parliament of Canada or in the legislatures of the provinces, or is it divided between them?
Well, Mr. Speaker, that is no easy question to answer with any precision, to find an answer that will cover all the circumstances. Certainly the judgments of the supreme court are not clear on the matter, though it may well be that important decisions will be made before long by that court in cases that have reached it or may in due course reach it.
The preamble to the British North America Act, which was quoted by the Prime Minister states that the provinces are united into one dominion "with a constitution similar in principle to that of the United Kingdom". Deductions have been drawn from this and

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impressive legal arguments advanced on it to give the federal parliament the same power over civil rights that is possessed at the present time by the parliament of the United Kingdom. Those deductions and arguments are not, I believe, confirmed by legal decisions or by constitutional practice.
After all, Mr. Speaker, the words quoted are from the preamble and not from the operative part of the British North America Act which, in terms in the operative part, gives us a constitution not unitary like that of the United Kingdom but federal, which distributes the law-making power between the central parliament and the provincial legislatures. As we know, section 92 (13) of that act gives property and civil rights to the provinces. Civil liberty and rights, therefore, it can be argued and with impressive evidence to support the argument, are in the keeping of both the federal and the provincial legislatures.
Therefore the power of parliament in this matter may mean not so much what can be done but who can do it. The courts must decide, of course, in cases of dispute which is the authority; but as I have said, our court of last resort-at least in the decisions that I have been able to study-are not very clear in this matter, at least not very clear to a layman. Parliament, incontrovertibly, does have power to make certain actions criminal offences, and this can protect civil rights. Parliament also has the broad authority under "peace, order and good government", but how far do those powers go?
The Prime Minister mentioned one or two cases. Perhaps I can mention one or two. In 1938 the Alberta press control law reached the supreme court, and three members of that court, including Chief Justice Duff, held that provincial legislatures could not limit freedom of association or of debate or of the press, and that these matters were substantially subject to federal control. But in another case the Prime Minister mentioned, the Saumur case, in 1953 five of the justices of the supreme court agreed that a province had some legislative competence in connection with freedom of religion; three, in fact, of the supreme court justices took the definite position that freedom of religion was a civil right falling within provincial jurisdiction under the civil rights provision of the British North America Act. Yet the majority of the court also refused to deny federal legislative competence in the matter, and three positively affirmed it. So where do we stand? Can our civil liberties and rights be restricted by provincial laws by giving those laws a property label? If so, where could this lead us?
On the other hand, can provincial jurisdiction be made subordinate to federal laws in this field by general application, protecting all Canadian citizens in the exercise of their fundamental rights, with punishment for those who offend against them? The fact is, Mr. Speaker, that we do not know, certainly not beyond doubt; and until we do know the question is bound to arise in our minds of the right of the parliament in Ottawa to legislate on matters which are in doubt and which are often claimed by the provinces to be within their jurisdiction. Perhaps "right" is the wrong word. Perhaps the question is more concerned with one of constitutional propriety.
The Prime Minister, as I shall attempt to show later, in the past advocated clearing up this matter by submitting a draft bill to the supreme court to determine its constitutionality, or by requesting an opinion from the court on the powers of the federal parliament in this field. This idea at the moment at least seems to have been dropped.
Another method would be a conference- and this has been referred to in debates in this house in the past-with the provinces for the purpose of seeking an agreement on this fundamental question, and afterward either to amend the British North America Act by including within it a bill of rights or to pass a bill of a less fundamental character with provincial agreement. Which of these two procedures one prefers will depend a good deal on whether one has more trust in the courts or in parliament.
There is one factor, though, that concerns constitutional amendments. If it were an amendment which covered all aspects of this question, covered all Canadian citizens in the exercise of all their fundamental rights, I believe I am right in saying that such an amendment could not be made to the British North America Act in the present circumstances except by the United Kingdom. Therefore we Canadians, in respect of a matter which concerns the rights and liberties of all Canadians, would have to go to another jurisdiction to amend our constitution to make that possible. That is something out of which no Canadian takes satisfaction.
These points, I admit, are not settled in the bill before us and it was not the intention of the bill to settle them, as the Prime Minister has pointed out. This bill is of limited scope and claims to be restricted to rights strictly within the jurisdiction of the federal parliament, whatever that jurisdiction may be.
In this respect, Mr. Speaker, this bill inevitably falls short of other proposals advanced in parliament since world war II

for the protection of the rights and liberties of Canadian citizens, including some significant ones put forward by the Prime Minister himself, one of which at least he mentioned this morning. Therefore, though it may only be a short look, I should like to look at the record of discussions on this matter that have been held in parliament. I will go back no further than 1945.
In that year a member of the C.C.F. party, the then member for Winnipeg North, made a frontal attack on the problem of the rights and liberties of the individual in Canada by proposing that a bill of rights be incorporated in our constitution as part of the British North America Act. Whether or not you agree with it, the C.C.F. took a clear-cut position on the matter then, a position which I believe they have maintained since. But that initial C.C.F. proposal was dropped in view of the fact that the government of that time was about to introduce a citizenship bill, and it was thought that there would be a discussion of this matter on that bill. But in the next year, 1946, the then member for Lake Centre, the present Prime Minister, advocated in the house a bill or declaration of rights either independently of or to be included in the citizenship bill.
In 1947 a joint committee of the house and Senate, to which the Prime Minister has referred, examined the whole matter, and there was a very interesting debate in the house on the resolution setting up that committee. The present Prime Minister had this to say in that debate, as found at page 3150 of Hansard for May 16, 1947:
Declarations regarding freedom do not assure the practice of freedom; unless the right remains for the individual or the nation to have his or its rights established under law, they are but pious declarations.
For that and for other reasons, no doubt, he argued at that time that the proposed joint committee should seek the co-operation of representatives of the provinces so that, and I quote again from page 3152, "a comprehensive bill of rights might be evolved either by way of constitutional amendment or by statute." For that purpose, as he mentioned a few moments ago, he had himself drafted a bill for the proposed committee which would have provided, to use his own words, "the assurance to Canadians" of the basic freedoms which he enunciated. He made a very powerful speech on that occasion, and I should like to quote one more paragraph from it. As found on page 3158 the present Prime Minister said:
A declaration of a bill of rights in this country would be a positive declaration on the part of men and women of all political faiths in their belief in civil liberties. Whether the federal authority has the power or not to pass legislation respecting civil
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liberties, its passage would strengthen the hand of the Minister of Justice in the matter of the disallowance of any statute which would deny freedom anywhere in our country.
Well, Mr. Speaker, the joint committee met in 1947 and again in 1948 having, without very much success-I hope the Prime Minister will have more success between now and next session-attempted to secure opinions from the attorneys general of the provinces and the deans of the law schools on the matters before it. The provinces of Ontario, Quebec, Alberta, Manitoba and New Brunswick gave no opinion. British Columbia and Nova Scotia took the position that these matters fell mainly within provincial jurisdiction. Those deans of law schools who replied-I am not sure whether or not the Secretary of State for External Affairs was one at that time; perhaps he had advanced beyond that stage-in general expressed the opinion that the federal parliament's power was limited in this matter.
Before the joint committee the then deputy minister of justice, Mr. Varcoe, made the following interesting but very cautious statement, and I quote from his evidence to be found on page 32 of the proceedings of the committee:
You pass a declaration respecting those rights. What is that? It may be treated as a resolution of parliament, a mere declaration of the policy parliament would like everybody to adopt. It would be the equivalent, you might say, of a resolution of the two houses. I am talking of a bill of rights containing no penalty provisions and no sanctions-
That is true of this bill.
-but which is a mere declaration that individuals shall have those rights. No. 1, it may be treated merely as a resolution; No. 2, it may be said to be no statute at all because it does not produce any legal consequences. Not producing any legal consequences, you cannot tell whether it is under dominion legislation or not.
Mr. Varcoe went on to say:
When you have a division of legislative powers, you look at an act and you say, is it good or is it bad? It is good, depending upon the purpose and effect of the statute. If it has no effect and no legal purpose, then there is no way of testing whether it is good or bad.
I admit that this is a very careful approach to this problem. At that time the present Prime Minister did not approve of this cautious attitude to any great extent, and that is understandable because of his desire to get something done. In the debate in the House of Commons on April 11, 1948, the Prime Minister had this to say as found at page 2846 of Hansard:
Here we are a sovereign nation among the nations of the world and promising as a signatory of the United Nations to uphold fundamental freedoms as one of the principal prerequisites for the success of the United Nations; yet the minister's attitude-

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He was referring to the Liberal minister of justice.
-tonight raises a doubt whether Canada even internationally can do that which all the nations of the United Nations undertook to do when the charter was accepted.


John George Diefenbaker: I do not want to interrupt the hon. gentleman, but he has brought up something there that only he can answer. Having accepted the universal declaration of human rights in the United Nations which, I think I am right in saying, was submitted by most other democratic countries in the world to their respective legislatures, why was that declaration of human freedoms not submitted to the parliament of Canada?


Lester Bowles Pearson: Mr. Speaker, the declaration of human rights of the United Nations has been accepted by Canada.


John George Diefenbaker: No.


Lester Bowles Pearson: Yes, I think I am right that the declaration has been accepted. If I am wrong I will be corrected. It took some years, but I think it eventually was accepted by Canada. In any event, our hesitation in respect of this declaration, and I know something about this, arose from the fact that it included matters that were strictly within provincial jurisdiction. Therefore it could not be accepted with propriety by the Canadian delegation without having all of the provinces accept at least those parts of it which entrenched on provincial jurisdiction, and that was not done by all the provinces.
The declaration, however, is one thing. The United Nations bill of rights, which is still under discussion is something else. We made it very clear at the United Nations and I have no doubt that the present government is taking the same position that the bill could not be accepted in its present form because it would be unconstitutional for us. However to get back to the debate of 1948, on the following day, April 12, the present Prime Minister also had this to say as found at page 2856 of Hansard:
Some say that the right of the provinces to abrogate and interfere with the fundamental freedoms is inherent in the British North America Act, although the preamble to that act states that our constitution shall be similar to that of the United Kingdom. Those who contend that these rights rest in the provinces aver that we in this country must be a balkanized Canada whereby an individual may enjoy certain fundamental rights in one province while in another they may be denied. It is that question of legislative jurisdiction that I am asking the government of this country to submit to the supreme court.
This was in 1948.
If it is the law, then it denies to the individual that Canadian citizenship which should be the result of the measure introduced by the Prime Minister in 1944. To say that in one part of

Canada a Canadian may enjoy freedom of religion and of speech and of association, all those great and abiding freedoms, and that in another province a Canadian may not enjoy them, is a denial of the possibility that we shall ever build a United Canada on the basis of equality of the individual before the law in all parts of the country.
During this discussion in the House of Commons the present Prime Minister proposed the two steps I have mentioned, one of which was a reference to the supreme court to find out, if possible, what powers the parliament of Canada had in this field and, second, the setting up of a standing committee of the House of Commons on civil rights, together with a civil liberties division in the Department of Justice. Neither of these steps is proposed in the bill before us.
This joint committee reported in 1948. It produced a very interesting report which I should like to read, but I do not believe I shall take the time of the house to do so. Two years later, in 1950-the Prime Minister made a reference to this-the Senate appointed its own special committee on human rights and fundamental freedoms with Senator Roebuck, who has always taken a great interest in this field, as chairman. This committee took voluminous evidence and heard many representations. It then came to the conclusion that an effective bill could only be worked out with the provinces for incorporation within the constitution, but that as an interim measure a declaration should be adopted limited to those rights within the jurisdiction of the federal parliament. This was the view of the Senate committee at that time, and I take it that is the view embodied in the bill before us.
Then in the next year, 1951, Mr. Coldwell, following the consistent C.C.F. attitude on this matter, moved a resolution in this house which went further because it proposed to include in the Canadian constitution, by an amendment to the British North America Act, a declaration of human rights and liberties. The present Prime Minister, in the second session of that year when the house was discussing a bill to amend the Supreme Court Act, had this to say as recorded at page 1561 of Hansard for December 4, 1951. In again advocating the reference of a draft bill to the supreme court he said he did so to find out "what if any of the fundamental freedoms are within the jurisdiction of the federal parliament".
He brought the matter up again in 1952 with a draft bill which could be used for this purpose. Then, leaving out the intervening years when there was some discussion in the house but nothing new of significance, we find that in 1955 the present Prime Minister

again placed his draft bill before the house and requested that it should be submitted to the supreme court for an opinion on constitutionality. During that discussion, and I recall that debate, the then minister of justice, Mr. Garson, used these words:
The introduction of this deceptively simple but rather emotional issue into such a complex field creates a problem which ... 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-
Mr. Garson went on to say:
Now this feat . . . 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.
He said that this was involved in the issue before the house, the effect of this kind of action, whatever form it may take, upon provincial jurisdiction.
In dealing with the question of the reference to the supreme court, which used to occupy the attention of my right hon. friend, Mr. Garson said that when a question of constitutional interpretation comes before the court it usually comes in the form of a statute that has been passed. The idea Mr. Garson was expressing then was that the court should be asked to consider legislation which would deal with overt acts and not broad enunciations of desirable objectives; in other words, to consider a statute that dealt with the specific ways in which the various freedoms might be exercised or with acts which would be regarded as interference with those freedoms.
Then Mr. Garson went on to something else, and I should like to say a word about this because it seems to me to be a very important aspect of the whole question. He pointed out then what I should like to point out today, 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 itself. We have managed to achieve that position-I am not suggesting it cannot be improved upon-without any fundamental bill of rights. Mr. Garson asked himself the question, as I ask the house, why are these rights and freedoms secure? Of course there have been infringements of them. The Prime Minister has mentioned a few from 1945 onward, and perhaps I could mention a few from 1930 to 1935.
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John George Diefenbaker: I should like to hear them.


Lester Bowles Pearson: In Mr. Bennett's regime there were some things done by order in council to which my hon. friend might easily take exception. However, by and large, there is no country in the world in which human rights and freedoms are more secure than in our own. Mr. Garson attempted to answer the question why in this way:
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.
I am not suggesting that the position taken by the Minister of Justice at that time, in all its details, is the correct one. I am not suggesting that the position in regard to rights and liberties in this country is perfect. It certainly is not perfect in its federal or in its provincial aspects. But I am suggesting that by the method we have followed over the years we have built up in this country a respect for freedom, a respect for human rights, which is not exceeded in any other free country in the world today. So we have to look at any proposal bearing on this matter in the light of the experience we have had. We have to be very sure before we make a change that it is going to be an effective change, and a change in the right direction.
May I call it one o'clock?
At one o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at 2.30 p.m.
Lester Bowles Pearson: Before one o'clock, Mr. Speaker, I was attempting to deal with some of the legal and constitutional aspects of this question of civil rights and fundamental liberties, and to trace in a brief way the parliamentary discussions of this subject since 1945, discussions which showed how very complicated the question is, especially in a federal system, and how it is possible for one's ideas to develop and even change in the consideration of this matter.
Our basic constitutional structure in Canada that we have inherited from Great Britain is based on parliamentary sovereignty, the sovereignty of the legislatures within their own jurisdictions. A bill of rights can be passed by this house in the ordinary way, but if it is no part of our constitutional structure it can be repealed or amended any time parliament so desires. I am not underestimating the

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importance of the argument advanced by the Prime Minister, that the very existence of a bill of this kind, dealing as it does with such important matters, may give some assurance that it will not be interfered with by subsequent legislation. But parliament remains supreme in our system and in the power given to it in our federal constitution. Under our system-and I do not think we would wish to change it-there is no absolute protection against anything that a parliament or a legislature can do within its own jurisdiction.
Have we suffered from this situation in the past? Other countries with their written constitutions and their fundamental constitutional acts can and do talk a great deal about their fundamental rights not to be touched by ordinary legislative action and, if so touched, to be protected and restored by the courts. That is the theory behind their constitutions, and the theory of parliamentary sovereignty lies behind ours.
Certainly our parliamentary system is different. If parliament defines a civil right or an individual freedom today, it becomes law and he who violates it breaks the law. That is how we have built up our edifice of fundamental freedoms and human rights. By the same token parliament can redefine and restrict a right tomorrow. But this may seem to be a theoretical weakness. Who can say that a Canadian's rights without a bill of rights are not as well established or as well protected as those of a citizen of the United States in Alabama or in Arkansas, even with his constitutional guarantees?
The measure of our rights and liberties as Canadian citizens is the enlightenment, the tolerance and the good sense of our society as it expresses itself not only in laws and in administrative practices but in social behaviour, customs and conventions. A wise, mature and confident free society will be jealous and vigilant to ensure the rights of its citizens, even if there are no written constitutional guarantees for that specific purpose. A fearful or a subdued people under an arbitrary or reactionary government will have no rights to guarantee, no matter how many resounding bills it may pass or how many eloquent declarations it may make.
Mr. Speaker, I have heard at the United Nations, advocating human rights and fundamental freedoms with eloquence and vehemence, men who were representing states whose people were ground down by dictators or in one or two cases states which actually recognize slavery in their constitutions.
No, Mr. Speaker; rights and freedoms are not established or protected merely or primarily or often at all by proclamations of

beliefs or written constitutions, but by the slow, sure building of a sound and progressive social, political and economic structure of law, justice and understanding. That has been the British way and it has worked there; and on the whole it has worked with us too.
Not only do constitutional acts or bills of rights even in free democracies not always ensure the individual of the rights and freedoms which we consider to be fundamental; arbitrary and just administration can defeat even beneficent laws and weaken the protection they are supposed to give. Furthermore, legislatures themselves and their members, even under the law, can prejudice and even destroy an individual's rights, debase his dignity and weaken his security by arbitrary investigatory processes ostensibly for the purpose of securing facts and opinions on which to base good legislation.
We have witnessed across the border legislative investigations that have degenerated into circuses or persecutions or even witch hunts. We have seen efforts made to destroy men's reputations, to violate their rights by sensational charges based on the flimsiest and most hearsay evidence, without anything approaching due process of law. There have been sordid exposures of some of the worst aspects of our democratic processes where representatives of the people have tried to fix guilt by association or assertion, by innuendo or false evidence, on those who could not defend themselves. No bill of rights in our neighbouring country was able to save some of these men. But an aroused public could and did correct many of these excesses and abuses.


John George Diefenbaker: Did not the Supreme Court of the United States make some decisions?


Lester Bowles Pearson: Yes; the supreme court did make some decisions in the United States and the courts have stepped in; but they have stepped in sometimes after the damage has been done to the rights and dignity of the person affected. Neither the court nor the constitutional law of the country was able to prevent that injustice from being done or to prevent these rights from being violated. I mention this merely to indicate that a bill of rights, unless it is constitutionally guaranteed, cannot of itself prevent these abuses, nor is there any cause for Canadians to affect smugness or superiority in this matter or to pass by on the other side with an "it can't happen here" attitude.
The debasement of our legislative process which, if and when it occurs, is one way to deprive the citizen of his rights, can happen in any free country if we are not vigilant

and alert to prevent it. A parliamentary committee can become a threat to the dignity and value of this legislative process just as a congressional committee can; and no Canadian bill of rights here, any more than the bill of rights in the United States, even though hallowed by history, tradition and experience, could of itself provide a remedy. Therefore it is not only law, but it is prejudice, injustice, fear and misunderstanding which can be the greatest menaces to democratic rights and freedoms. Against these, and the bad or merely careless people who foster and exploit them, a bill of rights cannot save us. It can help, along with a vigilant public opinion and a free and independent judiciary, but it alone cannot save us. The remedy here lies in destroying prejudice and injustice, and in eliminating fear and misunderstanding. It is not enough to express an ideal in a bill, valuable as that may be; it has to be protected in practice. The rights and freedoms of a citizen must be in his heart, to be passionately desired and in his actions, to be deserved.
A venerable and great American, Judge Learned Hand, had this to say a few years ago in one of his essays:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.
This gentleman is still one of the greatest luminaries of the judicial system on the other side of the line. He continued as follows:
These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no court and no law can even do much to help it. But while it lies there it needs no constitution, no law, no court to save it.
I agree with the Prime Minister when he said this morning that the dangers to rights and freedom are always present. He quoted Professor Lower I believe twice this morning, and I wish to quote another paragraph, from Professor Lower's book The Spirit of our Institutions, as follows:
The conflict between liberty and order is never-ending and humanity oscillates between the two. Left to himself, the average man might show small concern for the common good, and anarchy would ensue. But it is equally true that, left to himself, the governor, be he civil servant, minister, or prince, would show small concern for the freedom of the average man, and despotism would ensue.
It is therefore today a wise instinct that causes us to sound the alarm that the individual's rights are in danger; it is a wise instinct that prompts us to seek ways of protecting them against the forces that would weaken them, against the growing demands and pressures of the state, and not only of the state but of the state within the state. This is a time of bigness but not always a
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time of greatness. It is an age of consolidation of smaller units into big ones in every sphere of human activity, of concentration of power and authority. Against this bigness, this power, whether exercised by government or outside of government, the individual, the little man of the cartoonist, is having a hard time to maintain, let alone to strengthen, his rights as a free man, to keep control over his own activities, indeed to retain even a sense of his own identity-so easily can he become lost in the complicated social and economic society of our time.
This, in a free society, is partly his own fault, and it is partly our fault. He has asked and we have asked for security along with freedom. Indeed he might say to himself, our little man, of what avail is freedom if it is only freedom to fight to survive in a jungle of competitive existence? While that may be true, it is surely utterly unrealistic to ask the government to do the things for the individual which he now considers essential in the interests of his social and economic security and, at the same time, to expect the government not to grow big and powerful in the process and not to interfere more and more with our normal activities. So, Mr. Speaker, we ourselves are responsible for many of the pressures on our independence and for much of the weakening of our individual rights.
When the demand of the citizen for security is stronger than his desire for liberty and rights, then we are in danger, and no bills or declarations or constitutional guarantees will save us. So let us not deceive ourselves. This bill of itself may not be able to do very much. It is limited. I am not quarrelling with that fact at the moment, but it is limited in more ways than constitutionally-


John George Diefenbaker: What does the hon. gentleman mean when he says it is limited in more ways than constitutionally?


Lester Bowles Pearson: I indicated this morning, Mr. Speaker, that by inclusion in the bill certain things are reserved to the federal parliament and by implication certain things are left to the provincial legislatures, and therefore by this kind of definition perhaps there may be a limitation which we do not have in mind at the present time. I am not putting this forward as a final conclusion but I do suggest, as I suggested at the beginning of my speech, that this bill will bear a great deal of examination, the kind of examination it is going to get between now and the next session, it has limitations, but this bill could do two things, and I think the Prime Minister mentioned them this morning; one, it could

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become a target and an objective. If I may quote Professor Lower again, he had this to say:
A bill of rights at least gives us a mark to shoot at. One recognizes, of course, that no document will preserve liberty if the people are indifferent to it. Still, crutches do help a lame man to walk.
I would not like anyone to draw the inference from that statement that we are lame men in this country so far as our recognition of rights and liberty is concerned, but I am sure we all understand what Professor Lower was getting at.
Whether the present bill is in all respects adequate or satisfactory for the purpose we have in mind is something on which no doubt we will be asked to express our opinions at the proper time; but I do agree, without any qualification, that we in this house should all co-operate to make this the best bill possible, one that will be worthy of the objective we all have in mind, one that will be received with acclaim and without controversy.
When we come to the detailed consideration of the measure next session we on this side will have some positive and, I hope, some constructive suggestions which may assist to this end. Suggestions were invited by the Prime Minister this morning. Second, a bill of rights submitted in this way, examined in this way, by the publicity it gets or by the publicity which is created for it, draws attention to the importance of the subject and prepares the way for the thorough and detailed consideration which must follow.
As a prelude to that consideration I have only three suggestions to make, one of which was put forward this morning by the Prime Minister on behalf of the government; first, that there should be the widest possible circulation of the bill to organizations which have shown an interest in this question and to individuals such as deans of law schools with requests for their views and comments; second, that there should be set up next session to consider this bill a joint committee of both houses with broad powers, including the power to summon witnesses; third, and this is something even more important that might be done, that we should try to secure the support and cooperation of the provinces for any Canadian action in this field. Indeed, as a result of consultation with the provinces it might be possible to widen the action so as to include both the federal government and provincial governments in a joint declaration on individual rights and freedoms. Then indeed we would have a powerful symbol.


John George Diefenbaker: What are the hon. gentleman's hopes in that direction, on the basis of his own experience?


Lester Bowles Pearson: I would not like to put my hopes either very high or very low, but I have learned over the years not to give up the search for an objective because it does not seem easily attainable, I am sure the Prime Minister has learned that too.


John George Diefenbaker: If we attain the same degree of success it will be all right.


Lester Bowles Pearson: So I suggest to the Prime Minister that the bill be submitted to the provinces for their comments, and that before the next session of parliament he should invite the provinces to consider whether their respective legislatures should not join with the federal parliament in a truly national declaration on human rights and fundamental freedoms.


John George Diefenbaker: Would the hon. gentleman allow a question? I am interested in the suggestion. If that course were followed and the reaction was unfavourable would the hon. gentleman not then feel that this was the proper course?


Lester Bowles Pearson: It might be, depending entirely on the results of the approaches that were made. I am suggesting now that approaches should be made. I am not suggesting that if those approaches did not result in favourable action, the results should be made public. But surely if we in this country want the kind of assurance with regard to rights and liberties in which the right hon. gentleman is interested and which, in the federal sphere, he has embodied in this bill, or so he feels; if we are going to have that on a national scale to cover all jurisdictions, then at some time or other this approach has to be made. I am putting forward the possibility, at least, of making that approach in connection with all the interest which will now be raised in this matter through the introduction of this bill. Between now and the next session of parliament consideration will be given to it by private organizations and individuals. Perhaps it is not too much to expect that the provinces will also give consideration now to this fundamental question in the light of the move that is being proposed by the federal government.
In conclusion may I just say that on behalf of my party I have been honoured and privileged to speak on this subject today. Liberalism with a small "1", working as it so often has through Liberal governments with a capital "L", stands for individual rights and freedoms. Its very name implies that. It has

always recognized, however, that with every right goes a responsibility and with every freedom an obligation.
For one hundred and fifty years, and in many countries, progress toward national freedom, social justice and political democracy has been associated with the eternal principles of liberalism. Here in Canada our party can take pride in its contribution to the realization of those principles in our national life and our national development. That contribution is on the record.
We have, I admit, been cautious over the years in relying more on concrete acts than on academic declarations. We have also, of course, recognized our own special problem of federalism in Canada in respect of rights and liberties, and we have on occasion had to reconcile the demands of individual liberty and national security in ways which did not please everybody. But on the whole I believe our record in this great work of protecting and advancing the rights and freedoms of our citizens has been good. We desire to keep it so, and that spirit will govern our consideration of this matter.


Hazen Robert Argue: Mr. Speaker, the C.C.F. party throughout the years has stood for a bill of rights guaranteeing basic human rights and fundamental freedoms. Our record on this question is clear and consistent, and as far as I know without blemish or mistake. Thus we are pleased to associate ourselves with any move that may mean progress toward that very desirable end.
Reference has been made to the many aspects of human rights and fundamental freedoms which are the subject of this bill; the right of the individual to the protection of the law without discrimination by reason of race, national origin, colour, religion or sex; freedom of religion, freedom of speech, freedom of assembly and of association, and freedom of the press. Those are the objectives or part of the objectives, of the measure; and to whatever extent this bill goes in guaranteeing those freedoms we give it our full support.
The march to freedom throughout the world is a difficult one. Along that road are many barriers and many heartbreaks, much tyranny and human suffering, but I believe that Canada together with the civilized- yes, with all the nations of the world-is moving in that direction.
If this bill of rights were as good as human ingenuity could make it; if it were as perfect as possible, the struggle for what it endeavours to guarantee would not be over. It is a continuing struggle, and if one read 57071-3-294
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nothing else to learn of that continuing struggle than the speeches of the present Prime Minister over the years, one would know of that struggle. It is a struggle which is going on in the Canadian House of Commons very day of this session; it is a struggle that comes about because of our division- and this is what we like in our free society -into different parties and into different, groups with different responsibilities and different powers. It is the duty of the opposition in a free parliament so to conduct itself as to assure to the greatest degree it can those human rights and fundamental freedoms of which we are now thinking.
There are perhaps two schools of thought on this question. One is that those freedoms can be the better guaranteed if they are written into a bill of rights or into our constitution in concrete terms. Then there is the other school of thought toward which the Leader of the Opposition seemed to lean, that such a bill perhaps is unnecessary, or that our freedoms are best guaranteed by a free parliament and a continuing free parliament, without going to the additional work of providing such guarantees in the constitution itself.
No matter which school one accepts, parliament itself must remain free. Of course the duty of maintaining that freedom rests to a very large degree on the governor in council. As the Prime Minister said this morning I know, because of his long experience in parliament, perhaps even because of his experience in the government, there is the temptation for the executive council to take the quick road and the short cut. Therefore it is the duty of all, including the governor in council, to keep this temptation in the background.
But there is also a duty, I suggest, which falls upon the private members on the government side of the house, and because the government has such a tremendous majority in this parliament that duty becomes all the more important. That duty is not always, without question, to accept the advice of anyone within that party, whether it be a member of the cabinet, the party whip or anyone else; but when occasion arises, when feelings and convictions are strong, party considerations should be left in the background. That applies to all members, I am sure, but I think the responsibility is heavier on the government members because of this particular situation.
This morning the Prime Minister, in painting the background, in reviewing the history of acts of government in the past showing that a bill of rights is necessary, went over a great many of the times the Liberal government had interfered with individual freedom.

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He could have included in that survey times when a Conservative government has interfered with individual freedoms.
I want to say, Mr. Speaker, that I find the position I have to fill today a very difficult one, not only because I am speaking after the Prime Minister and the Leader of the Opposition who have had a much greater training and longer experience in this field than I, but also because of the record of the leaders of the C.C.F. party in and out of the House of Commons in the past. It was the first leader of the C.C.F. party, Mr. J. S. Woodsworth, who himself became the victim of a government that interfered with his own fundamental rights as well as that of others. I refer to the experience of the Winnipeg strike in 1919, and the immediate passage at that time of amendments to the Criminal Code and the Immigration Act. The amendment to the Criminal Code, which later became known as section 98, remained until 1936. The amendment to the Immigration Act gave the government the power to deport a foreign-born citizen without recourse to the courts and a fair trial. These were two instances of a government which interfered with human rights and fundamental freedoms.
One could mention the interference by the R.C.M.P. in a peaceful meeting at Regina in 1935, which subsequently became known as the Regina riot. I was quite a young boy at that time. I was a country boy who felt it was a great event to be allowed to come to the city once or twice a year. I saw those unemployed men walking the streets looking for food, looking for jobs, with a sign on their backs, "On To Ottawa". When they gathered on the market square the R.C.M.P. were turned on them and a riot took place.
One could mention, as has already been mentioned, the Alberta press act, which endeavoured with little success, because of a reference to the supreme court, to interfere with the freedom of the press. One could also mention the interference that has taken place in recent years as far as the rights of members of Jehovah's witnesses are concerned. One could also mention the padlock law.
The Leader of the Opposition has said that Canada's record may be good. Undoubtedly it is good. Maybe it is second only to the record of the United Kingdom, but it is a record in which there is a good deal that none of us is proud of today. I know that all of us would seek to remove any discrimination against persons because of race, national origin, colour, religion or sex. I know it has grieved us all recently and at other times to learn of the discrimination
IMr. Argue.]
that has taken place in the great country to the south, discrimination in regard to the rights of citizens of that country because of their colour.
I was surprised and disturbed to see reports of race riots in the city of London, England. We know that Canada's record is not completely good in this regard, that there has been discrimination in this country because of colour. We saw on television a few nights ago coloured persons who came to Canada from the West Indies, who said they experienced certain discrimination in looking for places to live and in seeking employment in our country. In recent years, as the Prime Minister has said, Japanese Canadians have been deprived of their property, have been dispersed across this country and their rights have been interfered with.
There are many people who could make a contribution in the place I am today much better than I can. One person, the late J. S. Woodsworth, I have already mentioned. Another person is Angus Maclnnis, who sat in this house as member for the constituency of Vancouver East from 1930 to 1953, and from 1953 to 1957 as the member for Van-couver-Kingsway.
I do not know of anyone I have met who was more fearless or more consistent in his fight for human rights and fundamental freedoms. His was a voice in parliament against what was being done to the Japanese Canadians in the late years of the war and immediately after, a voice without fear even though many people in the province of British Columbia told him that it was a foolish and ridiculous stand for him to take from the point of view of his own political welfare. But without fear, yes, without concern for himself in a political sense, he fought against that discrimination, and I understand that he was recently honoured by the University of British Columbia conferring on him a doctorate of laws degree arising out of his great service to the Canadian nation, including his service in fighting for the fundamental rights and freedoms of all Canadians no matter the colour of their skin.
The Leader of the Opposition has said very fairly that a resolution was moved in the house in 1945 by the member at that time for the constituency of Winnipeg North, Mr. Alistair Stewart. The Prime Minister is on the records of the House of Commons in earlier years as advocating the same objective, but as far as I have been able to ascertain Mr. Stewart was the first member of parliament to present a resolution to the house on the question. This resolution, as set

forth in Hansard for the second session of 1945 at page 900, reads as follows:
That, in the opinion of this house, there should be incorporated in the constitution a bill of rights protecting minority rights, civil and religious liberties, freedom of speech and freedom of assembly; establishing equal treatment before the law of all citizens, irrespective of race, nationality or religious or political beliefs; and providing the necessary democratic powers to eliminate racial discrimination in all its forms.
This motion was dropped on the assurance of the then secretary of state, now the hon. member for Essex East (Mr. Martin), that some of the things Mr. Stewart had presented in his motion would be discussed and dealt with in a citizenship bill that was to follow. Similar motions were moved in the house by Mr. Stewart on many occasions. I think he set forth most vividly in a few words the meaning and purpose of a bill of rights. These words are contained in a speech he delivered in the house on May 16, 1947. As found at page 3161 of Hansard he said:
We realize that there are two paths ahead, either one of which we as free agents may choose to follow as we will. One path leads to heights of splendour yet undreamed of; the other to the darkness of hatred and strife. One leads to a realm where the human spirit will rise triumphant over the bigotries and persecutions of our age, where racial discrimination and intolerance of another's religious beliefs will be regarded as crimes against all mankind; where freedom of speech will be the inalienable right of every citizen; where men will no longer exploit their fellowmen for private gain; where every man will be the master of his soul. That is one path we can choose. The other path can lead only to that spiritual desolation to which our enemies would have consigned us.
I trust and believe that parliament and the people of Canada are choosing the first path. There has been a good deal of discussion of this question in the house and in the committee of the Senate, and certain suggestions have been made as to what course might be followed. In addition to the suggestions that have come from the Senate, one province of Canada has a comprehensive bill of rights- I refer to my own province of Saskatchewan -which is enacted to protect certain civil rights and which was assented to on April 1, 1947. The Saskatchewan bill of rights is comprehensive and is supported by all the people of Saskatchewan no matter what their political persuasion. It deals with these fundamental rights; the right to freedom of conscience, the right to free expression, the right to free association, the right to freedom from arbitrary imprisonment, the right to elections, the right to employment, the right to engage in occupations, the right to own and occupy property, the right of access to public places, the right to membership in professional and trade associations, the right 57071-3-294J
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to education-a rather complete act, and one which I think has served a very useful purpose.
I have said that the Senate inquired into the possibility and advisability of a bill of rights. In their report in 1950 they had this to say about a basic conception:
As a result of its inquiries, your committee is assured that there are a very large number of persons in Canada who are deeply interested in the subject of human rights and fundamental freedoms and that much thought has been devoted by our citizens to the subject. That every man, woman and child has rights is generally accepted as axiomatic and that such rights should be protected is a conviction as universally held.
Your committee also agrees with this view, holding that every human being irrespective of mere classifications on account of race, creed, sex, caste or colour, and other like distinctions has rights which flow from his divine creation. The brotherhood of man results from the fatherhood of God, and a fundamental equality among men necessarily follows. Such rights are not created by men, be they ever so numerous, for the benefit of other men, nor are they the gift of governments. They are above the power of men to create. They may be violated by men, but not with impunity. They should be recognized and every care should be taken to preserve them inviolate.
Professor Frank Scott, an eminent authority, appeared before the joint committee of the Senate and House of Commons on human rights on April 25, 1950. Professor Scott is head of the law faculty of McGill University. He is a recognized authority on the question, and we in the C.C.F. are proud of the fact that for many years he was national chairman of our movement. He is perfectly bilingual, and I know he has always in mind in all aspects the rights of the people of the province of Quebec as well as the rights of all other Canadians. He had this to say in part in his submission to that committee:
Despite these advantages in a federal bill of rights, I do not personally consider that it would be as valuable a protection for human rights and fundamental freedoms as a bill of rights written into the constitution itself by an amendment to the B.N.A. Act. This is where a bill of rights belongs, in the fundamental law of the land.
The superior advantages of this method of protection seem obvious. There is first of all no problem of dominion-provincial jurisdiction to consider; it is just as easy to enumerate rights under provincial as rights under federal authority, since ultimately the constitution must be amended to give the bill the force of law. All that need be decided is which rights we wish to safeguard. In selecting these, we have the great advantage of the international declaration of human rights to guide us, as well as the very helpful draft which was included in the terms of reference of this committee, and others that are available.
The committee seemed to be impressed with the submission by Professor Scott, in their report they suggest that the course he outlined should be followed. For a number of years in this house Mr. M. J. Coldwell moved a motion asking for a bill of rights in a

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certain form. I had the honour of placing this resolution on the order paper during this session as a private member's resolution. It was not possible, nor was it desirable, to have the motion moved in the light of the government's own legislation or proposed legislation in this regard.
This resolution, I believe, will be of interest to members of this house as well as to people who make a great study of this whole question. The resolution in part is as follows:
That in the opinion of this house, consideration should be given to the advisability of taking whatever steps are necessary to amend the British North America Act so as to include therein the following heading and sections:
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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 of habeas corpus or depriving any person of a fair trial or the right to be represented by counsel.
We have looked over this bill, and we can say that it is not as comprehensive as we had expected and is not drafted in the form we had desired. The C.C.F. stand over the years has been consistent. It is that the British North America Act itself should be amended. We believe that if that were done it would provide a stronger guarantee, a more certain guarantee, than a bill of rights which becomes part of our statute law.
We also feel that there is a very serious omission in this bill, in that there is no right to employment, there is no guarantee that in employing persons there will not be discrimination.


John George Diefenbaker: May I ask the hon. gentleman whether that is not a matter of provincial jurisdiction and legislative power?


Hazen Robert Argue: I do not think that is entirely so.


John George Diefenbaker: You have that in the Saskatchewan act to which reference was made.


Hazen Robert Argue: That is right, so the people of Saskatchewan will be fully protected in this regard, the one act being complementary to the other. We feel that it should be in this

act as well. It may be that in a federal act it is impossible to apply it in all respects. I am not certain about that, but I would think this principle itself should be in this act for the guidance of the federal government.
There have been events this session that have been disturbing. We think the practice of allowing a member of parliament, by making a recommendation to a minister, to have an employee fired is wrong. It is an abridgment of human rights and fundamental freedoms. I have never used the power that I apparently have to recommend that a certain person be fired, which would mean that this would automatically take place and I have no intention of ever using that power. I think it is a power that is given members of parliament that should not be used, that should be discontinued and should be outlawed. A person who is employed by the federal government should be protected in his employment against any member of parliament who may wish him fired for one reason or another.
We are looking forward, therefore, to improvements in the legislation that has been presented to this house. We hope that in the days ahead, in the next session of parliament, we shall have a discussion that will lead to a stronger, more comprehensive measure, a measure that is more likely to accomplish the objectives that have been set forth. We feel that clause 2 of part I of the bill has not been set out in such a way as to fully guarantee those rights.
As I have said, Mr. Speaker, a great many persons in the C.C.F. movement who have been in this House of Commons in years gone by no doubt could have done better at this time than I have done. However, I think the points I have made are consistent with the position that has been taken by the C.C.F. over the years. We put these forward as proposals that have received very careful and diligent consideration. We do not put them forward at this time as being the final considerations.
We feel that a committee dealing with this whole question should consider every suggestion that has been made in this debate, and after examining all these suggestions, after obtaining evidence from expert witnesses, after hearing from people in Canada who have made a comprehensive study of this question, that committee should bring forth a comprehensive bill of rights that will guarantee these fundamental rights and human freedoms to all Canadians.
It is for that reason, Mr. Speaker, that we support the outline that has been given of the procedure that will be followed in this connection.

Motion agreed to and bill read the first time.


Mr. Speaker:: Although it has been agreed that this bill will not be proceeded with at the present session it is necessary, in order to give it a place on the order paper that the house give an order as to its second reading. Normally it would be read at the next sitting of the house, so I shall put that question to wind up this procedure. When shall this bill be read a second time? Next sitting of the house?


Some hon. Members:: Agreed.



CUSTOMS ACT


[Stage Direction]
The house resumed, from Tuesday, September 2, consideration of the motion of Mr. Nowlan for the second reading of Bill No. C-51, to amend the Customs Act.
Mr. Speaker:: I must inform the house that if the minister speaks now he will close the debate.


Mr. Frank Howard (Skeena):: Mr. Speaker, there are one or two brief comments that I wish to make before the minister participates and concludes the debate on this particular bill. I should like to start my remarks off by making a specific reference to a specific industry, namely the textile industry which over the years has been injured and hurt by the dumping or the importation of goods which that industry can produce here in Canada. We know that the employees in the textile industry and the textile industry itself are quite concerned about and quite interested in the measures outlined in this particular bill. I think it has been fairly well shown by the comments of others-and the proof of this rests in past editions of Hansard-that the attitude in this regard of both the Liberal party and the Conservative party appears to be based upon who is in office and who is out of office. When the Tories were out of office we find references in Hansard to the fact that this type of legislation or similar legislation in years past was nothing but trampling on the rights of parliament, but when they are in office it is all right to participate further in such things and to extend these things of which they complained. I do not think that on one occasion in the years we have had such legislation and have had such comments about it, has this attitude changed. There has been no other attitude than that which I mentioned earlier, namely one based upon who is in office and who is out of office. The unfortunate thing is that there has been an
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unwillingness and probably an inability to come to grips with the basic problem that exists with respect to our imports and our exports.
In 1932 and 1933 when the C.C.F. was formed expression was given to this question of the controversy between the free traders and the protectionists. The general thought expressed was that that controversy was fast becoming obsolete. Twenty-five years later we still say that it is obsolete, and even more obsolete than it was when our organization was formed. We made suggestions in 1933. Those suggestions are even more applicable today than they were in those years. We suggested the establishment of import-export boards in order to enable us to make the best possible trading agreements with other countries. Naturally we, as are other countries, are obliged to rely on trade, either importing from or exporting to other countries. By the establishment of such import-export boards, by the study and the planning of requirements, we would be able to stop the exploitation of our primary producers and, in the final analysis, stop the exploitation of the consumers of Canada in this particular case.
While I mentioned textiles specifically at the start, there are other industries which have a like interest in this particular legislation. We submit that the bill itself or the extension of the things contained in the act at the moment which are objectionable will not help a great deal. They merely have the effect of aggravating and prolonging what is an antiquated system of dealing with our trade relationships with other countries in importing and exporting.
Over the years the C.C.F. has freely offered its proposals and its programs to governments in office and governments in the past have freely availed themselves of the things which we have proposed. Of course, in this regard our position is no different now from what it has been on other matters. We offer to the government free of charge this phase of the C.C.F. program. If the government will accept it and put it into effect we are sure that, as has happened with governments in the past that have accepted and put into effect our proposals, we shall be moving along the lines of ensuring to the greatest possible degree the things that we hope to ensure in this bill but which in effect we are not ensuring.


John George Diefenbaker: Would the hon. gentleman permit a question?


Frank Howard: Certainly.


John George Diefenbaker: 1 should like to have his views in respect of two telegrams which have

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come to me. One is from George Burt, Canadian director U.A.W. and it reads as follows:
Canadian U A.W. joins United Textile Workers (CLC) in urging passage of Bill C-51-
That is the bill which is before the house.
-preventing dumping of textiles on Canadian market. Dumping goes far beyond bounds of fair competition and government should protect textile industry and its workers from this practice.
Then there is one from J. Harold Daoust, Canadian director, textile workers of America which reads as follows:
Since 1951 our organization has been fighting for some anti-dumping regulations by the federal government. We feel that Bill C-51 is a step in the right direction. We urge you to do all in your power to see that this bill is passed.
Is the hon. gentleman in agreement with those telegrams?


Frank Howard: First, Mr. Speaker, may I say that I have not seen the wires.


Some hon. Members:: Oh, oh.


Frank Howard: If the Prime Minister and his lackeys on the other side will just take five minutes to listen I will give them my opinions. You will recall that from the outset I pointed out that the textile industry-


Mr. Speaker:: I think that the hon. member is transgressing the proprieties of the house in calling members of the house lackeys of the Prime Minister. I would ask him whether he could modify that statement.


Frank Howard: I will not make any caustic comments as to whom they are lackeys of, Mr. Speaker, but I will withdraw the comment.
You will recall that from the outset I mentioned the textile industry and pointed out that so far as we are concerned the solution to this problem is the establishment, as I said earlier, of import-export boards in order that we can get the best possible trade relationships with other countries, something which we shall not be able to get so long as this legislation continues to be changed as it has been changed both by the party in office in years past and by the Liberals when they were in office.


Hazen Robert Argue: Mr. Speaker, just before the minister speaks and closes the debate I would like to make a few comments. We in this group have opposed this bill in this debate because we feel that the principle within the bill, namely that of giving this kind of arbitrary power to the governor in council, is a mistaken one. We feel that this bill in its present form will not assist Canada economically. We feel that it is a throwback to the restrictive practices that have been followed by previous governments and by

other Conservative governments. If we felt that this bill would solve the problem of unemployment, we would vote for it. However, we do not believe that this bill will solve the problem of unemployment; and we do not think that with the arbitrary powers it contains and in the light of the past records of Conservative governments, it will be of any material help in that regard. The net effect of the bill, we believe, does not warrant our support of it.
I spoke on the customs tariff bill in this session. At that time I placed on the record the C.C.F. program which we had developed, after very careful consideration, in the interests of depressed industries in this country. At that time I outlined a number of industries facing difficulty, including textiles and certain things which should be done to help them.
We believe that in the field of international trade there needs to be economic planning; we believe that the system of tariffs as such is fallen into disuse as an adequate instrument in our economy to maintain full employment; we believe that planning of our production at home and planning of our imports by contracts between nations concerned with trade, by quotas and even exclusive quotas under certain conditions and for certain periods, are much more scientific and are in the real interests of employees in textiles and other industries and therefore are much more in the interests of the working people of Canada than is the present bill under consideration.
We believe that this bill is not going to solve the problems of any Canadian industry. We do not think it is going to result in the unemployed in the textile industry being sent back to work; we think other much more fundamental measures must be taken.
We oppose dumping of goods into Canada by any country and we think there should be legislation to deal with such dumping. We do suggest however that the kind of legislation set forth in this bill is not likely to be used, certainly not exclusively, in order to deal with dumping but is more likely to be used in a mischievous way to protect Canadian industrialists and manufacturers against any kind of competition on the excuse that the competition which they must meet involves dumping and therefore, on second reading, we in this group must vote against the bill.


John Whitney Pickersgill: I had not intended to speak until the Prime Minister (Mr. Diefenbaker) intervened in this debate to read telegrams from two trade union leaders. However, representing as I do a constituency of primary producers who have to sell everything they produce which is not consumed right at home on the

world market at world prices, I should like to make quite clear my personal attitude which is, I believe, the attitude of the Leader of the Opposition (Mr. Pearson) and this party generally with respect to this measure.
In 1904 Mr. Fielding introduced dumping legislation-the true dumping legislation- which has become the pattern for the whole world. The Liberal party has always stood for genuine anti-dumping legislation and has always supported it. It is our belief that because of that genuine anti-dumping legislation it has been possible when there have been Liberal governments in Canada and, curiously enough, only when there have been Liberal governments in Canada, to have expanding trade and with it expanding employment. On every occasion on which we have had a Tory government in this country since 1904 there has, in one way or another, been an attempt to restrict trade under the guise of anti-dumping legislation but it is not anti-dumping legislation at all, it is legislation, as Mr. Ralston put it in 1930, designed to keep cheap goods out of this country.


John George Diefenbaker: Would the hon. gentleman permit a question? Why was it that the government of which he was a member waited until three days after the election, namely on June 13, 1957, to bring in the order in council respecting strawberries?


John Whitney Pickersgill: The Prime Minister is
tempting me more than I have ever been tempted before to betray the secrets of the cabinet.


Some hon. Members:: Oh, oh.


John Whitney Pickersgill: But I will leave that-


John George Diefenbaker: That is a sham now.


Edmund Davie Fulton: What was the policy? That is all we ask.


An hon. Member:: We would not want you to commit yourself like that.


John Whitney Pickersgill: No, I know hon. members opposite would not want me to commit myself like that.


Edmund Davie Fulton: What was the policy, that is all we are asking.


John Whitney Pickersgill: Perhaps the minister would allow me to finish my sentence and then I will be delighted to deal with his.


Edmund Davie Fulton: I did not know you had started one.


John Whitney Pickersgill: The Prime Minister may not have learned, but the Minister of Justice (Mr. Fulton) has certainly already learned that there is such a thing as collective responsibility. I think we made a mistake in doing what we did about strawberries.
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Some hon. Members:: Oh, oh.


John Whitney Pickersgill: In saying that I am speaking only for myself.


John George Diefenbaker: Oh, oh.


John Whitney Pickersgill: Of course I am speaking only for myself-that is the only proper constitutional position to take. I could go on and say a little more-I do not think that was the only mistake made by the administration of which I was a member.


Some hon. Members:: Hear, hear.


John Whitney Pickersgill: I would go even further than that-I have never claimed to be infallible and I think I made some mistakes myself when I was a minister.


Some hon. Members:: Hear, hear.


John Whitney Pickersgill: But because after the election there was one deviation from a policy which had otherwise been pretty consistently pursued over the years-


John George Diefenbaker: Is that the only one?


John Whitney Pickersgill: -it does not seem to me that the deviation is the important thing.


John George Diefenbaker: Was that the only time?


Lester Bowles Pearson: Deviation has become the rule under this government.


John George Diefenbaker: Is that the only time?


John Whitney Pickersgill: No, it is not the only time that anti-dumping legislation was used. It has been used quite consistently during the years and it is true that because of changed technological conditions the government of which I was a member did, I believe in 1955, bring in an amendment to the Customs Act to provide an addition to the set of rules of the anti-dumping legislation to deal with certain end of the run goods in the textile field and to deal with a technological problem which did not exist in 1904, which perhaps was not a very serious problem even as late as 1935.
What we are protesting in respect of this legislation is not anti-dumping but the arbitrary features of this legislation;-firstly the violation of the right of parliament and not the minister or the government to tax and, secondly, the violation of GATT and of our other international trade obligations and of the desirable policy of expanding trade by reducing trade barriers which over the years has always given us prosperity when followed and when departed from has always at least coincided with the disappearance of prosperity. It is for those reasons that no matter how eminent or how influential the supporters of this legislation outside the house may be, it seems to me that we have

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a duty inside this house to exercise our own judgment, uninfluenced by pressures from outside, as to what is best for the country as a whole.
There can be no question that no advantage will accrue to any industry from these changes in legislation unless it has the effect of keeping out goods from other countries. That is its purpose, that is its design. If that were not its design it would not be before us at all. In a country which depends for the income of one-third of its people on selling goods abroad-and I say that, representing as I do a province which depends for, I suppose, about 80 to 90 per cent of its income on selling its products outside of Canada-it is impossible for me to conceive that Canada, at a time when the United States has been giving an example of maintaining the policy of reciprocal trade agreements about which we were very worried, and at any rate holding the line in the right direction, that this country which has so much bigger stakes in foreign trade than has the United States should be moving in the opposite direction.
While it may be true that certain individual interests would for a brief period gain some small temporary advantage from these trade barriers it does seem to me that by the discouragement of trade, direct and indirect, which is bound to result from this legislation it will be bad for this country as a whole and in the long run bad for those also who would get a temporary immediate advantage.


Mr. Speaker:: May I repeat for the information of the house that the minister will now close the debate.


Hon. George C. Nowlan (Minister of National Revenue):: Mr. Speaker, I am glad to have the opportunity to bring the debate, or at least this stage of the debate, to a conclusion after numerous and sundry delays. I wish there were more time in which to deal with this matter in the way in which I would, perhaps, have dealt with it if the temper of the house was such as to permit it. I should like to deal specifically with some of the arguments which were advanced from the other side of the house, particularly by the Leader of the Opposition (Mr. Pearson) but I do not think hon. members will expect me to go into too great detail or to speak for too long on this occasion.
This is a difficult bill on which to speak on second reading, as the Leader of the Opposition discovered, because it does refer to various clauses to which one has to refer in order to deal with the bill as a whole, and without violating the rule of the house and speaking as if we were in committee, we still have to refer to the clauses

as the Leader of the Opposition did. I will follow that precedent because otherwise it is impossible to deal with this subject adequately.
It has been an interesting debate and rather a surprising one. I have heard so many things said about the Customs Act and about customs duties which bear no relation to fact whatsoever that I began to wonder whether we were debating the Customs Act or whether we were debating something in a field entirely foreign to that measure.
The Leader of the Opposition, of course, took a very pessimistic view of this bill. He foresaw the death of responsible government, the transference of power from parliament to the executive and, what is even worse, he saw power being exercised by a bureaucracy. Altogether this bill was going to have fatal consequences. The hon. gentleman also referred to section 38, to which the Prime Minister referred a few moments ago and he suggested that section 38 was, perhaps, wrong; that perhaps the Liberal party had been in error in leaving it on the statute books all these years. However, he told the house even if they did leave it on the statute books they never used it once after they came into power in 1935 until June, 1957. That, Mr. Speaker, raises an interesting question in political morality-whether it was right to have introduced it if the hon. gentleman can boast that he never used it until his party was on the way out. But that is something which the Leader of the Opposition can deal with.
Actually it was a speech full of forebodings. It reminded me of his speech on the C.B.C. prophesying doom and extinction. Now we have talk about the doom of the Canadian export industry and about the doom and extinction of the Canadian parliament as well. It seems as though the hon. gentleman is suffering from a psychosis of some kind. I suppose that if he were to visit a psychiatrist about it his trouble would be diagnosed as acute depression and melancholia following two shocks received one on June 10, 1957 and one on March 31 of this year. I suggest that the hon. gentleman and some of his friends should go to a psychiatrist. We hope this session will conclude in a few hours, perhaps, and I hope that as a result of the rest and leisure which will be available to them in the next few months they may recover some mental equilibrium and come back in January or February with a more optimistic outlook on life.


John Whitney Pickersgill: Would you like to see us even more cheerful?


George Clyde Nowlan: Yes. I suggest there would be a moral connotation in the statement made

by the Leader of the Opposition with regard to never having used section 38 if it were not for the fact that it is absolutely inaccurate and wrong historically and not in accordance with the facts or the record of the situation. I am advised by my officials that section 38 as it stands in the statute book, and to which the Leader of the Opposition referred the other day as never having been used by the Liberals from 1935 until June 13, 1957, is the same as section 43 before the act was revised in 1952, and I have here in front of me various orders in council which were passed by the Liberal government under section 43 during the years between 1935 and 1953. I am not going to deal with them all. Incidentally I must thank the hon. member for Ottawa West (Mr. Mcllraith) for this because he asked during the discussion of the estimates, as hon. members will recall, whether we had a record of these orders in council. I told him we had not, but I became interested in this matter and instituted a search as a result of which we have found some of the documents. There are undoubtedly many others which we have not found.
I have one here which, I think, will be of interest to the house. This order was passed on January 29, 1937, just before the coronation of Their Majesties King George V and Queen Elizabeth, an occasion on which all Canadians desired, of course, to exhibit their patriotism and plan various celebrations in connection with that auspicious event. The Liberal government of that day decided that it was not right that this great flow of international trade about which we have heard so much should be exercised by Canadian boys and girls who wanted to buy Union Jacks and pictures of the King and Queen at the time of the coronation. So they had an order in council passed pursuant to section 43 of the Customs Act with reference to coronation souvenirs and such articles as the pictures of any members of the royal family, the royal cypher, the royal coat of arms, the royal emblem, escutcheon, badge, crest, armourial bearings or insignia, any article or building connected with the coronation or any flag of any country within the British commonwealth, and providing that the value for duty of such articles should be increased by 100 per cent. The reference number of the order under which that was done is 192/157.


Lester Bowles Pearson: Perhaps that was Japanese dumping to take advantage of the coronation.


George Clyde Nowlan: I am not questioning the morality of this decision or the correctness of the practice. The Liberal government of that day undoubtedly said that they should 57071-3-295
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give some protection to Canadian manufacturers, though now we are told that protection to Canadian manufacturers is of no value at all.
And then later on, on May 6, 1939, you will remember, sir, that the King and Queen were coming to Canada, and the men and women of this country from the Atlantic to the Pacific wanted to stand in the streets and wave to them, wave flags and greet them in the way all patriotic Canadian subjects would wish to do. But the Liberals passed another order in council under which they similarly kept out, in the same language as that to which I referred a moment ago, any pictures of the King and Queen, any armourial bearings, and anything of that nature including any flag of any country within the British commonwealth. Can you imagine, Mr. Speaker, little Johnny who wants to go to the side of the street and wave a flag with the Union Jack on it, or the Canadian Ensign, whatever it might be, as the King and Queen passed by, having to be told: those wicked Tories, that Tory Jack Pickersgill and that Tory Mackenzie King; all those Tories have made flags so expensive that I cannot buy one for you, you have to stand up at the side of the street and just wave your bare hands.


Lester Bowles Pearson: Japanese Union Jacks.


George Clyde Nowlan: I have numerous and divers others here, Mr. Speaker. Here is one dealing with bedspreads, counterpanes, made of artificial silk and cotton. I understand these are not the most expensive counterpanes in the world. Artificial silk and cotton counterpanes, I am told, are fairly cheap ones, the kind that members of parliament and cabinet ministers have to buy because they cannot afford to buy any others. This one is dated January 16, 1939. What it did, Mr. Speaker, was to put a fixed value of 32 cents a pound on that material coming into Canada at that time.


Edmund Davie Fulton: By order in council.


George Clyde Nowlan: These are orders in council followed by customs directives. We then come to cheap towels, a combination of terry and cotton, 34 cents a pound if they are 20 inches in width. If they are less than 20 inches they pay more, they pay 39 cents a pound.
There is something here, Mr. Speaker, that even a Tory government would not do. This deals with rayon and cotton ribbons for women's hats, under millinery. I do not think those are imported today. But in those days, and this was in June, 1939, the value of ribbons coming into Canada to decorate women's hats was increased. They put a

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value of $1.50 a pound on them, and I suspect there were very few ribbons brought in for those hats.
I want to put the record straight. After the end of 1939 very few of those orders were passed. At that time the war came along and the depressed condition which existed in this country during the so-called Bennett depression continued up until the outbreak of the war in 1939. When the war came along we changed into a war economy and those regulations and orders in council appeared to cease because there were no more of them. There was the strawberry one to which the Leader of the Opposition referred the other day. He said the only one was passed on the 21st day of March, 1949, which was after he and I came to this house, both of us having come in December, 1948. We increased the value of knitted woollen gloves, depending on their size and on the quantity of wool, from $4.22 a dozen to $5.95 a dozen.


Lester Bowles Pearson: Before the minister leaves that, would he permit me to say I did say only after June, 1958, and I was wrong. I had intended to apologize to him when I got up to speak on the first clause of the bill, but I would like to tell him now that before making the statement I did phone an official of the government concerned in the matter and I got the information from him. After I made my statement he phoned and said that he had given me the wrong information.


John George Diefenbaker: I thought you had the
same information as one well-known newspaper.


George Clyde Nowlan: No one would ever suggest that the Leader of the Opposition would misstate anything or mislead the house in any way, shape or form. I was surprised to know that the Leader of the Opposition got this information from an official of the department. I saw it put out in black and white in another journal, the sort of family bible with which the Leader of the Opposition communes, and I assumed he got it from that.


Lester Bowles Pearson: The minister will take my word that I did get in touch with an official of the government who is an expert in tariff matters and I did get the information from him, and later when he realized what I had said perhaps he looked it up again. He learned it was wrong, as I did.


John George Diefenbaker: Favourite newspaper.


Lester Bowles Pearson: Favourite newspaper has nothing to do with it.


John Whitney Pickersgill: Last week it was the
minister's favourite newspaper.


George Clyde Nowlan: I saw it spelled out in black and white and I wondered, of course. There

were so many errors in those editorials I wondered whether perhaps the Leader of the Opposition had not made a mistake, which he had.


Edmund Davie Fulton: What paper?


John Whitney Pickersgill: The paper the minister quoted with approval on broadcasting.


George Clyde Nowlan: Not the newspaper I happen to read once in a while.


John Whitney Pickersgill: The minister did not quote the Ottawa Journal.


George Clyde Nowlan: Mr. Speaker, the Leader of the Opposition says that the fundamental principles of valuation have gone in this bill and for those old principles there is to be substituted executive action, bureaucratic administrative control. I want to say as positively as I can, Mr. Speaker, that the Leader of the Opposition is just as wrong in that analysis as he was in the statement with respect to the use of section 38 between 1935 and 1953. No one knows better than the Leader of the Opposition and myself how technical this matter is. You cannot deal with it in the house in such a way, I think, as to make it too obvious or too apparent just what arguments there may be. I am the first to admit that the subject is so technical that I cannot always appreciate it, and I have to be governed by information and advice which I get-and which I get naturally-from officials of whom this house well knows.
But the fundamental principle, as the Leader of the Opposition will admit, has always been the fair market value in the country of origin. This has been the principle under which tariff administration has been carried on in this country with such departures as may have been brought about under Bennett or Mackenzie King, or whoever it may be. This has been the fundamental principle. I think we can agree on that.
How is that fundamental principle established? There are two subprinciples to start with. In the first place, is it like goods; is it goods which are like the goods sold in the country of origin? If so, that value applies to them. That principle is maintained in this bill, Mr. Speaker. That principle is set forth in section 36 of this bill. It is true that there is a slight change in wording; it is true that there have been some administrative practices which have been going on throughout the years which have been codified and put into subsections, of section 36. Generally speaking, section 36 deals entirely and only with values of like goods. I say, Mr. Speaker, there has been no departure from the preceding practice or the existing law whatever in so far as section 36 is concerned.

We come to section 37. What is the situation there? We get similar goods, and that creates a much more difficult problem. Like goods, by custom practice and by custom law, means exactly like goods. There is no deviation whatsoever-there are some very minor ones such as difference in colour, perhaps, in textiles or something of that kind-but we have the words "like goods" accepted. They have to be like goods. The word "like" is spelled with a capital "L" to use a slang expression.
Then we come to similar goods, and the preceding government of which the hon. member was a member at one time shifted from similar goods to equivalent goods. Then, in 1955, they came back to the expression "similar goods". There again you run into great difficulties in interpretation. The words "similar goods" are not spelled with capitals all the way through. It means very similar, and you cannot follow that principle too far. Let me give one simple illustration. Fluid containers may have a different size in the United States from what they have in Canada. You may get a 12 ounce container in one country and a 10 ounce in the other. Are these similar or not? The product is similar; the container is similar whether it carries carrots or lima beans, but the size of the container is different. For customs administration you can say, what are two ounces? The importer may be getting a break, or he may be paying more because he is paying on the value of similar goods in the United States. Can you carry that to 15 ounces; can you carry it to 20 ounces? Of course, you cannot. You can only follow that "similar goods" principle in a very narrow line up or down when it comes to size. I use that simple illustration, but there are scores of others which could be used. Therefore, you cannot carry the "similar goods" practices too far and in the end you are driven to something else. The preceding government was driven to the use of subsection 6 of section 35 of the old act.
That was used by the preceding government and is being used today. When you look at subsection 6 of section 35 what do you find?
When the value for duty cannot be determined under the preceding subsections for the reason that
(a)	like or similar goods are not sold for use or consumption in the country of export, or
(b)	there is no established market in the country of export for like or similar goods,
the value for duty of the goods shall be such value as the minister determines.
That is, if you like, administration by bureaucracy but that has been the administration which has gone on and is going on under Nowlan at the moment, which went on under McCann, which went on under Ilsley and which has gone on under every minister of 57071-3-2951
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national revenue since there has been a Department of National Revenue. Apparently hon. gentlemen opposite did not realize perhaps any more than I did, certainly any more than I did a few months ago, how the Customs Act has to be administered and the departmental practices which have to be worked out and which have been worked out and that instead of trying to make them more rigid and more embracing in this bill we are trying to codify them in accordance with the law that has been laid down by the courts. We have adopted the formulas and have made them more flexible than the practices are up to this minute because this bill has not yet been passed.


Mr. Crestohl:: Will the minister allow a question on this very point? Was not the matter of similar quantities also one of the yardsticks in gauging the fair market value previously?


George Clyde Nowlan: That question can be dealt with when we come to the clauses but that is true. You had to determine quantities and qualities and various other matters. As I have said, it was a very difficult thing and is today to apply the similar principle except on a fairly narrow front, shall we say, because they can only be similar when they are not too dissimilar. I also want to say that over 75 per cent of all Canadian imports, so I am told, will come in under the provisions of sections 36 or 37 of the bill, so when we hear of these great departures which are taking place I think they have to be related to the facts of the case and to the practices which have gone on.
The Leader of the Opposition also pointed out the other day how the principle of fair market value could be destroyed. I am not reading from Hansard now but I made notes which I think are correct. He said that section 38 of the bill could abrogate sections 36 and 37, the fair market value. Section 38 deals with certain specific goods and descriptions of them for manufacturing purposes and so on. I am told that never at any time under any administration have the goods described in section 38 been valued under the provisions of either section 36 or section 37. They have always been recognized to be a class by themselves and have been dealt with by administrative practices such as you find set forth in section 38.


Lester Bowles Pearson: That is a new section.


George Clyde Nowlan: That is the section which is bringing in the practices and I prefer to discuss it in detail when we are on the clauses. It is not exactly a new section because you will find-

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Lester Bowles Pearson: Section 38 (a) is not new but section 38 (b) is new.


George Clyde Nowlan: It is similar to subsection 7 of section 35. That is one which would apply to it, and there are others. It is a combination of two or three where these practices have been carried out in the past and they have now been brought under section 38 for better administration and in accordance with the decisions which have been handed down, as I said the other day in my opening statement. So much for 36, 37 and 38, which I again say simply codify what has been done in the past. They do not create any additional bureaucratic practices whatsoever but place safeguards and limitations on practices which have been carried on, as I will attempt to show when we get to the committee stage.
We come now to section 39 which is the one new section in the bill, and it is one which undoubtedly involves a change of principle from what has been done during the last few years. We heard a great deal the other day about the Bennett buggy and the shades of Bennett were dragged forth from the tomb. It was suggested that perhaps those of us on this side of the house were a reincarnation of Bennett in attempting to bring this section back into being. We have been told about the evils and the wrongs which are done in trying to impose a valuation including cost plus. What does the section do? All it says is that in computing the value for duty you shall take the cost of production, which is clearly defined in the act as being the actual cost, plus a reasonable mark-up for gross profit, and the formula for arriving at gross profit is set forth in the bill before us. Therefore everything is done according to the code, according to the rules, instead of being done haphazardly as heretofore.
But this was not Bennett. We have heard a great deal about the purity of the Liberal government and with that I will not quarrel at the moment because this reinforces the argument. The same provision as found in section 39 of the bill was in the Customs Act of Canada when Mr. Mackenzie King came into power in 1935 and he kept it there until 1948 when GATT was introduced. This is not Bennett; this is Chevrier. This is not our friend from Bonavista-Twillingate. He was in the closet writing the speeches but he was not actually in the cabinet himself. The Leader of the Opposition was not even in the closet but he was not far removed. They talk about Bennett but the section which was taken out of the act in 1948 was more rigorous, more inflexible and more onerous. The Leader of the Opposition smiles.


Lester Bowles Pearson: We will come to that when we get into committee.


George Clyde Nowlan: I should like to because I will deal with it there. This section is not nearly as stringent as that which was in the act up to 1948.


Lester Bowles Pearson: Could I ask the minister a question? Will he not agree that in this section the British preferential qualification has been taken out?


George Clyde Nowlan: That is right.


Lester Bowles Pearson: Does that make it less or more onerous?


George Clyde Nowlan: The British preferential
qualification is taken out, although there is another section which still maintains it, but the section is more consistent with GATT. They prate and bray so much about GATT. If this act is going to be brought in, if we are evolving a new principle so far as tariffs are concerned, then certainly we cannot show discrimination, and it is drafted in that way.


Lester Bowles Pearson: I do not want to interrupt the minister but will he permit me to ask this question? If he has taken it out in this section because of GATT, why does he leave it in another section?


George Clyde Nowlan: I will deal with GATT when we are in committee. All I am saying, and I say it again, is that this section is not as onerous as the section which the magnificent, free trade, fair trade, international trade loving government, with which hon. members opposite were associated, had in the act from 1935 to 1948. All we are doing is restoring the principle which they took out because, rightly or wrongly, they apparently thought it was a violation of GATT. It was not because they were dissatisfied with the section. Not at all. It was not because of any great love for free trade or anything of that kind. It was because they believed, and we now believe they were misinformed, that it might be a violation of GATT.
I am certain that it is not a violation of GATT. I am advised that it is not a violation of GATT and we are restoring it. What is wrong with that? GATT is based on ordinary trading conditions. You will find that referred to all through GATT.


Mr. Speaker:: Order. Perhaps the minister is overlooking the fact that we disposed of the amendment dealing with GATT and, strictly speaking, I think it would be contrary to the rules to discuss that now. However, if the house is quite content to hear the minister, very well, although he had the opportunity to speak at that time, I believe.


Lester Bowles Pearson: I hope the minister will be allowed to deal with this point because I think it would be helpful to hear what he has to say from the point of view of our discussions when we get into committee. I would suggest that he be allowed to continue to talk about it.


Mr. Speaker:: If the house wishes; I just point out what I consider to be the correct position according to the rules.


George Clyde Nowlan: I am not pressing GATT any further at the moment because it is not necessary. I simply say that that is why it was taken out in 1948 and we are putting it back again today. Why are we doing this? We are doing it because we believe in ordinary trading practices, we believe in fair market values. I ask you, Mr. Speaker, how can you have a fair market value which does not represent cost-plus? How many people can carry on business if they are selling goods below the cost of production? I heard my hon. friend over there laugh. I wonder if he thinks business can be carried on in that way? What happens to a firm that does? They go out of business very quickly. They will go into bankruptcy. As a result of the chaotic market conditions in some countries, as a result of the breakdown of the distribution system, the wholesaling system and so on, we have a complete breakdown of the distribution of some goods and in order to dispose of inventories as quickly as possible, some industries will sell goods below the cost of production and a reasonable mark-up for profit. No industry can survive under those conditions, and employers cannot continue to give employment if they are to carry on under those circumstances. It is for that reason-


Leon David Crestohl: Will the minister allow a question? The minister seems to make so much of that cost-plus, and he is quite right, but he has not cleared up as to whether it is cost-plus in the country of manufacture or in Canada. There could be a very serious difference when you think of cost-plus in Japan, for example.


George Clyde Nowlan: Oh, I quite realize that, and I think that could be very easily explained when we are in the committee stage. I did not think there was any misunderstanding on that score, but if there is we want to clear it up.
That is what this bill does, Mr. Speaker. The only new thing in the bill-as I said, everything else is simplification and this should be pointed out-is section 39. It should be pointed out also that under the section which was removed in 1948 there was no appeal; there was an arbitrary decision
Customs Act
and there was no appeal from it. Today, under this section, there is an appeal, as there is in connection with practically every decision which has to be made here. I think it can be successfully argued that if you accept at all the principle of having fair market value under ordinary trading conditions, then you have to accept the principle that something should be produced on the basis of cost plus a reasonable profit. If you do that, then that is exactly what this government is doing by section 39.
There was one hon. member somewhere, I think it was the leader of the C.C.F. party, who referred to the manufacturers and industrialists who are going to benefit and profit by this measure. I, at least, appreciate the fact that the official opposition did not drag in the knights of St. James street or the barons of Bay street the way they used to do. We were told a few years ago that this legislation was for the benefit of the great Tory financiers who were in control of industry in this country, and who had the Conservative party under their thumbs. The opposition carefully steered away from this because they know it is not at the behest of any Tory manufacturer that this is being done, although many will appropriate it and would like to see it done.


John Whitney Pickersgill: The minister had better beware because I have a speech of Ian Mackenzie's here.


George Clyde Nowlan: Yes, Ian Mackenzie was a member of the government which invoked this order in council, I must not forget that, and of the party which kept the section in until 1948.
This legislation is not being introduced as a cure-all for unemployment. You cannot correct unemployment merely by putting up the tariff because there are many other factors involved. However, I think it will assist in dealing with unemployment, and it will prevent the spread of unemployment in many industries which today are facing disaster. Its effects will be beneficial on the general economy of this country if it is administered in accordance with the general principles laid down in this bill. Let us please not go back into history. We can both point fingers. I am willing to admit that in the thirties somebody may have said, "We need customs tariff protection", and they said. "How much do you need?" and a sum was just pulled out of the air and put in the Customs Tariff. It has happened under both governments.
These are the people who are asking for this bill today. I do not subscribe to pressure groups, but I can almost scent one here because of the number of telegrams I have

Customs Act
received within the last 48 hours from groups of employees. They come from places like Woodstock, Hamilton and Cornwall. Some messages refer to 400 people out of work, and some refer to 200. None of these telegrams come from capitalists. They are from the secretary or the president of a labour union, largely in the textile industry but in other industries as well. Here is one from Hamilton again and another from Cornwall. Altogether, I just checked it roughly, these are telegrams and messages from organizations representing employees who are on part-time or out of work in a depressed industry, and there are over a dozen of them.


John Whitney Pickersgill: Has the minister a telegram from the Newfoundland federation of fishermen?


George Clyde Nowlan: I have not, but I am quite sure that if the Newfoundland fishermen are as intelligent as the Nova Scotia fishermen, and I am quite sure they are, they will welcome legislation such as this. The Canadian Labour Congress represents a very wide classification, as my hon. friend knows. The other day great emphasis was placed on the textile industry, but this bill is not designed to cure the ills of the textile industry particularly; it is designed to help industry generally in Canada. Textiles undoubtedly is one industry which is facing unemployment and in which the provisions of this bill could be effective, but it is only one. The Canadian Labour Congress, in a brief submitted to me some short time ago, asked that action such as this be taken.
I am not sure whether the Leader of the Opposition or the member for Bonavista-Twillingate (Mr. Pickersgill) were present, but I recall the hon. member for Essex East (Mr. Martin), who is not here now, meeting a great delegation of unemployed who came here from Windsor and Hamilton. I remember the thousands whom they represented. We heard so much about these people early in the session, and what did they want? They did not look like capitalists. They said, introduce legislation which will give us more employment, bring in legislation in the automobile business, in the farm machinery business, in the electrical appliance business and the textile business- all those were represented-which will give us work.
Here is a telegram from the international association of machinists in Lachine, Quebec, which suggests that a minimum value for duty should be imposed which would give a profit of some kind to the manufacturer which would enable him to maintain employment. Then, the international automobile workers of America international union,
IMr. Nowlan.]
Oshawa submitted a brief to me urging that this be done. Then there are representations from the united automobile and aircraft workers of America at Windsor; the united association of journeymen plumbers and pipefitters, who submitted a brief urging that these things be done. These are only a few of the representations which we have received from all across Canada, from labour, from the farmer and all the rest.
I quite appreciate the dangers of raising tariff barriers. I realize the dislocation of international trade. I suggest to you, Mr. Speaker, that under this bill and with this administration, those dangers are reduced to a minimum. In many ways, they will be dealt with far better than they were under the existing act. I am not criticizing anyone in saying that, but the machinery was such that they had to be dealt with more harshly. When this bill becomes law we will be able to assist employment in the various industries in Canada, and will be able to resist the greater spread of unemployment in these industries. I think that this legislation will be a good thing for Canada as a whole.


Lester Bowles Pearson: The minister has been very patient. Before he sits down I wonder whether he will permit one more question?


George Clyde Nowlan: If I can answer it.


Lester Bowles Pearson: This bill is primarily, as he has indicated, for the purpose of clarification and simplification of the existing law. How then is it going to have a beneficial effect on unemployment?


George Clyde Nowlan: Through section 39. That is the new element in the bill. I may say quite frankly that I never expected to see a bill of greater length than one page when we suggested that it be drawn. But the draftsman, as draftsmen do and quite properly, incorporated many things for legal effect and for clarification. Certainly I was as shocked as were hon. members opposite when I saw that the bill contained ten pages. I had foreseen a bill containing one section and that was all. I had not realized all the clarification and other explanations that would be necessary.
I say again that section 39 is the new element. When I say it is the only new thing, what I mean is this. We are not dealing now with appeal procedure and we are not dealing with the creation of a court to deal with obscene literature or other minor matters; whether minor or not, they are not part of the customs administration as a whole. We are dealing with the Customs Act, sections 36, 37, and 38, and I say that this section 39 is the one which introduces an entirely new principle, the first one since 1948.


The Deputy Chairman:: Shall the first part of this clause, dealing with section 35, carry?


Lester Bowles Pearson: I would like to make some observations on clause 1. They cover more than 35 and 36 and I think perhaps it would be preferable if I made all my observations at this time because they will be very brief. They do not come up in consideration of any particular part.
The minister, during second reading of the bill, attempted to make two points which concern this clause. I am not going to deal with some of the other points but naturally they will come up when we get to the special clauses. His first point was that this proposed legislation was not substantially different from the present legislation and that it still retained fair market value as its cardinal consideration. Secondly, he contended that the bill did not contain any new provisions which violated GATT but was in conformity with the spirit and objectives of that very important international agreement which our country has signed, for the preservation of orderly commercial relations with other countries of the world.
These are two points and they cover more than the one section that I want to deal with. I feel that this particular bill does modify our system of valuation and if it is put into effect by the government-and I am sure they are going to put it into effect, otherwise they would not make these changes-then fair market value will become an exception rather than the general rule. I am not going to say any more about that at this time except to mention the three sections which seem to me to support that statement.
When I asked the minister the question: if this bill is merely a clarification and a simplification how would it have the effect on employment that he said he hoped it would have. Especially because of section 39 which he said was new. As we see it clause 40A (7) subclause (c) which replaces section 38 (1) of the present act is also important in regard

Customs Act
to farm market value, as is clause 38 subsections (b), (c) and (d). Those are three clauses of this bill which we condemn-


George Clyde Nowlan: I may be stupid, but the hon. gentleman spoke of three clauses. I have only got 40A and 38.


Lester Bowles Pearson: And 39. There is one other matter on which I want to spend a little more time because it may be somewhat difficult to refer to it again. I refer to the relation between this bill and the general agreement on tariffs and trade. The minister said the other day, and repeated it this afternoon that, in accordance, no doubt, with advice he has received, that this bill does not violate any of the provisions of GATT. This is a very important matter because if it does in fact violate that agreement we are ourselves subject to retaliation should this bill become law; also we shall certainly be in a much weaker position when we attempt to invoke the clauses of GATT against other countries with regard to practices which they may see fit to introduce against our exports.
There are two articles of GATT which are especially relevant to the questions raised by this bill. Article V describes the general method which should be used in determining the value for duty, and article 19, which is the so-called escape clause, entitles a country to suspend its obligations under the agreement under certain circumstances. As to article 7, I want to put this on the record because we on this side think we should relate some of the clauses in this bill to this particular article of the agreement. Article 7 in subsection 2(a) reads as follows:
The value for customs purposes of Imported merchandise should be based on the actual value of the imported merchandise on which duty is assessed, or of like merchandise, and should not be based on the value of merchandise of national origin or on arbitrary or fictitious values.
Then, subsection (c) which follows goes on:
When the actual value is not ascertainable in accordance with subparagraph (b) of this paragraph, the value for customs purposes should be based on the nearest ascertainable equivalent of such value.
That means in simple language that you have to use fair market value if you possibly can, and if you cannot use it you are given other alternatives which can be applied, but only and after an effort has been made to find fair market value. Those are the general principles. It is true that article 6 does contain an anti-dumping provision which states very specifically that safeguards against dumping are allowed under certain conditions, but only in the form of a special duty as described in section 1, not in the form of a special system of valuation. Section 7 of article 6 has this to say:

No measures other than anti-dumping or countervailing duties shall be applied by any contracting party in respect of any product of the territory of any other contracting party for the purpose of offsetting dumping or subsidization.
Then there is the escape clause which I have mentioned, and I want to put that on the record because we will be referring to it later. It is defined in part in paragraph 1A of article 19 as follows:
If, as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this agreement, including tariff concessions, any product is being imported into the territory of that contracting party in such increased quantities and under such conditions-
I emphasize these words, because they are not the words of the bill-
-as to cause or threaten serious injury to domestic producers-
The word there is "threaten".
-in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or modify the concession.
That is a clause which has been used by certain governments as an escape from their obligations under GATT when the conditions are applicable and we have taken in Geneva, and I am sure the minister takes the same view now, a very watchful position with regard to the application of this clause. We have done our best to prevent governments, and especially the United States, invoking this clause in a way which would do damage to our exports and to our agricultural exports especially.
A country cannot use this clause unless goods are imported under such conditions as to cause or threaten serious injury to domestic producers and when it does use the clause it exposes itself to retaliation as indicated in subsection 3(a). I do not wish to put this clause on the record now because I do not want to take up much more time, but with these clauses of GATT in mind I want to look at the bill to see to what extent its clauses violate these provisions in the agreement or to what extent they are not in harmony with the objective and spirit of the general agreement.
The minister has said there is no such violation. We on this side contend that there is a violation, and that is a very important difference between us.
Perhaps, Mr. Chairman, I could call it five o'clock.


Charles Edward Rea: Order. It being five o'clock it is my duty, pursuant to section 53 of standing order 15, to leave

the chair in order to permit the house to proceed with the consideration of private and public bills.



PRIVATE BILLS

Mr. P. B. Rynard (Simcoe East):: Mr. Speaker, I wonder whether with the unanimous consent of the house order No. 27, which is for third reading of Bill No. S-15, respecting Mid-Continent Pipelines Limited, a bill of which I am the sponsor, might be considered at the present time.


Mr. A. D. McPhillips (Victoria, B.C.):: object.


Mr. Speaker:: The hon. member's suggestion can only be followed if there is unanimous consent, and since there is an objection we will have to proceed with order No. 26 first.


An hon. Member:: A family quarrel.


Philip Bernard Rynard: Mr. Speaker, this bill will only take a matter of seconds, I am sure. It is not controversial at all and I wonder if I could ask that it be proceeded with. It is not controversial in any way and we will still have time to deal with the other bill.


John George Diefenbaker: Mr. Speaker, in view of the fact that this is expected to be the last private members' day and since this bill, which is a very important one, will take only a moment, I would hope that there would be withdrawal of any objection-I am sure there will be-and that there would be unanimous consent to deal with it at this time because otherwise this company will be placed in an impossible position.


Herbert Wilfred Herridge: Mr. Speaker, some hon. members have been interested in this bill, as this whole group were, and discussed it on second reading quite extensively and were anxious for it to go to committee. The committee having performed its function, we are in hearty agreement with having this bill moved to the top so that we can deal with it immediately.


Mr. Speaker:: Does the house give unanimous consent to item No. 27 on the order paper being taken ahead of item No. 26?


Some hon. Members:: Agreed.



MID-CONTINENT PIPELINES LIMITED

[Stage Direction]
The house in committee on Bill No. S-15, respecting Mid-Continent Pipelines Limited- Mr. Rynard-Mr. Rea in the chair.
On clause 1-Capital.
Herbert Wilfred Herridge: Mr. Chairman, I want to speak very briefly on this bill because we
Private Bills
gave it very serious consideration prior to second reading and expressed our doubts and fears, and wanted a thorough examination of the company's witnesses by the committee on railways, canals and telegraph lines. That took place yesterday, and because the company's witnesses have satisfied our objections, firstly, by indicating that now the primary purpose of this bill is the transportation of oil; secondly, it will be a common carrier for the transport of oil; thirdly, because there were satisfactory explanations given to the members of the committee who queried the company's witnesses on several other aspects of the bill which concerned us; and, fourthly, because this company intends to act as a common carrier of oil from Saskatchewan to other places, we in this group are willing to support the bill at this time. I might say in conclusion, Mr. Chairman, that I was very pleased to be told that within the reasonable foreseeable future the government of Saskatchewan expects to see an increase in oil production by two or three times, and it is in an effort to work together to that end that we endorse this legislation at this time.


[Stage Direction]
Clause agreed to.
Clause 2 agreed to.
Preamble agreed to.
Title agreed to.
Bill reported, read the third time and passed.

[Stage Direction]
The house resumed, from Friday, August 29, consideration in committee of Bill No. SD-199, for the relief of William Harrison Terry-Mr. McCleave-Mr. Rea in the chair.
On section 1-Marriage dissolved.
Mr. Marlin (Timmins):: Mr. Chairman, the last time this committee dealt with this bill I just had the opportunity to get to my feet. At that time I was dealing with the very dangerous precedent that was set by the action taken on this particular bill. I reviewed briefly the history of the bill. Most of us are familiar with the fact that it was passed by the committee of the other house. It was turned down by the committee of this house. It was recommitted, reheard and now it is back before us again.
The reason I believe it is setting a rather dangerous precedent, Mr. Chairman, is that if this is carried through to its logical conclusion we would find that a case of this kind could come up, be presented and if it was successful, fine. If it were not successful, then the sponsors could say, "We will produce another witness and have another go

Private Bill-Divorce
at it, and if that is not sufficient then we will produce another witness and go through it all again". This could go on ad nauseam and make it even a greater farce than it is and have, as one member expressed it, divorce by automation. Therefore, Mr. Chairman, in the future I think we should exercise more care along this line.
Let me deal with the case itself. From the evidence given at various hearings that it has had we are told that there were two reasons why the petitioner in this case first became suspicious of the circumstances. The first was he had noticed that his children were referring to the co-respondent as Uncle Al. The second reason he gave was neglect of the children and the fact that he was not satisfied with the way in which the children were being raised. He said these were the factors which caused him to have certain suspicions and to engage the services of certain private detectives to investigate and compile grounds for divorce.
Now, with regard to the two reasons he gave, it was also established through evidence given that the co-respondent in this case had been a friend of the family for a period of some 15 years, I believe long before the husband and wife separated in the first instance. Furthermore, there was no hint of any kind that the co-respondent in this case had been a factor when the husband and wife separated originally, because at that time although things had come to such a pass that the husband and wife felt compelled to separate and take up separate homes there was no suspicion in any way, shape or form that the co-respondent and the woman were carrying on illicit relations.
In addition to this, the oldest child appeared before the committee. I do not know whether he made the same impression on other .members of the committee as he did on me, but he certainly did not appear to me to be a child who had been neglected at any time.
In regard to his training,-and that specifically was one of the matters that the petitioner mentioned-he took exception to the table manners that the youngster was developing. I assume it was not only table manners but manners in general because I think you will find that as a rule with children growing up their table manners are no better or no worse than any of their other manners.
I certainly feel that the boy made a very good impression on the committee and his evidence raised considerable doubt in my mind as to the validity of the reasons given when this investigation was first started. I would also say that it would be quite a normal thing for a child to refer to a friend

of the family as uncle Alec when the boy, who is now 19, had known him since he was four years old. I do not think one should take anything improper out of that fact.
According to the evidence, these detectives were engaged on January 11 and over a period of six to seven months they kept a constant watch on the respondent and co-respondent. But I think one of the most significant things about the whole case was that while they claimed to have watched these two people over this long period they apparently had no idea they were being watched and thus would be acting perfectly normally. They would not have their guard up if they were implicated in anything wrong.
In spite of this fact not one bit of evidence was given by any of the five so-called detectives to indicate any sign of affection between these two people during all this long period. Where you have people who are supposed to be indulging in what these people were alleged to have been doing, I ask the committee if it is normal that there should be no sign of affection? They were never known to place their arms around each other, never known to embrace or to kiss each other during that time.
In a case of this kind where you have some witnesses testifying one way and others testifying completely the opposite and are not able to rely on completely contradictory evidence, you then have to look at other factors. I think one very important point in this case is a comparison of the witnesses. We must remember that on the one side there were five full-time or part-time detectives, five people who are commonly re-fered to as professional witnesses. They were there for one express purpose, to testify to certain things. On the other hand, you have the testimony of people who were not professional witnesses. Furthermore, they are under the added disadvantage that they do not have the benefit of notes as to times, dates and places that are available to the professional witnesses.
I am sure that if any hon. member of this committee was asked where he was on the night of July 9 last year he would be very fortunate indeed if he could remember. It would be something extraordinary if you could remember even where you were at that time, let alone any of the particulars. I am sure that a good lawyer could make you look pretty silly on cross-examination if you tried to remember too many details.
As I say, the five detectives all had notes and referred to them on various occasions. In spite of that, however, there were many instances where they gave contradictory evidence. Some of them have been mentioned

already. First of all, there was contradictory evidence as to footsteps on the stairs. One heard this, another heard that and another heard something else. There was contradictory evidence as to the covering on the stairs. Some thought they were covered with a carpet, some thought they were not, some thought they were covered with linoleum, and apparently they were not too sure what was on the stairs.
This was a very important factor, particularly in relation to the evidence given in respect to the sound of footsteps on the stairs. There would be a considerable difference in the noise caused by the footsteps of people going up or down the stairs depending upon whether they were covered with a carpet or were bare. The same thing was true of the hallway. Some of them thought there was a carpet and others thought not. In fact, I think the chairman of the committee mentioned that the witnesses even disagreed as to the layout of the hallway itself and where the stairs were going down into the basement.
There was contradictory evidence whether the lights were on or off. I suggest to the committee that they should consider which parties should know whether the lights were on or off, these professional people who go there for an express purpose or other people who may be surprised by the entry of a group of men. There was contradictory evidence as to the lights both inside and outside. One witness said that the house was in total darkness and was in a very dark location on the street and that as a result they would have been able to tell if there were any lights on in the house. Another of the professional witnesses stated that there was a street light right in front of the door. Surely these are matters on which there should be no conflict whatsoever.
Another very vital point on which there was conflicting evidence had to do with the doorbell. Some of the witnesses stated that they rang twice, that they rang the doorbell once for a period of about a minute and then rang it for a shorter period. We found that it was not a ring at all because the doorbell was of the chiming type and chimed twice for the front door and once for the back door.
There was conflicting evidence as to the clothes worn by the various parties. There was conflicting evidence as to what happened when this couple was being followed by two detectives. One stated that they used two cars and the other stated that each had his own car. There was also other conflicting evidence. The detectives were supposed to have watched these premises on previous occasions. They claimed that in some cases they had watched the house all night long but we find that on one occasion they were chased away from the
Private Bill-Divorce
area by the police. If they were chased away once, why were they not chased away on other occasions? Under the circumstances it is stretching the credibility of hon. members to ask them to believe in whole or even in part the evidence submitted by these various witnesses.
We had evidence given before the committee to the effect that the back door was not watched on all occasions. One of the witnesses went further and admitted that it was quite possible for a person or persons to go out the back door and cross the backyard to this hotel where the cars were parked without even being seen from the front. It appears that the only time the back door was watched was on the night of August 30, and strangest of all is the fact that as soon as some activity was observed in the house the ones who were delegated to watch the back door immediately left their post and raced around to the front door. It was submitted in evidence also, and I do not think it was refuted in any way, that apparently while they tried to break the front door in the back door was unlocked all the time. This evidence proves that any number of people could have left by the back door while they were trying to break in the front door. All in all, in my opinion, the evidence submitted by these five professional witnesses certainly left a great deal to be desired.
On the other hand, we have the evidence given by the respondent and co-respondent. I think all hon. members can agree that they were either telling the truth or they were the two best liars that have ever appeared before a committee. I do not believe that there is any other conclusion we can draw from the evidence given by these two witnesses. It is possible that they are not telling the truth, but again I say that is stretching the imagination a little bit. They both gave their testimony and stood up to a very rigorous cross-examination. In my opinion, Mr. Chairman, they both acquitted themselves very well. Mention was made of the fact that the co-respondent, on one or two minor matters, was crossed up, particularly in regard to the day in question and the fact of whether he did or did not have lunch. But, Mr. Chairman, I am sure all hon. members realize that that "cross-up", if you want to call it that, occurred at the end of two hours and twenty minutes of cross-examination, without a single break, by a very capable lawyer and by a group of capable lawyers who were members of the committee. Anyone who has had experience with cross-examination knows that if you have a prefabricated story you are going to get crossed up on more than one little point in a period of over two hours.

Private Bill-Divorce
In a case like this, when you have evidence that is as contradictory as that given, you are faced with a situation where you have to believe one thing or the other. You cannot believe part of one story and part of the other. It comes down to a straight matter of credulity. Who are you going to believe?
I would suggest what happened in this case, if I may, Mr. Chairman. These detectives were hired away back in January. I do not know the cost of the detectives in a case of this kind, but I can assume it is fairly high. I submit that what could have happened, and what possibly did happen, was that the detectives bled the petitioner dry by keeping this case going and going. I believe that finally the petitioner laid down an ultimatum, either you get the goods or you get off the payroll and I will get somebody else. This is the reason we have these doors being smashed down and the attempt to make a case out of the fact that one party was found upstairs and the other party in the basement. I suggest that if detectives, three or five or whatever number was working on this case, cannot come up with a better case than this then they either have not done a very good job or there was not very much upon which to work in the first place.
I submit that the explanation given by the respondent and co-respondent is the logical explanation. These are things that could well have happened. I am sure that over a period of seven or eight months many hon. members were in far more compromising positions than the one in which these two people were found on that day, yet this does not mean they were guilty of anything. Once again I say that the stories given by the two witnesses for the defence are logical. These things could have happened, and I believe they did happen. I say, Mr. Chairman, that this bill should be thrown out.


Mr. McCleave:: Earlier this afternoon, I was put on the spot in connection with a bill on which every party in this house agreed. We set it aside at that time. It is a principle of law, in at least eight of the provinces of Canada, that a person can come into court, ask for relief and get justice or get hurled out. At least they know where they stand. It so happens that in two provinces the people are so unfortunate that they have to come to parliament for a divorce and have their affairs dragged through the House of Commons. This should be a forum for the highest form of debate, not the lowest. We have gone into all these matters in the committee, and the committee has made a decision. I think that in fairness to the people concerned we should accept that decision or we should throw out the bill. We should submit the matter to a vote this afternoon.


Mr. Montgomery:: I should like to say a few words on this case. Like the chairman of the committee, I think it is unfortunate that these cases have to come to parliament. Some of them are very close to the borderline, and this is one bill for which I cannot vote. I do not believe there is sufficient evidence to prove adultery. I have had considerable experience in listening to evidence, and when the evidence points as consistently to innocence as it does to guilt in any set of circumstances, then the petitioner would never succeed in a court of law. I know it is true that in parliament we are not bound by the ordinary rules of procedure that govern courts. We are not bound to refuse to grant a divorce if adultery is not proven because we can grant a divorce upon any ground. Personally, I am not satisfied that there was any ground proven upon which a divorce should be granted. I have read the evidence carefully. Many of the other members heard the witnesses the second time, although I did not have that privilege. As a result of shrewd inquiries made, I do not think there is much change. The second evidence was not recorded. In view of that situation, I certainly could not vote to support the case. I certainly shall be obliged to vote against it and I felt that I should put myself on record before doing so.
I do not believe that this parliament should be made a place in which to grant a divorce for something which has not been proved. If there are other grounds upon which this marriage should be dissolved, then the parties should come forward and substantiate the claim on those grounds. But I sincerely believe that there are no grounds of adultery on which to grant this divorce. Nothing was proved. The circumstances in which the detectives found these people point to innocence as well as to guilt, but more towards innocence. These people were good people. Why should we break up two families? That is something that could happen as a result of our granting a divorce. By doing so it would mean that we have refused to believe the evidence of the respondent and the person involved. I think it is only fair to give the benefit of the doubt to those who deserve it. I shall therefore be obliged to vote against this bill.


Albert DeBurgo McPhillips: As the committee will know, this matter was first resolved by the committee with the dismissal of the petition. There was a recommittal and some further evidence was heard, particularly the evidence of the co-respondent. The hon. member who has just taken his seat undertook to express his views on the matter from his experience. May I say, Mr. Chairman, that I happen to be a lawyer with 31 years of experience. In

my experience I have never before heard such an unmitigated liar as was that corespondent when he came before the committee. This case has been proved to a point where, I submit, any court of law would decree a divorce. As the hon. member for Halifax stated, it is a travesty of justice if people are to be put in a different position when they come to parliament for divorce from that in which they are placed in the ordinary courts of the land. This thing is proved to the hilt. We have the committee report. Why now in committee of the whole are we going to challenge it? In my opinion, there is no question about it that this divorce has been proved to the hilt.
The Depuiy Chairman:	Shall clause 1
carry?


Frank Howard: As was indicated by the hon. member for Victoria-Carleton, no evidence having been taken or no transcription having been made of the comments in the committee, those of us who were not on the committee are obliged to weigh this matter in the balance and be guided by the opinions expressed by hon. members who were on the committee. After listening to what has just been said by all the hon. members who have just spoken, and in view of the indication given by the Prime Minister just a few moments ago during this private members' hour that these may be the last hours of this session, it appears to me that we should consider spending what few remaining moments we have in this private members' hour in considering as much as we possibly can of the business of the public.
What I mean by that is this. If we were to dispose one way or the other of this particular bill that is before us, we would easily be in a position of allowing to stand the public bills that are listed on the order paper in the names of private members so that we could spend the remaining time in this hour in considering the business which was interrupted at five o'clock. By so doing we would be accomplishing two things. We would be giving more time and consideration to the general public's business and we would also be giving an expression of opinion, one way or another, to the petitioners in this case by dealing with this particular divorce. If the discussion on this bill is to proceed up until six o'clock, I do not think there is a doubt in anybody's mind that it will not be revived again this session, and the petitioner will have an answer in that regard. But in order to expedite things and in order to assist in giving the petitioner an answer from this House of Commons and from this
Private Bill-Divorce
committee considering it now, where the discussion can be more informal than it can be in the house, I would move:
That the committee rise, report progress and ask leave to sit again at the next sitting of the house.
Amendment (Mr. Howard) negatived: yeas, 4; nays, 39.


Charles Edward Rea: Shall clause 1
carry?


Mr. Peters:: This afternoon some mention has been made of justice being done in this case. On the majority of previous occasions when we were dealing with previous bills and were asked to approve private bills for the relief of so and so, many of those cases were not contested. That would be an indication that at least to the parties concerned it was not a very serious matter whether the charges in the submission were proved or not because they were not interested in contesting the action in any case. That many of them could be contested, I think it is generally agreed. However, some of them are not contested.
This one was contested. It would therefore be an indication that the respondent in this particular case did not think that justice would be served by this case not being opposed. Fundamentally she has come to parliament and asked parliament to hear her side of the story and to give her relief which is exactly the opposite of the relief for which the petitioner is asking in this action.
If justice is to be done it means that there must be no doubt in the minds of members, or no reasonable doubt, that this matter is in order. But it is my contention in this case that there is a very great deal of wrong not only in respect of the submissions made by the many persons who participated in the case but in the circumstances surrounding the allegation of adultery. I believe that justice cannot be done while there is any doubt in anyone's mind that adultery was in fact committed and that it was proved to have been committed by the evidence submitted to the committee. I have looked up the definition of the word "adultery" in Webster's dictionary and it is very definite. It does not mean two people who know each other, or two people who have been exposed to certain circumstances or conditions. Adultery means sexual relationship between two people -a man and a woman-and in this case it does not seem to have been a probability. Therefore I suggest that justice cannot be done by granting a divorce.
We heard a number of witnesses, I believe seven at least, and they were in my opinion a motley crew. My colleague from Timmins has mentioned the length of time the investigators were working on the case, and it

Private Bill-Divorce
was certainly a lengthy period. The inference can therefore be drawn that the motive for taking such a long time was the monetary return which would accrue to these witnesses and also the fact that they could not find any evidence to establish adultery.
One of the investigators, Peter Rosen, makes his living at this kind of work and he came to the committee with so little use for justice that he told us he directed the operation on this particular night and instructed the people with him to break down the door of the house in question, which was locked. The house belonged to a lady and was a private residence but that night he instructed his colleagues to break the law by breaking down a door. One of the other witnesses said that he was scared of this sort of thing; he knew it was against the law and so he did not push very hard. Mr. Rosen, it appears, was not strong enough to bust down the door and that is the kind of evidence that we are asked to accept. Yet some hon. members will stand up in this chamber and say, "We want to see justice done." This man to whom I have referred has so little regard for the law and for justice that I believe in fact the only thing for which he had any regard was the payment for the type of evidence he procured.
A second man, Irving Gore, age 31, was also from Montreal and was a salesman by profession. This young man appeared to be a little too sharp and I suggest that he had other reasons for attending at this residence on the night in question. He said that he did not do this type of work normally but merely did so at the request of Mr. Rosen. He said he did not get paid for doing it but he was inconsistent in this respect because on other occasions apparently he had been paid for doing similar work. This man did not have too much initiative because he was directed to go to the back door and to watch it, I suppose having some knowledge that the front door was to be entered either by ringing the bell or by breaking down the door. He apparently did not try to turn the door knob on the back door and no one contradicted the witness who said that door was open and had not been locked at all. I therefore say that he went there on this occasion for personal reasons and not only because Mr. Rosen had invited him to do so, and in my opinion he was a very untrustworthy witness.
Then there were George and Don Kennedy. George Kennedy, age 31, was also a salesman, this time for one of our crown corporations. Frankly, I think we should be able to pay these people enough money that they do not have to traipse around doing this type of work, but I do think this fellow gave quite

reliable evidence, although the joke was made in committee that you have to be rather cautious about the people with whom you travel on T.C.A. because there may be investigators who have certain information from the other jobs on which they might be engaged. I think he was very indiscreet, to say the least, to participate in this type of work, particularly in respect of a divorce case such as the one with which we are dealing and which has already received so much publicity. However, George Kennedy was a comparatively reliable witness. He was under instructions and he got paid for this work, and therefore he was to report exactly what he had been told to investigate. He kept a record in a book of what he did and his testimony was very straightforward. He told us what was written in the book although I am not too sure that this was exactly what he saw.
Don Kennedy was an insurance investigator and I think most people who know investigators in this business have found that they do not normally work on such matters as this as a sideline. His evidence was very pat and had obviously been prepared as he would prepare a report on an investigation into an insurance adjustment matter or other work in his field. Nothing was left to chance-there was no danger of this witness ever being crossed up in respect of his investigation or evidence because he had been very sure to know exactly what he was talking about. This witness was also paid for the job he was hired to do and his evidence was directed towards one end, which in this case was divorce. The evidence of this man, probably more than anyone else's evidence, should be considered in the light of something we have heard in many contested divorce cases to the effect that one must always take with a grain of salt the evidence of a paid investigator.
On the other hand, there were three witnesses, Mr. Leslie Harvey Saunders, age 30, of Dorval, Quebec, who was an executive and a witness called on behalf of the petitioner- and I must apologize for not remembering that witness or his evidence, so I am not in a position to discuss it-next, Mr. George Rolland Foucher, who was an investigator. In respect of this man I would say that anyone who heard his evidence and only his evidence in committee could give any credence to the story he told, particularly in view of the manner in which he told it. I thought his manner of presentation was poorer than that of any other witness.


An hon. Member:: You are not doing too well yourself.


William Arnold Peters: The co-respondent in this case was not before the Senate but was before the

committee and the respondent herself appeared before the committee. In my opinion, her evidence substantiated her remarks. She gave straightforward evidence and yet her evidence was not so pat that you would think she had sat down and read it a few moments before but that she was thinking back to the time this allegation took place. I think she gave good evidence. She was never shaken in my opinion in any detail, and the remarks she made were not disputed in the main by any other witness.
The co-respondent, on the other hand, testified at length and caused his lawyer some concern on many occasions because rather than letting the lawyer lead the witness, the witness was sometimes leading the lawyer's questions. This type of witness makes a very bad impression on any group of people who are sitting in as a jury on this type of case. On many occasions he made statements beyond what he was called upon to make. This was continually being brought to his attention by the chairman, and I think the chairman should be given a great deal of credit for the advice which he gave not only to the witness but to counsel, because, with his legal training and in his capacity as chairman he did an exceptional job in seeing that the questioning was kept to the point. On a number of occasions he had to tell this witness that he was not to answer questions before he was asked and that he was not to anticipate questions which might not be put to him at all. But he did make a number of statements and those statements are now evidence and they have not been refuted. We have discussed a number of them and I do not propose to go into detail on them-


An hon. Member:: Five minutes.


William Arnold Peters: Only four.


An hon. Member:: Carried.


William Arnold Peters: One particular item of evidence presented by the co-respondent which could have been corroborated by investigation but which could not be because of the constitution of the committee and its functions was the matter of the gasoline receipt. The co-respondent went to great lengths to say that he had had some trouble with the income tax the year before, and during this trouble with the income tax they had laid down the law to him that he must keep receipts for gas, hotel and other expenditures as he went around the country. So he said he kept those gas receipts together with hotel and motel accommodation receipts in a big bag at home, and when he was phoned up by a lawyer he decided he had better bring out some of them for the dates in question-the 10th and
Private Bill-Divorce
the 11th-and for certain other days, and looking in this bag of receipts he found he had a receipt for gasoline for Pembroke on the 10th of the month. He indicated that it was his pattern to go into an area and spend three or four days there before returning to his centre of operations in Montreal, and he gave me the impression that in that bag of receipts there might legitimately have been one for the 11th and the 12th from the Pembroke area. I think that because he made this statement, and because this statement could not be challenged, it was an obligation on the committee, and one the committee must exercise, to have investigated those receipts.
He pointed out something else, that he had in his possession an order from all the companies that he had dealt with. He said he had been informed by other representative district managers in the same company that he belonged to that in this company they kept order forms in loose leaf form from various companies, and he pointed out that he had asked his New York office to send him a copy of those forms for the past year. He indicated that though he would not-


George James McIlraith: I wonder if the hon. member would permit a question. My question is this: having made it quite clear, as he has, that he is opposed to this divorce based on his failure to approve the evidence adduced by the petitioner, does he not think that having had most of a two-hour period to make that point it would be a fairer procedure if he would let the question go to a vote rather than talk it out?


Some hon. Members:: Hear, hear.


Robert Jardine McCleave: Remember somebody else's human rights.


William Arnold Peters: This matter I am raising now has not been raised before the committee, and they have no knowledge of this particular matter.
I was talking about this form that the company had produced, and I think any lawyer would consider that it was fairly acceptable evidence, evidence which the corespondent himself did not exactly want to produce but which he was willing to produce, and did agree before the committee that he would produce if necessary. I think a lawyer or a judge, if he was presented with this type of evidence would agree that it was not only a record stating that so and so called on such and such for the purpose of taking an order, but that it was returned to a central office where a third party in this matter was to compile this evidence in booklet form, and that this evidence came back in the form of a copy. This evidence

Customs Act
came in from the United States office and would indicate that an outside party had adjudicated the value of the evidence contained in this booklet, and this would have been impartial evidence. I think the committee has the right to have their inspectors examine this type of evidence so that a decision could be made on this particular case, and I am inquiring-


Charles Edward Rea: It being six o'clock it is my duty to leave the chair.


Robert Jardine McCleave: I know how bitterly this has been argued out, and the attitudes and the opinions which have been taken, but there is still a majority and I appeal to the hon. member for Victoria-Carleton and to the hon. members of the C.C.F. group who have spoken not to take the law into their own hands on this. We have had two of these hearings. The evidence was presented, we had two hours of discussion and there was a very able presentation of the case. I appeal to the minority to let the house vote on the motion, at which time the committee can either throw out this request or grant it, but not to take the law into their own hands.


William Arnold Peters: I have a few more remarks I would like to make at the next sitting of the committee with regard to this bill. I am not saying I am opposed to it, but I have some more remarks to make.


Robert Jardine McCleave: Kangaroo justice; kangaroo courts.
Progress reported.


Mr. Speaker:: The time for consideration of private and public bills having expired, the house will revert to the business on which it was engaged when it was interrupted at five o'clock.



CUSTOMS ACT


[Stage Direction]
The house resumed consideration in committee of Bill No. C-51, to amend the Customs Act-Mr. Nowlan-Mr. Rea in the chair.
On clause 1-Determination of value for duty.
At six o'clock the committee took recess.

AFTER RECESS

The committee resumed at eight o'clock.
Charles Edward Rea: We are discussing clause 1.


Lester Bowles Pearson: Mr. Chairman, before five o'clock I was dealing with clause 1 in relation to GATT. I want to attempt to show that there are some provisions in this bill which in our opinion do constitute a violation of this international agreement. In our view, it is quite clear, notwithstanding what the minister has said, that section 38(b), which I think is a new one, does violate GATT directly. Subsection (a), as a matter of fact, I think can also be interpreted as a violation.


George Clyde Nowlan: I do not want to interrupt the hon. member. We are dealing with section 38. Is he going back to the beginning, or can he begin at the beginning so that we shall get an orderly procedure? I do not object so long as we know where we are going.


Lester Bowles Pearson: I would be quite willing to wait until we reach the sections, but it would mean that each time we got to a section I would have to talk about the relation to GATT. If the minister is willing-


George Clyde Nowlan: Would it be all right if we considered section 38, or whichever one the hon. member prefers?


Lester Bowles Pearson: The three sections which we think are violations of GATT directly are 37, 38 and 39. I was starting with 38 because I thought it was the most important section in regard to its relationship to GATT; that is, section 38(b), because section 38(b) in this bill is not limited to goods imported under such conditions as to cause or threaten injury to domestic producers. There is no qualification of that kind, and therefore this particular provision does not seem to us to be covered by article XIX of GATT. Surely there cannot be a much clearer violation of GATT than section 38(b) which says:
Where in any case or class of cases (b) the goods imported-
And then there is a whole list of conditions under which the goods would be imported, and it goes on to say that "the value for duty shall be determined in such manner as the minister prescribes." We would be very interested to see how the minister can relate that particular provision to our obligations under GATT.
We have not yet received from the minister in previous discussion of this bill any explanation about it; but whatever may be the intentions of the government in respect of the application of this section, we on this side can hardly accept a section that we think is a violation of GATT and therefore incompatible with Canadian interests. Perhaps the wording of this section does not

correspond with the intention of the government in regard to it. Perhaps we will find that out when we discuss the section.
The second section which we think is a violation of GATT is section 39 which, in our opinion, violates two provisions of GATT, namely article VII because of the use of the concept of cost of production plus a reasonable gross profit determined by the governor in council which, in our view, is equivalent to the fixing of arbitrary values. It also, in our view, violates article VI, paragraph 7 of GATT because a measure other than the anti-dumping duty is provided for the purpose of offsetting dumping in this particular section.
Now, whether section 39 is covered by the escape clause, which is article XIX of GATT, depends on the meaning of three words in the section, namely "material" and "may be". The section reads:
Where the minister is satisfied that material injury has been or may be caused to any industry in Canada,-
And so on. The GATT language is not injury that may be caused; the words used are "serious injury", and if material injury is not equivalent to serious injury or if "may be caused" is not equivalent to "threaten", which is the GATT language, section 39 is not covered by the escape clause and therefore it is a violation of GATT. If the minister had desired to be absolutely certain in this clause that GATT was not being violated, surely he should have used the language of GATT, he should have used the words "threaten serious injury".
The final section which we think violates GATT is section 37, which is new. When it is interpreted in the light of the very arbitrary and vague definition of cost of production and gross profit contained in section 35 and section 34, it appears to us clear that for all practical purposes the value for duty determined under this provision in section 37 will be arbitrary. Moreover, in section 37 no reference is made to actual or potential injury to domestic producers. Therefore, it follows that section 37 is contrary to article VII of GATT and that it is not even covered by the escape clause. It is a direct violation of an international agreement which we have accepted in the provisions of GATT.
These, Mr. Chairman, are the three clauses which we think do violate our undertakings under GATT. The minister may be able to remove our apprehensions in respect of one or possibly two, but on the wording of section 38(b) it is impossible for us to reconcile this in any way, shape or form with GATT.
These are the general observations that I want to make with one other matter that covers several clauses. Before five o'clock
Customs Act
the minister read out a list of orders which were passed by the previous government under, I think, section 38 which before- whatever the date was-was section 43. I told him then that I had made quite a serious mistake in suggesting that only one order was passed by the previous government under that section; but the point I want to make is this.
If this clause, if this section, if this law could be used for the purpose for which it was used and which the minister indicated, to prevent the dumping into Canada of goods from foreign countries, if it could be used so effectively as that when the emergency required it to be used, and I think that was the only time we used it, if it was adequate for this purpose at that time, perhaps the minister will explain when we come to the sections why it is necessary to make all these changes now?


George James McIlraith: I want to raise one point as to 35 (1) (b), the definition of the words "cost of production". I admit frankly that I find it difficult to understand this language. "Cost of production" is defined in this way:
"Cost of production" means an amount that in accordance with good business principles and practices fairly reflects the manufacture or production costs of the goods at the time of shipment to Canada.
What concerns me is this. Cost of production is something that I think I can understand and I can understand departmental officials seeking to ascertain what it is, but instead of this definition helping to clarify the matter it seems to me that it only confuses it and introduces new and, if I may say so, what appear to be irrelevant criteria. You will note that it does not say that cost of production means an amount that in accordance with good business principles and practices means production costs, which would be a useless repetition of language but would at least be understandable, but says that the cost of production merely reflects production costs. If it reflects production costs, from what does it reflect them and what other factors does it reflect as well as production costs?
It seems to me that this is a definition of an important phrase that is only confusing. Indeed, if one were so minded I think one could attempt to ridicule it but that is not my purpose at all. The point I wish to make is that instead of the definition clarifying or being helpful or laying down any criteria that would be useful in the understanding of this phrase it lays down in a way that is not understandable a definition that is utterly meaningless and permits the introduction, I respectfully suggest, of any criteria that any administrative officer

Customs Act
might wish to use. The idea that the cost of production merely reflects production costs is a pretty discouraging definition. I wonder whether the minister could clarify what was intended there and whether he would give some consideration to attempting to clarify the language used?


George Clyde Nowlan: Mr. Chairman, on this matter I am advised that the language used here is the language which has been adopted by the courts in defining costs, particularly in connection with income tax cases but also in other matters where business costs have had to be determined. Where there are so many variables entering into the picture, as the hon. gentleman well knows, you cannot exactly tell what the cost may be but it reflects the cost, and at least this language has the approval of the courts. I am advised that it was put in for that reason and if it does not clarify it I can only say that it was hoped that it would. The actual costs that enter into these matters are simply the direct costs of material, labour and factory overhead. But then, of course, you have depreciation and other things entering into the picture and that is why the word "reflects" is used.


George James McIlraith: I quite appreciate the minister's answer. I am familiar with some of the court decisions on what cost of production means but I am wondering whether it would not have been better to leave the definition of cost of production to the decisions of the courts. I may say frankly that I have more confidence in the definition as determined by the courts than I have in the definition as set out here in paragraph (b). That is my whole point.


Lester Bowles Pearson: On this question perhaps the minister will explain why it was necessary, notwithstanding what he has said, to depart from the present definition in section 35 (7) of the present law which reads as follows:
Where the value for duty cannot be determined . . . the value for duty shall be the actual cost of production of like or similar goods at the date of shipment to Canada-
I am a layman but it seems to me that is a more practical and sensible definition than the one in the amendment which refers to good business principles and practices fairly reflecting manufacturing costs. How anyone here can determine, for instance, what is a good business practice or principle on the part of an exporter in Hong Kong is difficult for me to understand. Why did we depart from the rather simple and practical language of the present section 35 (7)?


George Clyde Nowlan: As the hon. gentleman has said, perhaps the other definition had the virtue of simplicity. I can assure him that I am very much of a layman myself when it

comes to dealing with matters of customs law, but the very fact that it was simple made it impossible to apply. Take the word "actual". How do you get the actual cost when you have a machine producing perhaps four or five different commodities or types of goods and it is impossible to ascribe the proportion of depreciation between them? The department was running into difficulties with respect to establishing the actual cost. It was felt that this was a much more practical approach to the matter and one which achieved the same thing but at least avoided trying to do the impossible, walking into a court and proving the actual cost.


George James McIlraith: Does the minister's answer not clearly illustrate that what we should not inject into the bill is this cost of production factor? We should have stayed with the value for duty.


George Clyde Nowlan: We did not inject it into the bill. It has been in the legislation for many years.


Lester Bowles Pearson: Yes, it has been in the act for many years but in quite a different form because it was a subsection of section 35 and it was a criterion laid down for establishing duty to be applied only when the other procedures could not be followed, including the fair market value.


George Clyde Nowlan: The principle was used. You had to use it sometimes.


Leon David Crestohl: During the discussion of subclause 1 having to do with the question of determining the value of production I think the minister said that it would not infringe any of the terms of GATT. I believe the minister said that he obtained a legal opinion that the bill does not contravene any of the GATT regulations. Could the minister table that legal opinion?


George Clyde Nowlan: I did not say I had obtained a legal opinion. I said that in my opinion this was not a violation of GATT, and of course that was based on discussions and all the other matters that go into the drafting of a bill. If my hon. friend misunderstood me I am sorry, but I certainly did not say I had obtained a legal opinion to that effect.


Leon David Crestohl: The minister knows that I respect his own legal views but since this is a matter which might involve international situations and an international treaty or contract, does the minister not think that it would be wise for him to obtain a legal opinion tc bolster his position? I really think the matter is a serious one and a legal opinion in the record certainly would be very helpful to his

position which now leaves considerable doubt whether or not Canada may be violating an international agreement.
I think the minister, for his own comfort and peace of mind, should get a legal opinion to support our position in so far as Canada is concerned.


George Clyde Nowlan: I shall deal with GATT when we come to section 37.


Charles Edward Rea: Is there any further discussion on section 35?


Lester Bowles Pearson: Yes, Mr. Chairman. There is section 35 (c) which defines gross profit. It says:
"gross profit" means the fair market value of the goods when sold in the circumstances described in section 36, minus the cost of production.
This seems to us to be a rather arbitrary way of defining profit. Perhaps the minister will explain why this definition is put in this way. There is an additional, and what I consider to be an important, weakness in this definition, quite apart from the consideration which I have just mentioned. The clause reads, and I will repeat it:
"gross profit" means the fair market value of the goods when sold in the circumstances described in section 36, minus the cost of production thereof.
According to this definition it is supposed to apply to all sections of the bill. I take it gross profit can be determined only when it is possible to measure the fair market value of the goods when sold in the circumstances described in section 36. I am going to stick to my notes very carefully here because this is a complicated matter. I may say I found some difficulty in understanding it when it was being explained to me. If that is the definition of gross profit which is going to be used to determine the value for duty under sections 37 and 39 of this act, only where the conditions and circumstances described in section 36 will not be found, the definition of gross profit is limited to the conditions of section 36, but it does not apply to that section since the fair market value will be used there. On the other hand, the definition will apply to sections 37 and 39 where it does not fit.
Now does that not really make nonsense of this definition of gross profit? It seems to me it makes the definition not only useless, but if interpreted in this legal sense it could prevent the application of section 37 and perhaps even section 39 because of its nonapplicability to those sections.


Charles Edward Rea: Is there any further discussion on section 35?


Lester Bowles Pearson: Does the minister not think there is something in the point I have raised?
Customs Act
Is this not going to lead to difficulty if the bill is passed in this way?


George Clyde Nowlan: The Leader of the Opposition said he had difficulty in understanding it when he first read it. I have great difficulty in following it at the moment. Frankly, of course, gross profit applies to sections 37 and 39. I am not exactly certain just what problem the Leader of the Opposition had in mind in raising that question. I have discussed it on various occasions, and I did not find the problem arising which he apparently has in mind.


Lester Bowles Pearson: In a word, I will put it this way, and if the minister thinks there is no difficulty, we will go on.


George Clyde Nowlan: There is difficulty right
through.


Lester Bowles Pearson: This represents an illogicality which could cause serious difficulty in the application of this measure. Gross profit means the fair market value of the goods when sold under the circumstances described in section 36. Now, those circumstances cannot apply in respect of sections 37 and 39, and therefore how can you possibly apply this definition to those sections and how can those sections be implemented?


George Clyde Nowlan: The term "gross profit" is found in sections 37 and 39 and those are the only places where that term is used. You have similar goods in section 37, and in section 39 you have the new clause to which my hon. friend has taken such great objection. The conditions applied, of course, are referred to as the circumstances described in section 36, that is dealing at arm's length and so on, when they can be applied. It certainly does not apply in section 36, and it only applies in sections 37 and 39.


Lester Bowles Pearson: It applies to sections 37 and 39 under the conditions laid down in section 36, and those circumstances are not applicable in sections 37 and 39.


George Clyde Nowlan: Some of us are confused between similar goods and like goods. There is a difference between like goods and similar goods, and to that extent there must be a difference. Mention is made of no sales at the time when the goods were shipped to Canada; no purchasers located at the place from which the goods were shipped to Canada, and all the rest of those circumstances described in section 36 which must be found in sections 37 and 39, if possible, in order to determine the gross profit.


Lester Bowles Pearson: I can only hope that the minister and his department do not get into trouble in the application of this section. If

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the minister is satisfied that it is workable, then we will wait and see what happens next year. We had an amendment to move to this section, but if the minister is satisfied, we will move on.


George Clyde Nowlan: I can assure my hon. friend the minister did not draft it, anyway.


Charles Edward Rea: Is there any discussion on section 36?


George James McIlraith: Yes, I find myself in some difficulty with section 36. It seems to me, perhaps, that the section is replacing paragraphs (2) and (3) of the present section 35. My difficulty is simply this: There seem to be three criteria set out here, and one is that under the new provisions, the selling price of like goods in the country of export will serve to determine the value for duty. Then there is a paragraph which says, if the producers in the country of export are located at the same place as the point of shipment of the goods imported into Canada; that is one of the criteria. The second one is if these purchasers are dealing at arm's length with the vendor or exporter, and that principle is fairly clear. The third one is that these producers are at the same or at substantially the same trade level as the Canadian importer.
My difficulty arises particularly with the first of these criteria mentioned. My point is that the whole purport of adding these three additional criteria seems to be to have the effect of restricting the application of the fair market principle. It is that difficulty with which I am concerned. I should like the minister to try to explain what he is seeking to do by this change.


George Clyde Nowlan: These criteria to which the hon. member referred, you will find of course qualified to some extent by 2 (a) and (b) in the bill on page 2. I am advised that these criteria have always been applied by the department in interpreting and administering section 35 of the existing act.


George James McIlraith: Could the minister tell me whether or not they have the effect of in any way restricting the application of the fair market principle? My whole difficulty arises from the fear that the minister, in this bill, is getting away from the fair market principle and introducing another principle which is objectionable.


George Clyde Nowlan: No, there is no thought of restricting that in any way, shape or form, Mr. Chairman. There have been difficulties about certain administrative practices. There have been some questions raised in the courts about certain matters, and this has been done to clarify the procedure which has been

carried on throughout the years. Certainly, there is no thought of restricting in any way, shape or form the application of it.


Charles Edward Rea: Is there any more discussion on section 36? Is there any discussion on section 37?


Lester Bowles Pearson: Section 37 replaces subsections 4 and 5 of the present section 35. I feel that the conditions in this new section
37	are much more rigid than are the conditions of the existing law, and that the result of that may well be that similar goods will serve much less often than they do at present as the basis of comparison for determining the value for duty. This afternoon the minister indicated how important that was because like goods these days are not very often like. When similar goods are used as a basis of comparison under this section the fair market value will not apply, I suggest, as it does at the present time and that instead, under this section, use will be made of the cost of production of the imported goods plus the percentage of gross profit made on similar goods.
I have here an illustration which will show how this rule could apply in practice. The minister may be able to remove-and I hope he will be able to do so-our worry on this score. If we assume that the cost of production of goods imported is one dollar and that the cost of production of similar goods is fifty cents and that the amount of gross profit made on the similiar goods in the home market is five or ten per cent, then I take it that under the section that percentage would be applied to the cost of production of the goods imported so that the value for duty of the goods imported would be one dollar plus 10 per cent or $1.10. I can see that in theory a case can be made for the application of that principle and that practice. It may have merit on the theoretical ground. But it seems to me that in practice, if there is a material difference between the cost of production of the goods imported and that of the so-called similar goods, then surely section 37 could not apply because the goods compared would not in fact be similar goods and new section
38	would have to be used. Is that right?


George Clyde Nowlan: Yes.


Lester Bowles Pearson: That increases our worry about the use of this section and the introduction of new rigidity into our present evaluation procedure. If this is going to result in a switch from section 37 to section 38, may I say this. Perhaps I will wait until we get to section 38, at which time we shall be able to tell the minister what we think of that particular section. But here again

I suggest that section 37 minimizes the fair market value principle that has been applied in the past and emphasizes-and we think it is an undesirable development-the cost of production principle.


George Clyde Nowlan: In the first place, the Leader of the Opposition suggested that there were not so many goods of like kind that were sold today as there were of similar kinds. I am advised that the situation is just the reverse and that there are many more cases of like goods than there are of similar ones. One of the reasons is the rigidity of the practice which has heretofore prevailed and which prevailed up until tonight in dealing with similar goods. As I ventured to say this afternoon, similar goods to be like have to be absolutely like. Similar is defined very closely. As I said this afternoon, you get your package of lima beans, for instance, and you have a 12-ounce package. The Americans use a 10-ounce package. Where they manufacture for us, they ship a 12-ounce package but they do not sell anything but the 10-ounce package in the United States. In that case we can use the similar one, applying in the larger quantity. That is fine. You get the same price for that, the 12-ounce here and the 10-ounce there. But if they reverse their views, then you get perhaps 14 on the similar use, in the illustration I used this afternoon, and you soon get into a situation where your similar goods perhaps will not apply; at least it is not under existing procedure. Whether that practice is justified or not, I do not know; we think it has been.
Under this section, the provisions of section 37, you will find contained approximately the same provisions or the basis of them as set forth in sections 35 (4), 35 (5) and 35 (7). These are the sections which have been used and incorporated in the new section 37 including the practice which has had to be applied in dealing with this section. What happens is this. If you could not use section 37 you were driven to the very harsh subsection in section 35. You have your choice. You take section 34 (4) of the present act or section 35 (5). If you could not apply those, and very often you could not do so, then you were faced with a situation where you had to fix the duty. That we felt was too harsh a rule. This is an ameliorating section. I may assure the hon. member that is the intention of it, to increase the protection, not to make it harsher. It is to ameliorate an existing practice which has grown up. Therefore you have this formula which at least will give some valuation. You may say it is hard to apply; perhaps it will be, but it cannot be any more difficult than is the practice which we go through today
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and where in the end you are driven to the minister in fixing the value himself.


Lester Bowles Pearson: The minister said that the intention is to ameliorate the harsh practices under the act under section 35 (4) and (5) which deals with similar goods. I would point out to the minister that in this subsection the principle adopted is the fair market value in both cases whereas the principle adopted in this section 37 is the cost of production. Why should not this section read as follows? Would the minister consider the matter and tell me what is wrong with this kind of amendment? Why should not that section read as follows:
Subject to section 38, where like goods were not sold for home consumption, or were not sold for home consumption in the circumstances described in section 36, but similar goods were so sold, the value for duty shall, notwithstanding any invoice or affidavit to the contrary, be the fair market value of such similar goods.
Why do we not use that test?


George Clyde Nowlan: As I tried to say a few moments ago, that is the law today. That is the law with respect to similar goods, that it shall be the fair market value. But the department has found in administrative practice that the margin of goods, the quantity of goods, the volume of similar goods to which you can apply that fair market rule is so small that we are forced to go to the other section and so this other definition, this other practice has been brought into being in order to correct the situation.


Charles Edward Rea: Is there any more discussion on section 37?


Some hon. Members:: Carried.


Charles Edward Rea: Shall we discuss section 38?


George Clyde Nowlan: That is the problem of applying a Buick price to a Chevrolet. You reach that problem in trying to value similar goods. That is what happens.


Lester Bowles Pearson: The minister thinks that the application of the cost of production is going to be easier.


George Clyde Nowlan: We think so. We think it is going to be fairer.


Charles Edward Rea: Shall we discuss section 38?


John Whitney Pickersgill: On section 38, can the
minister explain why the wording has been changed at the end of the new subsection (a). It appears that (a) corresponds to clause 6 of the existing section 35. Clause 6 of section 35 reads as follows:
(6) When the value for duty cannot be determined . . . the value for duty of the goods shall be such value as the minister determines.

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And the end of the new section reads as follows:
-the value for duty shall be determined in such manner as the minister prescribes.


George Clyde Nowlan: The reason for that is the very laudable desire of this government to make this act more generous and more workable and to safeguard the taxpayers. Under the existing section there would be no right of appeal but in the new section as it is now there will be a right of appeal and we have drafted it deliberately, so as to provide for that right of appeal.


John Whitney Pickersgill: That seems to be quite a laudable thing to have done. Naturally I have no criticism of it. But there does seem to be a more fundamental criticism that I would like to make and in view of the complicated nature of this subject I will try to make it as explicitly as possible and to stick pretty closely to the wording of my notes and not to try any freewheeling.


George Clyde Nowlan: I haven't any notes, that is the trouble.


John Whitney Pickersgill: I have no one to prompt me as has the minister. It does appear to us that if the application of clauses (b), (c) and
(d)	were limited to the conditions mentioned in clause (a), then there would be relatively little objection to section 38, since all the special cases mentioned in the subsequent clauses would merely make the general provision in clause (a) more explicit and, as I have said, this would help to clarify the act and possibly to reduce the administrative complexity.
I admit I put this forward with some hesitation because I have never had anything to do with administering the Customs Act which I gather is more complicated, though perhaps it does not get him into any more trouble, than the administering of the Immigration Act.
As these clauses are presently worded, their application does not seem to be limited by the conditions in clause (a) and they therefore seem to us to be unacceptable because of the very wide discretionary powers they give to the minister. As the clauses now read it appears that the value of the goods which are not fully manufactured or which are used or are not of prime quality or which constitute a job will be determined as the minister prescribes, or if the minister is of the opinion that there is an unusual situation he shall determine the value of duty.
As I said before, we do not minimize the complexity of the varied circumstances which can arise under this section and the fact that there are all kinds of special cases which do and inevitably must arise when there is as much trade as there is coming into this country and that in many of these cases the

circumstances cannot possibly be covered by any general rules or principles which even the wisest of us could devise. We do feel, however, that the provisions contained in this section are too wide and arbitrary and that they would greatly and unduly restrict the application of the fair market principle.
There does not seem to be any good reason why that principle should not be applied whenever possible to the most important sector of goods which are not fully manufactured or are not of prime quality and as the clauses now read they seem to have the effect of reducing the power to tax which belongs exclusively to parliament, which power we do not wish to see abridged and they do not appear to us to be in conformity with the spirit and objectives of GATT.
We think it might be possible to improve this section somewhat by an amendment and therefore, without further ado, I am going to move a rather lengthy amendment of which I shall send a copy to the minister immediately, to the following effect.
That in section 38 all the words after "cases" in line 26 be deleted and replaced by the following:
"The value for duty cannot be determined under section 36 or 37 for the reason that like or similar goods are not sold in the country of export or are not sold in such country in the circumstances described in those sections, and in particular but without restricting the generality of the foregoing,
(a)	where the goods are imported
(i)	are intended to be assembled, packaged or further manufactured in Canada or are intended to enter into the course of manufacture in Canada.
(ii)	are used or obsolete goods,
(iii)	are not prime quality goods as known in the trade, or are known in the trade as remnants, close-outs or discontinued lines or are surplus goods.
(iv)	constitute a job lot, or
(v)	are intended to be used directly in the process of manufacture or production of goods and like goods are not sold in the country of export,
(b)	where like goods are leased but not sold in the country of export, or
(c)	the minister is of the opinion that by reason of unusual circumstances the application of sections 36 and 37 is impracticable, the value for duty shall be determined in such manner as the minister prescribes."
I admit this is very complex, but most of it is a repetition of what is already in the clause. There are one or two minor variations but it is all made dependent upon the main provision.


Lester Bowles Pearson: While the minister is
studying the improving amendment to this section may I point out, because I made a good deal of this in my previous discussion of the subject, that this section 38 is the part of the bill to which we took greatest exception, particularly section 38 (b), I ask the minister to consider the attitude of this government if the United States government had a section of this kind in its legislation

which read, "Where in any case or class of cases the goods imported" and I go down to (v):
-are intended to be used directly in the process of manufacture or production of goods and like goods are not sold in the country of export.
The minister could determine the duty in such manner as he likes. That would mean that if we were exporters of some semimanufactured goods to the United States and if the United States had a provision of this kind the customs people in that country could fix any duty they wished on that Canadian import, and they would not have to prove under this section that any damage was done to the United States producers. All they would have to do is to decide that goods were in the process of manufacture and they could apply arbitrary customs duties as they desired. Surely that is directly contrary to GATT.


George Clyde Nowlan: I notice that this section 38 is one which has caused some concern to the newspapers and has even caused a good friend of the Leader of the Opposition, Michael Barkway, some concern as evidenced when he spoke a week ago about international trade. These unfortunate suspicions to which I referred this afternoon, which have coloured the imaginations of hon. gentlemen opposite with respect to the bill, are particularly noticeable when we are dealing with section 38, and I think if they would only divest themselves of the suspicions and look upon this bill in the same broad, generous and Christian way in which the government has looked upon it they would find that their suspicions were unfounded.


Lester Bowles Pearson: The minister is beginning to talk like Mr. C. D. Howe.


John Whitney Pickersgill: He is sitting in the same seat.


George Clyde Nowlan: Then I think they would have no such worries, but the hon. member for Bonavista-Twillingate will notice that I have not studied his amendment as yet because I am having it looked over by the officers. It is not, I think, one which the government can accept, however, because it concerns all these classes, it is a catch-all section which deals with various classes and, for instance, suDsection (a) has no reference at all to subsection (b) in any way, shape or form. Subsection (a) would cover goods from a country where this is no freedom of economy, for example a country behind the iron curtain, in which case it would be impossible to determine value. Or it could cover a lot of cases where we have such things as architects' plans.


John Whitney Pickersgill: Do not speak of the subject.
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George Clyde Nowlan: Yes, that is an unfortunate
example which perhaps I should not have brought up, but there might be a case where plans were prepared in the United States from blueprints and were sent here to a subsidiary company for use, and it would be impossible to find the cost. There might be thousands of hours spent in preparing these plans in the United States and if we were to apply sections 36 and 37, we would then have to apply section 38 of the act. This is the relevant section to enable us to fix a duty in such a case.
As I have said, we would like to be perfectly fair in fixing values and, as the opposition has said, we agree that the most fair way is by taking the fair market value, but there are cases where fair market value would create hardship and where fair market value would even work the other way, where you could get goods coming in from foreign countries, such as countries behind the iron curtain, and where you could not possibly fix a fair market value. In such a case the minister certainly would have a right to fix a value on which the duty is going to be imposed on such goods.
I can give the committee hundreds of examples and with regard to one of them I agree with the Leader of the Opposition that if the United States government-the secretary of the treasury, whoever he is- were to impose excessive duties under this section we might say that under the test of fair market value the value for duty might very easily be too high, and the intention, far removed from the dark clouds of suspicion which so spoiled the dinners of hon. gentlemen opposite, is to use that as a relieving section and to fix duties when circumstances justify at a lower rate.


John Whitney Pickersgill: The minister said we were suspicious before, but I can tell him we are twice as suspicious now. What he has been trying to say is that this is a clause to enable him to give secret abatements of duty. He has suggested he could reduce the valuation below fair market value. I am in favour of having duties reduced, but at the same time there should be a standard applicable to all, and a standard that is known.


Lester Bowles Pearson: We think this amendment will bring it into harmony with GATT. We think it is now in violation of GATT.


George Clyde Nowlan: The government cannot accept the amendment. We think it will render the section inoperative and destroy the whole purpose of the section.
Amendment (Mr. Pickersgill) negatived: Yeas, 26; nays, 72.

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Leon David Crestohl: Before we leave this section I should like to ask the minister to look at subclause (d). The minister is of the opinion that in unusual circumstances the value for duty shall be determined as he prescribes. I think, however, that those who export to Canada from other countries should also know precisely the basis for calculating the duties, and if there are mysteries-and there appear to be mysterious aspects to this-other countries are not given the basis on which they are able to calculate the value for duty which they should have.
I should like to make one other observation to the minister, namely that as we proceed the matter is becoming more complicated and more difficult to understand. The other day I referred to Philadelphia lawyers and I spoke about cruelty to lawyers. I might have added cruelty to ministers and deputy ministers and officials in expecting them to be able to establish value for duty according to the terms of this bill. I would ask the minister to explain to the house what is meant by unusual circumstances. If he could do this, I think it would be helpful.


George Clyde Nowlan: I will give the hon. member an	example-correspondence courses-the
LaSalle course, for example. How much do you charge for books and how much do you allow for tuition? There are hundreds of individual examples which I could give, including obsolete machinery, goods coming from behind the iron curtain and so on. I appreciate what the hon. member says about there being cruelty to the minister, and it would be unless the minister had very capable officials who have the experience and the background necessary to enable them to do this work. This practice has been carried on by the department for several years and in the great majority of cases which come forward under this section which says that where the value for duty cannot be fixed it will be determined by the minister, it means, in effect, that it will be fixed by the officials because, in most cases the minister knows nothing about them.
As to the public knowing, the rules applying to different classes are always available in the departmental offices and any exporter or importer can go to the offices and be satisfied-at least he will be told-as to the basis on which the duty is imposed.


Leon David Crestohl: May I give an example. Let us assume that an exporter in the United States wants to ship something to Canada. He should go to the Canadian authorities in the United States and ask them what will be the value for duty of this article which he wishes to send to Canada. I do not think there is an official in the United States in
the Canadian service who would be in a position to tell that exporter what the value for duty will be, or what the basis for calculating will be. That is the example I would like the minister to deal with.


George Clyde Nowlan: There are millions of dollars worth of goods coming across every day. I do not think many exporters have much difficulty in determining the basis of duty. There are individual cases, of course, as the hon. member said. In a case such as that, if information is not available, the person- usually it is a person in Canada who is worrying about the duty because he would have to pay it-in the United States could write the office of the Department of National Revenue in Ottawa and the information would be supplied to him forthwith.


Mr. Carter:: Mr. Chairman, I am going to move an amendment which I am sure the government will want to accept. As my leader and others of my colleagues have pointed out, this new section 38 is one of the sections which bestows arbitrary powers upon the minister. The government has announced a policy of expansion of trade with Britain and with the commonwealth. In view of that announcement we would hope that there would be no intention whatever to use the powers granted under this clause to restrict goods coming in from Britain and from commonwealth countries. However, in view of the forthcoming trade conference, we feel that we should make our position abundantly clear without any shadow of doubt whatsoever. Therefore, I move:
That the new section 38(b) be amended by adding the words "And not entitled to entry under the British preferential tariff" after the word "imported" in line 32.


George Clyde Nowlan: My hon. friend is undoubtedly sincere in trying to help the importation of British goods. I simply point out that the amendment would prejudice the British or anyone else who benefits by the preferential tariff, because we would have to apply the value for duty, and they would be prejudiced rather than helped. If he wants to push the amendment why, of course, we will have to defeat it, because there is no question about it, the amendment is just negativing what the hon. member had in mind. It is also a fact that today we cannot distinguish between one country and another. I hope when he thinks it over he will drop his amendment because otherwise he will defeat his own purpose.


Chesley William Carter: Can the minister give us an illustration so that we can understand the point he has just made because it is certainly not clear from anything he has said. He has just made the statement that it was a negative

of what we were trying to accomplish but he did not illustrate it in any way at all.


George Clyde Nowlan: Goods could be coming in from Great Britain which would receive preferential treatment or a reduction below the fair market value. If you say this shall not be applied to goods which benefit under the preference then, of course, you could not apply it at all. That is the trouble.


Lester Bowles Pearson: Surely, Mr. Chairman, the
minister is assuming that this section is going to be used in a way which would reduce tariffs. It could be applied the other way.


George Clyde Nowlan: Not if you say it cannot apply to certain classes of goods.


Lester Bowles Pearson: If it is not applied to certain classes of goods coming from British commonwealth countries under the British preferential treatment, then other sections will have to apply. But for the minister to say we would be defeating our case by moving this amendment because invariably it would be applied in such a way as to reduce the value on British goods, then I say that in the past customs officers have not operated in that way.
The Depuly Chairman:	Is the committee
ready for the question?
Amendment (Mr. Carter) negatived: yeas, 24; nays, 73.
The Depuly Chairman: Is there any further discussion on section 38?


Lester Bowles Pearson: Section 39 is an important section. It is new and it is contrary to GATT.
The Depuly Chairman: It is rather hard to hear the hon. member speaking because of the noise in the chamber. Will hon. members please keep their voices down?


Lester Bowles Pearson: Hon. members are not going to expedite the business of the committee in this way. There are a good many sections in the bill. We are going to deal with them with the seriousness to which they are entitled.
As I say, this is one of the most important sections in the bill. In our view, it is a violation of GATT because under the GATT escape clause it has to be proven that the country's trade was being affected by imports introduced under such conditions as to cause or threaten serious injury. We cannot understand why the minister did not transfer to this section the language of the GATT agreement. What he has said is:
Where the minister is satisfied that material injury has been or may be caused to any industry in Canada.
The GATT language is, "to cause or threaten serious injury". That is the first 57071-3-296
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weakness of this provision, and a weakness which will make it very difficult to bring it within the terms of GATT, a weakness which we hope to rectify by an amendment which would replace the words used by the words in GATT. Surely there should not be any difficulty about that. Therefore, Mr. Chairman, I move:
That, in section 39, the words "material injury has been or may be caused to any industry in Canada, or any portion thereof, by reason of the importation of any new or unused goods or class of such goods" be deleted and the following substituted therefor: "serious injury has been caused to, or threatens, domestic producers by reason of the importation of any new or unused goods or class of such goods not entitled to entry under the British preferential tariff".
Before this amendment is put, Mr. Chairman, perhaps I should add some words about the last part of it which exempts goods entitled to entry under the British preferential tariff. This qualification is embodied in another section of this bill. It is in a parallel section of the present act and the minister said this afternoon that it was taken out of this section so that it would conform to GATT. But it is in another section of the bill. Therefore, it seems to me that with the qualifying words we have used in the amendment, which are the words used in the GATT escape clause, there can be no possibility of this section being charged as a violation of GATT. Therefore we do ask the minister to include this qualification in this particular part of the bill.


George Clyde Nowlan: The words "material injury", of course, are the words which are used in the dumping section of GATT and that is why that phrase was used here. The expression "material injury" is the expression used there and for that reason it was adopted by the draftsmen here.


George James McIlraith: What is that reference?


George Clyde Nowlan: Personally I would have no objection to substituting the words which are suggested by the Leader of the Opposition but I certainly cannot accept the final qualification with respect to the British preference because I think the Leader of the Opposition is overlooking something. It is true that we have got that phraseology in one of the subsections which we have borrowed from the present act. I am told that section was put in there in 1932 at the time of the negotiations during the first imperial conference. It was put in at the request of the United Kingdom and has been kept there ever since. Since it was in before GATT and is part of it it has been accepted, and we feel that the use of that is not in any way creating any further differences or creating a preference between one country and another.

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But if 3'ou incorporated a new section and used that phrase we believe we would be having direct trouble with GATT and would be open to charges respecting it. Therefore we have not used it. Frankly, we do not think that section 39 is a violation of GATT at all. GATT has sufficient references to fair market value and ordinary course of trade procedures. Paragraph (b) of subsection 1 of section 36 of the bill refers to the ordinary course of trade. A man who is a manufacturer must have a certain amount of profit by way of return in addition to his actual costs. Section 39 requires that the value for duty be not less than that which obtains in the ordinary course of trade. The cost of production has a bearing on the general agreement and in a brief I have here it says that the final act stipulates that such duties shall not be levied unless the effect of the dumping is such as to cause or threaten material injury.
These conditions have been written into section 39 and are to apply before the cost of production basis may be used. Paragraphs 2 (a) and 2 (b) of article VII of GATT require that the actual value in the ordinary course of trade be taken as the criterion of value. Surely the ordinary cost of trade infers that a reasonable amount will be earned over the cost of production. Section 39 of the bill provides for the addition of an amount representing gross profit having regard to the gross profit generally earned in that particular trade or business in the country of export. If you turn to the interpretative notes of the general agreement you will find the following with respect to article VII:
The wording of subparagraph (a) and (b) permits a contracting party to assess duty uniformly either (1) on the basis of a particular exporter's prices of the imported merchandise, or (2) on the basis of the general price level of like merchandise.
Section 39 is intended merely to assess duty on the general price level of like merchandise and nothing more. This is interesting. At the review session of GATT in 1955 customs experts from all over the world, including some of our own, examined the cost of production clauses appearing in the legislation of several members of GATT, and there are cost of production clauses. Whatever they may have said verbally or whatever their thinking may have been, there was no reference in the report whatsoever to the inclusion of these cost of production clauses which have crept in between the former review and the one which took place in 1955.
I think my hon. friends must have rationalized this as consonant with GATT when they passed in 1953 what is in this bill section 40A (7) (a) establishing the fair market value at the end of the season, having in mind the values and so on at that time. The hon. member for Bonavista-Twillingate

expressed some misgivings or some doubt about it this afternoon, but at any rate the same principle is embodied there. That may be a matter of argument.


John Whitney Pickersgill: I would suggest it was.


George Clyde Nowlan: I am suggesting that it is. Certainly the government of the day must have rationalized that and said to themselves that it was not a violation of GATT or they would not have brought it before parliament for enactment. I think the same reasoning which would justify that also justifies section 39 in so far as GATT is concerned.


Lester Bowles Pearson: In so far as the first part of the minister's argument was concerned, which dealt with the inclusion of the words "not entitled to entry under the British preferential tariff" he has said that the provision in the existing law was accepted by GATT because it was there at the time the GATT agreement became effective. But I would remind the minister that when we signed GATT we had to make a good many changes in our customs law to conform to GATT, and he will remember the one case he mentioned this afternoon. He said we did not make this change until 1948. We made it in 1948 because although it was in the law before the GATT agreement was concluded it was inconsistent with GATT and we changed it. If this clause is inconsistent with GATT in respect of this bill which is new, then surely it is inconsistent with GATT in respect of a clause which was there when GATT was signed. I am not going to argue that point. The minister has another view on it.
I understood him to say that the amendment would be acceptable to him if the British preferential reference at the end is dropped and the wording of the clause is changed to conform to the exact words of the GATT escape clause, thereby making it more difficult for this clause to be invoked in the future.


George Clyde Nowlan: I should like to have a look at it.


Lester Bowles Pearson: It would be the amendment I have submitted but taking out the words at the end "under the British preferential tariff". It would just change the wording to conform with the actual wording of GATT. Perhaps the minister would let it stand.


George Clyde Nowlan: Have you got another copy there?


Lester Bowles Pearson: Yes, I can send my copy over to the minister.


Charles Edward Rea: Shall section 40 carry?


Mr. Caron:: This is one of the sections, Mr. Chairman, which is objectionable. This section further extends the arbitrary powers given to the minister by this bill. We have already contended that it would be practically impossible to obtain sufficient information to determine cost of production and gross profit, especially as they are defined in this bill. In most cases where these concepts should apply to the determination of value for duty under sections 37 and 39, the minister will be in a position to say that sufficient information has not been furnished or is not available and he will, therefore, be authorized to prescribe the value for duty.
The	minister will have that same
power and will be able to suspend the application of section 36 if he can claim simply that sufficient information has not been furnished to determine the fair market value. With such wording, the minister is not even obliged to seek the information and when it has been furnished he can still claim that it is not sufficient. Therefore, Mr. Chairman, may I move:
That the words "has not been furnished" be deleted and replaced by the expression "cannot be obtained".


George Clyde Nowlan: We cannot accept that amendment. This is designed to cover a situation, for instance, such as I described in connection with the iron curtain countries. You perhaps cannot get information there at all. There are some cases, not many, where you just cannot get the information. The man refuses to give it. This would not be a question of not obtaining it, it would be a matter of it being refused. The department today is driven sometimes to fairly desperate straits because of the failure to get information on which you can determine the fair market value. This is, shall we say, a somewhat persuasive section. It works both ways.
In so far as the iron curtain countries and other places are concerned, it will be used to get information. If we cannot get it, then we will have to impose values as we see fit. But armed with this section you can go to a manufacturer or a producer and say, we want the information. Without this he can, and very often has in the past, say I will not give it to you; what are you going to do about it? We cannot, therefore, accept the amendment.


Leon David Crestohl: Can the minister tell us in what way section 40 differs from subsection (d) of section 38?


George Clyde Nowlan: Is this section 38, or is this the old act?


Leon David Crestohl: Section 38 of this bill, at the top of the page.
57071-3-296J
Customs Act


George Clyde Nowlan: I am sorry, but I do not follow the hon. member.


Leon David Crestohl: How does section 40 differ from subsection (d) of section 38? In both cases the minister has authority to determine where the information is not available?


George Clyde Nowlan: I did not follow the hon. member, but I see now the subsection to which he is referring is on page 2 of the bill. As I said, section 40 is to get information where the information is either impossible to get or is refused. The other section to which the hon. member is referring is to give relief from the imposition of a duty which otherwise would be based on value, and the example I gave of the architect's plans and other things would come under that.


George James McIlraith: Before we leave section 40, do I understand the minister correctly that the proposed amendment would take away from him an obligation that he now proposes to place on the importer; that is, that the use of the expression "cannot be obtained" would take away from the department the right to force on the importer the obligation to furnish the information? Was that his point? He wants to be in a position to force the importer to provide the information?


George Clyde Nowlan: Yes, where it is refused, and that is the reason why I think the amendment would negative that.


Alexis Pierre Caron: I was of the opinion that the words "cannot be obtained" counteracted the example the minister gave us a while ago. However, I do not press the amendment, and if it is the wish of the committee I am willing to withdraw the amendment.


Charles Edward Rea: Has the hon. member permission to withdraw the amendment?


Some hon. Members:: Agreed.
Amendment (Mr. Caron) withdrawn.


Charles Edward Rea: Is there any discussion on 40A?


Lester Bowles Pearson: This subsection, Mr. Chairman, corresponds to the present section 35, subsection 8, except that in our opinion it introduces a change which we think is likely to lead to further administrative difficulties. The minister, in discussing the previous sections, does not feel that way about it, so we will just make our position known and let it go.


Charles Edward Rea: Is there any discussion on 40B? We will go back to section 39.


George Clyde Nowlan: Perhaps we could allow clause 1 to stand, because that contains section 39.

Customs Act
The Depuiy Chairman: Shall clause 1 stand by unanimous consent of the committee?


Some hon. Members:: Agreed.
On clause 2-Appeals to Exchequer Court on questions of law.


George James McIlraith: I have a couple of questions I want to ask on this clause. The extension of time, of course, for appeal from 30 days to 60 is quite good. What concerns me is this: If the minister will look at the proposed section 45 (c), he will find it reads as follows:
Any person who entered an appearance in accordance with subsection (2) of section 44, if he has a substantial interest in the appeal and has obtained leave from the court or a judge thereof,
The point about which I want to ask the minister for an explanation is this: The minister requires the person seeking an appeal to obtain leave from the court or a judge thereof, and that is the practice now as I understand it. But he has also added the words, "if he has a substantial interest in the appeal". As I read this subsection it places on the person appealing an obligation not only of obtaining his order for leave to appeal but also, when he comes into court on the hearing of the appeal, to prove his substantial interest. It seems to me that that is at best confusing, and possibly going farther than the minister intended. I wonder if he would just explain that phrase?


George Clyde Nowlan: I think the hon. member has misconceived the intent. The proving of the interest has to be done, or the intention of the subsection anyway is that, when he applies for leave to appeal. He would not have to prove his interest again after he went to court. The hon. member will realize that this is an improvement over the practice heretofore applicable.


George James McIlraith: The minister has stated what I thought was his intention quite clearly. I am not sure the subsection provides that that would be one of the criteria applied on any application for leave to appeal, and in the light of that I am a little curious why these words were put in. I quite agree that no judge or court would grant the leave if there were no substantial interest shown in an appeal, and I am just curious about it. I do not propose pressing it by an amendment, but I wonder if the minister would have a further look at it.


George Clyde Nowlan: I am told by a gentleman who has had very substantial experience before the appeal board in the last few years that there have been many people applying for leave to appeal, and who have appealed, who had very little interest in the appeal. As the hon. member knows, there are various inducements that perhaps sometimes enter

into these matters. It was felt that the parties themselves, the minister, the deputy minister and the other person should appeal automatically without leave. Where anyone else applied for leave, he had to satisfy the judge that he had a substantial interest. If that was the intention of the draftsman whom I presume will represent the department in appeals, I am quite certain that question will never be raised.


George James McIlraith: I am quite happy to leave this thing to the courts or to the judge. I think that is the proper practice but it seems to me that the wording here restricts the number of persons who can apply to a judge and restricts them improperly. I am concerned with that point.


George Clyde Nowlan: It is to cut out frivolous appeals, or frivolous in effect.


George James McIlraith: Oh, the costs will cut those off. It seems to me the matter should be left to the determination of the judge of the court. That is the point. Notwithstanding the assurance he has given, I wish the minister would take another look at the language used in that subsection perhaps before it is dealt with in another place.
The Depuiy Chairman: Is there any more discussion on section 45?


George James McIlraith: Just before clause 2 carries, may I say that my remarks-and I will not repeat them-are of course applicable where similar language is used in the other subsections.


[Stage Direction]
Clause agreed to.
Clauses 3 and 5 agreed to.
The Depuiy Chairman: Shall we go back to clause 1?
George James McIlraith: Before we do that, may I make a request?


Lester Bowles Pearson: We have been rushing too fast.


George James McIlraith: Will you hold section 47?


George Clyde Nowlan: Surely.


George James McIlraith: Perhaps we could go back to the other one, section 47.
The Depuiy Chairman: That is clause 4?


George James McIlraith: Yes. Could we leave that for a moment and come back to it?
Clause 4 stands.
On clause 1-Determination of value for duty.
The Depuiy Chairman: Going back to clause 1, we are considering an amendment to clause 1.


George Clyde Nowlan: I am told that we cannot take that amendment with that wording as it is,

because it would get us into difficulty into some other part of the act. We cannot accept the words "domestic producers". That is too narrow an interpretation, too narrow a phrase and it could easily get us into serious trouble. I am quite satisfied of the fact that we are not violating GATT by using those words. If we are doing so, then the hon. gentleman has certainly made his point ih connection with it. Certainly I am not trying to be punctilious about the wording. I should like to have achieved wording that would be satisfactory to the Leader of the Opposition as he well knows. But in view of the technical difficulties involved, I am obliged to say that we could not accept that amendment.


Lester Bowles Pearson: Perhqps it would save time if we go to the amendment I originally submitted and have it disposed of.


George Clyde Nowlan: Very well.
Amendment (Mr. Pearson) negatived: yeas, 23; nays, 74.


Charles Edward Rea: I declare the amendment lost. Shall clause 1 carry?


[Stage Direction]
Clause agreed to.
Charles Edward Rea: I believe the hon. member for Ottawa West had a question with regard to clause 4.
On clause 4-Invoice to show fair market value.


George James McIlraith: There is one point that I should like to bring to the attention of the minister, namely part of the new proposed section 47, subsection (1). The particular phrase with which I am concerned is "determined in accordance with sections 36 to 40B", where they appear as proposed new sections. The point is this. The section proposes that the fair market value of the goods to which it relates shall be determined in accordance with those sections indicated. As I read the bill, all these sections except section 36 do not recognize fair market value as the basis. They provide for either ministerial discretion or cost of production plus profit. One of them-that is section 40-deals with conditions when the fair market value is not available. It therefore seems to me that fair market value cannot, as this section provides, be determined in accordance with sections 37, 38, 39, 40, 40A and 40B for the very simple reason that these sections authorize exceptions to the fair market value principle and have in fact nothing to do with the fair market value. If I am right, this section 47 will apply only to the conditions described in section 36 and not to the others. I wonder whether the minister would mind explaining at this point how he intends to overcome this difficulty.
Customs Act


George Clyde Nowlan: I am told that is language which was borrowed from the existing legislation.


George James McIlraith: The terminology "sections 36 to 40B" is new and different.


George Clyde Nowlan: That is true.


George James McIlraith: That is the point.


George Clyde Nowlan: There was fair market value in this previously. You had ministerial discretion and you had various matters, as the hon. member will recall. As I said, that language has been borrowed and was used in the thing heretofore. It might be that value for duty would have been happier language. Some consideration perhaps should have been given to that instead of fair market value. At least that is the language which has been used.


George James McIlraith: The very point is that most of the language is borrowed but that the wording "section 38 to 40(b)" is not borrowed. That wording is new and sections 36 to 40(b) do not relate, as I understand it, to the terminology "fair market value". I just do not know how the minister is going to get over that difficulty in this section.
Bill reported.


George Clyde Nowlan: the third reading of the bill.


Lester Bowles Pearson: Mr. Speaker, before this bill
is put to the house I would just like to say a word. We do not propose to divide the house on third reading, but I want to make clear once again our position in this matter. We have carried a lot of provisions, a lot of sections and subsections tonight, and perhaps we may have lost sight of the over-all objective of this bill in the haste in which we have operated. The doubts and fears we had about this bill and its effects on our customs practice and legislation and thereby on our trade have not been removed.


George Clyde Nowlan: They must have been largely
dissipated, though.


Lester Bowles Pearson: If anyone could dissipate
them, then it would be the minister, because he is a very plausible person and a very good debater. He disarms the opposition in an engaging way, but in this case his efforts have not succeeded in so far as I am concerned, and our objections to this bill remain. The minister has said this bill is primarily one of simplification and clarification, but I think we have shown without any doubt that it is more than that. I feel certain we have shown there are some very important new provisions in this bill.

Customs Act


George Clyde Nowlan: Section 39.


Lester Bowles Pearson: Section 39 and some others.
If it is going to have the effect which the minister hoped it would have it is much more than a bill of simplification and clarification.
Before six o'clock the minister pointed out that we had used the provisions in the old section 38 in such emergency cases as the importation of flags and patriotic souvenirs at one time or another under the Liberal administration, and it is quite true, as I said in my opening statement, that in past years under our administration there have been circumstances when we thought it was appropriate to take care of cases by means of this section. I would have thought that in case of necessity for an emergency measure, assuming that these provisions were used in those days for such a purpose they should be quite adequate for the government today, and it has not been shown to us why it has been necessary to make all these changes.
Some of the simplifications and clarifications have perhaps improved the customs and anti-dumping legislation to a certain extent, and the minister has said that some of these provisions will be used to lower the value, and thereby ease the import of goods into Canada. It has not been our experience, however, in years past that legislation of this kind has very often been used for that purpose, and therefore we remain opposed to this bill in the sense that it does give increased power over the most important matter of the imposition of value which affects duty and thereby affects taxation.
We feel that the trend is in the direction of the restriction of trade rather than the expansion of trade; we feel this bill, if passed, will have the opposite effect to the trend in the United States, when congress down there is in fact taking action during this session which will help to expand rather than restrict trade. We think that at this time, on the eve of the commonwealth economic conference there should be no move of this kind which could be interpreted as restrictive, and for those reasons we remain opposed to the bill.
We will see how it works out in practice but the minister seems to me, on occasion, to adopt an attitude which I confess I have experienced before now on the other side of this house. Perhaps I might put it this way without offence to him. For the details of customs legislation let fools contest, what's best administered is best.
I am sure the department over which the minister presides will administer this legislation to the best of its ability, honestly and sincerely, but we do think the principles

behind the legislation are wrong, and we therefore remain opposed to it.


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


Some hon. Members:: On division.
Motion agreed to on division, bill read the third time and passed.



CANADIAN CITIZENSHIP ACT


Ellen Louks Fairclough: the second reading of Bill No. C-58, to amend the Canadian Citizenship Act.
She said: Mr. Speaker, in speaking on second reading of this bill I have a few general remarks to make. I think the bill with the explanatory notes pretty well stands on its own feet, but I have noticed certain remarks have been made about it and certain expressions of reservations have been voiced by members and others.
Subsection (1) of section 19 of the present act gives the governor in council power to revoke the citizenship of naturalized Canadians for the various reasons enumerated in that subsection. Briefly the grounds are that the person has: 1, assisted an enemy of Canada in time of war; 2, obtained his citizenship by false representation or fraud; 3, has resided outside of Canada for six years and has not maintained substantial connection with Canada; 4, has resided outside of Canada for two years in a country of which he was a citizen before he became a Canadian citizen and has not maintained substantial connection with Canada; 5, while out of Canada has shown disaffection or disloyalty to Her Majesty; or 6, has been convicted by a Canadian court of an offence involving disaffection or disloyalty to Her Majesty.
A natural-born Canadian citizen cannot lose his Canadian citizenship for any of these reasons and many naturalized Canadians and natural born Canadians as well feel very strongly that these provisions discriminate against the naturalized Canadian citizen and consequently the citizenship of a naturalized Canadian is sometimes referred to as being second class citizenship.
The amendment will repeal the existing subsection (1) of section 19 altogether, but it must be noted that under the amendment the naturalized Canadian citizen can still have his Canadian citizenship revoked by the governor in council if he is charged with a treasonable offence and, being abroad, fails to return to Canada and stand trial for that

offence. If such person does return to Canada and is convicted, he will suffer the punishment prescribed under the Criminal Code or the Official Secrets Act for the offence but he will not be subject to loss of citizenship.
An alien seeking Canadian citizenship must satisfy a court that he has the necessary qualifications required by the law for Canadian citizenship, which include such things as good character, an adequate knowledge of English or French, an adequate knowledge of the responsibility and privileges of Canadian citizenship. These qualifications are set out in section 10 of the act and it will be noted that the bill proposes amending paragraphs (f) of subsection (1) of section 10 to require the applicant to satisfy a court that he intends to comply with the oath of allegiance set forth in the second schedule.
Representations have been made to me since the first reading of this bill to the effect that the new proposed paragraph (c) of clause 19(1) might be misinterpreted. Provision, of course, is made for enquiry into any case under section 19(4) of the act. However, after serious consideration, I feel it is only proper to remove any doubt as to the intention of this bill, and therefore when we come to the appropriate section I shall ask one of my colleagues to move that this paragraph be deleted from the bill.
Under the existing act difficult questions of law and fact sometimes arise in relation to the question of whether a naturalized or natural born Canadian citizen has ceased to be a Canadian citizen. The bill provides machinery whereby these difficult cases can be referred to a court or a commission for study and a ruling. The act provides that any commission established under subsection (4) of section 19 must be presided over by a person who holds or has held high judicial office. So, therefore, whether the question is referred to a court or a commission the issue will be dealt with by a competent tribunal. This guarantees the naturalized Canadian a greater security in his new citizenship, and will encourage him in a fuller and more useful participation in Canadian life.


John Whitney Pickersgill: I must say that the hon. lady by her explanation has somewhat disarmed me and to a considerable extent shortened any observation I might otherwise have made, because I was very interested to observe that after the Leader of the Opposition (Mr. Pearson) made an oblique reference to this legislation in the debate on another bill there was a good deal of fluttering on the benches opposite-


Howard Charles Green: Smiling.
Canadian Citizenship Act


John Whitney Pickersgill: And I imagine it occurred to the minister that to introduce a bill of rights and a bill providing for thought police on the same day was not consistent, and I am very glad the hon. lady has had second thoughts about her thought police. It does seem to me that what is left of the bill is so little-that we are only going to have two classes of naturalized persons who will not be on that basis-that once we have a naturalized person he should have all the rights of a natural born person. That, I may say, is a principle about which I know there are a good many administrative inconveniences, but the hon. lady under her bill is removing from the lists of revocable cases all those people who have permanently withdrawn their connection from Canada anyway. It seems to me that the number of persons who come under the new section 19 is so small that we may just as well take the bad with the good.
I do think the hon. lady should consult with the Minister of Justice and with the law officers of the crown to see whether some way could be found to make it clear that a person who gets citizenship by fraud never was a citizen, in other words, we would not be taking it away from him, in the same way as a distinction is made between annulment and divorce. It could be got around in that way, and we would be able to boast that once you became a naturalized Canadian citizen you had all the rights of a Canadian born citizen, and it seems to me that the advantages of having that would be so great that we should go the whole hog and do that.
Perhaps I have not studied this to the extent that I might have done, but I do not believe it would be competent for us to amend the bill in committee. To accomplish what I have in mind I have an amendment to move on second reading which seems to me to fill all the requirements of citation 382 of Beauchesne and I hope we can dispose of it quickly without any long discussion about it, and have the sense of the house on the principle of this amendment. I therefore move, seconded by the hon. member for Villeneuve (Mr. Dumas):
That all the words after the word "that" be struck out and the following substituted therefor:
"This house declines to give second reading to this bill because it fails to provide that naturalized citizens shall have equality of rights and status with natural born citizens."


Ellen Louks Fairclough: Of course, this amendment comes as somewhat of a surprise, but looking at it quickly it seems to me that it could have no other effect than to kill the bill, and as such it seems to me it is out of order.

Canadian Citizenship Act


John Whitney Pickersgill: I admit that the intention of the amendment would kill the bill, but that would have been the effect of an amendment framed in almost precisely similar terms which the Speaker ruled in order after quite extensive argument two days ago which had precisely the same force. This is a resolution declaratory of a principle differing from the policy and provisions of the bill and it seems therefore to me to be quite competent, and I would suggest to the hon. lady that instead of spending a lot of time in discussing the point of order we divide the house on the amendment and get it over with.


Ellen Louks Fairclough: It seems to me that Your Honour should rule on this. I will maintain the position I took at first, that is that this has the effect of killing the bill and I ask Your Honour to consider it very carefully.


John Whitney Pickersgill: It is debatable. The hon. lady could speak on it if she wishes. She could speak on it all night because a minister speaking to an amendment is not limited as
to time.


Mr. Fleming (Eglinion):: Mr. Speaker may I address you briefly on the point of order and support the position taken by my colleague, the Minister of Citizenship and Immigration. It may appear, Mr. Speaker, that the point raised is not unlike that presented a couple of days ago upon which Mr. Speaker at that time made a ruling. But I would respectfully invite you, Mr. Speaker, to consider these aspects of the point raised by the amendment.
My hon. friend, the mover of the amendment, seeks to bring his amendment within the rule that it is competent to an hon. member to introduce on second reading an amendment that asserts a contrary principle. That position, of course, is still subject to the necessity of proving relevancy. In my respectful submission, Mr. Speaker, this amendment does not assert a contrary principle. It purports, rather, to give a reason for outright opposition to the motion for second reading.
An amendment that does no more than assert a negative is, of course, clearly out of order. An amendment that merely gives a reason, Mr. Speaker, for asserting opposition to the motion for second reading is clearly out of order. My hon. friend, therefore, must satisfy you, Mr. Speaker, that his motion does more than create a negative, that it does more than simply give a reason for opposing the motion and that it does set up a contrary principle still relevant to the main motion. In my respectful submission neither in substance nor in form does this amendment set up a contrary principle. It

is simply a statement that the house should decline to give second reading to the bill because, and here is the reason:
-it fails to provide that naturalized citizens shall have equality of rights and status with natural-born citizens.
That is an attempt to give a reason, Mr. Speaker, why the motion should not pass; it is an attempt to set up a reason for a negative. There is no contrary principle set up there, Mr. Speaker; the amendment has not been drawn in that form. It has neither that form nor that effect.
So far as the ruling of Mr. Speaker the other day is concerned, although it is not open to debate on this occasion I respectfully submit to you that it is no support for the ruling that the mover of this motion is asking you to make today. The amendment clearly does not assert a principle contrary to the principle of this bill.


John Whitney Pickersgill: Mr. Speaker, do you desire to hear my reply, and I will try to make it very brief? The first point raised by the Minister of Finance was the question of relevancy. This bill seeks to reduce the disabilities under which certain naturalized citizens suffer. We suggest that they should all be removed. Therefore, there can be no question about the relevancy of it. It is simply going a little farther than the government is prepared to go in the bill, but in the same direction.
It is certainly more than a negative. It is indeed even more positive than the bill. It is going farther in the same direction and it is not seeking to negative this bill so much as to urge the government to bring in a bill which will do a little more in the same relevant field than this one does.
The minister said that to be in order it was necessary for an amendment to be contrary. That, of course, is not the word in Beauchesne. Citation 382 of Beauchesne reads in part:
-a resolution declaratory of some principle adverse to, or differing from,-
I do not argue that this is adverse to, but I do argue-as it palpably is-that it is differing from, and it is differing from, but relevant, and it certainly is declaratory of a principle, the principle being that naturalized citizens should have equality of rights and status with natural born citizens. It does seem to me that it satisfies all of the requirements that the Minister of Finance suggested would have to be satisfied.


Leon David Crestohl: Mr. Speaker, on the point of order, the principle of the bill in one form or another does state that there are two different classifications of Canadian citizens which are to be treated differently under

certain circumstances. If it is possible to avoid dividing the house on the matter, of course, it would be preferable. I am just addressing myself to the minister directly. I have a proposed amendment to one of the sections and if the minister could possibly see her way to accept the proposed amendment then we do not have-


The Acting Speaker (Mr. Rea):: We are
talking on a point of order.


Leon David Crestohl: Mr. Speaker, you are perfectly right, but I am suggesting that perhaps we can avoid dividing the house. If you want to insist on dividing the house, all right. I am making a proposition that we can avoid making an issue of this in the house if I could have some assurance that this amendment would be considered.


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


Leon David Crestohl: All right, if you insist on dividing the house.


The Acting Speaker (Mr. Rea):: Does the hon. member wish to say something more before I make my ruling? If he does, I would be happy to hear him. At page 531 of May's Parliamentary Practice, sixteenth edition, we find the following:
-nor anticipate amendments thereto which may be moved in committee.
In my opinion this amendment does not oppose the principle of the bill; it anticipates the committee stage and therefore I rule it out of order.


John Whitney Pickersgill: I wonder if Your Honour would permit-


The Acting Speaker (Mr. Rea):: The ruling has been made.


John Whitney Pickersgill: Your Honour is not prepared to have any comment made at all?


The Acting Speaker (Mr. Rea):: The ruling has been made.


Frank Howard: Mr. Speaker, before I proceed to make a few comments on second reading, since it is a few minutes past ten o'clock, I wonder whether you would like to ascertain the wishes of the house with respect to proceeding?


The Acting Speaker (Mr. Rea):: Would the house agree to give unanimous consent to continue for a while?


Some hon. Members:: Agreed.


Frank Howard: I am thinking specifically, Mr. Speaker, of hon. members in terms of this bill. Today in speaking on another bill that will have an effect similar to the effect of sections of the Canadian Citizenship Act, 57071-3-297
Canadian Citizenship Act the Prime Minister (Mr. Diefenbaker) indicated that he hoped the bill of rights when it became law would make parliament more cautious in developing its legislative program, would make parliament more concerned with the rights and freedoms of individuals. This is one of the first opportunities-I would say the first opportunity-that we have had, following the declarations of the Prime Minister, the Leader of the Opposition (Mr. Pearson) and the hon. member for Assiniboia (Mr. Argue), with respect to the bill of rights to consider legislation which has a somewhat parallel course to that announced in the bill of rights today. In our consideration of this bill we should follow the thoughts expressed by the Prime Minister earlier today when he said parliament should become more cautious in the future and more concerned with the rights and freedoms of individuals when it considers legislation.
I might add that even though I am trespassing a bit in this, the general thoughts that I have and which the C.C.F. have with respect to this bill follow the same thoughts expressed by the hon. member for Bonavista-Twillingate (Mr. Pickersgill) in that we feel that naturalized citizens should have equality of rights and status under the act as natural born citizens have, and I would hope that the minister would undertake to make some statement. I am sure it would meet with the unanimous approval of the house if she would express the thought that it is the hope of the government, if not today, if not on this bill then at some time in the immediate future, to move in the direction of placing natural bom Canadian citizens and people who become citizens under this act on the same basis.
I must say that I also appreciate the minister indicating that she intends to ask one of her colleagues to move an amendment for the deletion of a particular clause. If she does not have the wording already prepared I would be quite prepared to send it over to her because we have somewhat the same idea in mind. She will not have any difficulty in getting support for that.
There is one thing I had hoped would happen ever since the speech from the throne indicated that amendments to the citizenship act would be introduced to clear up certain discriminatory features. I think it would have been much more acceptable if the minister could have introduced legislation to remove the inconsistencies that exist all across the country with respect to people becoming citizens. I refer to the questions they are asked in the various courts across the nation and the lack of guidance to judges in asking questions of prospective citizens. We know that even in the same
4694	HOUSE OF
Canadian Citizenship Act province different rules are applied in one part of a province as opposed to another because of the attitude of the judge conducting the inquiry into the citizenship application. We find that it is relatively easier in some areas than in others to become a Canadian citizen because no general guidance is given judges in the act and they are pretty well on their own. It would have been nicer if the minister could have introduced a more extensive bill at this time to do away with these inconsistencies. There are a number of features in the bill itself that we may want to deal with in the committee stage but for the time being I will not say any more.


Leon David Crestohl: Mr. Speaker, as the two previous speakers have already mentioned I think it is somewhat significant that the citizenship bill should come up for debate on the same day as the bill of rights, and if I heard correctly this is not the first time this coincidence has happened. I think I heard the hon. member for Assiniboia (Mr. Argue) mention today that in 1945 a similar coincidence developed when a resolution for a bill of rights was introduced on the same day that the citizenship act was adopted. I rather pay some attention to this strange coincidence, and I should like to consider this matter from that standpoint and not at all from a party standpoint as it does not have any political significance whatever. I am confident that a matter of this kind will be considered purely on its merits by the house and by the minister who has all the sympathy necessary for considering citizenship in Canada.
Actually the premise of what I should like to say exists in the bill itself. The bill does classify citizens so far as losing their citizenship is concerned. The bill indicates that under certain conditions a naturalized citizen can lose his citizenship but no indication is given that for the same offences or under the same conditions a natural-born citizen will also lose his citizenship.
Let me illustrate what I mean. It is suggested that when a naturalized citizen commits the offence of treason or commits an offence against the Official Secrets Act he can lose his citizenship. A native born citizen can also commit treason and can also be found guilty of an offence against the Official Secrets Act. If a natural born citizen and a naturalized citizen both commit the offence of treason and are found guilty of the same offence I think the punishment should be the same for both.


Howard Charles Green: May I ask the hon. member a question? Does he not realize that the essence of the offence is refusing to come back to Canada to be tried?


Leon David Crestohl: Certainly I realize that, but the same thing applies to a natural born citizen who may commit the offence of treason and leave the country. If a notice is sent to him under the bill and he does not come back to face either a preliminary inquiry or a trial, nowhere is it indicated that the natural born citizen will lose his citizenship under these circumstances.


Mr. Browne (St. John's West):: May I suggest to the hon. member that he cannot lose it unless he takes up citizenship in some other country.


Leon David Crestohl: Then the legislation should clearly state so. My submission is that it should apply to both who commit the same offence and fail to return to Canada. The natural born and the naturalized citizen should be treated in the same way and punished identically for having committed the same offence. I think my proposition is quite clear and simple and I do not think I am asking for anything that is not reasonable under the circumstances. I think the legislation should so provide. Otherwise, what are we doing? We are actually creating a cleavage between two classes of citizens. We are creating different rights for different types of citizens and that is not just a simple matter. I should like to point out that one of our provinces has made the difference even clearer. In the province of Quebec the election act adopted in 1952, I believe, has this provision:
When, upon application for the entry or for the striking off of names, the board of re visors comes to the conclusion that a person entered on an electoral list is not a Canadian citizen by birth, it may require such person to show by his certificate of naturalization or citizenship that he has the status of a Canadian citizen-
It is a perfectly proper provision in so far as having the right to vote is concerned, but here a difference is created between a citizen who is naturalized and one who is natural born. The naturalized citizen must produce his documents in order to be entered on the lists. A natural born citizen is not obliged to produce his documents. If the one is called upon to produce his naturalization papers, the other should be called upon to produce his birth certificate. Why should the one be believed and not the other? I am only citing this to show that if our citizenship law does create a difference the province has taken advantage of it and I think to the detriment of good law, good citizenship and equal rights.
When the Prime Minister (Mr. Diefen-baker) and the Leader of the Opposition (Mr. Pearson) today spoke so feelingly and so passionately about the equal rights of citizens, I was reminded that this is the first time I have heard him emphasize equal rights for all citizens. I emphasize that to the

minister of immigration. This bill does not allow for equal rights to all citizens. It draws a line of demarcation. It may be a very thin line and the difference may be very subtle, but at the same time it is palpable.
I should like to draw the attention of the house to the fact that there are many painful memories which are still fresh in the minds of many people as a result of the fact that in some countries there was more than one class of citizenship. Certainly the history of the last 100 years should cause hon. members of this house to be horrified by the possibility of fostering in Canada, in even the subtlest form, two different classes of citizens. Whether or not we admit it, whether or not we like to admit it, I think if hon. members would look at the clauses of the bill they would find that there is that difference which I am pleading should be changed or eliminated. I have already given an illustration to show that if a similar offence were committed by both classes, the punishment should be identical.
I should like to point out also, Mr. Speaker, to hon. members that if we allow that difference to be created in one level of our law, other differences can also be created. For example, what is there to prevent parliament from adopting a bill to the effect that only natural born citizens shall be eligible for membership in Her Majesty's privy council? It is possible, by law, to say that only those who are born in this country shall qualify to serve in Her Majesty's privy council. We do not want that. If we adopt such a principle in one bill we do not know how it may work in another bill in the future.
If there are going to be two classes of citizens, one natural born and one naturalized, what is going to prevent parliament from enacting a law that only native born citizens can serve as judges in Her Majesty's courts or even be entitled to election to the House of Commons? I am very fearful of the possibilities that we are, by this bill, fostering. There now exists a difference in our citizenship. I shall, Mr. Speaker, when we are dealing with the bill in committee, move an amendment which the minister may consider. I appeal to all hon. members in the house to consider it because it is far beyond party lines. I should like to recommend it to the minister. I do not know whether I have permission to speak about it at this stage, but I shall not. I should like to make my appeal now to all hon. members to disregard party lines. I think this transcends all politics, all party lines, especially in view of the warm, genuine, sincere appeal made today by the Prime Minister, the Leader of the 57071-3-297J
Canadian Citizenship Act Opposition and the leader of the C.C.F. party in the House of Commons of Canada.


Mr. Hubert Badanai (Fort William):: I wish to congratulate the hon. lady, Mr. Speaker, for the very gracious speech she made in introducing this new Canadian Citizenship Act. I was glad to hear of the removal of paragraph (c) because that improved the bill somewhat but there is a most objectionable feature remaining and that is in clause 2, which reads:
The governor in council may, in his discretion, order that any person-


The Acting Speaker (Mr. Rea):: Order; I shall have to remind the hon. member that on second reading we discuss the principle of the bill and not the clauses of the bill.


Hubert Badanai: In any event, this clause is a dangerous weapon placed in the hands of the minister who may, in effect, order the deportation of any naturalized Canadian citizen who may happen to be supporting some unpopular political party. This is not a move towards achieving equality of status between natural born Canadian citizens and naturalized citizens. Those who were naturalized would be placed in a position of second-class citizens. No amount of oratory to the contrary will convince anyone that this bill is not discriminatory and that it will not create two classes of citizens, one that can be deported at the discretion of the minister, and the other that will continue to enjoy the rights of citizenship which, in this bill, are denied the naturalized citizens.
We on this side of the house thought all along, and were encouraged to believe, that what the government had in mind was to make sure that all Canadians, whatever their origin, would have complete equality in Canada. This bill, Mr. Speaker, does nothing to fulfil the hopes, the expectations of the people who came here from foreign shores, and I am one of them. I am not speaking for myself, I am speaking for the citizens who have adopted this country as their own, and who live in the district of Thunder bay in which my riding is located. I express the sincere hope that the hon. lady, who has shown a keen interest in citizenship and immigration may consider an amendment to this objectionable clause.
As has been indicated already, this morning, the Prime Minister spoke very eloquently about a bill of rights, a measure which has been proposed for the recognition and protection of human rights and fundamental freedoms of all Canadians and which, amongst other things, will guarantee the right of the individual to the protection of the law without discrimination because of race, origin, colour, religion or sex. It is quite

Canadian Citizenship Act clear that the Canadian Citizenship Act contravenes that principle of the bill of rights introduced by the Prime Minister. Surely, the minister realizes this is clear discrimination, and I respectfully submit this bill should be reconsidered and changed to conform with the principle expressed in the bill of rights.
(Translation):


Mr. J. P. Deschaieleis (Maisonneuve-Rosemonl):: Mr. Speaker, just a word or two. I am opposed in principle to any legislation or proposed legislation whose implementation may tend to set up two distinct classes of citizens.
In my constituency there are thousands of new Canadians. I try to serve their interests as well as those of all natural born Canadian citizens. Since the principle of this bill is dangerous to national unity and tends to create racial discrimination, I feel unable to accept its principle.
If the Minister of Citizenship and Immigration (Mrs. Fairclough) does not wish to amend that bill in line with the principle set out by the hon. member for Bonavista-Twillingate (Mr. Pickersgill), I will have to vote against its adoption.
(Text):


Mr. D. R. Mitchell (Sudbury):: Mr. Speaker, I should like to say a few words on this bill and to add my criticism of the clause in it which has to do with citizenship of all Canadians. The constituency which I represent has, I think, almost every group of peoples of foreign extraction. As a result we have a great many certificates of Canadian citizenship alloted each year. I can honestly say that within the last 12 months in five sittings of our citizenship court over 2,000 certificates have been given to new Canadians. I feel that these new Canadians are good citizens of our country. I feel that they should not be discriminated against in the form of differentiation between one type of citizen and another type of citizen. In other words, I feel that we are even suggesting that a second class type of Canadian citizen is being legislated against.
I know there will be a great deal of misgivings and certainly a great many disappointments among those lucky 2,000 citizens in the last 12 months who have received these certificates which they hoped they would receive and which they have prayed for. In order to be able to qualify for them they have been good citizens. I feel that they are being discriminated against. I can see no reason why they should be treated in that way.
I have here a newspaper article which I should like to read. It is an article that appeared in a newspaper published in Hamilton which I believe is the hon. lady's home

city. I should just like to read part of this article and to say that I concur in what is said. It reads as follows:
The Conservative government will soon bring the rights of "naturalized" Canadians into line with those of "natural-born" citizens.
Chief aim of the government is to eliminate the feeling among many new Canadians that "naturalized" citizenship is insecure-a feeling prompted by clauses of the Canadian Citizenship Act which appear to discriminate against the newcomer.
The act provides that the status of naturalized citizens-those born abroad and subsequently nationalized-is subject to review at any time by the government. It may cancel citizenship for reasons such as:
Residence abroad for six years without maintaining "substantial connection" with Canada.
It is rather ambiguous, Mr. Speaker, according to my understanding of its terms.
Conviction by a Canadian court of "any offence involving disaffection or disloyalty to Canada."
Showing oneself, while abroad, "by act or speech disaffected or disloyal to Her Majesty".
The natural born Canadian, on the other hand, can lose his citizenship only if he becomes a citizen of another country.
There is a vast difference in the two arrangements, as between Canadian born and natural-born citizens.
Acting Citizenship and Immigration Minister Davie Fulton said Tuesday he was impressed with the argument that the present act discriminates against the naturalized citizen.
Amendments to the act probably will come when the Commons meets early next year.
If this article which I have read is correct, I might say that I agree wholeheartedly with the previous acting minister of citizenship and immigration. Should this bill pass in the form in which it is now, I am afraid that when I go home I would prefer that the present government acted under this bill and not the opposition.
(Translation):


Mr. Guy Rouleau (Dollard):: Mr. Speaker, I would like to say a few words to explain the reasons why I will vote against passage of Bill C-58, an act to amend the Canadian Citizenship Act.
This morning the Prime Minister (Mr. Diefenbaker) with a great deal of grandiloquence, put before the house a bill for the recognition and protection of the rights of man and fundamental freedoms. We know that that legislation is very close to his heart and that he has been speaking about it for a long time, as have a certain number of hon. members who used to sit on this side of the house when the Liberal party was in power.
This evening, the government, through the Minister of Citizenship and Immigration (Mrs. Fairclough) is proposing the passage of Bill C-58.
In my opinion, this bill is an encroachment upon the rights of Canadian citizens of foreign origin who have come here to co-operate

with us, native Canadians, in the welfare of our fellow-citizens and in the development of our country. I am surprised at the stand taken by the minister in introducing such a bill, because we know that she has children, she is Canadian and, I admit, a model wife. Indeed, this bill will deny certain rights to our fellow-citizens who have come from other countries to join with us in the building of the Canadian nation.
As I said a moment ago, the Prime Minister put before us this morning a bill aiming at the protection of human rights and the prevention of any "discrimination" whatsoever.
This evening, as I said, we are asked to pass a bill which tends precisely to discriminate against a certain category of Canadians.
If we accept in this country that some fellow citizens who came from abroad to join us and add to the Canadian nation, we must consider them as Canadians, as our own people.
When a foreigner wants to establish himself in Canada, he has to put in an application. I realize that the Department of Citizenship and Immigration then proceeds to make a serious inquiry and that the applicant is admitted only if he is a desirable citizen, able to adapt himself to our Canadian way of life. Five years after he is admitted to Canada, a person of foreign origin declares his intention to become a Canadian citizen and during the following year, the minister may still make another inquiry in this case, which means that, following the investigations made before his admission to this country and during the six years he has resided here, we should be able to judge if such person could become a good Canadian citizen or should be returned to his home country.
Serious investigations were made in each case and in this connection, Mr. Speaker, I must say I have always wondered why it has been impossible for members, as well as for the persons concerned, to know why certain applications from immigrants wishing to take up residence in Canada were turned down.
I am one of those who believe that immigration is necessary in a country as large as ours. That is my personal opinion, but I do not believe that with a population of 17 million people, we can manage to make of our country what we would like it to become, if we do not let in the many immigrants who have decided to take up residence here. On the other hand, if we accept them, they must enjoy the same protection as that enjoyed by our natural bom citizens.
Canadian Citizenship Act
I understand this bill divides our Canadian citizens in two categories: those who are natural born and those who came later to take up residence here.
Mr. Speaker, it would be disgraceful if we Canadians allowed a government policy of discrimination against new Canadians. You can rest assured that I will vote against the proposed amendment to the Canadian Citizenship Act.
As I see it, if a man is a Canadian, then, regardless of his ethnical and geographical origin, if he is good enough to have been acceptable as a Canadian, he is good enough to enjoy the legal rights of a Canadian.
Mr. Speaker, I repeat that I will vote against this amendment to the Canadian Citizenship Act.
(Text):


Lester Bowles Pearson: I will not detain the house more than a minute but I wish to go on record as explaining our opposition to the second reading of this bill on the very simple grounds-and they are the same grounds which were outlined in the amendment which was submitted but which was not in order- that the bill failed to provide that naturalized citizens have equality of rights and status with natural born citizens. It does not in any way confirm the essential principle of citizenship in this country, that there shall be only one class of citizens in Canada, in a country which has no room for first, second or third class Canadians.


Some hon. Members:: Hear, hear.


Lester Bowles Pearson: I think that is all I need to say to indicate the fundamental reason, and it is a good reason, why we oppose second reading of this bill.


Ellen Louks Fairclough: The Leader of the Opposition (Mr. Pearson) has just said a few words which convey to me the keynote of the opposition to this bill. He has said that he has sought to explain his opposition, but I say to him that he can seek to explain to the many hundreds of thousands of people in this country who have obtained their citizenship, having come here from other lands, why he opposes the liberalization of the rules which now exist and which have existed for a long time. He and his colleagues and those who have joined with them from his right have really found nothing to criticize in this bill.


Frank Howard: Do not be too sure.

Canadian Citizenship Act


Ellen Louks Fairclough: I am never sure, my
friend.


Frank Howard: That makes two of us.


Mr. Hamilton (Qu'Appelle):: No, one and a
half.


Ellen Louks Fairclough: 
Mr. Speaker:: Mrs. Fairclough, seconded by Mr. Monteith (Perth), moves that I do now leave the chair for the house to go into committee-


John Whitney Pickersgill: Ten o'clock, Mr. Speaker.



BUSINESS OF THE HOUSE

John Whitney Pickersgill: I wonder whether the leader of the house can tell us what we will be doing tomorrow.


Harold Edward Winch: Mr. Speaker, if this is to be the procedure, what is the intention with respect to the closing of the house? The citizenship bill must go before the Senate, so is it the intention to carry on tomorrow, send the bill to the Senate and then carry on next week? What is the situation? If I have your permission, Mr. Speaker, may I ask the house leader whether we could not finish the bill this evening in order that it may go to the Senate and the house can prorogue tomorrow?


Alexis Pierre Caron: Why did you call a vote if you wanted to finish?


Howard Charles Green: Of course, the house has no control over what the Senate will do. It is the intention of the government to carry this bill through the various stages.


Frank Howard: If I may raise a point, Mr. Speaker, after a procedural matter had been

Business of the House dealt with I rose about ten minutes after ten to speak on second reading and asked if you would ascertain whether it was the desire of the house to carry on further and conclude this bill. I proceeded with the thought in mind that we would conclude all stages of the bill this evening in order that it might go to the other place in the morning.


Harold Edward Winch: That was our understanding.
f:


Mr. Speaker:: IS it the will of the house to continue?


Some hon. Members:: Ten o'clock.


Lester Bowles Pearson: We moved an amendment to second reading of the bill which was ruled out of order. We now have to consider the moving of amendments to clauses of the bill when we get into committee and we need time to give consideration to that before going on. Perhaps this bill could be the first
item of business tomorrow morning. That might make it possible to get it to the Senate in time.


Howard Charles Green: Tomorrow we are going to commence with estimates, then take this bill and then item No. 1 on today's order paper, which is consideration of amendments made by the Senate to the broadcasting bill.


Harold Edward Winch: May I ask the house leader when the government, in consultation with the Leader of the Opposition, expects prorogation to take place?


Mr. Habel:: Some time in December.


Howard Charles Green: It is hoped that there will be prorogation late tomorrow afternoon. That, of course, will depend on the house and the Senate.
At 11.19 p.m. the house adjourned, without question put, pursuant to the order of the house passed on August 4.

Question



ANSWER TO QUESTION

[Stage Direction]
The following answer, deposited with the Clerk of the house, is printed in the official report of debates pursuant to standing order 39:

Mr. Mcllraiih: 1.	Is there any agreement between the federal government and city of Toronto requiring that lands of Fort York be maintained as a historic site?
2.	Has the federal government received from the city of Toronto a request for authority to use Fort York lands as a right of way?
3.	If so. has any decision been reached?
Answer by: Hon. G. R. Pearkes (Minister of National Defence):
1.	The letters patent dated 7th May, 1909 by which the crown in right of Canada transferred to the city of Toronto the lands of Fort York contain the following provision:
"To have and to hold the same unto the corporation, its successors and assigns, upon
and subject to the following trust and condition, namely; that the site of the old fort situate upon the said lands shall, as far as possible, be restored to its original condition, as shown on the attached copy of a plan of it, prepared by G. Nichols, government engineer, and dated Quebec, 24th June, 1816, and that the same shall be preserved and maintained in such conditions forever.
"Provided that upon the breach by the corporation, its successors and assigns of the trust and condition to which the grant hereby made is subject as aforesaid, such grant shall immediately become and be null and void, and it shall be lawful for us, our heirs, successors and assigns, in, to and upon the said lands hereby granted (or any part thereof in the name of the whole) to re-enter, and the same to have again, repossess, and enjoy as of our former estate therein anything herein contained to the contrary notwithstanding."
2.	No official request has been received from the city of Toronto for authority to use Fort York lands as a right of way.
3.	N.A.

Saturday, September 6, 1958