1960-06-14

[Stage Direction]
(Translation) :
Mr. R. J. McCleave (Halifax) presented the tenth report of the standing committee on miscellaneous private bills, in French and in English.
(Text):

Right Hon. J. G. Diefenbaker (Prime Minisfer):: First, Mr. Speaker, in order to assure that the house will have the latest information with regard to a letter written to me by Chairman Khrushchev and the reply, I wish to table the letter and the reply and, with the leave of the house, to have both printed as an appendix to Hansard.


Mr. Speaker:: Does the house give consent to the printing of the tabled documents as an appendix to today's Hansard?


Some hon. Members:: Agreed.


Mr. Pearson:: Can the Prime Minister give us some indication of what the letter contains?


John George Diefenbaker: I think the best procedure is for me to provide the hon. gentleman with copies. Then after perusal, possibly tomorrow, he might have some questions to ask respecting the exchange of correspondence. If that course is agreeable it will be followed.
[For correspondence referred to above see appendix]



BUSINESS OF THE HOUSE


John George Diefenbaker: There are several matters to which I wish to refer. The first is this. I undertook to place before the house the general plan of the legislation to be introduced before this session ends.
The house, of course, is fully aware of the various items set forth in the speech from the throne on January 14, 1960. Generally speaking I think all the items referred to therein will have received the attention of the house before the session concludes, with one exception; that is the undertaking to bring in amendments to the Expropriation
Act. The house will recall that an action was tried before Mr. Justice Thorson regarding the general field of expropriation, and that judgment laid open to perilous possibilities the expropriation proceedings which had been taken throughout the years. However, the Supreme Court of Canada reversed the judgment of Mr. Justice Thorson; therefore there is no immediate need at this session to proceed with the amendments to the Expropriation Act.
Now with respect to the matters yet to be dealt with; No. 1-and in numbering them in this way I do not, of course, undertake that they will be brought forward in this order- the bill of rights; No. 2, the act to set up the department of forestry; No. 3, the amendments to the Canada Elections Act; No. 4, the amendment to the Freight Rates Reduction Act made necessary by the probability that the royal commission on transportation will not have been able to report prior to the expiry date of the legislation now in effect, that date being July 31; No. 5, the Civil Service Act; No. 6, the Civil Service Superannuation Act.
In addition to these there are a number of matters of legislation now before the other place which will have to be dealt with here as well. There is the trade treaty with Russia; amendments to the Canada Shipping Act; amendments to the Criminal Code, and a bill respecting the international boundary. As I say, the four last named are now before the other place.
In general I think that covers the various matters which will be brought before the house this session in addition, of course, to such matters as are already on the order paper.
There is another matter on which the house desires information, and that has to do with the private bill on capital punishment introduced by the hon. member for York-Scar-borough (Mr. McGee). I am not going into the details of the discussion with regard thereto. I will, however, refer to one or two references in Hansard. On March 11, as reported on page 2012, a question was asked about what was going to be done in this connection. At that time the house leader said:
The matter is under consideration, but I know the house is anxious to press on with some of the legislation that is on the order paper.
He added:
This will not prevent subsequent consideration of the debate on capital punishment at a later date.

Business of the House
Then on March 21 the hon. member for Laurier asked me when the government intended to make arrangements for the resumption of the debate on the private bill concerning capital punishment now before the house. There was some discussion regarding certain statements made outside the house by hon. members, and my reply that day, as will be found on page 2252, was:
At the present time the order paper contains a number of matters which require attention. When these matters have received consideration then, as the result of consultation among the house leader, the hon. gentleman and a representative of the C.C.F., a determination in this regard can be made.
While there were other references made on other occasions, I feel that those to which I have referred are sufficient to indicate a summary of the situation.
The interpretation given to the words I used in the house in connection with this matter was that a further day would be allowed or provided for. That being so, while there is much yet to be done, I feel the proper course to follow would be this. Consultation having taken place among the leader of the house, the hon. member for Laurier and the hon. member for Assiniboia, if a motion made later on in the session to provide a private members' day were accepted by the house, then an opportunity would be provided to deal with this and other matters that are appropriate to a private members' day. In other words, the undertaking given is being carried out. The house will have an opportunity on a private members' day later in the session, when we have removed from the order paper many of the things which require to be done, to discuss the bill of the hon. member for York-Scarborough.


Lester Bowles Pearson: We have reached June 14, and we began on January 14. The house has been in session now for five months and we have, on this five months' anniversary, received from the Prime Minister an indication of the work that remains to be done, including some important pieces of legislation which are not yet on the order paper. That is its own commentary on the manner in which the business of this house has been conducted.
May I mention first what the Prime Minister dealt with last. With regard to the private member's bill on capital punishment, the Prime Minister has indicated-and I have no quarrel whatever with the suggestion -that, if it is desired, a private members' day may be set aside on which this matter which has aroused so much interest in the country can be further discussed. I think
[Mr. DiefenbakerJ
the expression used by the Prime Minister was so that it could, if possible, be dealt with.
I do not know whether the Prime Minister had in mind using the expression "dealt with" coming to a decision by a vote of the house on this matter. If so, I am sure the Prime Minister will agree, as he has already indicated, that that decision can only be reached-in my view at least-if all those hon. members who wish to speak on this matter have had the same opportunity to do so as has been given to those who have already spoken. Perhaps, therefore, it will not be possible in a day to come to a decision on this matter, and possibly during the recess-if we do not run into the next session of parliament-the government may desire to give consideration to what action, if any, the government itself should take in a subsequent session.
So far as the business of the house is concerned, the Prime Minister has pointed out that there are seven or eight important pieces of legislation yet to be introduced, including a bill of rights. There are also, as I calculate, ten or eleven pieces of legislation in various stages of progress in the house at the present time. If these matters are to be given the consideration they deserve-and so far as we on this side of the house are concerned we will do our best to see that they get that kind of consideration-it is obvious that a good many weeks will be required before they can be dealt with. I am not complaining about that, but I think we should be quite aware of the situation. Consideration of all these items, some of which will require careful and long consideration, will surely mean that we cannot possibly finish the business of this house before the end of July.
Quite apart from the legislation, the list of which I have before me, including two or three new items the Prime Minister mentioned this morning, we have various committees sitting. Indeed, seven committees are meeting today and I believe ten committees met yesterday. This afternoon when we will presumably be discussing one of the most important subjects any Canadian parliament could discuss, the amendment of our constitution, there will be three committees meeting which will make it impossible for some hon. members to participate in that discussion. There is one important committee that has not yet even been set up, the committee on broadcasting. The committee considering the Civil Service Act amendments will require time to give these matters the consideration to which they are entitled. It is obvious that the work of this committee will take some time. There will be witnesses to be heard in the discussion of the amendments to the

combines act. I hope that even in the light of the experience that has already taken place the defence expenditures committee will hear witnesses on that subject.
So far as the estimates are concerned we have finished one department, agriculture, except for the supplementaries. That is the only department of government the estimates of which have been concluded at the present time. I mention this so that no one will be in any doubt as to the amount of time that will be required this session to give the business of government the consideration to which it is entitled, and to carry on that business in a careful, methodical and efficient way.
In those circumstances we can look forward, I believe, to a very active and I hope constructive summer.


Mr. Hazen Argue (Assiniboia):: Mr. Speaker, the Prime Minister outlined a very elaborate program that must be dealt with before the conclusion of this session. It has always seemed to me that it would help expedite the procedure during any session if we could have this kind of tabulation at the beginning so we would know at an early date the things that we would necessarily be dealing with during the session. As to a number of items, we have been uncertain whether the government was going to proceed with them or whether they would be dropped.
The Prime Minister has said that he is quite agreeable to having the debate on capital punishment come forward for a further day of debate. We in the C.C.F. would like to see this bill come to a vote, and we are quite prepared to give consideration at any time to a motion to provide for an additional day's debate on the bill to abolish capital punishment in the hope that a vote could be reached, and that the result of the vote would be to have the bill passed at this session.
I think the duty of the members of the House of Commons is to deal efficiently and carefully with the business as presented to the house. It is obvious from the list that has been given this morning and from the statement of the Leader of the Opposition that if there is no adjournment of this session, to be resumed at a later date, we shall be here for the summer. Now, a summer in Ottawa dealing with parliamentary duties puts many members of the House of Commons at a very great disadvantage. Many members have their families a long way from Ottawa; children are out of school during July and August, and this is the time when hon. members like to be with their families. Therefore it is a great sacrifice that members must make if the session continues.
79951-0-308
Business of the House
Those of us who have had the experience of sitting in Ottawa during the summer months know that summer conditions in Ottawa, with the house meeting morning, afternoon and evening, to say the least are not conducive to the health of members of parliament. We feel that there is growing evidence to support the suggestion of the C.C.F. party that parliament would be enabled to deal more adequately with our legislation if we had a summer adjournment and came back later this year to conclude the remainder of the business of this session. However, with the Leader of the Opposition, we shall deal with each piece of legislation as it is presented to the house in a way that we think is in keeping with our duties.


John George Diefenbaker: Mr. Speaker, I thank both hon. gentlemen for their ideas and the expression of their views. When the hon. member for Assiniboia says he could wish that such an elaborate program had been revealed earlier, I simply point out to him the fact that each and every portion of that program is set forth in the speech from the throne with the exception of the freight rates legislation, which could not have been anticipated in January last.


Lester Bowles Pearson: The speech from the throne is not the order paper.


John George Diefenbaker: I agree with both hon. gentlemen that the proper responsibility of the House of Commons is to examine each piece of legislation carefully and exhaustively. All I can say in that regard is that I like parliament to be sitting, because it is very helpful to get the views of hon. members and to understand the thinking of Canadians as a whole. I think that is one of the reasons I suggested the setting up of a committee on rules, to the end that hon. members would be able, through that committee, to bring forward recommendations and suggestions which, without in any way limiting the first responsibility of the House of Commons for a careful examination, will assure efficient and effective discussion taking place without repetitious utterances which are not always synonymous with a careful examination.


Mr. Hellyer:: Not even new rules would help a government like this one.


Some hon. Members:: Oh, oh.


Mr. Speaker:: Order.


John George Diefenbaker: I know I had difficulty in controlling myself when the hon. member for Assiniboia was speaking, but I listened to his observations with attention because we have not heard from him lately. Naturally I listened with the fullest attention.

Business of the House
Mention was made of the number of committees, and certainly we have a large number of committees sitting. I think it could be said for the establishment of these committees, on a more extensive scale than ever before, that they have been effective and thorough and that the members of the various committees are entitled to the commendation of the house as a whole. I know it is difficult when important matters come before the house for committee members to be always present. But I hope, as I said earlier, that when such matters of great importance are before the house the committees, as a whole, would agree to the necessary measures of adjournment to the end that those members of the committees who wish to participate in those discussions would be given the opportunity to do so.
That is all I intend to say. I feel sure that if we apply ourselves with energy, without in any way diminishing or abdicating our responsibility, we shall be able, before this session concludes as a continuous session, to have dealt with all the matters to which reference has been made.


Mr. G. J. Mcllraiih (Ottawa West):: I wonder whether I might ask the Prime Minister a question arising out of his remarks. I should like to refer particularly to his remark about liking parliament and his later remark about the committee work of the house. How does he reconcile his liking of parliament with the fact that he has so arranged the business that three very important committees, namely those on banking and commerce, agriculture and colonization and railways, canals and telegraph lines will be sitting today while the House of Commons itself is debating an amendment to our constitution, a most important matter in which many hon. members are very much interested? Yet they will be expected to attend committee hearings and miss the debate in the house.


John George Diefenbaker: Of course the answer is obvious. The committees decide for themselves when they will sit.


Some hon. Members:: Oh, oh.


Paul Theodore Hellyer: Did the defence expenditures committee decide for itself?


Mr. Martin (Essex East):: Mr. Speaker-


Mr. Speaker:: Order; I suggest that further questions be reserved until orders of the day are called, which I shall do now, if there is nothing further under motions. The hon. member for Essex East.
On the orders of the day:


Paul Joseph James Martin: Does the Prime Minister not recall saying that as Prime Minister and as leader of the house he would see to it that committee meetings were not held in a manner and at a time that would prevent members from discharging their responsibilities in this house? And if he recalls that, will he not agree that his answer to the hon. member for Ottawa West is not consistent with his earlier declaration?


John George Diefenbaker: The paraphrase by the hon. member of the answer I gave is one that I do not accept. I have no authority, as I pointed out, to interfere in any way with the committees. I expressed the hope that there would be, in no way, any interference and that committees would realize that when important matters arose in the house there would be justification for not sitting on such occasions. However, the determination of that matter is for the committees. I do not know of any objection that was raised-it has not been brought to my attention-to any sitting of a committee today, the date for this debate having been fixed last week, because such a sitting would in any way collide with the fact we have today a debate on an amendment to the constitution.


Mr. Robichaud:: On a question of privilege, Mr. Speaker: I did raise an objection in the committee on mines and technical surveys yesterday.


George James McIlraith: I would like to direct a question to the Prime Minister based on a reference he made earlier to the business of the house, and in particular to a statement or commitment he gave to the house on February 13, 1959, when he said this, as reported on page 990 of Hansard:
X for one will say unequivocally that if at any time there is any action taken that would deny members of the opposition a fair opportunity of discharging their responsibility-


Mr. Speaker:: Order. It seems to me the hon. member is endeavouring rather to debate the question than to ask a question. If he has a question asking for information of fact and can put it, he is in order.


George James McIlraith: My question is as to the conduct of the business of the house with particular reference to today's business, and I think that is an appropriate subject.


Mr. Speaker:: It would be appropriate if the hon. member asked the question without reading from Hansard.


George James McIlraith: Then I will put my question in this way. Why will the Prime Minister and the leader of this house not honour the commitment he gave-


Mr. Speaker:: Order. The hon. member's question is an argumentative one and does not seem to me to be appropriate either to the business of the house or to orders of the day.


George James McIlraith: Then, Mr. Speaker, I would ask the Prime Minister whether it is his intention to carry out the commitment he gave to the house on February 13, 1959, as reported on page 990 of Hansard and repeated on February 25, 1960, as reported on page 1435 of Hansard.


John George Diefenbaker: Mr. Speaker, my commitments are carried out. The statement which I made then I do not alter in any way, except that I remember how much I was criticized for having made it. What I meant to convey, and still do, was that if at any time there is brought to my attention any unfairness in so far as a meeting of a committee is concerned which denies to hon. members of this house their full opportunity to be in this house, I shall, without in any way interfering, which I have no right to do, certainly bring to the attention of the committee concerned the fact that injustice should not be allowed. There has not been any injustice to anyone as far as I am informed.


George James McIlraith: In the light of the Prime Minister's answer to my earlier question, will he now arrange to have it made possible for hon. members of this house to be present for the debate on the amendment of the constitution today?


John George Diefenbaker: Mr. Speaker, again I say that I have no power to do that. If there has been any injustice to anyone by reason of meetings of committees taking place and denying hon. members the opportunity to be in the house to participate in those matters which concern them, I am sure the committees will assure and maintain the right of members to that opportunity.



ROYAL CANADIAN AIR FORCE


[Stage Direction]
On the orders of the day:
Mr. H. W. Herridge (Koolenay West):: wish to address a question to the major general, the Minister of National Defence. In view of the article in this morning's Globe and Mail entitled "Begone Drab Nights, R.C.A.F. Issues 118-Page Guide to Fun and Games", which deals with Royal Canadian 79951-0-308i
Inquiries of the Ministry Air Force pamphlet No. 76 and such games as blindfolded handshakers, barnyard din, the hot-rod race, etc., and in view of the recent publication of a similar pamphlet by the United States armed forces, would the minister inform the house whether the issuance of this pamphlet indicates the increasing influence of the United States air force over the training, procedures and practices of the Royal Canadian Air Force?
Hon. G. R. Pearkes (Minister of National
Defence): The answer, Mr. Speaker, is a firm and emphatic denial. There is no increasing influence over the Royal Canadian Air Force by the United States air force. It might interest the hon. gentleman to know that this pamphlet was published in 1958. It is practically a rewording of a similar booklet which was published by the director of physical education and recreation of the Manitoba department of health and welfare. If the United States air force has recently issued a publication, as suggested by the hon. member, based on this pamphlet, then we are very pleased to co-operate with the United States air force.


Herbert Wilfred Herridge: May I ask a supplementary question, Mr. Speaker. In view of the minister's concluding remarks, in which he said that the United States armed forces have recently published a pamphlet similar to ours, would the minister table pamphlet No. 76 in order that we may see whether it contains similar instructions on how to serve drinks and how to wash the dog?



PUBLIC SERVICE


[Stage Direction]
On the orders of the day:
Mr. Azellus Denis (St. Denis):: May I ask
a question of the Postmaster General. Is the Postmaster General aware that the Canadian postal employees association, representing 10,000 postal workers, is totally dissatisfied with the latest salary adjustments, according to reports in yesterday's newspaper? If so, does he intend satisfying these workers as he promised to do when he was a little, teeny-weeny member of parliament?


Hon. W. M. Hamilton (Postmaster General):: The newspaper clipping from which the hon. member got his information, a copy of which he sent to me just a moment ago, indicates that this information is drawn from a letter written by this association to the Prime Minister. My job is to deliver the Prime Minister's mail, not to read it.

Inquiries of the Ministry INQUIRY AS TO APPOINTMENT OF QUEEN'S PRINTER
On the orders of the day:


Azellus Denis: Mr. Speaker, may I ask a question of the Prime Minister. Has the Prime Minister put on the government agenda the nomination of the Queen's printer before the end of the session?


John George Diefenbaker: Mr. Speaker, I am very pleased to see that the hon. member has now widened his field of operations, and I will just let him in on a secret. The answer is in the affirmative.



EXTERNAL AFFAIRS


[Stage Direction]
On the orders of the day:
Lester Bowles Pearson: May I ask the Prime Minister whether he will confirm or otherwise a report in this morning's press that the secretary general of NATO is coming to Ottawa to discuss with the Prime Minister a proposed summit conference of NATO members?


John George Diefenbaker: I noticed that report, Mr. Speaker. Mr. Spaak is coming to Ottawa to discuss in general problems in connection with NATO, a system of consultation which the hon. member knows was a regular course during the days he occupied the position of secretary of state for external affairs and which has been extended in the last couple of years under this administration. He comes here for the purpose of discussing those matters which are of interest to the members of the North Atlantic Treaty Organization. In the course of those discussions I am sure there will be references and representations regarding the extension of the field of consultation. I shall certainly bring to his attention what I believe is the need, preceded by the necessary and complete discussion among the experts and the officials, for a NATO meeting of heads of state.


REPORTED CLOSING OF DEPARTMENTAL PRESS OFFICE
[Stage Direction]
On the orders of the day:
Hon. Lionel Chevrier (Laurier):: I wish to direct a question to the Secretary of State for External Affairs. Can the minister confirm the report appearing in this morning's Globe and Mail to the effect that the press office in the Department of External Affairs has been closed? If so, what arrangements, if any, are being made to take over the duties formerly provided by this office?


Hon. Howard C. Green (Secretary of State for External Affairs):: There has been a minor adjustment in this branch of the department, but that adjustment makes no change in the furnishing of information.


Lionel Chevrier: I have a supplementary
question. The report indicates that Mr. Arthur Blanchette will no longer be authorized to answer reporters' inquiries, and that henceforth reporters' questions will be answered by the offices of external affairs minister Howard Green and Prime Minister John Diefenbaker. The supplementary question is this. Are these two offices being linked together in so far as this press bureau is concerned?


Howard Charles Green: That does not mean any real change. Statements with regard to policy have not been made by this office for a long time.


DISARMAMENT
[Stage Direction]
On the orders of the day:
Paul Joseph James Martin: I should like to direct a question to the Secretary of State for External Affairs. In view of the statement attributed to General Burns, as reported in the New York Times on Sunday last, and also the statement attributed to Mr. Moch, the delegate for France, yesterday in the session of the disarmament conference, that no member of the western group would take an independent position in the matter of disarmament, would the minister make a statement regarding those observations and more particularly on the discussions at the disarmament conference itself?


Howard Charles Green: Perhaps that matter
could be best dealt with tomorrow when we are dealing with the correspondence which was tabled today.



AGRICULTURE


[Stage Direction]
On the orders of the day:
Hazen Robert Argue: I should like to direct a question to the Prime Minister. Can the Prime Minister inform the house what progress has been made in arranging a meeting between the government and the liaison committee of western farm organizations to discuss western farm income deficiency?


John George Diefenbaker: I think the question would be more appropriately answered by the Minister of Agriculture.


Hon. D. S. Harkness (Minisier of Agriculture):: I have nothing definite I can tell the house at the present moment on that matter.


Hazen Robert Argue: Can the minister say whether negotiations are taking place for a meeting at an early date, as indicated by the Prime Minister on June 9?


Douglas Scott Harkness: No negotiations are taking place. Several of the separate member organizations of the western liaison committee have written asking for this meeting. A date has not yet been set for it.


Hazen Robert Argue: I have a further supplementary question. Is the government prepared to meet the liaison committee?


Douglas Scott Harkness: Mr. Speaker


Mr. Speaker:: In view of the previous answer it seems to me that the question becomes hypothetical.


Hazen Robert Argue: There is no information in the minister's answer as to whether the government is prepared to meet the delegation, and the Prime Minister said this was the case.


Douglas Scott Harkness: I think it has been made clear in this house on several occasions in the past, Mr. Speaker, that the government is willing to meet organizations of this sort at any appropriate time when the matter can be arranged and any useful discussion can be held.



HOUSING


[Stage Direction]
On the orders of the day:
Mr. O. J. Godin (Nickel Belt):: I wish to direct a question to the Minister of Public Works. It arises out of a telegram I have received from the home builders association in an area in northern Ontario. I presume the minister has received a similar telegram. In view of the fact that only six loans have been made since January 1, and the fact that unemployment is considered to amount to 50 per cent in the building trades, will the minister consider making home loans available immediately so these may bring about a certain amount of relief from the present condition?


Hon. D. J. Walker (Minister of Public Works):: I want to thank the hon. member for this question and to assure him that the matter of loans is under our constant consideration, particularly in his area. If any announcement can be made I assure the house that it will be made.
Inquiries of the Ministry


Osias.-J. Godin: I have a supplementary question. Owing to the fact that if the parade of homes is to be held in the first week of September the homes should be started now, would the minister care to tell the house the decision before the end of the week?


David James Walker: I make the same answer that I made to the first question, Mr. Speaker.



SUDBURY-REPORTED REFUSAL OF INSURANCE COMPANY LOANS

[Stage Direction]
On the orders of the day:
Mr. D. R. Mitchell (Sudbury):: Mr. Speaker, I have a question for the Minister of Public Works. Following correspondence received by me from the minister advising that a certain insurance company is prepared to lend money for building purposes, will he comment on a telegram received by the building trades council in Sudbury to the effect that no loans by the Canada Life Assurance Company have been considered in this area?
Hon. D. J. Walker (Minister of Public
Works): I will be happy to discuss this matter with the hon. member at any time to suit his convenience.



CRIMINAL LAW


[Stage Direction]
On the orders of the day:
Mr. D. M. Fisher (Port Arthur):: I should like to direct a question to the Minister of Justice. It stems from the decision of a Quebec judge that the book "Lady Chat-terley's Lover" is obscene, a decision based upon the 1959 change in the Criminal Code. Has this decision the effect of banning the book throughout all of Canada as well? If not, by what stages may such a ban come into effect?


Hon. E. D. Fulton (Minister of Justice):: That
is too complicated a question to answer on the orders of the day, Mr. Speaker. If the hon. member will look up the debate we had on this matter last year I think he will find that the matter was discussed in detail there, and will see the answer to the question he has asked.


Herbert Wilfred Herridge: I wish to ask the Minister of Justice a question. Does the minister consider himself to be an expert on what constitutes obscene literature?


Edmund Davie Fulton: No, Mr. Speaker. I leave that distinguished position to my friend the hon. member for Kootenay West.

Inquiries of the Ministry



DOMINION-PROVINCIAL RELATIONS INQUIRY AS TO FEDERAL GRANT TO ONTARIO

[Stage Direction]
On the orders of the day:
Paul Joseph James Martin: I should like to ask the Minister of Finance a question on this agreeable and beautiful day. In view of the fact that the federal-provincial committee, sometimes known as the ministers' seminar or study group, met yesterday, and that the distinguished premier of Ontario is now visiting Ottawa-


Some hon. Members:: Hear, hear.


Paul Joseph James Martin: I cannot believe that applause is for me, Mr. Speaker. In view of all these things, may I ask the minister if he is in a position to state whether the federal proposals to the provinces will provide for the additional $100 million so frequently asked of this government by the distinguished premier of Ontario?


Hon. Donald M. Fleming (Minister of Finance):: I am happy, Mr. Speaker, to say that I am in a position to confirm the fact that the federal-provincial continuing committee on fiscal questions met in this city yesterday and is still meeting today. I expect their meeting will conclude this afternoon. I am also happy to be in a position to confirm the fact that the premier of Ontario is visiting Ottawa today.


Paul Joseph James Martin: I have a supplementary question. I am sure the minister has forgotten what the question was. Will he indicate, while the premier of Ontario is in Ottawa, whether we have approached the time when he may expect some answers to his request for this additional sum of money from the federal government?


Donald Methuen Fleming: I am happy to be in a position to confirm the fact that the federal-provincial conference of June 25, 26 and 27 is approaching.


Paul Joseph James Martin: June?


Donald Methuen Fleming: July.



INQUIRY AS TO FINAL PAYMENT FOR

[Stage Direction]
1958-59 crop
On the orders of the day:
Hazen Robert Argue: I would like to direct a question to the Minister of Trade and Commerce. Can the minister report to the house the results of his conversation with the Canadian wheat board yesterday as to the amount of the final payment on last year's crop, and as to when this final payment will be made?


Hon. Gordon Churchill (Minister of Trade and Commerce):: If everything is settled satisfactorily an announcement will be made in the house tomorrow dealing with the final payment and the time at which the cheques will be issued.



INDIAN AFFAIRS


[Stage Direction]
On the orders of the day:
Hon. J. W. Pickersgill (Bonavisia-Twil-lingale):: I wonder whether the Minister of Citizenship and Immigration is in a position to answer the question I asked her about the locatee on the Sarnia Indian reserve?


Hon. Ellen L. Fairclough (Minister of Citizenship and Immigration):: Mr. Speaker, I will have an answer for the hon. member tomorrow. I received an answer but I did not think there was sufficient information in it, and I intend giving the hon. member a full answer.


John Whitney Pickersgill: I hope that when the hon. lady answers she will be able to assure the house-and I am asking now if she can-that no locatee will be dispossessed until he is fully paid.



CUSTOMS TARIFF

Donald Methuen Fleming: the third reading of Bill No. C-74, to amend the Customs Tariff.
Motion agreed to and bill read the third time and passed.



EXCISE TAX ACT

Donald Methuen Fleming: the third reading of Bill No. C-73, to amend the Excise Tax Act.
Motion agreed to and bill read the third time and passed.



ESTATE TAX ACT

[Stage Direction]
Hon.	Donald	M.	Fleming	(Minister	of
Finance) moved the third reading of Bill No. C-65, to amend the Estate Tax Act.
Motion agreed to and bill read the third time and passed.


[Stage Direction]
Hon.	Donald	M.	Fleming	(Minister	of
Finance) moved the third reading of Bill No. C-69, to authorize the provision of moneys to meet certain expenditures of the Canadian National Railways system.
(Mr. Fulton.]

Motion agreed to and bill read the third time and passed.


John George Diefenbaker: That a humble address be presented to Her Majesty the Queen in the following words:
To the Queen's Most Excellent Majesty:
Most Gracious Sovereign:
We, Your Majesty's most dutiful and loyal subjects, the commons of Canada in parliament assembled, humbly approach Your Majesty, praying that you may graciously be pleased to cause a measure to be laid before the parliament of the United Kingdom to be expressed as follows:
An act to amend the British North America Act, 1867.
Whereas the Senate and commons of Canada in parliament assembled have submitted addresses to Her Majesty praying that Her Majesty may graciously be pleased to cause a measure to be laid before the parliament of the United Kingdom for the enactment of the provisions hereinafter set forth:
Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows:
1.	Section ninety nine of the British North America Act, 1867 is hereby repealed and the following substituted therefor:
"99. (1) Subject to subsection two of this section, the judges of the superior, district and county courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
(2) A judge of a superior, district or county court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy five years, or upon the coming into force of this section if at that time he has already attained that age."
2.	This act may be cited as the British North America Act, 1960, and the British North America Act, 1867 to 1952, and this act may be cited together as the British North America Acts, 1867 to 1960.
3.	This act shall come into force on the first day of September nineteen hundred and sixty.
He said: Mr. Speaker, in rising to move that a humble address be presented to Her Majesty I wish to summarize the nature of the address and point out at once that later on during the course of this debate, which I trust will be carried on by the Minister of Justice (Mr. Fulton), an amendment will be asked of the house in respect to the last paragraph, section 99, subsection 3, to which I will make detailed reference in a moment.
I begin by pointing out that section 99 now reads as follows:
-the judges of the superior, district and county courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
Amendment to B.N.A. Act
The change, of course, is in respect to those courts mentioned-superior, district and county courts-to the effect that judges of those courts shall cease to hold office upon attaining the age of 75 years or upon the coming into force of the section if at that time they have already attained that age.
I wish to point out immediately that there is nothing unusual in the course being followed in connection with this address. In 1906, in the revised statutes, legislation respecting judges of the Supreme Court of Canada provided for no retirement age. Then in 1927 an amendment was made to the Supreme Court Act and also to the Exchequer Court Act which in effect was similar to the one being requested of the house today. As hon. members know, in the original constitution of those courts there was no provision for retirement on the basis of age, and on March 25, 1927, an amendment was brought before the House of Commons which read:
Provided that each judge whether heretofore appointed or hereafter to be appointed shall cease to hold office upon attaining the age of 75 years, or immediately, if he has already attained that age.
I feel that this legislation which we now introduce is exactly on a par with the legislation which was introduced in 1927 amending the Supreme Court Act. There was some discussion in the House of Commons at that time regarding the applicability of the legislation to existent judges, but it was answered by the then minister of justice. When the legislation found its way to the other place there was no discussion there of any consequence. The motion in the Senate was moved by Right Hon. Raoul Dandurand. There was some question raised by one of the opposition senators to the effect that the legislation applied to existent judges. He said he himself took no objection whatever, but there were one or two of his colleagues who would like to discuss the matter. However, they never did discuss it, and two days later the legislation was passed and came into effect bringing about a change respecting the two highest courts in the country which is now asked for in so far as the courts covered by this address are concerned.
I realize that it is always a matter of interest that we in Canada, an independent country within the commonwealth, have not yet secured the right to amend our own constitution. Endeavours have been made throughout the years; the subject has been discussed over and over again. To me it is a political paradox and inconsistent with Canada's status that Canada should be required to secure its amendments to the constitution, other than those amendments which come within the exclusive authority and jurisdiction of the federal parliament, by an

Amendment to B.N.A. Act
address being taken to the mother of parliaments at Westminster. But we have no other course open to us, for up to the present time it has been found difficult if not impossible to secure agreement with the provinces as to the means whereby the authority to amend Canada's constitution shall be vested in the parliament of Canada with the approval or co-operation of the provinces as determined by agreement.
For that reason-and it is not because the United Kingdom parliament is anxious to retain its power or its authority-the change has not been made. I reiterate, it is because Canadians have been unable to agree on a method of amendment that would be generally acceptable. Indeed, in so far as the other countries of the commonwealth are concerned-the British commonwealth or the old commonwealth, whichever term you choose to use-Canada is the only country which has no provision made for the amendment of its own constitution.
To date there have been 17 occasions since 1867 when amendments to the British North America Act have been made. The question as to whether the consent of the provinces is or is not requisite does not have any application to the present motion, for all the provinces have agreed on the amendment. Indeed, each and every one of them has given complete support to the provision that the judges of these courts-the judges of the superior, district and county courts-should retire at the age of 75 years. Incidentally, all parts of the world which recognize the parliamentary and judical system have accepted this age as an appropriate one at which judges should retire.
I have mentioned the various occasions upon which this procedure has been used, and I think it would be of interest that I should refer to them in general. Each and all of the amendments to date have been as the result of an address or resolution, either joint or individual, passed by both houses, except in 1878, at which time an amendment was made providing for parliament's right to pass laws to examine witnesses and in 1895 when an amendment was passed to provide for the removal of doubts as to the right of parliament to set up the office of deputy speaker.
In so far as the amendment itself is concerned, I have already mentioned the fact that this is similar in nature to the one that was accepted in 1927 under the administration of Right Hon. Mackenzie King; and the fact that the suggestion of retirement at 75 has been accepted by all the attorneys general is a fairly effective answer to any criticism that might be made, representative as these provincial governments are of every variety


of Canadian political thought. Indeed, the only Liberal government is the government of Newfoundland. I am sure that the hon. member for Bonavista-Twillingate (Mr. Pickersgill), being a constitutional authority in his own right, will be much impressed in considering this matter and the attitude he will take on it by the fact that a letter from the attorney general of that province addressed to the Minister of Justice and incidentally concluding with the words "kindest regards"-


Paul Joseph James Martin: But the letter is addressed to the Minister of Justice.


John George Diefenbaker: reads as follows:
The government of Newfoundland has no objection to the government of Canada requesting an amendment to the British North America Act-[DOT] providing for the compulsory retirement of judges of the superior, county and district courts in each province on reaching the age of 75 years.
The letter in question appears in Votes and Proceedings of February 16, 1960.
I mentioned a moment ago the various motions that had been made for amendments to the British North America Act through the years, and for the purpose of the record I will place on Hansard the several amendments.
1.	The amendment of 1871 was designed to remove doubts about the competence of the Canadian parliament to establish new provinces in the territories.
2.	The amendment of 1875. In 1873 the Canadian parliament passed an act providing for the examination of witnesses on oath by committees of the Senate and House of Commons and the constitutionality of such an act was in question; hence the amendment.
3.	The amendment of 1886. The purpose of this act was to empower the parliament of Canada to provide from time to time for the representation of the territories in the Senate and House of Commons.
4.	The Canada (Ontario Boundary) Act of 1889, the object of which was to determine the boundaries of the province of Ontario in certain particulars.
5.	The Canadian Speaker (Appointment of Deputy) Act of 1895 to which I have already made reference.
6.	The amendment of 1907 to the British North America Act to remedy the difficulties involved in the application of section 118 of the British North America Act, which determined the amount of federal subsidies to the provinces.
7.	The amendment of 1915, the object of which was to recast the composition of the Senate and to provide that a province should always be entitled to a minimum number of

members in the House of Commons equal to the number of senators representing that province.
8.	The amendment of 1916, the object of which was to lengthen the term of the existing parliament for one year in order to avoid an election at a critical stage of the war.
9.	The amendment of 1930 to transfer the resources of Manitoba, Saskatchewan and Alberta to those provinces.
10.	The passing of the statute of Westminster in 1931 constituted in effect an amendment to the British North America Act particularly with reference to the application of the colonial laws validity act.
11.	The amendment of 1940. By this act the authority to legislate on unemployment insurance was transferred from provincial to federal jurisdiction. This was a case in which all nine provinces assented to the proposed constitutional amendment.
12.	The amendment of 1943. The object of this act was to suspend until after the war the operation of the constitutional provisions requiring that the representation of the provinces in the House of Commons be readjusted on the basis of the census of 1941. This was a very interesting amendment in so far as the reaction of the province of Quebec was concerned. The legislative assembly of Quebec unanimously protested against the proposal and requested the federal authorities to modify their position.
13.	The amendment of 1946. The object of this act was to change the system of representation in the House of Commons. In this case there was no consultation with the provincial governments. This gave rise to some controversy. In the meantime, between 1943 and 1946, if I remember correctly, there had been a change in the administration in the province of Quebec. The provincial government again protested. The government of Mr. Mackenzie King contended that since the jurisdiction given to the federal parliament over certain matters is exclusive, no body other than parliament is competent under the constitution to decide on amending the constitutional rules which govern the exercise of that jurisdiction.
14.	The amendment of 1949. The object of this act was to bring Newfoundland into confederation. Arguments were advanced at that time. The Progressive Conservative opposition contended that the constitution should not be varied in any important way except by consultation with the provinces, but that did not command the support of parliament and the address was passed.
15.	The amending act of 1949. The object of this act was to enact a new section 91 (1)
79951-0-309
Amendment to B.N.A. Act which gives power to the federal parliament to amend the constitution of Canada except in a number of matters concerning provincial sovereignty or minority rights and also concerning certain rights of the House of Commons. At that time protests were made by the premier of Quebec and the premier of Alberta against the proposed unilateral action of the federal parliament and requesting that the government resolution be held in abeyance until a proposed constitutional conference could meet. The premier of Ontario expressed doubt, and I quote-*
-as to the advisability of dealing with the matter without first attempting general agreement.


Paul Joseph James Martin: 1 was not able to follow the beginning. What was the particular resolution involved?


John George Diefenbaker: That was the all-comprehensive amendment that dealt with the right of the parliament of Canada to pass any amendments to the constitution which came exclusively within the federal jurisdiction.


John Whitney Pickersgill: Which did not come within provincial jurisdiction.


John George Diefenbaker: Yes.


John Whitney Pickersgill: It is not the same thing.


John George Diefenbaker: Yes; the hon. gentleman puts it in the negative form. I presume that putting it that way is more appropriate.


John Whitney Pickersgill: It is the language of the statute.


John George Diefenbaker: For the sake of accuracy I agree with the hon. gentleman on this occasion.


John Whitney Pickersgill: It does not mean the same thing.


John George Diefenbaker: I mentioned what the attitude was. In any event, there was a vote in the house on the question. The amendment of the Conservative opposition at that time was that action should be deferred on the resolution until the proposed constitutional conference could deal with the whole problem of amending procedure, and that was negatived.
Then in 1951, following the federal-provincial conference held in December, 1950, it was decided to amend the British North America Act, by adding a section, 94 A, giving to the parliament of Canada the power to make laws in relation to old age pensions, provided that those laws would not affect the operation of any law, present or future, of a provincial legislature in relation to old age pensions. In this case there was unanimous consent on the part of all the provinces.

Amendment to B.N.A. Act
In 1952 there was a further amendment to provide for the readjustment of representation in the House of Commons, establishing a floor whereby the representation of any province would not fall by any more than 15 per cent in any one adjustment; subject, however, to the qualification that the rule would not work out in such a manner that the representation of a province with a smaller population would be greater than that of a province with a larger population. To that the Progressive Conservative opposition presented an amendment requesting previous consultation with the provinces with regard to the readjustment of representation, but the views of the opposition did not command the support of the house and were voted down by a vote of 121 to 27.
These are the amendments to date which have come before parliament in the 93 years since confederation. In so far as the merits of the measure are concerned, my learned and honourable colleague the Minister of Justice, will deal with those factors in detail, and also carry on the debate throughout its course.
I trust that the measure will appeal to the house. The judiciary represents the hard basis of freedom, and above everything else it must be assured that it shall operate as efficiently and effectively as it does honestly and objectively. The judiciary of Canada, of all the courts, have never been subject to challenge. Its inviolability is accepted by all. The assurance that our courts have at all times justice as their objective is recognized and accepted by all Canadians. The reason for the amendment is simply the fact that experience has shown that, while there are exceptions, when one attains the age of 75 in the judicial field it is an appropriate time and anniversary for retirement.
I mentioned, Mr. Speaker, that there was one change in the resolution that the house would be asked to accept. Clause 99 subclause 3 reads:
This act shall come into force on the first day of September nineteen hundred and sixty.
My colleague the Minister of Justice will move an amendment whenever his opportunity to speak comes, to change the date to the first day of March, 1961. The reasons which I advance in support of the change are, first, that when the resolution was placed on the order paper it was thought that it might be found possible to deal with it at an earlier time in the session, thereby making it appropriate to have the effective date September 1. This is an address to Her Majesty, praying that she will cause legislation to be enacted by the United Kingdom parliament, and it is not desirable that there be in the terms of

such an address any limitation on time which could have the appearance of putting pressure on the sovereign to whom the prayer is addressed, or to the United Kingdom parliament which will be asked to deal with it.
Second, there are a number of adjustments which will have to be made at the time the legislation becomes effective. Parliament is being asked in other legislation, notice of which has been given in a resolution now before the house, to make changes in the pension provision affecting all judges, including those whose retirement becomes automatic by virtue of their reaching, or having reached, the age of 75. It seems appropriate, especially in dealing with the judiciary, that time be given to consider the nature and effect of such changes, and without there being any appearance of undue haste.
In view, therefore, of the fact that this resolution and the concurrent legislation are not being dealt with until some months after the speech from the throne, it is hoped that the house will agree to extend the period a further six months, and the clause will then read:
This act shall come into force on the first day of March nineteen hundred and sixty one.
Sir, I think that is all I have to say with regard to this motion for an address. My hope is that it will commend itself to the house.


Lester Bowles Pearson: Mr. Speaker, on a point of order, the Prime Minister has indicated- and I am not complaining about it-that this resolution will be further explained by the Minister of Justice. In view of that, perhaps the house would agree to have the Minister of Justice carry on now so that we can get the complete case for the proposal before we discuss it. We on this side would like to have the Minister of Justice follow the Prime Minister immediately.


John George Diefenbaker: No doubt there will be arguments raised and questions asked; and without in any way trying to press the Leader of the Opposition to give the house the benefit of his views, I feel that after he has expressed his views and after any other hon. members have done the same, then the Minister of Justice will be able to answer the arguments that have been raised or the questions propounded.


Lester Bowles Pearson: I am quite happy naturally, Mr. Speaker, to fall into the normal procedure which has been mentioned by the Prime Minister. If the Minister of Justice, when he speaks, makes some of my observations unnecessary, then perhaps I shall not be accused of that repetitious irrelevancy which has been mentioned already this morning.

May I say at the very beginning that so far as the amendments to this address are concerned that have been proposed by the Prime Minister this morning, they are noncontentious, as I understand them. They are no doubt inevitable because of the delay in dealing with this matter in this House of Commons. It would not be possible, perhaps, to have all the necessary action taken here and in Westminster by the first day of September, 1960; therefore the change from that date to the first day of March, 1961, seems to me to be necessary.
Now, Mr. Speaker, it is obvious that there can be nothing much more important that can come before this house than a resolution which in effect, if it is adopted, amends our constitutional changes. This possibility could care in a matter of this kind because we are asking another parliament to take this action for us, for reasons which the Prime Minister explained this morning but which do not, as I understand the situation, cover all the provisions of this particular address.
However, I will come to that later. The necessity for special care and special consideration is made the greater because at this time, as the Prime Minister pointed out, we have at least the right, by action of the Canadian government, to amend our own constitution in respect of matters which are not exclusively within provincial jurisdiction; to that degree the amendment of our constitution has been cleared up, as the Prime Minister pointed out. There is no difficulty, of course, about matters which are exclusively provincial in character. There has been difficulty which up to the present has been insurmountable in respect of matters between those two extremes, matters which are of concern and interest and which fall in part within the jurisdiction of both federal and provincial governments.
Unfortunately over the years we have not been able to make any progress or very little progress in this field, so that the situation today is that this country of ours, which is a free and independent nation, this federal state, is still required to go to another parliament for action in respect of the amending of its own constitution in many important respects. Until we can reach agreement on this matter we will never be able to talk with the conviction with which we would like to talk about the sovereignty and independence of our country in these matters. I know that we have adopted this course by our own action, of our own free will. There is no question of any other jurisdiction imposing its will upon us.
As a matter of fact, our inability in this country to solve this constitutional problem
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Amendment to B.N.A. Act is becoming more and more an embarrassment to the United Kingdom parliament itself. That parliament has already indicated in recent years that it would be very happy indeed to get rid of this responsibility, even if it is only, as I suppose it is now, a technical responsibility. The difficulty, of course, lies in the nature of our federal constitution; because I think we all agree in this house-I hope we all agree-that there can be no procedure for amending our own constitution which would be acceptable in Canada which does not preserve inviolate the rights of every province.
There can be no other solution found which would be acceptable. But sometimes we forget that the implication of this stand-and it is the only proper stand as I see it that we can take-might mean that a situation could arise where a provincial government, supported perhaps in the last election by not more than 25,000 or 30,000 Canadian elec-ors, would have a veto power over certain constitutional changes- This possibility could arise because every province would have the same right as every other province in a matter which concerned all provinces. I do not see what other principle could be adopted if the matter concerned every province. This is the price we pay for our federal system.
We have managed to work it fairly successfully up to the present, but it does, in principle at least, imply a certain rigidity which attaches, I suppose to every federal structure and which might create its own difficulties if it is not effectively managed. When I use the word "managed" I do not mean managed in a way which would interfere in any way with the rights of any particular province. The Prime Minister has made quite a point of the fact that the Minister of Justice in respect of this particular amendment, has consulted every provincial government, and that is on the record in Hansard.
Now, the care and consideration which would naturally be required in respect to any amendment to the constitution is all the greater, and I think should be all the greater, for this particular government because of words the Prime Minister used earlier in this session, when he said as recorded on page 65 of Hansard:
Here at this session of parliament, in order to secure an amendment to our constitution on a matter that is of national importance affecting the jurisdiction of both the federal and provincial parliaments and legislatures of our country, it is still necessary for us to seek an amendment from the parliament in the United Kingdom. My hope is that the time will not be too long delayed when as a result of an agreement between the federal and provincial authorities we will arrive at a point where this particular phase will be eliminated, to the end that we will be able within our own

Amendment to B.N.A. Act
country to arrive at a basis tor the amendment of our constitution agreeable to all and within the constitutional limitations ol sections 91 and 92.
I think every member of this house will echo that hope, and add the hope that progress might be made in the solution of this problem. But in view of the situation that confronts us today, and the necessity of going to another parliament for an amendment, it seems to me that unless there is urgent need for such an amendment we should not ask the parliament at Westminster to discharge what is after all, in effect if not in law, our own responsibility in Canada. Even when there is no possible doubt about the matter being one that requires a British rather than a Canadian parliamentary decision, or a British decision in addition to a Canadian parliamentary decision, we should be careful.
The first question that occurs to me with regard to this address, Mr. Speaker, is whether there is any urgency about this matter, quite apart from the question of its desirability. I suggest that the Prime Minister has not made out any case for urgency. Indeed, a look at the resolution will indicate why it would not be easy to do so. This resolution seeks the adoption of an address to be presented to Her Majesty praying that she be pleased to cause to be laid before the parliament of the United Kingdom a measure to amend the British North America Act by repealing the present section 99 and replacing it with a new section which would, if it became law, contain two paragraphs which would read as follows, and I am not quoting from the address. The new section 99(1) would read as follows:
99. (1) Subject to subsection two of this section, the judges of the superior, district and county courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
Subsection 2 of the new section 99 would read as follows:
(2) A judge of a superior, district or county court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy five years, or upon the coming into force of this section if at that time he has already attained that age.
It is clear, then, that three changes are proposed in this resolution which, if carried and if action were taken in Great Britain, would amend our constitution. These three changes are as follows:
1.	To provide, by an amendment to the B.N.A. Act, for the compulsory retirement of judges of the superior courts at the age of 75 years.
2.	To add a provision to the British North America Act to the effect that judges of

district and county courts shall be removable only on address of the Senate and House of Commons.
3.	To fix in the constitution, by a provision in the British North America Act, the age of compulsory retirement of judges of district and county courts.
I should like to deal with each one of these changes separately. The first is the provision for the retirement of superior court judges, that is to say judges of the superior or supreme courts of the various provinces, including appeal courts. All such judges now hold office during good behaviour, that is to say, for life; and they do so, of course, because section 99 of the British North America Act, which it is now proposed to change, provides expressly as follows:
99. The judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
By this resolution the government is now proposing that all these judges of superior courts, without distinction, shall compulsorily retire at the age of 75 years. The proposed amendment does not say, as it might have said, that judges of the superior courts hereafter appointed shall cease to hold office when they attain the age of 75 years. Indeed, that was the course that was followed in the United Kingdom parliament in 1959, last year, in an amendment to the judicial pensions bill which applied only to judges hereafter appointed. That was the course that was followed in the United Kingdom.


Edmund Davie Fulton: They had the option to come under it.


Lester Bowles Pearson: Yes, but it did not apply to existing judges. As I understand this British amendment-and the minister will correct me if I am wrong-it did not prejudice the financial position of any judge appointed before the act was passed. This resolution is different, however. To all the judges now in office in these courts it says, "Although you were appointed for life, and although you accepted the appointment on that understanding, the government is proposing that these conditions should be altered and therefore you will now retire when you reach 75 years of age, even though you are still capable of performing the duties of your office".
We should realize that no amendment of the British North America Act is required in order to bring about the compulsory retirement of judges who are incapable of fulfilling their duties, whether or not they have attained the age of 75 years. The Judges Act makes this fact perfectly clear in section 31, which gives to the Minister of Justice the

means of bringing about the retirement of any judge, whatever his age, who has become "incapacitated or disabled from the due execution of his office by reason of age or infirmity".


John George Diefenbaker: Will the Leader of the Opposition allow a question?


Lester Bowles Pearson: Yes.


John George Diefenbaker: I have looked into the matter, and I did not find any case in which this power had ever been used or exercised. Has he located any?


Lester Bowles Pearson: No, I have not located any. In the case of superior court judges I have not found any cases. However, I must say I have not made any searching examination. No doubt the Minister of Justice has done so.


Edmund Davie Fulton: I do not think there ever was one.


Lester Bowles Pearson: Irrespective of that consideration, Mr. Speaker, what this amendment really seeks, I repeat, so far as those who are now in office are concerned, is the summary removal of superior court judges over 75 years of age-if the amendment is carried -on March 1, 1961, even though they are not necessarily incapacitated or disabled from the due execution of their office. That is what the present amendment boils down to so far as the present superior court judges are concerned.
The Prime Minister himself has given us no facts, or very little to go on, that would justify, in our view, the action the government desires this parliament to take and desires the parliament of Westminster to take in respect of superior court judges who are now in office. I should like to say at once, however, that I am not objecting to 75 years as the retiring age for superior court judges. I have read the discussions on this matter that have taken place in the past. The Prime Minister referred to some of them. We have had great service in this country from judges over 75 years of age. However, I think there is a great deal to be said for abolishing life appointments of this kind and for setting an age limit, if you like to call it that, of 75 years. If this proposed amendment applied only to judges hereafter appointed, we on this side would not quarrel with this part of it at all.
But of course, as I have just said, this resolution goes much further. It turns out of office on March 1, 1961 all judges of these courts who have attained the age of 75 years. That, in our view, if I may use the words of Right Hon. R. B. Bennett on a similar occasion when there was discussion of this question, involves a breach of the contract between the individual who holds office at the
Amendment to B.N.A. Act present time and the state, because his patent of office declares that he shall hold office during life or good behaviour.
Those who accepted appointments to the superior courts, many of them no doubt at very considerable financial sacrifice, undoubtedly did so on the understanding that so long as they were able to carry out the duties for which they were appointed they would continue to hold judicial office.


John George Diefenbaker: Would the hon. gentleman say whether the statement of Mr. Bennett was accepted by the Mackenzie King government?


Lester Bowles Pearson: No, it was not. I am coming back to that, and I am glad the Prime Minister has brought it to my attention. Mr. Bennett's views were not accepted at that time, but I shall be glad to point out that in a subsequent session the government realized that perhaps it had gone too far in this matter and took steps to rectify the situation in so far as existing judges were concerned.
Judges of the superior court at that time had every reason to believe that the terms upon which they accepted office, which were set forth with such clarity in the British North America Act itself and which therefore gave those terms a special constitutional sanctity, would be maintained, or at least would not be changed unilaterally in this way. But now these judges are to be told that despite the formal declaration of their patent of office, which was based on an express provision of our constitution, they will after a certain date, having attained 75 years of age, cease to be judges.
Now I come to the point which the Prime Minister mentioned about the precedent I cited, in so far as I was quoting Mr. Bennett as a precedent. I fully realize that in 1927-the Prime Minister mentioned this himself-the parliament of Canada provided for the compulsory retirement at the age of 75 years of judges of the supreme court of Canada and of the exchequer court, even though appointed during good behaviour. That action by parliament was within the constitution and it was done-but as it cannot be done in this case-by legislation of the Canadian parliament. It was, however, as I have indicated, very strongly attacked by Mr. Cahan, who called it a serious breach of contract, and by Mr. Bennett. I would like to read what Mr. Bennett said about it, because it was Mr. Bennett's words and the attitude taken by the opposition at that time that were probably responsible for subsequent legislation which rectified the situation about which

Amendment to B.N.A. Act Mr. Bennett and Mr. Cahan had been particularly complaining. Mr. Bennett said in 1927, as reported on page 1556 of Hansard for that year:
-it will be remembered that under the British North America Act a judge is appointed during good behaviour or for life and when his commission is issued one of the terms of the commission is that very provision that he should hold office during good behaviour or life.
Then later he said:
I think we must have regard to the terms and conditions under which the original contract was made ... although it may seem out of the ordinary that a judge should draw full salary when he is retired compulsorily, nevertheless good faith and morals, in my judgment, impose upon us that obligation and it is an obligation which we should not lightly disregard.
Finally he said:
-I do not believe that the Canadian people would approve of our departing from the general principle that the government must-as in times past-have respect for the sanctity of a contract made between a servant of the crown when he entered the employment of the state . ..
If this bill applied only to future appointments, it would not be so objectionable.
The minister of justice of that day, Hon. Ernest Lapointe, at first did not accept this view, and the government proceeded to put the bill through. It was passed and compulsory retirement of the supreme court and exchequer court judges at age 75 was brought into effect. Later legislation was introduced, as the Minister of Justice no doubt knows, which provided that all judges who were affected by the 1927 legislation should be granted an annuity equal to their full salary at the time of retirement, and therefore no judge from that time on-I think it was in 1929 or 1930 that the change was made-suf-ferred in a financial way from that legislation.
Notwithstanding the stand taken especially by Mr. Bennett and Mr. Cahan, and the Conservative opposition in 1927, in 1933 the solicitor general of a Conservative administration, Hon. Maurice Dupre, introduced legislation which attempted to do by indirection what his party had previously condemned when they were in opposition, namely to force judges of the superior courts to retire at age 75; not by direct action such as we have before us today, but by introducing a provision which would have reduced their salaries when they reached age 75, thus perhaps making it desirable for them to retire at that age.
That legislation was introduced by the Conservative government of that time, and Mr. King and Mr. Lapointe, among others, took very strong exception to that particular bill. It was passed, however, in the House of Commons but was killed in the Senate,

notwithstanding an amendment moved by Mr. Jacobs, I think it was, to take the word "hereafter" out of the bill.
So, Mr. Speaker, we now have the situation that if this resolution is passed and this address is acted upon we will have a breach of contract with superior court judges. Because of that fact it is our duty to see that these new provisions regarding compulsory retirement should be made applicable only to those who are to be appointed hereafter as judges of superior courts. Knowing beforehand this limitation upon their tenure of office, those who are invited to become judges in the future can accept or refuse on the basis of those terms, and they would have no complaint if this action were taken.
May I call it one o'clock?
At one o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at 2.30 p.m.
Lester Bowles Pearson: At the luncheon recess I was discussing the effect of his resolution on the tenure of office of judges of superior courts, and I was pointing out that if the resolution leads to an amendment of the British North America Act it will be a breach of contract in so far as these judges are concerned.
While I recognize that action of this kind was taken by a previous parliament in 1927 which dealt with the tenure of office and the compulsory retirement of judges of the supreme court and the exchequer court, apart from the fact that if that action was wrong then it is not right now, the government of that day did make provision to ensure that no judge was prejudiced financially by the action taken by parliament.
I realize that there is a resolution on the order paper which deals with pensions for superior court judges, and that some action may be taken by this government to deal with this question. I do not know what that action may be. It may be that provision will be made for a retirement allowance equal to the salary on retirement, or it may be judges will be granted the same kind of pension they would receive if they were retired for disability under the Judges Act. No doubt we will learn later what the government has in mind. But there is no question but that if this amendment to the act is made, judges who accepted office on certain conditions will be retired at 75, and this would be, I believe, a breach of contract.

There is a second question which arises, and that is the change which is proposed with regard to the procedure for removing district and county court judges. It is proposed in this resolution to request the addition to the British North America Act, that is to our constitution, of an express provision that judges of district and county courts shall, after September 1, 1960 according to the resolution and after March 1, 1961 according to the amendment, be removable only on an address of the Senate and House of Commons. The provision that county and the district court judges hold office during good behaviour is not, of course, in contrast to that affecting supreme court judges, to be found in the British North America Act. Their appointment has always been according to statutes of this parliament, which from time to time over the years have fixed the term of the appointment for as far back, if I am right, as 1882. Now it is proposed to change the procedure set forth in the Judges Act, which has remained substantially the same since parliament first legislated on this matter, and to substitute for the discreet but essentially fair process outlined in the Judges Act another procedure which apart from the fact that it will be enshrined in our constitution, would be characterized by great formality and, I believe, great publicity if it were ever adopted. Hereafter under this resolution, if the removal of a district or county court judge is sought for any reason, everything will have to be done under the spotlight that is always focused upon acts of parliament. There will be an atmosphere of unnecessary publicity, I think, for such an occasion.
It is essential of course that any proceedings, if they should ever be required, for the removal of a judge should be characterized by the greatest impartiality and justice, as I am sure they would be in any circumstances. But is it necessary that they should be carried out in what is bound to be distressing circumstances in the full glare of publicity which would attach to proceedings of this parliament? Surely our past experience in this country has been such that we can safely leave untouched what had been for many years, and still is, a satisfactory provision, even though the number of instances in which it has been applied is extremely limited if, indeed, it has been applied at all.
However, the government is going much further than merely changing the procedure to be followed if it proves necessary to remove a judge of a county or district court. This brings me to the third and last point I want to mention, and that concerns a further change which I think is altogether
Amendment to B.N.A. Act without precedent, namely a change which would fix in the British North America Act, in our constitution, the age for compulsory retirement of judges of district and county courts.
I do not know why the government is making this change in the constitution. The minister in the correspondence which has been tabled refers to serious doubts in regard to the constitutionality of action of this kind by the parliament of Canada. The Prime Minister has referred to the fact that the attorneys general of all the provinces have accepted the proposal, but there seems to be, at least in my mind, some ambiguity in regard to the acceptance of some of the attorneys general, or at least ambiguity in regard to the implications of the acceptance.
Turning to the appendix to Votes and Proceedings I find that the attorney general of British Columbia in his letter to the Minister of Justice, under date of November 4, 1959 said:
-I agree wholeheartedly with this recommendation and would go further to suggest that if it is not possible to secure the unanimous consent of all ten provinces that the act be made applicable to those provinces who have expressed approval of the legislation through their executive council.
The attorney general of Saskatchewan in his reply to the minister dated July 20, 1959 had this to say:
This government feels that it would prefer to have all provincial judges, including district court judges, retire at age 70 rather than age 75-


Edmund Davie Fulton: Should the hon. member not read on?


Lester Bowles Pearson: I will be glad to read on:
-but it is quite prepared to concur in an amendment to the British North America Act providing for superior court judges retiring at age 75 if the dominion and the other provinces are not prepared to concur in an amendment providing for their retirement at age 70.
We are proposing that this matter in regard to county court judges should be put in our constitution so that if in future any change of the kind suggested by the attorney general of Saskatchewan or the attorney general of any other province were desired it would have to be made by an amendment to the constitution, that is by going to the parliament of the United Kingdom.
The British North America Act in section 96 empowers the governor in council to appoint judges of the superior, district and county courts in each province except those of the courts of probate in Nova Scotia and New Brunswick, but it is only with respect to superior court judges that the British North America Act provides for tenure during good behaviour, that is to say normally for life. That section contains no such provision

Amendment to B.N.A. Act for district and county court judges. Indeed, after providing for their appointment the act is silent concerning them.
There is only one reasonable deduction to be drawn from this; that the parliament of Canada was meant to have and indeed has had and has exercised the necessary legislature authority over the terms of appointment of district and county court judges. This is confirmed by precedent. These judges have been subjected, without any constitutional question being raised, to acts of this parliament providing for compulsory retirement, acts of this parliament going back as far as 1903,1 believe. Why is this change being made now?
There was a discussion of this matter in a debate in this house in 1927 to which I referred this morning. The then hon. member for Simcoe, Mr. Boys, a member of the opposition, as reported at page 1080 of the 1927 Hansard asked the following question of the then minister of justice, Mr. Lapointe:
Is there any special provision in the British North America Act with respect to the retirement of county court judges?
The then minister of justice replied "No", Mr. Boys went on to ask:
Is it suggested that such legislation-
That is, Canadian legislation for the compulsory retirement of county court judges.
-was ultra vires?
The then minister replied:
No, not at all. Section 99 applies only to the judges of the superior courts.
Mr. Lapointe went on to add:
There is nothing in the British North America Act preventing us from dealing with the tenure of office of county court judges.
Indeed the tenure of office of district and county court judges has long been established by federal statutes which parliament has been free to amend any time it saw fit without reference to any outside parliament. Now we propose to put it in the British North America Act that they must retire at 75. This will mean we will have to go to the parliament of the United Kingdom and ask it to amend our constitution accordingly in this matter. We are asked to accept the doctrine that henceforth any change in tenure of a district or county court judge would presumably not only have to be agreed to by every province but also by the parliament of the United Kingdom, which in the past has not been approached in these matters.
We are being told for instance I assume from this resolution, that while it is constitutional for the Canadian parliament under section 32 of the Judges Act to remove a district or county court judge for inability to perform his duties, it would be unconstitutional to remove him at the age of 75.

Therefore this address seeks to replace our parliament by the British parliament in regard to something which was never previously considered to be a function of any other parliament but our own. It was never previously considered by any government to be that, even by governments representing the party to which my hon, friend the Minister of Justice belongs.
By this resolution parliament is asking that its own power to deal with the tenure of office of district and county court judges be now limited by the constitution, and that action to bring about such limitation be taken by the parliament of the United Kingdom. In other words we are being asked in 1960 to expatriate to Westminster a part of our own constitution. I ask the minister, what kind of colonial vision is this? I ask him, if he can, to justify taking action of this kind at this time; to go to the parliament of the United Kingdom to make a change in our constitution through action of that parliament in a matter with which we in this parliament over the years since 1882 have managed to deal.
For this and for the other reasons I have mentioned I move, seconded by the hon. member for Essex East (Mr. Martin), that the resolution be amended in proposed section 99 as follows:
That the words "district and county" be deleted from line two of subsection one; the words "district or county" and the word "whether" be deleted from line one of subsection two; the words "before or" be deleted from line two of subsection two, and all the words after the words "seventy five years" be deleted from subsection two.


Herbert Wilfred Herridge: Mr. Speaker, my remarks will be somewhat brief for reasons which are, of course, obvious. First of all, I do not consider myself an expert on constitutional matters. The second reason is that I have not had the time to work on this resolution as I should like to have done.
We have now reached the stage in the proceedings of this session where we have legislation, as one wit put it, by exhaustion. I am suffering from that and so are some other hon. members. Since the house rose at one o'clock I recorded a radio address to my constituents; I dictated several letters; I had an interview with two people and drank a hasty cup of coffee before coming down to the house. I mention that to you, sir, so that you will have some sympathy for members of this house who are plugging away under very difficult circumstances.
I might say that this group does support the purpose of this humble address which is to be presented to Her Majesty the Queen recommending certain amendments to the British North America Act. We support the

purpose because we believe the terms of the resolution are a progressive step toward a further recognition of Canada as a nation, and of changing circumstances.
However, I must say that we do wonder to some extent whether the amendment has been caused solely by the government's concern for the efficient administration of justice. While the principle and purpose of the amendment are quite good, we are not altogether lacking in suspicion as to the reason for its advancement; but no doubt the Minister of Justice will deal with the matter further when he rises to speak.
When I was listening to the Leader of the Opposition prior to the noon recess I was interested in his belabouring of the government; in his indication that the Liberals had recognized that Canada was a nation and that the amendment of the constitution should be within the confines of this country, and that Canada should not be required to seek the legislation through another parliament. I must bring this to his attention. If I heard him correctly he quoted the former prime minister, Mackenzie King, in this respect, and mentioned something about his hoping that constitutional changes would take place that would bring the amending of the constitution strictly within the powers of the Canadian parliament. But I must bring to your attention, Mr. Speaker, the fact that it was only a hope and that those words were uttered years ago. I must also bring to the attention of the house the fact that the Liberal party was in office for 22 years and that on this question, as on a good many questions, they hoped, but we did not get any action in that direction.
As compared with that, I want to bring to the attention of the house the policy of the C.C.F. The policy of the C.C.F. since its formation as a movement in 1932 has been that Canada as a self-governing nation should have the right to amend its own constitution without reference to another parliament. We recognize that these things cannot be done overnight, but I would challenge the Leader of the Opposition to bring to the house any evidence that the Liberal government took any steps in that direction, or any evidence of any conversations between former prime ministers and the appropriate persons in Great Britain with the end in view of changing the present practice so that Canada would have the right to change its own constitution. If there is that evidence I should be very willing to have it put forward, but I do not know of it. I just mention that point.
However, as far as this group are concerned, we have been advocating this change for years because, as I said before, we believe
Amendment to B.N.A. Act that Canada as a self-governing and independent nation should have the right to amend its own constitution. However when one considers and discusses this question I am sure that any fair person recognizes it is not all quite as simple and easy as it looks on the surface.
Now I deal with the resolution itself. Subsection 1 of the humble address reads as follows:
Subject to subsection 2 of this section, the judges of the superior, district and county courts shall hold office during good behaviour, but shall be removable by the governor general on address of the Senate and House of Commons.
While we support this section, I presume- and I am sure the Minister of Justice will correct me if I am wrong in this-that even prior to this amendment it was accepted throughout the years that the parliament of Canada had the right to take this action, although it was not so stated in the constitution. No doubt the Minister of Justice will inform us in that respect. However, we support this amendment and we believe it is better to put these powers in the constitution in language which is in exact terms. Subsection 2 reads:
A judge of a superior, district or county court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy five years, or upon the coming into force of this section if at that time he has already attained that age.
We support this amendment; we believe it is a progressive amendment. In fact it is the type of amendment that has been suggested by the C.C.F. for many years. The question of the earlier retirement of justices and judges has been brought up in our conventions, from time to time. In saying this I am not intending to cast any reflection on the gentlemen of the bench, as I am sure there are many members of the legal profession who have a better knowledge of this than I have. I am just an ordinary peasant farmer living in the backwoods. But we are all subject to the effects of age. I have been in courts myself where I have noticed the justices. While they have had a very creditable past and were recognized as authorities, on account of age they were testy and impatient, and at times I thought they were somewhat unfair to the legal counsel when they were presenting their arguments. That is natural as a result of age, and I think on that account this is a good amendment.
Second, I think it is quite unfair that people who would not otherwise suffer financially should continue to hold these very important and highly placed positions until very late in life, and not leave the vacancies which would provide opportunities for many of the

Amendment to B.N.A. Act younger members of the legal profession, barristers and solicitors, to serve their country in that capacity.
I think it is a sound argument that at 75 years of age a person who is considered to have served his country well in such a capacity should retire. I must say that when I make these remarks I am not intending them to apply to the hon. member for Duf-ferin-Simcoe (Mr. Rowe) as a member of parliament, because he is a rather exceptional person, always an ornament to the house. But I must say frankly that at times I am inclined to look at life in a personal way. I frankly say that I could miss his cheery countenance on the other side. He always inspires me to speak when I look at him.
For these two sound reasons, first, the facts of life so far as age is concerned and second, the provision of opportunities for younger members of the bar to occupy these very important positions, we support section 2 of the amendment. So we agree with the Prime Minister when he said this morning-when I say we agree with the Prime Minister I mean we believe what he said this morning is worthy of support, because there are occasions when we do not agree with the Prime Minister-if I heard him correctly, that age 75 was an appropriate time or anniversary for retiring. I think that was very well put, to make it a sort of farewell party at the same time.
In any event, for the reasons I have stated we support this humble address. I might say as well, Mr. Speaker, that I understand these honourable gentlemen, the justices and judges, are reasonably well provided for by way of pension, and that they have the opportunity of enjoying their pension anywhere in the world. They have had this opportunity since the establishment of the pension scheme. I understand also that the pension is on a noncontributory basis, a very interesting aspect, since it is a pension for life after retirement at about 50 per cent of the salary paid. Well, I believe that is a very reasonable provision for justices and judges when compared with the pensions received by many people when they retire. So, in supporting this legislation, we believe we are supporting something that is a step in the right direction, that will be to the advantage of efficiency in the administration of justice, and that will provide opportunities for younger members of the legal profession while at the same time not causing any injustice or hardship to the persons particularly affected.
I have not had an opportunity of reading the amendment moved by the Leader of the Opposition very carefully. I just hurriedly

consulted with the hon. member for Vancouver East before I rose and at this moment I would say on behalf of this group we are not inclined to support this amendment because we look upon it as a somewhat subtle attempt to emasculate the purpose of the legislation. That is all I have to say. (Translation):
Mr. Paul Mariineau (Ponliac-Temiscaminquek Mr. Speaker, I should like first to emphasize the vital importance of the duties performed by judges. On consideration, one realizes readily that in the administration of justice, judges carry out a mandate that derives from the Creator himself.
The early Romans had given justice a divine status, and even in our modern times, I think that justice must hold a very high rank, because it is the very basis of our society.
As the Prime Minister (Mr. Diefenbaker) so rightly said this morning, we have been particularly fortunate in the choice of judges in this country. If the British system of justice is so highly regarded, not only in our country and in commonwealth countries, but throughout the world, it is due largely to the excellence of the judges who have presided over the various courts in Canada, or in Great Britain and in other commonwealth countries.
I should now like to consider some of the points raised by the Leader of the Opposition (Mr. Pearson).
He said he is in favour of the retirement of judges at age 75 and, if I am not mistaken, he also favours compulsory retirement, because normally a man of 75 lacks the alertness and the working capacity of a younger man. I do not think anyone will deny that.
This does not mean, of course, that a person of 75 has outlived his usefulness to society.
Thinking of the plight that is now the lot of our older people, I remembered the words spoken a few days ago, in this building, by one of the most eminent Canadians we know, Dr. Wilder Penfield.
He has studied the psychological situation that each man has to face on reaching the age of retirement.
He said that a man who has reached 65, 70 or 75 certainly still had a contribution to make. Indeed he suggested that, when a man has reached the age of retirement, he should not confine himself to his room and patiently wait for the passing of the hours, the days and the years, waiting for death, but rather start on a second career. And that is the point I have in mind: a second career.
Is it not logical and normal that a man who has served his country with distinction in

the very significant office of a judge might, at age 75,-i.e. the limit established by the resolution-go on retirement but continue to serve his people in another occupation where his wealth of experience will be of great help to him? That is why I believe that the principle of compulsory retirement for judges is an excellent one.
The Leader of the Opposition said that compulsory retirement is a good thing, but that it should not apply to judges already appointed, because there is some kind of contract between the state, which appointed the judge, and the judge himself. In other words, if I rightly understood his argument, he thinks that, once appointed, a judge has a vested right to continue to occupy his post until death. But what would happen if a judge, because of his health, was unable to continue exercising his functions or, for some personal reasons-which I would not like to mention- did not like to give up his position? If some judges have to cease their functions at age 75, I say that they should all be treated equally. Otherwise, we would have a rather abnormal situation. There would be two kinds of judges, that is: newly appointed judges who, on reaching age 75, would have to retire under the terms of the address we are submitting to Her Majesty, and, on the other hand, judges who would continue in office.
I say that the personal interest of judges now in office should not have priority over the general welfare of this country. Moreover, as the opposition leader stated, a man having reached a certain age loses some of his faculties. When saying this, he only repeated certain truths which were advanced by the great philosophers of the past, including Aristotle who stated that, when he gets old, a man loses not only his physical but also his mental vigour-in any event he certainly loses some of his adaptability.
The rolls of courts today are increasingly heavy, and judges need not only particularly acute minds and great legal ability, but also great physical endurance if they are to go on giving their full measure.


Paul Joseph James Martin: We all agree on that point.


Mr. Martineau:: In this respect, we agree: if some judges are to be retired, all should be.
The second point I want to raise is this. I do not see eye to eye with the Leader of the Opposition when he states that judges have a vested right, because that right entirely depends on the judge's ability to discharge
Amendment to B.N.A. Act the duties of his office. There is certainly no vested right for a judge.
The third point is that, according to the retirement system, a judge does not stand to lose much financially; in any case, he is in no way unfairly treated when he retires.


Paul Joseph James Martin: Is the hon.
member-


Paul Raymond Martineau: He is not abandoned, he is not left in want.


Paul Joseph James Martin: Could the hon. member tell us what pension plan is being proposed by the government? We have no information at all on that.


Paul Raymond Martineau: Mr. Speaker, I am not discussing the details of a pension plan; I am merely saying that the judges who will be retired will come under a pension plan. Whether the plan is adequate or not-and I am convinced that it is, I do not wish to discuss the point, because I feel that it cannot be discussed in detail within the framework of this debate.
Therefore, from that standpoint, I certainly cannot accept the claims of the Leader of the Opposition.
The Leader of the Opposition also wondered why we had to proceed by way of a joint address of the house and the Senate to relieve a judge from his office. In my opinion, that system is the best, precisely because of the importance of the functions of a judge. And a judge should not be relieved of his office unless there are very serious reasons for it; besides, the very formalities attached to the procedure are a guarantee that it will not be lightly resorted to.
Now, Mr. Speaker, I should like to say a few words about the address to be submitted to Her Majesty the Queen, in order to obtain a constitutional amendment.
The Prime Minister indicated this morning that since confederation-that is to say since 1867-there have been 17 occasions on which constitutional amendments were sought.
Today, another one is to be sought and we have not yet found a means that would meet the wish of everyone, that is to say, one that would allow us to amend our constitution ourselves. The Prime Minister said he hoped that, in the near future, some means could be found to completely repatriate our constitution, so that we would not have to resort to the services of a parliament of another country to amend our constitution as we see fit.
It is true that the restriction to the sovereignty or total independence of our country

Amendment to B.N.A. Act
is a result of the very will of the Canadian government, of the people of Canada. However, we hope, Mr. Speaker, that this anomaly may soon be removed. I feel this is a matter which goes beyond the scope of a political debate, and that the most enlightened efforts, wills and brains of this country should strive to achieve that end.
Mr. Speaker, everybody knows that in a few years, our country will celebrate the centenary of its foundation. Would it not be a lofty objective, one worthy of our energies and our hope that, by that time, an agreement acceptable to all sections of our population, to all governments and to all ethnic groups will be entered into which will bring understanding between those various groups? Would this not indicate that our country has attained maturity?
It is not a matter of putting forward strict and dogmatic amendments; what is required is that discussions be held between groups to achieve a goal that everyone considers desirable.
This goal is surely not impracticable, and I remember that during his recent visit to Canada, General De Gaulle said something which struck me very much. He said that he had faith in the ability of human beings to find answer to their problems. In other words, he believes there is no problem, however serious, that cannot be solved by the concerted good will of men.
Mr. Speaker, I respectfully submit that it is with that attitude that we should approach this problem of the repatriation of the constitution which, I admit, is quite serious and is bound to interest all groups in our country.
Mr. Speaker, I am glad of having had the opportunity, during the debate on this resolution, to suggest the attitude we must take and that will surely lead us to the solution of the problem of the repatriation of the constitution.


Mr. Marlin (Essex Easi):: When will the government start?


Paul Raymond Martineau: Mr. Speaker, I believe that the views which the hon. member for Essex East (Mr. Martin) may express will be such that they will help the government to find the right solution.


Paul Joseph James Martin: Indeed, but a start must be made.


Mr. Alexis Caron (Hull):: Mr. Speaker, while listening to the hon. member for Pontiac-Temiscamingue, (Mr. Martineau), I was rather

surprised at some of his statements. He suggested that a man's efficiency and mental powers decrease with old age. He mentioned that he had come to that conclusion after listening to Dr. Penfield


Paul Raymond Martineau: Mr. Speaker, I rise on a question of privilege. That is not at all what I suggested. I said that, in listening to Dr. Penfield, I understood that at a certain age, a man does not have the same working capacity, the same alacrity of mind, and that it is a good thing for him to change his occupation, to start on a second career; that even after giving up his first career, he can still contribute to the progress of his country.


Alexis Pierre Caron: Mr. Speaker, my statement and the correction made by the hon. member for Pontiac-Temiscaminque amount practically to the same thing. The purpose is exactly the same.
May I remind him of this: there may be exceptions, cases where mental powers grow less, where the brain is less active, but this is not necessarily the case with everybody. I only wish to give a few examples.
Let us take the case of Dr. Penfield himself. Is there anyone with a more alert intelligence than Dr. Penfield? Yet he is over 70. John XXIII has been elected pope at the age of 78. Was he so elected because the church considered him an inadequate representative.
We have seen in the past-


Paul Raymond Martineau: Would the hon. member allow me-


Alexis Pierre Caron: Mr. Speaker, this is not a question of privilege, it is only an explanation of his earlier statement.


Paul Raymond Martineau: Would the hon. member allow me a question?


Alexis Pierre Caron: Certainly.


Paul Raymond Martineau: Is the hon. member aware that Dr. Penfield recently retired and is starting on a second career, that of a writer?


Alexis Pierre Caron: He has a perfect right to do so, but it should not stop him from availing himself of the privilege of continuing in the same field. He has enough knowledge and ability to do so.
Let us, for instance, take the case of Leo XIII, who was made pope at the age of 73 and remained in that high office until he was

93. He was recognized as an authority, not only in his time, but of all times. The encyclicals he wrote when he was 90 are still outstandingly valid today.
Let us now examine the case of Sir Thomas Chapais who, until the age of 93, was considered an outstanding authority in the field of Canadian history.
Therefore, that matter of lessened mental power cannot be made a general rule.
I admit it would be preferable, as Dr. Pen-field said, that a man, at a certain age, should quit his regular occupations and enjoy leisure, or take up some hobby. On this I agree with the hon. member, but we cannot accept that, in general, a man's faculties dwindle with age. At least, if it is so for some people, I hope it will not happen to the hon. member for Pontiac-Temiscamingue or to myself. I hope to live beyond age 75.
Mr. Speaker, I did not rise only to say this to the hon. member. I simply wanted to say that, in my opinion, this is a backward resolution. We are losing ground instead of going forward. If we look into the history of our country, more particularly since 1887, we see that at all times we have striven to secure independence from the government in the British Isles.
In 1897, at the time of Queen Victoria's jubilee, Sir Wilfrid Laurier in a memorable speech, asked the British government to give more latitude to the governments of the dominions, which needed it to reach their full expansion. He was supported in this by General Smuts, of South Africa.
Later, in 1918, Sir Robert Borden insisted that Canada, which had taken part in the 1914-18 war, and which was still a colony at the time, be made a party to the Versailles treaty, and he signed that treaty on behalf of Canada. It was another step towards our independence.
In 1921, I believe, the Hon. Ernest Lapointe signed a fisheries treaty with the United States and, at the time, objected to the presence of a representative from the London government.
In 1927, the Right Hon. Mackenzie King set up the basis of what later on was to become the treaty of Westminster, in order to confer greater authority to Canada, and a greater measure of autonomy.
In 1931, Mr. Bennett signed this treaty of Westminster which granted us complete freedom and a status of equality with the London government. Later, the government eliminated appeals to the privy council and decided that the Queen would no longer be
Amendment to B.N.A. Act sovereign of England and the dominions, but the Queen of Canada, our own sovereign and not just the Queen of England. Those are the moves we have made since confederation and it shows we have always aimed at greater independence.
And now, this government is again going to ask London permission to do this or that. It will be said: "Oh, it is because this matter is not clear," as the Prime Minister said this morning.
If it is not clear, if there is some doubt, why do we not get the benefit of the doubt?
Besides, if we refer to the British North America Act, we see that in the field of exclusive powers of provincial legislatures, section 92, paragraph 16, says the following:
Generally all matters of a merely local or private nature in the province.
I admit that what is specified there as far as the provinces are concerned, is not specified from a federal point of view. We see there an indication that what is allowed in matters of a purely local or provincial nature should by that very fact, be allowed in matters of purely national nature. Reference to the Quebec resolutions will show that it was the intent of the fathers of confederation to establish that the federal government would have the exclusive right to legislate of itself in purely federal matters.
In paragraph 37, section 29, of the Quebec Resolutions, we note the following:
And generally respecting all matters of a general character, not specially and exclusively reserved for the local governments and legislatures.
That proves, therefore, that the fathers of confederation wished that it be so, and that if that does not appear in the British North America Act proper, it is because it had been felt it was so clear that it was not necessary to include it.
Later, in the London Resolutions, paragraph 36, section 28, we note the following:
And generally respecting all matters of a general character not specially and exclusively reserved for the local legislatures.
It may be inferred from the thinking of the fathers of confederation, at the time the discussions took place, either at Quebec or in London, that it was their wish to reserve to the various governments the various rights which were theirs.
The governments of the provinces, as I said a moment ago, in quoting section 92, have the right, in purely provincial matters, to legislate for themselves, in their own province, at any time. In reading over the report of the Quebec and London discussions, we realize that it was the intention of the

Amendment to B.N.A. Act lathers of confederation to grant that same privilege to the federal government, in purely national and federal matters.
I admit that where there is a dual character, that is a federal one and a provincial one, we might perhaps have the right-it seems to me, after a century, now that the Canadian nation has reached maturity, now that it is 93 years old-to be in a position to settle our own problems by ourselves.
I know Eight Hon. Mr. St. Laurent wanted to repatriate the constitution altogether in 1949, but the Quebec government opposed the move, claiming it feared the federalists. Well, there are those matters of a dual character, federal and provincial, which must still be submitted to the London government, for settlement. Besides, the sections of the B.N.A. Act, which I have quoted, seem to indicate that it was clearly the aim of the fathers of confederation to leave to the federal government and to the provincial governments the care of settling their own respective problems.
Now, if we examine the Statute of Westminster, which granted full freedom to Canada and to the other dominions of the time, we see in the third paragraph of the preamble the following:
Whereas it is in accord with the established constitutional position that no law hereafter made by the parliament of the United Kingdom shall extend to any of the said dominions as part of the law of that dominion otherwise than at the request and with the consent of that dominion.
Therefore, if we want to take a backward step, we may do so; if we want to go to London and ask the people there to render a judgment, to adopt a law, we can do so, but it is only at our request that it can be done. But if we are not compelled to do so, why should the government, seeing that all other governments, even Conservative, have sought to achieve greater freedom, take a retrograde step and ask the London government today to legislate in its stead? Section 2 reads as follows:
The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this act by the parliament of a dominion.
And paragraph 2 of that section reads as follows:
No law and no provision of any law made after the commencement of this act by the parliament of a dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future act of parliament of the United Kingdom, or to any order, rule, or regulation made under any such act, and the powers of the parliament of a dominion shall include the power to repeal or amend any such act, order, rule or regulation in so far as the same is part of the law of the dominion.

Any parliament can repeal, modify or improve legislation, without having to go to London. And the Statute of Westminster gives us the most absolute independence, as stated in section 2.
And in section 3, what do we see?
It is hereby declared and enacted that the parliament of a dominion has full power to make laws having extra-territorial operation.
And section 4 tells us:
No act of parliament of the United Kingdom passed after the commencement of this act shall extend or be deemed to extend, to a dominion as part of the law of that dominion, unless it is expressly declared in that act that that dominion has requested, and consented to, the enactment thereof.
It is therefore the dominion government that may do the asking; and never the London government. If it wants to take a retrograde step, that is its own business. It has the right to ask London to legislate on behalf of Canada. But, in my opinion, that would be a backward step. We should not go back to colonialism, under which we were governed before the Statute of Westminster. I suggest that no truly Canadian government has the right to take such a retrograde step; it should settle that problem itself, since this is a purely national problem, coming within the scope of its own responsibility.
And here is what we read in section 6 of the Statute of Westminster:
Without prejudice to a generality of the foregoing provision of this act, and as soon as the latter is in force, they must cease to be in effect in the dominions, section four of the Colonial
And section 7 reads as follows:
Courts of Admiralty Act-
(1)	Nothing in this act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder.
(2)	The provisions of section two of this act shall extend to laws made by any of the provinces of Canada and to the powers of the legislatures of such provinces.
(3)	The powers conferred by this act upon the Parliament of Canada or upon the legislatures of the provinces shall be restricted to the enactment of laws in relation to matters within the competence of the parliament of Canada or of any of the legislatures of the provinces respectively.
Therefore, as regards matters within national or provincial jurisdiction, it is the government of Ottawa and the provincial governments which have the authority to legislate.
Is the matter now being considered a concern of ours as members of the federal parliament, or does it come under provincial

jurisdiction? If it is a matter for the federal government, I do not see why we should be going to London for permission to do something that is already granted to us under the Statute of Westminster and, by inference, in the British North America Act.
In my opinion, we have no right to allow the government of Canada to take this backward step.


Paul Raymond Martineau: Would the hon. member allow me a question?


Alexis Pierre Caron: Certainly.


Paul Raymond Martineau: Is the hon. member suggesting that the administration of justice and of courts is a strictly federal matter?


Paul Joseph James Martin: That is not what he said.


Alexis Pierre Caron: I said, if this is a matter for the federal government, why should we go to London for permission to settle it, and if it is a provincial matter, why not let the provinces settle their own affairs.
If this matter comes under federal jurisdiction, why would we not have the right to settle it? If it is of provincial jurisdiction, why not let the provinces legislate in those cases?
In answer to the hon. member, I must say that, as far as courts of justice are concerned, there are strictly provincial courts, such as magistrate and municipal courts.
A few years ago, someone went so far as to question the right of provinces to establish such courts. It was being claimed that under the British North America Act the field of justice should be left entirely to the federal government.
But following an agreement between the provincial and federal governments, those courts were allowed to be established and, since that time, this legislation has been disregarded. However, there are still certain jurists who believe that the provinces have no right to establish those courts of justice.


Paul Raymond Martineau: Would the hon. member allow me another question?


Alexis Pierre Caron: Certainly.


Paul Raymond Martineau: Does the hon. member know that the administration of the superior court, in the province of Quebec, comes under provincial jurisdiction, even if the judges of that court are appointed by the federal government?
Amendment to B.N.A. Act


Mr. Meunier:: The appointments-


Alexis Pierre Caron: I think that part of the administration comes under provincial jurisdiction, but the appointments themselves are made by the federal government.
There is a definite relation between the appointment and the retirement of a person. The same government is responsible for appointing and retiring a judge.
Since the present act seeks to establish that judges may be retired at age 75, I suggest that this bill, which deals particularly with their removal or retirement, is of a general character and that we have a right to legislate in this matter, without any reference to the parliament in London.
Section 11 reads as follows:
Notwithstanding anything in the Interpretation Act, 1889, the expression "colony" shall not, in any act of the Parliament of the United Kingdom passed after the commencement of this act, include a dominion or any province or state forming part of a dominion.
That is clearly to establish that we got rid of our colonial status in 1931, when the treaty of Westminster was signed.
Mr. Speaker, now that Canada has gained international status, now that it is a member state of the United Nations in its own right and not as a member of the British empire, and also a member of NATO in its own right, and not as part of the British empire, I maintain that the action now taken by this government is a step backward and that we have no right to let it be so.
If we want to legislate in this matter, the government may, if it sees fit, establish that judges are to be retired at age 75.
However, there are men who, at 75, have acquired a rare maturity, a very sound judgment, and who are endowed with a physical energy which enables them to continue in office. But-and that is the point I want to stress-if the legislation were to pass here in Canada the London parliament should not be asked to legislate in a field which is our own concern.
That is why I favour the proposed amendment, because I am satisfied that it would benefit Canada and safeguard our independence.
(Text):


Edmund Davie Fulton: Mr. Speaker, I should like at the outset to establish that in speaking now I will be speaking to the amendment moved by the Leader of the Opposition (Mr. Pearson) because I

Amendment to B.N.A. Act should like to deal with that matter inasmuch as the hon. gentleman did advance some arguments that require to be dealt with. As Your Honour knows, however, I do have to move an amendment myself and I should like to have it clear therefore that in speaking now I am speaking to the amendment of the Leader of the Opposition. At a later stage I will speak, I expect very briefly, mainly to move the amendment that the Prime Minister (Mr. Diefenbaker) indicated this morning should be moved.
I am certain that all hon. members appreciate and certainly I appreciate the spirit in which this subject has been approached by the hon. members who have taken part in this debate. Indeed, I appreciate very much the constructive if critical approach of the Leader of the Opposition to the resolution now before the house. With regard to his remarks concerning the position in connection with constitutional amendments generally, I think it is correct to say that there is no disagreement in principle between this side of the house and that side of the house. In fact, I thought I detected a substantial measure of agreement between what the Prime Minister had to say and what the Leader of the Opposition had to say in that regard.
This is not, it seems to me, a matter upon which one should indulge in a betting or racing contest. I know that when my hon. friends opposite had responsibility of office they made sincere and conscientious efforts to find a method under which, by general agreement, the constitution could be repatriated, brought home to Canada and made capable of amendment in Canada. It is true that on occasion one seeks to make political capital out of the failure of his opponents to solve the problems that confront us. But I think in this connection one should attempt- although one is not always successful at least one should attempt-to resist that temptation and approach this subject as I do on the basis that if my hon. friends were not successful that was something to be regretted by us indeed as much as by them.
With respect to this subject, this is an attempt that we intend to carry on sincerely and conscientiously. We have hopes of success. All I can say at the moment, however, is that we are working on that subject and that at a time when it seems appropriate, when we have been able to record some progress, then the Prime Minister will announce to the house what progress has been made. So with respect to the question of the

constitutional amendment itself I am not going to go into detail because I think that at least in principle and with respect to objective there is no disagreement between us. I should like therefore to confine the detail of my remarks to the arguments and criticisms advanced by the Leader of the Opposition with respect to the resolution itself.
The resolution, if I apprehended the hon. gentleman's remarks correctly, was criticized on three main grounds by the Leader of the Opposition and I shall deal with his three chief criticisms in a moment. But before making those criticisms the hon. member raised a general question, which was: Is there any urgency with respect to this proposal? As the hon. gentleman said, "Here you are amending the constitution; you are still having to do it in the old and time-honoured method by an address to Her Majesty praying that she will cause the United Kingdom parliament to take certain action," and therefore as the hon. gentleman said and I think quite properly, "you must be satisfied that there is urgency about the question when you are asking parliament to adopt such a resolution."
I should like then to deal briefly with the question of urgency. I think there is urgency about this and I believe the question of urgency can be answered on three grounds. First, there are the requests that have come from people who are outside the House of Commons and the government, but who are concerned with the position of the judiciary. Second, there are the efforts that have been made over the years to find some method of achieving this result, that is bringing about a situation under which the judges of superior courts will be retired at 75. Third, there is the fact that for the first time in the history of this matter we now have agreement of all the ten provinces that in fact this proposal should be put forward.


Paul Joseph James Martin: Would the hon. gentleman repeat number one?


Edmund Davie Fulton: The first ground on which I say there is urgency is that of an analysis of the requests received from persons and bodies outside parliament and the government itself. Wc in the government believe it is urgent and I bring to my support of that view the requests we and other governments have received over the years particularly from such organizations as the Canadian Bar Association.
I have here a list of the various occasions on which the Canadian Bar Association has

requested such action. It may go back further than the period covered by my list but mine goes back as far as 1936 when there was a resolution of the council of the Canadian Bar Association urging upon the minister of justice to adopt the necessary means to put into effect the principle, and I quote:
[DOT]-that a judge should generally retire when reaching the age of 75 years.
Then, in 1937, a report of the committee on the administration of civil justice of the Canadian Bar Association included the recommendation that the judges of superior courts of provinces should be subject to the same compulsory retirement rules as judges of the federal and county courts. In 1944 a resolution of the Ontario section of the Canadian Bar Association urged the establishment of a compulsory retirement age of superior court judges at 75. In June, 1952 there was a letter from the president of the Canadian Bar Association requesting the consideration of the requirement of judges of superior courts at 75; in 1953 a letter from the president of the Canadian Bar Association expressed the hope that the necessary amendment to the British North America Act would be passed soon. That was January 23, 1953.
On September 12, 1953 a resolution of the Canadian Bar Association urged the government of Canada to take the necessary step to bring about the compulsory retirement of superior court judges at the age of 75. Then on March 10, 1955 there was a letter from the president of the Canadian Bar Association, on behalf of the council of the bar, urging generally that action be taken to deal with this matter. The most recent one is the resolution of the annual meeting of the Canadian Bar Association in Vancouver on September 4, 1959, reading as follows:
Resolved that the Canadian Bar Association reiterates its recommendation for the compulsory retirement of superior court judges at the age of 75 years, and suggests that the question whether parliament has under the British North America Act No. 2, 1949, power to amend the constitution of Canada to so provide be submitted to the Supreme Court of Canada.
So, Mr. Speaker, over the period of years, at least from 1936 until the present, there have been no fewer than eight submissions from the governing body of the bar of Canada urging that the parliament of Canada take action to deal with this problem and to provide for a retirement age of judges of the superior courts at 75 years.


Paul Joseph James Martin: As to the age of
retirement there is no difference of opinion.


Edmund Davie Fulton: Quite so. I am dealing now with the general question raised by the Leader of the Opposition as to whether there is urgency to deal with this matter. I think that what
Amendment to B.N.A. Act I have said establishes that, in the view of that organization, which apart from parliament itself is most responsible and has most responsibility as well as authority in this matter, it is a very urgent problem.
The second ground upon which I say the question of urgency raised is completely answered is the history of the efforts over the years to deal with this matter. Surely it would be agreed by my hon. friends opposite that if there was no urgency, governments of which they have been members and which their party has supported over the years would not have made the quite strenuous efforts which have been made to deal with this problem and find a solution of it. This, however, is the fact; the governments of which my hon. friends were supporters and of which some of my hon. friends were members, have made conscientious efforts to find a solution to this problem. It is a fact also that the solution which my hon. friends thought was the proper one when they had the responsibility, was to bring forward an amendment to the British North America Act to provide, with the consent of the provinces, that there should be inserted an amendment to section 99 of that act providing for compulsory retirement of superior court judges on reaching the age of 75.
Reference was made in passing by the Prime Minister this morning to some of those attempts. Perhaps I could just add some details. Not every attempt in this field has been by way of amendment of the British North America Act but I think the majority of them-and certainly the sound ones-have been along those lines. In 1920 consideration was given to the amendment of the British North America Act to provide for removal of judges by the governor in council upon the finding of a commission of inquiry that a judge was disabled from the due execution of his office by reason of age or permanent infirmity. Indeed, in 1920, the then minister of justice-and this, of course, was a Conservative minister of justice-introduced a resolution to this effect which, however, remained on the order paper all during that session and was not dealt with.
Then in 1926-27 there was the provision which has been referred to this morning dealing, of course, only with the Supreme Court of Canada and the exchequer court and not requiring a constitutional amendment. In 1933, as the Leader of the Opposition pointed out, there was what perhaps might be fairly described as an attempt to overcome the difficulty of the constitutional amendment and find another method of providing in effect for the retirement of judges of superior courts. That bill, although passed by the House of Commons, was defeated in the Senate.

Amendment to B.N.A. Act
Then in 1936 I am informed a bill was drafted giving superior court judges who had served 20 years or more and who resigned at 75 an annuity equal to their salaries, but nothing came of it.
In 1944 there was a further attempt by way of a private bill introduced by Mr. Stanley Knowles, on the same lines as the 1933 bill, except the retirement on salary would have applied at the age of 70 instead of 75. That bill did not pass the House of Commons.
In 1945 the then minister of justice, the Right Hon. Mr. St. Laurent, made an attempt to reach an agreement with the provinces on this matter. On January 2, 1945 he wrote to the attorney general of each province suggesting for his consideration an amendment to the British North America Act to provide for the retirement of superior court judges upon reaching a certain age. He suggested that the matter should be brought up at the next dominion-provincial conference. Replies were received from six of the provinces, and there is a letter on file indicating the matter was placed on the agenda. However, at that time Alberta disagreed with the whole method of amending the constitution and wished to discuss this question in full. No replies seem to have been received from the provinces of British Columbia, Saskatchewan and Nova Scotia. My hon. friends will find a full statement by Mr. St. Laurent reported at page 2711 of the House of Commons debates for 1946, in which he outlined his attempts to get agreement on this matter and to have it discussed, and reported the failure of those efforts.
A further attempt was made in 1955 by my immediate predecessor in the position of minister of justice when Mr. Garson urged the Canadian Bar Asociation to suggest to the provincial attorneys general that they might co-operate with the government of Canada on this matter. The results of those efforts are recorded in a letter from the then president of the Canadian Bar Association to Mr. Garson, dated March 10, 1955, in which the president reported that all the provincial vice presidents had been in touch with the attorneys general of their respective provinces, and he records the result which again unfortunately was lack of unanimity. That letter from the then president of the Canadian Bar Association concludes with these two paragraphs:
I have found that the members of the association all across Canada consider that this matter is an urgent one and that, in the interests of the administration of justice, action is required thereon.
I would bespeak your early consideration of the earlier and continuing recommendation of the Canadian Bar Association.


Mr. Pugh:: Will the minister indicate whether that which was requested was an amendment of the British North America Act?


Edmund Davie Fulton: There have been a variety of requests. However, the majority of them have recognized that amendment of the British North America Act is the proper method of bringing about this result. There are letters from the bar association which refer specifically to the desirability of getting amendment of the British North America Act. The majority of the recommendations take that form. There are other letters which merely refer generally to the desirability of bringing about the retirement of judges of superior courts at age 75.
The last recommendation from the bar association, that is the one of 1959 to which I referred earlier, recognized that an amendment to the British North America Act is essential, and actually suggested that this question be referred to the Supreme Court of Canada.


Paul Joseph James Martin: Will my hon. friend permit a question? Has he any reference there that would indicate that the national bar association has at any time indicated that compulsory retirement of district or county court judges can be effected only by way of constitutional amendment?


Edmund Davie Fulton: Oh, no, Mr. Speaker; I have not attempted to suggest that.


Paul Joseph James Martin: I know that.


Edmund Davie Fulton: I will come to the question of district and county court judges, in the course of my reply to one or two points made by the Leader of the Opposition. I am dealing, at this time, only with the question of urgency of the provision of a retirement age of 75 for superior court judges. I have, I believe, covered the second point in answer to the question of urgency, the answer which is given by the number of attempts made by governments over the years in Canada to find a formula under which this might be accomplished.
The third ground of urgency as to why this proposal should be put forward now and why the government urges upon parliament that it should adopt the resolution presenting the address is that for the first time in the history of this matter we do now have the unanimous consent of all ten provinces. This is the first time that has occurred during a period extending back at least as far as 1936, if not farther than that. I am not going to attempt to lay down any constitutional principle here, but I do suggest to my hon. friends that since governments are not bound

by decisions of previous governments with respect to matters of this kind, I am not at all certain that it would be proper for me to obtain the consent of a province to a certain proposal in 1959, shall we say, and then not act upon that proposal until perhaps 1961. In my view, I am under an obligation to act promptly, and in so far as we present to parliament the consent of the provincial governments as a basis for what we are asking parliament to do, then I think parliament should proceed on the basis that it must act with reasonable expedition with respect to the proposal to which the provincial governments have consented.
I do not believe it would be a proper thing for a minister of justice, or a prime minister, to come before parliament two or three years from now and say, we had the consent of all the provincial governments back in 1959, so we are asking parliament now to act upon that consent or to act with the knowledge of that consent. My position is not to attempt to lay down any constitutional principles on this point; but my position is simply that as a responsible minister and a minister who expects to have good relations and businesslike relations with the ministers of provincial governments with whom I deal I cannot too long delay acting in accordance with the consent I have received. I do not believe good relations could be furthered or maintained if one were to wait for more than a reasonable period and then, without going back to the provinces, come before parliament and say that we did have the consent of the ten provinces.
I suggest to parliament, therefore, that having now for the first time in the history of this subject obtained the unanimous consent of the ten provinces, having it established as I conceive it to be established that this is a sound, desirable proposition, it is then incumbent upon parliament in the national interest to deal with the proposition while that consent of the provinces is real consent in the sense that it has recently been given.
I am quite certain I do not need to labour the point. All hon. members would agree with me that it would be, if not a breach of faith at least a straining of good relations, if we were to allow this matter to lie over for another year or two years and then attempt to deal with it, without going back to all the provinces to ascertain if they were of the same view as they had expressed in the latter part of 1959 when they consented to this proposal. I do state quite emphatically and categorically, Mr. Speaker, that it seems to me the question of urgency raised by the Leader of the Opposition is effectively answered on the three grounds I have advanced.
Amendment to B.N.A. Act
I should like, then, to go to the three specific criticisms that he made of the proposal contained in the address which we are asking parliament to adopt. One was that what is involved here amounts to a breach of contract with respect to the judges who have been appointed to office before this resolution is adopted by parliament. The second point was that he objected to the equation of district and county court judges on the one hand with superior court judges on the other in the resolution and the proposed address. The third point was that he criticized us for including the position of county and district court judges, in effect, under the constitution of Canada instead of leaving them where they have been in the past, in his submission, to be dealt with exclusively under the Judges Act with respect to their tenure of office.
I should like to leave the first point to the end because it seemed to me to be the most important of the points raised by the Leader of the Opposition, and go directly to the second point in which, if I understood him correctly, he objected to the equation of district and county court judges on the one hand with superior court judges on the other in so far as their tenure of office is concerned. In answer to this criticism I would point out to you, Mr. Speaker, that in my view this is a very proper equation to make. The only provision for retirement of county court judges at the present time is found in sections 31 to 33 of the Judges Act. This is a very difficult, far-reaching, and indeed I might almost say terrible procedure. This provision calls for the appointment of a commission by the minister of justice to inquire into the question of whether or not a judge has become incapacitated or disabled from the due execution of his office by reason of age or infirmity. Then, sections 32 and 33 provide for the carrying on of that commission of inquiry, for the laying of the report before parliament.
This, I have described, as a very terrible method of procedure and one that, to my knowledge, if I recollect correctly, has only been resorted to once in the whole history of Canada. If I understand it correctly, this is the only procedure available at the present time for the removal from office of a district or county court judge prior to his reaching the age of 75 years.
It is true that the constitution does give the government or rather the governor general the power to appoint a district, county or superior court judge under section 96, but the constitution is silent on the removal of district and county court judges. Section 99 does provide for the removal of superior court judges. This is the reason I say that at the present time the only method of removal of

Amendment to B.N.A. Act county or district court judges, prior to reaching the age of 75 years when they automatically retire, is this very difficult and terrible provision under the Judges Act.
This situation, however, does not apply to superior court judges. In so far as superior court judges are concerned, there are three ways by which they can be removed from office at the present time. The first is by virtue of the provisions of section 99 which mentions good behaviour. There could be a court action bringing into question the good behaviour of a judge and calling for his removal; that would be the first method. Second, there is the simple method of an address of both houses of parliament, and I shall have more to say about this in connection with the alleged breach of contract. As I have said, section 99 provides that superior court judges can be removed by an address of both houses, and that is the second method.
I said there were three methods by which we could at the present time remove superior court judges, but actually we are providing the third method by this proposed address; that is that by the limitation on their age they will be removable or will cease to hold office at age 75 years. If therefore we did not include district and county court judges under the same general provisions we would have in effect only two methods of removing these judges whereas we would have three methods of removing superior court judges.
The other important feature to be considered in this connection is that we would not have provided for district and county court judges any security of office. They would not be appointed to hold office during good behaviour. There is an interesting comparison between the position of district and county court judges now and the position of superior court judges. Section 99 of the British North America Act provides that the judges of the superior courts shall hold office during good behaviour. It makes no mention whatsoever of the judges of district or county courts. It therefore seems to us to be entirely defensible that when we are instituting the last provision or the ultimate provision which now will make all judges appointed by the federal authority subject to termination of office at the age 75 years, that we should equate the conditions under which they hold their office, one with the other. It is therefore a perfectly proper and indeed a desirable thing that the conditions of tenure of office as well as the circumstances regarding the removal from office of district and county court judges on the one hand should be equated to and made similar with those conditions applicable to superior court judges

on the other. We therefore propose to amend the constitution in order to make the situation clear.
With regard to the question of why it is desirable to place the district and county court judges provision in the constitution, may I point out that, as my letters to the provinces which are on record have indicated, it is our view that there is a question as to the constitutional validity of that provision of the Judges Act which now provides that county court judges should retire at age 75 years. May I point out that under section 92(14) of the British North America Act the provinces are given exclusive authority over the administration of justice in the province, including the constitution, maintenance and organization of provincial courts, both of civil and of criminal jurisdiction. In those provinces which have county and district courts the organization, constitution and authority of those courts are matters to be dealt with by the provinces in exactly the same way and to exactly the same extent, so far as I have been able to appreciate, as is the case with the superior courts. Both courts are regulated, organized and have their jurisdictions established by the provinces. It seems to me that the courts at both levels have their organization and jurisdiction established under the authority conferred on the provinces by section 92(14). If that be the case, then it seems to me to be an anomaly, and to raise a serious question as to why, if it requires a constitutional amendment, as I believe it does, to impose a retirement age of 75 years on judges of superior courts, it does not take the same sort of amendment to impose that same retirement age on county court judges.


Paul Joseph James Martin: Because of the B.N.A. Act-


Edmund Davie Fulton: The B.N.A. Act is silent on the point.


Lester Bowles Pearson: It mentions others.


Edmund Davie Fulton: The B.N.A. Act may mention others but it does not mention the retirement age of either county or superior court judges. The B.N.A. Act, section 96 states:
96. The governor general shall appoint the judges of the superior, district, and county courts in each province,-
That is all it says. Then in section 99 states as follows:
99. The judges of the superior courts shall hold office during good behaviour, but shall be removable by the governor general on address of the Senate and House of Commons.
The B.N.A. Act is completely silent as to retiring age, whether it be with respect to district and county court judges or judges of superior courts. If therefore we say-as

Amendment to B.N.A. Act
we say here-that it takes a constitutional amendment, with agreement of the provinces, to impose a retiring age on judges oi the superior courts which are courts under provincial authority, then we say it takes a similar constitutional measure to impose a retiring age on judges of county and district courts which are also courts of provincial organization and authority.


Paul Joseph James Martin: Will the minister permit a question?


Edmund Davie Fulton: Yes.


Paul Joseph James Martin: Because of the importance of this matter and because of the long standing practice on the part of all governments, has my hon. friend been able to find in the departmental tiles any suggestion on the part of his predecessor that there was in the British North America Act any implication that would warrant the interpretation with regard to district court judges that the Minister of Justice has given us this afternoon?


Edmund Davie Fulton: Yes. I have discussed this matter at great length with my departmental officials because I realize that what I am doing is not to be lightly done. That is the view of my advisers. I do not wish to shelter behind their opinion or in any way to suggest that the responsibility is theirs. It is my view which coincides entirely with theirs-or shall I put it the other way, that their view coincides entirely with mine-and upon which I am resting my case here in the House of Commons this afternoon, that while the provision has not been challenged in the courts, it is true, there is involved a residual doubt as to the authority of this parliament to impose a retiring age on a judge of a county court, which court is organized and constituted by a province. If, as we believe is the case, it requires a constitutional amendment with the agreement of the provinces to impose a retiring age on superior court judges, then we should remove the residual doubt as to county courts. We are not changing the situation as to retirement age, we are merely removing a doubt as to the validity of the provision, by including district and county court judges in the same constitutional amendment in which we are now providing for the judges of superior courts with respect to their retiring age.


Lester Bowles Pearson: I do not wish to interrupt my hon. friend but can he give us the date of the first act passed by this parliament which provided for the compulsory retirement of district and county court judges?


Edmund Davie Fulton: Yes; I think it was 1920. No, fit was 1912.


Lester Bowles Pearson: It was prior to that time.


Paul Joseph James Martin: It was in 1889.


Lester Bowles Pearson: 1903.


Edmund Davie Fulton: Perhaps I should ask to be allowed to answer that question at the conclusion of my remarks and in the meantime I will get the authoritative information.
Having attempted and, I believe, having succeeded in establishing the desirability on constitutional grounds of making the same provision with respect to county and district court judges as is made in respect to superior court judges, may I deal with the third point made by the Leader of the Opposition, namely that this is a constitutionally regressive step. The Leader of the Opposition said that to enact now a constitutional amendment providing the retirement age of 75 years for district and county court judges means that if you want to change that retiring age, it will be necessary to go to the United Kingdom parliament for that change whereas, previously, when the authority for district and county court judges retirement age rested in the Judges Act it was not necessary to refer the matter to the United Kingdom parliament if you wanted to change that age.
With the facts of the argument I have no quarrel. It is quite true that if we now embody in the constitution a provision governing the retirement age for county court judges, we can only change it by further constitutional amendment. But again I think this is a desirable feature; and I think it is also desirable that the retirement age for superior court judges should be in the constitution rather than elsewhere. The reason is this. There has been criticism advanced in the country, criticism which must be dealt with, that parliament is being asked here by the government to make an attack upon and to remove the basis of the independence of the judiciary; that this is just the opening wedge for interference by the government with the judiciary because-this criticism runs-the government is now saying to parliament that with respect to those who have previously enjoyed a life tenure of office that tenure is now ended at 75 years of age.
Mr. Speaker, this is not in my view a criticism which can be substantiated because I do not think anyone disagrees with the principle that judges should be retired at 75. I do not think it has to be met on that ground, but perhaps it should be met on the ground that this is not giving the government as such-the executive-the right to determine the conditions under which judges will hold office or under which they will leave office.

Amendment to B.N.A. Act
I think it would have been most undesirable had we adopted one course which might have been adopted, and that is to ask for a constitutional amendment conferring upon the government of Canada the right to determine the retirement age.


Paul Joseph James Martin: That is what you should have done.


Edmund Davie Fulton: That is not what we should have done. We were urged in some quarters to do this, and not to put the age in the amendment itself but to ask for an amendment which would say that the government or the governor in council or parliament may determine the retiring age of the judges. Hon. members are familiar with all the arguments in that regard and the argument as to whether or not it is more difficult to get a constitutional amendment than it is to get a bill through parliament. But by enshrining it in the constitution, I say that we have taken advantage of all the arguments made by my hon. friends and others in other spheres, that we are placing beyond the whim and reach of the government of the day the right to determine what shall be the retiring age. We can now only change this retiring age by asking parliament to enact a further constitutional amendment, and we do it this way quite deliberately simply because we think it is important that the principle should be maintained, that it is not this government or this parliament alone which determines the retirement age of judges of provincial courts. Since the judiciary is in fact established under the constitution, and the relationship between the judiciary, the executive and the legislatures is established by the British North America Act itself, we feel that this change and further changes as important as this should be made only as the result of a constitutional amendment and not placed within the reach of the unfettered legislative authority of one of the legislatures which make up the total of legislative authority in Canada.
That seems to me to be a very good reason for enshrining the age limit with regard to county and district court as well as superior court judges in the constitution. This, of course, is quite different from the case of the Supreme Court of Canada and the Exchequer Court of Canada. Those courts are creatures of the federal parliament exclusively. Their judges are not, as in the case of district, county and superior courts, joint responsibilities in the sense of being appointed under the federal authority in Canada to courts established under the authority of the legislature of a province. So we believe it to be quite sound to place the retirement ages of all judges of such courts in the


constitution rather than under the legislative authority of the dominion parliament alone.


Mr. Deputy Speaker:: I am sorry to interrupt the minister but his time has expired.


John Whitney Pickersgill: Mr. Speaker, on a point of order, surely the minister is replying to what could be regarded as a vote of want of confidence and therefore has unlimited time.


Mr. Deputy Speaker:: I think it would be preferable, rather than discuss the point raised by the hon. member for Bonavista-Twillingate for the house to give consent to the minister continuing his remarks.


Some hon. Members:: Agreed.


Paul Joseph James Martin: May I ask the
minister, before he goes on, if he could tell us how many superior court judges and how many district court judges it is estimated will be affected as a result of the completed act?


Edmund Davie Fulton: Yes; may I answer that now. District court judges will not be affected at all because they already have a retirement age; we are merely continuing that by the address. With regard to superior court judges I think the figure is 12, but I have it here and I will give an authoritative answer later. That is, there are 12 who are now 75 or will be 75 by March 1, 1961.
I appreciate what the house has done with respect to extension of time, if it be an extension. I have a third point to deal with and I shall be as brief as I can, but I think it is the most important point, and that is the question whether there is in this proposal anything amounting to a breach of contract with judges who have already been appointed to the superior court.
Mr. Speaker, in my view this is a point which it is in a sense difficult to refute but which on a proper analysis of the situation can be refuted completely and specifically. I recognize this is a criticism which was made by Mr. Bennett of the legislation in 1927, although it was disregarded by the government of that day; but that does not seem to me to establish one way or the other the accuracy of the point, merely the fact that it was disregarded.


John Whitney Pickersgill: Especially as that government changed its mind.


Edmund Davie Fulton: It took it three years to do it, and they did it not because they realized the error of their ways; reading of history convinces me that they did it because they were embarrassed over the retirement of a particular judge three years later, but that may be a difference of interpretation too.

The fact of the matter is that there is in my view a fundamental fallacy in this argument that there is a sanctity of contract in this field which is being breached by the legislation now before the house. If hon. members will refer to section 99 of the British North America Act they will find it reads as follows:
The judges of the superior court shall hold office during good behaviour, but shall be removable by the governor general on address of the Senate and House of Commons.
The important thing to bear in mind in reading that section is that there is no mention there that the Senate and House of Commons must assign cause for the removal. I recognize fully that no Senate or House of Commons would act capriciously and simply vote an address to remove a judge from office because it pleased them to do it and it suited their fancy at the moment. It is true they would only act on what to them at that time was represented and accepted as good and sufficient cause. But the fact is that the British North America Act now says that a judge of the superior court can be removed from office by a joint address of the Senate and House of Commons. That is all it says on that point.
That is a provision that has been in the British North America Act since 1867. It is under that provision that every judge appointed to a superior court since 1867 has been appointed, and has been subject to being removed under the provisions of section 99 at any time that the Senate and House of Commons so decide.
What we are submitting to the House of Commons today is that the Senate and House of Commons should decide that the attainment of the age of 75 by a judge of the superior court is sufficient reason to suggest that his office be terminated. That is all that is being suggested. No new legislative principle is being introduced regarding the power of removal from office. All that is happening is that the House of Commons-and the Senate when the address comes up there-will be asked to lay it down as a sound and fundamental rule that with respect to judicial office the attainment of the age of 75 is sufficient reason for the demission of office. That is a right which the Senate and the House of Commons has today and has had since 1867.
On the basis that I have not heard a single member of this house suggest that the general principle of a retirement age at 75 is not sound, it seems to me that all we are asking this house to do is to make that rule of general application instead of leaving it to be applied in any specific case where
Amendment to B.N.A. Act it would have to proved with regard to a particular individual by a terrible and dreadful process, that he had in fact as a result of his attaining the age of 75 become incapacitated in the discharge of his judicial function. I recognize the solidity, if you like, of the point. It is an argument which requires to be dealt with, but in my view it can be dealt with and disposed of completely on that basis alone, as well as on a number of others that I should like to mention.


Lester Bowles Pearson: Before the minister leaves that point, would he inform me, an unqualified layman on these matters, in view of his argument, what does the expression "good behaviour" mean?


Edmund Davie Fulton: The expression "good behaviour" has been judicially interpreted on a number of occasions but, with respect to the Leader of the Opposition, that point does not arise in connection with the argument I have been making, since section 99 does not lay down any condition for the passage of an address by the Senate and the House of Commons. It says-and let me read the section again:
The judges of the superior court shall hold office during good behaviour but shall be removable by the governor general on the address of the House of Commons-*


Lester Bowles Pearson: Surely one is related to the other.


Edmund Davie Fulton: I have suggested it was obvious that the Senate and the House of Commons would not act on the basis of caprice or whim, and they are not being asked to do so now. They are being asked to establish that one of the good reasons for the removal of judges from office is the attainment of 75 years, and that is the simple principle before the house.
There are a number of other points I wish to deal with, and I will try to be brief. There is, in addition to the reasons I have advanced, the question of the necessity of uniformity. If we were to accept the argument of the Leader of the Opposition, the result would be that we would have a number of judges appointed prior to this year who could carry on after the age of 75 until they chose to retire or until they died. There would be a number of other judges appointed after this date who would have to retire at the age of 75. Thus there would be a lack of uniformity as between judges with regard to pension rights, retirement rights and terms of office. Apart from the arguments I have advanced on principle, it seems to me that this would be a most undesirable situation, and the undesirability of this situation outweighs in itself any argument advanced by the Leader of the Opposition on the other side.

Amendment to B.N.A. Act


Lester Bowles Pearson: Is that not the situation in the United Kingdom now?


Edmund Davie Fulton: That is the situation in the United Kingdom, but what suits the United Kingdom and what may be applicable there is their responsibility. What is applicable here is our responsibility to determine.
I suggest there is really not much prejudice -if this be one of the grounds of opposition -to the judges who will be affected. As has been pointed out, another resolution now on the order paper will provide for an amendment to the pensions provisions. This amendment will relate the pensions of all judges to the salaries they are now receiving. Whereas at the moment they are related to the salaries in effect before 1955, it will be provided that the judges affected by this measure will have their pension rates adjusted so that they will receive two thirds of the salary they now receive instead of two thirds of the 1955 salaries. It will not be as much, it is true, as though they went out in receipt of their full salaries, but they will retire in receipt of an appreciable advance in comparison with what they would have received had they retired without such provision.


Paul Joseph James Martin: In principle, the same as the situation in 1933.


Edmund Davie Fulton: Not at all. Further, we shall be extending to March 1, 1961, by an amendment I shall be moving later, the effective date of this amendment so that there can be no suggestion that judges are being hurried out of office willy-nilly notwithstanding the many years of faithful service they have given.
Finally, I come back to the fact that we have the approval of the provinces. That approval was received on the basis of the letters which I wrote to them and which are recorded in Votes and Proceedings. These letters made no reference to any question of retroactivity with respect to this legislation; I believe I have used the wrong word: they made no reference to the possibility that judges previously appointed would not be affected by this legislation.


John Whitney Pickersgill: One way or the other.


Edmund Davie Fulton: One way or the other, and it was not intended that the letters should create that impression. The letters and the discussion I had proceeded on the basis that the legislation would become effective immediately and with respect to all judges whether previously or subsequently appointed. It was on the basis of these letters and that discussion, that provincial consent was received.
In my view, therefore, it would not be open to me to suggest at this stage that I could


consent to an amendment to give effect to the point made by the Leader of the Opposition. Before I could do so I believe I would have to go back to the provinces and ask further consent to what to my mind would be a new proposal rather than the proposal which we have placed before the House of Commons and the Senate.
For all these reasons, while I do not say that the arguments made by the Leader of the Opposition have not got weight-they have, and they must be dealt with, and I have attempted to do so openly and frankly-it is my submission that the interests of the country and the interests of the judiciary are served by imposing a retirement age on the judges of the superior courts and imposing it now so it will be of universal application. As a result, the position of the courts will be uniform throughout the country. The resolution is in the interest of the judiciary and in the interest of the public who go before the courts and are affected by the decisions of the courts; it is in accord with the consents we have received from the provinces and I hope the house will proceed on the basis of the address in its present form subject to the one amendment which I will move later.


John Whitney Pickersgill: The Minister of Justice (Mr. Fulton) has spoken with moderation and restraint, and I will endeavour to do the same, although it is very hard-


Edmund Davie Fulton: I am sorry to interrupt. I was asked if I could give certain dates. I am advised that the first amendment as to age was in 1903, chapter 29 of the statutes. It was 80 years for county and district courts, which was changed to 75 years by the statute of 1913, chapter 28.


John Whitney Pickersgill: As I was saying, the minister spoke with great moderation and restraint, and I shall endeavour to do the same, but again it is very hard for anyone who believes in parliament and the rights of parliament to speak with moderation and restraint after having listened to the last argument advanced by the minister, namely that the parliament of Canada as well as the parliament at Westminster must become a mere rubber stamp because the provincial governments have approved first-


Edmund Davie Fulton: Oh no. May I-


John Whitney Pickersgill: That is what the minister said; that we could not amend this because he had already reached agreement with the provinces. I can just imagine-


Edmund Davie Fulton: Would the hon. member permit me-


John Whitney Pickersgill: Perhaps the minister will allow me at least to finish my sentence.


Mr, Fulion:: Very well, if the hon. member wishes to persist in this misstatement of fact.


John Whitney Pickersgill: I can just imagine what would have been said by the Minister of Justice or by the Minister of Finance (Mr. Fleming) to say nothing of the Prime Minister (Mr. Diefenbaker) if any hon. member of the previous administration had insulted parliament in that fashion. I do not think it was a deliberate insult-that is what makes it worse-it was an unconscious insult.


Some hon. Members:: Oh, oh.


Edmund Davie Fulton: May I be permitted to intervene at this point. In order that we may have the debate on a proper footing perhaps I may be permitted to point out that what I said was that I could not consent to the change without going back to the provinces. I did not say that was the only reason I would not consent; and the reason, as I made clear, is that I believe the present proposal is the best one. But in any event I could not unilaterally consent to the change without going back to the provinces. That is all I said.


John Whitney Pickersgill: I suggest to the minister that he read his own correspondence with the provinces. The minister will find that with the exception of the government of Quebec in none of the rest of the correspondence is this matter, as I read the correspondence, spelled out in such detail. It is quite true that the hon. gentleman had additional correspondence with the government of Quebec which was not tabled at the time the rest was but I believe it has been made public since.
In any event we know that an address was adopted by the Quebec legislature. We also know that the question of county and district courts is quite irrelevant in the province of Quebec in any case. However, I do not intend to spend very much time on that argument because it is not intrinsically of any importance at all. It is only important as a reflection of the sad state of the minister's mind. What I really think is much more important is the doubt that was raised-and perhaps even more than a doubt in his own case-by the hon. member for Hull (Mr. Caron) in his reference to the British North America Act 1949, No. 2 which the Prime Minister erroneously referred to this morning as an amendment which gave to this parliament the power to amend the constitution in matters that came within the jurisdiction of this parliament. What it actually does, of course-and I think it is perhaps as well to 79951-0-310
Amendments to B.N.A. Act read the relevant section of it-is to confer upon this parliament the capacity for:
The amendment from time to time of the constitution of Canada, except as regards matters coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces, or as regards rights or privileges by this or any other constitutional act granted or secured to the legislature of the government of a province-
The rest of it is irrelevant to this debate. That quotation may be found at page 476 of Beauchesne's fourth edition. It is perfectly obvious, in spite of the minister's reference to the administration of justice in section 92, that no one would seriously argue for one moment that the legislature of any province could legislate with respect to the appointment of these judges, either superior court judges or county court judges, or with respect to their tenure; that an attempt on their part to legislate in this particular would be completely beyond their competence because the appointment of these judges at least and the tenure by implication, we argue, in the case of county court judges is given to this parliament; but at any rate the appointment is given to the governor in council and not the provincial governments-


Edmund Davie Fulton: The governor general, if you want the accurate reference.


John Whitney Pickersgill: Yes, the governor general, that is quite true. What can be argued, I think, is that it may come within the second part of this quotation:
-or as regards rights or privileges by this or any other constitutional act granted or secured to the legislature of the government of a province-
I know many eminent jurists in this country-indeed they are among the most eminent-who take the view that there would be no doubt since that amendment was made in 1949 that parliament could legislate with respect to the tenure of superior court judges. I am rather surprised since the minister emphasized so much the advice of the Canadian Bar Association that he did not take that advice which could have been taken last autumn right after they gave it in September, and make the reference they suggest to the supreme court, because it is perfectly obvious that the eminent members of the Canadian Bar Association who drafted the resolution were of the view that it was at least arguable that it was within the competence of this parliament to legislate in this matter or they would not have suggested a reference to the supreme court.


Edmund Davie Fulton: I suggest it might have been because they never thought we would get the consent of the provinces, which in fact we did.

Amendment to B.N.A. Act


John Whitney Pickersgill: The minister is making a reflection upon the bar association of Canada which I would not wish to make.


Mr. Bell (Saint John-Albert):: You are
making a reflection on the provinces.


John Whitney Pickersgill: 1 would not like to suggest that the eminent members of the Canadian Bar Association would suggest to the government that it do something of dubious constitutional validity because they simply did not think it could be done in a proper way. I think more highly of the Canadian Bar Association than does the Minister of Justice.


Edmund Davie Fulton: Is my hon. friend suggesting that this is an improper way we are embarking on now? Is my hon. friend suggesting it is improper to get the consent of the provinces?


John Whitney Pickersgill: No, I am suggesting that I agree with the Canadian Bar Association that there is a question, a doubt. That is all I am suggesting.


Edmund Davie Fulton: The hon. member does not suggest then that this is an improper way?


John Whitney Pickersgill: Not at all and if the minister will allow me to proceed as I allowed him to proceed he will soon And out.


Mr. McPhillips:: Why do you not proceed with your law course; then maybe you will learn something.


Mr. Speaker:: If hon. members wish to ask questions they should rise.


Lester Bowles Pearson: If the hon. gentleman rose he would not be able to speak.


John Whitney Pickersgill: You know, Mr. Speaker, one is awfully tempted to answer that question but I will resist the temptation. As I was saying when I was interrupted, I do not think that anyone would question that if the British parliament does do what this parliament is going to ask it to do, if the government is successful in getting this motion through in the form in which it wants to put it through, or even in the form in which we are willing to have it go through, I do not think there will be any doubt about the fact that the courts would say that so far as superior courts are concerned it would be valid.
There is some question in my mind, but it is only a question in my mind, and I do not consider I am a sufficiently eminent authority -I do not think perhaps anyone is because in the end it would have to be settled by the court of final resort-but there is some doubt that this parliament, even by a joint address, could confer again upon the British

parliament a jurisdiction of which under the Statute of Westminster it would have appeared to have divested itself. There is no doubt that the British North America Act of 1867 as amended from time to time is the law of Canada and what we usually call the constitution of Canada, but there is nothing in that act which says anything whatever about the tenure of county and district court judges. I question whether in the year 1960 the parliament of Canada by an address can confer upon the British parliament a jurisdiction of which it divested itself when we ceased to be technically a colony in 1931. That it seems to me is a strong additional objection to those made by my leader to the inclusion of county and district courts.
I am going to deal in the opposite order with the arguments of the Minister of Justice and before dealing further with the subject I just mentioned I want to say something about this business of breach of contract. I must say that I thought I had heard the ultimate in casuistry in the past, but I never heard an argument that quite equals the argument put before us today by the Minister of Justice, the suggestion that because this parliament is sovereign it could or would or was designed or intended capriciously to remove judges without cause. The minister went on very quickly to say that we would never do it. I hope we would never do it, but I never thought I would hear any minister of justice get up in this house and say it is a theoretical possibility.


An hon. Member:: We can do anything theoretically.


John Whitney Pickersgill: It is part of a sentence; not a separate sentence, but part of a sentence the other part of which refers to good behaviour which, as the minister has said, is a term of art which has been defined by the courts. What I have understood and what I think most plain-minded people have always understood is that the only way a judge who was guilty of a breach of good behaviour could be removed was by an address of both houses but that this was merely a procedure which could be followed in cases where it was warranted.
Since 1867 we have had life tenure in the superior courts of this country and, as the Prime Minister pointed out this morning- and I do not go about looking for reasons to agree with the Prime Minister but this time I do-the courts of this country are held in as high repute as the courts of any other country, and the judges of this country in as high repute as the judges of any other country, notwithstanding the fact that they have had life tenure for 93 years and, indeed, in

colonial times before that. It does not appear to me that they are suddenly, precipitately, going to deteriorate after March 1, or whatever the date is, 1961, and suddenly become corrupt and incompetent after the age of 75. If we have been able for 93 years to endure the regime that we have now I would think the country would not suffer damage by allowing those judges who have already been appointed to serve out the tenure on which they had accepted their positions from a government and a parliament and a country which on a whole have kept their word.
There is another gentleman with whom I did not often agree in his lifetime but with whom I certainly agree on this occasion. I think that what Mr. Bennett said in 1927 was right, and I am very proud of the fact that Mr. Lapointe came to see that it was right and was a big enough man to change his mind over it. I do not think there is anything to be ashamed of in that at all. But I do think with that precedent it is all the more shocking to ask us to take a course which I can only regard as a dishonourable one.


Paul Raymond Martineau: Will the hon. member permit a question?


John Whitney Pickersgill: Certainly.


Paul Raymond Martineau: Does the hon. member disagree with his leader who stated that he was in favour of the retirement of judges at 75?


John Whitney Pickersgill: Well, Mr. Speaker,-


Paul Joseph James Martin: That is not the
point.


John Whitney Pickersgill: The parliamentary secretary to the Prime Minister should take a course in listening because the Leader of the Opposition said at the very outset of his-


Mr. Ricard:: He said he was in favour.


John Whitney Pickersgill: I am answering the question. I allowed the hon. gentleman to ask it; I surely might be allowed the courtesy of answering it without any help from the hon. member from St. Hyacinthe-Bagot.


Paul Raymond Martineau: You need his help.


John Whitney Pickersgill: The hon. member can speak only from his seat.


J.-H.-Théogène Ricard: That is another one of your innuendoes.


Mr. Speaker:: Order. It does not expedite debate for hon. members to interrupt, particularly from their seats. If they have questions to put, the proper course is to rise and get the consent of the member who has the floor; otherwise they are duty bound to observe silence.
79951-0-310i
Amendment to B.N.A. Act


John Whitney Pickersgill: The Leader of the Opposition said at the very outset of his remarks that we in this party are in favour of the retirement of judges, appointed after this legislation goes into effect, at the age of 75, but we do not believe we should unilaterally terminate existing contracts. I was astounded to hear the hon. member for Kootenay West (Mr. Herridge) suggest that it was quite all right to terminate a contract unilaterally. I can imagine what the hon. gentleman and members of his party would have said if the government had brought in legislation to change unilaterally a collective agreement between labour and management and yet, because those judges are not allowed to enter into collective bargaining, apparently it is quite all right to treat them in a dishonourable fashion, to legislate unilaterally a change in their terms of employment.


Edmund Davie Fulton: One more question on that point. Does the hon. gentleman suggest that even after the legislation of 1930 judges of the supreme court and the exchequer court were not compulsorily retired and their contracts terminated?


John Whitney Pickersgill: No, I do not suggest that. I do think that while I would not wish to do it and I would not wish to be a party to it, there would not be very much strength in my argument if the government put forward a proposal even for compulsory retirement on full salary. It then seems to me-


Edmund Davie Fulton: That is the difference between us, then.


John Whitney Pickersgill: No. I say to the minister I would not wish to be a party to that, but I would think my criticism would be on very much less solid ground if that were done as was done in 1930.	'
Personally I do not think the country would suffer any very great damage from carrying on throughout the lifetime of those judges who do want to stay on after 75-and we know many of them do not, anyway-and are capable of doing it, and if they are not capable of doing it there is machinery now for dealing with them even though the governments have not often used it. They have never used the other machinery of a joint address. Therefore, I say, so far as I am concerned and so far as the amendment moved by the Leader of the Opposition is concerned, which I am supporting very strongly, I do think that to take this course is to take the course of dishonour.


Mr. Bell (Carleton):: Will the hon. member
permit another question?


John Whitney Pickersgill: Certainly.

Private Bills-Divorce


Thomas Miller Bell: Does the hon. gentleman assert that Mr. Lapointe and Mr. Mackenzie King acted with dishonour in 1927 in respect of the Supreme Court of Canada and the Exchequer Court of Canada?


John Whitney Pickersgill: I suppose that is really what my argument means. That is what Mr. Bennett said it was.


Edmund Davie Fulton: No; Mr. Bennett never used the term "dishonour".


Lester Bowles Pearson: Breach of contract.


John Whitney Pickersgill: I have always considered a breach of contract dishonourable. That is the way I was brought up. I believe it was because Mr. Lapointe and Mr. Mackenzie King came to realize what they had done was not right that they changed their minds and were men enough to come into this house and have the law changed. I know we have been accused-we were accused a few years ago-of considering that we were infallible, but Liberals never have considered they were infallible; they have never considered that they could not learn, and even learn from their own mistakes, but I must say other hon. gentlemen make many more mistakes to learn from.


Mr. Speaker:: It being five o'clock, the house will now proceed to the consideration of private and public bills, the former having precedence, pursuant to standing order 15.



PRIVATE BILLS

Mr. Speaker:: The house again in committee of the whole on certain divorce bills.


Mr. Hanbidge:: Mr. Speaker, before we proceed to divorce bills may I get the consent of the house to deal with order No. 265, Bill No. S-31, to incorporate Northern Pipe Line Company, in advance of the other business of the house?


Mr. Speaker:: The hon. member is asking for unanimous consent to take up order No. 265, the house in committee of the whole on Bill No. S-31, to incorporate the Northern Pipe Line Company, in advance of the other business of this hour. Does the house give unanimous consent?


Some hon. Members:: Agreed.



CONSIDERED IN COMMITTEE


[Stage Direction]
Bill No. S-31, to incorporate Northern Pipe Line Company-Mr. Hanbidge.

[Stage Direction]
The house in committee on Bill No. SD-53, for the relief of Earl Bernard Lapierre- Mr. McCleave-Mr. Flynn in the chair.

On clause 1-Marriage dissolved.
Mr. Howard:: Mr. Chairman, the petition in this particular instance indicates that the petitioner and respondent were married on June 9,	1943, and also that they were
domiciled in Canada, in the province of Quebec, both at the time of the marriage and on the date of this petition. In clause No. 6 of the petition there is an indication that adultery was committed on or about May 6, 1959, and the street address in the city of Montreal is given, as well as the name of the corespondent who is also indicated as living at the same address. Mr. R. A. Cohen appears as counsel for the petitioner.
The petitioner was sworn and gave certain evidence to the clerk of the committee with respect to his name, age, occupation and address. He is asked to give the particulars of the marriage. The first question is;
Q. Are you married?
A. Yes.
Then, he gives the name of his wife and when they were married, which was June 9, 1943, and which date coincides with the date given in the petition. He gives the religious faith to which he belongs, and that of his wife. Then he is shown his marriage certificate. He identifies it and indicates that the statements therein are true. The clerk of the committee states that there were no photographs filed in this particular case and subsequent evidence is given, which I shall relate in a moment, as to how the respondent was identified in this instance.
Then Mr. Cohen asks the petitioner his address, which he gives, and the petitioner indicates he has lived in the city of Montreal for 36 or 37 years which would be almost all of his life. Then Mr. Cohen inquires again about the date of the marriage, as follows:
Q. What year were you married?
A. June 9, 1943.
Q. How long did you live together?
A. About six months.
The next question relates to children and I shall dispense with that because we are forbidden to mention the children here. Then Mr. Cohen says:
Q. Now, after six months of marriage can you tell me why you separated?
A. Well, she was nervous and high strung, and she left a few times, and one time when I came home she was not there, and she never came back.
Q. Did you ever see her over a period of many years?
A. No.
I imagine he means he did not see her for some time, and then there is this question to clarify the situation:
Q. You never saw her since 1943?
A. I have seen her once or twice after that, but it was on the street.

Then he is asked about discussing the question of divorce with his wife, and he says he has not discussed the question of divorce. He indicates also that there is no hope of a reconciliation. The petitioner is asked:
Q. Do you know anything about this-
He gives the name of the corespondent, and the petitioner answers:
A. No, I have never met him. I seen him once on the street, hut I never met him.
The subsequent questions are about when he went to see the lawyer, and so on. Then he is asked some questions about why he went to see the lawyer at that time.
Q. Can you tell us why you came at that time?
A. Well, I received a telephone call from her- well, my sister received a call from her, and I was to call her, and I did not get home until late that night, and I called the next day. That was at her mother's home. She had given that number.
This is, presumably, his wife who phoned, and then Senator Farquhar follows this point up by asking:
Q. What is that you said?
A. Doris called me at my home, and I was not home. I was working. My sister received the call and she told me to call her, but I did not call her that night, and the number to call was her mother's home, ,you see. So I called the next day, and her mother answered the phone.
Then Mr. Cohen wants to know something and asks if he could indicate something about that conversation. He answers:
A. I spoke to her mother, and she said: "You know, Doris does not live here. She is living on Souvenir street"-
Then he gives the name of the corespondent with whom she is living. Subsequently the petitioner went to see his lawyer, and Mr. Cohen asks:
Q. Did you meet anybody there?
A. You introduced me to Mr. Wiseman.
Q. An investigator?
A. Yes.
Q. Where did you go after that?
A. It was May 2. Mr. Wiseman and I went down to Souvenir street, and we waited on the street- I was at your office at about ten, and we waited from about 10.30 until two, and she came out with this man.
Q. Did you point your wife out to Mr. Wiseman?
A. Yes, she walked right up to us, and Mr. Wiseman told me to-
Here, he is interrupted by the chairman, Senator Croll, who asks:
Q. Did you speak to her?
A. Yes, I said: "Hello", and then he took over. He told me to go.
I imagine that was Mr. Wiseman who told him to go.
Q. You spoke to her?
A. I lust said hello to her.
Q. While Wiseman was there?
A. He was right with me, yes.
Q. And-
Then he gives here the name of the corespondent.
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-was with her?
A. I believe it was-.
And the same name is given.
I am not sure.
Q. Some man was with her?
A. Yes.
Q. There can be no mistake that was your wife? A. Oh, no.
This is the part which substitutes, I imagine, for the photographs, Mr. Chairman, and which was the personal identification, or I would imagine almost an introduction to the investigator, of the respondent. Then Mr. Cohen asks some questions with respect to collusion: By Mr. Cohen:
Q. Did you ever place other men in the way of your wife?
A. No.
Q. And Mr.-
He gives here the name of the corespondent.
-in particular?
A. I never met Mr.-
Giving the corespondent's name.
-outside of that time.
Then Senator Farquhar wants to know why this marriage was discontinued after a six-month period. He asks this question:
Q. What reason did your wife give for leaving you? She must have had a reason.
A. I don't really think so. She was just high-strung and she was very nervous. She was only sixteen years old, I think, and she went home to her mother's place. I know that. I went to a lawyer and sent her a letter and he spoke to her on the phone and she just said she didn't want to live with me.
Then Mr. Cohen asks a question:
Q. How many years ago was that?
A. At the end of 1943.
Senator Gershaw queries further about this matter and asks the following questions:
Q. If she was so high-strung and nervous and only sixteen years old, did you try to console her and try to continue the marriage?
A. I called her back several times, and this lawyer I hired, he called her.
Q. I know, but what I mean is she was young and apparently sick. You said she was nervous and high-strung. Did you get any medical care for her?
A. No, she wasn't that bad that she needed medical care, I don't think. She wasn't that bad. She was just nervous and high-strung.
Then there are questions about work in the house and so on. Then Senator Croll asks how long they had known each other before marriage and the age of the petitioner when he was married and he indicates that he was 21, something like that.
Then Mr. Wiseman appears as a witness on behalf of the petitioner, and here we come to the question of proof of adultery. Mr. Cohen asks Mr. Wiseman questions, the first of which was as follows:
Q. Mr. Wiseman, I don't have a photograph to show you, but could you tell this committee when you saw the respondent-

Private Bills-Divorce
He gives there the name of the respondent.
-for the first time.
A. She was pointed out to me by her husband on May 2, 1959.
Q. Where, sir?
A. By her place of domicile,-
He gives there the address which is the same as the address indicated in the petition as being that where adultery had taken place and also of the residence of the respondent and the corespondent. I might say that this is an instance of a common law arrangement. These two people had been living together for a number of years. Evidence to that effect was given later on. Mr. Wiseman is asked additional questions by Mr. Cohen about this particular meeting when the wife was pointed out to him:
Q. Could you tell us something about that meeting? How was she pointed out?
A. Mr.-
And he gives there the name of the petitioner.
-went with me simply because we didn't have a photograph. To make positive identification I requested he come with me, and he pointed his wife out to me when she came out of the building.
Q. Was there anybody else present?
A. The corespondent.
Q. You had never seen this man before that?
A. No.
Then there are questions again about the particular investigation. Mr. Wiseman answers by saying as follows:
A. Between May 2nd and May 6th, 1959, I conducted an investigation very discreetly, asking several people questions in the neighbourhood and I learned that the respondent was living with Mr. 
*
He gives here the name of the corespondent.
-as man and wife and was known as Mrs.-
He gives here the surname of the corespondent.
-at that address. On May 6th, 1959, my associate, Mr. O'Neil and myself proceeded to the domicile of the respondent, arriving shortly after 11 o'clock. We rang the bell of the domicile of the respondent and it was answered by her. We asked for Mrs.-
He gives here the married name of the respondent.
-and she first said "There is no Mrs.-"
He gives here that same name.
She was very sketchy about it. She said "I am Mrs.-.
And he gives here the surname of the corespondent.
-and I said "Aren't you known as Mrs.-?"
And he gives here her true name or married name.
-and at the same time I identified myself to her when I said that, and she said "Yes, I am Mrs.-"
And he gives here her correct name.
-and she asked me to come in. We went into the flat and the corespondent-

And he gives here the name.
-was in there. They had evidently been watching television. The television set was on. I can remember quite well because the news was on at the time we arrived.
Q. What time was that?
A. Between 11 and 11.15.
Q. Could you describe to this committee Mrs.-?
And there is given here the name of the respondent.
A. I would say she is a woman in her early thirties, about five foot four, five foot five, with jet black hair, medium build, about 110 or 115.
Q. How did Mr.-
And here there is given the name of the corespondent.
-look?
A. Mr.- is a man in his mid or early thirties, quite tall, five foot eleven or six foot, fairly heavily built.
Q. Did you have any conversation with her?
A. Yes. As a matter of fact, they were most co-operative when they learned I was there, although she was a little surprised that Mr.-
And here there is given the name of the petitioner.
-was taking this action after a separation of over ten years. She seemed to be quite happy and they invited us in and we must have spent every bit of a half hour in the place. They were talkative people and he went on to explain that he was a chemist employed at C.I.L. and he was working on some photographic formula at the time for coloured picture for a Polaroid camera, for instant colour shots.
Q. Were there any other people there?
A. No.
Q. Could you describe the house?
A. Yes, it is what I would call a five-room flat with a bedroom, living room-dining room combination and there was an archway and there was what I would call a utility room with a washer, a dryer and a deep freeze in there. It was all very orderly.
Q. Did they admit living there together as mar and wife?
A. Oh, yes, and that they had been for quite a number of years.
Q. How long did you wait after you left the premises?
A. We were in the house for half an hour when they admitted being together, and through my prior investigation having learned they were living together as man and wife I didn't see any reason to wait when I came out. They were both dressed for bed, in pyjamas, just as any ordinary married couple would be or if I was spending the evening at home with my wife I would have been spending the evening just about in the same way.
Mr. Ronald O'Neil is called to give evidence. He was the partner of Mr. Wiseman. He is questioned by Mr. Cohen as follows:
Q. I don't have a photograph to show you, but could you describe to this committee if you ever saw a-?
A. -yes.
Q. Where did you see her?
A,-near Cannon street, Montreal.
Q. About what time?
A. 11.15, 11.10 p.m. on May 6, 1959.
Q. Could you describe to this committee what Mrs.-looked like?
A. She was about five five, five six, maybe 115 pounds.

Q. Approximate age?
A. Thirty two, thirty three, something like that, in that area.
Q. Did you go into this residence at-?
A. Yes. I did.
Q. Could you tell us what happened when you were inside?
A. A Mr. Wiseman and myself entered the premises and Mrs.-is the one who answered the door-that is the name she gave us when she answered the door, and Mr. Wiseman said "Are you Mrs.-?" and she said that she was Mrs.- and Mr. Wiseman said, "Aren't you Mrs.-?" and she said yes, and she invited us in and Mr. Wiseman told her what we were there for and she said "I don't understand it after so many years"-they had been separated ten years-"why he is doing that now?" We said "We don't know."
Q. Was there anybody else in the house?
A. Yes,-
Q. What did he look like?
A. He was a man of about thirty six, thirty seven, maybe six foot tall, 180, 190 pounds, somewhere in that area.
Q. Was there any conversation that went on that evening when you were in the apartment with Mrs.-, Mr. Wiseman, Mr.-and yourself?
A. Yes. Mr.-told us a bit of his history and what he was doing, and asked us how divorce worked and he thought there had to be pictures taken and he said he was working for C.I.L. colour pictures, and the conversation was regarding that kind of stuff.
Q. How were they dressed?
A. He was wearing apair of bluish-gray pyjamas.
Q. And Mrs.-?
A. She had on a pair of pink pyjamas with a house-coat or robe down to her knees.
Q. Did they admit in front of you that they were living as man and wife?
A. Yes, they had for several years.
By Senator Gershaw:
Q. From the general appearance of the place were you convinced that they had been living there as man and wife for some time?
A. Yes, I would say so. There was one bedroom with women's and men's clothes hanging in the clothes closet; there was only one bed in the house, a large double bed.
Q. A three quarters or double bed?
A. I don't think I would be able to recognize the difference.
Mr. Chairman, it is necessary to indicate all that for this reason. The petition says that on or about May 6, 1959, at a particular address adultery was committed. The preamble to the bill, which we have not read yet, indicates that the marriage was on such and such a date and that adultery had been proved by evidence adduced, and so on. I submit that it is jumping to conclusions to say that adultery took place on that particular day. If the basis of a common law arrangement is such that this could be ground for divorce perhaps there might be some validity to the suggestion that adultery had been proved.
According to the evidence, at no time during the half hour that these two investigators were on the premises talking with the respondent and corespondent did they get around to talking about adultery. They talked about Polaroid cameras and photographic formulas, about why he would want to take
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action to get a divorce, and I presume they talked about a number of other things too. Presumably they went through the premises and got a good look at them because they give evidence of the number of rooms there, what was in them, such as a washer, dryer, deep-freeze, that there were clothes in the closets, and so on.
In my opinion all that has been proved is that this couple lived together as man and wife under a common law arrangement. From what we have been able to gather as to what is adultery, even though we are not allowed apparently to speculate about what the word means, that is not the case in this particular instance. That is why I went extensively into the evidence, to show that all that had been proved was that this couple were in their pyjamas and were spending the evening somewhat in the same manner as Mr. Wiseman would spend the evening with his wife if he were not out investigating divorce cases, and that they sat and talked for half an hour. While they admitted that they had been living together as man and wife and that there was a common law arrangement, I submit that that is the basis upon which we should consider granting this divorce, not on the basis of adultery having taken place, because according to the evidence given by Mr. Wiseman and Mr. O'Neil there is not a word about adultery. We do not know whether they discussed it in the half an hour they were there or whether they attempted to discover whether adultery had taken place between this particular couple on that particular day.
Mr. Chairman, I submit there is not one shred of evidence to indicate that adultery did take place. It may well have after the detectives left. This is a possibility if they were living together as man and wife but I submit that this is the basis upon which we should consider granting a divorce, their living together as common law man and wife, and not on the basis of adultery having been proved.


Mr. Peters:: Mr. Chairman, in this particular case, as in a number of other cases, we have the odd situation where a couple were married many years ago. They broke up in 1943. At that time the girl was 16, her husband was 21 or in that neighbourhood, and they lived apart with no particular attempt to dissolve the marriage for 16 years. They now come before us asking for dissolution of marriage and charging that adultery has taken place.
It has not been proved that this is the gentleman. If the case is to be accepted at face value it is not indicated whether this was the alliance that this young lady set up

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in 1943. In any case, from reading the evidence it is clearly indicated that no attempt made on the part of the husband during these years from 1943 to 1959 to do something about this situation and either relieve himself of an unwanted wife or the wife seek relief from a husband with whom she had no contact. On page 12 of the evidence appear the following questions:
Q. Did you ever see her over a period of many years?
A. No.
Q. You never saw her since 1943?
A. I have seen her once or twice after that but it was on the street.
Under English law, one of the discretionary bars is this matter of delay and it would seem to me that in this particular instance we have not got the whole story about what happened. It would seem to me that the husband would have been more interested at the time in retaining his wife. As a husband he would have been interested in keeping his wife with him. I am not too impressed about the evidence he gave as to her keeping house. He seemed sketchy about whether she kept house or not but he finally admitted she did. There must have been some loss about her leaving home.
Kent Power points out that discretionary bars are not absolute in the prevention of divorce but they are a large factor. He has this to say on page 82:
The delay which under the act of 1857 is a discretionary bar is "unreasonable delay" in presenting or prosecuting the petition. The same discretion exists in New Brunswick and Nova Scotia.
The reason these two provinces are mentioned is that both follow the original British law.
The delay of the respondent in putting in a defence is a factor to be considered in deciding whether cross-relief asked for therein should be granted. The reason for the court frowning on delay was thus expressed by Sir Francis Jeune in Johnson v. Johnson-


Mr. McCleave:: We cannot allow this to go on. The hon. member is reading about a respondent's rights, the rights of respondents instead of the rights of petitioners. He has neglected the evidence on page 12 which clearly shows that the husband was not aware he had recourse to parliament until April, 1959. It is a typical type of debating such as we have heard for months and months; the reading of some evidence and then the picking up of a law book to try to get a paragraph to throw into the pot as well. I submit that what the hon. member is reading is completely irrelevant. It has nothing to do with the facts. If the hon. member would follow the argument as to how the husband found he had a cause of action he will find he is out of order.


William Arnold Peters: English law says that the
defence or prosecution of the case must take place within a reasonable length of time, and I suggest that by no stretch of the imagination can 16 years be considered a reasonable length of time. A contract of marriage carries with it certain obligations and privileges and when those privileges are withdrawn the plaintiff has the right if he does not condone or connive, to take discretionary action as soon as possible. Sixteen years in this case constitutes in my opinion an unreasonable amount of delay. I should like to refer to what has been said in connection with other legal decisions which have been made by the courts on this question.


Robert Jardine McCleave: If I may again refer to the point of order, may I point out that the cause of action was not discovered by the husband in 1943; it was discovered in April 1959. When he had a cause of action he pursued it forthwith, so this argument based on the marriage breaking up after 17 years is not relevant. The woman might have been anywhere during that time, living as a single person, by herself. We are getting into an irrelevant line of legal discussion. No matter how the hon. member tries to twist or interpret facts there is still sworn evidence, and it is the only evidence we have on this point.


William Arnold Peters: If I may just continue the discussion on this aspect, I suggest that the fact that 16 years had gone by before an application was made is only an indication that the plaintiff in this particular case had made a liaison or a connection; he had found a girl friend, and therefore he was ready to pursue this-


Robert Jardine McCleave: I rise on a question of privilege. I do not think any member of the House of Commons has the right to get up on his feet and make an allegation against a member of the general public who is not here to defend himself, without a jot or tittle of evidence to back it up. I think it is unjust and a corruption of the processes of the house for any hon. member to come in and abuse someone without one single solitary fact of evidence to support the allegation.


Jacques Flynn: Of course, the hon. member has taken the responsibility for the statements he makes in this house. I can only say that for his guidance.


William Arnold Peters: In discussing this matter of unreasonable delay I do so because I think it has some bearing on this case. I think this should answer the hon. member for Halifax who is concerned, or should be concerned, with this particular matter.


Robert Jardine McCleave: So should you.


William Arnold Peters: I am. I quote again:
The reasons why this court insists on steps being taken promptly, if they are to be taken at all, and why it should be very strenuous on the subject of delay, are that it is a terrible thing that people should be going about the world neither married nor unmarried, possibly liable to contract fresh and illegal matrimony and certainly exposed to temptation to commit adultery. That is a state of things which ought not to be prolonged for a moment longer than it can properly be avoided.
It goes on:
Referring to the argument that the stringent rules of earlier decisions had been relaxed, McLaurin said-


Robert Jardine McCleave: Again I rise on a point of order. The point I have been trying to make, with success I imagine with everyone except the hon. member, is that if there was any evidence of any delay in bringing this case before parliament then the hon. member's reading would be relevant, but all the evidence we have on record here indicates that the man found his wife was living with somebody else in April, 1959. Apparently he did not know what she had been doing in the interim. That being so, he proceeded with due haste to present himself to parliament, and this talk about delay is, I submit, entirely irrelevant unless the hon. member can point to one jot of evidence which would help support his contention.


Jacques Flynn: Of course, the rule of relevancy applies when we discuss this kind of bill just as when we are discussing any other kind of bill, but I must say I can hardly decide that an argument which would appear to be unfounded, as explained by the hon. member who rises on the point of order, is irrelevant. I cannot assess the value of the arguments that are brought forward by hon. members who have the floor. What the hon. member for Halifax says may be so. I think it would then be a matter for the hon. member for Halifax to answer when he has the floor.


William Arnold Peters: I agree that we should have some ground for believing this, and I believe we have. I would just like to read some of the evidence which leads me to that conclusion:
Q. What year were you married?
A. June 9, 1943.
Q. How long did you live together?
A. About six months.
Q. Are there any children of this marriage?
A. No.
Q. Now after six months of marriage could you tell me why you separated?
A. Well, she was nervous and high strung and she left a few times and one time when X came home she was not there and she never came back.
Q. Did you ever see her over a period of many years?
A. No.
Q. You never saw her since 1943?
A. I have seen her once or twice after that, but it was on the street.
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Q. Have you ever lived with her since 1943?
A. No.
Q. Now, did you ever discuss divorce with your wife?
A. No.
Q. Is there any hope of reconciliation?
A. No.
Q. Do you know anything about this Mr. Arthur Patterson personally?
A. No. I have never met him. I seen him once on the street but I never met him.
Q. When did you come to my office?
A. At the end of April.
Q. At the end of April, 1959?
A. Yes, that is right.
Q. Can you tell us why you came at that time?
A. Well, I received a telephone call from her -well, my sister received a call from her, and I was to call her, and I did not get home until late that night, and I called the next day. That was at her mother's home. She had given that number.
By Senator Farquhar:
Q. What is that you said?
A. Doris called me at my home, and I was not home. I was working. My sister received the call and she told me to call her, but I did not call her that night, and the number to call was her mother's home, you see. So I called the next day, and her mother answered the phone.
By Mr. Cohen:
Q. Would you tell us something about that con versation?
A. I spoke to her mother, and she said: "Yor know, Doris does not live here. She is living or. Souvenir street with Mr. Patterson."
Q. So, what did you do?
A. I came to see you.
Q. You came to my office?
A. Yes.
I take it from that that he did not care what happened to his wife and over a period of 16 years made no serious attempt to contact her. Suddenly he decided she was doing something terrible. Did he know the reason for his wife's call? For all we know she may have lived with this man for 16 years, although the question was not asked.
The learned judges have spoken about the obligation that rests with the community not to place people in circumstances that may be conducive to the committing of adultery.


Robert Jardine McCleave: I know the hon. member would like to be fair. Has he read the evidence on page 15 where the question is asked:
Q. Did they admit in front of you that they were living as man and wife?
A. Yes, they had for several years.
I suggest that "several" is far from 16 and and I think this simply buttresses the argument I made before.


William Arnold Peters: I am pleased to have that
pointed out but I think it makes no difference one way or the other. I do not object to the grounds that are indicated. I object because the divorce is sought 16 years after the husband was deserted. She may have lived with the man only a couple of years. I fail to find that.

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Robert Jardine McCleave: A quarter way down the page.


William Arnold Peters: Oh yes, I see. You cannot legitimately draw the conclusion that he condoned her conduct but it is difficult to draw any other. We could understand the man's position if he came and said he had made attempts throughout the years to be reunited with his wife and had asked her to come back. It does not matter whether the alliance lasted 2 or 16 years. Divorce is being sought on the grounds of something that would likely have happened to either of them during the course of 16 years. After all, he was only 21 when the marriage broke up. I imagine they were not too grown up. Although these parties lived together for a time the divorce is sought not on the grounds of the alliance as a relief to the community and the end of an intolerable situation but on the grounds of adultery.
I doubt if many hon. members of this committee or the other place have satisfied themselves as to what constitutes adultery in legal terms. I will read the evidence which purports to show that adultery occurred. On page 14 Mr. C. Wiseman, a Montreal investigator who has figured in other cases was questioned by Mr. Cohen as follows:
Q. Could you tell us what happened with your investigation thereafter?
A. Between May 2nd and May 6th, 1959, X conducted an investigation very discreetly, asking several people questions in the neighbourhood and
I	learned that the respondent was living with Mr. Patterson as man and wife and was known as Mrs. Patterson at that address. On May 6th, 1959, my associate, Mr. O'Neil and myself proceeded to the domicile of the respondent, arriving shortly after
II	o'clock. We rang the bell of the domicile of the respondent and it was answered by her. We asked for Mrs. Lapierre and she first said "There is no Mrs. Lapierre". She was very sketchy about it. She said, "I am Mrs. Patterson" and I said "Aren't you known as Mrs. Lapierre?" and at the same time I identified myself to her when I said that, and she said "Yes, I am Mrs. Lapierre" and she asked me to come in. We went into the flat and the corespondent, Arthur Patterson, was in there. They had evidently been watching television. The television set was on. I can remember quite well because the news was on at the time we arrived.
In my opinion this is sufficient evidence to establish a common law alliance and yet it is not indicated that adultery had been committed. I would point out that before long this committee is going to be asked to rule on a number of cases where people did live together as man and wife for some time. We are being asked to grant an annulment when no cohabitation by these people has been established in the sense that marriage was consummated. I am suggesting that this type of common law evidence, while I think it is sufficient in my mind to grant the divorce, does not constitute adultery and
[Mr. Peters-l
adultery is one of the grounds that is mentioned in the petition before us today.
They go on to discuss the case; they talk about the things that were discussed. The corespondent and the respondent in this case were very cordial people. They discussed photography. I agree that this always interests me. The corespondent was of the impression that pictures should be taken in this type of situation; that pictures were necessary. He was surprised that they were not necessary. He was enlightened by the investigators who informed him what the procedure was.
This is a case where they did not break down the door. The atmosphere seemed to be fairly friendly and quite informal. The corespondent explained his photographic habits and the detectives explained their job and the requirements of their job. There is nothing in the evidence to indicate to me and I think to any hon. member that adultery in the true sense of the word was committed on this particular date. The questioning continued:
Q. Could you describe the house?
A. Yes, it was what I would call a 5-room flat with a bedroom, living room-dining room combination and there was an archway and there was what I would call a utility room with a washer, a dryer and a deep freeze in there. It was all very orderly.
It was all very orderly but the previous husband indicated the housekeeping was something that one could not be too proud about in so far as the previous marriage was concerned, but this is only an incidental thing. It does not carry too much weight or lend too much weight to the arguments of the plaintiff. I continue:
Q. Did they admit living together as man and wife?
A. Oh, yes, and that they had been for quite a number of years.
Q. How long did you wait after you left the premises?
A. We were in the house for half an hour when they admitted being together, and through my prior investigation having learned they were living together as man and wife I didn't see any reason to wait when I came out. They were both dressed for bed, in pyjamas, just as any ordinary married couple would be or if I was spending the evening at home with my wife I would have been spending the evening just about in the same way.
This again is an indication that a common law alliance had been set up, but I ask hon. members, would they not have to stretch their imaginations considerably to establish an adultery charge on those grounds? I would imagine that we would see people wandering around in this condition or a condition very similar to it-maybe the clothing would be a little more expensive-at most of the summer resorts where people sit around with not too much on, usually shorts and a halter and the men wearing shorts and swimming

trunks, or whatever they are, that they sit around in. At the ski lodges they sit around with very little more on than this watching television. The apparel may be a little more costly because it is considered to be casual toggery, lounging wear instead of sleeping wear. There is very little difference in this case. We do not charge or claim that adultery has taken place in these other instances.
I am in complete agreement that the divorce could be granted in this case on other grounds and probably should be, but there has been no admission that adultery took place on this particular day.
I should like to draw your attention to the fact, Mr. Chairman, that they did not even wait to see whether these people remained there overnight. At no time did they stay or observe the house during the period that they normally stay around and watch places. They did not wait until 2.30 in the morning to see whether the people came out or to collect a few extra bucks. They did not wait because they found the people were both dressed for bed. They were a very congenial couple. I presume they saw no point in staying up and they said, "We will just go home." They didn't even stay outside the house.


Robert Jardine McCleave: Why would they if they were living there as man and wife?


William Arnold Peters: I do not know why they have to in other cases.


Robert Jardine McCleave: Why would they have to?


William Arnold Peters: I do not know why they have to in other cases. I think the grounds of common law are sufficient on which to grant the divorce.


Robert Jardine McCleave: The hon. member does not know what common law is. It has nothing to do with this case. He does not know what it means.


William Arnold Peters: I am quite familiar with what a common law arrangement is.


Robert Jardine McCleave: You will find you are absolutely wrong in saying that this one was. There is no common law attached to it at all.


William Arnold Peters: I am suggesting that adultery is not proved in this case, and if adultery has not been committed and there is no common law, then on what do we grant the divorce? Certainly there is an indication that the two people are living together as man and wife.


Robert Jardine McCleave: You are wrong.


William Arnold Peters: The hon. member thinks I am wrong. I am quite happy to read what is the legal aspect of common law.
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Robert Jardine McCleave: You are legally wrong.


William Arnold Peters: I do not know whether in the House of Commons you can be legally wrong. You may be wrong legally but I do not know whether you can be legally wrong.


Robert Jardine McCleave: Legally wrong.


Some hon. Members:: Six o'clock.


Robert Jardine McCleave: That is the best part of your speech today.


William Arnold Peters: Mr. Chairman, we would be quite happy to refer to this case again and point out what common law is.


Robert Jardine McCleave: Mr. Chairman, on a question of privilege, before you rise and report whatever progress has been made in the last hour I would simply point out that in a speech in the House of Commons in January an hon. member who is no longer here estimated that it cost $1,818 an hour to operate the House of Commons, and this has been the most expensive type of garbage bilge that this house has ever enjoyed for that amount of money.
Progress reported.


Mr. Speaker:: At eight o'clock the house will resume the business which was interrupted at five o'clock.
At six o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at 8 p.m.


[Stage Direction]
The house resumed consideration of the motion of Mr. Diefenbaker for an address to Her Majesty the Queen praying that a measure be laid before the parliament of the United Kingdom to amend the British North America Act, 1867, relating to the amendment of the constitution of Canada, and the amendment thereto of Mr. Pearson.
John Whitney Pickersgill: Mr. Speaker, when the business of the house was interrupted at five o'clock I had, I think, rather thoroughly disposed of the shabby, casuistical arguments of the Minister of Justice, that in breaking a contract he was not breaking a contract because this was a sovereign parliament that could do anything anyway. This is the kind of argument that I hardly expected to hear from the Minister of Justice in a government that is proposing, later in this session, to introduce

Amendment to B.N.A. Act a bill of rights. I do not believe I need to labour that argument any longer, because I think it is equally important that I should deal with the two other arguments that the Minister of Justice made.
He seemed to argue that there was something unsatisfactory about the status and tenure of county and district court judges at the present time; that they did not have a security of tenure equal to that of high court judges. Of course, that is true, and it is well understood. There have been a good many cases I believe since confederation when county and district court judges have been removed by the procedure that is provided. I speak subject to correction, but I know of no case in which there has been an address of the two houses of parliament to remove a high court judge. In effect, what we will be asking the parliament at Westminster to do, if we pass this address in the form in which the government is asking to have it passed, is to make the county court judges virtually as irremovable as high court judges are now. I do not feel competent to discuss the question-


Some hon. Members:: Hear, hear.


John Whitney Pickersgill: -of whether or not county court judges and high court judges should have the same tenure and the same status. I am not, and if the good wishes I see manifest in some parts of the house are any indication, there are many people who think I am never likely to be a member of the bar, and I am rather inclined to agree that is unlikely. Many of my learned friends on this side of the house are much more competent than I would ever be to discuss this question, and will discuss it.
In so far as the constitutional point is concerned, I do have some observations to make. My view is that if the tenure of county court judges should be assimilated to the tenure of high court judges, that would be a competent thing for this parliament to do. I must say I am quite unimpressed by the arguments of the Minister of Justice that in these latter days he has suddenly discovered that all his precedessors throughout history were wrong; that Sir John Macdonald was wrong when he thought this parliament was competent to legislate with respect to the tenure of county court judges; that Sir Charles Fitzpatrick was wrong when in 1903 he introduced a limitation on the age of county court judges; that Mr. Doherty was wrong when in 1913 he asked parliament, and parliament acceded, to reduce the age to 75 years. It does seem extraordinary, when one comes to think about some of the people who have occupied the position the minister now occupies that they could all have been wrong.


There was Sir John Macdonald, Sir Charles Fitzpatrick, Mr. Edward Blake. There were ministers like Mr. Lapointe, Mr. St. Laurent and great legal luminaries like Mr. Bennett. It seems extraordinary that all these great lawyers of the past should have been mistaken in the view that parliament had undoubted jurisdiction, and that suddenly a great light dawned upon the hon. member for Kamloops when he became minister and he discovered that what had been done without any question up to this time had some constitutional doubt about it.
In my opinion, this is a preposterous suggestion. Like some other members of the house, I have known a few county court judges who have retired at the age of 75 rather unwillingly. Some of them were quite good lawyers and, if it is not disrespectful to say of a retired judge, some of them were rather cantankerous people, too. I would guess that if any of these gentlemen had suspected there was any constitutional flaw in the legislation by which they were retired they would have taken the case into court. If the minister did have a doubt, and I cannot believe that the minister is so self-assured about this matter as to think that where all the ministers of justice in the past were wrong he is right, we have a constitutional procedure for resolving these doubts. I refer to the procedure which was suggested by the bar association in the resolution which the minister himself read to us, the resolution that was adopted last September. It does seem to me very difficult to comprehend the course being followed.
The Canadian Bar Association did suggest to the government the course to take in dealing with this matter. After all, the bar association did not call into question the status of county court judges or district court judges; they only raised the question with respect to superior court judges. They suggested that at least there was an argument. Otherwise they would never have s.uggested, I submit, a reference to the supreme court. They suggested that at least there was an argument that it was competent for this parliament, under the terms of the second amendment of 1949 to the British North America Act, to legislate with respect to the tenure of superior court judges.
As I say, a reference to the court could have been made last September and by this time this parliament could have had the opinion of the supreme court as to whether it would be competent, as the bar association apparently thought it might be, to do it in this way. But the government has chosen to do it in the other way. As the Leader of the Opposition (Mr. Pearson) has indicated, we do not quarrel with that procedure with

Amendment to B.N.A. Act
respect to superior court judges who may be appointed after the coming into force of this legislation, if the amendment of the Leader of the Opposition is accepted and if the address passes in the amended form, as we would be quite satisfied to have it pass. We feel that there will be no reasonable doubt if this is done, that it will be a valid amendment to the constitution and that it will be respected by the courts in so far as the superior court judges are concerned.
But with respect to county court judges there does not seem to us to be any kind of argument that can seriously be considered. I said earlier that I could not really believe that anyone would argue that a provincial legislature could validly legislate to determine the tenure of county court judges or superior court judges. I would certainly think that a provincial legislature could not legislate with respect to superior court judges as long as the British North America Act contains the present provision. But I suppose an argument could be made that in the constitution of the courts it might be possible for the provinces to limit the tenure of county court judges. But I repeat that it is surprising that such an argument never seems to have occurred to Sir John Macdonald or Sir Charles Fitzpatrick or to Mr. Charles Doherty, all of whom dealt with this matter and none of whom ever called into question the jurisdiction of this parliament over this matter.
In view of the fact that outside of the Minister of Justice nobody else seems to have had any doubts about this matter, I hope that the government, if it feels that this matter needs to be resolved, will do it by accepting the amendment offered by the Leader of the Opposition and will refer this question to the courts, if they feel a reference is needed. I myself confess that I do not feel that it is needed; I do not think there is any doubt that is worth considering. However, if they feel there is a doubt, I hope they will refer the matter to the courts. Surely it is the height of colonialism-and no other word can be applied to it-to seek to vest in Westminster a jurisdiction which they have never had- which they did not assume in 1867 and of which certainly, once the Statute of Westminster was passed, they divested themselves -and to seek to put into a British statute something no one has ever questioned since 1867 until the minister had this bright idea quite recently, namely the right of this parliament to do something which this parliament has done over and over again and which has been the basis of the tenure of county and district court judges since the year 1913 without any kind of question. It almost passes comprehension why a government should seek to be so abject.


Richard Albert Bell: Nonsense.


John Whitney Pickersgill: What purpose they think this is going to serve it is very hard to perceive.


Richard Albert Bell: Argue it on a sensible basis.


Edmund Davie Fulton: The hon. member does not know what that means.


John Whitney Pickersgill: The hon. member for Carleton says "argue this on a sensible basis". If the hon. member for Carleton belongs to the school of thought that wants to vest in Westminster again the control of parts of the constitution of this country that have always since 1867 been vested in this parliament, I do not know what other convenient words could be found for such an attitude than a colonial attitude.


Richard Albert Bell: That is the worst tom-myrot I have ever heard.


John Whitney Pickersgill: The hon. gentleman can make a speech in his own time and refute the argument and give any good reason at all why this should be done. As I said at the beginning of my remarks, I think there is some real question whether by an address of two houses of this parliament, we can properly and constitutionally vest once more in the parliament of Westminster something of which it divested itself at the time of the Statute of Westminster. This is not an amendment to the British North America Act at all. This is not an amendment at all. This is putting into the British North America Act something that has never been there. In so far as county and district courts are concerned, it is a new enactment. As far as superior court judges are concerned, I quite grant that it is an amendment and quite a valid one. Our only objection to that amendment-and, as I said before the dinner recess, it is a matter about which we feel strongly-is this breach of contract which we think is totally unnecessary in view of the fact that we have had this regime for 93 years and, as the Prime Minister said in his opening speech, the courts of this country and the judges of this country will compare favourably with those of any other country.


Richard Albert Bell: Will the hon. gentleman permit a question?


John Whitney Pickersgill: Certainly.


Richard Albert Bell: Will the hon. gentleman indicate why he thinks the attorney general of Newfoundland agreed to this proposal in the light of the strictures which the hon. gentleman has been uttering?

Amendment to B.N.A. Act


John Whitney Pickersgill: I am not the keeper of any other man's conscience. I speak for myself in this house and I will go on doing so. If I disagree with any man, however eminent he may be, whether he is the attorney general of any province, the Minister of Justice, the Prime Minister or anyone else and if I think I have a sound view, in a free country and in a free parliament I will express those views. The hon. gentleman does not need to think that he embarrasses me in the slightest by asking a question of that sort. In the first place, of course, that letter from the attorney general of Newfoundland which the Prime Minister read earlier today and which I will not read into the record again merely says that they are quite agreeable to this amendment. But in the language of any of those letters, except the correspondence with the government of Quebec, there is nothing that indicates anything pro or con their feeling on the question of retroactive legislation.


J.-H.-Théogène Ricard: What is your stand?


John Whitney Pickersgill: The hon. gentleman knows perfectly well what my stand is. I stand for honouring contracts, not for breaking them. That is our view. I am sure the attorney general of any province receiving that letter from the minister would have thought that obviously the minister was not going to break contracts but that what he was going to do was to ask for legislation regarding the tenure of appointments to be made from now on and not to change the terms of employment, the terms of a contract between Her Majesty and the judges of this country; and that is what the government in this address is seeking to do.
The worst feature of it all is that we are content to dishonour ourselves in this parliament. We are asking the British parliament to pass an act breaking contracts in this country. We are asking the British parliament to say that the tenure of office and remuneration of judges which they accepted and the terms of their employment should be changed by a statute of another country than their own. It seems to me that this is a shocking disrespect for the parliament of another country, to ask them to rubber stamp legislation which is so manifestly unjust, as this would be, as applied to the present incumbents.
I want to make it very clear again that so far as any appointments that may be made, if this legislation goes through, after the passing of this act are concerned, we are entirely in favour of the 75 years retirement age for anyone who accepts his employment on that basis. We think that is quite

right and proper, as far as I am concerned for the reasons the Prime Minister gave at the beginning of the discussion. But we think that it is equally wrong to make these unilateral changes, and we think it would be wrong in the case, above all, of the judges whose position and independence should be safeguarded above that of anybody else in the community.
I return again to this other totally unnecessary, totally uncalled for and totally hypothetical proposal with respect to county and district court judges. It really is quite impossible to comprehend why the government should want to do this. What do they think they are going to accomplish by doing it?


J.-H.-Théogène Ricard: You will vote against it.


John Whitney Pickersgill: Of course we are going to vote against it, and we will vote against the breaches of contract too; let there be no doubt about that.


Mr. Monteiih (Perth):: You are voting against "Joey".


John Whitney Pickersgill: The hon. member can say all the silly things he likes. We are concerned with the business of this parliament, not about debating with people outside it.


Richard Albert Bell: But surely with some reality too.


John Whitney Pickersgill: What reality is there about this Alice in Wonderland legislation? It is totally unnecessary. It is a subject which has been covered without question by this parliament-


Lester Bowles Pearson: For over 90 years.


John Whitney Pickersgill: -as the Leader of the Opposition says, for over 90 years. It makes no sense at all.
We do hope that the government, having heard our arguments in this matter, will accept the amendment of the Leader of the Opposition, and if that is done it would seem to me there would be no difficulty at all about the amended resolution receiving the support of the whole house.


Mr. Speaker:: I declare the amendment lost. The question is on the main motion. Is the house ready for the question?


Edmund Davie Fulton: Mr. Speaker-


Mr. Speaker:: I must inform the house that if the minister speaks he will close the debate.


Edmund Davie Fulton: Mr. Speaker, the main purpose for which I rise now is to move the amendment to which the Prime Minister (Mr. Diefenbaker) referred this afternoon but before doing so there are one or two other things which I think should be said. In my remarks this afternoon I attempted to keep the discussion on a factual and non-political level but in the remarks that he made during the course of the afternoon and so far this evening the hon. member for Bonavista-Twillingate (Mr. Pickersgill) did his best to remove the discussion from that sphere and take it into the sphere of Alice in Wonderland-to use a phrase the hon. member himself used.
Rumour has it that the hon. member foi Bonavista-Twillingate stayed up all last evening to prepare his address for today and I must say that after listening to him I can well believe that is a fact because his remarks did seem to lie more in the realm of dreamland and fantasy than in a realm in which his remarks could have any relationship or bearing on the facts of the situation.


Thomas Miller Bell: Just a plain nightmare.


Edmund Davie Fulton: My friend the hon. member for Carleton (Mr. Bell) says, "Just a plain nightmare" but I think the remarks of the hon. member for Bonavista-Twillingate were perhaps not nightmare so much as fantasy because fantasy, as I understand it, is a matter that has no relationship to reality, whereas nightmare is sometimes founded on reality.
The reality of this situation is that the government asks parliament to consent to an address to Her Majesty to bring in a provision that judges of the superior courts will retire at the age of 75. In this respect the hon. member for Bonavista-Twillingate, in so far as he addressed himself to the proposition before the house, dealt with two subjects: First, the question of whether or not there is here a breach of contract; and, second, whether or not there is a retrograde step in placing the position of district and county court judges under the constitution.
I have seldom heard so distorted an argument as that made by the hon. gentleman to the effect that to seek to place the position of judges of district and county courts of

Amendement to B.N.A. Act Canada under the constitution is a retrograde step. Yet that was the argument made by the hon. member for Bonavista-Twillingate.


John Whitney Pickersgill: Not at all.


Edmund Davie Fulton: In an attempt to bolster his political position the hon. gentleman used charges of colonialism and similar inept words. Of course if we were to follow the course of my hon. friends opposite and the government that preceded us of which the hon. member for Bonavista-Twillingate was a member there might be some foundation for that charge but as I said this afternoon it is our intention-and we believe it will be successful-that the constitution of Canada will be repatriated. That is unlike the history of this matter under our predecessors when I recall the minister of justice of those days riding into battle dressed in shining armour as the great emancipator, the one who was to free the constitution of the slavery in which it was then enthralled and whose efforts of course fell to the ground. From there on it seemed quite acceptable to hon. gentlemen opposite including, the hon. member for Bonavista-Twillingate, that they should rest there.


Lester Bowles Pearson: What have you done?


Edmund Davie Fulton: If, therefore, we were to be content with that position there might be some foundation for the hon. member's charge. But as it is, his charge rests on no surer foundation than a suggestion that it is improper to regulate the relationships between parliament, the executive and an important branch of the judiciary by reference to the constitution.
Of course, as I recall some of the things that were done by the former government I can well understand their resentment of the attempt now being made to place the position of the judiciary with respect to the county and district courts on the sure basis of the constitution-


Lester Bowles Pearson: Of the British parliament.


Edmund Davie Fulton: My friend the hon. member for Bonavista-Twillingate and the Leader of the Opposition by his endorsement of that argument would prefer to have the judiciary-the county court judges particularly-left to have their tenure of office-


Lester Bowles Pearson: In Canadian hands.


Edmund Davie Fulton: -determined-


John Whitney Pickersgill: By the parliament of Canada.


Edmund Davie Fulton: -by the government with no reference to the constitution whatever.

To show how inept and inapplicable all these arguments are may I refer to a case of 1930 which dealt with the question of whether or not there is a breach of contract involved in the address which is before the house. I believe this is the only serious point that has been made by my hon. friends opposite. I attempted to deal with it on a factual basis this afternoon but nothing of factual argument appears to impress my hon. friends opposite so perhaps I might reinforce my argument by a reference to judgments of the Supreme Court of Canada and of the privy council which dealt with that case.
I must refer to the stand taken both by the Leader of the Opposition and the hon. member for Bonavista-Twillingate when they charged us with introducing through this address a form of breach of contract. It was interesting, Mr. Speaker, as Your Honour will recall, shortly before five o'clock to find the seriousness with which my hon. friends held to that view. You remember the vigour with which they made the charge that this represents a breach of contract. But I am sure you will remember also the answer of the hon. member for Bonavista-Twillingate to two or three questions that were asked him in that regard when it became apparent that all he was concerned about was not principle but price, and the only thing-


Some hon. Members:: Oh, oh.


John Whitney Pickersgill: Mr. Speaker, on a question of privilege, the minister has said something which he knows is completely untrue. The truth is I said I would not wish to be a party to this kind of proposition at all, but that my argument would not be as strong if the persons who are to be retired did not suffer at all financially. I said I would not be a party to it at all.


Edmund Davie Fulton: Mr. Speaker, I appreciate the sensitivity of the hon. gentleman. Just how he distinguishes between an argument which is strong and an argument which is less strong when neither of them rests on any secure foundation at all I am unable to say. The fact of the matter is that my hon. friend in effect agreed that the main difference between us was the extent to which-


John Whitney Pickersgill: No, I did not agree.


Edmund Davie Fulton: -the judges who would be affected by this resolution might lose some monetary interest that they had in their present position.
Well, sir, that is a concern that I can understand, and I attempted to deal with it on a factual basis this afternoon by pointing out that they would not really suffer any

great disadvantage in that the effective date of the change had been postponed to March 1 and in the interim we were bringing in substantial changes to the pension provision. Notwithstanding that argument, notwithstanding that my hon. friend had to agree that the real difference between us was price and not principle, he went on to repeat that there was here a breach of contract. Let me refer him to a case which arose as the result of certain actions taken by the government of Mr. Mackenzie King in 1930, as they affected the case of a Mr. Reilly. I think it was in 1923 that Mr. Clifford B. Reilly had been appointed a member of a commission dealing with pensions. The case of Clifford B. Reilly and His Majesty the King is reported in the Supreme Court of Canada Reports, 1932, and the case before the privy council is reported in the Law Reports, Appeal Cases, 1934.
Mr. Reilly had been appointed by order in council and by commission as a member of the federal appeal board under section 10 of an act to amend the Pension Act, 1923. His appointment was extended on a number of occasions, the last extension being for a period of five years from August 17, 1928. Now, notwithstanding the high regard which my hon. friends opposite had for this principle of sanctity of contract, notwithstanding that they had appointed a man and then extended his appointment at, he alleged, great personal sacrifice on assuming the office and on retaining it-they extended his appointment for a period of five years from August 17, 1328-my hon. friends opposite or their predecessors by solemn legislative enactment abolished the office as one of their last acts as a government on May 30, 1930. Mr. Reilly accordingly sued the crown, claiming damages for breach of contract-


Some hon. Members:: Shame.


Edmund Davie Fulton: The Supreme Court of Canada in a judgment delivered by Mr. Justice Orde, judge ad hoc, gave the following judgment:
Here there was no dismissal from office by the crown in the ordinary sense. Parliament abolished the office. The power of the crown to abolish a civil office and thereby to deprive the holder thereof of any right to further compensation is recognized in Young v. Waller. If in cases where its power is not restricted by statute the crown may abolish an office, a fortiori parliament which created it must surely possess the power.
This is a judgment of the Supreme Court of Canada, and I always understood, in spite of what he said this afternoon that my hon. friend, the hon. member for Bonavista-Twil-lingate, does have, when it consorts with his argument, a due regard for the courts of the
Amendment to B.N.A. Act land. Then I would hope that he would recognize that in this case the Supreme Court of Canada has itself established the basis of the refutation of his argument, his absurd argument, his nightmarish, fantastic argument, his Alice in Wonderland argument, that there is here a breach of contract-


John Whitney Pickersgill: Will the minister permit a question?


Edmund Davie Fulton: -for the parliament under
whose authority a man was appointed to office-


John Whitney Pickersgill: Will the minister permit a question?


Edmund Davie Fulton: Yes.


John Whitney Pickersgill: Will the minister tell us whether the office that Mr. Reilly held was an office consecrated under the British North America Act guaranteeing tenure for life during good behaviour? If not, of course the case does not apply at all.


Some hon. Members:: Oh, oh.


Donald Methuen Fleming: Is that part of the question?


Edmund Davie Fulton: It is quite obvious that even if I read the whole of the judgment my hon. friend would not agree with it, and therefore I am not going to read the judgment because the question is answered by what I have already said and quoted from the judgment.


John Whitney Pickersgill: It has no bearing whatever.


Edmund Davie Fulton: Perhaps the hon. member may be more impressed by the judgment of the privy council. As I say, Mr. Reilly appealed the case to the privy council. The judgment was given in the privy council by Lord Atkin, as reported at page 176 and 177 and following pages in Appeal Cases, 1934. Lord Atkin had this to say, among other things, with respect to the question of contract. You see, Mr. Speaker, what my hon. friends fail to realize is that they have based their case on the argument that there was a contract between the government and the judges who are appointed, and in so far as that is their allegation, then this case and this judgment are exactly in point. If my hon. friends would come to the heart of the matter and recognize that there is no contract then, of course, the situation might be different. I am taking it on their basis.


Lester Bowles Pearson: What did Mr. Bennett say about it?


Edmund Davie Fulton: If I have to get into Alice in Wonderland a little bit I apologize, but I have

Amendment to B.N.A. Act to follow the arguments that have been made. Lord Atkin said as follows:
So far as the rights and obligations rested on contract, further performance of the contract had been made by statute impossible, and the contract was discharged.
Then this is an interesting part of the judgment:
It is perhaps unnecessary to add that discharged means put an end to and does not mean broken. In the result, therefore, the appellant has failed to show a breach of contract on which to found damages.
Then Lord Atkin goes on a little later:
Finally, and almost inevitably in such a case, an appeal was made to the British North America Act, and it was said that legislation abolishing the office without compensation was an interference with "property and civil rights". But, as before, if the right was in itself determinable by statute, there was no interference with it.
Then he continues:
It would be strange that the dominion should have power to create an office but no power to abolish it except on the terms of awarding compensation apparently for the full term of the original office.
This is exactly what the hon. member is asking us to do.


John Whitney Pickersgill: Will the minister permit a question?


Edmund Davie Fulton: Not for just a moment. They have agreed there is no difference in principle but only in price, and what they say is-


John Whitney Pickersgill: That is not true.


Edmund Davie Fulton: What they are saying in effect is because you are terminating the services you can only do it on the basis that you have to continue the salary.
My hon. friend has said his argument would not be nearly as strong if we were prepared to allow those judges to continue at the same salary even although they ceased to serve as judges which is, to my mind, an entirely untenable position. I come back to the point made by Lord Atkin that it would be strange that an authority or authorities having the power to create an office have no power to terminate it except on the condition that they should continue to pay compensation, measured by the full salary that the incumbents were receiving before the office was terminated.


John Whitney Pickersgill: Will the minister now permit my question?


Edmund Davie Fulton: Yes.


John Whitney Pickersgill: My question is this: Is the minister contending that the dominion, in the sense Lord Atkin used it, created the office of superior court judge or that the office


was created by the British North America Act, because if he takes that position his whole argument falls to the ground.


Edmund Davie Fulton: I am contending that the right to appoint to the office of superior court judge is established under the British North America Act. What we are asking for is an amendment to the British North America Act to provide that judges cease to hold office on attaining the age of 75 years. The principles enunciated in the judgment to which I have referred are exactly applicable in this case. If the power to appoint to an office is established by statute, which is the British North America Act, and if that statute is amended in the proper constitutional method, to terminate the tenure of that office in a certain event, then any talk about breach of contract is just so much nonsense, so much fantasy, so much Alice in Wonderland, as was indulged in by the hon. member this afternoon.


Lester Bowles Pearson: Page R. B. Bennett.


Edmund Davie Fulton: Of course, I know the Leader of the Opposition (Mr. Pearson) was a fervent follower of the Right Hon. R. B. Bennett.


Mr. Speaker:: I am sorry to interrupt the minister, but it seems to me he is debating the amendment which has been disposed of by the house. He might proceed now to the main motion.


Edmund Davie Fulton: Mr. Speaker, I think I could establish a case to the contrary but I will not do so, because I think it is important that we should get to the amendment which I propose to move with regard to the extension of time for the effective date of the coming into force of this legislation.
I had intended to refer to the question of whether or not this proposal should be founded upon an amendment to the British North America Act, and to refer my hon. friends to some statements by Right Hon. Mr. St. Laurent, which I hope Your Honour will agree is a matter germane to the part of the discussion upon which I am now engaged.
There has been a question as to whether the main motion, which is the resolution before the house, should in fact be presented to the house by way of a constitutional amendment or whether it should have been referred to the Supreme Court of Canada for an opinion or whether, indeed, this parliament should not simply have assumed the right to amend the British North America Act instead of presenting an address to Her Majesty praying that the United Kingdom parliament should enact an amendment to the British North America Act. I think that what Mr. St. Laurent had to say in that regard is important, and I trust that whether or not the Supreme

Court of Canada and the privy council will be accepted as authorities by my hon. friends opposite, at least what was said by so eminent an authority as their recent leader and the recent prime minister of Canada will be accepted by them and might dispose of this argument.
In 1944, the Right Hon. Mr. St. Laurent had this to say as reported on page 2248 of Hansard of that day:
Mr. Speaker, I think in about two minutes I can give the assurance that hon. members have sought, that at the very first opportunity the matter of an amendment to the British North America Act to deal with the provision which now gives judges of the provincial superior courts a life tenure in their office will be considered.
It was quite apparent that Mr. St. Laurent was prepared to introduce legislation or present to parliament a motion ending the so-called life tenure of superior court judges and to establish a retirement age. He went on to say this:
This is in my opinion a matter which should not be presented for amendment to the imperial parliament without previous discussion with the provinces, because the administration of justice and the establishment of the courts are matters that are within provincial jurisdiction.
It was obvious that Mr. St. Laurent felt that before you could bring in legislation which in effect provided for the elimination of an office in the courts or touched on the organization of the courts, that was a matter upon which you had to have the consent of the provinces and you had to submit the legislation to the United Kingdom parliament. This is exactly what we are doing here.


John Whitney Pickersgill: Can the minister repeat the date of that?


Edmund Davie Fulton: It is 1944, page 2248.


John Whitney Pickersgill: That was before the act of 1949.


Edmund Davie Fulton: Before the act of 1949; yes, but if my friend is referring to the amendment to section 91 (1) of the British North America Act, let me direct my friend's attention to the important words of Mr. St. Laurent:
-the administration of justice and the establishment of the courts are matters that are within provincial jurisdiction.
Surely my hon. friend, who has made this passing, fantastic reference to section 91 (1) of the British North America Act, will not contend that this subject is within the purview of section 91 (1) when he himself pointed out today that that section enacted in 1949 applies only to matters that are not within provincial jurisdiction. Mr. St. Laurent continued:
It is my view that the proper procedure with respect to amendments to the British North America Act when dealing with any portion that gives
Amendment to B.N.A. Act jurisdiction to provincial legislatures should involve prior conference and consultation with the legislatures, and if it is sought to take away from them something which has been allotted to them, their consent should be obtained.
Then Mr. Bence interrupted':
That is not the case here, may I suggest.
Mr. St. Laurent replied:
I would consider that it is a case where there should be consultation with the provinces, because under section 92 they have jurisdiction in respect of the constitution of the courts, and section 99 is not placed specifically within dominion or provincial powers because it is something which affects both the powers of the governor in council and the powers of the provinces with regard to the setting up and the manning of the courts of justice. It is a matter which was on the agenda for discussion at the last provincial conference, and it certainly will be one of the matters to be considered at the next provincial conference.
As the house knows, unfortunately the government of that day was not able, nor was the following Liberal government able, to get any agreement whatever with the provinces with respect to this important matter. It was not until the year 1959, under the government of the present Prime Minister, that we were able to arrive at an agreement with the provinces with respect to this amendment. Now we find my hon. friends opposite indulging in the extraordinary tactics of suggesting that somehow or other, notwithstanding what their own former leader, an eminent prime minister and eminent jurist said, there is something improper, something vaguely doubtful about the method being followed by the present government in respect of the office of superior court judges. What we now see is quite the opposite from what I hoped and thought this afternoon would be the case, namely that my hon. friends opposite would recognize that, politics apart, here was a real step forward which could solve a constitutional dilemma of this country, on the contrary they appear to be so jealous and so activated by their jealousy they are prepared to attack what is being done on the flimsiest of grounds.
Mr. St. Laurent next discussed this subject in the House of Commons in 1946, as reported at page 2711 of Hansard, when he said, initially using a rhetorical question:
Is it still the opinion of the Minister of Justice that an amendment to the British North America Act, which would provide power to retire judges at a stated age, would require the consent of the provincial legislatures? To that my answer is that, notwithstanding the vote of last night, I persist in that view. I attempted to make it clear in that debate that I considered there had been an allocation of jurisdiction and that this parliament had no right to deal with matters which had been allocated to the provincial legislatures, and that when there was joint responsibility, if any change was to be made that would affect such

Amendment to B.N.A. Act
control as the provincial legislatures and governments have under the constitution, their consent would have to be obtained.
The present Prime Minister then asked:
Would it have to be the consent of all the provinces?
To this, Mr. St. Laurent replied:
In my opinion it would have to be the consent of all the provinces that would be affected thereby. I consider that they have been given jurisdiction sovereign powers, which they get not from this parliament but from the imperial parliament, and it is their jurisdiction; so we cannot take it from them without their consent, any more than if we wanted to take from a legislature of a state of the American union some of its powers.
Again, the present Prime Minister asked:
Every province would be in that position.
Mr. St. Laurent replied:
Every province would be in that position, my view.
It is in recognition of that position that the government has introduced this proposal in the form in which it is before the house, namely a resolution asking this house to adopt an address to Her Majesty praying that she will cause to be laid before the United Kingdom parliament an amendment to the British North America Act. This amendment covers not only the retirement age of judges of superior courts but, in order to make the matter clear beyond any doubt, it asks the United Kingdom parliament to provide, by way of an addition to the constitution of Canada, that the judges of district and county courts will also have their retirement age at 75 years confirmed. Inasmuch as the constitution of district and county courts is a matter of provincial jurisdiction and inasmuch as they are covered by section 92 (14) of the British North America Act I am at a loss to understand why my hon. friends take the extraordinary position that it is a retrograde step to ask that the matter be regularized by having it included in the constitution.
As I have pointed out it is the objective of the present Prime Minister-and it is one which we believe he will be successful in achieving in the same way as we have been successful in achieving this constitutional step forward, unlike our predecessors-it is his objective to reach a measure of agreement, which will result in the repatriation of the constitution so that the control of all the judges of Canada will be brought back to the parliament and to the legislatures of Canada instead of being left, as now, in the United Kingdom. On that basis we say that not only does this proposal not require any defence but that what is being done is right and proper and will place the position of district and county court judges on the basis on which they should be.


Lester Bowles Pearson: And on which they have never been.


Edmund Davie Fulton: What would happen if they were not included in this address? One would have an extraordinary situation if he considers what would happen if they were left out. Section 1 would say that judges of superior courts shall hold office during good behaviour and shall be removable by the governor general on address of the Senate and House of Commons. Section 2 would say that judges of the superior, district and county courts shall cease to hold office on attaining the age of 75 years. This would be a most intolerable distinction and differentiation between the position of judges of district and county courts on the one hand and judges of superior courts on the other. Hence, on any basis on which you care to put it, Mr. Speaker, whether it be on the basis of rationalization of the position of judges of these courts or whether it be on the basis that we will not have any difference between judges of one court who are over 75 who may continue in office and judges who are appointed later but must retire at 75,- on whatever basis you put it-the proposal now before the house will bring a degree of rationality and a degree of order that is most desirable in establishing the position of the judges of our courts.
The only thing that remains then is to move the amendment on which I believe all parties in the house are agreed, namely that the effective date of the legislation to be adopted by the United Kingdom parliament be postponed to March 1, 1961. Accordingly, seconded by the Minister of Finance (Mr. Fleming), I move:
That the resolution be amended by deleting paragraph numbered "3" at the end thereof and substituting therefor the following:
3. This act shall come into force on the first day of March nineteen hundred and sixty one.


Paul Joseph James Martin: Mr. Speaker, the amendment which the Minister of Justice (Mr. Fulton) has just moved is, of course, necessary for the purposes which the government has in mind. However, I think I should point out that if this resolution had been proceeded with, as it should have been, much earlier than the present date, it would not have been necessary to provide for this amendment. In any event, the minister has not made clear that the amendment is really essential. However, there is nothing fundamental in the amendment itself, and one need not spend any time on it except to observe that once this resolution is passed the matter could be dealt with by the United Kingdom parliament, certainly before the

end of the date referred to in the third clause of the section of which this is an amendment.
This is an important matter, as both the Prime Minister (Mr. Diefenbaker) and the Leader of the Opposition (Mr. Pearson) have indicated. Any matter affecting the constitution of our country is a matter of great importance; and generally speaking, this debate has reflected our appreciation of the importance of the matter. Certainly any question affecting the judiciary of our country- whether it be the judges of the district and county courts or of the superior courts or, for that matter, anyone holding judicial office-is a matter of great importance.
It is true that in this common law jurisdiction we do not have the same mathematical appreciation of the division of the functions of government which Montesquieu thought applied to the form of government in Britain and perforce in Canada. But the fact is that the legislature and the executive share with the judicial arm the important function of preserving order in our free society. Any step taken that in any way violates or depreciates the integrity or the security of the judiciary in any of these levels is or should be a matter of concern.
Mr. Pallet!: Will the hon. member indicate the article from which he is quoting?


Paul Joseph James Martin: I was not quoting from any article. I was simply saying, for my hon. friend's benefit, that the great French writer Montesquieu referred to the British system of government as being made up of the executive, the legislature and the judiciary. I hope my hon. friend, who has had some training in political science, will remember who Montesquieu was.
The Prime Minister said that there was nothing unusual in what was being done today.
Of course, I do not know whether he had in mind that on previous occasions addresses had been presented to the United Kingdom parliament with regard to differing proposed constitutional amendments. I think that what we are now doing is unusual in that we are seeking to endow through this parliament which owes its existence constitutionally to a legislature outside of this country an authority to that legislature which that legislative body never claimed or never had. We are also seeking to ask this other authority, the parliament of the United Kingdom, to assume and to continue to assume a power which we might have removed from the United Kingdom parliament and placed forever within our own country.
Amendment to B.N.A. Act
For example, I would have liked to have seen this amendment provide, not that the United Kingdom should fix the ages of judges but that we should receive from the United Kingdom parliament the power ourselves to determine the circumstances of retirement of our superior court judges as to age or any other circumstance of tenure. But that is not what is being done in the resolution introduced by the Prime Minister.
Much of the argument has surrounded an alleged breach of contract. In so far as superior court judges are concerned what is now proposed by the government is that not only with regard to judges to be appointed but judges who are now serving on the bench they shall serve under conditions that did not attend when they were appointed. Because of that the hon. member for Bonavista-Twil-lingate (Mr. Pickersgill) has argued that there is a breach of contract.
That in itself is an important matter. It is not the only point on which I would register complaint but it is a point of importance and one to which the Minister of Justice has addressed himself. He has said, of course, that to say there is a contract between the state and the judge under the circumstances outlined by the hon. member for Bonavista-Twil-lingate is nonsense, and he cites as his authority the Reilly case. The Reilly case had nothing to do with a judicial appointment whatsoever. There may have been a breach of contract in that particular case-I am not saying that there was because I am not familiar with the details-but certainly that case does not in any way help us in the particular instance.
We do have parallel situations. Some of these were referred to today by the Leader of the Opposition. He referred to the amendment of 1927 and the arguments made on that occasion by Mr. Bennett, who complained along with Mr. Cahan-and there were not at that time, and perhaps not since, two better lawyers serving as members of this house- about the particular amendment on the ground, inter alia, that this was a breach of contract that the judges had been appointed under circumstances which they had a right to assume gave them an unlimited tenure of office, except for removal because of bad behaviour.
Mr. Bennett had dealt with this matter forcefully. When in 1933 the then solicitor general, Mr. Dupre, on March 4, moved the first reading of a bill to amend the Judges Act to provide that any judge continuing in office after 75 should suffer a reduction in salary of an amount equal to that which he would receive at 75, the leader of the opposition of that day, reminding the house of the

Amendment to B.N.A. Act position taken by the opposition in 1930 which had caused Mr. Lapointe, the minister of justice of that day, to alter the course which he had adopted, went on to remind the house that the provisions of the bill appeared to violate contracts between the crown and members of the judiciary.
In support of this position Mr. Lapointe the then minister of justice quoted Mr. Bennett as having said in 1927, under circumstances that are exactly the same as those which now confront the house:
What we are now doing involves a breach of the contract between the individual who holds office at the present time and the state, because his patent of office declares that he shall hold office during life or during good behaviour.
Then Mr. Bennett, in speaking of a particular judge, went on-


Mr. Speaker:: Order. I wonder if the hon. member would allow me to intervene at this point in order to say that if he pursues this argument I think it should be by leave of the house. I have allowed him some latitude because I did not check the minister until he had introduced the case to which the hon. member who has the floor has now referred, but the point which concerns me is this. The amendment on which the house has voted was directed to a deletion of the words in subsection (2) of section 99, which when deleted remove the question of breach of contract from this debate. The house has negatived that principle now by its vote, and it would appear to me that just as the minister was out of order in pursuing the argument that a breach of contract would occur if this resolution were given effect to with respect to judges already appointed, so is the hon. member for Essex East out of order. Therefore he should not pursue that argument. If his argument with respect to breach of contract relates to judges appointed afterwards, that of course would put him in order; but I fail to see how this argument could relate to that matter.


Lester Bowles Pearson: Mr. Speaker, on the point you have just raised you will recall that the Minister of Justice at the beginning of this debate made a long speech. He said that he would be moving subsequently another amendment but that he did not wish to take advantage of the second opportunity to make any more of a speech than to move the amendment, and he was right, of course, in moving an amendment. When the minister got up to move that amendment, he then took advantage of that opportunity to reply to the hon. member for Bonavista-Twillingate (Mr. Pickers-gill), who had spoken before the original amendment was voted on. Therefore if the Minister of Justice can make that speech on the very point the hon. member is on now,

surely the hon. member is entitled in his first speech to deal not only with the amendment but with the motion before the house in order to explain the stand we will be taking on the resolution.


Mr. Speaker:: I have, of course, acknowledged the exact point which the Leader of the Opposition makes and I did not intervene until the hon. member for Essex East had fairly well dealt with what had been raised by the minister. I suggest that if he proceeds it should be by leave of the house, because it is clear he is out of order.


John Whitney Pickersgill: Mr. Speaker, I wonder if I could raise a point of order in this context. Perhaps I should have raised it when you raised the point with the Minister of Justice. My point of order is that the house has negatived an amendment, it is true, but we are still surely debating whether this whole resolution should carry. What we are seeking to do now is to argue that the resolution contains offensive material and therefore should not be passed by the house.


Mr. Speaker:: I am quite content, if the house is, that the hon. member proceed with the argument which he is making, but I felt I was duty bound to raise the point because I had raised it with the Minister of Justice.


Paul Joseph James Martin: Mr. Speaker, in view of your ruling I do not know whether or not I have the leave of the house I do feel that the Minister of Justice spent some time on this point, I think quite properly in view of the importance of the subject. I submit an opportunity ought to be afforded to reply. But I am in the hands of the house and I do not know whether the house has extended its consent or not.


Mr. Speaker:: The hon. member may proceed until objection is taken.


Paul Joseph James Martin: The point I was dealing with was that this very question had arisen and was dealt with by Mr. Bennett in terms similar to those used by the hon. member for Bonavista-Twillingate. I had not completed the sentence that Mr. Bennett had used when speaking of the case of a particular judge. He said:
That judge undoubtedly has a contract with the state which entitles him to receive a salary for life or until such time as he resigns. I think the government will be well advised to consider whether or not in all cases of this kind where the contract has been amended the judge should receive full salary. I think we must have regard to the terms and conditions under which the original contract was made. Although it may seem out of the ordinary that a judge should draw full salary when he is retired compulsorily, nevertheless good faith and morals in my judgment impose on us that obligation and it is an obligation we should not likely disregard.

So the hon. member for Bonavista-Twillin-gate was in good company. It must seem obvious that even though there might have been no written contract there are all the elements present in an implied contract when a judge is appointed to office. The argument of breach of contract is a strong argument, and one with which the Minister of Justice has not properly dealt.
I submit there is another argument, one which is even stronger, one that should impress the Minister of Justice. The judiciary must in every way be independent. Judges must be able by virtue of their tenure to carry out their functions in such a manner as not to be open in any way to interference except with regard to the matter of good behaviour, whether by parliament or by any body or authority in the country. This was what Sir Winston Churchill had in mind on April 23, 1954 when this kind of question was being discussed. That right hon. gentleman had this to say of the judges, and I think his words apply with equal force to the present situation:
There is nothing like them at all in our island. They are appointed for life. They cannot be dismissed by the executive government. They cannot be dismissed by the crown either by the prerogative or on the advice of ministers. They have to interpret the law according to their learning and conscience. They are distinguishable from the great officers of state and other servants of the executive, high or low, and from the leaders of commerce and industry. They are also clearly distinguishable from the holders of less exalted judicial office. Nothing but an address from both houses of parliament, assented to by the crown, can remove them.
With regard to those judges now on the bench, what is involved is this: we are interfering, by this measure, with their independence, an independence which is guaranteed to them under our system of law and under the governmental practice which prevails both here and in other commonwealth countries. That is what we are doing. It is not that we on this side of the house do not agree, in view of the acceptance in the public mind of a retiring age for judges, that the age of 75 is, perhaps the correct age. Our opposition does not arise because we are opposed to that principle. We are in favour of it, although we recognize that in our own country there have been judges away past the age of 75 who have rendered distinguished service in the prosecution of our system of law. Sir William Mulock, the late chief justice of the Supreme Court of Canada, Sir Lyman Duff, occur at once to my mind and we know the record in the United States of Mr. Justice Brandeis and Mr. Justice Holmes. We know the record of Lord Chief Justice Goddard in the United Kingdom, and other judicial luminaries who
Amendment to B.N.A. Act have contributed to the cause of justice notwithstanding their age. Nevertheless, we are in agreement with the government on the age of retirement. We ask simply that this should be applied in such a way as not to weaken the independence of the judiciary; that it should apply only to judges yet to be appointed, not to those who have already been appointed.
What is involved here is not only a breach of contract with regard to superior court judges but something more important. We are taking a step which I am sure any student or any serious lawyer would recognize as being a violation in principle of the necessary independence that must attach to the judiciary. Sir Winston Churchill felt so strongly on the subject that he went on in the same debate to say:
The principle of the complete independence of the judiciary from the executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the free world. It is perhaps one of the deepest gulfs between us and all forms of totalitarian rule. The only subordination which a judge knows in his judicial capacity is that which he owes to the existing body of legal doctrine enunciated in years past by his brethren on the bench, past and present, and upon the laws passed b.y parliament which have received the royal assent. The judge has not only to do justice between man and man. He also -and this is one of his most important functions, considered incomprehensible in some large parts of the world-has to do justice between the citizens and the state. The British judiciary, with its traditions and record, is one of the greatest living assets of our race and people and the independence of the judiciary is a part of our message to the ever-growing world which is rising so swifty around us.
Those words apply no less to the judiciary in this country. We should hesitate before taking any step which could be regarded in any way as a violation of the independence of the judiciary which we all postulate as an essential condition of our legal system.


Thomas Miller Bell: And which is perfectly preserved in this legislation.


Paul Joseph James Martin: I do not believe that to be the case, if I may say so to the hon. member with respect, because we are saying to judges who have already been appointed for life: hereafter you will retire at the age of 75 years, notwithstanding the fact that when you were appointed no such limitation was part of the arrangement made by the government of the day. That certainly is an interference in theory at least, in principle, with the independence of those judges. One can conceive of situations-and I am not saying these presently exist, because I do not think the Prime Minister, who is a responsible lawyer, would concur-such as have happened in another country where the highest court was packed under conditions which caused

Amendment to B.N.A. Act the greatest controversy. Many learned societies and individuals in the United States were greatly concerned with the place of the judiciary in regard to the constitution as a result. That sort of thing could happen here. I am not saying that is the situation in the case before us. It is not, obviously. What I am saying is simply this: once a judge has been appointed for life we should not by an act of parliament take any step which they would not take in the United Kingdom parliament, as the words of Sir Winston Churchill so well establish.
With regard to the future, that is another matter. Judges if appointed in the future will know the circumstances and conditions of their appointment and if they are forced to retire at 75 no one could argue then that that compulsion or requirement in any way interfered with their tenure of office or with their independence. I am sure that the Prime Minister will agree that these words of Sir Winston Churchill have a cogency, a relevancy and an application to this situation in principle and it is the principle of the matter, of course, with which we are concerned.
The other matter on which we have differed from the administration is with regard to the position of district and county court judges. Those judges now hold their office under the Judges Act, Revised Statutes of Canada, 1952, chapter 159, section 35. As both the hon. member for Bonavista-Twillin-gate and the Leader of the Opposition stated, this provision is one of long standing. It has been in practice ever since this confederation of ours came into being. The first act taken by this parliament to fix the age of judges of the district or county courts was in 1903. No one at that time contested that it was within the exclusive competence of this parliament, without any reference to the United Kingdom parliament, to limit the tenure of district judges. That question has never arisen. Notwithstanding that the administration of justice in this country has been under Liberal and Conservative administration, distinguished ministers of justice like Sir Charles Doherty, Mr. Lapointe, Mr. Guthrie, Mr. St. Laurent-


Mr. McDonald (Hamilton South):: Mr. Fulton?


Paul Joseph James Martin: -have never questioned the right of this parliament to deal with the tenure of district court judges. To my knowledge the first suggestion ever made was in 1927 when a question was put to the then minister of justice by an hon. member of this house. The only other occasion to my knowledge when any doubt was raised about the situation is today through the resolution now before us. It will be remembered that in 1927 Mr. Boys, the then

hon. member for Simcoe, addressed a question to the then minister of justice, Mr. Lapointe, in this form:
While the minister is upon that point may I ask if there is any special provision in the British North America Act with respect to the retirement of county court judges? There was an amendment put through, if I remember correctly, in the year 1913 or the year 1914, providing for the compulsory retirement of county court judges upon reaching the age of 75 years. Is there any special provision in the British North America Act which provides for legislation of that character?
The minister said, "No". Mr. Cahan and Mr. Bennett were also active participants in the debate. They did not take exception to Mr. Lapointe's statement when he said:
No, not at all, but I would point out that section 99 applies only to the judges of the superior courts.
There was never any doubt about that. Apart from the question asked by Mr. Boys, the first doubt expressed was the suggestion we now have had from the Minister of Justice. What is the argument he adduces? The hon. gentleman tabled some correspondence with the attorneys general. I have read that correspondence and I am not aware that there is any letter in which real doubt is expressed as to the constitutional competence of the federal parliament to deal with the tenure of district judges. There is no suggestion in any of those letters that warrants the grave doubt which the Minister of Justice has sought to indicate exists in this matter by the attorneys general of the provinces.
If there were any doubt surely rather than take what might be regarded as a regressive step the Minister of Justice, before withdrawing from this parliament a power which we say undoubtedly exists should have sought an opinion from the Supreme Court of Canada as to whether or not this matter of the tenure of district judges was or was not a matter that came within the exclusive competence of the parliament of Canada.
We are asked by this resolution that the power which we have had for so many years, the power to deal with the tenure of office of district and county court judges, the duration of their function and their removal from office, be limited by the constitution, and by asking for the approval of the provinces the present government may well have made it necessary in future to consult the provinces if further changes become desirable.
The present government by this action will impose on the United Kingdom parliament additional power at a time when the effort of all of us is to bring to this country in the course of time, and we hope at the earliest possible time, full power to amend our own constitution. That is what our objective is. What the Minister of Justice



I960

[Stage Direction]
is now doing represents a regressive step. It will endow the United Kingdom parliament with a power which I am sure it does not want to exercise and which through the common endeavour of all of us in this house and I am sure of all provincial governments, we are anxious to see settled finally in this country once agreement can be obtained between the two senior levels of government.
Up until now this parliament has been free at any time to amend the constitution without reference to the provinces or to the British parliament in matters affecting the district and county court judges. The Prime Minister said that all of us in this house want to see reside in this country the power to amend our own constitution. The provinces now have that power in respect of matters that come under section 92 of the British North America Act. We have that power with regard to matters that come within our exclusive competence. But in respect of those matters that are of common concern to the federal government and the provinces the objective of most of us in this country, if agreement can be achieved on the part of the two senior levels of government, is to see that the power of constitutional amendment is given to the proper authority in this country.
What the minister is doing by this resolution is to reverse the process. If this resolution is passed, as undoubtedly it will be, it will extend to the parliament of the United Kingdom a power which since 1867 has resided outside the United Kingdom. Can anything be more unjustifiable in view of the fact that we all take pride in our sovereign status?
I ask the Minister of Justice to reconsider this particular phase of the resolution. I am sure that the point made by the hon. member for Bonavista-Twillingate is valid. It is doubtful if we have any power to do what is proposed in the case of district court judges. It is certainly doubtful that the United Kingdom parliament will have any power to deal with this matter at all in so far as the tenure of district court judges is concerned. I should not be surprised if the United Kingdom parliament would refuse to deal with this particular phase of the resolution, as a matter outside its competence. If that should eventuate-and I am not so sure that it is not a pretty good anticipation- then we would be faced in this country with a most ridiculous situation.
By incorporating an express provision of the British North America Act in this resolution the government is now putting itself in the position of making it necessary hereafter to consult the provinces if at any time
Amendment to B.N.A. Act it seems desirable to change this provision and to seek from the British parliament a further amendment of the British North America Act. A moment ago my hon. friend referred to Mr. St. Laurent.
Paul Raymond Martineau: Will the hon. member permit a question? Does he feel that the provinces should have been consulted on this particular address?


Paul Joseph James Martin: I am not saying whether or not it is a good thing that there was no consultation in this matter, but what I am saying is that it is our duty in this house to follow the constitution. The constitution of Canada, the British North America Act, by its clear, implicit terms does not impose any obligation on this parliament, or on the executive of this parliament, to consult the provinces with regard to the tenure of district court judges.
The situation with regard to superior court judges is different. Mr. St. Laurent took the position that with regard to superior court judges it was a matter of common concern to the federal and the provincial governments. It is not a question of what my hon. friend would like to see. The question is, what is the law? The law is clear in this regard. Section 96 of the British North America Act provides that the governor general shall appoint the judges of the superior district and county courts in each province except those of the courts of probate in Nova Scotia and New Brunswick. The act makes no provision whatsoever as to the tenure of offices of judges of the district and county courts; but section 99 does provide that-and it is worth while to read it:
The fudges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
Therefore it is not very difficult to see it is obvious that if the British North America Act provided only with respect to judges of the superior courts that they could hold office during good behaviour, that is to say for life, it must follow that no such condition attached to the appointment of district and county court judges, and that those who appointed them would be free to make the appointments for a lesser time than life. That has been the practice for 90 years of Liberal and Conservative administrations. That principle was practised in the days of Mr. Bennett, in the days of Sir Robert Borden, in the days of Mr. Meighen, in the days of Sir Charles Tupper, in the days of Sir John A. Macdonald, and now it is going to be changed by the Hon. Davie Fulton. Surely, that is the answer to my hon. friend.

Amendment to B.N.A. Act


Paul Raymond Martineau: May I ask the hon. member a supplementary question? If that appears to be the answer of the hon. gentleman, if the provinces should have been consulted, then does it not follow that this parliament has not the right by itself to amend the constitution on a matter in which both the federal government and the provinces have an interest, a matter of mixed jurisdiction?


Paul Joseph James Martin: All I can say
to my hon. friend is that if the foundation was as he stated then I would perhaps be inclined to find some reason for agreeing, but that is not the situation. The British North America Act is clear in the matter.


Paul Raymond Martineau: Exactly.


Paul Joseph James Martin: It does not say that the federal parliament is in any way restricted with regard to district court judges. If it said so, then obviously there would have to be consultation and there would be consultation. But what we are arguing now is that by including the district court judges in this particular address we are limiting unnecessarily, and I say unconstitutionally, our powers, powers actually given to us. Now we are seeking to extend these powers to an outside authority instead of getting additional power or greater freedom to amend our own constitution. What hon. gentlemen are now doing

it is apparent, unwittingly and unintentionally-is binding us more and more to an outside authority, the parliament of the United Kingdom.


Paul Raymond Martineau: Answer the question.


Paul Joseph James Martin: My hon. friend says "answer the question". That surely is the situation.
We have argued the matter, Mr. Speaker, and I am sure it will be recognized that this is an important matter. There are differences of opinion. We find it difficult to understand how the Minister of Justice and the Prime Minister can take the view which they must be assumed to take in this matter of the district court judges-


John George Diefenbaker: May I ask the hon. gentleman a question? I do not want to disturb him. When the hon. gentleman says it has not been done before does he forget the act to amend the Supreme Court Act in 1927?


Paul Joseph James Martin: I dealt with 1927. The act of 1927 dealt with superior court judges. I have been talking about district court judges.


Some hon. Members:: Oh, oh.


Paul Joseph James Martin: With regard to 1927 there is no doubt that that was a move made along parallel lines by the then minister of justice. He corrected his position in 1930 by recognizing the validity of what Mr. Bennett had said. What I have been saying-


Mr. Speaker:: Order. I interrupt the hon. member promptly when there is still one minute before ten-but his time has expired -in order to see whether the house is ready for the question.


Murdo William Martin: Mr. Speaker, this is not the first time I have had the unhappy chore of following my namesake, the hon. member for Essex East (Mr. Martin). I must confess that I feel a bit inadequate to do so. I console myself in the fact that like a Holstein cow which gives a great volume of milk there is not too much butterfat in it.
As a relatively new member in this house, with only three years experience, I have listened very attentively to this debate today and I have come to the following conclusions. The Liberals are willing to retire any Tory judges at 75 years of age but not Liberal judges. The Tories are willing to retire Liberal judges at 75 years plus any future Tory judges who may be appointed. The C.C.F. are in the happy position that they are willing to retire both Liberal and Tory judges at 75 years of age.
Amendment (Mr. Fulton) agreed to, on division.
Resolution as amended agreed to, on division.



BUSINESS OF THE HOUSE

Lionel Chevrier: May I inquire what the house leader intends to do tomorrow?


Mr. Brooks:: Tomorrow we will take item No. 5 on today's order paper, the house in committee on Bill No. C-71, to amend the War Veterans Allowance Act, 1952. After that we shall go on with the estimates of the Post Office Department, followed by the Department of Mines and Technical Surveys.
On Thursday we shall continue with the estimates of the Department of Citizenship and Immigration, followed by the estimates not finished on Wednesday.


[Stage Direction]
At ten o'clock the house adjourned, without question put, pursuant to standing order.


[Stage Direction]
Text of Letter on disarmament dated June 2,
1960 from the Chairman of the Council of Ministers of the U.S.S.R. to the Prime Minister of Canada.
His Excellency Mr. John G. Diefenbaker, Prime Minister of Canada,
City of Ottawa.
Dear Mr. Prime Minister:
I would like to address you on the question of general and complete disarmament, which is the most important question confronting the world at the present time. Nowadays, in the age of atom, space rockets and electronics, the necessity to take daring and far-reaching actions aimed at finding a solution of the disarmament problem has become especially acute. Is it not obvious that now common sense cannot be reconciled any longer with the whirl of armaments, which is pulling toward an unprecedented disaster and which is indeed perniciously affecting all aspects of the life of society?
In the course of its preparations for the Paris conference of the heads of government, the Soviet government has worked out proposals which constitute the elaboration of the general and complete disarmament program which I, on behalf of the Soviet government submitted to the fourteenth session of the U.N. general assembly last September.
In those proposals we took into consideration certain observations expressed by our partners in negotiations and, in particular, the ideas expressed by the government of France to the effect that at the beginning of the implementation of the disarmament program measures should be undertaken to eliminate the means of delivering nuclear weapons to targets. Some other proposals put forward by a number of governments, including those made in the course of discussions in the ten-nation committee on disarmament, have also been taken into consideration. However, we were unfortunately unable to discuss those proposals at the meeting of the heads of government.
Latest developments have not reduced but on the contrary increased the determination of the Soviet government to seek a radical solution of the disarmament problem, the liquidation of the armaments race, which is dangerous and useless for the peoples. The Soviet government, being guided by its invariable policy of peaceful co-existence among
states, intends, as it has before, to do everything necessary for the invigoration of the international situation and the improvement of relations among states.
Upon my return from Paris to Moscow the Soviet government discussed the situation obtained and came to the conclusion that it was necessary to submit the proposals on general and complete disarmament which had been prepared for the conference of the heads of government for the consideration by the governments of all states.
A relevant document containing the proposals of the Soviet government on the implementation of general and complete disarmament is transmitted to you together with this message.
We are convinced that these proposals meet the requirements set forth in the resolution on general and complete disarmament unanimously adopted by the U.N. general assembly on November 20, 1959.
I would like to draw your attention to the fact that the program of the Soviet government envisages already at the first stage prohibition and destruction of all means of delivering nuclear weapon missiles of all ranges, military aircraft, surface naval vessels which can be used as carriers of nuclear weapons, submarines of all classes and types, all artillery systems, as well as other means which can be used as carriers of atomic and hydrogen weapons.
Obviously, the security of states can be duly safeguarded if only all means, without exception, of delivering atomic and hydrogen weapons are eliminated from the armaments of states and are destroyed. It goes without saying that a simultaneous elimination of all military bases on foreign territories and withdrawal of foreign troops therefrom is necessary, since the retention of such bases and troops could be used for aggression against nearby states.
The implementation of these measures at the very beginning of the disarmament program would remove the danger of a surprise nuclear war being unleashed and would change radically the international situation.
At subsequent stages measures for the prohibition of nuclear and other weapons of mass destruction, for the elimination of armies and war machinery of states would be put into practice, thus making it possible to preclude
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war from the life of human society finally and for all time and to put an end to the arms race.
With the gradual implementation of the disarmament program a part of the funds thus released should be used to render economic assistance to the underdeveloped countries.
You will see from our proposals that they contain detailed provisions for control over disarmament measures which would not allow anyone to evade the observance of the agreement on general and complete disarmament. We have worked out specific measures on control according to respective stages of the disarmament program, we have indicated objects for control, defined the structure and composition of the control body, the rights and powers of on the spot inspectors. Our new proposals containing detailed provisions for the control constitute still another proof of the Soviet union being in favour of a strict and effective control over disarmament.
The Soviet government believes that these proposals should be given a comprehensive study first of all in the ten-nation committee on disarmament which is to resume its work in Geneva in a few days.
I would also like to emphasize that the Soviet government entertains serious doubts that the western powers represented on this body really want disarmament. Although these powers did vote in the general assembly for the resolution on general and complete disarmament, the impression is that, in fact, they are not prepared to implement it.
As is known, the western powers came out in the committee with such a plan which, given all the desire, cannot be called a plan of general and complete disarmament. Even after the implementation of that plan there would remain armies, military aircraft, tanks, guns, military bases in foreign territories, general staffs and nuclear bombs. As a matter of fact, the western powers propose control without disarmament. Frankly speaking, such control is nothing else but intelligence and espionage.
No government attentive to the sovereign rights of states can accept this.
The Soviet union desires actual and complete disarmament, destruction of all types of weapons and establishment of a strict control over disarmament so that no one would be able to arm and no one would be able to threaten with war.
May I express, Mr. Prime Minister, the hope that the proposals of the Soviet government, prompted solely by the desire to facilitate and expedite the conclusion of an argeement on this most important question of our time, the
question of general and complete disarmament, will meet with understanding and support of your government.
Respectfully,
N. Khrushchev.
The Basic Provisions of a Treaty on General and Complete Disarmament
On the 18th of September 1959 the Soviet government put forward for consideration by the United Nations a proposal for general and complete disarmament. It submitted that proposal, proceeding from a firm conviction that the complete disarmament of all states, elimination of all means of war constitute the most efficient and-under the existing conditions-the most practicable way to prevent the outbreak of a rocket and nuclear war, so disastrous for nations; and to ensure a lasting peace on earth.
The balance of power obtained at present in the world when an aggressor is not able to unleash war against peace-loving states with impunity; the destructive power, without parallel in the history of mankind, of the modern weapons, which are able to effect a quick annihilation of whole states; the feasibility of almost instantaneous delivery of such weapons to any point on the globe- all these factors make war as a means of solving international arguments an obvious folly. The peaceful coexistence of states with different social systems, which the Soviet union, as well as other socialist countries, has always been championing, is a real fact. Peaceful coexistence, however, cannot be durable enough, peace cannot be considered to be reliably secured as long as the arms race is being continued, as long as states have at their disposal the means to attack other countries with lightning speed and possess gigantic stockpiles of weapons, nuclear weapons included.
Nowadays truly fantastic sums of money are being spent on armaments. Suffice it to say, that certain types of modern bombers cost more than their weight in gold. And is it not a fact that many types of armaments become obsolete even before they are shipped from the factories and are scrapped? The arms race becomes a senseless waste of human labour and of material. Sums at present spent by states to produce and stockpile weapons would alone suffice to put an end to starvation on the whole of the globe.
The fact that the energy of hundreds of millions of people and the values they create are spent on the preparation for war, whose inadmissibility becomes clearer with every day, cannot be tolerated any longer. The mankind of today with its wonderful achievements in conquering nature and developing spiritual values deserves a better fate.

At present the great goal, the dream of many generations-to put an end to wars, to preclude war from the life of human society altogether-have become practicable, possible to achieve. This goal can be achieved by means of destroying all types of weapons and disbanding all armies of the world, that is by general and complete disarmament. This is the only genuinely reliable basis, on which under the present conditions a lasting, unbreakable peace among all states can rest.
General and complete disarmament cannot give advantages to any party. This makes it possible to remove many of the obstacles which arose whenever it was only partial disarmament measures that were dealt with and when some states feared that the implementation of such measures might upset the balance of forces and prove detrimental to their security. The conclusion of an agreement on general and complete disarmament would also make it much easier to exercise international control over the disarmament measures for, if complete disarmament is arrived at, states will have no reasons to conceal anything from one another and it will be possible to exercise complete control.
The proposal of the Soviet union on general and complete disarmament met with enthusiastic approval in all the countries of the world. It added new strength to the aspirations of peoples to rid forever of the nightmarish threat of a rocket and nuclear war. No government opposed that proposal. The United Nations unanimously endorsed the idea of general and complete disarmament and confirmed that the question of such disarmament is the most important one facing the world today. The appeal of the U.N. general assembly to the governments to do their utmost to reach a constructive solution of this problem as soon as possible puts great moral obligation upon all states.
To implement that appeal of the United Nations and to make come true the hopes of people who call for disarmament, it is necessary that the governments on whom rests the main responsibility for reaching an international agreement on this question take concrete steps toward the preparation and conclusion of such an agreement without any further delay.
The Soviet government makes all efforts to achieve as soon as possible practical results in the disarmament talks-to work out and sign an agreement on general and complete disarmament.
As is known, the Soviet union's proposals of September 18, 1959, contain a concrete program for carrying out general and complete disarmament by three stages within the time limit of four years. It was proposed to effect at the first stage under international
control a substantial reduction of conventional armed forces and armaments of states, at the second-to complete the elimination of the remaining contingents of these armed forces and to eliminate military bases on foreign territories and at the third-to destroy all types of nuclear and rocket weapons and to carry out other measures concluding general and complete disarmament.
When proposing this sequence of disarmament measures the Soviet union took into account the views of the western powers who referring at previous disarmament negotiations to the superiority of the U.S.S.R. in the armed forces and conventional armaments, spoke out for the measures in the field of nuclear disarmament to be put off to the last stage. As regards the Soviet government it has always been in favour of making a war with the use of weapons of mass destruction impossible and it considers the sooner it is carried out, the better.
During the meetings and talks among leading statesmen that have taken place in recent months, as well as in the course of the work of the 10-nation committee on disarmament which was entrusted with the elaboration of measures for the realisation of the decision of the U.N. general assembly on general and complete disarmament, the views and proposals of sides on the questions concerning disarmament have been set forth in detai1 and specified.
The Soviet government invariably upholding its proposal for general and complete disarmament as one consistent with the great goal of ensuring a durable peace on earth, in which all nations barring none are interested in, at the same time is prepared to take into consideration any constructive observations and wishes of other participants of the negotiations, that are conducive to the achievement of an agreement on the practical realisation of disarmament.
In the course of the negotiations an opinion was expressed by some powers, particularly by France, that disarmament should be started with the prohibition and destruction of the means of delivering to target nuclear, chemical and biological weapons such as war missiles, air force, naval vessels and so on, and at the same time the necessity for the simultaneous elimination by states of their military bases on foreign territories was taken into account.
The government of the U.S.S.R. is still of opinion that the order of carrying out disarmament measures stipulated in its proposal of September 18, 1959, is fully consistent with the goal of the practical realisation of general and complete disarmament. Nevertheless, trying to facilitate in every possible way an early
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achievement of agreement on this problem in the -interests of ensuring a lasting and durable peace among all states, the Soviet government is again prepared to make steps forward to meet the western powers and to agree on a different sequence of carrying out disarmament measures, if that sequence is more acceptable to the western powers.
Being an ardent champion of the earliest deliverance of mankind from the threat of a rocket and nuclear war, the Soviet government proposes that agreement be reached to begin the process of general and complete disarmament by the prohibition and destruction under international control at the first stage of all means of carrying nuclear weapons to target with the simultaneous elimination of military bases on foreign territories.
When war missiles of all ranges, air force, submarines and surface naval vessels, artillery capable of firing nuclear shells and all other means of delivering to targets weapons of mass destruction will be eliminated and states will not have armed forces and military installations beyond their national borders, one country's attack against another with atomic and hydrogen weapons will become practically impossible.
Being desirous to reach this goal the Soviet union expresses its willingness to begin disarmament by the destruction of all means of delivering nuclear weapons to targets, notwithstanding its generally recognized superiority in the most modern and effective means of that kind, namely, in intercontinental ballistic missiles.
In this case during the next, second stage of the disarmament program such measures could be carried out as banning nuclear, biological and chemical weapons, destroying all their stocks and terminating their further manufacture. The menace of a nuclear war in whatever form would be removed for good. At the same time a considerable reduction of armed forces and conventional armaments of states would be carried out.
The third stage would mark the completion of general and complete disarmament, the disbanding of all armies, war ministries, general staffs, the abolition of military service and of military training of youth, the complete cessation of appropriating funds for military purposes.
It is proposed that all this disarmament program shall be implemented on the basis of an international treaty in the course of a definite period of time-within four years or during another period agreed upon, and under effective international control.
In the course of discussing the question of general and complete disarmament in international bodies a great deal of attention has
been drawn to the question of measures to be taken for ensuring the peace and maintaining international law and order in the relations between states under the conditions of general and complete disarmament. The Soviet government proposes that the states parties to the treaty would jointly examine this question in detail so that in the course of the implementation of the third and final stage there would be taken necessary measures in accordance with the U.N. charter for the maintenance of peace in the conditions of general and complete disarmament including the obligation by states to place, when necessary, police (militia) detachments at the disposal of the security council to ensure keeping the peace. Naturally, such police (militia) detachments can be used exclusively for the maintenance of peace among nations and not for the suppression of peoples who are struggling for their independence and social progress, and not for the interference in the internal affairs of states.
It is proposed that all disarmament measures be implemented under strict international control from the beginning to the end. For this purpose the parties to the treaty shall set up an international control organization whose scope of competence will include all disarmament measures and will expand as these measures will be assuming still more comprehensive and far-reaching nature.
In accordance with the abovestated the Soviet government submits the draft basic provisions of a treaty on general and complete disarmament.
Basic provisions of a treaty on general and complete disarmament
The governments of the states members of the 10 nation committee on disarmament set up in 1959, being guided by the resolution of the XIV session of the U.N. general assembly of November 20, 1959, "On general and complete disarmament", in the interests of saying mankind from the threat of a new war and in the interests of securing stable and inviolable peace on earth recognize it necessary to proceed without delay to the practical solution of the task of general and complete disarmament, and have resolved to this end to work out a treaty on general and complete disarmament, which will include the following basic provisions:
I.	General and complete disarmament envisages:
-the disbanding of all armed forces of states and the prohibition of their re-establishment in any form whatever;
-the prohibition and the destruction of all stockpiles of and the cessation of the manufacture of all kinds of armaments, including

atomic, hydrogen, chemicals, bacteriological and other types of weapons of mass destruction;
-the destruction of all means for delivering the weapons of mass destruction to targets;
-the liquidation of all kinds of military bases, the withdrawal and the disbanding of all foreign troops stationed in the territory of any states;
-the abolition of all kinds of military services of citizens;
-the termination of military training of the population and the abolition of all military educational institutions;
-the abolition of war ministries, general staffs and their local agencies, as well as of all other military and paramilitary establishments and organizations;
-the discontinuance of the appropriation of funds for military purposes whether from state budgets or from public organizations and private individuals.
After the completion of general and complete disarmament states shall retain at their disposal only strictly limited contingents of police (militia), the size of which shall be agreed upon for each country and which shall be equipped with small firearms and intended for the maintenance of internal order and the protection of personal security of citizens.
II.	General and complete disarmament shall be implemented by all states at one and the same strictly defined time which shall be agreed upon; and the disarmament process shall be carried out gradually, by three consecutive stages, having in mind that at no stage a state shall obtain military advantages, flowing from the course of disarmament, over other states.
For the consideration of the question of other states joining the agreement on general and complete disarmament a conference shall be held with all countries participating.
III.	All disarmament measures from the beginning to the end shall be carried out under strict and effective international control, that is:
(a)	immediately after the signing of the treaty a preparatory commission shall be set up, whose task will be to implement practical measures for establishing an international organization of control over general and complete disarmament;
(b)	a control organization shall be set up within the framework of the United Nations on the treaty coming into force.
It shall consist of all states, parties to the treaty, and their representatives shall meet periodically for conferences to consider questions related to the carrying out of effective control over disarmament. The conference shall elect a control council, consisting of permanent and non-permanent members,
which shall have its own local agencies. The control council shall consist of the representatives of socialist countries, the representatives of states that participate now in the western military and political alliances, and the representatives of neutral countries. Barring cases specially agreed upon, decisions in the control council shall be taken by the two third majority of votes on the questions of essence and on the questions of procedure -by a simple majority of votes.
(c)	The control council shall effect practical guidance of the control system, work out instructions as well as make timely analysis and processing of reports it shall receive. States shall submit the information on their armed forces and armaments to the control council.
(d)	The control organization shall have in all countries parties to the agreement its own personnel, recruited on the international basis with the principle of just geographical distribution taken into consideration, and in accordance with the provisions of the treaty. The control organization shall place its inspectors on the territories of states in such a way as to enable them to start exercising their functions the moment states begin the implementation of measures in the field of disarmament. Each party to the treaty shall undertake to ensure timely and unrestricted access to inspectors and inspection teams within its territory to any point where disarmament measures to be verified will be effected, or to any area where on the spot inspection of such measures will be carried out. With this purpose parties to the treaty shall at the expense of the control organization make all necessary means of transportation available to the personnel of the control organization for travelling within their territory.
(e)	The control organization personnel shall enjoy on the territory of each party to the treaty such privileges and immunity that are necessary for independent and unrestricted implementation of control over the fulfillment of the disarmament treaty.
(f)	All expenditures of the international control organization shall be covered at the expense of the states parties to the treaty. The scale of the contributions of states shall be fixed in the text of the treaty on general and complete disarmament.
The control organization shall at each stage have powers with regard to the scope and nature of measures in the field of disarmament.
The basic measures in the disarmament field are distributed by three stages of the program of general and complete disarmament in the following way:
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The first stage
1.	All means of delivering nuclear weapons shall be removed from the armed forces of states and destroyed; their manufacture shall be stopped. It includes:
-strategic and tactical missiles, pilotless planes of all types, all military aircraft capable of delivering nuclear weapon;
-surface naval vessels that can be used as carriers of nuclear weapon;
-submarines of all classes and types;
-all artillery systems as well as other means that can be used as carriers of atomic and hydrogen weapon.
2.	All foreign troops shall be withdrawn from alien territories to within their national frontiers. Foreign military bases and depots of all kinds, both relinquished after the withdrawal of troops and alternate ones, shall be abolished.
3.	From the very beginning of the first stage and until after the final destruction of all means of delivering nuclear weapons the putting into orbit or the placing in outer space of special devices, the crossing by naval vessels of the limits of their territorial waters and the flights beyond their national territory by military aircraft, capable of carrying weapons of mass destruction shall be prohibited.
4.	The launching of rockets shall be carried out solely for peaceful purposes and in accordance with predetermined and mutually agreed criteria and shall be accompanied by agreed measures of verification including the inspection on the sites of launching such rockets.
5.	States having at their disposal nuclear weapons shall undertake not to transfer such weapons or information necessary for the manufacture thereof to the states which do not possess such weapons. At the same time the states possessing no nuclear weapons shall undertake to refrain from the manufacture of such weapons.
6.	Accordingly states shall reduce their military expenditures.
7.	The following control measures shall be carried out at the first stage:
On the spot international control shall be established over the destruction of rocket weapons, military aircraft, surface naval vessels, submarines and other means which could be used as carriers of atomic and hydrogen weapons.
International inspection teams shall be dispatched to the places of deployment of military bases and troops on foreign territories to supervise the elimination of the said bases and the withdrawal of military personnel and
troops to within their own national territories, control shall be also established on airfields and at ports to ensure these airfields and ports not being used for military purposes. At the same time the destruction of missile launching sites shall be carried out under the supervision of an international control organization with the exception to the sites which will be maintained for the launching of rockets for peaceful purposes.
The control organization will be entitled to unrestricted inspection of all enterprises, plants, factories and shipyards which were previously engaged fully or in part in the production of missiles, aircraft, surface naval vessels, submarines and all other means of delivering nuclear weapons to prevent clandestine production of armaments which could be used as carriers of atomic and hydrogen weapons. On agreement fixed control teams may be established at some works and in-tallations.
International inspection teams dispatched by the control organization shall be entitled to carry out comprehensive examination of rocket devices, being launched for peaceful purposes and to be present at the time of launching.
The inspectors shall communicate with the control council through existing channels of communication and there shall be provided such privileges which will ensure prompt delivery of reports and instructions.
8.	At the first stage joint studies shall be undertaken of the measures on the discontinuance of the manufacture of nuclear, chemical and bacteriological weapons and on the destruction of the stockpiles of such types of weapons, i.e. of the measures which are to be implemented at the second stage.
9.	The first stage must be accomplished within 1-1.5 years. The international control organization shall review the results of carrying out the measures of the first stage to report on them to the states parties to the treaty as well as to the security council and U.N. general assembly.
The second stage
1.	There shall be a complete prohibition of nuclear, chemical, bacteriological and other weapons of mass destruction along with the cessation of the manufacture and the destruction of all the stockpiles thereof.
2.	The armed forces of all states shall be reduced to agreed levels, the armed forces level for the U.S.A. and the U.S.S.R. shall not exceed 1.7 million men. Conventional weapons and ammunitions thus released shall be destroyed and military equipment shall be either

destroyed or be used for peaceful purposes. Military expenditures of states shall be reduced accordingly.
3.	The following measures of control shall be undertaken at the second stage:
Representatives of the control organization shall make on the spot inspection of the destruction of all available stockpiles of nuclear, chemical and bacteriological weapons. The control organization shall be entitled to inspect all enterprises engaged in the extraction of atomic raw materials, in the production or use of atomic materials and atomic energy. Fixed control teams may be established, subject to agreement, at some enterprises and installations.
On the spot international control shall be established to supervise the disbandment of troops and the destruction of armament.
Inspectors shall:
Supervise the exact and timely compliance with the decisions on the disbandment of military formations and units, elimination and destruction of material of conventional arms, military equipment and ammunition; report to the control council and to the government of the host country.
International inspection groups shall include experts depending on the nature of units subject to disbandment and the types of weapons to be destroyed.
The control organization shall have unrestricted access to the documents pertaining to budget allocations of states for military purposes including all the decrees of legislative and executive bodies on this subject.
4.	Joint studies shall be undertaken at the second stage of the following measures to be implemented at the third stage;
(a)	measures to assure compliance with the treaty on general and complete disarmament upon the implementation of all measures stipulated in such a treaty;
(b)	measures to safeguard peace and security in accordance with the U.N. charter in the conditions of general and complete disarmament.
5.	Similar to the transition from the first to the second stage, the international control organization shall sum up the results of the second stage steps to report them to the states parties to the treaty as well as to the security council and the general assembly of the United Nations
The third stage
1.	The elimination of the armed forces of all states shall be completed. States shall retain at their disposal only strictly limited contingents of police (militia) the size of 79951-0-312
which shall be agreed upon for each country and which shall be equipped with small firearms and be intended for the maintenance of internal order and the protection of personal security of citizens.
2.	All remaining types of conventional armaments and ammunitions both in the armed forces and in depots shall be destroyed and the military equipment shall be subject to destruction or use for peaceful purposes.
3.	Military production at all factories shall be terminated including the manufacture of conventional armaments with the exception of the strictly limited manufacture of small firearms designed for the contingents of police (militia) retained by states after the completion of the program of general and complete disarmament.
4.	War ministries, general staffs and all military and paramilitary establishments and organizations shall be abolished. All military training of reservists shall be terminated. In accordance with their respective constitutional procedures, states shall enact legislation prohibiting military education of young people and abolishing military service in all its forms.
5.	The appropriation of funds for military purposes in any form, whether from state bodies and private individuals and public organizations, shall be discontinued. The funds released as a result of the implementation of general and complete disarmament shall be used to reduce or abolish taxation of the population, to subsidize national economies and to furnish economic and technical assistance to underdeveloped countries.
6.	At the third stage the following additional measures on control shall be undertaken:
The international control organization shall send controllers for on the spot inspection of the abolition of war ministries, general staffs, all military and paramilitary establishments and organizations, and of the termination of military training and all other kinds of military activities.
Control shall be established over the discontinuance of the appropriation of funds for military purposes.
The control organization may, when necessary, institute a system of aerial observation and aerial photography over the territories of states.
7.	After the implementation of the program of general and complete disarmament the control organization shall be preserved and shall carry out constant supervision over the implementation by states of the obligations assumed. The control council shall have
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the right to send mobile inspection teams to any point or any establishment in the territories of states.
States shall furnish to the control organization data concerning the places of deployment of the contingents of police (militia), their strength in every place (area) as well as any transfer of sizeable contingents of police (militia) near state boundaries. International inspection teams shall carry out comprehensive control so that the strength of police (militia), and their armaments be in conformity with norms agreed upon for each country.
8.	Other measures worked out to assure compliance with the treaty on complete disarmament shall enter into force.
9.	Measures for preserving peace and security in accordance with the UN charter shall be implemented. States shall undertake to place, when necessary, at the disposal of the security council formations out of the contingents of police (militia) remaining at the disposal of states.
Gradually with the implementation of the program of disarmament and the reduction of military expenditures of states the funds thus released as a result of this shall be partly used to render economic assistance to underdeveloped countries.
This is the proposal of the Soviet union concerning the order of the implementation of general and complete disarmament with considerations expressed by the western powers taken into account.
Submitting this proposal the Soviet government expresses its readiness to reach agreement on the implementation of disarmament on the basis of the present proposals constituting an elaboration of the program put forward on September 18, 1959. The most important thing is to conclude an agreement and to finally commence general and complete disarmament which is awaited
by the peoples and urged by the United Nations. The Soviet government is prepared to do it without delay, without waste of time, and it expresses its sincere hope that other states will do likewise being fully conscious of the responsibility for disarmament which rests upon the governments of all states, particularly on the governments of great powers.

The texts of the documents published have been sent to the governments of all countries with whom the U.S.S.R. maintains diplomatic relations. The text of the proposals of the Soviet government on the basic provisions of a treaty on general and complete disarmament has also been sent to the governments of other states.
OTTAWA, June 6, 1960 Dear Mr. Chairman,
Thank you for your letter of June 2 enclosing a series of proposals on disarmament. The implications of these proposals will require careful study in consultation with other interested governments and in the light of other proposals which have been placed before the 10 nation committee in Geneva.
The government of Canada is now engaged in this process of study and consultation and for this reason I welcome your decision formally to present the proposals in the 10 nation committee where they can be the subject of discussion and clarification.
Yours sincerely,
(sgd.) J. G. Diefenbaker Mr. N. S. Khrushchev,
Chairman of the Council of Ministers of the Union of Soviet Socialist Republics, MOSCOW
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Wednesday, June 15, 1960