1959-07-06

[Stage Direction]
Twenty-first report of standing committee on miscellaneous private bills-Mr. McCleave.
Third report of standing committee on mines, forests and waters-Mr. Murphy.


Mr. Erik Nielsen (Yukon) moved: for leave to introduce Bill No. C-69, to amend the British North America Act, 1867-1952, with respect to representation in the Senate.


Some hon. Members:: Explain.


Erik Nielsen: Mr. Speaker, I should explain that my purpose in introducing the bill at this late point in the session is so that members of this house and of the other place will have an opportunity to study the implications which are raised in it. The purpose of the bill simply is to provide for representation in the Senate of Canada by one member for Yukon and one for the Northwest Territories.
Motion agreed to and bill read the first time.



FINANCE


Hon. Howard C. Green (for the Minister of Finance) moved: that the house go into committee at the next sitting to consider the following resolution, which has been recommended to the house by His Excellency:
That it is expedient to introduce a measure to provide for the payment of additional grants to the province of Newfoundland.


[Stage Direction]
Motion agreed to.

[Stage Direction]
On the orders of the day:
Hon. L. B. Pearson (Leader of the Opposition):: Mr. Speaker, I should like to ask the Secretary of State for External
Affairs whether any progress has been made toward the holding of a North Atlantic council meeting of foreign ministers before the reconvening of the foreign ministers' conference at Geneva later, I think, this week.


Howard Charles Green: No, Mr. Speaker, I do not think there will be such a meeting.



NORTHLAND NAVIGATION COMPANY


[Stage Direction]
On the orders of the day:
Mr. Harold E. Winch (Vancouver East):: Mr. Speaker, I would like to direct a question to the Minister of Citizenship and Immigration. Has the study now been completed or an examination made into people coming from outside Canada to join the strike in Vancouver? If so, has the minister any report to make?


Hon. Ellen L. Fairclough (Minister of Citizenship and Immigration):: Mr. Speaker,
an investigation has been carried out by officials of my department in Vancouver, but we are unable to find any of the alleged imports from the United States operating in the Vancouver area. I might say that on receipt of protests from the president of N.A.M.E. and the secretary treasurer of the British Columbia labour council we were on the lookout at points of entry, but as far as we know these people are not in the country. Of course if we could have some proof that they are here we could probably take some steps.


Harold Edward Winch: May I ask a supplementary question. In a telephone call yesterday from Vancouver some names were given to me. If I could supply those names would the minister then be in a position to take some action? I could leave the house now and obtain the information.


Ellen Louks Fairclough: I have already given instructions to our office in Vancouver to consult with the persons I previously named, and if they can supply the names and locations of the alleged United States citizens who are participating in this strike we will take steps to see they are removed.


Hon. Paul Marlin (Essex East):: May I ask the Minister of Labour a question in connection with this matter, involving a labour

Inquiries of the Ministry dispute at the Northland Navigation Company. Can the minister say whether he has made any inquiries to determine if supplies to any communities have been interrupted owing to this dispute? This is a matter, I understand, that involves certification by the federal Department of Labour, and I would be very grateful if the minister could answer my question.


Hon. Michael Starr (Minister of Labour):: Mr. Speaker, as far as supplies are concerned I am afraid I cannot give any information to the hon. member; I have not made inquiries in this respect. However, I did dispatch a telegram during the latter part of last week asking both parties to meet with the labour department representative in Vancouver, and they are meeting this morning.



ST. LAWRENCE SEAWAY REPORTED U.S. LEGISLATION RESPECTING STUDY OF DE-ICING

[Stage Direction]
On the orders of the day:
Mr. Hazen Argue (Assiniboia):: Mr. Speaker, may I direct a question to the Minister of Transport arising out a report that a bill introduced in the United States Senate by Senator Alexander Wiley provides for a major study of de-icing on the St. Lawrence seaway. My question is this. What is the attitude of the Canadian government toward this far-reaching study, and what is the attitude of the St. Lawrence seaway authority?


Hon. George H. Hees (Minister of Transport):: Mr. Speaker, I have not been advised of any such study.


Hazen Robert Argue: I wonder if the minister would check with the seaway authority and see if they have been approached in this matter. If so, would he made a report to the house?


George Harris Hees: Yes, Mr. Speaker.



TRANSPORT


[Stage Direction]
On the orders of the day:
Mr. J. R. Tucker (Trinity-Conception):: Mr. Speaker, will the minister please inform the house when he expects that the Belle Isle-Newfoundland ferry will begin operation?


George Harris Hees: Yes, Mr. Speaker; in the fall of 1960.



HEALTH AND WELFARE


[Stage Direction]
On the orders of the day:
Mr. H. W. Herridge (Kootenay West):: Mr. Speaker, with my usual concern for the health and welfare and the sovereign rights of Canada, I wish to ask the Minister of National Health and Welfare a question. In view of a news item in the Gazette of June 25 to the effect that the United States public health service has opened a quarantine station in Montreal to check communicable diseases, would the minister inform the house by what authority this station is established, and if Canadian citizens are required to submit to examination by a United States public health official?


Hon. J. W. Monfeiih (Minisler of National Health and Welfare):: Mr. Speaker, 1 thank the hon. member for having given me notice of his intention to ask this question, and for his concern for the health of the people of Canada. May I simply say at this moment that the article has been brought to my attention, but I have not had time as yet to look into the matter really closely. I would therefore like to reply tomorrow.



MANITOBA


[Stage Direction]
On the orders of the day:
Hon. J. W. Pickersgill (Bonavisia-Twillin-gate):: Mr. Speaker, on July 2 an order for return was complied with asking for any communications received since February 1 by the Prime Minister or any member of the federal government from the premier or any member of the government of Manitoba, and any replies thereto, on the subject of federal assistance for flood control on the Red river. The last communication is dated March 20. There are communications from the minister of northern affairs and also from the Prime Minister in this return. I should like to ask the minister of northern affairs if there have been any developments in this matter since March 20.


Hon. Alvin Hamilion (Minisler of Northern Affairs and National Resources):: We have been in conversation with the government of Manitoba on one or two occasions and the premier is in town now, attending the fiscal conference. There will be meetings with the Prime Minister and myself, and possibly with others, in connection with this matter.


John Whitney Pickersgill: Is there any agreement under negotiation at the present time?


Francis Alvin George Hamilton: The matter has not reached the agreement stage. We are still discussing the various aspects of the program.



OLD AGE SECURITY


[Stage Direction]
On the orders of the day:
Mr. Erhart Regier (Burnaby-Coquitlam):: wonder if I could ask the Minister of National Health and Welfare, now that this session is nearing an end, whether he is able to say what are the intentions of the government with regard to the Clark report on old age pensions, and if not would he indicate what is happening to that report.


Jay Waldo Monteith: A very close study is being given to the report at this time.


Paul Joseph James Martin: Can we conclude that the government does not intend to bring in any legislation this session based on that report?


Jay Waldo Monteith: That is correct.



AIRPORTS


[Stage Direction]
On the orders of the day:
George Harris Hees: On Friday last, the hon. member for Skeena asked me a question regarding the new Prince Rupert airstrip. The runway at the new Prince Rupert airport is now suitable for use by light to medium aircraft up to at least DC-3 size; but since the construction work is not yet completed and the contractor still has equipment on the field, use of the runway is only possible on the basis *of special advance arrangements to ensure that the contractor's equipment does not interfere with safe use of the runway.



INQUIRIES FOR RETURNS

[Stage Direction]
On the orders of the day:
Mr. M. A. Hardie (Mackenzie River):: wish to address a question to the Secretary of State, or in his absence to the acting minister. When may I expect an answer to the question made an order for return approximately three months ago relating to travel abroad by members of the government?


Ellen Louks Fairclough: It is my understanding that this information, which has to be compiled by several departments of government, will be available shortly, but I will make special Inquiries.
Inquiries of the Ministry


John Whitney Pickersgill: A supplementary question. On Saturday I asked the Secretary of State if he would tell us the progress which has been made in dealing with all the returns either today or tomorrow. Can the hon. lady assure us that this information will be given tomorrow?


Ellen Louks Fairclough: I can assure the hon. member that I will ask the Secretary of State about it.


John Whitney Pickersgill: The Secretary of State said it would be done.
(Translation):


Mr. Alexis Caron (Hull):: Mr. Speaker, the Secretary of State (Mr. Courtemanche), being absent, may I direct a question to the acting minister? Since the Secretary of State had promised to reply to my question today, would the Acting Secretary of State be in a position to do so?
(Text):


Ellen Louks Fairclough: Mr. Speaker, I am sorry but I did not realize that the question was addressed to me.


Alexis Pierre Caron: In the absence of the Secretary of State, who promised that my questions would be answered today, would it be possible to table the answer today?


Ellen Louks Fairclough: I shall inquire, Mr. Speaker, as soon as orders of the day have been concluded.



SHIPPING


[Stage Direction]
On the orders of the day:
Mr. D. M. Fisher (Pori Arthur):: I wish to direct a question to the Minister of Transport. Can the minister tell us whether his department had a representative at the coastguard hearing in Detroit last Thursday dealing with the collision between the Monrovia and the Royaltor?


George Harris Hees: I will make inquiries.


Douglas Mason Fisher: A supplementary question. Could the minister bring us up to date on the situation in so far as pilotage is concerned, and the negotiations with the United States with regard to the Canada Shipping Act changes?


George Harris Hees: There has been no change since the hon. member asked me about this on the last occasion.

Inquiries of the Ministry DOMINION-PROVINCIAL CONFERENCE



INQUIRY AS TO PUBLIC SESSIONS

[Stage Direction]
On the orders of the day:
John Whitney Pickersgill: Can the acting Prime Minister tell me whether there is any reason why any member of parliament should not attend the meetings with the provincial governments now being held within the precincts of parliament?


Howard Charles Green: I realize that the hon. member for Bonavista-Twillingate has a very deep curiosity concerning not only this matter but many others. I presume that if the meetings were open to the general public he would be able to attend.


John Whitney Pickersgill: Could the minister say whether the meetings are open to the general public, as all previous meetings have been at the commencement, or whether this is a closed session?


Howard Charles Green: I think the hon. member is just pulling my leg. He obviously has the answer and is just asking this question to be facetious.


John Whitney Pickersgill: On a question of privilege, I have not, of course, the capacity for reading minds that the acting Prime Minister has, but in fact I am not in possession of this information and I am seeking information about something which is taking place within the precincts of parliament.


Howard Charles Green: I might point out that the duty of the hon. member, at least while this house is sitting, is with us in the commons chamber.


John Whitney Pickersgill: Does that not also apply to the Minister of Finance?


Paul Joseph James Martin: Mr. Speaker, I wish to direct a supplementary question to the acting Prime Minister. Notwithstanding his last observation, does the minister recall that the Minister of Finance, when asked this question the other day as to whether or not the initial proceedings of the conference would be open to the public, said he was not at that time in a position to give a definite reply? In view of the importance of this matter may I ask the acting Prime Minister if it is a fact that certain phases of the proceedings will be open to the public?


Howard Charles Green: Mr. Speaker, I do not have that information.
[Mr. Hees.l



FISHERIES


[Stage Direction]
On the orders of the day:
Hon. J. A. MacLean (Minister of Fisheries):: Mr. Speaker, on Saturday last the hon. member for Grand Falls-White Bay-Labrador asked me the following question:
In view of the proclamation in Newfoundland of the Meat and Canned Foods Act as related to fish and shellfish, and the Fish Inspection Act, as announced by the minister yesterday, may I ask what changes are likely to result in fish handling and processing in the province of Newfoundland?
I should like to say in reply that for the time being it is not proposed that there will be any amendments to existing regulations in Newfoundland which deal with the grades, classes and sizes of salted, pickled, dried, canned and fresh and frozen fish and shellfish. The present Newfoundland regulations are being consolidated into separate schedules to either the fish inspection regulations or the canned fish and shellfish and cannery inspection regulations.
(Translation):



CANADIAN BROADCASTING CORPORATION


[Stage Direction]
On the orders of the day:
Hon. Leon Balcer (Solicitor General):: Mr. Speaker, last Friday the hon. member for Gloucester (Mr. Robichaud) asked me the following question:
Mr. Speaker, I want to ask the Solicitor General a question. Can the minister inform this house whether he has received protests from hon. members on the government benches, against certain C.B.C. commentators, more particularly against some commentators of the French network who, according to those honourable representatives, do not always favour government policy?
Following a remark on your part, Mr. Speaker, the hon. member for Gloucester added:
(Text):
The hon. member continued in English:
On the point of order, the Toronto Star yesterday carried an article to the effect that the Solicitor General had received certain representations and that he had transmitted those representations to the C.B.C. management. This is why I addressed my question to the Solicitor General. I wanted to find out whether he had received the representations referred to.
The hon. gentleman then carried on:
Will the Solicitor General check and find out whether he has received them?
(Translation):
Mr. Speaker, my answer is as follows: I have not received any representations from government members against certain pro-

grams or against certain C.B.C. commentators, as mentioned in the Toronto Star item referred to.
(Text):


John Whitney Pickersgill: Mr. Speaker, could I ask the minister a supplementary question. Is the minister aware that any such representations were made?


Léon Balcer: No, Mr. Speaker.



BUSINESS OF THE HOUSE


[Stage Direction]
On the orders of the day:
Lester Bowles Pearson: Mr. Speaker, may I ask the Minister of Justice if he is in a position to inform the house of the procedure to be followed with respect to the amendment to the Combines Investigation Act?


Hon. E. D. Fulton (Minister of Justice):: Mr. Speaker, I expect to be able to give a definite statement tomorrow.



HIGHWAYS


[Stage Direction]
On the orders of the day:
John Whitney Pickersgill: Mr. Speaker, I wonder if I could ask the Minister of Northern Affairs and National Resources, who told us the other day that one of the provincial governments had signed an agreement respecting the roads to resources program, which government that was?


Francis Alvin George Hamilton: British
Columbia, Mr. Speaker.


John Whitney Pickersgill: A supplementary question, Mr. Speaker. Can the minister explain why it is not possible to conclude agreements with any of the other provinces, and in particular with the government of Newfoundland?


Francis Alvin George Hamilton: Mr. Speaker, the government of Newfoundland and the government of Canada are working out this road program. There are no differences between us at all. We are going ahead with the program. When the program has reached the stage of final decision on the whole program I shall present it to my colleagues. We shall then decide whether we shall sign it. There is no trouble with any of those programs at all. We do have to negotiate back and forth on the legal terms. As long as the general agreement is signed there is no time being lost on the program.
Criminal Code


John Whitney Pickersgill: I should like to ask the minister a supplementary question. Does the minister's reply mean that money is being committed, money that would have to be voted by this parliament, in advance of any agreements?


Francis Alvin George Hamilton: There is money voted in the estimates for this purpose, but the payments will have to be made by the regular procedure followed by the government. I believe in one case there was an advance made to one government.



CRIMINAL CODE

[Stage Direction]
The house resumed, from Wednesday, July 1, consideration in committee of Bill No. C-58, to amend the Criminal Code-Mr. Fulton-Mr. McCleave in the chair.
The Acting Chairman (Mr. McCleave):: When the house rose on Wednesday, July 1, we were considering clause 11.
On clause 11-Obscene.


Robert Jardine McCleave: Shall the clause carry?


Edmund Davie Fulton: Mr. Chairman, in view of the widespread interest in this provision I think it might be helpful if at this stage I give a short statement as to the object and effects of the clause.
The object of this clause is to make a statutory extension of the definition of obscenity so as to make it perfectly clear that the law of obscenity does apply to a certain type of objectionable material that now appears on the newsstands of Canada and is being sold to the young people of our country with impunity.
We believe we have produced a definition which will be capable of application with speed and certainty, by providing a series of simple objective tests in addition to the somewhat vague subjective test which was the only one formerly available. The tests will be: does the publication complained of deal with sex, or sex and one or more of the other subjects named? If so, is this a dominant characteristic? Again, if so, does it exploit these subjects in an undue manner?
We have been careful in working out this definition not to produce a net so wide that it sweeps in borderline cases or cases about Which there may be genuine differences of opinion. In our efforts we have deliberately stopped short of any attempt to outlaw publications concerning which there may be any contention that they have genuine literary, artistic or scientific merit. These works remain to be dealt with under the Hicklin definition, which is not superseded by the new statutory definition.

Criminal Code
Perhaps, Mr. Chairman, I should put on the record again at this point the Hicklin definition as laid down by Chief Justice Cockburn in the case of Rex. v. Hicklin in 1868, as follows:
-I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.
As I have said, it will be appreciated that this is entirely a subjective definition. It will be observed that while the test in the new proposed definition is in the main objective it does, however, contain two terms which require in part a subjective assessment. The first of these is that the characteristic complained of must be a dominant characteristic. As I say, we believe this will cover, without question, the kind of muck on the newsstands against which our main efforts in this definition are directed. But these words will clearly exclude from the definition books otherwise meritorious but containing the occasional passage which, if torn from the context, might be considered objectionable. In other words, in applying our proposed definition the courts must look at the whole work, not just at an isolated passage or passages.
The second requirement is that the manner of dealing with the named subjects must constitute an undue exploitation of them. Here again it will be clear that, for instance, medical textbooks or other books-including novels-in which such subjects are dealt with in an honest fashion are not put in jeopardy by this definition. There must be an undue exploitation. The word "undue" is one with which the courts are familiar as meaning generally something going beyond what men of good will and common sense would normally tolerate. I do not think we need to fear that this is a harsh or unduly restrictive test.
Then I should like to ask hon. members to consider this clause in the light of the new procedure which we are also providing if the bill is approved, for dealing with such obscene publications. The new procedure is what is described as a procedure in rem. It gives a quick and objective method of dealing with the question of whether or not a publication is obscene. I have said that our definition is, in its main nature, objective and so, I believe, will be the new procedure, particularly by reason of the fact that it will not be necessary to lay a charge.
The new procedure provides a quick and relatively simple method of getting the issue before the court, on its merits, of whether or not a particular publication is obscene. In order to do that you do not have to lay a charge against anybody and therefore it is,

as I said, an objective method of having this question disposed of. The new procedure is closely akin to the procedure which has been in effect in the United Kingdom since 1857 and is a procedure, it might be of interest to the committee to know, that the United Kingdom is retaining substantially unaltered in its new obscene publications bill which was introduced into its parliament this year.
I would suggest to hon. members that it is significant that in the United Kingdom, with its well known determination to preserve civil liberties and the liberties of the subject and to avoid anything which might set up, in normal peacetime, government censorship unduly restricting the rights of free expression, they have had since 1857 and are continuing in the bill they have introduced this year this procedure which we are seeking to introduce for the first time. I do not believe we need to be fearful that here in Canada, by providing this objective test and this objective method of procedure, we are doing anything unduly restrictive of freedom of speech, properly understood.
Here, Mr. Chairman, in the definition we have before us and the new procedure which we are recommending to parliament we have made a serious attempt to meet a problem which is very real and urgent in Canada. I can assure hon. members that anyone who may have had occasion to inspect the sort of material taken from Canadian newsstands, where it is being sold with impunity, which has come into the possession of my department, largely as the result of unsolicited correspondence, would agree when I say that it is high time we devised a method of dealing with this type of publication.
I can assure the house further that it is apparent from the discussions I have had with the law enforcement officers of Canada that they feel the present law is not clearly adequate to deal with this type of trash. It is for that reason that we seek an extension of the definition of obscenity, and by the provision of a new method of procedure we hope to enable our law enforcement officers to deal quickly, fairly and objectively with this type of publication.
I should perhaps in conclusion express my appreciation to hon. members who have spoken on this matter before, and who have given me and my departmental officials the benefit of their views and advice. I do not wish to single out any one member particularly, but I think in fairness I should refer to the very constructive speech made last session by the hon. member for Joliette-L'Assomption-Montcalm, who placed upon the record some extremely helpful suggestions as to the approach we might follow in

working out a new definition of obscenity and in working out methods of dealing with the problem. I found his remarks extremely constructive and most helpful.


Mr. Creslohl:: I have just one question. Can the minister tell us whether the United Kingdom rule embraces this show cause system.


Edmund Davie Fulton: Yes, Mr. Chairman, it does. (Translation):


Alexis Pierre Caron: Mr. Chairman, I had practically decided not to take part in this debate and to entrust to lawyers the responsibility of amending the Criminal Code. But, after having read that part of the speech made by the Minister of Justice (Mr. Fulton), as recorded on page 5319 of Hansard of June 30, I began to wonder whether I should not take part in this debate at the present time.
Here is what the Minister of Justice said at the time:
I have observed that most of the discussion thus far in this debate on second reading has been related to the provisions of the bill which deal with the definition of obscenity. I make no criticism of the fact, but I could not fail to note that the matter was treated with some levity, particularly by the hon. members of the Liberal party from the province of Quebec. I am not, of course, suggesting that the definition we have achieved is perfect. It is the best definition that we could achieve; it is an attempt to deal seriously with a serious subject. I think the house will be interested to note, and I think the country will be interested to note, and I think the province of Quebec particularly will be interested to note that members of the Liberal party from the province of Quebec treated this whole thing, with one exception, in an atmosphere of levity. As I say, I make no criticism of that. The hon. member for Hochelaga (Mr. Eudes) dealt with the matter seriously. The other members of his party from the province of Quebec, where I am aware that this matter is regarded with a great deal of seriousness, dealt with it as a subject deserving nothing but laughter.
Later on, the Minister of Justice added:
What I say hits my honourable friends a little hard but they recognize that their attitude towards this bill to-night has not done them credit-
And later on, he added again:
My whole purpose in this debate has been to advance the bill along into committee so that we might hear what constructive suggestions my hon. friends have to offer, because certainly their attitude so far has been far from constructive.
Mr. Chairman, I believe that attitude on the part of the Minister of Justice is rather that of a person who would have had us believe that the government had intended to cure all the evil and who, realizing that, having done so little, he must resort to attacks against those who had taken the floor.
I agree with him that the hon. member for Hochelaga made a very serious and documented speech, a speech which deserves to attract general attention. I agree that the hon. member for St. Denis (Mr. Denis), who 66968-9-350
Criminal Code
is a jovial person by nature, has made, in reference to firearms, some rather amusing remarks, but when he referred to obscenity, he did so with the same seriousness shown by the Minister of Justice. The Minister of Justice has no reason to claim that the Liberals of the province of Quebec lack any seriousness when a question of morals or manners is involved; and it is in that connection, our duty to point out to him the defects of his own bill.
Besides, we are not the only people who find his bill, although slightly an improvement, falling short of a full victory against obscenity.
On June 17, the Protestant clergy, meeting in London, as reported in the following article, stated:
(Text):
Proposed federal legislation defining obscenity in relation to literature was attacked today by three clergymen here for the eleventh annual summer school of religion as indefinite and unnecessary.
In an interview at the University of Western Ontario, Dr. James T. Cleland of Duke University, N.C., Rev. W. B. J. Martin of the Scottish Congregational College, Edinburgh, and Rev. D. R. Fraser of Byron, Unitarian Minister in London, agreed a wrong tack was being taken.
(Translation):
And here are the very words used by Dr. Cleland further down in that article:
(Text):
"Besides," Dr. Cleland said, "the legislation proposed leaves the matter wide open by its wording. The lawyers will have a field day with it."
(Translation):
And still farther down, he went on to say:
(Text):
The clergymen pointed to the words "dominant" and "undue exploitation" as providing ready made loopholes.
(Translation):
As the minister can see, we are not the only ones to criticize his attitude and, besides, we have good reasons for criticizing, because the minister himself had promised a great deal more than he is giving us now.
There is no doubt that all the members of this house deplore the fact that so many obscene publications are being offered for sale; all of them would like these obscene publications to disappear. But, when the minister addressed the Sacred Heart League, in Montreal, he proposed four changes. First, as is reported in the Gazette of June 14, 1958, here is what the minister said:
(Text):
The first Is a "practical" definition of the word obscene for article 150 of the Criminal Code.
(Translation):
That is just where we take issue with the minister. That definition he gave, which

Criminal Code
includes the words "dominant characteristics" constitutes the dominant part of his bill. Those words are not sufficient to ensure the elimination of those things. We believe that all they do is to enable defence counsels to find easier ways to secure acquittals of the person charged.
Besides, I have talked with some religious authorities and I even had correspondence about that matter. I recalled having answered a letter about this from Mgr. J. N. Gelineau, vicar general of the Ottawa diocese, on June 24, 1959. Here is what I wrote to him:
Monsignor,
I have received your letter dated June 22, as well as the article which appeared in last night's be Droit.
As I was telling you, the major difficulty in finding a complete definition for the word obscenity is that Protestant elements who believe in free will, are convinced, probably with sincerity, that it would interfere with freedom of conscience. It is for that reason that the definition that is given in the amendment to Sections 150, 8 and 150A, far from improving the situation, makes it worse, since it says:
"(8) For the purposes of this Act, any publication the dominant characteristic of which is the undue exploitation of sex-"
Dominant characteristic may include many things that the judges might consider insufficient to be reproved.
Let me cite an instance that will probably never occur. If, in advertising the comfort of an hotel, a pamphlet showed a man and a woman, in indecent attire, sharing the same bed, the judge might say that this was not the main characteristic of the pamphlet. Yet, the said hotel would appeal to people's evil instincts.
As a matter of fact, section 150A confers the whole responsibility upon the judge who will decide whether the publication or illustrated story is to be classified as obscene or not. Everything is therefore left to the discretion of the judge who may, sincerely or not, have opinions very different from those of Catholic religious authorities.
All I see in this act is a chance for lawyers to win their defence cases more easily.
I am sorry to say that I do not entirely agree with Father Gay who seems to think that the bill is a considerable progress in the fight against obscene magazines.
I do not want to blame Hon. E. Davie Fulton, Minister of Justice, too severely because I know he was working under extremely difficult conditions. What I am condemning, however, is leading the population to believe that a remedy is being provided, whereas nothing of the kind is being done.
Mr. Chairman, that is how we have dealt with the problem from the start. And the Minister of Justice said that we were considering it lightly. We are not dealing lightly with this matter. On the contrary, we are aware of its difficulties.
I remember a banquet where the Minister of Justice was the guest speaker and dealt with the matter of obscenity and of the amendments he proposed to introduce. I also remember having told him that evening that

he would run into extraordinary difficulties because attempts have been made for the past two thousand years to establish a concrete definition of obscenity, and it has not been done yet, because there often is only a very small margin between art and obscenity. I have personally had occasion to see things which would appear obscene to some people, but not so to others, depending on the state of mind of the person who sees or examines or studies those things.
As a matter of fact, some works may be considered obscene by some people and not so by others. When art is mixed with the question of obscenity, the problem becomes more difficult. It is recognized that the dividing line between art and obscenity is sometimes difficult to appreciate. My reproach to the minister is that he has provided an incomplete definition. The minister wanted people all over the country to believe that he was going to make such radical changes that the Criminal Code would scarcely be recognizable with regard to obscenity and obscene publications in this country.
When addressing the Sacred Heart leagues, in the second part of his speech, he dealt with the following:
(Text):
The second:	The possibility of summonsing
dealers, as in Britain, to declare why a court directive ordering the destruction of obscene literature should not be carried out.
(Translation):
The minister did that.
He also said:
(Text):
Third, the department is studying ways of preventing publishers from forcing dealers to take all or none of their publications, "a practice common in these days."
(Translation):
Again I commend the minister for including this in section 12, paragraph 150A of the bill now before us. However, it is with respect to the fourth part that the minister has been particularly remiss in fulfilling his promises.
(Text):
Finally, Fulton said, "we are considering the possibility of including the printers of obscene publications in prosecutions, much more than is done today."
Cardinal Leger, in a 5000-word speech, said-
The printing is bad, but it is not of importance.
(Translation):
The important part is this: the Minister of Justice had promised to find a way to cause the arrest of the printer of such literature, and to take him to court, so as to prevent publication of such obscene works. It was not the first time that the Minister

of Justice came out in favour of taking court action against printers or publishers. In fact, in 1955, as recorded on page 5275 of Hansard, the Minister of Justice, who was then sitting on this side of the house, made the following statement:
-a prosecution should also be required against the printer and publisher if the printer and publisher are in Canada, or against the initial distributor if it be one of those publications which is brought into Canada having been printed in the United States and then distributed in Canada in its finished form.
A little farther down, the minister added:
-and the person most responsible for the offence -that is, the man who first put it into circulation- would be bound to be proceeded against.
Still a little further down, the minister went on to say, and I quote from page 5276 of Hansard:
Another line of attack on the problem, which has been suggested before and rejected but which I would ask the minister to consider again, is that it might be provided that the penalties against printers and publishers, or against those who first put this offensive material into circulation, should be made specific.
Still farther down, the minister had this to say:
They wrote a specific clause into their legislation prohibiting the importation of the plates from which these things are printed. I recommend to the minister that he and the department should give very earnest consideration to whether it would not be desirable to incorporate a similar provision in our Criminal Code.
And the minister went on to say:
I know you cannot increase an unlimited fine, but I was suggesting a minimum fine or a minimum penalty for printers and publishers.
It is in that respect that we are blaming the minister. He had promised us the moon; now it is just a case of the elephant bringing forth a mouse. There have been claims that this constitutes a great improvement. Well, Mr. Chairman, I think if it is an improvement, it is no more than -J, or at most 4 of what it should be. We do recognize that section 12, paragraph 150A contains something new. The provisions of this section make it easier to resort to court action and seizure in the case of obscene literature. Apart from that, I think the minister has tried to build up his political capital by running around the country, and particularly the province of Quebec, to give the impression that, after he had tried to define the word obscenity and had amended the Criminal Code accordingly, everything would be fine.
So, by casting aspersions on Liberal members from Quebec he has attempted, up to a point, to have Canada, and more particularly the province of Quebec, believe that Liberal members are less interested than he in improving the country's morals.
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Mr. Chairman, I say to the minister that he should not indulge in petty politics and make speeches such as the one he made on June 30 last. On the contrary, he should show some statesmanship and really try to improve conditions.
We recognize that it is no easy task to define obscenity in a truly concrete and perfect way, because we know the situation is extremely difficult; it has been going on for years, and the minister is not the only one responsible in the matter. However, there should be no petty politics about such an important matter. I therefore ask the minister at this time not to be silly and use words such as those he used on June 30 last when addressing Liberal members who are just as interested as he is in raising Canada's moral standards. We hope the minister will stop making political hay with this question, and will tackle the problem in statesmanlike fashion.


Mr. Pigeon:: Mr. Chairman, like all right-minded Canadians, I am happy to commend the Minister of Justice (Mr. Fulton) for the bill he is submitting today as a means of fighting obscenity, one of the worst forms of degradation that individuals and nations can fall into.
I know that the minister has always been interested in this subject and has closely studied this infinitely delicate and serious problem of obscene literature. He took up this cause many years ago, and today, as Minister of Justice, he wants to give this country legislation that will clean up the newsstands, thus helping society by preventing the sale of evil literature on a national scale.
It is one of those bills which almost automatically call for unanimity. All of us want to bring about the necessary changes.
According to section 150 of the Canadian criminal code, obscenity is a crime leading to severe punishment. But, experts in the field -law enforcement officers, lawyers, judges, social workers-are all agreed that the language of the law is not sufficiently explicit. Then there is always the difficulty attending the onus of the proof, which takes time and money. In fact, obscene publications or shows are only one of the many facets of public immorality which is so brazenly flaunted nowadays.
It is not a new problem, even though it seems to be a characteristic vice of so-called advanced civilizations. We are therefore not facing a new difficulty, a by-product of

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the last war or of scientific progress. But this very progress, the wonders of printing, radio and television, are helping scatter the accursed seed and spread havoc. So, as the allied chiefs used to say during the last war, desperate ills call for desperate remedies. And that remedy is the remoralization of individuals and peoples. Quid leges sine moribus? Yes: what good would laws be without morals? But, men being what they are, we must use drastic measures and cause the iron hand of the law to weigh against all offenders. That is what the government, through the Minister of Justice, is doing today.
According to those who specialize in such delicate problems, we need a clearer definition of obscenity. I think that, under the circumstances, the Minister of Justice is introducing a bill which, though it may not be perfect-there is nothing perfect in this world-represents a great improvement over what we had in the past. I know that the Minister of Justice has drawn upon the many briefs submitted to him, by Catholics, Protestants and Jewish groups as well as all other religious denominations in this country, and I also know that he did not ignore suggestions made to him by Rev. Father Gay who has made a searching study of the matter and suggested a new wording for section 150 of the Criminal Code. Anybody wishing to obtain fuller information with regard to the new wording of that section, need only refer to the newspaper Le Droit of February 23, 1959, which says:
Diocesan press service planned.
A definition of obscenity.
Definition of obscenity submitted by Reverend Father Gay.
However, what really counts is the training of individual conscience and of people's minds. I shall take the liberty of reporting a fact that is perhaps little known but significant. Some time ago, when the Montreal police decided to clean up shows in night clubs, the chief of police called in night club owners and representatives of their employees and told them in substance: "In future, dancing girls will have to conform to the following rules: they must always wear such and such garments; and they must actually dance, and refrain from speaking to patrons. If they can't do that, let them get off the stage and go wash the dishes."
And do you know, Mr. Chairman, that many of those club owners, employees and

even dancers commended the chief of police for doing his utmost to raise the standards of entertainment? Even people directly concerned feel there is nothing to be gained in immorality, and detective lieutenant Lu-cien Quintal, who is in charge of the squad responsible for keeping watch on the decency of shows and publications, has very much less trouble now. Why? Because the police have decided, not to discuss the quality of shows, but to close those which are not up to standards set and adopted both by the police and the show promoters.
Mr. Chairman, we should do the same thing about obscenity. Untold harm is being done to our young people by books and publications, magazines, films, photographs, etc.
Obscenity, violence, unbridled passions, glorification of crime and criminals, those are the many problems leading some of our people to prison. We talk about the rehabilitation of criminals, but it would be much better if we prevented them from becoming criminals. All the pompous terms used by self-styled artists and art critics, the obscure and ambiguous vocabulary of so-called psychiatrists often have but a single carefully disguised purpose: allow immorality to display itself under its more pernicious and degrading forms. That is what we have to fight against.
The problem of immorality and obscene publications is not new, Mr. Chairman, and it is not peculiar to this country either. The Canadian authorities have realized its gravity for a long time, together with other national leaders. As evidence of that, may I refer to the protocols signed in Paris on May 4, 1910, on the repression of the distribution of obscene publications, an agreement which was amended at Lake Success on May 4, 1949, and which has been in force in our country since then.
You will also recall the convention for the repression of the distribution and traffic of obscene publications, signed in Geneva on September 12, 1923, which was amended by a protocol at Lake Success on November 12, 1947, and signed by Canada on November 24 of the same year, at which date it went into force in our country.
If we find it worthwhile to sign international agreements directed against demoralization and obscenity, we should at least be consistent and apply, within our own

borders, the provisions to which we are pledged by those protocols and agreements.
We are committing the serious mistake of believing that the fight against obscenity or immorality is the doing of a mere handful of bilious and scrupulous minds. On the contrary, the Minister of Justice has received testimonies of encouragement from all quarters in Canada, from workers, professionals, students and even from the clergy. Whether we are Catholics, Protestants or Jews, we are not alone. Cardinals and other bishops are not alone, the protestant hierarchy, the rabbis, the most prominent members of the clergy want to see the end of this plague gnawing at the heart of our society.
But it is the responsibility of hon. members of the house to provide the police and the courts with the weapons that they will use efficiently in their fight against that filthy monster which is popular immorality. Most of us here have dependents and we do not want our sons and daughters to be sullied by that infamous literature and those disgusting shows. It is our responsibility to act, and that responsibility is sacred before God and before man.
Mr. Chairman, before closing my remarks, I should like to commend the Knights of Columbus of the province of Quebec who have espoused the fight against obscene literature. Particularly in the diocese of Joliette, at the request of His Excellent Mgr. Papineau, a committee has been formed to fight against obscene literature. That committee, whose action extends over the whole diocese, includes diocesan associations like the Knights of Columbus, the Knights of Champlain and the service clubs of Joliette. They have joined together in waging war against evil literature and in protecting our young people. I want to point out the important work that is being done in that field by the Knights of Columbus of Joliette, Council No. 1468, as well as by Knights of Columbus councils at Ste. Helene de Valois, Montcalm, St. Lin des Laurentides, and L'Assomption. All have done and are still doing much in the fight against obscene literature.
Mr. Chairman, may I once again congratulate the Minister of Justice for rising to his responsibilities, for amending the code in order to rid the nation of evil literature. Of course, there will be criticism of what he is doing, but nothing is perfect in this world, not even this bill. This legislation is not perfect but, even if it were, there would always be someone to try and find loopholes in it. Mr. Chairman, this legislation will be of great help to the Protestant, Jewish
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and Catholic associations, and to all right-minded people of this country by enabling them to fight even more efficiently against evil literature. It gives solid encouragement to law enforcement officers, to judges and to right-minded people across the country to persevere in their attempts to purge Canadian morals.
I commend the Minister of Justice for rising to his responsibility, and for tackling this problem-in fact, he has been at it for many years-and now that he holds the office of Minister of Justice, he is trying to carry out his great desire, that of helping the whole community, in short, to protect the young people of Canada.
(Text):


Douglas Mason Fisher: The minister is responsible both for this and for another bit of legislation due to come before the house, each of which introduces, at least in my opinion, something completely new, or a new concept in the question of prosecution and the position of a defendant.
I think I can make the point by reading something the minister elaborated in his speech to the Quebec union of municipalities on May 17, 1958. I might point out that what I read also makes nonsense of the suggestion that the minister is not prepared to have any consultations now or to hear any other groups in respect to changes in this code. The minister said:
We have, as I have said before, received some extremely interesting and often very practical suggestions to help us with our problem. A most interesting letter was received from one resident of Ottawa, who gave us his definition of the word obscene:
"Any literature, any spectacle or other matter which you would not like to see related to your mother, or your wife, or young sister, or your daughter."
The correspondent went on to remark that this was plain language that every man could understand. As you can easily see, however, a definition of this type leaves so much open to opinion that it would not seem, at present, to be the practical solution to the law.
Another very excellent suggestion is that the code should prohibit the publication and distribution of material-
And note these words-which the minister said over a year ago; because, as a matter of fact, these are familiar words:
-the dominant characteristic of which is the undue exploitation of sex, crime, immorality, horror, cruelty or violence, or any one or more of such subjects. This type of definition would appear to be very close to the solution to deal with the type of publication I have referred to a minute ago.
Let me interject here that the minister was very close to the solution last May. Why

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did he have to wait so long to bring it in and deny one group that wanted to make representations the opportunity of doing so?


Edmund Davie Fulton: I am not aware that I have denied any group the opportunity of making representations. I have heard from a large number of groups. I am quite certain I have indicated to anyone who has written to me that I would be glad to hear from them.


Douglas Mason Fisher: I am referring to representations before a committee. I regret that this legislation could not have gone before a committee.


Edmund Davie Fulton: Oh, that is quite different.


Douglas Mason Fisher: The minister went on to say:
Then, too, as of recent date, the unique suggestion has come in England recently. There, a policeman or law enforcement officer may seize publications from a newsstand; if he considers them harmful, he can take them to the court. The court then summons the vendor-
This is the key point. I continue:
-and unless he can establish the innocence of the reading material, it is destroyed. If the material is not considered by the court to be obscene the material is then restored to the vendor. This is, perhaps, the most far-reaching method that I have heard of to date, and does place the traditional onus on the defendant rather than on the crown to prove whether or not a publication is obscene.
Does the minister admit that he has gone along with this and is changing the traditional onus which has rested on the crown and placing it on the defendant? I would certainly judge that to be the case from reading clause 12, which states:
12. The said act is further amended by adding thereto, immediately after section 150 thereof, the following sections;
"150a. (1) A judge who is satisfied by information upon oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene or a crime comic, shall issue a warrant under his hand authorizing seizure of the copies.
Apparently this places the traditional onus on the defendant rather than on the crown to prove whether or not a publication is obscene. I suggest that if the minister had a reservation a year ago he should still have it now.


The Deputy Chairman:: May I remind the hon. member that we are on clause 11, not clause 12.


Douglas Mason Fisher: May I draw to your attention the fact that the minister in his statement referred to the procedure, which comes under clause 12.


Edmund Davie Fulton: May I suggest that we consider clauses 11 and 12 together. They are closely related.


Charles Edward Rea: Is it the will of the committee?


Some hon. Members:: Agreed.


Douglas Mason Fisher: This would be dangerous even if we had only one example, but in other legislation the minister has indicated he is bringing in referring to the Combines Investigation Act the same idea is incorporated, and the defendants are going to have to show that there is something good or worth while about their particular monopoly; then they will get off. I am suggesting that these are two changes of which we should be wary because they introduce, as the minister says, a shift in the traditional onus from the crown to the defendant.
To support my contention that the minister's explanation is most unsatisfactory I will read an excerpt from the Ottawa Citizen of March 6, 1959, which reads:
More judicial guidance on what constitutes obscene literature would be helpful to the customs and excise department, deputy minister David Sim said Thursday.
Mr. Sim told the commons estimates committee that he would like to see more appeals to the courts on decisions of the department to ban certain foreign books.
"This way, we would get some direction on this thing," Mr. Sim smiled.
He said that officers of his department and revenue minister Nowlan did not relish their job of acting as censors.
"No one in his right mind would ask for a job like that," he commented.
In my remarks the other evening I pointed out that the main problem in so far as obscene literature or books are concerned lies with publishing that is done outside of Canada. Very little publishing is done in Canada, and such a minimal fraction of that is likely to be obscene that it is obvious that the main problem in so far as rational adults who read are concerned stems from books published outside of Canada, especially in France and perhaps in England and the United States. Perhaps, however, the minister does not agree with me. What does the legislation do in this regard? I gather not a thing except this one point, and I would imagine this could be a dangerous point and I want an explanation from the minister on it.
Under this bill, as I understand it, if a judge does decide something is obscene then notice goes to the attorney general of the province, who I gather can declare that this particular material is obscene as far as that province is concerned. Does this mean that our customs and excise authorities are going to take the decision of the attorney general of one province and apply it all across Canada? I can certainly foresee difficulties arising from

this situation, because there are marked disagreements from province to province about what may constitute an obscene publication.
If as a result of this new procedure the decision of a judge promulgated by an attorney general is to be taken by the customs branch as official advice that will determine whether a book is admitted or barred from a country, we are going to be up against the problem of having the action of one magistrate and one attorney general determining the policy in so far as the importing of certain books is concerned.
The minister indicated that despite the new definition the Hicklin definition of obscenity as something tending to deprave and corrupt would still be enforced. I should like him to give us an indication how he thinks that definition will work. He used a British example, but I wish to point out to him that there has been considerable controversy over the Hicklin definition and over the way United Kingdom censorship is exerted. The objections concentrate largely upon the stage plays and the role of the chamberlain; however, there has been a great deal of dissatisfaction concerning the censorship of books in that country. I can give the minister several examples such as "Lolita", which we can buy in this country because it is allowed in but which is not allowed into England at the present time. Another example is D. H. Lawrence's "Rainbow" away back in 1915, which was barred at one time but later allowed to come in.
The British in their application of the Hicklin ruling regarding depravity and corruption have scared the wits out of many publishers. And England is not looked upon by publishers as being as open and fair a place to publish as is even the United States. The whole question of how you define obscenity, I think we all agree, is most difficult. The meaning of the word "obscenity" as legally defined by the courts in the United States is as follows:
-tending to stir the sex impulses or to lead to sexually impure and lustful thoughts.
This definition is taken from the judgment of John M. Woolsey, United States district judge, in the case of the United States of America v. one book called "Ulysses". The judge went on to say:
Whether a particular book would tend to excite such impulses and thoughts must be tested by the court's opinion as to its effect on a person with average sex instincts-what the French would call Vhomme moyen sensuel-who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the "reasonable man" in the law of torts and "the man learned in the art" on questions of invention in patent law.
The risk involved in the use of such a reagent arises from the inherent tendency of the trier of facts, however fair he may intend to be, to make
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his reagent too much subservient to his own idiosyncrasies. Here, I have attempted to avoid this, if possible, and to make my reagent herein more objective than he might otherwise be, by adopting the following course:
After I had made my decision in regard to the aspect of "Ulysses", now under consideration, I checked my impressions with two friends of mine who in my opinion answered to the above stated requirement for my reagent.
These literary assessors-as I might properly describe them-were called on separately, and neither knew that I was consulting the other. They are men whose opinion on literature and on life I value most highly. They had both read "Ulysses", and, of course, were wholly unconnected with this cause.
Without letting either of my assessors know what my decision was, I gave to each of them the legal definition of obscene and asked each whether in his opinion "Ulysses" was obscene within that definition.
I was interested to find that they both agreed with my opinion: that reading "Ulysses" in its entirety, as a book must be read on such a test as this, did not tend to excite sexual impulses or lustful thoughts but that its net effect on them was only that of a somewhat tragic and very powerful commentary on the inner lives of men and women.
I bring up that point of literary assessment because of its relevance to the amendment we plan to move to the particular amendment brought in by the minister.
The hon. member for Hull pointed out that some religious groups have protested against the definition contained in this amendment. These religious groups have tended to be, as I understand it from the two items in the newspaper which I noticed, protestant religious groups. This underlines another very touchy and difficult point, that different religious groups have different sensitivity toward censorship and the whole idea of censorship and of obscenity. This is all the more reason why we should be very careful in the kind of measures we introduce.
It is very difficult for me to see how one can bring in an amendment to point out the traditional onus being shifted from the crown to the defendant. I do think that because this is such a switch we deserve a much more careful and reasoned explanation on the part of the minister as to whether it is a desirable thing that is being introduced, and whether it may not put far too much power in the hands of the crown. I know the minister underlined several times that this is designed to get after the comic books and the things that are on the newsstands, but how can he be sure it will not extend farther than that, and that an occasion will not rise when through one magistrate and one attorney general we might find ourselves in a position where much more than just the degrading comic books are in danger of being swept away from people who might care to read them.

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The standards of magistrates will vary from person to person and place to place. I always remember one of the conclusions that Kinsey came to in his study of the sexual habits of the American male, which was I think a very relevant one, that magistrates and lawyers tend to come from a more sophisticated level of society, and certainly a more educated level, than the ordinary working man. They have different mores in regard to certain sexual aberrations. For example, the magistrates and the lawyers and the crown counsel tended to take a much more serious view of rape than the working man or the working class people tended to take. On the other hand, the working class people tended to take a much more serious view of homosexuality than the magistrates and the middle class did.
Kinsey pointed out that this is one of the great difficulties in trying any criminal matters in this particular field. First, what are the standards of the particular group or society or community within which a person making a judgment comes? I would not suggest that this analysis of Kinsey's can be applied across the board, but I still think it can underline the point that there is a great variation in what people consider to be obscene.
I can give the minister an example from this house. The other night an hon. member came up to me and asked whether I had read "Lolita". I happened to have read the book three times because it seemed to me it was a serious focal point of the kind of problem the censor is up against. Quite frankly I was shocked by it the first time. Friends of mine who are literary persons said "Read it again". I read it again and 1 began to see that here was a book which had perhaps exceptional literary merit, and after reading it a third time I became convinced that it was probably the best novel of its kind-I mean by that, a social criticism, expressing a social criticism, a social analysis of the United States-that I have encountered in five or six years. The member of this house to whom I was talking about this is a man whose opinion I respect very much. He told me-


Charles Edward Rea: Order. I must
advise the hon. member his time has expired.


Some hon. Members:: Continue.


Charles Edward Rea: Is there unanimous consent for the hon. member to continue?


Some hon. Members:: Agreed.


Douglas Mason Fisher: As I say, I respect the hon.
member's opinion very much. He said that after 15 or 20 pages he put the book down. He said it was a horrible, terrible thing, which should never be allowed in. There is

an example right within this house. I would like to think that I am a man of common sense. The hon. member to whom I spoke is a man with a fair amount of common sense, but you can get that much variety. That is why it seems to me that giving to magistrates and judges this much power is very dangerous.
I should like to know from the minister whether he has had any representations from the publishers in regard to this definition. Have they had the opportunity and the time to consider it? I should like to ask him what he thinks of the representations that I hope he received from the Canadian library association.
Since I have already overstayed my time, Mr. Chairman, I move, seconded by the hon. member for Timmins:
That clause 11, subsection 8, be amended by striking out "a" in line 11 and substituting therefor the word "the"; and that the clause "and which is without literary or scientific merit", be inserted after the word "violence" in line 14.
Subsection 8 will then read:
For the purpose of this act, any publication the dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence and which is without literary or scientific merit, shall be deemed to be obscene.
I should like to give the reason for changing the article "a" to "the". First, it seems to me confusing. I would like to understand why a thing has a dominant characteristic. If you say that in a household the wife is the dominant person, that is the dominant characteristic perhaps in that household. "Dominant characteristic" is what confuses me. The only thing I can see it means is that in a book you could have a whole host of dominant characteristics, and you could pinpoint this one. If you take a book like "The Naked and the Dead" by Norman Mailer, which I thought was one of the great commentaries upon the war, to me the dominant characteristic in that book was the fight between the liberals with a small "1" and the fascists represented by the lieutenant and the general.
I could certainly say that was the main theme running through the book. Another reader might look at it and say the dominant characteristic was that of sex, because there were some scenes in it dealing with sex and therefore that would come under consideration. I think the putting in of the word "the" instead of "a" would help clear up this particular point.
The reason for adding the clause "and which is without literary or scientific merit" stems from the remark the minister made concerning the word "undue". He felt that the word "undue" would give protection to

works of literary, scientific or artistic merit. I feel that if he wants to protect books of that kind he should not depend upon the interpretation by some lawyer or some judge of the word "undue". Let us put it right in there.
One of the things this would do, since the onus is now being put upon the defendant under this legislation, is that it would give him something to bite into. He could say, "Look, I can show this has literary merit because professor so-and-so of Carleton college has said so". He could show the work had scientific merit by comparing it with a certain scientific encyclopaedia which would show that the facts were there. We feel this would give more protection to the defendant upon whom the onus is being put at this time.


Leon David Crestohl: The minister made a rather lengthy statement this morning, Mr. Chairman, in connection with obscenity. I wondered why the minister was so late in giving that lengthy explanation.


Edmund Davie Fulton: Because this is the first time we have reached the clause in committee, which is the proper place to make it. It is not late at all; it is the first possible proper opportunity.


Leon David Crestohl: I suppose the same thing occurred with respect to clauses 2 and 3, and perhaps rightly so. When we were debating the principle of the bill some of the speakers presented some of these problems to the minister and asked him in his reply to deal with these matters in order to enlighten the house on these various subjects. We discussed clauses 2 and 3 for some time, and it was after the adjournment of the house that the minister came back with a lengthy statement.
It is quite right that the minister should have heard some of the comments of the members and then come back with a long explanation as to why this innovation should be considered now. We had a lengthy discussion of this question of obscenity during the early part of the discussion on the principle of the bill, but only now does the minister come forward with a statement. The minister did take the trouble to make a statement in the general debate, but instead of dealing with these questions the minister, as the hon. member for Hull quite properly said, apparently had nothing prepared with which to answer and therefore launched into a political attack. This is what stirs me into stating what I am about to say.
The minister, instead of dealing with the question of obscenity or the definition of the words "undue" and "dominant", proceeded to attack Liberal members from the province of Quebec, and accused them of attempting to 66968-9-351
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make a farce out of the matter. Actually the minister was then talking on his bill, and the dominant part of his address-I underline the word "dominant"-was purely political. If one were to go by the definition that we are being given, then one would say it was obscene.
I say that in all frankness to the minister, because I have always held that if there is one member of the cabinet who should be very anxious to avoid stooping to politics on every possible opportunity, that cabinet member is the Minister of Justice. He should really sit in an ivory tower and remember that he is there as the Minister of Justice for all parties in Canada and not merely for one party.


Louis-Joseph Pigeon: You will vote against the bill?


Leon David Crestohl: This has nothing to do with voting against the bill. I would vote against the minister for becoming political on a very important issue. There are cabinet ministers who, at times, can be political on various matters, but I have always hoped that the Minister of Justice would not, at each opportunity, stoop to pure and unadulterated politics. He should stay on the level of justice.
I say that when this matter is discussed- I do not make this as an accusation-the minister should not behave in that way but should give us an explanation such as he gave this morning with respect to obscenity instead of giving us something which, I repeat with the greatest respect, was unbecoming to any minister of justice in any government at any time. I point out that if the minister, in passing, had simply mentioned that he could not understand why the Liberals from the province of Quebec were treating the matter lightly, that would have been one thing. I have not the text in front of me, but the minister said four or five times, and he emphasized this, that the Liberals from the province of Quebec were making very light of this thing. I shall repeat that the fact that this was the dominant theme of part of his address made that part of his address obscene according to his own definition.
I would prefer, when we come to clauses 11 and 12, to deal with those in the way in which I think they should be dealt with. There is much to be said for them. I do not want to confuse both of my statements. I again appeal to the minister that in dealing with matters of justice, above all when he is dealing with amendments to the Criminal Code, he should keep the discussion on the high level of justice. Why could he not do that?

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Edmund Davie Fulton: Because you got it down from there in the first place.


Herbert Wilfred Herridge: Mr. Chairman, I have a few remarks to make on this question because a number of my constituents have been most interested in this legislation. First of all, let me say we all know this matter has been of serious concern to a large number of people throughout Canada in recent years. I want to say right now that we agree with the intentions and objectives of the minister, but I rise to support the amendment moved by the hon. member for Port Arthur because we believe this amendment will further protect the rights of a free press and the right of free speech as we understand it.
As I said before, this is a most difficult problem. I know that so far as our group is concerned, since this legislation was introduced we have given considerable thought to this clause. We have had a number of meetings, and we have discussed the clause from every angle. I can assure the minister it is the intention of this group to offer this amendment in a constructive way in order to best meet his objectives and his intentions.
Now, Mr. Chairman, to indicate that there is serious consideration being given to this legislation since it was introduced into the house, I should like to read a news item from the Gazette of June 17, 1959, which I think puts briefly and in better form than I could the arguments against the clause as it is now worded. The article is entitled, "Clergy Hit Obscene Law Plan". It reads as follows:
Proposed federal legislation defining obscenity in relation to literature was attacked today by three clergymen here for the eleventh annual summer school of religion as indefinite and unnecessary.
In an interview at the University of Western Ontario, Dr. James T. Cleland of Duke University, N.C., Rev. W. B. J. Martin of the Scottish Congregational College, Edinburgh, and Rev. D. R. Fraser of Byron, Unitarian minister in London, agreed a wrong tack was being taken.
"You cannot legislate people into the kinds of individuals they should be," said Mr. Fraser, whose letter to the editor of a London newspaper prompted the discussion.
The letter stated in seeking more information about the proposed legislation: "We are already shackled by the legal chains of an outmoded Victorian morality in such matters as divorce and birth control. Citizens should be on guard to see that the prudery of a few does not place undue hardship or false propriety upon the many."
The reduction of obscenity in Canadian publications might be better achieved by a program of education rather than one of legislation, the ministers maintained.
We heartily agree with that contention. In the long run it is a program of education and of the raising of standards and concepts in this field that will bring the real improvement that we are all seeking.

Wording Has Loopholes
Besides, Dr. Cleland, said, the legislation proposed leaves the matter wide open by its wording. The lawyers will have a field day with it.
We were under that impression, Mr. Chairman, when we were discussing this matter in our caucus. In our opinion it is wide open and leaves opportunities for wide differences of opinion between lawyers, magistrates and judges across Canada.
The legislation defining obscenity planned by justice minister Fulton for inclusion in the Canadian Criminal Code reads: "Any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene."
The clergymen pointed to the words "dominant" and "undue exploitation" as providing ready made loopholes.
We agree with that contention.
Dr. Cleland and Mr. Martin are guest lecturers at the UWO summer school which is now in its second day at university college.
More than one hundred clergymen are attending the five-day school.
Then to follow up that matter I want to read an editorial from the Globe and Mail of June 15 of this year. It is a very well known paper which generally supports the Conservative line of politics. It is a very fine paper, one which has a very good format and which in my opinion generally has a very excellent and democratic approach to international and national affairs and problems. I read many of the editorials with a great deal of pleasure and agree with them on many occasions, as I do with this one which is entitled "What is Obscenity?". It reads as follows:
Efforts by legislators and courts to define obscenity in literature have never been very successful. The dominion cabinet has just made a creditable attempt in an amendment to the Criminal Code introduced in the House of Commons.
Although the Criminal Code makes it an offence to sell "any obscene written matter, picture, model, phonograph record or other thing whatsoever", it does not at present specify what obscenity is. Police and courts are left to supply their own definitions, with such help as they can obtain from past precedents. The test commonly used in Canada was formulated by an English judge in 1868; "Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall".
This definition is open to serious criticism, in that it makes the reactions of immature or abnormal individuals rather than those of normal adults-
Like members of parliament.
-the touchstone for determining whether a book is or is not obscene. Applied rigidly and literally, it can lead to the banning of many serious works of literature.
In place of this old rule, the proposed amendment offers a new definition for obscene matter:

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Then the editorial quotes the section with which we are dealing, namely section 11, and continues:
This is a distinct improvement on the 1868 rule in two particulars.
We agree with that statement.
It lays stress on the "dominant characteristic" of the work rather than on isolated passages. More important, it makes the test whether there has or has not been a deliberate effort to exploit sexual desires. With this definition, it should be a little easier to draw a distinction between real pornography and works with a serious literary purpose.
Even so, the interpretation of the section is bound to present many difficulties. Where, for example, is the line to be drawn between "due" and "undue" exploitation? Narrowly construed, the new definition could condemn such classics as Hamlet, Othello and King Lear, all of which concerned with "sex, crime, horror, cruelty and violence". A great deal will still depend on the good sense of individual judges and magistrates.
It is unfortunate that when the government is trying to bring the law up to date on this matter, it has failed to touch the silliest and most indefensible anomaly of all. This is the rule which gives the Department of National Revenue authority to exclude from Canada any imported material its officials consider immoral or indecent. It is generally agreed that customs inspectors are not qualified to decide-as a sideline to their regular jobs- the often difficult and subtle question of whether a particular book is obscene. They do not, in fact, want the responsibility.
I am sure the Minister of National Revenue has indicated to the house very clearly that he does not enjoy this responsibility.
The law should be changed to leave the decision in all cases to the courts.
We think that editorial has placed the position very well indeed. With respect to the question of what is obscenity, may I say that I listened to a television broadcast at 10.30 p.m. eastern standard time over the trans-Canada network on Wednesday, February 10. I am going to read only the concluding paragraph because I think it deals effectively with the difficulty of definition.
To obviate this and other dangers-
This is referring to obscenity.
-it would seem that the most desirable procedure to deal with the present problem in Canada would be to attempt to enact a satisfactory and workable definition of the term "obscenity" and to apply the law where it was needed. Whether such a definition is possible is a question for those skilled in the law to decide. But this method would certainly seem preferable to the establishment of local or provincial boards of censors or the continuance of the present admittedly inadequate inspection of books entering the country. A combination of the threat of legal action, based on objective criteria, and the pressure of intelligently exerted public opinion should be sufficient to check the spread of unpleasant written material in this country.
As I said, Mr. Chairman, we fully recognize the difficulty of this problem. In moving
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this amendment we are trying to overcome what we think are some of the objections to the section as it now stands and to make the law clearer for magistrates and judges who have to administer it.
The hon. member for Port Arthur mentioned the different standards of magistrates and judges throughout Canada. I am sure the minister, with his knowledge of British Columbia, realizes that there is a great difference in standards as between magistrates and that things must be clearly defined if the law is going to be fairly applied all across Canada.
In order to illustrate that point may I say this. I remember two old justices of the peace in my district who were good citizens throughout the years. I remember that they always confiscated whisky that was produced in court. When people were charged with drinking it, they would solemnly confiscate it in the name of the crown to be presented to the local hospital. I was president or director of our local hospital for 18 years and I never had knowledge of a drop of that whisky ever turning up at the hospital. I want to mention that the point which always struck me was that the dear old gentleman, who was highly respected and was of Scottish descent, always concluded his sentence, whatever it was, $5 or $50, by saying, "Gentlemen, it is obscene to drink in public." There we have a definition of obscenity, and an example of the difficulties you get into with respect to differences between magistrates and judges. That might be an extreme case, but there is that possibility.
It is for the purpose of removing that deficiency as far as possible in respect of the section that my colleague the hon. member for Port Arthur has moved the amendment. Our group has given this section particular study. I think I can say that no clause of any bill which has been introduced into the house this session has received more consideration from this very small but very intelligent and very industrious group. We introduced this amendment because we believe it will achieve the common objective this group has in seeking to deal with the actions of this vermin of free enterprise which seeks to make a profit regardless of the welfare of our young people in Canada, and at the same time we are endeavouring to protect the rights of the free press and the right of free speech. Therefore I urge the minister to give serious consideration to our amendment in an effort to meet the needs of our times in those two directions.


Lester Bowles Pearson: Mr. Chairman, may I first say a word about one part of the amendment; the other part we will have a chance to study. I am directing my remarks to the

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part which proposes that for the words "a dominant characteristic" should be substituted "the dominant characteristic", which seems to us to make sense. However, if the hon. gentleman who moved the amendment would look at the French version of the bill, and if the minister would look at it, he would find that the French version of the bill meets that particular point, because the French version reads "la caracteristique dominante", whereas the English version is "a dominant characteristic". Perhaps we had better find out first from the minister which language will prevail in respect of this particular point.
So far as the clause itself is concerned, I agree with the hon. member who has just spoken that all members of this house undoubtedly support the purpose of this amendment, and we hope that purpose will be achieved by the amendment. We hope those who have been sceptical about the result of this amendment, in that it will make additional work for lawyers-or as one person, Mr. Harold Weir in the June 23 issue, of the Vancouver Sun put it, that the only thing accomplished by this so-called definition is to make the problem of pinpointing obscenity more complex-will be proven wrong by this amendment if it becomes law.
What it does, of course, is tighten up legal sanctions against what we all recognize to be wrong and evil, obscenity; but these legal sanctions, even though they are tightened by this clause, will not have the effect we would like them to have if they do not have behind them perhaps the even more important moral sanction of public opinion. Bishop Gower said, as reported in the Vancouver Sun the other day:
It is society that is making this problem, and only society can cure it. If the change in law is a reflection of the desire of society as a whole, then it will be a change for the better.
We also hope, Mr. Chairman, that this tightening up can be brought about without interference-I know the minister hopes this also-with our traditional freedoms, our freedom of expression, which we cherish and which we do not want to see weakened. I am sure that by leaving this matter as it is intended in the hands of the courts we will get the kind of protection for our freedoms that we have the right to expect.
There is one aspect of this amendment with which perhaps the minister has dealt. If he has I apologize, but it has to do with the definition of "publication". When the problem was being discussed in the British House of Commons in the spring, the minister will perhaps remember that the solicitor general emphasized that while most discussion about obscenity had centred on authors

and books, the responsibility of the government was much wider than that and had to include things like records, pictures, films and television film tapes. So I ask the minister whether the definition of "publication" is wide enough to cover these other matters without which, of course, this amendment would only have partial effect. Perhaps he could deal with that point.
I would like to say in conclusion that we heartily approve of the purpose of this amendment, and we hope this purpose will be achieved without interference with those freedoms which are of such great importance and which are always under threat these days.
As far as the other part of the amendment is concerned, that which would insert the words "and which is without literary or scientific merit", we would like to study it. I have the feeling that it is already covered, but we would like to look at it and express our views on that after the luncheon recess.


Edmund Davie Fulton: Mr. Chairman, I realize it is just before one o'clock, but there is one point I would like to deal with now. I shall attempt after one o'clock to deal with every point which has been raised, but I want to deal with one point now to clear up a misapprehension.
The hon. member for Port Arthur said that in clause 12 we are shifting the onus of proof from the crown to the accused. I would like to correct that misapprehension at once and say that is not the case. If my hon. friend will read subsection 1 of the proposed section 150A, as he has done, he will see that the judge has first to be satisfied by information upon oath that there are reasonable grounds for believing that any publication is obscene. Then if he reads subsection 4, he will see it reads:
If the court is satisfied that the publication is obscene or a crime comic, it shall make an order declaring the matter forfeited to Her Majesty-
In each case, but particularly in subsection 4, which is the main consideration which has to be met before the order can be made, the court has to be satisfied. Mr. Chairman, the onus of satisfying the court is always on the crown; therefore it is perfectly clear that the crown has to discharge that onus of proof that the matter complained of is obscene within the new definition or the definition of the Hicklin case, whichever definition the crown wishes to rely upon.
I would like to dispose at once of any suggestion that we have put upon the man in whose possession the publication is found the onus of coming to court and proving that the publication is not obscene. He does not have to prove that. He has to come into

court to answer an allegation, yes. The allegation is that the matter is obscene, but there is no onus on him to prove it is not. The onus is still on the crown to prove that it is obscene before the court can be satisfied that it should make the order referred to.
In that connection I think my hon. friend was not quite clear in his reference by way of illustration to something which was proposed to be done in another bill, namely the bill to amend the combines act. My hon. friend said that we had again shifted the onus to the accused, and my hon. friend has missed the point. We have done nothing of the sort. What we have done is to create certain defences. We have made it clear that there are defences to a charge, and those defences were not established before. It is one thing to establish a defence, in which case of course the accused has to prove the defence; but that does not shift the burden of proof with respect to the charge itself to the accused. The crown still has to prove its charge. Then if the accused relies on certain defences, he has to prove them. All we have done there is to say that there are certain defences available, and then the accused has to prove them if he relies on them. Therefore in neither case have we placed any onus on the accused of proving his innocence; the onus is still on the crown to prove the offence as charged.
At one o'clock the committee took recess.


[Stage Direction]
AFTER RECESS

The committee resumed at 2.30 p.m.
The Chairman:: Shall the amendment carry?


Edmund Davie Fulton: I do not think the amendment has yet been put. We were discussing it before lunch, and I had just dealt with some of the points which were made by the hon. member for Port Arthur. I should like now to deal with some of the other points which were raised by hon. members during the discussion.
The hon. member for Hull implied that I was somehow or other guilty of failure to carry out an undertaking in that we have not provided, made special provision in this clause for proceedings against a printer or publisher. In the first place I should like to say that I gave no such undertaking. What I said in the speech to which the hon. member made reference was that we were considering whether we should make some special provision for the prosecution of printers and publishers to an extent not normally made now.
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We did consider that point, which was what I undertook to do, but we came to the conclusion that because the question of proceeding against printers or publishers or anyone else who may be involved in this offence is primarily one for the law enforcement officers of the crown, and as the law enforcement officers of the Criminal Code are the attorneys general and other officials of the provincial governments, it did not seem very appropriate for the federal government to provide that there should be a prosecution of a printer or publisher in every case, or in any particular case. Of course a printer or publisher, if he is subject to the jurisdiction of our courts, can be proceeded against on the decision of the provincial attorney general or other prosecuting officer.
I would also remind the committee that inasmuch as we are providing this new procedure in rem we feel that this provides a quick, and as I have said before, objective method of disposing of the issue as to whether or not a publication is obscene, and it would be our expectation that, if the courts did decide that a certain publication was obscene, the matter would be finally disposed of and the publication withdrawn from circulation. Of course should a decision to this effect be given by the courts and the publisher or printer, or anyone else, persist in continuing the offence of publication in Canada, that person, whoever he might be, would be liable to prosecution with the consent of the attorney general.


Douglas Mason Fisher: In any part of Canada?


Edmund Davie Fulton: In any part of Canada, yes; wherever he could be found, but you cannot prosecute him in one province for an offence committed in another.


Douglas Mason Fisher: Let us take as an example the novel "Lolita". Suppose someone brings it to the attention of the authorities and Brit-nell's in Toronto has a whole host of copies; does a decision reached by the magistrate in Toronto mean that all across Canada booksellers who have "Lolita" in stock should stop distributing and selling it?


Edmund Davie Fulton: I think the practicality would be that a case of that kind would come before the Supreme Court of Canada before it was finally settled. If a disposition were finally reached in this way, that decision would, of course, be binding on all courts in Canada. But if in a particular case a decision was only given in the magistrate's court, that decision would not be binding on other courts in Canada, particularly on higher courts. Persons who might be called upon to give advice as to whether or not their clients should continue to distribute a particular publication would no doubt be largely

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guided by the decision made in whatever eourt it might have been given, but the only decision that would be binding on all the courts of Canada would be a decision of the Supreme Court of Canada.


Douglas Mason Fisher: Can I ask the minister what effect these magistrates' decisions on books might have upon the customs people, and what considerations they are to take into account?


Edmund Davie Fulton: That would be a matter of administrative policy on which I have not had any discussion with my colleague the Minister of National Revenue to find out what instructions he would give, but I would assume it would be the normal thing that, if a certain publication were found by a magistrate's court or any other court in Canada to be obscene under the new provision, the Minister of National Revenue would so instruct his customs officers and they would tend to give effect to that decision where they were called upon to do so to prevent it from entering the country.


Douglas Mason Fisher: Because of the decision of a magistrate?


Edmund Davie Fulton: 
Herbert Wilfred Herridge: As that correction is included in our amendment, will the minister
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not agree that the study made of it by the C.C.F. indicated the weakness in the amendment on this point?


Edmund Davie Fulton: That may be, Mr. Chairman; but I believe, for reasons I will explain, that the C.C.F. amendment is itself in error in seeking to incorporate the word mentioned therein. I shall deal with those reasons in a moment. "A" is the word we intended, as it appears in the English copy of the bill. If, therefore, the committee agrees with me and rejects the amendment of the C.C.F., I will move that the French version be corrected by deleting the word "la" where it appears and substituting therefor the word "une" which will make the English and French versions the same.
The reasons I suggested that the amendment moved by my friend the hon. member for Port Arthur should not be accepted are the following. We are trying to keep this bill as simple as possible and make it as simple as possible for the courts to find whether or not a publication is obscene. What is it that the courts are called upon to consider in making this finding? They will be called upon to consider whether it is a dominant characteristic of a publication that it unduly exploits sex, or sex and any one or more of several subjects, and it seems to me it is a simple question to put before the courts, to determine whether it is a dominant characteristic of a publication that might be in question.
If, however, you use the word "the"-it is "the" dominant characteristic of the publication in question-that does open all sorts of loopholes for legal argument of exactly the type which my hon. friends have previously criticized; because then you might have the lawyer for the defence suggesting that perhaps the dominant characteristic of the book is not this undue exploitation of sex, etc., but it is perhaps the artistic format of the book itself or some other characteristic of the book. If the courts answer the question that it is a dominant characteristic of a publication that it unduly exploits sex, I do not think the courts should be asked to make refinements as between other principal characteristics of the book and as to which one is the dominant and only characteristic. It is quite possible for a book to have more than one major characteristic.
If my hon. friends will look up the definition of "dominant" in the Oxford English dictionary they will find that one of the definitions-and I say it is one and not the only definition-is "occupying a commanding position". As an example of the use of the word "dominant" in that sense I give the following: "To take possession of the dominant parts of the globe", which indicates clearly

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that there may be a number of dominant parts or characteristics of a single whole. Therefore we have purposely used the words "a dominant characteristic" rather than "the dominant characteristic" for the reasons I have tried to indicate.
The other part of the proposed amendment would add the words "and which is without literary or scientific merit" so that the proposed clause would then read:
For the purposes of this act, any publication the dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence and which is without literary or scientific merit, shall be deemed to be obscene.
I am sorry I cannot accept that part of the amendment either, for this reason. It seems to me that the insertion of those particular words would impose definitely upon a person who intended to publish an obscene book the necessity merely to put in one chapter, or indeed one paragraph, with literary or scientific merit, and then he would argue that this book did contain some passages of literary or scientific merit. Therefore, he would say, this book should not be found to be obscene.
We have provided in this section as it is drawn, Mr. Chairman, what we believe to be a fair, simple and conclusive test; namely, is a dominant characteristic of this book, or of other work, the undue exploitation of sex, or sex and crime or any one of a number of additional subjects? I think this is a simple question for a court to answer, and if the court can answer the question affirmatively, then I see nothing unfair in its bringing in a finding that the particular publication is obscene.
We do not want to open loopholes which, first, will permit of a number of unduly technical arguments; and, second, may well provide a loophole for escape on the part of those who should not really escape at all. Therefore I must say we cannot accept the amendment.


Douglas Mason Fisher: Mr. Chairman, I was not very convinced by the definition of "dominant" the minister read out. I still think there can be really only one dominant characteristic of something. I believe the minister could or should elaborate even more on some examples of what are a series of dominant characteristics. I know in the field of heredity study the phrase, "genes with dominant characteristics" is used in the plural, but that is about the only field I can think of in which it is the practice.
To say that the amendment respecting literary and scientific merit might open the door to someone sneaking in something, I understood the minister to say the very reason

the words "undue exploitation" were used was to give protection to works of scientific, literary and artistic merit. If that is so, and since there may be a great deal of argument over "undue", I thought the addition of the direct phrase "and which is without literary and scientific merit" would correct that situation.
The minister emphasized throughout his remarks that this is a simple and objective way of getting at the problem that is presented to us. I wonder whether we really want it that simple. I wonder whether we really do not want the protection that we would get from having "the" instead of "a", and requiring that literary or scientific merit be considered. What is the magistrate going to do when this material is brought before him if it is not to make a decision as to whether the work has literary or scientific merit?
This brings me to the point where the minister said I was wrong in suggesting that the onus was being shifted from the crown to the defendant. Perhaps my choice of words was not fortunate; perhaps I did not make the point very well, but it certainly seems to me that this is a new procedure which is being tried by this amendment. For example, if a crusading police officer in a metropolitan city wanted to build up his reputation he could go around and make a number of seizures; or a crusading politician, as far as that is concerned, could go in and note some material and then take it to the magistrate or to the crown attorney and swear under oath that there were reasonable grounds for believing that this material was obscene. The material is all pulled off the shelves and the seller finds himself in court.
In effect, it seems to me that under subclause 3 he has to come in and show cause why the material should not be destroyed. What happens to him in the interval? It seems to me that by those seizures the court is putting him in a very serious situation. It could wind up by his getting into business difficulty, especially if his whole stock or a large portion of it was seized. It could certainly, because of the action of bringing him before the courts, bring him into disrepute and therefore put his business in difficulty. From that point of view I think this new procedure does put the defendant in an unusual position.
I wish I had more legal background so I could make a point about subclause 3 in effect forcing the defendant to show cause why the material should not be destroyed. I feel that this is something new, and I should like the minister to give us the precedents for this kind of procedure in law or in Canadian practice.

The other point I am not very satisfied with is this. Of course the minister assumes that the customs department, once they know a magistrate has ruled on a book, would not allow it into the country. If that is the way it is going to be, we could get all kinds of silly situations. I know the minister will remember the Senate committee that looked into the question of salacious and indecent literature in 1952 and 1953. I can well remember one of the most vicious blasts that were made in that committee was against a play by a British Columbia writer by the name of Ethel Wilson. Certainly a number of people in one of the provinces of Canada thought it was a most indecent and obscene thing and that the C.B.C. should never have been allowed to produce it; it was a foul and filthy thing. Well, by this sort of procedure, if Ethel Wilson had this book published in the United States we could wind up having some magistrate in one province decide that the book was obscene and the rest of Canada, where -it might be found quite acceptable, would be barred from reading it.
In the light of the fact that the Minister of National Revenue was very strong in his statement last year about wanting to get this question of making decisions on obscenity out of his department, I wonder whether the minister thinks this is a really satisfactory solution.


Edmund Davie Fulton: I think the answer to the last question should be given at once and that is, yes; we do think it is a satisfactory solution because we are leaving the decision to the courts. The decision as to whether or not a publication is obscene is now to be made by the courts under this clause.
In answer to the other part of the hon. gentleman's remarks, I can only refer him again to the fact that the proposed subsections 1 and 4 should be read together. I emphasize that since subsection 4 says that if the court is satisfied that the publication is obscene it shall make an order declaring the matter forfeited to Her Majesty, this makes it clear that the crown has to satisfy the court.
Consider the situation that would exist if, for instance, neither side gave any evidence at all. Then the court would not be satisfied that the publication was obscene and the accused would be, I expect, acquitted. Let us put the other case-I am trying to illustrate the point to assure my hon. friend that there is no shifting of the onus-where the crown simply gave no evidence; then of course there would be nothing before the court upon which it could be satisfied. I think, therefore, we have clearly preserved the ordinary principle of law that it is the onus of the crown to
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prove its case. The case the crown is seeking to make clear, and which it has to prove, is that the publication complained of is obscene.
In so far as the "show cause" summons is concerned, I am quite frank to admit that it is a new procedure under circumstances of this kind. I could give one or two other examples, although I do not say they are parallel. I think particularly of a judgment summons which in effect calls upon the judgment debtor to show cause why he does not pay the judgment. If he fails to show cause he is liable to be put in prison, not for debt but for refusing to comply with a judgment of the court. The judgment debtor is therefore called into court to show cause why, in effect, he should not be committed for contempt of court by refusing to pay the judgment. There are other cases, but I cannot think of them at the moment, and I do not want to be inaccurate. The show cause summons is not a new thing. It is a new procedure with respect to obscenity, but it has been in force in the United Kingdom for over 100 years.
I should like also to deal with one other point made by my hon. friend, and that is the possibility of somebody in one province of Canada making a finding which my hon. friend alleges would be binding in all other parts of Canada, where perhaps the feeling was not the same. I can only emphasize again that there is, first of all, the right of appeal available to a person who feels himself aggrieved or who feels that somebody has not arrived at a proper decision. Second, not only the owner of the article seized but, under our proposal, the author is given the right to appear and make his representations refuting the crown's claim that the publication complained of is obscene.


Douglas Mason Fisher: Is it not true that in so falas the censorship of films is concerned, that is done directly within provincial compartments?


Edmund Davie Fulton: Yes, but there is no censorship here. This is one of the things I should perhaps emphasize at this point. We have set our faces against censorship so far as publications are concerned in the dominion parliament and we are seeking, under the ordinary legal principles applicable in Canada, to provide a method of dealing with publications which are offensive. I personally, as Minister of Justice have said-perhaps not as minister but certainly when I was a member of the opposition-that I could visualize no circumstances under which I would countenance the establishment of a bureau of censorship, certainly not in peacetime. It is because I recognize that there is a problem here, and it is because I am not prepared

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to recommend censorship, which I doubt would be acceptable to parliament, that we have sought this way of meeting the problem and still keeping within the confines of long accepted, well understood and sound principles of the Criminal Code, namely that a man is innocent until he is proven guilty. Here the publication is not obscene until it is proven to be obscene. What we are trying to do is define what we mean by obscene.


Leon David Crestohl: Speaking to the amendment I say, with all respect, that I do not share the view of the minister when he prefers the use of the term "a dominant feature", instead of "the dominant feature". My understanding is that there can be only one dominant feature, but I understand what the minister is trying to do. He is trying to bring under the section a case in which a feature may be an undue exploitation of sex but which does not necessarily constitute the dominant feature of that work. Perhaps the minister would consider eliminating the word "dominant" and using this language: "For the purpose of this act any publication, a feature of which is the undue exploitation of sex-". There you do not have to show that it is the dominant feature. So long as that work has in it a characteristic or a feature which is the undue exploitation of sex, then this wording might cover the situation, without making it necessarily the dominant feature.
I am just addressing myself to this one point. I should like to say something with regard to subsection 3 when we get to that.


Mr. Eudes:: The amendment moved by the hon. member for Port Arthur, Mr. Chairman, contains two points. First to substitute the word "the" for the word "a" after the words "any publication". As the Leader of the Opposition said this morning, the French translation of this section reads as follows:
( Translation):
-any publication a dominant characteristic of which is-
(Text):
Notwithstanding the arguments brought before the committee by the Minister of Justice I still believe that in this case, the French version should be adopted, substituting in the English text the word "the" for the word "a". There cannot be, in my opinion, more than one dominant characteristic. If the word "a" remains in this proposed new section it will then mean that a publication could have more than one dominant characteristic, which is difficult to conceive. I admit that a publication can be marked by many characteristics, but if one of those is the dominant one it should be termed "the" dominant and not "a" dominant characteristic, otherwise the word "dominant" would lose its meaning.

As to the second part of the amendment, that is the insertion following the word "violence" of the words, "and which is without literary or artistic merit", I simply say that part of the amendment adds nothing to the clarification of the definition of obscenity suggested by the Minister of Justice. The words in the new definition contained in this bill, "dominant characteristic", would in my opinion take care of a production which is a literary or scientific work. Even if isolated passages of such a publication would exploit sex and other immoral subjects, if the dominant characteristic of that publication is of real value in literature or science this new suggested definition of obscenity would not apply.
The proposed amendment to the section under study-I refer to the amendment moved by the hon. member for Port Arthur -would perhaps complicate the task of the judge who would then have to decide on the literary or scientific merit of the publication suspected of obscenity. More evidence would then be needed to enlighten the judge and to help him to decide upon the literary or scientific merit of the production under examination.
Evidence of fact has always been admitted before our courts, and exceptionally evidence of opinion is generally admissible whenever an issue comprises a subject in which knowledge can only be secured from experts or scientists. This amendment, I believe, in order to meet the requirements of all our acts, should also contain something along this line; that the opinion of experts as to the literary and scientific merit of an article may be admitted in any proceedings under this act. The amendment, if accepted, should also be moved under section 12 of this bill adding paragraph 150A to the Criminal Code; and to be complete it should also include the words "art or learning or of other objects of general concern".


Mr. Baldwin:: Mr. Chairman, there is no perfect system of law, but I think we can take it that we have achieved the least imperfect jurisprudence because we have been wise enough to realize that it is difficult if not impossible to chart in advance in its entirety or to define with accuracy and precision all the countless relationships between individuals or between individuals and the state. We have been content, and I think properly so, to leave to our courts and to men who are learned in the law, dedicated to their calling and very knowledgeable in the facts of human nature, sufficient room in which to manoeuvre to draw the distinctions and make the refinements necessary to arrive at the greatest measure of justice.

Show me any system or any code of conduct of human beings where an attempt is made to cover every contingency, to cabin, crib and confine within narrow limits behind high walls all the various matters which may be considered by a court, and there you will see a greater volume of litigation and a greater amount of jurisprudence than in any other system of law of which I know. I think, for example, of the revenue laws and the liquor laws of the respective provinces.
But having said that, I still think here is a case where amendment has long been needed to bring this particular aspect of the criminal law into line with the present-day situation. As the minister said, one of the leading cases on this particular branch of the criminal law is one which was decided in the United Kingdom shortly after the middle of the last century. I have before me the latest annotated Criminal Code and the cases referred to under section 150. The latest criminal case in Canada was Rex v. Ballan-tyne, decided in 1916. Both these cases were obviously decided at a time when there was not considered nor was there even contemplated all the volume of filthy and salacious literature which has descended upon us in recent years. For that reason it is quite obvious that we have needed for some time an amendment which will act as a beacon and a guide to courts in dealing with this particularly knotty problem.
Dealing very briefly with the amendment moved by the hon. member for Port Arthur, may I say this. 1 am quite satisfied that if this amendment which he seeks was in fact enacted it would greatly increase the amount of litigation and the number of contested cases. Counsel for the defence would have a field day with an opportunity to make use of an amendment of that kind. As I think the hon. member who just took his seat said, what is of literary or scientific merit? As the minister himself said, any small portion of a publication could be directed to a high level of literary or scientific merit, and there would be a perfect defence. I suggest that the adoption of this amendment would certainly not achieve the results which the hon. member may be trying to seek.
Before I take my seat there is one matter which I should like to bring to the attention of the minister pertaining to section 12 of the bill or section 150 of the Code. It seems to me to give a simple and expeditious method by which the crown could inquire whether or not a publication is obscene having in mind the fact that the definition in section 150 lists the variety of people who may be the subject of a criminal charge:
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(1) Everyone commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession-
I am wondering whether it would not be possible for any one of the people falling within those categories to be able himself to come before a court and say, "I have in my possession certain publications and I am doubtful whether or not they are obscene within the definition which has been enacted" and thereby simply and cheaply ask the court for a declaration as to that particular matter.


Edmund Davie Fulton: I think that could be very
simply accomplished, in the proposal before us, in that all that person would have to do would be to get somebody else, his lawyer or someone, to lay an information with respect to the particular matter about which he was concerned. In that way he could very quickly get before the courts.


Mr. Bell (Carlelon):: Earlier in the session
I had prepared notes for a speech I had intended to make on this subject. However, at this stage of the session such a speech, as detailed and exhaustive as I intended it to be, would be quite inappropriate. Consequently I should like to confine my comments to half a dozen sentences.
First I wish to state that I believe the present proposal constitutes a constructive and forward-looking attempt to deal with a problem which is as difficult as it has become alarming. The steep increase in the sale of salacious and depraved periodicals, of corrupt and rotten publications is a threat to our established national standards of conduct and decency.
In large measure this increase is the result of the illicit, clandestine activities of certain distributors to compel retailers to handle these offensive magazines as a condition precedent to receiving for sale other periodicals. Especially, Mr. Chairman, do I hope that section 150B will be rigidly enforced in order to eliminate these purveyors of putridity, these profiteers in pornography.
In my view the amendment that has been presented to the committee by the hon. member for Port Arthur would render that section totally unworkable and would pull any teeth which it has. For that reason I intend to vote against it.


Mr. Godin:: Mr. Chairman, I rise to add a few comments which I feel may assist the Minister of Justice in bringing before this committee the amendment he has in mind, because I find this is possibly one of the most important pieces of legislation which we have faced for some weeks. I realize that in these troubled times if the moral standards of our community are to be upheld,

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this may be the means of achieving a victory which could not be achieved in other ways.
Comments were made to the effect that this is a matter into which politics could not enter. 1 regret very much the remarks of the Minister of Justice last Wednesday when this matter first came up and when he indicated his opinion as to the remarks made by hon. members of the opposition. I was further surprised this morning when the hon. member for Joliette-L'Assomption-Montcalm stated that this amendment presented to the house was a total remedy for the evil presently existing. I am speaking on this matter because I feel it is most important.
In our area a short time ago it was alleged that two children of 10 or 11 years of age burned a $1 million school, their own school, after having inscribed on some of the blackboards a remark indicating their intentions. When such things occur there is no doubt that these young people, knowing the act they were about to commit, were prompted by their imaginations, which possibly had been led astray by crime comics or other literature which unfortunately had been furnished to them.
I must state at this stage that I feel the Minister of Justice has failed to include in this amendment a higher penalty if the sale is made to a minor instead of to an adult. I am sure that if we are to protect the Canadian people under the new law of this country, we must certainly protect the minors. We have provisions in many statutes in our country, both provincial and federal, whereby a crime, especially a crime against morals, carries a greater penalty when it is committed against an infant. I am sure it will be a surprise to the Canadian people when they see that an amendment such as this does not include that provision in what has been stated by some hon. members to be a total remedy to the evil.
We are trying to bring about in our Criminal Code of Canada a definition of what we consider a crime so that the judges of this country, in each of the provinces, will decide what is the evil we are trying to prevent. We cannot assume in this regard that we are both the legislative and administrative body in this country. It is very wrong for this parliament to bring in a piece of legislation feeling that judges will necessarily take the opinions or interpretations which we have today placed upon them; therefore it is our duty to be accurate when we define this crime which we are trying to prevent. I would like to quote on that score a paragraph from a very fine article which appeared in August, 1958 in

the periodical or review Relations. There is an editorial on page 197 to this effect: (Translation):
In order to be effective, the law must conform to the exacting standards of natural ethics, and define them so clearly that no amount of pettifoggery can distort their meaning or impair their scope.
(Text):
Mr. Chairman, this definition which is now being placed in our Code fails in many aspects in trying properly to define the crime for which our judges will punish the guilty ones. It will open doors which will necessarily permit the defence lawyers to discuss at greater length the merits of the offence. Therefore I would like, in assisting this committee, to make some comments of my own concerning the possible interpretations which could come about.
The first is one which the Minister of Justice just a moment ago pretended to solve in replying to the Leader of the Opposition, when he used the word "publication" in the clause relating to obscenity. Many things are defined by the Code as obscene; and, of course, a person found having such a publication or other matter in his possession for the purpose of sale, and so on, is guilty of an offence. Now, however, the definition simply says a "publication". I think when the Minister of Justice starts to think how you can define a dominant characteristic, or an undue exploitation of sex, in anything but a publication, I am sure the judges would also want to consider, for example, a photograph or a phonograph record.
The Minister of Justice says he is bringing forward this amendment for the purpose of clarifying the position, but he is not clarifying the position as far as, for example, models or pictures, or articles such as a deck of cards are concerned. I feel that a judge, when adjudicating upon this matter and having the word "publication" before him in the statute, will be unable to find that such an article as a deck of cards can be described as a publication. Therefore I think the words should be repeated as we find them in the old section so that all these matters are covered. This will have some relevancy to these other matters considered under clause 12, such as a tied sale. For example, you could have a tied sale of an article, or a tied sale of a film, as well as a publication. And such is in no way covered by this statute.
We have also heard some discussion about the word "dominant" and the words "the" and "a". I feel that the trouble has occurred because of the use of the word "dominant". I think the intention of the Minister of Justice is to define it as meaning a great part or an important part; but the word "dominant" means a majority. To most of the people in

this house it means over 50 per cent. What will it mean to the courts? Possibly the same thing.
I can also see certain publications, especially in the domain of magazines, where you may have ten articles, no two of which the subject matter are connected. I realize that the hon. member for Port Arthur, who is a librarian, is thinking of books of say 600 pages, containing a few pages which may be found objectionable; therefore the book should not be condemned because of that. But when you are dealing with magazines and publications you may find 15 articles in the magazine, two of which are most objectionable, the other 13 not being objectionable. In that case you might have two very bad pieces of obscene literature; how can you fit in the word "dominant" if the word "dominant" means the majority, over 50 per cent, and so on? I think the intention is to condemn books or magazines wherein you find an important, undue exploitation of sex.
In trying to find the meaning behind the use of the word "a" or "the", as I stated, you can have a magazine containing eight articles all unrelated, six of which pertain to sports and the remaining two to something absolutely immoral. Now, by the meaning of the word "dominant" could you find a magazine obscene for six articles out of eight, the six sports and two only concerning obscene literature?
I would like to say something about section 150A. The minister has a new procedure, and intended well, but what exactly does it do? You have subsection 4 whereby you cannot seize an article or a model or a photographic record and find it obscene. I think that the same words should be used to start the clause as in the original section 150 to ascertain that you could have these articles found obscene and forfeited to the crown in the right of the province in the same way, but I fail to see that a publication would mean an article or an instrument as subsection 4 states.
There is something that can be said about the assignment of the onus-why it says in subclause 2 that the person against whom the complaint is made may appear before a court and show cause why the matter seized should not be forfeited. Other words could be used. He could appear on his own defence, but if he does not appear to show cause why it should not be forfeited many magistrates may take it for granted that if someone does not show cause, automatically, without reading the book or getting the required evidence, it is obscene. I realize what is said in clause 4, but magistrates may consider themselves satisfied because they did not
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find someone to show cause and they would have the accused admitting the crime in a sense and therefore I feel that it is not the intention of parliament to shift the onus, and the words "show cause" could be replaced by "defence".
Then we have the fact which I think most important that if a motion is made for an order under this amendment no other proceedings in the province can be had under section 150 without the consent of the attorney general. This is giving the administration of our criminal law to elected representatives. There could be a situation in which there were only five books out of a publication of 10,000 in a province and people might make it a point to appear before the magistrate and lay a charge against their own people so that they might pay a fine on five books and the whole matter is stopped and cases which have begun under section 150 must be discontinued, cases, say, where 500 or 1,000 books have been seized or where a charge has been laid under section 150. These charges will be discontinued unless an elected representative, the attorney general of the province, will grant permission, and I fail to realize why the criminal law should be placed in this manner in the hands of an elected person. That is certainly a fault which can be found readily.
Further, why could it not be if five books are found obscene within a province that all the copies of that obscene literature would thereby be condemned and could be forfeited to the crown? It seems to me that that would be a very small step and that would take off our shelves in each of the provinces those books which are thought obscene by a judge of the province, because the way this clause is made even on an order made when the judge is not satisfied that the material is obscene, that can occur, and if an order is made by a magistrate in one part of a province that that literature is not obscene, it will thereby bar all other cases in the province unless the attorney general can review the matter and say possibly that this first magistrate was wrong and permit a trial under section 150.
I feel that possibly the amendment suggested may not be the most correct one, but I am fully aware that the amendment does not satisfy the need of this country to condemn false scientific works. A lot of books on the shelves today are being sold for no other reason than to arouse interest in obscene literature and so on and there is absolutely nothing brought forward to take care of that difficulty where people will hide behind the fact that it is an effort to put out a scientific book. I fully realize that to bring about a proper solution of this evil in this

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country no doubt the co-operation of the people is required and I apprehend that many Canadian organizations realize that; but notwithstanding the fact that if an amendment of this kind is to be brought in it should do away with all these possibilities that laymen like ourselves could not take on ourselves. There is always the possibility that the judges will interpret these terms in a way different from the way in which we interpret them today; they will go to technical terminology and to the dictionary and I doubt that they will as above stated condemn an article or a film under the word "publication". Undoubtedly the minister is trying to do a good thing, but I feel that though he has had objectives which were stated to be political, he is being in this instance absolutely conservative. We have heard that a conservative is sometimes a person who acts hastily after thinking over a thing too long. The minister has thought about this a lot and in the dying days of this session he brings in an amendment which many institutions in this country had no time to study and report to their representative.


Lester Bowles Pearson: I do not think the committee need apologize for having spent a certain amount of time on this clause, since it is as complicated as it is important; important not only in relation to social health and public morality but also in its implications concerning at least one of our traditional freedoms. The minister has emphasized both in this house and outside that he has no desire to introduce anything in the nature of censorship. I am sure he is quite sincere in that, and I am not suggesting that this particular clause does that, but it is something about which we want to be as certain in our own minds as we can be. The hon. member for Peace River when he intervened a few moments ago expressed some anxiety about the amendment to the amendment which is before us in that it might encourage litigation and makes things more complicated. When things are complicated lawyers usually have a better opportunity of intervening. I can say that, not being a lawyer. The difficulty and perhaps, in a sense, even the danger of this kind of legislation in general dealing with this subject is that in the words of, perhaps it was Dicey, though I admit it was in a different context, it tends to substitute litigation for legislation. That is one of the things which has worried a number of members about this kind of amendment.
In so far as the amendment of the hon. member for Port Arthur is concerned I felt that the original French text was more logical than the present English text, but which, as the minister pointed out, is the official text.

When you talk about something being dominant you think of something being almost exclusive; a characteristic which is dominant does surely, at least in my understanding of it, exclude other and secondary characteristics in respect of any particular matter. Perhaps the minister will be able to explain to our satisfaction how in a publication there could be four, five or six characteristics each of which is dominant. The very concept of dominancy means it is superior to other concepts. That is why it seems to me that the amendment of the hon. member for Port Arthur is a logical and reasonable one. The other part of the amendment seems to me to be a little more difficult to support.
I would ask the minister this question. If a particular publication does have literary or scientific merit, can its dominant characteristic then be the undue exploitation of sex? If the answer to that is no, then perhaps the amendment is redundant. I noticed that the British parliament-and no doubt the minister has also noticed it-in discussing this subject last February did include a clause in the bill they were considering to deal with the particular problem which was raised in this committee by the hon. member for Port Arthur. The clause introduced in England reads:
A person shall not be convicted of an offence against this section if he proves that his publication of the matter in question is justified as being for the public good on the ground that it furthers the interest of science, literature, art or learning, or of other objects of general concern.
I think I am right in saying that this particular clause was included in the British bill and passed after a great deal of discussion and some amendment. If I am wrong, the minister will correct me on that.


Edmund Davie Fulton: May I ask the Leader of the Opposition if the bill to which he is referring is the obscene publications bill of this year?


Lester Bowles Pearson: I am referring to the one introduced last February, or at any rate last spring. I am reading from a passage in an article published in the London Times of February 27, 1959, referring to that bill. The British parliament after a long discussion, much longer than we are having, which included committee discussion, felt it was desirable and indeed necessary to include that paragraph. Does the minister think that point is sufficiently met in the amendment he has himself introduced at this time? I again ask him the question which it seems to me has a bearing on this. If any publication is of literary or scientific merit, can its dominant characteristic be the undue exploitation of sex?


Edmund Davie Fulton: Mr. Chairman, I appreciate that it is difficult to be dogmatic and completely certain about the word "dominant" and whether it should be "a" dominant characteristic or "the" dominant characteristic. Perhaps I can try to illustrate the point of view which I believe the courts will take and which my officials after long and careful consideration have felt argues in favour of the use of the word "a" instead of "the". There are those hon. gentlemen opposite who ask, "How can a book have more than one dominant characteristic," and who say if their argument is correct the word should be ''the" and not "a".
Let us say that you have a valley adjacent to which are three mountain peaks of equal height. Which of those peaks is the dominant peak? Or let us take another illustration. Let us assume you have a book-and it is dangerous to attempt to be too particular in these matters-which purports to be a study of sociological problems and in that book the author has gone about treating the subject in a manner which involves the use of illustrations of sexual relations arising in the course of the thing, as a secondary characteristic, which leads the law officers and, let us say, which we think would lead a court to assume that it is an obscene publication. It might be argued that there are two dominant characteristics of this book. In the first place it is a book dealing with sociological problems and consequently an undue exploitation of sex, and containing illustrations or scenes of sex or illicit relations. In this sense I think it is possible for there to be so many characteristics of a book or publication-let us not confine it to books-which are not necessarily of a related nature that it would be impossible, and thus defeat the purpose of the clause, if you required the court in each case to say that the only dominant characteristic of the book-in the sense of there being only one dominant characteristic-is that it unduly exploits sex or sex and one or more of the other subjects named.
I believe there are cases in which it is a profitless task to seek to isolate a thing as being the only dominant characteristic and it is for that reason we have purposely used the words "a dominant characteristic". I ask hon. members to consider the over-all effect of the question which the court is going to be called upon to decide before there is a conviction. That is to say, the court will have to decide that this is a publication a dominant characteristic of which is the undue exploitation of sex or of sex and any one or more of the subjects named. I do not think the use of the words "a dominant characteristic" in that over-all context poses the court
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with any obstacle which it cannot answer for itself or which makes it necessary for the court to be asked to answer the question as to whether or not this is the only dominant characteristic of the publication.


Mr.   Carier@: Would the minister permit a question, Mr. Chairman. Would it not be better to use the word "prominent"? The reference would then be to a prominent characteristic rather than a dominant characteristic.


Edmund Davie Fulton: There are two reasons why we rejected words of that type. In the first place we did not want to spread the net so wide that we caught books, as it were, without any real possibility of successful defence and about which there is room for genuine controversy. There are so many books I can think of of which the prominent characteristic in certain passages is the exploitation of sex. We wanted to go no farther than that. The other reason is this. The main concern we have in mind and which we are framing this amendment in an attempt to meet is the pulp trash type of stuff that is appearing in such vast quantities on our newsstands. While I do not for a moment pretend to be unconcerned about the major book type of publication, I must say I am far less concerned about that type and less concerned if one or two such books escape, than I would be in allowing this other stuff, about which there is really no genuine controversy to escape because we over-refined the amendment we are trying to introduce.
The Leader of the Opposition raised a very good question about this matter of whether it should be a defence to show that the work contributed to the public good. I would refer him to section 150, subsection 3, of our present Criminal Code which contains a provision very similar to that contained in the British obscene publications bill to which he referred. The subsection reads:
(3) No person shall be convicted of an offence under this section-
Section 150, which creates the offence of obscenity. I continue:
-if he establishes that the public good was served by the acts that are alleged to constitute the offence and that the acts alleged did not extend beyond what served the public good.


Alexis Pierre Caron: Mr. Chairman, if the minister attaches so much importance to retaining the word "a" instead of the word "the" in the English version, why does he leave the word "la" instead of "une" in the French version?


Edmund Davie Fulton: Mr. Chairman, I have already explained that if the committee agrees with me in rejecting the amendment now before

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us, I will then move that the word "la" be changed to "une", in the French version.


Leon David Crestohl: Will the minister please
explain how the clause would be affected it he left out the word "dominant" altogether and simply said "a characteristic of which is the undue exploitation of", or a feature of it "is the undue exploitation of"; leave the word "dominant" out.


Edmund Davie Fulton: Again I say, Mr. Chairman, if we did that then we would cast a net to catch a number of things that we really do not want to catch under this definition at all. We designed this definition having in mind the type of pulp trash that appears on the newsstands. I said I am not unconcerned about the others but I am mostly concerned about dealing with that.


Lester Bowles Pearson: The minister has, I think, made a pretty reasonable explanation of the wording which he has put before the committee. May I ask him one further question? This is a matter, as I recall it, which received a good deal of consideration also at Westminster. I ask this question as a layman. Perhaps if I were a lawyer I would know more. Would there be any difficulty in the way of expert evidence being acceptable before a court which would have a bearing on the literary, scientific and other qualities of a particular publication?


Edmund Davie Fulton: Mr. Chairman, I explained earlier that our attempt here is to produce an objective definition, or as objective as we can make it, to introduce a number of pretty factual tests by which the court is asked to measure this question of obscenity. It is my view that this type of definition does not lend itself to the giving of opinion evidence by experts. If, as was the case when the only definition we had was the Hicklin definition, your definition is almost entirely subjective, if it has to be interpreted in the light of what are its effects on certain individuals, then, I think, there is much more room for opinion evidence. But I point out to my friend that actually, even when we had only the Hicklin definition, the Ontario court of appeal in the American News case, in the judgment of Mr. Justice Laidlaw expressly ruled that opinion evidence was not admissible, on the grounds, in his opinion, that it was irrelevant.
I go back, having made these explanations as to our present thinking, to repeat what I said earlier, that we feel we are moving in this field. This approach is, I believe, objective but if you like I am prepared to regard it only as a preliminary move. I recognize that in the United Kingdom, they have given a great deal of consideration to

it and they put a provision in their bill allowing for expert evidence. We will watch the experience there and we will also carefully watch the experience here and we will be prepared to reconsider the matter in the light of the experience.


Lester Bowles Pearson: As far as I am concerned I merely wish to add that, with the minister's explanation, I am prepared to support the clause as it stands and I hope it will have the effect that we all desire.
(Translation):


Mr. Foriin:: Mr. Chairman, as was indicated by the hon. Leader of the Opposition (Mr. Pearson), a member should not be reproached with slowing down the proceedings if he chooses to make a few remarks.
Upon receiving both versions, the French and the English, I looked through them carefully, and found that the English version said this:
(Text):
Any publication a dominant characteristic- (Translation):
Whereas in French, I found this:
-publication dont la caracteristique dominante-
I must say I found the English version much more air-tight, because, contrary to my belief, the hon. member for Hochelaga (Mr. Eudes) has indicated that there is not merely one dominant characteristic. A moment ago the Minister of Justice (Mr. Fulton) gave an illustration that might perhaps be carried a bit further. Take a painting representing the sea and the sky. You might ask a man to stand before that painting and tell you what, in his estimation, is the dominant characteristic of the picture. Now for that particular individual it might perhaps be the blue of the sky, or the green of the sea, or again the green of the mountains; it would all depend on the individual concerned, on his frame of mind, his tastes, etc. He would say what, in his view, is the dominant characteristic. However, on the basis of the French version, the crown attorney might feel that the dominant characteristic is one thing, while the attorney for the defence, if he is a better attorney, could prove that the dominant characteristic is this or that other thing whereas, in fact, neither characteristic might have occurred to the person having the publications in his possession, because the dominant characteristic is appreciated on the basis of an individual's education, culture and outlook.
That is why I am of the opinion that the present English version, as well as the French version-which will probably be corrected- do more justice than the previous ones.
One might then conclude that in the text or picture there may be more than one char-

acteristic which are precisely of the nature referred to in section 11.
Now, in the second place, I believe that amendment proposed by the hon. member for Port Arthur (Mr. Fisher) is unwarranted, first because of the reasons outlined by the Minister of Justice, and then, one must not forget that we are dealing with a matter covered by the Criminal Code and that the mens rea, criminal intent, must be established. If a scientist should be brought to court for utilizing or having in his possession one of those publications, we still have to prove that, having those publications in hand, he had some criminal intent; unless that is proven there can be no proof of the offence with which he is charged.
Furthermore, as the Minister of Justice said a moment ago, if the matter involves no danger for the public welfare, the common weal, the accused cannot be found guilty.
Now, in closing, I suggest it is extremely difficult to find a definition of obscenity. I listened to the article read into the record by the hon. member for Nickel-Belt (Mr. Godin) and I must say that even the authors of that article, the editors of that magazine, who tried to devise a definition, failed in the attempt.
In my opinion, the definition which is being proposed today will adequately serve the needs of the population, and the Minister of Justice-


Osias.-J. Godin: You obviously have not read the definition.


Mr. Fortin:: I shall go on with my remarks, and I would ask the hon. member for Nickel-Belt to ask his question after, if he sees fit.
I say that, with experience, a way will be found to correct this definition. I think the main result of introducing this definition into the Criminal Code will be to make people who are in the habit of keeping such publications on their shelves more careful about checking to see whether the publications are obscene or not, and to make sure, before buying such publications or books, that they are not such as to sully the mind.
And if I may be allowed to express a wish, I hope that, when the definition is adopted, the C.B.C. will have proper regard for it in the production of their TV programs.
(Text):


Osias.-J. Godin: Mr. Chairman, I would like to remind the hon. member who has just spoken that he brought in the matter of mens rea. If he reads section 150 of the code as it now stands he will see that mens rea is not a matter for consideration in this crime. Subsection 6 of section 150 of the code reads:
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Where an accused Is charged with an offence under subsection (1) the fact that the accused was ignorant of the nature or presence of the matter, picture, model, phonograph record, crime comic or other thing by means of or in relation to which the offence was committed is not a defence to the charge.
Amendment (Mr. Fisher) negatived: Yeas, 4; Nays, 76.


Edmund Davie Fulton: Then, Mr. Chairman, in pursuance of the explanation I made earlier I shall ask one of my colleagues to move that clause 11 of the French version of Bill C-58, be amended by deleting the word "la" where it appears at line 13 on page 4 of the said version and substituting therefor the word "une". I shall ask my colleague the Minister of Veterans Affairs to move that.


Mr. Brooks:: I so move.


John Whitney Pickersgill: Would the minister explain what the significance of the amendment is?


Edmund Davie Fulton: The significance of the amendment is to bring the French version into line with the English version, in accordance with the vote of the committee which has just been taken.


[Stage Direction]
Amendment agreed to.
Osias.-J. Godin: I should like the minister to explain how the courts are going to use the definition on matters other than publications?


Edmund Davie Fulton: I am sorry, but I did not catch the question.


Osias.-J. Godin: The amendment by subsection 8 of section 150 seems to apply to publications only and I fail to see, in the absence of any explanation by the minister, how other matters which may be obscene, such as articles, could be covered by this definition.


Edmund Davie Fulton: I think that will be done because section 150, subsection 1, of the Criminal Code reads as follows:
Everyone commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatsoever,
Just by reference to the word "publication" in subsection 1 of section 150, I believe the use of the word "publication" in the new subsection 8 to be added to section 150, will extend the coverage of the section to include pictures or phonograph records, because it is obvious that what is contemplated now by section 150 is the publication of phonograph records. In the new subsection 8 we refer to publication, the dominant characteristic of which is. I think, therefore, it is most likely that the courts would

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understand this use of the word "publication" in connection with articles such as phonograph records.
I want to make it clear when I say that, that that is my opinion and the opinion of my legal advisers. Our primary intention, as I have made clear before, was to catch this type of trash that was appearing on the newsstands. This was our main intention and is the reason we did not add words to make it doubly certain that it would cover this other type of article which my hon. friend has in mind. If it appears on the basis of experience that we should extend this to cover such things as phonograph records, and if it appears particularly it is the desire of parliament to do so, I would be glad on another occasion to consider making it quite clear, especially if the courts do not agree with my interpretation that this includes other articles.


Osias.-J. Godin: The minister's explanation may be true, but how would the minister explain the application in section 150A? How can you address section 150A to phonograph records?


Edmund Davie Fulton: The answer to that, I think, must be that in this section we did not have anything in mind other than written publications. I am not nearly as certain of that as I am about the earlier section, but in this section we were concerned with written publications appearing on the newsstands.


Osias.-J. Godin: In so far as section 150A is concerned, it is not the intention of this government to make it applicable to these other obscene matters?


Edmund Davie Fulton: It is our intention to make it expressly applicable to the written publications which are appearing on the newsstands. We did not intend to make it non-applicable to these others, but we did have written publications particularly in mind.


Osias.-J. Godin: Will section 150B apply if the article is other than a written publication?


Edmund Davie Fulton: I think that is clearly confined to written publications because it uses the words, "copies of any other publication". I do not see how that could be anything other than a written publication.


Douglas Mason Fisher: Has the minister considered specifically exempting libraries from section 150A, where it says that a judge who is satisfied by information upon oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution and so on; was there any consideration given to exempting libraries from this section because they are distributors? The reason I raise the matter is that it is quite conceivable you might get-I do

not want to use the word a "crackpot"- somebody who had a very narrow interest in this field, and he could make it very difficult for public libraries in relation to the books they might have on their shelves. I just wondered whether the minister had given any thought to these people?


Edmund Davie Fulton: I do not believe it would be wise to exempt libraries from this clause. After all, a complainant will have to go to a judge and satisfy the judge that the matter is obscene. I point out here, and perhaps I should have dealt with it earlier in reply to the hon. member for Nickel Belt, that the provisions of subsection 7 make it clear that there will be no prosecution in respect of a publication found to be obscene under this section without the consent of the attorney general. It was for the purpose of preventing victimizing persons who would, in a loose sense of the word, be regarded as distributors, that we provided this quick method of getting a decision on the merits of the issue and then the prosecution with respect to these items will only be launched with the consent of the attorney general.


Douglas Mason Fisher: If someone did have their own private collection, would it be perfectly legitimate under this section, no matter what sort of publication there was in it?


Edmund Davie Fulton: I think the answer to that question is generally yes. I give that answer because of the wording of subclause 1 of the proposed section 150A wherein it is provided that a judge has to be satisfied.
-that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene-
Only then is an offence committed. That would not normally apply to a person who had a private collection in his house although I think one would have to read the recent case of the Queen against Berringer, a maritime case, in order to be absolutely certain of your ground there. That case is interesting when I read it-and I have just read it hurriedly-in that it discusses the case where a person with a private collection invited others in to view it, and whether than can be circulation or publication. If it is purely a private collection there would be no possibility of an adverse verdict under this section.


Douglas Mason Fisher: I should like to ask the minister a question with respect to subsection 6 which provides:
(6) An appeal lies from an order made under subsection (4) or (5) by any person who appeared in the proceedings-
Suppose an individual has brought this matter to the attention of the magistrate. Does

this mean that this individual and the crown attorney and the defendant, all three, would have the right of appeal or any one of the three?


Edmund Davie Fulton: The only persons who would have the right of appeal are those who are represented in a technical sense in the proceedings. The attorney general or the crown prosecutor or the crown, shall I say, certainly if either appeared and was represented in the proceedings in defence, I think he would have the right of appeal. If the owner, that is to say the distributor or person on whose premises it was found appeared, he would have the right of appeal also.


Douglas Mason Fisher: Suppose in a small town there was a league of decency and they went out and picked up these books and brought them to the attention of the magistrate. They would have nothing to do with this matter at all. They would have no right of appearing in an appeal on it.


Edmund Davie Fulton: If this prosecution were initiated by such an organization or an individual as a private prosecutor to appear, then he or she would have the right of appeal. If, however, he merely laid an information and the crown carried the prosecution, the private individual would have no right of appeal.


Mr. Carter:: The minister told us that this definition in this section or in these two sections are aimed practically at the pulp trash. I am sure we must agree with that objective. But the corruption comes from reading this stuff. Why do people read it? They read it because they are attracted to it on the newsstands by some lurid title or by some lurid picture on the cover. Is there anything anywhere else in the Criminal Code by which that sort of thing could be prohibited or by which we could destroy the attractiveness of this literature on the newsstands to people by way of the picture and the title.


Edmund Davie Fulton: I hope that we will have done it by the combination of section 150 of the code as it presently stands and the new amendments that we are now introducing. If in fact these publications are obscene-and I think the ones to which my hon. friend refers are obscene-and are so found under the new definition, then they will be subject to immediate removal from the newsstands because they are forfeit to the crown. I think the effective thing to do would be to provide a means, as we have tried to do here, of getting at the publication itself; because if we do that we have also incidentally got at the devices by which they are publicized and made attractive.
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Chesley William Carter: What is the procedure when somebody has informed a judge or magistrate that a certain person has books on the shelf for sale as to which there are reasonable grounds for believing they are obscene and these books are confiscated and are found to be obscene by the judge and there is no appeal. What is the procedure for eliminating these books from all the other bookshelves throughout the country or in the same city.


Edmund Davie Fulton: It would be up to the law enforcement officers of the crown. If those books were found upon any other book shelf or upon any other book store shelves for sale I would imagine that the sensible thing to do would be for the crown attorney or the police officers to inform the individuals concerned that they had better get them off their shelves, not because the police officer thinks so but because the court has found them to be obscene. If the person in question disregarded such a warning, then I imagine there would be a prosecution because then I should think that the attorney general would consent to a prosecution under clause 7 of the amendment we are now introducing. But while it is true that ignorance of the law is no excuse, we put that in on purpose so that there would be an opportunity of warning a person and if he voluntarily withdrew the books from circulation, then we would hope that the attorney general would not authorize a prosecution. But if he defied a verdict of the court and continued to offer them for sale, then I should think the attorney general would order a prosecution.


Chesley William Carter: How would a news vendor or a bookstore in Newfoundland know that something like this had happened in Quebec, for example.


Edmund Davie Fulton: I have just suggested that it would be up to the crown attorney or the police officers who have knowledge of these things to warn persons who are found selling them that there has been a decision of the court that they are obscene and that they had better get them off their shelves. After all, in this matter I should also say that we rely-and I am sure that all law enforcement officers must do so-upon the assistance of well-intentioned individuals, service clubs, religious organizations and others who will be, I am quite satisfied, very watchful of developments in this sphere. They will be watching to see what are the decisions of the courts in various parts of the country or, in particular, in their own province and they will bring to the attention of the responsible officials, if the responsible officials miss it, knowledge of such verdicts. Then, as I say they

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can warn the persons who may be continuing to sell these articles and give them a chance to withdraw them. The reason we put in clause 7 is, however, to permit of a warning being given and to provide that the attorney general must consent to a prosecution in the expectation that he would not consent to a prosecution unless a warning had been given but would authorize a prosecution when the warning was disregarded.


Osias.-J. Godin: May I ask the minister whether he feels that if in one province an order has been made declaring certain literature or publication to be obscene it is required for the purpose of confiscation under clause 150A that these motions be repeated in all areas where these books are found for the purpose of confiscation?


Edmund Davie Fulton: That is the usual situation. Each province is responsible for the enforcement of the law within its territorial areas.


Osias.-J. Godin: The minister means that in every community concerning every store in the province a motion will have to be made?


Edmund Davie Fulton: No, not at all. I have endeavoured to explain the situation as I would see it develop. Let us for example take my own province. Suppose in the city of Vancouver there is a proceeding under new section 150A and the publication is adjudged to be obscene. The crown prosecutor of the city of Vancouver will know about it. His policemen, I would think, would be instructed to be on the lookout for that publication in any of the stores. If they see it they will warn the proprietor, I would think, that there has been a judgment and that this book has been found to be obscene.
I should think that would produce the result that within a reasonable time all those publications would be withdrawn in that city. I would also imagine the attorney general of the province would be aware of the decisions of the courts of the province and would instruct his departmental agents throughout the province and the police, who are the agents of the attorney general in this matter, and in that way word would be disseminated throughout the province. All you would need is to issue a warning, and if there was a refusal to comply you could prosecute under the new clause 150.
Clause as amended agreed to.
On clause 12-Warrant of seizure.


Leon David Crestohl: We were discussing clause 12, Mr. Chairman, only in relation to clause 11. I think we might deal with clause 12 much more directly, and I would like to concern myself with the first part of the clause. This clause creates what we know

in civil law as a seizure before judgment. In other words, the right is given, by information upon oath, to walk in and effect a seizure at once before guilt has been established. It is true there has been a complaint under oath, but I would compare it with a search warrant where there has been no conviction. Here we have a similar sort of right given, and it is a new concept, I think, in our criminal law; it is a form of invasion upon civil property.
Assuming then that a warrant is sworn out upon oath, seizure is effected and the judge comes to the conclusion, as the clause says further on, that it is not obscene and the merchandise should be returned, a very difficult situation would develop there. The business of this man might have been seriously affected, if not altogether ruined. It is true that the clause speaks of expeditious action to be taken within seven days. But the judge must make a decision, and assuming he comes to the decision that it is not salacious or obscene and therefore orders the merchandise to be returned, what right of action has a person whose business has been thus invaded merely because information was provided upon oath? Has he a right in damages against the person who has sworn the complaint? Will he have the right to proceed in damages against an officer of the crown who in good faith may have thought the publications were obscene and who was of the opinion that it was a fit subject to be confiscated?
Would the minister inform the committee, as I am sure he is able to do, how a victim of this treatment, for example a merchant who suffers an unjustified raid upon his store, as it subsequently, turns out to be in the opinion of the judge, has any remedy to be restored to the same position he was in before that unjustified raid was made?


Edmund Davie Fulton: There is no remedy, Mr. Chairman. If the warrant was properly taken out, there is no remedy in damages against anybody. I would like to direct my hon. friend's attention to subclause 5, which provides that if the court is not satisfied that the publication is obscene it shall order it to be returned to the person from whom it was seized. There are also in addition a number of other cases where there is authority given in the Criminal Code for persons to enter and make seizures of articles before there has been proof of guilt. I refer my hon. friend, for example, to section 429 (1) where there is provision for authorizing the seizing of anything in a building, receptacle or place in respect of which there is reasonable ground to believe it will afford evidence with respect to the commission of an offence against the act. There are some other cases as well in which seizure

is authorized without proof of guilt and there is no right of action, to use my friend's words, given to the person from whom the property has been seized even if it should later have been proven that no offence was committed. The only thing which can be done is that the suspect copies can be seized and an example or exhibit taken to court and the issue speedily disposed of. If an offence is proved to have been committed, then the matter in question is forfeited to the crown; if there is no offence, it is ordered returned to the person from whom it was seized.


Leon David Crestohl: But heretofore the practice has been that if there is a suspicion that there is obscene material somewhere officers of the crown have purchased one or two copies which they use as exhibits which, after examining them, they come to the conclusion are obscene. Then a complaint was sworn out and an arrest made. If guilt was proven after trial was held the merchandise or obscene literature was ordered destroyed or removed from circulation; but here the destruction and the removal as well as prejudice is caused in advance-


Edmund Davie Fulton: The destruction is certainly not caused in advance, and I suggest there is no prejudice caused in advance either because there is no charge laid. It is a proceeding in rem without prejudice to the individual.


Leon David Crestohl: Surely the minister realizes that once you have walked in and practised a seizure in the same way as you would practise it after guilt had been proven, you are practising seizure before guilt is proven. It is true it is provisional, I realize that. I also realize it is done for the purpose of expedition; but a great deal of injustice can result from changing the procedure from a seizure after conviction to a seizure before conviction. If guilt is not proven, even though you return the merchandise afterwards, the magazine, or whatever it is, may be out of date and the store may have suffered serious financial loss.


Edmund Davie Fulton: Perhaps I might point out to my hon. friend that it would be perfectly open, without this clause at all, under the present law for a police officer to go into a store with a search warrant and seize, and then bring a prosecution on the basis of the article seized. We are really providing nothing different here except that it will make it possible to dispose of the issue without laying a charge against the individual.


Leon David Crestohl: The clause in the first paragraph speaks of copies which are kept for sale or distribution in premises within the jurisdiction of the court. Then the magistrate is called upon to render an opinion as to whether or not the material is obscene. It
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really becomes just a matter of opinion. Can the minister not realize that a judge in one province will come to one conclusion and another judge in another province having the very same material before him reach a different conclusion? I would go further than that; for example, a judge in the city of Montreal who has jurisdiction in the district of Montreal may come to a different opinion on the very same exhibit laid before him from a judge elsewhere in the province of Quebec.


Louis Fortin: It happens every day.


Leon David Crestohl: Yes, it does happen every day, but here we are dealing with obscene literature. What does the minister suggest is the remedy to make this uniform right across the country?


Edmund Davie Fulton: Appeal.
(Translation):


Mr. Paul:: Mr. Chairman, may I address a few remarks to the hon. member for Cartier (Mr. Crestohl).
The hon. member has referred to the situation which might develop if a denunciation under oath was drawn up against an individual who might have bad literature in his possession. He also expressed amazement at finding this section, as worded, does not provide any recourse against a person who would unfairly denounce some other person or lay an unfair charge against someone. By reason of what has been his calling for many years, the hon. member for Cartier knows very well that civil law does not maintain criminal law and that, at any time, any person feeling prejudiced by a baseless accusation or charge would always have as provided by civil law the possibility of appealing to the provincial courts, whether there be a provision to this effect in the Criminal Code or not.


Mr. Denis:: Mr. Chairman, I listened with great attention to the remarks of the hon. member for Berthier-Maskinonge-Delanau-diere (Mr. Paul) and those of the hon. member for Montmagny-L'Islet (Mr. Fortin) with regard to criminal intent.
I am convinced that with regard to obscene literature, the Minister of Justice has sought to make it harder to commit the offence. If I refer to clause 150 of the Criminal Code in its present form, I find that a distinction is made between the person who prints obscene literature and the person who sells it.
Whereas the printer cannot plead justification or ignorance, the seller can prove or invoke some excuse.
Now, Mr. Chairman, who provides the publicity and promotes the propagation of obscene literature?
I believe the main source of that publicity to be newspaper and magazine vendors.

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I am sure that if those who carry on this business were a little more closely checked, they would be more careful about buying this or that publication, no matter who the publishers or distributors might be. When those people are charged, they usually say in court: "Your Honour, I did not intentionally sell obscene literature; I sell those books by the hundreds and I cannot normally read all the books I have in stock."
I believe that, if the Minister of Justice had wanted to make the act more effective, by reaching those who are responsible for the distribution among the public of obscene literature, he should have been more severe towards the vendors of such publications, because he surely knows that printers or wholesale distributors of obscene literature do not operate in the open. There are not a great many of them but, unfortunately, they operate in various ways that enable them to circumvent the law. Distributors and vendors of obscene literature are almost invariably acquitted because of the plea that they did not know what was in such a book.
Then, Mr. Chairman, if the Minister of Justice had wanted to make the act stricter and really do something to eliminate those evil publications, he could have removed, for instance, from subsection 2 of section 150, the words:
(Text):
-who knowingly, without lawful justification or excuse.
That is where the fault lies. There is the source of the faults we have on account of obscene literature, because if you are looking for the printers or publishers you will never find them, or if you find them once they will start in another part of the province or in another part of the country.
I think the minister has taken a step forward but we humbly suggest it is not the step which he promised to take publicly in the province of Quebec in the presence of thousands of people. He promised to stop this obscene literature from being distributed all over the country, and I think the Minister of Justice would have been more well received had he included in the second paragraph the words "who are knowingly, without lawful justification or excuse". I am saying that in subsection 6 of section 150 it is clearly stated:
Where an accused is charged with an offence under subsection (1) the fact that the accused was

ignorant of the nature or presence of the matter, picture, model, phonograph record, crime comic or other thing by means or in relation to which the offence was committed is not a defence to the charge.
This means that an accused is denied the defence of saying: I did not know about it, or I had a lawful excuse, or I had justification.
I have brought these observations to the Minister of Justice and hope that he will really commence to have this obscene literature swept from the newsstands, from the stores and even from private persons who distribute it in backyards. I think he has to get at the real source, those who are really responsible for this obscene literature, and I do not know why the government is allowing such latitude to printers and publishers.


Edmund Davie Fulton: I should like to, first of all, correct what was said by the hon. gentleman. He said that I promised as Minister of Justice to stop the distribution of obscene literature across this country. I made no such promise, because I knew it does not lie within my power to do so. I promised to bring in legislation which will give the law enforcement officers effective means to prevent the sale and distribution of this literature, and I believe we have done that.
Having corrected the hon. gentleman's misinterpretation of what I promised, I should like to say that I think he has a point which does deserve consideration in connection with whether or not the publisher himself must foe proven to have had knowledge of the contents and the nature of the publication. We did consider whether we should make any new provisions with respect to this proof of intent or anything having to do with the nature of degree of guilt, but we felt that rather than deal with that which can only be to some extent on an empirical and hypothetical basis the best thing was to adopt the new procedure embodied in clause 12 of this bill under which this material could be seized wherever it was found, whether in the hands of the printer, the publisher, or the vendor, and then the issue of whether or not it is obscene may be tried and disposed of without any reference to knowledge on the part of the person in whose possession it was found. Having been adjudged offensive, then, of course, if it continued to be sold the person responsible would be liable to prosecution and conviction because he could not then claim he did not know it was obscene.


Leon David Crestohl: Subsection 5 of the present article 150 of the Criminal Code reads:
For the purposes of this section the motives of an accused are irrelevant.
Might that give the latitude which the hon. member for St. Denis has suggested.


Edmund Davie Fulton: No, Mr. Chairman, I do not think so, once there had been an adjudication under the proposed new procedure that the publication in question was obscene.


Louis Fortin: Mr. Chairman, with reference to subclause 2 I should like to ask the minister what would happen if the judge neglected to issue the summons? In the event of a seven-day delay, would the merchandise be restored to the person? It sometimes happens.


Edmund Davie Fulton: I would think they would have to start the proceedings over again, issue a new warrant and make sure the judge did issue the summons in time.


Chesley William Carter: Mr. Chairman, I feel we should do something more than we are doing to avoid discrimination against people who might be subject to unlawful seizures. The emphasis is on speed and under this clause action has to be taken within seven days. That is not too bad, I suppose, because the period is not longer than a week in which these books would be either restored or destroyed. In the case of an appeal, however, that would be a much longer and more costly procedure which could have extremely serious consequences for the person concerned.
It is quite conceivable, as my friend the hon. member for Cartier pointed out, that within the seven-day period two separate seizures may be made in two separate provinces. In one province the magistrate may decide that it is not obscene and it may be restored. In the other province the magistrate may make the opposite decision and have the goods destroyed. The burden is then imposed on the person who has been charged to appeal his case.


Edmund Davie Fulton: But it might work the other way. The attorney general in the province where the verdict went against him may decide to appeal. This, however, is something that happens all the time under the Criminal Code under the system of law we have in Canada. There is nothing that I can see we can do about it here unless parliament and the provinces should decide to amend the constitution with regard to that question of the administration of the criminal law. Until that happens, the provinces are responsible
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for the administration of the law and different courts in different provinces may continue to give different verdicts under much the same set of facts and circumstances. That is why we have the Supreme Court of Canada, so that in important cases we can get one final definitive decision laying down what is the law of Canada.


Chesley William Carter: But the trouble with appeals is that they cost money. Justice then depends on a person having a big pocketbook. That is something we should try to avoid.


Osias.-J. Godin: After listening to some of the comments made this afternoon I should like to indicate to the committee that the amendment before us does not make it obligatory that the forfeited matter be adjudicated as obscene within seven days. A judge may find himself extremely busy for three months and the matter would be under consideration for that period. I have heard many comments to the effect that this is expeditious and that in seven days the matter would be heard but it is not so provided in this amendment.
I should like from the minister a clear answer as to the meaning of subclause 4 under which an order is made declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place for disposal as the attorney general may elect. I notice that different words are used. Subclause 4 refers to "matter", but subclause 7 makes reference to "copies of a publication". The same words are not used. If five copies of a publication on a newsstand are found to be obscene by a magistrate I fail to see that this involves forfeiture of all the copies of that publication throughout the entire province.


Edmund Davie Fulton: I am sorry if my hon. friend misunderstood me. I never said that an order made in that case would automatically result in the forfeiting of all copies of that publication throughout the province. What I said was that it would provide an immediate and ready method whereby the law enforcement officers could bring to the attention of all vendors the fact that there had been an adjudication with respect to a publication and that they had better withdraw if from publication, and that if this warning were disregarded further prosecutions in individual cases would be permitted without the necessity of going through the proceedings in rem as contemplated under clause 12 of the bill.


Leon David Crestohl: Mr. Chairman, I think we should give further consideration to what I should like to call this innovation of showing cause. This is something that is really foreign to our criminal law.

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Edmund Davie Fulton: It is not at all foreign, Mr. Chairman. There are several examples of it in the Criminal Code at the present time, to which I have already referred.


Leon David Crestohl: That the burden is shifted to the accused?


Edmund Davie Fulton: No, there is no shifting of the burden. I thought that my hon. friend was referring to the seizure in advance of adjudication. I apologize for having interrupted.


Leon David Crestohl: I am speaking of the accused being summoned into court to show cause that what he did was not an offence. Basically that is something new in our criminal law. The United States system of law depends to a large extent on the show cause principle. Perhaps it is effective and desirable but because it is something new to us I think we should devote more time to it.
Under the English system of law on which our own is based the accused is not deemed guilty until he is proven guilty. I should like to hear further comments from the minister concerning reasons which justify the introduction of a new concept into our Criminal Code. I am rather disturbed by it. Once we open the door in this legislation we run the risk of undermining our concept of British criminal law whereby every person is deemed innocent until proven guilty and an accused is not forced to step into the box to prove that he is not guilty.
Of course the minister knows full well that an accused charged with a criminal offence cannot be compelled to step into a witness box to offer evidence. Here we are somewhat distorting that concept by providing that an accused must step into the box and offer some explanation. He must show cause that what he did was not a crime. This is a new concept which parliament should consider most carefully before introducing it into our system of government.


Edmund Davie Fulton: Mr. Chairman, my hon. friend has completely misapprehended the nature of these proceedings. I say again there is no foundation for this allegation that the onus of proof is shifted from the crown to the person in whose possession the goods are found.
In the first place there has to be an information upon affidavit to such an extent that a judge becomes reasonably satisfied that there is cause to believe that a publication complained of is obscene. To that extent the crown has initially to make a case. There is an onus on the crown that it has to discharge. The crown must show the judge that there is reasonable cause to believe that this publication is offensive. If the crown

does discharge that onus of preliminary satisfying the judge to this effect, the judge then makes an order or issues a warrant for the seizure of the material. The material is then brought into the court. There is the crown's case. The crown must first provide preliminary satisfaction to a judge that there is reasonable doubt to believe that there is an offence, and then the article claimed to constitute the offence is brought into the court and placed before the judge. Then, the crown has to present its case if it wishes to argue on the material, but there is also evidence presented by the crown to prove its case in discharge of the onus of the crown in these two ways that I have described.
What would happen if we did not say that the person should be summoned to show cause? We might come to, then, what right would a person have in whose premises the articles were found, what right would we have unless he was served with some sort of summons calling upon him to come in and in effect enter his defence? That does not mean in the first proceedings that the person concerned has to come into court and prove that there is no offence. He is only called upon to show cause when the crown has discharged these two preliminary onuses, the onuses which are imposed upon it in the first place, so that there is no question. It is a complete misapprehension to say that the onus of proof is shifted to the person. All that is done here is to give the person concerned the right to come in and answer the crown's case.


Leon David Crestohl: The minister surely recalls and knows that we have rules of procedure even in our criminal courts. This is a new procedure by which a person is summoned into court on a summons by a judge and is not accused.


Edmund Davie Fulton: That is right.


Leon David Crestohl: I do not know under what section of our criminal procedure that is permissible.


Edmund Davie Fulton: It is the only new part of this provision. The only new principle established is that we are providing for a procedure in rem, and in order to get the person concerned into court we have resorted to a show cause summons which has been in the United Kingdom procedure for many years; but I say there is no new principle introduced beyond that. We have not introduced the principle that the person concerned must answer the case before the crown has established a prima facie case. The crown has to discharge two onuses of proof by way of satisfying the court before this person

is called upon to speak to the court at all. Therefore, there is no shifting here. It is true we have resorted to a new procedure to get the person into court. That is the only new principle. Instead of charging him and getting him into court, we serve him with a show cause summons and get him into court that way and I do not think there is any prejudice of the individual whatsoever.


Leon David Crestohl: I do not want the minister to be under the impression that I am opposing the procedure; I just want to understand it. I think we all want to understand what is the procedure here. The summons is laid, because the minister speaks of the crown making a prima facie case by producing what he considers to be obscene literature. After he produces it and lays it before the judge the judge on oath issues the warrant. The minister says that that is a prima facie case.


Edmund Davie Fulton: One.


Leon David Crestohl: At the present time when a prima facie case is made nothing else happens but the so-called accused is ordered to stand trial. But there is certain procedure at the preliminary hearing at which the prima facie case is made. The accused does not have to step into the box. That is quite different, as I see it, and he cannot show cause in any other way except by taking an oath. I do not know whether the hearing will be a new form of preliminary hearing that will be held, but there has to be some machinery set up by which he will show cause. The only way in which he can do that is to step into the box, take an oath and attempt to show cause. That, I say, is prejudicial to the person who may have been accused because if he does not succeed in showing cause he will have given evidence; there will be a deposition taken which will certainly be used against him afterwards at trial if he is sent for trial. That is the different concept that I see that disturbs me.


Edmund Davie Fulton: Mr. Chairman, again I think my hon. friend misconceives the nature of the proceedings. There is no accused here; there is no accused person who has to step into the box and give any evidence whatsoever.


Leon David Crestohl: But he will be an accused later.


Edmund Davie Fulton: No; he will not have given any evidence that can be used against him at a trial later if he becomes accused. The cause he shows would consist of argument; he is not in the box to give evidence in the sense of an accused person giving evidence in his own behalf; for there is no accused here. If I might strain the simile, the
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accused is the publication. There is an allegation made that the publication is obscene. It is recognized that the vendor, whoever the person is on whose premises it is found, has an interest in establishing that it is not obscene and therefore he is given the opportunity of coming into court, if he wishes, to argue that it is not obscene. He is not giving evidence in his own behalf which may be held against him if later on he should become an accused and tried. Remember this, too, that the prosecutions with respect to a publication adjudged to be obscene in the new procedure can only take place subsequently with the consent of the attorney general of that province. I suggest to my hon. friend that there is complete protection against such a malicious attempt to use anything that was said in an inquiry of this nature against the person who might later be accused.
As I see this scheme developing, if this person accepts the adjudication-he may or may not appeal-when the matter is finally disposed of, if he withdraws it from publication, makes no further attempt to publish or to sell it, I cannot see the attorney general authorizing the prosecution at all. If he wanted to prosecute him he would prosecute him in the first instance rather than resort to the procedure of disposing of the matter in rem.
I do not know whether I have satisfied my hon. friend or not. I do not think I can make it any clearer. I can only state as a fact that there is no accused; that the crown does have in two ways to make out a prima facie case. Therefore, it has two obligations on it, first, to satisfy the judge that there is a reasonable case for believing that here is an obscene publication; second, producing the publication in court by way of evidence; and, I would think in almost every case, a third obligation, namely to enter some argument before the judge who would feel that the case had been finally established. Only after these things are done, at least the first two of them, is there any case at all for a person on whose premises the matter was found to come in and answer it? I see no application of my hon. friend's argument at all.


Leon David Crestohl: Because this is an innovation I should like to ask the minister to allow me to examine it from another standpoint. Let us assume that someone has been brought into court because of literature that was seized on his premises. He has to show cause that it is not obscene. What will he first proceed to do? He will first offer his own opinion. He will then invite experts, specialists, sociologists, and offer all this evidence to

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the court that the literature is not obscene. He is showing cause. His own word will not be sufficient. He may differ from the judge's opinion and it is the opinion of the judge against the opinion of the man before him. He wants to show cause and he will show cause by bringing to bear on the court all the opinions, all the knowledge, all the information, in an attempt to show that this is art, that this is science, that this is something else, that it is not obscene. Now, let us assume that that is completed and the judge is not impressed. He thinks it is obscene and he he orders a complaint laid.


Edmund Davie Fulton: There will be no complaint laid. The only order the judge can make then is for the forfeiture of the material.


Leon David Crestohl: That is, confiscation. The complaint is subsequently ordered by the attorney general, or whoever it will be, if the court is of the opinion that it is obscene. In some form a complaint will be laid against him. He then comes to trial.


Edmund Davie Fulton: May I make it clear that it does not automatically follow that the charge will be laid. The charge can only be laid when the attorney general consents.


Leon David Crestohl: I said that. Assume now the attorney general has ordered that the charge be laid and the man ultimately comes to trial-now, he is the accused-what more at trial can the accused do? What more evidence can he offer than he offered at the time he was called upon to show cause? He has no time to prove, as the result of expert evidence, that it is not obscene. He has attempted to do that at the time he was called upon to show cause. He will then have exposed any defence he may have had on the show cause procedure. There are certain procedures at the trial which protect him. For instance, at trial, he may not go into the witness box but on a show cause procedure he may step into the witness box and he may say things in the show cause procedure which he might be protected from saying at a trial.


Mr. MacLellan:: With respect, Mr. Chairman, I suggest that the hon. member for Cartier has missed the whole point of this legislation. We all agree that we want to clean up this obscene literature. The only dispute is upon the method of doing it. I feel that the minister has brought forth a provision which is going to do the job very well.
The trouble with section 150, as it is now, is that it requires a prosecution against an individual. People were reluctant to bring charges against the merchants who were selling these magazines. Normally, when a charge was brought, a merchant would 
come into court to defend himself, not because he wanted to protect the literature, but to defend his own name because he did not want to be branded in the community as a person selling literature of this type. Now we have a section which will allow the municipal authorities to go out and gather up literature that is salacious, and not the proper type to be circulated in the community, without the storekeeper being charged. This section will help to eliminate the opposition of the merchant, who will not come into court and battle to protect his name because his name is not before the court.
As far as this "show cause" summons is concerned, the show cause summons is an important part of the section. I say that because I have seen the advantages of the show cause summons in general law practice. It is familiar in probate court procedures, for example, where a show cause summons is issued when it is not expected that persons summoned will appear. For instance, in the closing of an estate a citation is issued to the heirs, legatees, creditors and so on to inform them of the closing and to invite them to come in and show cause why the estate should not be closed. If they do not show up, then they have no cause for complaint. The minister has brought into use the show cause summons in this legislation so that the merchant will not have to defend himself as a person distributing salacious literature but, in his absence, the magistrate or judge can adjudicate on the matter and if so warranted, order the material destroyed.
There is another very good point about this section so far as I am concerned, and that is that no charge can be brought except with the consent of the attorney general. This provides that the merchant will not be personally charged as a result of the evidence brought forth without the consent of the attorney general, and therefore the merchant is not so likely to come in to fight each case. As the hon. member well knows, the problem so far in connection with cleaning up this indecent literature in any town has been that wherever the municipal officers try to prosecute a man they have the usual difficulty in securing convictions because magistrates do not like to adjudicate on matters where their decisions will reflect upon the reputations of men who are otherwise well regarded in the district. I think the show cause summons is an important part of this legislation in that the man himself is not upon trial but only the literature. The man, therefore, is not going to come forward to do battle to protect his name and thereby hinder literature clean-up efforts.

I believe this is a provision whereby we are going to be able to clean up the obscene literature in the nation, and that there is no other system of doing it. The show cause summons is part of this system. I think we have to keep it, so that a magistrate or judge can come to a conclusion that literature is obscene without charging anyone. Further the owner of the bookshop or newsstand is not worried about his good name being taken away as a result of publicity on a criminal conviction because his name does not come into it. Only the magazine comes into it, and he is probably not interested in the magazine. This is a big step forward that we are taking, and I believe it will permit us to erase this literature from the nation. We could not do this under section 150, but we can do it under this section. We should not weaken the amendment by taking out of it the very things that make it vital, and able to do the job we want it to do.
(Translation):


Azellus Denis: Mr. Chairman, the Minister of Justice (Mr. Fulton) will perhaps admit that the only power conferred to the judge under the proposed amendment is that of deciding whether the publication is obscene or not. If the literature, or publication, is considered obscene, the judge immediately advises the alleged guilty person and within seven days, that person has to prove that the literature is not obscene. Now, this literature may be obscene; but, being legally in possession of it, the vendor may claim that he was unaware of the fact. Under this amendment, that person will have to appear in court and will only be able to plead one thing: "The publication is not obscene", but, will not have the right to prove non-awareness with regard to possession of such literature or to any other legal plea.
Consequently, the case of anybody really in possession of a publication and who has the right to sell and distribute it, will go before the attorney general and will be prosecuted. Consequently the difference is that while formerly, the obscene literature could not be seized, whereas under this amendment, it can be so. Therefore, why have two prosecutions when a single one would be appropriate? If the publication is proved obscene, nothing prevents the Minister of Justice from prosecuting, and all the indicted person may say is that the literature is not of obscene character or that the accused was unwittingly in possession of it.
Thus, the procedure would follow the English practice, which has always been applied in Canada, i.e. that the accused is presumed 66968-9-3524
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innocent until proven guilty. Now, this principle would be saved and the amendment introduced by the Minister of Justice would have its full effect if the confiscation of the publication were simply permitted and immediately followed by the prosecution.
To my mind, such proceedings, by which the accused or the alleged accused may be summoned to show cause or move that his publication is not obscene become superfluous. Besides, everything is the plain consequence of a statement by one person before a judge, saying: "Here is an obscene publication". The judge, recognizing it to be so, then calls the vendor within seven days in order to prove that the publication is not obscene. That is all the law provides.
The crown prosecutor or crown attorney, is not informed of that procedure. Now, we must not forget that if all this handicaps the accused it may also be unfavourable to the crown because the crown lacks the necessary evidence that the literature is indeed obscene.
As the hon. member for Cartier (Mr. Crestohl) said, the accused may ask for a hearing of experts and attempt to prove that the said literature is not obscene, while the crown is not there to help the judge decide if the publication is so or not.
I consider this a step forward by the minister, but otherwise he knocks at the wrong door and, though the legislation presents some progress, it is a very small step forward. For that reason, we will nevertheless support the proposed amendment, because it is better to have half a loaf than none.
(Text):


Raymond Pierre Eudes: May I ask the minister to
clarify one point in his reply to the hon. member for Cartier. Suppose that a warrant has been issued under subsection 1 of section 150A and that the court has been satisfied that the publication is obscene. The attorney general institutes-


Edmund Davie Fulton: And that there are reasonable grounds for believing it is obscene.


Raymond Pierre Eudes: Yes. Then the attorney general decides to take proceedings. Will the evidence given before the court under subsection 4 serve in the proceedings instituted by the attorney general.


Edmund Davie Fulton: No; 1 do not believe so. In fact, I think it is quite clear that the proceedings before the judge under the proposed section 150A would not be admissible in evidence in a criminal prosecution for the same publication at a later stage. These are entirely new

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proceedings. They would have to be commenced de novo, I would think. As I think I have said this before, a court of concurrent jurisdiction, however, would regard the reasons for judgment in the proceedings in rem as of very real authority in reaching a decision on the question only of whether or not the publication complained of is obscene. But so far as the question of whether the accused has had this article in his possession is concerned, whether he offered it for sale and all those matters which are purely evidentiary matters, the evidence, if any, given in the proceedings in rem would definitely not be admissible in evidence in any criminal proceedings.


Raymond Pierre Eudes: That is exactly the reason why I have asked that question of the Minister of Justice because I noticed in his reply to the hon. member for Cartier he said that this evidence would not serve. But it is not included in this new clause of the bill. I am just wondering whether, not being included, that evidence would not serve.


Edmund Davie Fulton: I am satisfied that you do not need any provision. I am satisfied that the present provision of the law is clear. Here you have two entirely different proceedings. They are not different stages of the same proceedings. They are entirely different proceedings. In the earlier proceedings in rem, as I understand it, there was no accused before the court to give evidence which might be admissible against him later on. I am satisfied that the present rules of evidence and the present procedural rules would clearly establish that these are two different things and that the proceedings in one are not admissible in the proceedings of another.


Raymond Pierre Eudes: That would be another matter for discussion among lawyers.


Osias.-J. Godin: Mr. Chairman, it might be convenient for the committee if I were to pass on to subclause 2 of clause 12 which is section 150B. However, I do not want to cut short any other hon. member who may have questions on the clause. I feel that when we come to this clause, we find something that is certainly most amazing in its form and in the manner in which it will change "criminal guilt" in our country. Inasmuch as I am absolutely opposed to and see a grave crime in the tied sales mentioned in the explanatory note, I feel that the matter can be handled justly only in either of two ways, neither of which is the manner in which it is stated that it will be handled. In order to convict a person of a crime of trying or purporting to make a tied sale so called I think the Minister of Justice should have a good deal of courage and ban tied

sales in the matters of publication and ipso facto it would be a crime in this country to try to sell literature in the manner of tied sales.


Edmund Davie Fulton: I have done so.


Osias.-J. Godin: If he fails to have that courage to ban tied sales, he should then apply only just methods. If this clause is construed, here is the manner in which the Minister of Justice intends to bar tied sales. They are not barred automatically. I say it should be done automatically. I say that he should bar tied sales in publication matters.


Mr. MacLean (Winnipeg North Centre):: What is a tied sale?


Osias.-J. Godin: It is explained in the note if the hon. member would read it. A tied sale is where a person will say, "I want to buy these five magazines" and the other person says, "I will only sell you these five magazines if you buy these too". That is a tied sale.


John Douglas Campbell MacLean: Any
magazine or just obscene magazines?


Osias.-J. Godin: No; any magazine. Then comes the matter of obscenity after that has occurred. Then a man is convicted of a crime according to this amendment, if the person to whom a tied sale is offered is apprehensive only that the literature may be obscene. This is a fair comment. It amounts to the position wherein I lay a charge of theft against somebody, he goes to court and proves that he did not steal it but still is found guilty because I thought he did. That is what this section says. It says that everyone commits an offence who refuses to sell a certain number of magazines-unless he sells them to a person-and he is found guilty if the other person is only apprehensive that the literature may be obscene. I say to bar tied sales absolutely in matters of publication or else, if you are going to do something else, you have to do it according to justice and not permit a man to hide behind the fact that he may have thought that the other two were obscene, go to court and show that they are not obscene and the man be found guilty of a crime that he has never committed.
That is the position in which this section places citizens in this country and it amounts to the example I have given where a person may lay a charge of theft against somebody and then that person is acquitted-and properly acquitted-but still he is found guilty because the other man thought he did it. That is section 150B. I am sure the Minister of Justice will admit that. Although I am absolutely opposed to tied sales, I think it is a great crime to be in that situation. If you wish to do so in matters of publication,

bar all tied sales. If you do not do that, at least you must do it justly and not put one citizen in a position where he is found guilty of a crime if the other person only thinks he is guilty.


Chesley William Carter: The minister allayed our fears somewhat about this show cause clause and putting the burden of proof on the offender when he pointed out to us that when the crown had to prepare a case, first somebody had to provide information on oath. First, somebody had to provide information on oath and then the judge had to be satisfied that there were grounds for confiscating the book. Then the person concerned, the vendor, is summoned to show cause. The minister's argument will be considerably weakened if the vendor has to appear before the same judge because this judge has already tried the case and given judgment. So that the vendor is placed in the position of persuading the judge to reverse his judgment, and certainly if he is to show cause he should be summoned before another judge, not before one who has already tried the case.


Edmund Davie Fulton: In that case without question the judge would feel he was biased and would withdraw, and make certain another judge or magistrate tried the case.


Leon David Crestohl: Mr. Chairman, the hon. member for Inverness-Richmond thought perhaps I had missed the point of this clause. I want to assure him that I am just as anxious to provide the machinery to clean up this obscene literature in our country as is he or any other hon. member of the committee. I am afraid it was not I who missed the point of the debate, it was he. We are discussing an innovation in our law, and if it is a proper innovation we will deal with it. But the question of showing cause I fear a little because of the element of there being the possibility of a person being placed in double jeopardy. His case is tried on its merits before one judge under the show cause procedure that it is not obscene; the court does not agree with him, and later through the intervention of the attorney general a complaint is laid. He is then summoned before another court and he must again prove that the material is not obscene. He is being placed in double jeopardy there. He is being tried twice, and that is a thing we should try to avoid. In the province of Quebec we do not have to show cause in civil matters as in the other provinces; but we are dealing with a criminal matter, and that is something I am really concerned about. If there is no double jeopardy here, even in a minor form, I do not agree. The fact is that a person or his literature in
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question is being tried twice-of that there is no doubt-and it is something which is foreign to our Criminal Code.
On the other hand, I would draw to the minister's attention that a court under subclause 8 means, as far as the province of Quebec is concerned, a judge of the superior court. Whether it is a judge of the superior court sitting in criminal matters or whether it is a judge of the superior court sitting in civil matters, I do not know. Our judges in the province of Quebec sit in civil matters unless they are especially delegated to sit in a criminal matter.
Now, assume a person is summoned before a judge of the superior court to show cause. Then he is summoned before another court, not before a judge of the superior court, but a criminal court. Here he is exposed to difficulties. I submit that whilst there is anxiety to provide legislation or machinery in our law to deal with obscene literature, let us not jump out of the frying pan into the fire. Let us not in an attempt to clean up one thing create another danger, which may be a very serious one. I would like the minister's explanation with regard to subclause 8 of clause 12 in which a court is defined as a judge of the superior court in the province of Quebec.
Then if a case is to be met and the person summoned does not succeed in showing cause, he will be transferred to another court, which is a criminal court. Would the minister kindly correlate this procedure, and also answer the question whether or not, because of this innovation of showing cause, an accused may not be exposed to double jeopardy.


Edmund Davie Fulton: Mr. Chairman, I do not know quite how I can explain any more clearly than I have. In the first place, there is no question of double jeopardy, because no one is placed in jeopardy in the proceedings in rem at all by any stretch of the imagination. We have further provided that with respect to the publication adjudged to be obscene by these proceedings in rem no prosecution against any individual on a charge of selling that publication in that province shall be launched without the consent of the attorney general. Therefore no one can even be placed in jeopardy once unless the attorney general thinks it is a proper case, or for such reason as, for instance, the vendor, notwithstanding the adjudication that it was obscene, did continue to sell it instead of withdrawing it from circulation. So only if the attorney general consents can anyone be placed in jeopardy, and then under the amendments that we have introduced he will be placed in jeopardy for the first and only time.

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There is no question of transferring anybody to another court or transferring the proceedings to another court. I have said, and I say again, that these are two entirely distinct, separate and non-related proceedings. One is an inquiry in rem to adjudicate upon the merits of the issue: Is or is not a publication obscene? The other, if a prosecution is instituted, is an ordinary criminal prosecution started in the ordinary courts where such prosecutions are made, in which an accused, for the first time accused, is placed in jeopardy for the first time. The proceedings before the court which were the in rem proceedings are not admissible in the criminal court where the accused is charged.
I cannot make it any clearer than that. I only hope my hon. friend, if he is not satisfied with my explanation, will say so because we cannot get any closer together, and I am afraid the only course open to him then would be to express his dissatisfaction by voting against the clause.


Leon David Crestohl: No, it is not a question of voting for or against it; we all want to attain the same objective. Let me illustrate what I mean. A man is suspected of having stolen goods in his possession. A search warrant is ordered and the police seize the stolen goods and bring them to headquarters. There they are identified by the owners as their property. Then the accused is told, "Now, sir, we have prima facie evidence that you are in possession of stolen goods; come and show cause that you have the right to hold that stolen merchandise." The minister will at once admit that under our system of criminal law, if he is called upon to show cause there he is really placed in a very serious and prejudicial position. I only give that as an illustration to indicate that this show cause provision is foreign to our law. It may not be in other jurisdictions in other countries, but it is foreign to our law. It may be a good system, and it may be desirable, but we should be convinced that it is desirable or we should debate with great caution before we vote on it.


Robert Simpson MacLellan: Is the hon. member of the opinion that this section requires a man to show cause or just invites him? He does not have to show up, you know.


Leon David Crestohl: He does not have to show up but he will have himself condemned by his absence.


Edmund Davie Fulton: He will not be condemned; the magazine will be condemned.


Leon David Crestohl: Yes, the magazine will be condemned, however, it is this show cause procedure which I question.


Robert Simpson MacLellan: But that is what makes it easy.


Leon David Crestohl: It may make it easy in this instance but it may cause great anxieties in connection with our criminal law elsewhere.


Osias.-J. Godin: I should like the minister to give an answer to what I said regarding section 15 OB.


Edmund Davie Fulton: About all I can do is to read the section and ask the hon. member to consider carefully what it says. It proposes:
Everyone commits an offence who refuses to sell or supply to any other person copies of any publication for the reason only that such other person refuses to purchase or acquire from him copies of any other publication that such other person is apprehensive may be obscene or a crime comic.
This relates the matter to obscenity with which we are dealing here. The hon. member invites me to deal with the question of tied sales generally. On another occasion and under other conditions I might be glad to discuss the matter with him but we are not dealing with the law with regard to the commercial or economic aspects of tied sales in general, but with tied sales as connected with or having a bearing upon the distribution of obscene literature. That is why the clause is drafted in this way and that is the only explanation I can give.


Osias.-J. Godin: Does the minister realize that a person can be found guilty of a crime while obviously committing no crime?


Edmund Davie Fulton: No. The hon. member has not read the section, or else he has obviously misunderstood it. This relates not to whether or not a publication was obscene but to whether or not a person refuses to supply other publications to a person who apprehended it was obscene.


Osias.-J. Godin: Is that not putting the position of one citizen in a position inferior to that of another?


Edmund Davie Fulton: I believe the only way this could work is if the person in question who is resisting the sale says: I do not want to take magazine X because I think it is obscene, I should prefer to take Y, and the publisher says: no, I am sorry, you cannot get Y without taking X, and the distributor insists, I do not want X because it is obscene. If the publisher persists in trying to make the sale and refuses to sell Y and if the distributor says, No, I won't take it, the publisher is guilty of an offence. There is no question of supposition or anything else there. It is just to prevent tied sales contributing to the distribution of obscene literature.


Osias.-J. Godin: Is that not placing the tied sale in public instead of parliament dealing with it?


Edmund Davie Fulton: I cannot follow the hon. member's argument. Parliament is being invited to deal with this question. The matter is before parliament; we have defined a tied sale. Now parliament is asked to approve or disapprove it.


Osias.-J. Godin: If the Minister of Justice is a purchaser of books in a business, all he has to do to bring up the tied sale problem is to say: I feel that the two others you want to sell me may be obscene, and the man is found guilty of a crime.


Edmund Davie Fulton: Oh, no.


Osias.-J. Godin: Inasmuch as I admit the awful crime of tied sales when they are proved to be used, in the sense of justice there is no other way to render a man guilty of a crime if it is proven that he had attempted to pass on obscene literature under a tied sale arrangement. Otherwise you cannot honestly find the man guilty of that crime unless you bar tied sales altogether, which the Minister of Justice has indicated he is not prepared to do, then the only other way to do it is to find the man guilty of the crime if he has really tried to pass obscene literature in a tied sale and in no other way, not on the word of another businessman who is dealing with it.
(Translation j:


Raymond Pierre Eudes: Mr. Chairman, while I do not wish unduly to impede consideration of this section by the committee, I should like to ask the Minister of Justice (Mr. Fulton) to explain a point with regard to paragraph (a) of subsection (8), which reads as follows:
"Court" means a county or district court, etc. ... or in the province of Quebec, the Superior Court:
Could the minister tell us if only the superior court will be authorized to adjudicate in the case of seizures to be executed under that section 150a, because under our court system in the province of Quebec, the superior court is essentially a civil court which, occasionally, hears criminal cases, but in assize court.
Criminal cases are dealt with especially by the court of the sessions of the peace. Therefore, I would like the Minister of Justice to tell us if that reference to the superior courts is restrictive.
(Text):


Edmund Davie Fulton: I think the hon. gentleman will find-and I had to be reminded of this-that there was a gap originally in the criminal jurisdiction of the Quebec superior court, but the Quebec legislature amended the appropriate act last year to give the superior
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court criminal jurisdiction. It has the jurisdiction, and as there are no district courts in Quebec it was for that reason we selected the superior court.


Raymond Pierre Eudes: What about the cours de session de la paix which is not a superior court but which has jurisdiction in criminal cases?


Edmund Davie Fulton: Yes, it is true that the cours des sessions de la paix have criminal jurisdiction but we thought it was better to select the same court for this purpose as was selected last year to hear appeals from decisions of the tariff board under the Customs Act in connection with obscene literature. We thought it was logical that these hearings should be in the same court.


Raymond Pierre Eudes: So they would have to come before the superior court.


Edmund Davie Fulton: Correct.


Raymond Pierre Eudes: Which would mean, before a civil court.


Edmund Davie Fulton: No, because the superior court of Quebec is now vested with criminal jurisdiction.


Raymond Pierre Eudes: Yes, but the justice of the superior court is not the justice of the session de la paix. How would he be able to judge a case in the criminal court?


Edmund Davie Fulton: Because it is now a court of criminal jurisdiction by express enactment of the legislation of the province of Quebec. Jurisdiction in criminal matters have been conferred on it.


Leon David Crestohl: As far as I understand, the judges of the superior court, when they sat in a court of criminal jurisdiction have sat in the court of Queen's Bench. I do not think a judge of the superior court will sit in any criminal jurisdiction other than on his own level, and that is the crown's side. I do not think the minister intended that a judge in the province of Quebec to have jurisdiction over this matter must be a judge of the superior court. It certainly would complicate the whole operation of this clause if that were what the minister intended. I believe the matter could be simplified by changing the meaning of the word "court". It would be of assistance if we were to say that the word "court" means a superior court or court of the sessions of the peace or any other court that has civil or criminal jurisdiction.


Edmund Davie Fulton: If my hon. friend will examine the legislation in Quebec to which I have referred he will see that this is the proper terminology to refer to that court for this purpose. My recollection is that the question came up first in connection with the jurisdiction of the Quebec superior court and

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judges thereof to hear appeals of summary convictions. We found that there was a gap. We entered into correspondence with the attorney general of Quebec and asked if he would prefer to take care of the matter by provincial amendment or have it taken care of by amendment to the Criminal Code. He replied that he would prefer to have it done by provincial legislation and this was accomplished. This court now has authority under its provincial statute to accept jurisdiction in criminal matters, and when we, in a Criminal Code amendment, confer jurisdiction to hear criminal or quasi criminal matters, I do not think there is a question of the jurisdiction to do so.


Leon David Crestohl: Does the minister really intend that a judge of the superior court of Quebec should hear complaints such as these or charges laid for offences committed under this clause which are normally heard in the court of sessions of the peace in the province of Quebec and are then followed by an appeal to the court of Queen's bench?


Edmund Davie Fulton: Mr. Chairman, they are not normally heard because this is a new jurisdiction, but the way I have to answer the question is by saying I am satisfied that they are in a position where this jurisdiction can be transferred upon them by this amendment to the Criminal Code.


Leon David Crestohl: Conferred upon them to the exclusion of all other judges of all other courts in the province of Quebec?


Edmund Davie Fulton: We very frequently confer initial jurisdiction or exclusive jurisdiction on magistrates or county court judges, as the case may be, to take up a matter in the first instance. For example, we here confer exclusive jurisdiction on the county or district courts of all the other provinces of Canada to hear these matters. There has to be a court designated.


Raymond Pierre Eudes: Mr. Chairman, with all due respect, I suggest that the minister study this clause again so as to extend the jurisdiction to judges of criminal courts, not only judges of the superior courts, whose roles usually are restricted to civil cases. (Translation):


Louis Fortin: Mr. Chairman, the fact that the Superior Court of Quebec does not sit between June 30 and September 1 might give rise to some difficulties. If a case of this kind should occur during summer, the situation would certainly be embarrassing in our rural districts, because the judges of the Superior Court sit there only one week per month, while the district judge who has a concurrent jurisdiction in criminal and civil matters goes out there more often.

(Text):


Edmund Davie Fulton: Mr. Chairman, I do not want to be stubborn about this thing. We will therefore be quite prepared to let it stand over the dinner hour and consider it again. I doubt if the committee will complete its consideration of the rest of the bill before six. I would urge, however, that we dispose of all other matters relating to these two clauses so that we might have just the one matter outstanding.


Joseph Pierre Albert Sévigny: Is it the pleasure of the committee to let clause 12 stand over the dinner hour?


Some hon. Members:: Agreed.


Douglas Mason Fisher: Would that cover 150B?


Edmund Davie Fulton: If my hon. friend wishes to refer to 150b he may be free to do so. Although it comes under clause 12, it has not been stood.


Douglas Mason Fisher: I have just been referring to the evidence presented to the special committee of the other place on the sale and distribution of salacious and indecent literature, the minutes of the proceedings dated February 25, 1953. I was interested particularly in statements made by Senator Croll, at that time a private hon. member of this house, who represented the periodical distributors of Canada. He makes the case that the wholesale distributors are not in themselves responsible for setting up block buying or tied buying and that this comes into effect from the publishers. He makes the point that there are what could be considered good features of block buying. It means, for instance, that any magazine that passes customs will receive distribution in Canada and will not be stopped from having it just because someone at a corner store happens to have a complaint against it. This seems to me to have a certain degree of validity. The provisions of 150B may be setting up each retail outlet as a potential censor of what is going to be distributed. Is that not a possible consequence of this provision?


Edmund Davie Fulton: I am not sure I have fully apprehended the hon. gentleman's point, but I will suggest this to him which may dispose of the matter. It is true that the periodical publishers say that they do not impose these tied sales or block sales upon vendors. On the other hand the vendors, both individually and through their associations, maintain with equal vigour that they are victims of a tied sale sytsem imposed by the distributors. If the distributors do not impose tied

sales, there can be no harm done to the distributors by making such sales illegal under these circumstances.


Douglas Mason Fisher: Senator Croll said at this hearing that the distributors did not create the system whereby they buy in block but, unsatisfactory though it may be, it is the system which prevails and if the wholesale distributors wish to continue in business they are obliged to conform to it. It seems to me that Senator Croll was suggesting that the onus for this rested on the publishers and not on the distributors. How, then, is this problem going to be met?
Senator Croll, as reported at page 144 of the minutes of the meeting, dated February 25, 1953, went on to say:
-a simple letter or phone call to the distributor, and he may cancel delivery of future issues of any title he does not wish to handle, without fear of curtailment of class publications. The distributor does not have this privilege with the publisher.


Edmund Davie Fulton: Our proposed provision would apply at any level whatever, between the vendor and the retail distributor, between the retail distributor and the wholesale distributor and between the wholesale distributor and the publisher. If this proposal were to carry, refusals to sell to the next person down the line because that person said, "I do not want such and such magazine because it may be obscene", would be an offence at whatever level it took place in the distributive chain.


Douglas Mason Fisher: Is it not possible that tied sales could be handled under the Combines Investigation Act?


Edmund Davie Fulton: It possibly could be done there and we would, as I said, be prepared at the right time and in the right context to give consideration to it, but we were particularly concerned with its impact on the distribution of obscene literature and that is why we have dealt with it as a separate item here.
Clause stands.
On clause 14.


Douglas Mason Fisher: I am concerned about messages sent by radio as referred to in this clause. Is this designed to keep people from using small transmitters at race tracks in order to transmit information from a race track to beyond? That is one point. The other point is:
-transmits, delivers or receives any message by radio-
In other words, if a person is listening to a straight broadcast by radio from a park in which the odds were listed, would he now be convicted under this clause because of the change that has been made?
6G968-9-353
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Edmund Davie Fulton: Mr. Chairman, the reason for this amendment, to answer the first question, is that it was recommended by the deputy attorney general of Alberta, and arose from a case reported to him by the Edmonton city police in which a radio station in Alberta was said to have broadcast for racing fans in northern Alberta selections of bets in horse races being conducted that day in Saskatoon, Saskatchewan.
While section 177 of the Criminal Code is intended to embody the general principle that the transmission of information primarily or relating to or intended to be used for betting should be prohibited, it was held, in the example where radio was used in this manner, that this was not at the present time prohibited by this section; so we designed this amendment to fill in the gap.
The second part of the question as I understood it was whether an occasional broadcast on the running of races from a park where races were being run could be brought in and prosecuted under this section. I would say no because the offence is willfully and knowingly sending any message by radio or otherwise that conveys any information relating to bookmaking, pool selling, betting or wagering, or that is intended to assist in bookmaking. Therefore, I would say that the ordinary rules of mens rea and intent would apply and would be used to exclude such a case as my hon. friend refers to.


Douglas Mason Fisher: I would like to give an example. I do not know whether it still holds but there was one radio station in Hamilton a couple of years ago that always used to give the race results and the odds throughout the afternoon. It also gave the entries beforehand. This station was listened to by the bookies around Toronto and they used to pay off on that particular information. I have been in corner cigar stores where they would be listening to the results and the people would be there to place their bets and on those results the pay-off would be made.


Edmund Davie Fulton: Mr. Chairman, if it was used for the purpose of enabling bookmakers to settle bets or, as I read it, to convey any information relating to bookmaking, poolselling, betting or wagering; if it was used for that purpose, then I would say once this clause passes, such information conveyed by radio would make the sender liable to prosecution.


Douglas Mason Fisher: Would it not also make the receiver, someone who had his set on and listening to this particular station, liable to prosecution, if he were using the information for the purpose mentioned?


Edmund Davie Fulton: If it was wilfully and knowingly received for that purpose, yes.

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Herbert Wilfred Herridge: Mr. Chairman I am not in the habit of frequenting cigar stores in connection with race track bets, but I do want to ask this question. If a person is there and witnesses this sort of thing would he be considered an accessory after the fact?


Edmund Davie Fulton: No, Mr. Chairman, because the ordinary provisions of criminal law prevail. It has to be a wilful act in the technical sense of the word used in the Criminal Code.


John Whitney Pickersgill: In the example given by the minister it was a radio station in Saskatoon.


Edmund Davie Fulton: No, a radio station in Alberta.


John Whitney Pickersgill: A radio station in Alberta?


Edmund Davie Fulton: The race was in Saskatoon.


John Whitney Pickersgill: Can the minister say
whether the prosecution has to be instituted by the provincial authorities?


Edmund Davie Fulton: There could be a private complaint, but normally the prosecution would be brought by the attorney general's department.


John Whitney Pickersgill: Would it be possible for the attorney general of Alberta, since the minister said that was where the suggestion came from, to prosecute a station in some other province?


Edmund Davie Fulton: No, and he would not have to deal with the case. In the case here, a station in Alberta passed information with regard to races in Saskatoon over to persons in northern Alberta who may have bet on the races.


John Whitney Pickersgill: Suppose the broadcast was from Lloydminster, if there is a radio station on the Saskatchewan side of the provincial boundary, and suppose it would reach northern Alberta just about as well as the other one in Edmonton, it would not be possible. After all, we are making a general law and not a law for the situation in Edmonton.


Edmund Davie Fulton: No, quite so. It would not be necessary for the attorney general of Alberta to try to prosecute a radio station in Saskatoon, because there is an attorney general in Saskatchewan. That is where the offence is committed.


John Whitney Pickersgill: The fact is, because of the effect on the revenues of Alberta surely it is very unlikely that the attorney general of Saskatchewan would prosecute.


Edmund Davie Fulton: I do not think my friend should make that suggestion because to my knowledge the attorneys general of all the provinces are quite concerned with the law in their particular provinces. If the attorney

general of Saskatchewan is given evidence which indicates that an offence is committed in Saskatchewan he would discharge his duty in that regard.


John Whitney Pickersgill: I do not think this clause will be very effective but I have another question. Did he have any suggestions to amend from any other sources except the deputy attorney general of Alberta, and can he say who was the attorney general of Alberta at the time this complaint was received?


Edmund Davie Fulton: I have not got the information here, but I would think it would be the present attorney general of Alberta. This is my impression because I do not think this is of more than two or three years' duration at the outset.


Douglas Mason Fisher: Because of the fact that many radio stations do broadcast the racing results and the odds, I cannot conceive of their doing it just to improve the breed. That is one of the great arguments for racing. Of course, we know that the provinces and to a certain extent the federal government have an interest in getting as much betting at the tracks as possible because it is one way in which they raise money; but it seems to me under this clause the minister could proceed against quite a number of radio stations that give the results because it is certainly arguable that the majority of their listeners would not be interested, for example, in who ran third in the fourth at Woodbine and the pay-off unless they were interested in the betting part of it. I was wondering whether this may not go a little bit far in making radio stations open to prosecution in this particular regard?


Edmund Davie Fulton: Mr. Chairman, it is an offence now for any person to wilfully and knowingly send, transmit, deliver or receive any message by telegraph, telephone, mail or express that conveys any information relating to bookmaking, and so forth. There is an offence now. We have evidence that there is a gap. The gap is that if a person sends it by radio or transmits or receives it by radio it is not an offence. We are, therefore, merely plugging that gap. The intent still has to be there. We are not saying that any radio station that broadcasts results of a race meet which is of general interest to its listeners, for the purpose of informing those listeners and thereby inadvertently gives information which some bookmakers use, is guilty of an offence. He is not because the words of the section make it clear it has to be done wilfully and knowingly for the purpose of betting, bookmaking, and so forth. I do not think my hon. friend need

fear that there will be a whole rash of prosecutions against innocent radio stations.


Douglas Mason Fisher: I do not think they are so innocent.


Lester Bowles Pearson: If the radio station that broadcasts those messages regarding betting and that sort of thing was outside the country where it is legal to broadcast this kind of information, would the receipt of that kind of information in Canada be a crime?


Edmund Davie Fulton: The receipt for that purpose of information in connection with betting would be, yes; if it was for the purpose of bookmaking, betting and so forth.


[Stage Direction]
Clause agreed to.
On clause 15-Certificate of analyst prima facie evidence.
Some hon. Members:: Six o'clock.
At six o'clock the committee took recess.


[Stage Direction]
AFTER RECESS

The committee resumed at 8 p.m.
Joseph Pierre Albert Sévigny: Shall clause 15 carry?


[Stage Direction]
Clause agreed to.
Clauses 16 to 26, inclusive, agreed to.
On clause 27-Time for payment.
Leon David Crestohl: When we were discussing the principle of the bill mention was made of the setting up of a system to provide for the payment of penalties by instalments. There is a feeling that this clause would encourage crime or would encourage the commission of offences rather than discourage it. While our courts have jurisdiction to allow the accused time to pay a penalty in special circumstances, this clause seems to almost establish a right of the accused to demand time to pay a penalty, and the court could, itself, impose payment of penalties on the instalment plan.
I feel that while this is not altogether novel as a practice, as a law it is something that is altogether novel. I had thought the minister would have explained the background of this clause. If it were not a new section, if it were just amending an existing section, it would not require this explanation which I feel the committee and the country should receive from the minister. We should have the background, whether it is a historic background or a legislative background which has prompted the minister to make this proposal. I cannot say I oppose it and I cannot say I favour it. It is because it is something new 66968-9-353J
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that I should like to hear some explanatory remarks from the minister in connection with this proposal.


Edmund Davie Fulton: I should have been very glad indeed to explain the background of this clause, if my hon. friend had given me a chance before he spoke himself.


Leon David Crestohl: If the minister will excuse me, I may say that the other clauses were being carried so quickly I thought this one would be, too.


Edmund Davie Fulton: The fact that the hon. member rose was the first intimation I had that members were concerned about this clause, because this amendment is as good as all the other amendments we are proposing to the Criminal Code.
Perhaps I might be permitted on this clause, Mr. Chairman, to give an explanation of clause 31, which is related to clause 27, the one immediately before the committee. These two clauses amend the law so as to make provision for the giving of time for the payment of fines. The present state of the law is that, first, where a fine is imposed for an indictable offence there is no provision for the giving of time and, second, where a fine is imposed for a summary conviction offence subsection 3 of section 694 authorizes the court to direct that the fine shall be paid forthwith or, if the accused is unable to pay forthwith, at such time and on such terms as the summary conviction court may fix.
What is proposed by clauses 27 and 31 may be summed up very briefly as follows: The law on this subject is to be made the same for indictable offences as for summary conviction offences. A duty is to be imposed on the sentencing court to satisfy itself that the convicted person has the means to pay a fine before sending him to prison for failure to pay. The objective of these amendments is to eliminate, so far as our criminal law is concerned, to the greatest extent possible any remnant of imprisonment for debt. We hope that the result of the amendment will be that imprisonment for failure to pay a fine will only occur where there has been a contempt of court, that is a failure by the convicted person to pay a fine ordered by the court even though he has the means to pay it.
In the result it is anticipated that the state will benefit morally, economically and socially by a decrease in the number of persons who would otherwise be started on a career of crime by reason of prison associations, that is that they have been sent to jail because they were unable to pay their fines, and that the state will also benefit financially by an increase in receipts from fines and a

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decrease in the prison population with a resultant decrease in the expense of maintenance of prisons.
I should perhaps remind the committee that this is not the first time this change has been advocated in this house. It was advocated by the Prime Minister on a number of occasions when he was a member of the opposition, and specifically it was advocated by him in 1956 when he introduced a bill which would have had the effect of amending the Criminal Code. This bill was No. 167 of 1956 and, although not in exactly the same terms as the proposal now before us, it was certainly to the same effect. I should remind the committee also that this proposal was advocated by the Fauteux committee report, and that there is similar legislation in the United Kingdom. The general experience with legislation of this kind has been that, far from encouraging the commission of crime, it has been calculated to produce the result that instead of having people sent to jail simply because they did not have the money to pay their fines they are kept out of jail and thus the association of those persons with hardened criminals is reduced, with consequent benefit to the whole of society.


[Stage Direction]
Clause agreed to.
Clauses 28 to 31, inclusive, agreed to.
Edmund Davie Fulton: Following on clause 31 I should like to ask leave of the committee to amend the bill by adding a new section 32 and by renumbering the subsequent claused accordingly. The amendment I would propose is as follows:
That the bill be amended as follows:
1.	By adding thereto, immediately after clause 31 thereof, on page 12, the following clause:
"32. Subsection (5) of section 697 of the said act Is repealed and the following substituted therefor:
(5) A summary conviction court that waives jurisdiction in accordance with subsection (4) shall name the summary conviction court in favour of which jurisdiction is waived, except where, in the province of Quebec, the summary conviction court that waives jurisdiction is a judge of the sessions of the peace or a judge of the municipal court of the city of Montreal''.
2.	That the present clauses 32 to 37 be renumbered as clauses 33 to 38 respectively.
That is the amendment I would propose. I would ask one of my colleagues to be kind enough to move it.


Michael Starr: I so move.


Edmund Davie Fulton: Perhaps I should explain the reasons for the amendment. The purpose of this clause is to facilitate the work of the municipal court of Montreal. I have therefor to refer to the suggestion made by the hon. member for Megantic on clause 1 that in the definition of "magistrate", the word "recorder" should be deleted and "municipal

judge" should be added. He said, as I understood him, that there were no recorders now and that the jurisdiction should be conferred on municipal judges.
On looking into the matter, I find that the position is that recorder's courts have not been abolished but their names have been changed to municipal courts.
In this connection I should like to refer my hon. friend to section 1 of chapter 52 of the statutes of Quebec of 1952-53 which reads as follows:
1. Every recorder's court existing In the province at the time of the coming into force of this act, by whatever legislative authority established, shall hereafter be designated by the name of "Municipal Court of the City of (name of the city)" or "Municipal Court of the Town of (name of the town)'' as the case may be.
It is to be noted that the provincial legislature went to some lengths in making this change in the name of these courts to avoid any possibility to there being any difficulty in connection with the jurisdiction conferred by federal legislation. In this connection it is important to read section 4 of chapter 52 of the Quebec statutes of 1952-53, which is as follows:
4. Every recorder in office at the coming into force of this act and every municipal judge to be appointed in the future shall act in the province as recorders, with respect to the jurisdiction attributed to a recorder under the acts by the parliament of Canada.
It is to be borne in mind, of course, that the provincial legislature is responsible for the constitution of courts of criminal jurisdiction. It will therefore be seen that not only is this amendment appropriate but that the use of the word "recorder" in the earlier clause of this bill is appropriate.
(Translation):


Raymond Pierre Eudes: Mr. Chairman, I am very glad to note that the Minister of Justice (Mr. Fulton) has followed the suggestions we made when subsection 1 of the bill was being considered.
Now, I wonder whether the proposed amendment should not likewise extend to section 16 of the bill, amending section 225 of the Criminal Code.
(Text):


Edmund Davie Fulton: Mr. Chairman, I am afraid that I am unable to understand the hon. member's question if it relates, as I understood him to say, to clause 16 of the present bill.
I do not see the connection.


Raymond Pierre Eudes: Court, justice or magistrate; just to clarify the section you should add "municipal judge".


Edmund Davie Fulton: I wonder whether my hon. friend has asked the question on the right clause. We are dealing with a clause which



B, 1959

[Stage Direction]
I have moved or which has been moved by one of my colleagues and which refers to the waiving of jurisdiction. I do not quite see the relationship between this proposed amendment and clause 16 of the bill.
Raymond Pierre Eudes: Municipal judge. Of course, this clause was passed; but at the time the clause was passed you did not have this amendment.


Edmund Davie Fulton: But clause 16 refers to the making of an order prohibiting a person convicted of certain offences from driving a motor vehicle on the highway in Canada and we have inserted there the offence of leaving the scene of an accident by the addition of subsection 2 of section 221. I do not see what relationship that has to the question of waiving jurisdiction by certain courts in the province of Quebec.


Raymond Pierre Eudes: The point is this. Under section 16 you have the word "magistrate". It seems to me that the proposal now extends the power of the magistrate to a municipal judge and in section 1 of this bill with the word "magistrate" is not included the word "municipal judge".


Edmund Davie Fulton: Mr. Chairman, I am sorry to have to say that I am unable at the moment to understand the problem which my hon. friend was posing to me. I am most anxious to make certain that we do not leave a gap in the jurisdiction of the courts of the province of Quebec, but before I can answer my hon. friend I would ask him to be kind enough to restate the question he has in mind.


Raymond Pierre Eudes: The minister in his remarks made reference to what the hon. member for Megantic said last week about replacing the words "recorder" by "municipal judge", and "recorder's court" by "municipal court". Am I correct or not?


Edmund Davie Fulton: Yes.


Raymond Pierre Eudes: This is a reply to the remarks that the hon. member for Megantic made last Tuesday on clause 1 of this bill when he said, if I remember, that in the province of Quebec a recorder and a recorder's court did not exist, and that both were replaced by municipal judge and municipal court. So that if this amendment were added after clause 31 I thought it would be the proper time to submit to the minister that in clause 1, "municipal judge" and "municipal court" should be added to the existing phrasing. At the same time, I mentioned a moment ago that under section 225-


Edmund Davie Fulton: Mr. Chairman, I think the answer to my hon. friend is found in the fact that section 4 of the statute of Quebec,
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which changed the name of the recorder's court to the municipal court, also provided that:
Every recorder in office at the coming into force of this act and every municipal judge to be appointed in the future shall act in the province as recorders, with respect to the jurisdictions attributed to a recorder under the acts by the parliament of Canada.
So that every time we refer in our statutes or our bills to a recorder in the province of Quebec that automatically means, so far as Quebec is concerned, a municipal judge. Therefore I do not think we need change the terminology of our act, because the province of Quebec has by its statute in effect allowed us to continue the terminology of "recorder".


Raymond Pierre Eudes: I thank the minister for his explanation; that is the point I wanted cleared up.


Osias.-J. Godin: Mr. Chairman, may I add that the explanation is very clear, since the bill in clause 1 uses the words, "a recorder". But the clause now in dispute is clause 31, which amends the section by adding-


Edmund Davie Fulton: I am afraid my hon. friend misunderstands the situation. I have just introduced an amendment to add a new clause as clause 32 of the bill, which would amend section 697 of the code. Then I have asked leave by the amendment to renumber the subsequent clauses of the bill accordingly. We are discussing the new clause 32 of this bill.


Osias.-J. Godin: Would the minister explain how a municipal court judge in the province of Quebec can make an order prohibiting a person found guilty in his court of the offences mentioned in section 225 (1) as amended from driving in Canada.


Edmund Davie Fulton: Mr. Chairman, I am unable to understand again the question of my hon. friend, because clause 32 of the bill, now clause 33 by virtue of the amendment we have just adopted, relates to the definition of court of appeal so far as the province of Newfoundland is concerned.


[Stage Direction]
Amendment agreed to.
On clause 32 (new 33)-Prince Edward Island.
John Whitney Pickersgill: Mr. Chairman, I notice here in (aa) under clause 32 (1) that it says:
-in the province of Newfoundland, a judge of the supreme court.
And then later on, with reference to Ontario, (d):
-the county court of the district or county or group of counties-

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I was wondering why the county court judges in Newfoundland were not also included. There may be some good reason for it, I do not know.


Edmund Davie Fulton: I think the answer is that the county court judges of Newfoundland have been comparatively recently appointed, as my hon. friend knows, and we have not yet been advised by the government of the province of Newfoundland that they are prepared to have the jurisdiction over appeals from summary convictions, conferred upon their county courts.


John Whitney Pickersgill: I am a little touched by that reference, because they were appointed just at the time I was appointed to the privy council and became a candidate for this parliament. I do not like to think it is all that recent, but I am satisfied with the hon. gentleman's explanation.


Edmund Davie Fulton: I used the word "comparatively" and I think it applies in both cases.


[Stage Direction]
Clause agreed to.
Clauses 33 to 35 (new 34 to 36) inclusive agreed to.
Joseph Pierre Albert Sévigny: Shall we revert to clause 12?


Some hon. Members:: Agreed.


Edmund Davie Fulton: No. Clauses 2 and 3, I think, Mr. Chairman.


Joseph Pierre Albert Sévigny: Shall we revert to clauses 2 and 3?


Some hon. Members:: Agreed.
On clauses 2 and 3.


Edmund Davie Fulton: I should like to point out to the committee that on July 1, during the debate which took place on that day, the word "flight" in clause 3 raised for examination many of the ramifications of the drafting process that do not ordinarily come to notice outside the mind and office of the draughtsman.
In subsection (1) of the proposed section 5A reference is made to an aircraft "in flight" and to the termination of a "flight" of an aircraft. In this context, no definition or other aid to the interpretation of either "flight" or "in flight" is required. Obviously "flight" has the primary dictionary meaning of "act... of flying or moving through the air" and "in flight" means in the act of flying or moving through the air. No definition is required to make it clear that "flight" is not used in any of the many other dictionary senses of the word such as, for example, "running away" or any of the other modern senses such as, for example, the designation of a scheduled trip of a commercial airline

Any such sense is clearly inapplicable. Most words in the English language have several senses. Where the appropriate one for a word used in a statute is dictated by the context, it would be unnecessarily cumbersome to spell it out by a definition.
In the proposed section 5A of the code the function of subsection (4) is not to designate the sense in which the word "flight" is used. It was on the contrary, inserted to extend for the purpose of the provision the meaning of "flight" in its ordinary sense of the act of flying or moving through the air by adding on to that act, the act of taxiing at each end of the true flight. To accomplish this, subsection (4) was worded as follows:
(4) For purposes of this section and paragraph (3) of section 2 an aircraft shall be deemed in flight from the moment the aircraft first moves under its own power for the purpose of taking off until the moment it comes to rest at the end of its flight and when it so comes to rest that flight shall be deemed to have terminated.
So worded I do not think any person reading subsection (4) with subsection (1) could fairly misinterpret its effect and I do not think any court after proper argument could misinterpret its effect. However, that, taken by itself, can be misconstrued, as established by the debate that has taken place.
The point that bothered some hon. members, justifiably, I think, can be eliminated by deleting the words "at the end of its flight" in lines 27 and 28 so that the subsection would read:
(4) For purposes of this section and paragraph (30) of section 2 an aircraft shall be deemed in flight from the moment the aircraft first moves under its own power for the purpose of taking off until the moment it comes to rest and when it so comes to rest that flight shall be deemed to have terminated.
However, as was made to appear by one hon. member at the end of the debate-I think it was the hon. member for Burin-Burgeo-this would completely distort the whole concept in the ordinary case of a takeoff by terminating the "flight" when the aircraft comes to rest at the end of the runway to wait for clearance from the tower. This experience, I may say, is instructive and underlines the danger involved in making amendments on the floor of the house.
Various alternative suggestions occurred to us, with regard to which I do not think I need go into detail, in an endeavour to meet all the possibilities, and I should like to ask leave of the committee to withdraw the amendment now before us and to substitute therefor the following:
That clause 3 be amended by striking out lines 24 to 29, both inclusive, on page 2 and substituting therefor the following:
(4) For the purposes of this section and paragraph

(30) of section 2, "flight" means the act of flying or moving through the air and, where an aircraft has been in flight, the flight shall be deemed to have commenced when the aircraft first moved under its own power for the purpose of taking off and to have terminated when the aircraft ceased to be in motion.
That, it seems to me, would cover the case both of the movement for the purpose of talking off and the other related but distant case of the aircraft which comes to rest in Canada at the end of a flight, as we attempted to define it, though not at the end of the so-called scheduled flight. We have taken care of that, I think, by the use of the words "to have terminated when the aircraft ceases to be in motion". So that whether the aircraft was involved in an accident and crashed in Canada, as one hon. member suggested, or whether it landed at Winnipeg, in the case of a Scandinavian airlines plane, in both cases the flight would have terminated when the aircraft ceased to be in motion in Canada and therefore the Canadian courts would have jurisdiction.
May I have leave to withdraw the amendment, in which case a new one will be moved by my colleague?


Joseph Pierre Albert Sévigny: Has the minister leave to withdraw the amendment as requested?
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other concrete approaches, approaches the landing ramp and stops. It is true that in a particular case if the aircraft comes to a stop before it gets up to the ramp the flight would have terminated there, but the pilot could have radioed ahead and had Canadian peace officers awaiting him when he brings the aircraft to rest.


John Whitney Pickersgill: That brings us to a serious point. Is the minister aware of the situation at Stephenville where the plane lands on the United States runway and then comes to rest on the Canadian apron? I had not envisaged that until my friend the hon. member for Burin-Burgeo mentioned the case. This has in fact happened to me: the plane has landed at Stephenville, come to a complete stop while still on the United States base where our peace officers would not have any jurisdiction, and has then resumed its motion though not its flight before coming into the terminal.


Edmund Davie Fulton: I think the answer to that is that the United States base in Newfoundland is still in Canada and therefore the Canadian peace officers would still have jurisdiction under the particular circumstances we are covering in these amendments.


Some hon. Members:: Agreed.


Michael Starr: That clause 3 be amended by striking out lines 24 to 29-


John Whitney Pickersgill: Dispense.


Leon David Crestohl: I wonder if we might have the amendment read, Mr. Chairman?


Joseph Pierre Albert Sévigny: Very well. The amendment reads as follows:
That clause 3 be amended by striking out lines 24 to 29, both inclusive, on page 2, and substituting therefor the following:
" (4) For the purposes of this section and paragraph (30) of section 2, "flight" means the act of flying or moving through the air and, where an aircraft has been in flight, the flight shall be deemed to have commenced when the aircraft first moved under its own power for the purpose of taking off and to have terminated when the aircraft ceased to be in motion."


[Stage Direction]
Amendment agreed to.
Chesley William Carter: That covers everything except the very short period between the time it comes to rest at the end of the flight and then taxies up to the terminal. That period is not covered.


Edmund Davie Fulton: I think if the hon. member will recall most of the occasions when he has been on a commercial aircraft in flight, the aircraft lands on the runway, slows down, but does not as a rule come to a complete stop, then turns on the runway to go to


John Whitney Pickersgill: But is the minister really sure of that? The last time I was at the United States base I was rather surprised to find an E.C.M.P. officer there. When I told him this he gave some explanations which I do not think I should repeat in the committee but which indicated quite clearly to me that he did not have any power to arrest anyone.


Edmund Davie Fulton: Probably because we had not taken jurisdiction as we are under these amendments with respect to crimes committed on aircraft.


John Whitney Pickersgill: It had nothing to do with
crimes committed on aircraft.


Edmund Davie Fulton: I think the situation there may have been one of, shall I say, neutral accommodation as to the particular circumstances under which Canada might seek under ordinary circumstances to exercise jurisdiction on this base. There is no question about the right of the Canadian parliament and Canadian law officers to act with respect to rights on Canadian soil.


John Whitney Pickersgill: I do not wish to hold up the committee, but I wish the minister would look into the situation a little further because I do not think he is right.
Clause 2 and clause 3, as amended, agreed to.

Prisons and Reformatories Act
On clause 12-'Warrant of seizure.


Edmund Davie Fulton: Our discussion this afternoon was with regard to subclause 8, and particular reference was made to the designation of the court in the province of Quebec which would have jurisdiction over these proceedings in rem. I should like to express appreciation to hon. members opposite and to other hon. members from the province of Quebec because I think they have raised a point which is quite a valid one under the circumstances. I feel that the situation would be better taken care of if I were allowed to suggest the following amendment:
That subsection 8 of section 150a, as contained in clause 12 of Bill No. C-58, be amended by deleting the words "superior court" in line 17 on page 5 thereof, and by substituting therefor the words "court of the sessions of the peace or magistrate's court".
I would ask one of my colleagues to move accordingly.


Michael Starr: I so move.


Leon David Crestohl: While I am in favour of the amendment, I wonder if the minister has before him the section of the Quebec statutes to which he referred earlier in the day to which an amendment was made conferring upon the superior court jurisdiction in criminal cases?


Edmund Davie Fulton: No, Mr. Chairman, I do not have it before me. My advisers and I consulted it during the dinner recess and I find it was restricted to giving the Quebec superior court jurisdiction in appeals from summary convictions.
(Translation):


Louis Fortin: Mr. Chairman, for the information of the hon. member for Cartier (Mr. Crestohl), this is an amendment passed last year and which may be found under section 193a, chapter 21 of the consolidated statutes of Quebec 1957-58. The amendment decrees that:
(Text):
The superior court shall have jurisdiction to hear appeals permitted by part 24 of the Criminal Code only.
Clause as amended agreed to.
Bill reported, read the third time and passed.



PRISONS AND REFORMATORIES ACT


Edmund Davie Fulton: the second reading of Bill No. S-26 (from the Senate), to amend the Prisons and Reformatories Act.
He said: Mr. Speaker, perhaps I should explain briefly the purpose of this bill. It consists of two main provisions. The first

authorizes the transfer from the province of New Brunswick to the province of Nova Scotia of female Catholic prisoners. The second provision authorizes the attorney general of Manitoba to direct by warrant the removal of a person from one institution in that province to another.
The first provision is made necessary because the convent in New Brunswick known as the Good Shepherd reformatory which formerly used to receive Catholic female prisoners has been closed. By agreement between the governments of New Brunswick and Nova Scotia it has been arranged that Catholic female prisoners in the province of New Brunswick may be transferred to and received by the appropriate reformatory convent in Halifax.
The second provision in the bill is placed before parliament by the government at the request of the attorney general of Manitoba in order to give the attorney general of that province the same authority as is enjoyed by attorneys general of several other provinces with respect to the movement of prisoners between provincial institutions.


Mr. Gabriel Roberge (Megantic):: Mr. Speaker, I have read the bill and consulted with my colleagues from New Brunswick. We are in agreement with the amendments placed before us this evening. I have not consulted with my colleagues from Manitoba


John Whitney Pickersgill: I agree.


Gabriel Roberge: -but we do agree with the principle of the bill.


Mr. Frank Howard (Skeena):: Mr. Speaker, I wish to express in somewhat similar terms our endorsation of the principles outlined in the bill. Unfortunately we could not consult with our colleagues from Manitoba, New Brunswick, Nova Scotia or a few other provinces. However, we do wish to indicate general support for the provisions outlined in the bill.


[Stage Direction]
Motion agreed to, bill read the second time and the house went into committee thereon, Mr. Rea in the chair.
Clauses 1 to 3, inclusive, agreed to.
On clause 4-Transfer of offenders.
Frank Howard: Perhaps the minister might indicate whether this provision is in effect in respect of a number of provinces. I wonder whether he can indicate in which province this provision is in effect, or if it is shorter to do it the other way, indicate which provinces do not have this provision applying to them.


Edmund Davie Fulton: I think the first way is the shorter way, Mr. Chairman. The same provision as is now provided in the bill is in effect with respect to the transfer of prisoners in Alberta and in British Columbia.


Frank Howard: Is it normal to make such provision only at the request of the attorney general of the particular province which might want to have this arrangement apply?


Edmund Davie Fulton: Yes, that is correct because, as I understand it, the present provision of the Prisons and Reformatories Act says that prisoners may be transferred between provincial institutions only by order in council of the provincial cabinet, and it is only where a province has requested that this provision be waived or amended so as to permit it by warrant of the attorney general or the director of institutions within the province that we have made the appropriate change. Unless we are requested by a province to make the change we leave the act stand as it is.


Frank Howard: Perhaps this may be a bit outside the scope of this bill or of the act, but I am not familiar with that. Can the minister indicate whether advantage is taken under a provision such as this to transfer inmates from one jail to another within a province where such transfer is necessitated because of additional facilities or better facilities for rehabilitation or for training which might exist in one jail but do not in another?


Edmund Davie Fulton: Mr. Chairman, we do not inquire too closely into the reasons why a province requests this; it is a matter of prison administration, and we are not prepared to insist that a province continue to pass orders in council authorizing the transfer of prisoners between provincial institutions. If the province wants relief from that provision, particularly in the light of the fact that prisoners may be transferred between federal institutions by order of the commissioner of penitentiaries, which does not require an order in council of the dominion government, we do not see any reason why it should require an order in council of the provincial government.


Frank Howard: Perhaps I did not pose the question clearly. Does the minister know whether, under a provision such as this, if a province desires to transfer inmates from one jail or reformatory to another they can take advantage of this provision to make the transfer because of the training facilities which might be available in one institution but not in the one from which the transfer is made?
6,	1959	5567
Maritime Coal Production Assistance Act


Edmund Davie Fulton: Yes, they can take advantage of this provision for any reason whatever, as long as it is in the interests of the inmate concerned.


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


Hon. Paul Comtois (Minister of Mines and Technical Surveys) moved: the second reading of Bill No. C-68, to amend the Maritime Coal Production Assistance Act and to authorize certain amendments to the agreement made under that act with Dominion Coal Company, Limited.
(Translation):


Mr. Armand Dumas (Villeneuve):: Mr. Speaker, has the minister no comments to make at this stage?
(Text):


Paul Comtois: Mr. Speaker, I have already stated the purposes of this legislation in the debate on the resolution. Certain questions were asked, however, that I would like to answer. The hon. member for Gloucester (Mr. Robichaud) referred to certain matters having to do with coal that are, perhaps, not strictly related to the legislation before the house. With your permission, Mr. Speaker, 1 will take this opportunity of advising the hon. member.
Reference was made to the application by the Dominion Coal Company for a loan in order to build a cleaning plant. This application was not made under the terms of the Maritime Coal Production Assistance Act which provides that the applicant must carry one-third of the cost of any project under the act. To grant the applications would have required special legislation and the dominion coal board, after a very thorough study, did not feel that they could recommend any such special consideration. If the company makes a further application under the terms of the legislation as it may be amended, their representations will be fully considered. If, also, they apply independently of this act, their revised proposals will be given careful study.
The hon. member also referred to the May statistics on coal production and imports. The statistics for a spring month are usually somewhat different from the annual. The drop in household consumption coincides with the opening of navigation on the lakes and the build-up of dock stocks of imported coal.
5568	HOUSE OF
Maritime Coal Production Assistance Act The decrease in production referred to by the hon. member was almost entirely in Nova Scotia.
There are ample supplies of Nova Scotia coal available on the Montreal docks for delivery to consumers. The enlarged assistance reported to the house by the Prime Minister (Mr. Diefenbaker) on March 17 will permit delivery of this coal at a price competitive with imported coal in Quebec and in a very wide area of Ontario. Orders on hand for delivery of Nova Scotia coal to Ontario in the fiscal year 1959-60 are some 650 per cent higher than in the year 1957-58.
The fact that the Nova Scotia mines operated on short time during May has been caused by the extraordinary build-up of stocks during the previous 18 months and the background for this condition was reported to the committee on lands, forests and mines during their examination of the estimates of the dominion coal board.
The increase in estimates for the month over those for May, 1958 is due in large measure to the necessity to build up the decreased inventories of industrial coal and particularly the greatly decreased stock piles of coking coal held by the large steel plants in Ontario. At the end of April this year these inventories were less than half those of the previous year or, indeed, of any normal year and provided protection for operations for only about one month. To permit full operation of these vital plants an increase in coal supply is essential. This condition has been brought before the house by my colleague the Minister of Transport (Mr. Hees) in his reports as to the priority through the canal of vessels carrying ore and other materials to these plants. This quality of coal is produced in limited quantity only in Nova Scotia and the available output is consumed in the steel plant in Sydney.
Finally, the hon. member referred to the projected study of the maritime coal situation. If this study is to be of real value I believe hon. members will agree that it is important to define and lay down terms of reference that will adequately define the area of investigation. Considerable study has been given to this by all concerned, and it is expected that the scope of the full scale investigation will soon be reviewed by the premier of Nova Scotia and the final organization agreed upon.
The hon. member for Timiskaming (Mr. Peters) referred to the possible co-ordination of this legislation with the national energy board or some other national planning board. This legislation amends an act that has been in existence for 10 years and this predates any formal investigation of energy. It extends this measure for a term of five years, within
[Mr. Comtois.l

which period it will be possible to study the necessary methods of co-ordination between the national energy board and the long established dominion coal board. I can assure the hon. member that the subject of his remarks will be studied and held for consideration in the light of further developments.
Finally, the hon. member for Burnaby-Coquitlam (Mr. Regier) asked whether any specific requests for assistance had been received from individual operators in the western provinces. Since the existing legislation was limited to the maritime provinces, no specific requests were made. The possible extension to other areas has been discussed on several occasions by members of the dominion coal board with western operators, and with the operators' associations in western Canada. As a result of these discussions the board recommended the extension. Interest has been shown in this proposal by individual operators in the three western provinces and if the amendment is passed, I have no doubt that coal producers in Saskatchewan, Alberta and British Columbia will make renewed and intensive studies of their marketing and production plans with the intention of modernizing their operations with this proffered assistance.
(Translation):


Armand Dumas: Mr. Speaker, the minister's remarks are most interesting. But when the legislation was submitted to this house last week at the resolution stage, the hon. member for Gloucester (Mr. Robichaud) expressed the official opposition's point of view and added that the government might count on our cooperation to facilitate the passing of this bill and have it sanctioned as soon as possible.
This act, dating back to 1949, has been added to a whole group of statutes passed under former governments to help the coal industry. The 1949 act became obsolete at the end of the year because, as from October 31, no other loans could be granted under this legislation. That is why this government thought it appropriate to prepare the amendments now before us so as to extend the act for a further five years, that is until 1964, to bring up to $20 million the aggregate principal which may be loaned while increasing also to $12 million the total principal of loans which may be granted to one producer, to extend its application to all producers in every part of Canada and, lastly, to authorize amendments of a loan convention with the Dominion Coal Company Limited.

According to the minister, this act has proved a real success, providing remarkable help to the operators of coal mines. As a matter of fact, the minister is perfectly right and what he says is indeed confirmed by comments found in the annual report of 1957-58 of the national coal board.
For instance, on page 14 of that report, in the chapter entitled "Progress of mechanization", we may read the following:
The mechanization of mines has at least helped to limit operation costs. Nova Scotia coal is expensive, but in view of the help offered in the form of subsidies not expensive to the extent of being unable to compete. If the mechanization program had not been started when it was begun, it might be quite possible that with the former methods operating costs would have brought the price of coal to a level which would have priced it out of all our present markets.
Further on in the same report, on page 28, we find the following paragraph:
As we mentioned elsewhere, the mechanization of Cape Breton mines has now reached the stage where a substantial increase in the productive potential was felt during the fiscal year 1957-1958. Among the mechanization highlights of the year, may we mention the addition of mechanical undercutters, loaders, diesel engines and mining vehicles.
The original mechanization program of Cape Breton mines included the building of a new central cleaning and washing plant. The steel required for the building of that plant has been ordered and part of it has been delivered. However, construction will be delayed, since there were not enough funds out of the loan authorized, to cover two-thirds of the cost of completion of the plant and installation of modern automatic cleaning equipment. The difference between the first estimation of the cost and the one made recently is mainly the result of the increase in labour, construction material and equipment costs.
If I mention that last paragraph, it is precisely to follow up the remarks that the minister added to those he made last week at the resolution stage, and thus reply to a question directed to him by the hon. member for Gloucester.
I believe it is most important that such a cleaning plant be installed as soon as possible. The minister added that perhaps the installation cost would exceed the amount which could be allocated to that company, that is the Dominion Coal Company, and that the latter might perhaps be obliged to come back before the dominion coal board to discuss the project with the officials of that division, and see whether it would not be proper, perhaps, to grant a special loan in order to allow the construction of that plant.
In some of the remarks which I will make later on, I will speak again about that project.
E, 1959	5569
Maritime Coal Production Assistance Act
Now in the dominion coal board report, it is interesting to note that, with the exception of the Dominion Coal Company, whose loan is covered by a section of this bill, the principal has been reimbursed in accordance with contractual obligations.
Mr. Speaker, I say that the coal industry in Canada is still in a serious plight. I do not propose to repeat here what was said in the course of the debates last winter, or in the course of the debates of the 1958 session, but, just the same, that industry is important enough to warrant, from time to time, a review of its difficulties, that is to say a reconsideration of its difficulties, as well as a review of the possibilities of solving them.
The prospects for the coal industry appear bright enough in a slightly more distant future, and indications are that the industry's situation will improve through a considerable increase in the industrial use of coal. Also, the operation of thermal power plants will eventually open up important new markets.
The next decade promises to be a critical period for the coal industry. The provincial minister concerned in Nova Scotia has broadly described the position, and if we have raised the question in this house it is because it is imperative that every effort be made to try to maintain this industry in operation in the forthcoming years. I must say that the only means now available is to grant subsidies. It is a temporary remedy, but it will have to be continued in order to maintain at least the major mines in operation.
Now, Mr. Speaker, may I at this time express my views on this matter once again, and say what should be done to pull the coal industry out of its present predicament.
First, greater use of coal in the maritimes themselves should be encouraged by every possible means. That is where greater use of coal is to be expected in the future, and action must be taken so that residual petroleum products, which are threatening to replace coal, will not have an opportunity to do so.
Secondy, an effort should also be made in eastern Canada, in Newfoundland for instance, and in the province of Quebec, as well as in eastern Ontario.
Third, every possible effort should be made to increase sales of Nova Scotia coal in Ontario centres.
5570	HOUSE OF
Maritime Coal Production Assistance Act
To achieve the above purposes, I think we should resort to the following means- and when I say we I mean coal producers, the federal government and the provincial governments as well. Progress should be made in the mechanization of mines, for the simple reason that if no attention is paid to mechanization, coal production not only will remain at its present level, but it will decrease, because production costs will be too high.
In 1958, at a meeting of the standing committee on mines, forests and waters, the chairman of the dominion coal board made the following statement:
Machines must be installed, and if you will allow me time, I shall explain the matter in my own terms, without going into too many technical details. Otherwise, I shall yield the floor to Mr. Ignatieff who once a year, makes a survey of the progress achieved in the field of mechanization and developments. Incidentally, his report of last year is quite favourable, encouraging and accurate. Mechanization is achieved in a proportion of about two thirds, but its benefits are not up to two thirds of the value. It is the last third that will enable us to see if the aim has actually been reached. Perhaps I should illustrate my remarks by way of an example. At the present time 60 per cent mechanization will give a 50 per cent yield but 95 or 100 per cent mechanization should yield from 80 to 90 per cent. Therefore, the true increase of efficiency will depend on the next third of mechanization, which includes the coal-dressing apparatus as well as various other machines which have just been developed.
Mr. Speaker, that is how we realize that mechanization must be quickened as soon as possible to give a yield of at least 80 to 90 per cent.
Now, we should also improve the quality of coal-that is the producers should get organized to provide the consumers with a purer and better dressed product.
Moreover, if possible, we should facilitate and modernize the transportation and handling facilities of coal.
Mr. Speaker, this is a very important matter and I know that at this stage of the study of the bill, it may not be proper to insist on those points. However, I wanted to put my own point of view on record and, as the hon. member for Gloucester said last week, we are in favour of the adoption of this legislation and we hope that it will be approved as soon as possible.
We also hope that the companies concerned will come and submit their plans to the dominion coal board. Besides, I hope that those companies will mechanize their mines


as quickly as possible. I hope that, through this bill, the government will make loans to those companies to enable them to speed up mechanization.
I am rather surprised to note that the amounts made available for mechanization are raised only to $20 million. I believe that it should have been brought up to $30 million. However, the hon. minister indicated to us that if the companies would come here and submit larger plans, the government would study them and that they would probably be favourably received. That attitude is encouraging, not only to the coal producers of Nova Scotia, but also to those whose living depends on that industry.
Therefore, Mr. Speaker, we support this bill and we hope that it will be used in the best possible way.
(Text):


Herbert Wilfred Herridge: Mr. Speaker, I rise to make a few brief comments in connection with this bill. First of all, let me say that we support the principle of the bill as being a short and timid step in the right direction; and that direction is recognition by this government of the fact that the economic health and welfare of the coal industry is a national problem. We are pleased to note that that is indicated in the bill by the extension of the application of this act to all coal producers in Canada for the obtaining of assistance in the modernization of their plant, equipment, machinery processing and so *n. But the bill itself has limited application even in that respect because the major concern of the coal companies in Canada at the present time is markets. While this bill will assist in more efficient production and possibly will lower costs in some respects, it does not provide the markets which are necessary in order to keep the mines operating.
I was greatly interested to hear the minister make reference to a study being undertaken in connection with the coal industry in Canada. We shall look forward with great interest to the result of that study.
I cannot deal with this subject without thinking of a small city in southeastern British Columbia which has suffered severely in recent years. It does not happen to be in my constituency; it is in Kootenay East. However, I am sure the hon. member for Kootenay East (Mr. McFarlane) would support my remarks in this respect. I refer to

the city of Fernie which has suffered severely in the last year or so because of the closing of a large coal mine which had been in operation there for over fifty years. From our point of view some of these companies show a lack of a sense of responsibility in view of the advantages they have enjoyed throughout the years as a result of their operations in Canada. Here is a company engaged in a successful operation and a profitable one.
The mine I am speaking of is very close to Fernie, and the workers for the most part live in Fernie and have done so for over 50 years. But it is completely United States owned. They have not closed the mine because they are losing money in the Crowsnest pass coal mines as a whole; they closed the Fernie mine because by so doing they will maintain their rate of profit. They can maintain their profit by keeping their other mine operating in the Crowsnest pass. There is no consideration for investment by the province or the municipality in the development of the city, public services, streets, hospitals, schools and all that sort of thing. There is no concern for the workers directly concerned. This coal mine was closed on, I think, about a week's notice, being given to the council of the city of Fernie after all these years of operation at a good rate of profit. I might also mention, Mr. Speaker, that this company has received very generous consideration throughout the years from the government of British Columbia.
It creates a situation, as it were overnight, where there is unemployment and a lowering of values of properties within the district because of lack of demand for houses, and need for certain facilities; it also entails a lowering of the value of investments on the part of the province, on the part of the municipality, and on the part of the workers concerned in connection with their homes.
It is the opinion of the members of this group, on behalf of whom I am speaking this evening, that it is not good enough in this age to allow companies to act in what we consider to be a completely irresponsible way so far as recognizing their responsibility to the province, the municipality and to the people directly concerned. What are we going to do about it?
In our opinion, we will never overcome this type of situation unless we have a national policy, first of all, with respect to the development of coal mining and the marketing
6, 1959	5571
Maritime Coal Production Assistance Act of coal. That policy should develop as the result of co-operation with the provincial governments. I notice that there are very few questions nowadays concerning the development of natural resources where we find that, unless there is co-operation between the federal and provincial governments, it is very difficult to achieve any success or make any headway. That is essential, and it means that this government and the provincial governments concerned have to get their heads together and see what can be done. After that co-operation is established we need some planning with respect to the development of mines, the provision of markets and so on; we need a co-ordination of activities.
I think a great deal can be done in a democratic society if we do really make up our minds to tackle the problem. It is a serious question which will not be settled overnight, but if we get federal and provincial governments working together and co-operating with the coal owners, as well as the labour organizations which are directly responsible for the welfare of the workers, we should make progress in this respect. There is the question of markets and transportation costs, the distribution of any subsidies which might be required to place coal in distant markets, and so on. There are a lot of problems to be faced, and if they are going to be solved they must be faced at once.
We do urge that this government take the lead in seeking the co-operation of the provincial governments, and also take the lead in suggesting that both governments seek the advice and co-operation of the coal owners and labour organizations which represent the workers concerned. We are quite convinced that over a period of time, with the right spirit, there can be developed a national coal policy which will change this situation into one where the owners and the workers concerned will be at least assured of a measure of security and reasonable remuneration.


Mr. Arnold Peters (Timiskaming):: Mr. Speaker, I should like to thank the minister for the consideration he has given to this matter in bringing it in a national fuel policy act, and in that way recognizing the part coal has played as one of our forms of national energy. We would also like to thank the minister for the consideration which has been given particularly to the Dominion Coal Company in recognition of some of the problems which have developed in sales; and we would like to ask if the government has supplied technical advice to the Dominion Coal Company with regard to getting an extended loan for the installation of the wash plant which has been widely discussed. There was some discussion to the effect that this wash plant was not economically feasible a few years ago, and we are wondering if

Maritime Coal Production Assistance Act the department has given any technical advice with regard to this matter and has cooperated with the company in looking into whether it is advantageous for the company to instal this wash plant at this time.


[Stage Direction]
Motion agreed to, bill read the second time and the house went into committee thereon, Mr. Rea in the chair.
On clause 1.
(Translation):
Armand Dumas: A few moments ago, the hon. minister answered a question which had been put to him the other day by the hon. member for Burnaby-Coquitlam (Mr. Regier) who had asked him whether the coal-producing concerns in Western Canada had applied for a loan or some loans under this legislation, and the hon. minister answered that the matter had been discussed. But his answer was rather vague and I wonder whether this question had been discussed with the western producers or whether it had been merely discussed with the dominion coal board?


Mr. Comlois:: Mr. Chairman, western operators have rather frequent relations with the dominion coal board. One of the directors of the board is in Calgary and he very often meets with the officials of coal companies. His name is Mr. Whittaker. He is one of the directors of the board and one of the experts on coal production. He meets very often with the producers and his relations with them have enabled him to make the dominion coal board aware of the wishes, intentions and projects of the concerns which have expressed on many occasions their wish to take advantage of this act which had been passed solely for the maritime provinces. This enables us to draw the conclusion that as soon as the amended legislation is passed, we will receive applications for loans from western producers and from producers in various provinces.
There are some mining operators in the three western provinces who have indicated their intention to take advantage of the act when it is passed. Of course, the dominion coal board has not yet received any application because the legislation is not yet amended.


Armand Dumas: Mr. Chairman, we are very happy-


Paul Comtois: I cannot give any more detailed information. No official request was submitted to the dominion coal board.


Armand Dumas: Mr. Chairman, I am very happy that the scope of the legislation has been broadened in order to enable producers in any part of this country to take advantage of it. But the western producers I hope will make their needs known to the dominion coal board and, in this way, we shall

be able to speed up the mechanization of coal mines in this area.
(Text):


James Roy Tucker: I do not wish to prolong the discussion, but I rise to express the hope that the Dominion Coal Company which has received so much assistance from the federal government, will make a better effort in the future than it has done in the past to supply coal to the consumers of Newfoundland.


[Stage Direction]
Clause agreed to.
Clause 2 agreed to.
On clause 3-Coal producer.
(Translation):
Armand Dumas: We are also pleased to see that those amendments to the act provided an opportunity to say that this measure will now come under the jurisdiction of the Minister of Mines and Technical Surveys, since the dominion coal board comes under his department. It is therefore natural that the application of this measure should come under his administration.
(Text) :
On clause 4-Aggregate Amounts of Loans. (Translation):


Armand Dumas: Mr. Chairman, referring to section 4, I said a few moments ago that, instead of an amount of $20 million, we would have preferred an amount of $30 million.
I find that, from 1949 to 1959, that is during the last ten years, there was an amount evaluated at $17 million spent for mechanization under that act. The government loaned about $10 million, or rather $9,998,000 dollars. That fund was exhausted, or almost so, two or three years ago.
I even think that those companies would have benefited from that legislation, if the dominion coal board had had the money in hand and could have said: "Yes, we have several million dollars at our disposal and if you submit your plans, we will help you in so far as we think that it is in the best interest of producers or of the coal industry.
I very much doubt that the additional amount of $10 million will be enough for that five year period; I am very much afraid that these $10 million will not be enough. However, I understand the minister may always come before parliament, and since members of parliament are very well disposed toward the coal industry-at least I hope so-he will be able to obtain perhaps additional amounts of money. I would deplore the fact that because no more than $10 million was considered, mechanization should be slowed down as a consequence. In my opinion, mechanization is the industry's only means of salvation.

Since we are on that point, I suggest that the coal producers should inform the population of the communities concerned of their projects, and if they have, at times, to hire fewer workers in certain coal mines, the population should be so informed, because what we want is the industry to keep producing, since it has been reported on many occasions that if a mine closes, it is very difficult to re-open it. So, it is very important, especially in Caape Breton, to maintain the mines in production.


Paul Comtois: Mr. Chairman, I thank the hon. member for Villeneuve for his remarks and suggestions.
I must add this: perhaps $10 million is not a very large amount; on the other hand, loans requested by ordinary coal mining companies average between 500, 600 and 700 thousand dollars. The greatest demand has always been from the Dominion Coal Company. Now the loan application I have mentioned was originally for $7,500,000. That was the last application received during the year, and it was that application that was turned down by the dominion coal board because it was made on the basis of 100 per cent, whereas the act states that the borrower must provide or have an equity equal to at least a third of construction costs, or of the purchase price of the business. I wish to point out that the company was not refused that amount; rather, we asked the company to make a proposal which would be acceptable and in accordance with the requirements of the act. We have told them to invest 30 per cent or 33 per cent-that is, one-third-and that we would lend them the difference.
I believe that, with $10 million, and even if a loan of about $4 or $5 million were granted to the Dominion Coal Company, it would still leave $5 million with which to satisfy to a great extent the requests that we expect will be made to us.
I must also add, Mr. Chairman, that, as far as I know, since I have been a minister, the dominion coal board has turned down no request because of lack of funds. We have never turned down a request for a loan because of a lack of funds. The funds have been recently used up by the Avon Company of New Brunswick and even then, we still had $2,000 left at that time.
It often happens that requests made to the dominion coal board cannot be accepted because they do not comply with the require-
6,	1959	5573
Maritime Coal Production Assistance Act ments or because the proposal, as it is put, is not acceptable to the dominion coal board which feels, for instance, that it is exaggerated or out of proportion with the capital, the production and the market that the company can hope to have.


Armand Dumas: Mr. Chairman, I thank the minister for giving this information to the committee. I am surprised that such a substantial request was made by the company and I hope it will revise its proposal in order to comply with the terms of the act. It is very important that this cleaning plant be built.
Now, I also read in the paper that a New Brunswick company, the D.W. & R.A. Mills Ltd., proposes to apply to the dominion coal board under this act for an amount of $2 million. I believe the company will have to devote 33 per cent of that amount to the purchase of a power shovel. Therefore an amount of $1,500,000 will be loaned to this company. The Dominion Coal Company will be asking for about $5,000,000 if they decide to carry out their project. Thus, there will be left a balance of $3,500,000 that could be used by western producers who will apply for loans under the legislation we are now considering. However, I do not wish to delay the adoption of this bill and, if the minister deems it advisable to come back before parliament, I hope that all hon. members will gladly approve the additional amount he may ask for.
(Text):


Erhart Regier: Is the minister now able to inform me about the matter I inquired into the other day. Which of the provinces asked for this amendment to the act? Was it British Columbia, Alberta, Saskatchewan or Manitoba? Which province asked for it and which mining concerns are involved in each of the provinces.


Paul Comtois: If the hon. member had been here when I made my statement a few moments ago he would have heard my answer. He will have to read it in Hansard tomorrow. I am not going to repeat it. I gave the answer to that question in the opening discussion on the bill. Unfortunately the hon. member was not here. If he insists on my repeating it, I will, but he will find it in Hansard tomorrow if he wants to read the debate.


Erhart Regier: I am very surprised that the minister is as reluctant as all that to repeat an answer that could only occupy a moment of his time.
5574	HOUSE OF COMMONS
Maritime Coal Production Assistance Act


Paul Comtois: There is no reluctance on my part at all. I have already made my statement once. If the hon. member was not here it is not my fault.


Erhart Regier: I am sorry, Mr. Chairman, but I must repeat that it would occupy only one minute of the time of the committee if the minister were to reply concerning which of the western provinces asked for this amendment to the act.


Paul Comtois: I am not going to be a bad boy. I can tell the hon. member that I gave the answer to the committee this evening. We have never received any formal application from the western provinces. In a general way they mentioned their intention and desire to take advantage of the act and their desire to see an amendment passed by the house. According to the desire they expressed, here we are with an amendment to the act. This desire was expressed by coal producers from the three western provinces, British Columbia, Saskatchewan and Alberta.


Erhart Regier: I fail to understand the minister's answer. He says he has heard no expression of opinion from the western provinces but concludes his remark by saying that he has had demands from each of the three western provinces. That is incomprehensible.


Paul Comtois: Mr. Chairman, I said that we never received any formal application or official application. Discussions were held and representations were made to one of the directors of the dominion coal board, Mr. Whittaker, of Calgary. These reports were transferred from the coal board. That is how we know that in the three provinces there will be some applicants seeking to take advantage of this act.


Erhart Regier: I have heard a number of announcements made by the Minister of Northern Affairs and National Resources in regard to the future of the coal mining industry in Canada. May I ask the minister at this time how the amendments he is offering in this bill will affect the coal mining industry in Fernie, British Columbia?


Paul Comtois: If the company wishes to improve its operations or increase the mechanization of its equipment it has only to make application to the board for a loan and the application will be considered.


Erhart Regier: That is a most inadequate answer. The minister knows full well that this company which was the most important coal mining industry in that part of the province is now defunct. The minister reveals a remarkable lack of knowledge of the coal mining enterprises in western Canada. At this I should like to ask if there is any

area in western Canada from which he has had any expression of hope that the bill would be of any assistance at all either in Alberta, Saskatchewan or British Columbia. He has now indicated that it will mean nothing in Fernie.


Charles Edward Rea: Shall clause 4
carry?


Erhart Regier: No, Mr. Chairman. I hope the minister, as a minister, will be able to indicate at least one mine in all of western Canada that is hoping to gain anything as a result of the legislation now before us.


Paul Comtois: My advisers tell me that the facts are that the Crowsnest pass coal company had two mines, one at Fernie and one at Michel. They decided to close the Fernie mine and concentrate their operations at Michel. That was their decision and we cannot interfere in their decision unless they want to reopen the Fernie mine and make an application to the board for a loan so that they can finance their new operation. That is all I can say at the present time until we receive an application and full details from the company.


Erhart Regier: I do not want to misinterpret what the minister has said but he has indicated that as far as Fernie is concerned the amendment he is now offering means nothing.


Mr. Speakman:: Nonsense.


Erhart Regier: As far as Michel is concerned, he said it may mean something.


Some hon. Members:: No.


Erhart Regier: The minister has not given any evidence at all that anyone in the whole of Canada is going to benefit from this legislation or has even asked for it. Unless the minister is able to offer some evidence that other areas outside of the maritimes have asked for the extension of the benefits of this legislation and unless other areas are able or willing to benefit, all of this is a bunch of hooey-


Some hon. Members:: Oh, oh.


Erhart Regier: -and a smokescreen. I will repeat that statement. This amounts only to a smokescreen unless the minister is able-


Some hon. Members:: Oh, oh.


Erhart Regier: A lot of hon. members are saying, "oh". May I repeat; if at least one mine can be cited by the minister that is going to continue in operation, and if one mine will indicate that it is willing to continue in operation, we are prepared to support this legislation. However, unless the minister is able to indicate that one mine has asked for

this and that one mine will be helped thereby, I see little use in this amendment.


Mr. Benidickson:: I am not too concerned about whether or not a private industry asks for anything. I am more concerned about whether or not when the state advances a subsidy it will have an advantageous application in all sections of the country. I was interested in the argument of the hon. member for Burnaby-Coquitlam and I wonder whether the minister has an illustration comparing the advantages under this legislation with, say, a mine in the western territory vis-a-vis the maritime points. Could we just compare the two to indicate what the results might be?


Joseph-Roland Comtois: Mr. Chairman, as an
example, suppose a coal operator in the west obtains a market in Japan, for instance, and in order to produce the coal to meet the requirements from Japan he wants to improve his equipment. Then he will apply to the dominion coal board for a loan. His case will be examined, discussed and studied. If the application is worth while and his request for a loan is sound and apt to be of some profit to the borrower, well, in that case the loan will be granted and everything will go through.
Of course, there is a difference between a loan and a subsidy. The hon. member for Kenora-Rainy River seems to mix up the question of subsidy with special loans. It is a totally different thing.


William Moore Benidickson: Will the minister assure us he has the feeling that this formula he proposes to the house is apt to help in the western Alberta and British Columbia regions in a similar way as it will help the maritimes?


Paul Comtois: I think so, Mr. Chairman.


William Moore Benidickson: Is he able to be more specific in his illustrations?


Paul Comtois: Nobody can tell until we have an application at least from a company.


Erhart Regier: Mr. Chairman, I understand that the Minister of Northern Affairs and National Resources assured the people of Alberta very recently that there was a new deal afoot, and that the coal miners and the operators of the coal mines had something to expect; that there would be something forthcoming at the present session of parliament. I now realize that the Minister of Mines and Technical Surveys has nothing new to offer. He is simply amending the act to extend it to all areas of the nation, and yet the mining operators of British Columbia, Alberta or Saskatchewan have not asked for the benefits. The minister is unable to cite any instance at all where those mining operators have asked
6. 1959	5575
Maritime Coal Production Assistance Act to be included under the benefits of the act, and yet he is asking us to agree to amend the act. I imagine that he and his government are going to attempt to tell the people of the nation that they have now extended the benefits of this act, which used to apply only in the maritimes, to the whole of the nation. The minister has not yet offered one iota of evidence that this legislation has been asked for, or that it will be used by any of the mining operators in the three western provinces, or that it is actually going to be of any use at all. I ask the minister to explain why this house ought to pass this legislation at this time.


Michael Starr: The hon. member was not here when he explained it.


William Arnold Peters: Mr. Chairman, the amendment appears to be justified to the extent that the dominion coal board and the committee have now seen fit to recommend $4,500,000 for a new washing plant for the Dominion Coal Company. It is my understanding that this matter was raised on previous occasions in the dominion coal board and it was felt at that time that this particular plant was not economically justified.
The question has been raised, what is it going to do for other areas? There are other sections of the coal industry that are in the same difficulty. There is the problem of the remodernization of equipment of all the coal mines in Canada. Many of them are faced with the serious problem of loss of markets, increased costs of production and decreased sales. Particularly in view of the fact that United States production of export coal has increased by large amounts, is the $6,500,000 that we have put in sufficient to modernize other companies that are finding it necessary to modernize to compete not only with the United States exports but with the Dominion Coal Company.
The minister was asked a fair and reasonable question in regard to the matter in British Columbia because a good example is the A. V. Roe Company which owns a major part of the coal industry in Canada. They have a large plant in the maritimes and they have been willing to close one particular plant in British Columbia to allow another one of their own operations to exist. I think we should be assured that the $6,500,000 is going to be enough to modernize the other mines in Canada along with the $4,500,000 and the allowances that this bill makes. I have no objection to that at all. I think this bill is necessary. If we are going to pass this amendment to take care only of some of the problems of the Dominion Coal Company, then I think there is no need to change the name or to give the impression
5576	HOUSE OF
Maritime Coal Production Assistance Act that this is a very important bill. We must be assured that there is enough money.
I think it is absolutely necessary for the minister and his department to supply the facilities of his department in technical research and whatever is involved in the technical part of the department so that assistance can be given to many of the operators who are now finding it impossible to continue operations. This is true in Alberta and in Saskatchewan and it certainly is true in British Columbia, and it is proved by the fact that a number of the mines are closed down. I think we would still like an answer to some of these questions, so may I call it ten o'clock, Mr. Chairman?


John Whitney Pickersgill: I wonder if we could not complete this bill tonight? We would be quite prepared to go ahead.


Erhart Regier: May I say that if the minister will indicate how, in any little way, this will help British Columbia, Alberta or Saskatchewan, we might be prepared to let this go.


William Moore Benidickson: That is the very question I raised, and I associate myself with the hon. member for Burnaby-Coquitlam. I think we all want to co-operate in this respect.


Paul Comtois: Mr. Chairman, it is not very easy to tell in advance what may happen in three, four or five years. Representations have been made to the dominion coal board by different companies in the west, and at the same time we have this application from the Dominion Coal Company. The board has calculated that the amount of $10 million would meet the applications we expect in the next few years, maybe one, two, three or five years at the most. We cannot foresee events and give the details of what might happen next year or the year after.
We are presenting a bill for $10 million. This application of the Dominion Coal Company has not been decided. We know this is the maximum that can be granted, and that is all we can say at the present time. Who can tell what the situation will be in so far as coal is concerned within the next year or two? We are doing whatever is possible. The dominion coal board is studying the whole case. They have their officials looking over the matter in the western provinces and in the maritime provinces. We are doing our best. We ask for $10 million additional and will try to meet the requirements at the present time.

May I say that the committee should be satisfied with the explanation I am giving. I am very frank with the committee in giving this, and very sincere.


William Moore Benidickson: The minister is referring to a regional problem. Certainly we are all very sympathetic to this problem. The minister, I am sure, would be willing to make it known to the committee that if a similar situation existed elsewhere on a specific basis he would use his best offices to do as he has done in this case and provide some assistance for that situation.


Paul Comtois: That is exactly what we intend to do.


Erhart Regier: May I say this: The minister has asked for money under this amendment, and while we are not averse to that if this will help the coal mining enterprises in the maritimes, at the same time he is making a pretense that this will help the coal mining enterprises all over the Dominion of Canada. He has not yet presented any evidence whatever that this will help the coal mining enterprises in British Columbia, Alberta or Saskatchewan. Therefore, may I call it ten o'clock.
Progress reported.



BUSINESS OF THE HOUSE

John Whitney Pickersgill: I wonder if the house leader can give us any new or added business for tomorrow?


Howard Charles Green: Tomorrow, we shall commence with this debate and then take item No. 9, the second reading of the crop insurance measure; item No. 10, second reading of the farm credit measure; then, items Nos. 3 and 8-


William Moore Benidickson: What is No. 3?


Howard Charles Green: -having to do with agreements between the governments of New Brunswick and Nova Scotia and the government of Canada; then, item No. 12, the resolution approving the convention on the nationality of married women; item No. 14 dealing with the international wheat agreement, and item No. 5, the amendment to the Public Lands Grants Act.


[Stage Direction]
It being eight minutes after ten o'clock the house adjourned, without question put, pursuant to standing order.
[Stage Direction]
Tuesday. July 7, 1959

[Stage Direction]
Twenty-first report of standing committee on miscellaneous private bills-Mr. McCleave.
Third report of standing committee on mines, forests and waters-Mr. Murphy.