1961-06-06

Hon. Howard C. Green (Secretary of State for External Affairs):: I wish to inform the house that at the invitation of the government of India the second commonwealth education conference will be held in New Delhi from January 11 to January 25, 1962. An announcement to this effect is being made today in the various commonwealth capitals and by the commonwealth education liaison committee in London, which is responsible for the co-ordination of the commonwealth education program.
Canada will, of course, accept the invitation of the government of India to attend the conference, and in due course the government will announce the composition of a representative delegation competent to contribute in a constructive manner to the success of the conference.
It will be recalled that the first commonwealth education conference was convened at Oxford, England, in July, 1959 following an initiative taken by Canada at the conference of commonwealth finance ministers in Montreal in September, 1958. The Oxford conference recommended that a second meeting should be held after an appropriate interval to examine in retrospect the general progress of the program and, in the light of experience gained in the first few years of its operation, to consider in what manner the arrangements for co-operation among the countries of the commonwealth could be improved.
The commonwealth scholarship and fellowship plan, which came into effective operation with the beginning of the scholastic year in September, 1960, has already made substantial progress toward its goal of having 1,000 students studying in various commonwealth countries at any one time, at an intake rate of 500 students per year; and it is expected that by the end of 1961 almost all commonwealth countries will have made or offered awards under the plan.
For the first year of the plan's operation 338 scholarships and three fellowships were awarded by all participating countries; of 90205-6-374i
these, 281 scholarships and the three fellowships were in fact accepted. I am happy to be able to report that, in that period, from the total of 281 scholarships we in Canada have had the pleasure of receiving as our guests 101 commonwealth scholars from 25 different countries or areas of the commonwealth. I might add that they are very widely distributed, as follows: Australia, 9; Basutoland, 1; Bermuda, 1; British Guiana, 2; British Honduras, 1; Ceylon, 5; Fiji, 1; Ghana, 5; India, 14; Kenya, 3; Malaya, 2; Malta, 2; Mauritius, 2; New Zealand, 4; Nigeria, 2; Pakistan, 8; Federation of Rhodesia and Nyasaland, 4; Sierra Leone, 1; Somaliland, 1; South Africa, 4; Tanganyika, 1; Uganda, 4; United Kingdom, 13; Singapore, 2; and the West Indies, 9. This autumn we shall be receiving approximately 115 additional commonwealth scholars, so that by the second year of the scheme's operation Canada will have well over 200 of these welcome visitors from across the seas.
The scholars from abroad have done very well in their studies in Canada, which is a tribute to the care exercised by the special nominating committees in their own countries and in Canada by a scholarship selection committee set up for this purpose. The Canadian universities which received the commonwealth scholars deserve a great deal of credit for their successful efforts.
In addition to the Canadian scholarship and fellowship program, significant advances have been made in the area of training and supplying teachers. Although the United Kingdom has carried the largest share of the responsibility in this particular respect, Canada has assisted both by sending teacher trainers to help in the development of teacher training institutions in other commonwealth countries and by receiving trainees to undertake teacher training courses in Canada. Arrangements also exist whereby Canada and other commonwealth countries which have the necessary facilities available send selected teachers and advisers from their own education services to fill key posts in countries where they are most required. By the end of 1960 Canada had sent abroad a total of 20 educators to assist in teaching and teacher training, and plans for significant expansion in this particular field of activity are well under way.
Another important area of co-operation in commonwealth education is that of technical

Wheat Sales to Poland education, where existing plans are being developed and expanded in accordance with the recommendations of the Oxford conference.


Hon. Paul Martin (Essex East):: Mr. Speaker, I am sure hon. members of this house have listened with great interest to the minister's statement and the decision to have a second conference in Delhi, in that great Asian nation of India, is warmly welcomed. The promotion of further educational opportunity among students of the commonwealth provides an additional strengthening of the commonwealth and will afford the opportunity for further understanding and collaboration in a very important area of human endeavour.
We have listened with great interest to this statement which denotes progress in a matter which has so much to do not only with improving the standard of living, but also with the promotion of peace, through the processes of education and enlightenment.


Mr. H. W. Herridge (Kootenay West):: Mr. Speaker, I am always heartened to hear of Canada's participation in commonwealth activities of this type, and am very pleased to know that Canada is sending delegates to the educational conference and is supporting wholeheartedly this educational program aimed to develop peace, reform and prosperity in all parts of the commonwealth.

On the orders of the day:


Mr. Lucien Cardin (Richelieu-Vercheres):: Mr. Speaker, I should like to direct a question to the Secretary of State for External Affairs. Can the minister inform the house what steps have been taken and what progress has been made to implement the minister's announcement that $300,000 would be made available to the French speaking nations of Africa for educational and training programs?


Howard Charles Green: Mr. Speaker, the department is busy working out the details of this program. I cannot give any further information at the present time.



WHEAT-ANNOUNCEMENT OF SALE TO POLAND

Hon. Alvin Hamilton (Minister of Agriculture):: Mr. Speaker, I should like to inform the house that the Canadian wheat board has concluded an agreement with the Polish national trade organization, Rolimpex, for the sale and purchase of approximately 100,000 tons of wheat, equivalent to 3.7 million bushels, for shipment this crop year.

The wheat has been purchased on a credit basis, and the Canadian government has authorized export credits insurance in order to facilitate this sale. The terms of repayment include 10 per cent cash and the balance as follows: one third payable two years from the date of shipment; one third payable two and one half years from date of shipment; one third payable three years from date of shipment.

On the orders of the day:


Mr. Robert Simpson (Churchill):: Mr. Speaker, I should like to direct a question to the Minister of Agriculture in relation to the announced sale of grain to Poland. I wonder whether the minister could use his good offices in suggesting to the Canadian wheat board that the bulk of these shipments go out through the port of Churchill, thereby allowing western farmers the additional 8 cents to 9 cents a bushel through saving which results from shipment through this port.


Francis Alvin George Hamilton: Mr. Speaker, coming as I do from the west I should like nothing better than what the hon. member suggests in his question. However, if he reads my announcement carefully he will find that this particular deal is for delivery in this crop year. It is physically impossible to take grain out of Churchill before the last week or so of July.


Mr. J. E. Pascoe (Moose Jaw-Lake Centre):: Mr. Speaker, I should like to address a supplementary question to the Minister of Agriculture regarding the sale of wheat to Poland. The minister's announcement of the new sale will be of great interest to prairie grain growers. Can the minister inform the house whether the wheat to Poland will be shipped from eastern or western ports?


Mr.. Hamilton (Qu'Appelle):: Mr. Speaker, this particular contract for the sale of wheat to the Polish government calls for shipment through the St. Lawrence ports.



NORTHERN AFFAIRS


Hon. W. G. Dinsdale (Minister of Northern Affairs and National Resources):: Revision of Oil and Gas Regulations
I realize, Mr. Speaker, that the announcement I have made deals with a very technical subject. Because of this I have endeavoured to make my exposition of the new policies of the government in non-technical language. For the benefit of those persons and companies directly and personally interested in northern oil I have prepared a statement giving in more technical language and in greater detail particulars of the new policies. These are available to members of the press. Should it be the wish of hon. members, I will be glad to table this additional statement at this time. Perhaps, Mr. Speaker, it could also be printed in Votes and Proceedings of the house.


Mr. G. J. Mcllraith (Ottawa West):: Mr. Speaker, the house will have listened with interest to the statement of the minister on this rather complicated subject. The statement covers a wide range, and I think it is probably more appropriate that it be studied carefully to see exactly what its implications are. There is no doubt about the fact that the oil and gas regulations as originally drafted and now in existence have been in need of revision, and I take it from the statement that there has been a rather extensive revision.
From listening to the minister I do not believe he said anything about the parts of the regulations having to do with the ownership and control of companies taking part in exploration. The regulations on that point as they now exist were the subject of a great deal of discussion back and forth, with some criticism and some favourable comment. I noted that the minister did not deal with that point in his statement and has not relieved our curiosity about it. I shall wait until I examine the regulations to see whether in fact the government has retreated from its so-called Canada first policy, or how the rights of Canadians have been dealt with in these new regulations. I would ask the minister to table his supplementary statement and have it printed, and I should also like to ask him whether the regulations themselves are now available in printed form.


Herbert Wilfred Herridge: Mr. Speaker, as a member with little technical knowledge and no information with respect to natural gas and oiliness, I want to thank the minister for his informative announcement on this very important question. I cannot resist congratulating the minister again for following this practice. I trust that some of his colleagues will follow his example in the near future, and we shall await with interest the minister's influence on some other

members of the cabinet with respect to the practice in the following of which he has set such an excellent example.


Walter Gilbert Dinsdale: Perhaps I might be permitted to make a supplementary statement respecting one point raised by the member for Ottawa West. I am happy to assure him that the Canadian participation features of the Canada gas and oil regulations have proved to be in the best interests of Canada, and on the basis of experience they stand in their original form.


Mr. Speaker:: What document is it that the minister suggests be printed in Votes and Proceedings, both statements or just the first one?


Walter Gilbert Dinsdale: It is a supplementary statement providing greater technical detail for those who have a special interest in the subject.


Mr. Speaker:: I take it that it is not too
extensive. Is it the pleasure of the house that the supplementary statement referred to by the minister be printed in Votes and Proceedings'!


Some hon. Members:: Agreed.

On the orders of the day:


Mr. Arihur Smith (Calgary South):: Mr. Speaker, I wonder whether I might ask the Minister of Northern Affairs and National Resources whether he has had any indication that any company or companies are interested m proceeding in the immediate future with drilling in the Arctic islands.
I should like to ask the minister another question. I wrote down very quickly his statement to the effect that if a permittee fails to live up to his exploration or drilling obligations he will forfeit his permit. I should like to ask the minister whether any thought has been given to granting himself discretionary power in this matter in the event that there are extenuating circumstances, the difficulty of access to the north and so on, and whether perhaps some provision should be made for extending the permit under certain conditions.


Walter Gilbert Dinsdale: Mr. Speaker, in reply to the first question I would say there is indication that there will be active drilling in the Canadian archipelago during the current year. I shall take the second question under consideration.



QUOTAS ON EXPORTS TO CANADA


[Stage Direction]
On the orders of the day:
Hon. L. B. Pearson (Leader of the Opposition):: Mr. Speaker, I should like to ask the Minister of Finance a question based on a reported statement by the ambassador of Japan, to the effect that Japan is becoming resentful over the need to fix quotas on its exports to Canada and that it was forced to accept curbs on exports under the threat that otherwise Canada would resort to such measures as the arbitrary fixation of value for customs purposes. Has the minister any comment to make on this statement?


Hon. Donald M. Fleming (Minister of Finance):: Mr. Speaker, I saw the report in this morning's press of the statements attributed to the Japanese ambassador in a speech made, I believe, in Regina yesterday. Some of these statements are, to say the least, somewhat surprising. The export restraints which the Japanese government is applying on certain exports to Canada in the year 1961 were set forth in a letter written to me by the Japanese ambassador and tabled by me in the house some weeks ago.
These restraints were accepted by the Japanese government, and the kind of statement attributed to the Japanese ambassador in the morning's press it seems to me, is not in harmony or in tone with the letter written to me in setting forth those restraints which the Japanese government is voluntarily applying in 1961 on these designated commodities. These decisions of the Japanese government, as the letter itself indicated, were arrived at by decision of the Japanese government and I think that is perfectly clear.
The whole problem here, as all hon. members are aware, is the degree of concentration of Japanese exports in certain commodities. The Canadian government at all times has indicated its belief that trade between these two countries must be on a two way basis. We look forward to the expansion of trade between the two countries, but not on the basis of continued concentration of Japanese exports in certain selected commodities. That is the position we have taken consistently. We welcome the expansion of trade between the two countries, but not when it takes the form of this concentration to the point where the conditions of competition which Canadian producers are called upon to meet are, in the view of most Canadians, not fair.
Inquiries of the Ministry


Louis-Joseph-Lucien Cardin: wish to ask a supplementary question, Mr. Speaker. Has the minister's attention been drawn to a report in the London Times of June 1 to the effect that several textile trade associations in Hong Kong have refused to attend a meeting called by the government of Hong Kong for the negotiation of voluntary export quotas until similar proposals from Canada have been considered? Would the minister advise the house exactly what proposals Canada has made to Hong Kong on the establishment of voluntary export quotas?


Donald Methuen Fleming: I have not seen the article in the London Times to which the hon. member refers. I have acquainted the house very fully, in my several reports over the past month or so, with the kind of proposals that were submitted to the Hong Kong authorities by the Canadian team that went to Hong Kong to discuss the question of their exports.



ALBERTA


[Stage Direction]
On the orders of the day:
Mr. H. M. Horner (Jasper-Edson):: Mr. Speaker, I should like to direct a question to the Minister of National Defence. The hon. member for Peace River and myself are very concerned about the serious forest fire situation in northwest Alberta. I should like to ask the minister whether he has received any request from the province of Alberta for assistance from the armed forces to help in fighting the serious forest fires in the Edson and Grande Prairie areas of Alberta.


Hon. D. S. Harkness (Minister of National Defence):: Mr. Speaker, no request has been received from the province of Alberta for assistance in fighting these forest fires. Should such assistance be required, the procedure for obtaining it is simple. The premier or provincial authority authorized by him requests assistance from the G.O.C. western command or the commander, Alberta area. These officers have authority to comply with the request as far as their resources enable them to meet it.



BUSINESS OF THE HOUSE


[Stage Direction]
On the orders of the day:
Paul Joseph James Martin: Mr. Speaker, may I ask the Minister of Labour a question. In view of the fact that the Prime Minister seems to be anxious to have an adjournment of this house at the end of June, can

Inquiries of the Ministry the Minister of Labour say whether in that event amendments to the Unemployment Insurance Act will be introduced before the end of June, or will we have to wait until the end of August or some time in the fall?


Hon. Michael Starr (Minister of Labour):: No, Mr. Speaker.


Mr. Pickersgill:: No what?


Mr. Chevrier:: No adjournment?


Paul Joseph James Martin: Mr. Speaker, in view of the reply "no", does that mean there will not be any amendments to the Unemployment Insurance Act introduced?


Michael Starr: Not necessarily.


Paul Joseph James Martin: I take it the answer is they may not be brought in.



HOUSING


[Stage Direction]
On the orders of the day:
Mr. M. W. Martin (Timmins):: Mr. Speaker, I should like to direct a question to the Minister of Public Works in view of a report in he Devoir of June 5 to the effect that C.M.H.C. placed an advertisement for city planners in the Paris newspaper Figaro on May 18. Since this advertisement was entirely in English, would the minister care to inform the house whether C.M.H.C. was hoping to obtain only English speaking city planners in Paris?


Hon. D. J. Walker (Minister of Public Works):: Mr. Speaker, what we did want to obtain was a city planner who would be bilingual.



N.H.A.-REFERENCE TO SPEECH BY MINISTER OF PUBLIC WORKS

[Stage Direction]
On the orders of the day:
Mr. J. R. Garland (Nipissing):: Mr. Speaker, I should like to direct a question to the Minister of Public Works based on a report in the Halifax Chronicle-Herald of June 3. The article reads:
Public works minister David J. Walker "missed the main point" of "repeatedly stated" municipal requests when he spoke Thursday to the national convention of the Canadian federation of mayors and municipalities. Mayor A. T. Alsbury of Vancouver said yesterday.
In view of this statement by the mayor I wonder whether the minister would consider tabling a copy of the text of his speech on that occasion.


David James Walker: Mr. Speaker, I wish to thank the hon. member for Nipissing. I was just hoping that

somebody would ask me to table it, and I would be delighted to do so. I have it here already. I must say I have a great debt of gratitude to express to the 700 municipal mayors and reeves at that convention. I have never had a better reception. Of course I complimented them on the magnificent work they are doing, and suggested there was a great field still waiting for them to take advantage of, with all the tremendous opportunities under the National Housing Act. I thank the hon. member.


An hon. Member:: Is the minister going to table his congratulations?


David James Walker: Yes, I can table them as well.



NATIONAL DEFENCE


[Stage Direction]
On the orders of the day:
Hon. Paul Hellyer (Triniiy):: Mr. Speaker, I should like to address a question to the Minister of National Defence. Will the minister undertake an inquiry into the allegation of Mr. John B. Witehell at a meeting in Toronto last night to the effect that the Department of National Defence is infiltrated with subversives?


Douglas Scott Harkness: Mr. Speaker, I think this is a statement which does not display any degree of responsibility on the part of this exemployee of the defence research board who is no longer with the department, for good and sufficient reason.


Paul Theodore Hellyer: A supplementary question, Mr. Speaker. Will the minister assure' the house that he has satisfied himself fully that there is no authenticity whatsoever in the allegation.


Douglas Scott Harkness: The security precautions in the Department of National Defence, as I think the hon. member well knows-


Mr. Ricard:: No, he does not know.


Douglas Scott Harkness: -are pretty good. I think any allegations along this line cannot be taken seriously.



PETAWAWA


[Stage Direction]
On the orders of the day:
Paul Theodore Hellyer: Mr. Speaker, I should like to direct a question to the Minister of National Defence. Will the minister table the report of the inquiry into the establishment and operation of the Camp Petawawa yacht club?


Douglas Scott Harkness: Mr. Speaker, I have had a report on this for some time, which I will be very glad to read to the house if it is the desire that this should be done.


Paul Theodore Hellyer: Just table it.


Douglas Scott Harkness: I am quite prepared to table it-


George James McIlraith: That was the request.


Douglas Scott Harkness: -or read it, if that is what is desired.


Mr. Speaker:: May I ask the minister how many pages there are in the report.


Douglas Scott Harkness: About a page and three quarters, Mr. Speaker.


An hon. Member:: That is too much.


Mr. Speaker:: Is the house agreeable that it be read?


Some hon. Members:: No.


Mr. Speaker:: I hear some dissenting voices. Perhaps the more advantageous course would be to table the report.
(Translation):



THE CENSUS


[Stage Direction]
On the orders of the day:
Hon. George H. Hees (Minister of Trade and Commerce):: Last Friday the hon. member for St. Henry asked me if I would not find it appropriate to give instructions immediately so that all census enumerators have English and French forms when they call at our homes.
In reply, I should like to say that several forms used by the enumerators are bilingual. As for the other forms, the enumerator receives forms in the language he speaks. However, every briefcase contains forms in the other language and the enumerator must use them when necessary. If his supply becomes exhausted, he is supposed to ask his commissioner to give him some more. We have clearly indicated to the commissioners that enumerators are to have forms in both languages at all times.
(Text):



HEALTH AND WELFARE


[Stage Direction]
On the orders of the day:
Paul Joseph James Martin: Mr. Speaker, may I ask the Prime Minister a question in respect of the announcement he made last December of the setting up of a royal commission to inquire into the problem of medical care insurance, particularly. In view of the
Inquiries of the Ministry replies the Prime Minister has given me several times, the last being as late as a week ago, can he say whether he is now in a position to announce the remaining members of that commission, particularly in view of the recent request by the medical association?


Right Hon. J. G. Diefenbaker (Prime Minister):: This matter has received very full consideration. We wanted to choose as the chairman someone with experience. We did that in the person of Chief Justice Hall, now the chief justice of Saskatchewan. In view of the fact that his appointment to the court of appeal, then anticipated, would require his presence in Saskatchewan, we delayed proceeding with the appointment of the other members. Now that his work is reasonably up to date so that he will be free, having everything in proper order so far as outstanding judgments are concerned, the appointments should be made at once.
I am most anxious to have these appointments made because there is in the province of Saskatchewan, as the hon. gentleman knows, a commission under the chairmanship of the former president of the University of Saskatchewan, Dr. Thompson. My understanding, at least from what I read in the press, is that the premier of Saskatchewan, Mr. Douglas, is very desirous of having a report from his commission considerably in advance of the report we shall expect of our commission. His purpose would be as soon as possible following that report to introduce a measure applicable to Saskatchewan as a jumping-off place in the competition which is shortly to take place between the hon. member for Assiniboia and himself.


Paul Joseph James Martin: Of course I have no comment to make on the last part of the right hon. gentleman's answer, but does the Prime Minister not think in the light of this experience, having announced the appointment of the commission over six months ago, it would have been better to select as chairman of the commission, notwithstanding the good qualities of the gentleman he has suggested, someone whose time would have permitted immediate attention to the assignment at hand?


John George Diefenbaker: I know of no one in
Canada more qualified for this task than Chief Justice Hall. His experience in connection with the Catholic hospital association and hospitals generally is such that we wanted to have him as chairman. I know that after he takes over, a report will be made even earlier than the hon. gentleman now hopes.
5926	HOUSE OF
Criminal Code
(Translation):



PRIVILEGE


[Stage Direction]
On the orders of the day:
Mr. Alexis Caron (Hull):: Mr. Speaker, I rise on a question of privilege. In an article published yesterday in the Montreal newspaper La Presse, signed by Mr. Alfred Ayotte, about practical bilingualism, are mentioned in addition to the Secretary of State (Mr. Dorion), L. J. Pigeon, Liberal M.P. and Alexis Caron, Conservative M.P. I can easily understand that the hon. member for Joliette-L'Assomption-Montcalm may be flattered, but as far as I am concerned, I strenuously object to the epithet conservative being associated with my name.


Mr. Pigeon:: Mr. Speaker, I protest strenuously, even more so than the hon. member for Hull.
(Text):


Mr. Speaker:: It may be a question of privilege in ordinary parlance. It certainly does not affect the privileges of the house.



NATIONAL AFFAIRS


[Stage Direction]
On the orders of the day:
Mr. D. M. Fisher (Pori Arthur):: I wonder whether the Minister of National Defence would bring us up to date on the case of Dr. Chaput.


Douglas Scott Harkness: The case of Dr. Chaput is under consideration at the present time.



CRIMINAL CODE


Hon. E. D. Fulton (Minister of Justice) moved: the third reading of Bill No. C-92, to amend the Criminal Code (capital murder). (Translation):


Mr. J. P. Deschatelets (Maisonneuve-Rose-moni):: Mr. Speaker, I have no intention of speaking at length at this stage, but after the bill has been considered by the committee of the whole, I should like to make a few brief remarks.
This bill does not amend the definition of murder as found in sections 201 and 202 of the Criminal Code, but it divides it into two classes, capital and non-capital, according as the crime is planned and deliberate or not.
On second reading, I suggested that this definition, along with other provisions of this bill, constitutes in practice, if not in principle, 

an almost complete suppression of capital punishment. Besides, the remarks made by the Prime Minister (Mr. Diefenbaker) on May 29 last, leave no doubt on that score. In fact, I shall now quote a few lines from the speech of the Prime Minister, as reported on page 5527 of Hansard. This is what he said then:
(Text):
I feel that responsibility for carrying out the law and maintaining the safety of the public in each area depends on the jury. Having heard the evidence and having come to the conclusion on the basis of the law as explained to them by the judge that a verdict of guilty is the only one they can bring in, a jury ought none the less to have the right to add a recommendation to mercy, and having done that, to hope that the royal prerogative will be reasonably carried out.
The Prime Minister went on to say further, and I quote from page 5528 of Hansard of May 29:
Responsibility now rests squarely upon the jury to determine in its area and on the particular facts of each case what is just and fair, what constitutes the proper course to be followed in the opinion of those who have heard all the evidence and live in the community in which they are desirous of maintaining justice and equity as between the crown and the subject.
These remarks and, indeed, the whole speech made by the Prime Minister leave no room for any other interpretation. I wish also to quote from an article which appeared in the Globe and Mail of May 30, 1961, the first paragraph of which states:
Prime Minister John Diefenbaker indicated clearly today that recommendations for mercy by juries on behalf of murderers sentenced to death will almost always be accepted by the government.
(Translation):
Mr. Speaker, I also want to read into the record the first paragraph of an article which appeared in the L'Action Catholique of Tuesday, May 30, under the following title:
The cabinet and the recommendations by the jury.
And I quote:
Prime Minister Diefenbaker stated yesterday that the federal cabinet would have to accept recommendations for clemency by the juries in murder cases.
Moreover, said the head of the government, the Minister of Justice and the Solicitor General should be the only two people deciding whether a sentence should be commuted, and not the cabinet as a whole.
Mr. Speaker, when the matter was discussed in the committee of the whole, all hon. members tried, I think, to make this bill as practical and efficient as possible, while taking into consideration the upsurge in the incidence of crime in this country, and throughout North America.
I should point out that, following our studies and discussions on clause 1 and the resulting suggestions, significant amendments were

submitted, several of which were accepted by the government, at the request of members of the official opposition, among whom the hon. member for Niagara Falls (Miss LaMarsh).
While discussing clause 2 we moved various amendments which the government thought it could not accept. Yet the fact of those amendments having been submitted indicates that the bill should be reconsidered so as to meet public opinion with regard to the death penalty.
Moreover, during the discussion of clause 13, we tried to convey to the government that this clause, in particular, was entirely devoid of practical sense.
We moved an amendment which was rejected. And I very respectfully submit that this clause introduces an innovation in our statutes. Hon. members are very much concerned with regard to that clause being passed. I, for my part, cannot accept it, because I think it absolutely impracticable; it will indeed put the jurors in an extremely awkward position and the judges in an impossible one.
I repeat what I said yesterday: when it is proved that a capital crime was committed, when the jury assumes its responsibilities in recognizing the accused guilty of the crime and at the same time decides to make a. recommendation for mercy, the judge is placed in the ridiculous position of having to sentence the accused to death, whereas we know very well that, in most cases, the cabinet has the moral obligation of carrying out the jury's recommendation for clemency.
I therefore think that this clause should be reconsidered because it is lacking in realism and we have not every day the opportunity of discussing such a significant bill. Moreover, the minister knows, and the government should realize, that we are introducing new legislation in regard to such an exceptional and important issue as the death penalty.
Let us therefore make sure that any amendments we pass with regard to our statutes are of a practical nature.
Mr. Speaker, the bill has certainly been improved following discussion in the committee of the whole, but it has not yet been tested by experts in criminal law and I would remind the Minister of Justice that when, in the United Kingdom, it was thought proper to amend the law with regard to the death penalty, it was done with the greatest of care. Amendments were introduced only after thorough and searching studies had been completed by experts.
As the minister is aware, the Gower commission was established in 1949, its final re-
Criminal Code
port was submitted in 1953 and it is only in 1957, after further studies, that the 1957 homicide act was passed by parliament in London.
In this country, the government has introduced this bill which, as I have already said, is not based on conclusions arrived at by a committee of experts. I do not question the knowledge of the Minister of Justice and his advisers in this matter, but, with all due respect, I must say that these advisers seem to be lacking that direct court experience which would enable them to express an opinion on the major clauses which represent a new law and to tell us whether these clauses would have any practical value before a court under existing procedures.
Mr. Speaker, for these reasons, I submit that the bill should be given further consideration and, supported by the hon. member for Megantic-
(Text):
I move, seconded by the hon. member for Megantic (Mr. Roberge):
That Bill No. C-92 be not now read a third time, but that it be referred to a special committee for the purpose of further study and examination and that such selected committee shall have the power to send for persons, papers, and things.
(Translation):


Mr. Gabriel Roberge (Megantic):: Mr. Speaker, I am pleased to support the amendment just put forward by my hon. friend from Maisonneuve-Rosemont (Mr. Deschate-lets) on third reading of this bill.
I should like to make a few general remarks to explain why I support the amendment.
On second reading, according to Hansard, at least 30 hon. members spoke in the debate, including the Minister of Justice (Mr. Fulton), thus enabling us all to benefit from their experience.
When the bill was considered by the committee of the whole, many hon. members commented on practically every single clause. Even the Prime Minister (Mr. Diefenbaker) deemed it fitting, following the speech of the leader of the official apposition (Mr. Pearson) to refer to his own experience.
Personally, on section 1, I twice urged the minister and the government to allow the bill to be referred to a special committee, which could hear experts on criminal law, people who have practised in criminal courts.
I now paraphrase what I had to say at the time: We are here as a group of legislators, and I think we should use every means provided by parliamentary procedure to gain more information on this proposal.

Division
When the bill was considered in committee, a number of amendments were put forward, even by members on the government side. I refer particularly to the member for Chambly-Rouville (Mr. Johnson) who suggested an amendment to section 2.
The amendments to section 1, both in the English and French versions, were accepted by the government.
At least two amendments were put forward concerning clause 2 and another one concerning clause 13.
I feel, Mr. Speaker, that the proposed amendments indicate that there is still some doubt in the minds of hon. members and it would be advisable, I think, that this bill in its present form be referred to a special committee of this house.
One of the main objections of the minister against referring this bill to a committee of this house is that such procedure would delay the adoption of the bill. It is true that such procedure would cause some delay.
However, I do not believe that any prejudice would result for those who are to be judged under the present Criminal Code.
Indeed, the experience of these last three years indicates that the government or the governor general in council, exercising the royal prerogative has commuted, I think, some 40 death penalties to life imprisonment.
If while the bill is being studied by a special committee any case arose under the Criminal Code, nothing would prevent the governor general in council from exercising the royal prerogative once again.
For all those reasons, Mr. Speaker, I support the motion put forward by the hon. member for Maisonneuve-Rosemont.
(Text):


Mr. Speaker:: I declare the amendment lost. The question is on the main motion. (Translation):


Alexis Pierre Caron: Mr. Speaker, even though the bill was considerably improved due to the suggestions of the hon. member for Niagara Falls (Miss LaMarsh) which were accepted by the minister, I feel that it could certainly stand further improvement so as to be acceptable to those who are against the abolition or reduction of punishment in capital cases. And I am entirely opposed to the abolition of capital punishment. As I said on second reading, where the issue was the principle of the bill, I feel that clause 13 which puts the jury in an extremely difficult situation is a clause which in my opinion tends to cover the minister who seems inclined to abolish capital punishment indirectly.
I suggest that it would be very difficult under such a procedure to find a jury who, faced by the accused, the defence counsel, a family in tears, would be ready to answer: "No", when the judge would put the question:	"Are you prepared to recommend
mercy?" Moreover, as the Prime Minister said, we know that it would be necessary and practically justifiable for the cabinet to take into account the recommendation for mercy when taking a decision.
Consequently, this is an indirect and practically inevitable way of abolishing capital punishment. Now, I feel we should maintain capital punishment. In my opinion, if the cabinet wanted to abolish it, they should have had the courage of saying plainly: "We want capital punishment to be abolished." Then, at least, we would have known what was the cabinet's position on that question. Under this bill which may otherwise contain very good sections, people who do not have the proper legal training to pass on this matter, will be forced to give the government an indirect means of abolishing capital punishment. If the minister had really wanted to be of service, if he had really wanted to improve his bill, he could have accepted the suggestion which was made to him, namely to compel the judge to say to the jury before they file out to deliberate: "You have the right to recommend or not to recommend mercy for the accused." But that would not have been said in front of the people who usually attend a murder trial, those people who are curious to see how the trial will turn out. The jury would thus have been able to deliberate freely in its private quarters without being influenced by the people around them; we would then have been able to say that the jury's recommendation was based on facts, on a thorough examination, that it has not been brought about
Division
by the embarrassment caused to them by the judge asking that question in the presence of the audience.
Because of that and because of the fact that, in my opinion, too much consideration is being shown to a handful of criminals at the expense of the vast number of honest people whom we must protect, I will vote against the bill.
(Text):


Edmund Davie Fulton: Mr. Speaker-


Mr. Deputy Speaker:: I am afraid I must inform the minister that he is considered as having spoken, having moved the third reading. Is the house ready for the question?


Some hon. Members:: Question.


Mr. Deputy Speaker:: The question is the following:
Mr. Fulton, seconded by Mr. Churchill, moves that Bill No. C-92, an act to amend the Criminal Code (capital murder), be now read a third time and do pass.
Is it the pleasure of the house to adopt the motion?


Some hon. Members:: Carried.


Some hon. Members:: On division.


Mr. Deputy Speaker:: Adopted on division.


Edmund Davie Fulton: Mr. Speaker, will you please ask for the yeas and nays.


Mr. Deputy Speaker:: All those in favour of the motion will please say yea.


Some hon. Members:: Yea.


Mr. Deputy Speaker:: All those opposed to the motion will please say nay.


Some hon. Members:: Nay.


Mr. Deputy Speaker:: In my opinion the yeas have it.
And more than five members having risen: Mr. Deputy Speaker: Call in the members.



COMBINES INVESTIGATION ACT AND CRIMINAL CODE


[Stage Direction]
The house resumed, from Monday, June 5, consideration of the motion of Mr. Fulton for the second reading of Bill No. C-97, to amend the Combines Investigation Act and the Criminal Code.
Mr. Speaker:: Is it the pleasure of the house to adopt the motion?


[Stage Direction]
Motion agreed to, bill read the second time and the house went into committee thereon, Mr. Chown in the chair.
On clause 1-Application of acts to fishing agreements.
Mr. Howard:: Mr. Chairman, I should like to ask the minister whether he can inform the committee as to the present state of legal proceedings in this regard, and in which courts they are being dealt with.


Edmund Davie Fulton: Mr. Chairman, I regret that I do not have the precise information with me in sufficient detail to enable me to inform the committee as to the status of the injunction applications. I could get that information during the lunch hour and provide it for the hon. member if he wishes.


Charles Benjamin Howard: Mr. Chairman, perhaps that would be agreeable, and in the event that no other hon. member wishes to speak at this time we could call it one o'clock.


The Acting Chairman (Mr. Chown):: Is it
the committee's wish to call it one o'clock?


Some hon. Members:: 
[Stage Direction]
AFTER RECESS

The committee resumed at 2.30 p.m.
Jacques Flynn: Is it agreed that I rise, report progress and ask leave to sit again later this day, or at the next sitting, as the case may be?


Some hon. Members:: Agreed.
Progress reported.



THE LATE WILLIAM ANDERSON


John George Diefenbaker: Mr. Speaker, once again while the house has been in session one of our members has passed away. This morning he

was about ready to attend the session when he became suddenly ill. He was taken to hospital, where he passed away.
I refer, of course, to William Anderson, a deeply beloved member of this house. He served in the city council of Galt for a period of 12 years before becoming mayor, a position which he occupied for three years. I do not know anyone of whom it could be said in a truer sense than our late friend, that amid all the vicissitudes and thrusts of parliament he enjoyed to a great extent the affection of members in all parts of the house.
Many there are who know of the work he did in helping others. I think of his work in connection with the Red Cross, the contributions as blood donor that he made to that institution, unostentatiously and as silently as he did many other kind deeds. In other fields of endeavour, too, it can be said of him that he loved to serve others. He was on three committees of the house, research, estimates and miscellaneous private bills. He gave devotedly of his best to the service of his constituents, his province and his country. To his widow, his daughter Jean Elizabeth and his son Donald William I express a deep sense of personal sorrow at his passing.
After hon. gentlemen opposite have paid their tributes I intend to suggest, if the house is agreeable, that we adjourn this afternoon until 7.30 this evening. By our adjournment we will reveal in a tangible way something of the feelings that are ours and at the same time we do that which he would have expected us to do, namely carry on our responsibilities.
Again, sir, through you, I extend the sympathy not only of ladies and gentlemen on this side of the house but I know of all sections of this chamber.


Lionel Chevrier: Mr. Speaker, in the passing of Mr. William Anderson the House of Commons mourns yet another of its members who had contributed in more ways than one to the public life of his country. He was the mayor of his city, the representative of a constituency that was highly industrialized, which he represented in this house not only with competence but certainly with faithfulness and loyalty to his constituents.
It is not always easy, sir, to represent a constituency such as that which the hon. member served so faithfully and well from the time he was elected. We on this side of the house feel particularly for the Prime Minister and the members of his party on this occasion. We have been told that not only did this member work hard but that he had driven the whole of last evening and into the night on his way back to perform his duties in the house. There is no doubt that this,
The Late W. Anderson along with the other many duties that he performed in the house and elsewhere, took a toll on his physical capacities. There is also the fact that here goes another young man, because relatively speaking he was still a man of youthful age and one who would unquestionably have performed many more tasks for his country.
We join with you, sir, in expressing to your party our deep condolences. To his bereaved widow and his two children go our profound sympathy.


Herbert Wilfred Herridge: Mr. Speaker, members of this group join with the Prime Minister, the hon. member for Laurier and all members of the house in expressing our sincere sympathy for this sad and unexpected event. I must say on this sad and in this case quite unexpected occasion words are completely inadequate to express the deep feelings of us all. All in this group extend to his widow and children our most sincere sympathy and trust, Mr. Speaker, that they will find some comfort in the knowledge that he will be long remembered by many people as a colleague, as a friend, as a neighbour and as one given to good works for others and his community.


Donald Methuen Fleming: Perhaps in this sad moment I might be permitted to say a word. I suppose I knew the late William Anderson perhaps longer than any member of the house. We were natives of the city of Galt. He had been a student of my father at the Galt Collegiate Institute years ago, and there was a very warm bond of friendship between his family and mine and between him and me personally.
I think we are all numbed by the shock of this sad news that has come to us. The hand of death has been laid upon him with great suddenness and with no warning.
On an occasion of this kind, Mr. Speaker, I know it is superfluous to attempt to convey those deepest feelings that such an experience stirs; but I think it can be said of William Anderson that he had won the wholesome regard and complete respect of all members of the house, just as in his own community he enjoyed the widest measure of respect and regard. He had won these rewards by his own native qualities. He was a completely unselfish man. He was unassuming. He had a great desire to be of service to others. This characterized not only the service that he rendered in the municipal sphere and in parliament but all his contacts with other people. There are many people who will be able to testify to a host of personal kindnesses rendered to them and to others within their knowledge by the late William Anderson, a
5932	HOUSE OF
The Late W. Anderson kindly man to the roots of his being. We mourn the passing of one of God's gentlemen.


Mr. A. D. Hales (Wellington South):: Mr. Speaker, perhaps I might be permitted to take a few minutes to say a few words about the late Bill Anderson, whom it was my pleasure to know most intimately for some years. Our ridings adjoin one another. During our last session we roomed together, and I got to know Bill possibly better than others may have. I always found him a most beloved and respected friend, and I am sure I speak for all those in the house when I say just that.
Bill was very well known in his area of Galt and Waterloo South. He rendered great service to that community. He was most interested in the work with retarded children, so much so that the first school in Canada for retarded children was built in Galt. That school bears the name, "The William Anderson School for Retarded Children", and it will be there for years to come as a tribute to the memory of this great and noble public servant.
I should like at this time to express my feelings of sorrow to his wife Jean, his daughter Betty and his son Don, and I can do no better than to use the words of the author who once said, "The light he leaves behind shines upon the path of men".


Mr. Lawrence E. Kindt (Macleod):: Mr. Speaker, I should like to place on the record some remarks made by our beloved friend, William Anderson, in the restaurant only this morning. He left his home at eleven o'clock last night and arrived in Ottawa at five o'clock this morning, and in the restaurant he said he had driven all night in order that he might be here for the opening of today's session. He mentioned that he had only missed four of the 58 votes that have been taken in the house, and I am sure we shall all say that this is an amazing record of faithful service.
I knew Bill Anderson well because he occupied the room in this building next to mine and our relationships were always excellent. He often came into my room to tell a story, and his stories were always appropriate and fitted the point he was trying to make. The devotion to duty and hard work of Bill Anderson for the constituency he represented are undoubtedly responsible for his passing today. Bill Anderson died because he used a drug, and the drug he used was hard work. To his widow and his children whom he has left behind go my deepest and most sincere sympathy.


Mr. G. H. Aiken (Parry Sound-Muskoka):: Mr. Speaker, every member of the house has reason to feel a deep personal loss in the


passing of the hon. member for Waterloo South. As his seatmate during the twenty-third parliament and during the first three sessions of the current parliament, I feel I must add my words to those that have already been spoken. I know that every member of the house without exception will long remember Bill Anderson.


John George Diefenbaker: Mr. Speaker, shall we now rise until 7.30 this evening?


Mr. Speaker:: Is it agreed that the house shall stand recessed in tribute to the late William Anderson until 7.30 this evening?


Some hon. Members:: Agreed.
At 2.50 p.m. the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at 7.30 p.m.


[Stage Direction]
The house resumed consideration in committee of Bill No. C-97, to amend an act to amend the Combines Investigation Act and Criminal Code.
On clause 1-Application of acts to fishing agreements.
Edmund Davie Fulton: I think I should put on the record the answer to the question asked by the hon. member for Skeena. There were five actions for injunction dismissed in British Columbia, and it is expected that the companies will appeal. There is one interim injunction outstanding prohibiting a public hearing, and we hope to have this disposed of before the end of June. In Ontario, a permanent injunction was granted by Mr. Justice Parker on May 30, 1961, against the chairman and director prohibiting disclosure of transcripts and documents to the union.


[Stage Direction]
Clause agreed to.
Title agreed to.
Bill reported.
Mr. Speaker:: When shall the said bill be read a third time, now?


Mr. Fulion:: By leave of the house?


Paul Joseph James Martin: Next sitting.



JUDGES ACT AND EXCHEQUER COURT ACT


Edmund Davie Fulton: that the house go into committee to consider the following resolution:
That it is expedient to introduce a measure to amend the Judges Act and the Exchequer Court Act, to provide one additional puisne judge of the Exchequer Court of Canada and to provide salaries for such additional judge of the exchequer court, for two additional puisne judges of the Superior Court of Quebec, for one additional judge of the Court of Appeal for British Columbia, for two additional Ontario county court judges and for one additional Alberta district court judge.
Motion agreed to and the house went into committee, Mr. Flynn in the chair.


Edmund Davie Fulton: I think this resolution is selfexplanatory. There is a need for the judges for whom we are asking the committee to provide the salaries in the provinces which are affected, namely, British Columbia, Alberta, Ontario and Quebec, as well as for the Exchequer Court of Canada.
(Translation):


Mr. Meunier:: Mr. Chairman, this resolution provides for the appointment of one judge to the Exchequer Court of Canada, of one judge to the court of appeal for British Columbia, of two county court judges for Ontario, of one district court judge for Alberta and of two puisne judges to the superior court of Quebec.
I should like to deal only with the appointment the minister intends to make to the superior court of Quebec. Last year, the minister introduced legislation in the house to amend the Judges Act. At that time, the province of Quebec requested six judges. However, the minister saw fit then to appoint only four, one for the district of Three Rivers, and three for the district of Montreal. In addition, when he was asked why he was not appointing six judges immediately, he stated then, as reported in Hansard for June, 21, 1960, that under an agreement with the Quebec administration of the day, he had been told, and I quote:
-they have agreed that the provision of three extra judges at this time, as soon as we can do it, will be a real contribution toward meeting that need. Therefore, there is no quarrel between us on this point.
Later on, while the bill was given first reading, the minister said that, although he was no expert, he felt he had grounds for appointing only three judges for
Judges Act
the time being. He added that the matter had been discussed with the former government and that three judges were sufficient at the moment.
It is a fact, however, that the Montreal district has a tremendous backlog of cases, and that the appointment of additional judges would permit disposing of them. The minister added that a committee would be set up to revise the code of civil procedure and that any resulting amendments would facilitate the introduction of cases and consequently would speed up the hearing of trials. He admitted he was no expert in those fields, Nevertheless, he pointed out how complicated the code of procedure was, that no change had been made since 1867 and that certain motions took all the judges' time. I disagree with him on this point because I know that there is never more than one judge per week to preside over those incidental procedure hearings.
He mentioned among other reasons that there was no accommodation for the judges, no rooms for hearings and no offices where the judges could do their work.
What I am trying to tell the minister is that the situation in Montreal has not improved. If anything, the situation has worsened, since space is even scarcer. After all you cannot expect a judge to hold hearings in a hallway. A judge cannot hold court or render judgment in a corridor. There is no accommodation at present in the court house. Will some be provided? I don't know. What I do know is that in provincial courts the number of judges has been increased, but no accommodation has been provided for them. Consequently, there is little room to accommodate other judges.
Here is, then, the question I should like to ask the minister: since the provinces themselves look after the administration of justice, has the minister come to any agreement with Quebec government authorities to appoint those two judges, in order that accommodation and court rooms be provided for them?
That is the only remark I had to make to the minister about what he said last year to explain why he had not, at that time, appointed the two judges he was asked to appoint.
(Text):


Gordon Harvey Aiken: Mr. Chairman, I should like to make just a few comments on this resolution with particular reference to the exchequer court. Just recently I had drawn very forcibly to my attention the situation with regard to the shortage of judges in the exchequer court. Obviously I am very much in favour of this resolution which would add a judge to that court and give them at least a chance

Judges Act
to catch up on the large backlog of work which has accumulated.
The situation which was drawn to my attention related to a very unfortunate case in which the plaintiff was severely injured in an accident. I am not going to go into the facts except to say that the parties have been waiting for about 14 months now, in very difficult circumstances, for a decision from the exchequer court. This has caused a great deal of hardship, because regardless of which way the decision goes the parties could have prepared themselves or done something toward remedying the situation. This long wait is another example of the old maxim of "justice delayed is justice denied" and I certainly approve of the resolution.
While making inquiries about this matter I was also advised that the exchequer court now makes a practice of reserving judgment in all cases and then delivering a written judgment. I am not sure whether this is a practice or a policy, but it seems to have grown up and appears to be causing a great backlog in the amount of work that is accumulating in the exchequer court. I am hopeful that the appointment of an additional judge will strengthen the court and will mean they will be able to deal more more expeditiously with the work that comes before them.


Mr. Cresfohl:: Mr. Chairman, as a practising lawyer I would most certainly support a resolution to increase the number of judges of any court, but I should like to address myself for a moment to the appointment of judges in the district of Montreal in the province of Quebec.
As the minister no doubt knows, our roll in the district of Montreal is running very far behind schedule. I think after a case is finally inscribed for trial one can anticipate a wait of from 12 to 18 months, and one is fortunate if it is reached and comes to trial within an 18 months period. This is the situation despite the fact that the chief justice of the district of Montreal is doing a Herculean job in trying to expedite the work before the courts.
I wonder, also, whether the minister has given any consideration to the level of remuneration for the judges of these courts. We do not hear complaints from judges directly, but I think the men at the bar feel the judges of the superior court of Montreal, and indeed other courts, are not being sufficiently remunerated by the stipend they are receiving. Out of this stipend judges are called upon to

pay the regular income tax and the other expenditures which are involved in maintaining their station in life and their method of living in order to maintain the dignity of their office.
I think this is a matter which should receive the minister's attention. I do not doubt that this question does receive the attention of the minister, but we would like to ask the minister to give further consideration to augmenting the stipends of the judges of the province of Quebec. We genuinely feel, when we consider what some practising lawyers earn-


Jacques Flynn: Order. I must indicate to the hon. member that I had no objection when he mentioned in passing the problem of the salaries of judges. However, this resolution has nothing to do with that matter, and we might become involved in quite a long debate if the hon. member were to go into too many details on that subject.


Leon David Crestohl: Certainly, Mr. Chairman, I was only making reference to this question in passing because we are talking about appointing judges-that is what we are really discussing-and therefore we want competent men. I think the question of stipends certainly plays an indirect role in this question.
I was interested in the remarks of the hon. member for Papineau when he mentioned the problem of space for our courts. I think the minister is familiar with the fact that there is very active agitation for the erection of a new superior court building in the district of Montreal. Perhaps the chairman will say I am out of order on this point, but I do not think I am out of order because we do want places in which these judges can sit after their appointment in accordance with the recommendation of the minister in this resolution.
Unless we have the space and courts in the province of Quebec in which they can sit, hear their cases and administer justice, there is no point in appointing them. As the hon. member for Papineau said, they cannot sit in the corridors. However, we are so pitifully crowded in the superior court in the district of Montreal that if I were the minister I would hesitate to recommend the appointment of new judges until I had first solved the problem of where they were to sit. Unless some auxiliary premises are found, this problem will certainly not be solved.
I just wanted to draw these matters to the minister's attention. I know he is very alert to all these situations. Perhaps the minister could say a word about the question of stipends and the places in which the judges can sit and hear their cases.


Herbert Wilfred Herridge: Mr. Chairman, I rise to express our support for this resolution. While I will not say the minister's judgment is perfect in some spheres of activity, I know he is a very competent member of the legal profession and I presume he has not introduced this resolution without knowing all the circumstances and the necessity for the appointment of these additional judges.
I presume it is safe to say that the necessity for the appointment of additional judges is a sign of our increased population and increased activity in our development, which naturally cause greater activity in the courts, human beings being what they are.
I note there is to be one additional judge appointed to the appeal court of British Columbia. I am going to stay strictly in order; I am not going to deal with judges' salaries because I do not have to plead in front of judges.


An hon. Member:: Were you ever a defendant?


Herbert Wilfred Herridge: No, 1 have never appeared before a judge either as plaintiff or defendant. The highest court with which I have ever had any experience was a local magistrate's court, a kangaroo court as a matter of fact.
I notice there is a provision for an additional appeal court judge in British Columbia. No doubt this is necessary, but I should like the minister because of the ignorance of persons like myself with respect to these matters, to tell the committee upon what information he bases his decision to provide for the appointment of another judge; what is the source of his information and how does he reach the conclusion that the services of this judge, and other judges are required?
I note the restlessness of a number of legal gentlemen who are waiting for an opportunity to extol the virtues of judges and the necessity for an increase in their numbers, so as an ordinary farmer I shall take my seat.
(Translation):


Mr. Fortin:: Mr. Chairman, I should like to add only a few words to say that the lawyers in Quebec city will be jealous of those in Montreal because the latter will benefit from the appointment of two additional judges to the superior court.
I should like, at the risk of being out of order for a minute, to support the suggestions of the hon. member for Cartier (Mr. Crestohl) lest the judges whose ability and talent are recognized be forced to resign and return to private law practice. Indeed, we should seriously think of increasing the judges'
Judges Act
salaries. These last few years there has been a periodical increase in the number of judges of the superior court of Quebec. In my opinion the time has come to reconsider the whole system and to make a serious and thorough inquiry into the need for judges in the province of Quebec.
Recourse to a court of law is a right which belongs to the citizens and this right becomes almost illusive because the litigants suffer absolutely uncontrollable but always extremely long delays in the settlement of law procedures.
The hon. member for Cartier said a moment ago that in the district of Montreal it takes from 12 to 13 months for a case to come to court, and one is fortunate if it is reached within that time. In rural districts, the delays are usually from two to three years. I have in mind a case where proceedings were launched in 1955 and, despite all the diligence of the attorneys, the case was not heard before I960, and the judge was so overloaded with work that the decision itself meant a delay of several more months. In short, people who take legal proceedings often find themselves deprived of their rights.
That is why I would ask the Minister of Justice that, when he considers the appointment of two judges to the superior court for the district of Montreal, he re-examine the whole judicial system by having the attorneys general analyse the needs of the province in that field and the prejudice suffered by the parties to a court action, when they have to wait years before their case is settled. Very often, major witnesses are dead or, more important still, have forgotten most important points; finally genuine rights are lost through such delays.
Consequently, this suggestion would be interesting, in my opinion, if the hon. Minister of Justice were willing to ask the attorneys general to reconsider the whole judicial system so that we may have, in each district, a sufficient number of judges and so that the citizens' right of appeal to the courts be not only an illusion but a right they can use with much more confidence than at present. (Text):


Mr. Forgie:: I support the resolution but I should like the minister to tell the committee what is to be expected of the two county court judges who are to be appointed to the province of Ontario. Are they to be travelling troubadours to relieve other judges who may be hard pressed?


Edmund Davie Fulton: Perhaps I may travel from west to east, as it were, in replying to the various comments which have been made. The hon. member for Kootenay West asked

Judges Act
me on what basis I arrived at a decision to ask parliament to provide an extra salary for an additional judge of the court of appeal of British Columbia. As long ago as 1956, I think, the legislature of British Columbia passed legislation providing for the appointment of additional judges to the court of appeal of that province. When we took office in 1957 I discussed the question with the attorney general and with the chief justice of the court and was advised that there was no pressing need for an appointment to be made then. From time to time since then I have noted that the court of appeal has got behind in its work. Then it caught up again, and the pressure of the work grew once more. I have been keeping a close watch on the situation because in recent months the work of the court of appeal has increased considerably in British Columbia and it is a fact that they are behind in their lists.
In addition it must be borne in mind that last year by an amendment to the appropriate act we provided that the judges of the court of appeal of British Columbia will be judges of the court of appeal of the Yukon. Previously the court of appeal of British Columbia was the court of appeal of the Yukon. Litigants from the Yukon had to travel south to Vancouver or Victoria to have their appeals heard. Now we have constituted a court of appeal for the Yukon itself and a judge from the court of appeal from British Columbia goes to the Yukon territory and, together with other judges, forms the court of appeal in that territory. This means that from time to time a judge of the court of appeal of British Columbia will be out of the province. For this reason, plus the normal increase in litigation, plus the desire of the court to sit at all times in two banks it has seemed appropriate now to allow for a salary to provide for the appointment of an extra judge.
No one here has raised a question in connection with Alberta for which province we are asking a salary for an additional district court judge. However, I can assure hon. members of the committee that I have heard from the attorney general and from the chief judge of the northern judicial district and am satisfied there is good reason for asking provision for this additional appointment.
With respect to Ontario we are asking for provision of salaries for two additional county court judges. I have heard from the attorney general of Ontario by letter and I have also had discussions with him and I am satisfied that there is a present need for two additional judges of the county court. I am sure hon. members will appreciate that in the province of Ontario, widespread as it is, with many counties and districts served by county and district court judges, a situation frequently

prevails when a judge in one district falls ill and is unable to discharge his duties. This means that judges from another district have to be sent in and that district, in turn, is left short of judges to serve it. An experiment has been tried recently under the authority of legislation in Ontario of appointing a judge at large, a judge to serve all the districts and counties of Ontario. Judge Wilmott is a judge who is doing that work now and I am informed that this is a signal service to the county and district courts of Ontario. This enables counties which would otherwise be very much behind with the work to receive services they would otherwise not receive.
The request I have received from the attorney general of Ontario is that, if this parliament should authorize salaries to pay two additional district court judges, they would be appointed to the district courts of Ontario.
With respect to the province of Quebec, the hon. member for Papineau reminded us of the discussion last week during which time the government of that province had provided for the positions of five extra judges of the superior court in the Montreal district. We appointed three at that time for reasons which I gave, and which my hon. friend summarized. I suggested that we would keep up with the situation in order to see whether the appointment of these three judges was sufficient to make reasonable progress in reducing the backlog of cases. I am informed by the chief justice that the backlog is as serious as ever. It seems, therefore, to be appropriate now to make provisions for the salaries allowing the appointment of two more judges.
I am fully aware of the accommodation problem in the Montreal courthouse, and can only remind my hon. friend that this is a problem for the provincial government. That government is responsible for providing courthouse facilities where the judges who hold court will sit. My understanding is that a statement has been made that a new courthouse will be provided in Montreal. It does seem to me, therefore, appropriate at this time to provide salaries for the paying of two extra judges. If in fact there is no physical accommodation for them provided, we do not need to appoint them. However, at the first moment accommodation is made available they could be appointed, but to do so we will have to provide for the payment of their salaries, and it seems appropriate to do so at this time. I do not suggest that one or the other could physically be accommodated at this time because judges are very often away from their home districts on other duties. However, I am fully aware of and in agreement with the suggestion made by my hon. friend that physical facilities which exist at

this time are far from adequate. I repeat, I do feel that provision should be made now so that the appointments can be made at the first appropriate and convenient time.
Resolution reported and concurred in.
Mr. Fullon thereupon moved for leave to introduce Bill No. C-104, to amend the Judges Act and the Exchequer Court Act.


[Stage Direction]
Motion agreed to, bill read the first time.
Mr. Speaker:: When shall the bill be read a second time?


Some hon. Members:: Now.


Edmund Davie Fulton: the second reading of the bill.
Motion agreed to and bill read the second time and the house went into committee thereon, Mr. Flynn in the chair.
On clause 1.


Lionel Chevrier: Mr. Chairman, is the bill ready for distribution?


Edmund Davie Fulton: The bill is printed, but whether or not it is in the hands of the Clerk for distribution, I am not aware. I have copies here which I can send to my hon. friends in the event that it is not available.


Paul Joseph James Martin: Mr. Chairman, I think we should all have copies of the bill. It has not been distributed generally and although I have a copy, I think other members of this committee should also have copies.


Edmund Davie Fulton: Mr. Chairman, I am, of course, in the hands of the committee, and if there is any objection to proceeding in committee at this time I should not protest.


Lionel Chevrier: Mr. Chairman, I do not think there is any objection to proceeding at this time, but I think it advisable if we do to have copies available to all members. In respect of a matter of this importance, all members should have the opportunity of studying the bill and I would suggest we proceed with it tomorrow.


Edmund Davie Fulton: I think copies are available now for distribution.


Jacques Flynn: I have copies available now if this committee wishes to proceed.


Lionel Chevrier: I suggest we should not proceed unless copies are available to all members. Otherwise, I suggest we proceed tomorrow.


Mr. Drysdale:: It is not a very complicated bill. Do you not want to see more judges in Quebec?
Food and Drugs Act


An hon. Member:: We should like to see more judges in British Columbia.


Edmund Davie Fulton: Mr. Chairman, if the bill is not available for distribution I suggest it would not be appropriate to proceed.
Progress reported.



FOOD AND DRUGS ACT


[Stage Direction]
The house resumed, from Tuesday, May 30, consideration in committee of Bill No. C-99, to amend the Food and Drugs Act- Mr. Monteith (Perth)-Mr. Flynn in the chair.
On clause 1-Exports.
Mr. Bourque:: Mr. Chairman, I have read with much interest the articles appearing in the newspapers in respect of this proposed legislation and am very pleased to see that something is going to be done now in regard to this situation, the problem having been brought to the attention of this house over a period of three years.
I understand from newspaper articles which I have read that the mayor of Montreal has made certain recommendations to the Department of National Health and Welfare which appear to be incorporated in this legislation. The article to which I refer states that a government source has said that the mayor of Montreal and a delegation from that city expressed complete satisfaction with the-


Jacques Flynn: Order. I am sorry to interrupt the hon. member but I indicated our consideration of clause 1 of the bill has been concluded except in respect of section 33, which deals with the procedure in respect of prosecution for possession, and section 34 (2). Therefore, it seems to me that the hon. member in dealing with general considerations is out of order, unless he can relate his remarks to those specific portions of the bill.


Romuald Bourque: Mr. Chairman, may I humbly suggest that there is only one clause of importance in this bill. This bill has to do with sections 30, 31, 32, and so forth of the Food and Drugs Act, but there is only one item involved. Therefore, I cannot deal with the others.


Jacques Flynn: I must indicate to the hon.
member that the committee agreed we would proceed and consider the clauses one by one, and that the discussion would be relevant to each individual clause having to do with a particular section of the act. As indicated, we have passed sections 30, 31,

Food and Drugs Act
32, 35, and so forth. We now come to sections 33 and 34(2) which were allowed to stand at the last committee meeting. They are the only ones which are left for consideration by the committee. It seems to me that the discussion should be strictly relevant to these sections.


Romuald Bourque: Mr. Chairman, if I cannot go on as I suggest may I respectfully ask that the report of the Montreal committee which contains the opinions of some of the outstanding social workers, police authorities, medical health officers, educators, doctors, lawyers, pharmacists, criminologists and vocational guidance people be read into the record. If this cannot be done, I should like to suggest that it be made an appendix to today's Hansard, because it is a report by leading authorities.


Jacques Flynn: By leave of the committee the hon. member could do that, but I might indicate to him that when the bill is considered for third reading maybe the occasion would present itself when he could make his comments.


Jean-Paul Deschatelets: May I say a word on the suggestion of the hon. member for Outremont-St. Jean. The report he mentions is a very important one. It answers many questions that have been put by members on both sides of the house on the technical aspects of the problem. I would think that it would be a great help at this time if this report were made an appendix to Hansard, so that before the third reading of the bill hon. members could have a look at it. It would be of great interest to all hon. members and I ask the minister to agree to the suggestion.


Herbert Wilfred Herridge: On this point, Mr. Chairman, I have only respect and admiration for the work done by the hon. member in promoting the necessity for this type of legislation, but this is rather a lengthy looking report. I think it would create a rather bad precedent to make it an appendix to Hansard. I think your suggestion was a good one, Mr. Chairman, that on third reading the hon. member would have the opportunity in the time allowed to put a substantive part of the report on the record and make his comments at the same time. This would be very useful because the hon. member has had a great deal of experience with this matter and understands the problem much more than some of us who come from the country.


Mr. Monteith (Perth):: Mr. Chairman, if I may say a word at this time, I am inclined to agree with the observations of the hon. member for Kootenay West. This is not a report of a committee of the house; it is a
[The Chairman.]
report of a body which met in Montreal to consider this problem. I realize its full import, and so on. It has been suggested that if the hon. member wishes to speak on third reading of the bill he might have something to say which he did not say in the previous discussion of the bill.
I should like to point out that we undertook to consider the bill clause by clause, if my recollection is correct, at the request of one of the members of the opposition. Consequently, I think we should stick to the order which was suggested and which was indicated would be the best way to proceed.


Paul Joseph James Martin: When we were discussing this bill last week, and particularly section 33, the Minister of Justice was not in the house; he was away on business elsewhere. The Solicitor General was associated with the Minister of National Health and Welfare in piloting the bill through the house. At that time I raised a point in connection with section 33 and subsection 2 of section 34. I suggested that a careful examination of those two sections, and particularly the one with which we are now concerned, might indicate that there was a violation of the bill of rights. I pointed out that under section 2 (f) of the bill of rights provision was made for the retention of the presumption of innocence, a common law right that has been extant for many centuries. The Minister of Justice will recall that it was largely as a result of the initiative taken by the hon. member for Maisonneuve-Rose-mont that in the committee on the bill of rights it was agreed that there should be included in the bill a formal declaration preserving the presumption of innocence principle which has been part of our common law tradition.
I also pointed out last week in the absence of the Minister of Justice that if there was justification for the contention that section 33 did violate the bill of rights, the Minister of Justice owed the committee an explanation because under section 3 of the bill of rights the minister is under obligation to examine every proposed regulation submitted in draft form to the Clerk of the Privy Council in order to ascertain whether any of the paragraphs thereof are inconsistent with the purposes of the bill. If our contention with regard to section 34 is not a valid one, then the minister of course does not appear to have violated section 3 of the bill of rights, but we are strongly of the view that the section as drawn does violate paragraph (f) of section 2 of the bill of rights.
As the minister was not here, I repeat the argument. Section 33 does provide in (1) that:



B, 1961

[Stage Direction]
II the accused does not plead guilty, the trial shall proceed as if the issue to be tried is whether the accused was in possession of a controlled drug.
That is the issue involved. The onus of establishing that he has not improperly within his possession a controlled drug is imposed on the accused. In other words, there is a presumption of guilt by virtue of being in possession of a controlled drug. The language of paragraphs (a) and (f) of subsection 2 at first glance may appear to create a different situation; but when one reads the whole section together I think one finds it is incontestable that the issue to be tried is whether or not the accused is in possession of a controlled drug and that pursuant to the subsection the court, if it finds that the accused was not in possession of a controlled drug, he shall be acquitted, but if the court finds that the accused is in possession of a controlled drug he must establish certain facts. I suggest that according to the bill of rights that onus should rest on the crown and not on the accused. As I mentioned last week, because this point was taken, no one should suggest that we want to weaken in any way the effectiveness of this legislation which we all approve, but we will not be doing our duty if in the realization of that commendable objective, in the light of this traffic so well pointed out by the hon. member for-
Some hon. Members:: Oh, oh.


Paul Joseph James Martin: Hon. gentlemen laugh but it is the hon. member for Outre-mont-St. Jean who is responsible for this bill. It is his work that brought this about in spite of the fact that it was not fully appreciated. We all remember the derision that attended his remarks when from time to time he brought this question to our attention. I think it is only proper that we would pay him this tribute and I would expect that the Minister of National Health and Welfare or the Minister of Justice of the latter's parliamentary secretary, who confines most of his activities to observations from his seat when matters of importance are discussed, would be among those who would join in recognizing the contribution made by the hon. member for Outremont-St. Jean.
The Solicitor General took note of this point and as a result it was agreed that this section and subsection 2 of section 34 should stand. I do not make any comment at this time on subsection 2 of section 34 because that would be out of order. We can deal with that section when we come to it. But I am sure the government has had an opportunity to give consideration to this matter and we will be interested in knowing what formula it has come forward with to bring this measure into consistency with the bill of rights. Having
Food and Drugs Act
done that, perhaps the Minister of Justice will then explain to the committee his failure to act under section 3 of the bill of rights.
(Translation):


Jean-Paul Deschatelets: Mr. Chairman, I should like to say a few words in support of the remarks that the hon. member for Essex East (Mr. Martin) has just made to the effect that section 33 particularly, and the first part of section 34 are contrary to the provisions of the Canadian Bill of Rights.
I should like to point out to the minister that under section 33 of this bill, possession is not in itself illegal. Therefore, if a person is brought before the court and charged with having transported or peddled a controlled drug and the crown has, at a given time, proved possession under section 33, the accused may not be condemned for an offence yet, but he is placed under the obligation of proving first that he has obtained the drug from an authorized person and, second, that the drug in his possession is not for trafficking.
Well, if I were counsel for an accused charged under section 33, I would advise him right away to ignore the crown's evidence, to make no move and to let the crown prove possession, because, in that case, there is no offence at all. I fail to see how a judge can convict, under section 33, an accused who is only guilty of having been found in possession of goof balls, because this is not an offence under the law.
The provisions of section 33 were taken almost textually from the Food and Drugs Act, but at that time possession constituted an offence under that act. I suggest that if possession is not considered an offence under section 33, we draw conclusions that are inconsistent, especially if we take into consideration the provisions of the bill of rights that we passed last year.
I think the minister and the government ought to give special attention to that most important point raised by the hon. member for Essex East (Mr. Martin).
What will happen if the government fails to submit this bill, either immediately or after its passing, to the Supreme Court of Canada, in order to obtain a definite opinion? It is to be expected that the first accused to be charged in court under this amendment in clause 33, might well refuse to acknowledge the court's jurisdiction, on the ground that the act is inconsistent with the provisions of the bill of rights, which means that in less than one or two years the act would have become almost inoperative.

Food and Drugs Act
Since the point raised is a very serious one, I cannot see why, at some time or other, even after the passing of the bill, it would not be possible for the government to submit, as a reference, to the supreme court this simple question: "Are clauses 33 and 34 in Bill No. C-99 inconsistent with the provisions of the bill of rights and, if so, in what respect?"
Should we adopt such legislation which introduces something new in our law-as the minister stated, this country is perhaps the first to have legislation concerning this kind of barbiturates-I think it would be a good thing in view of the point raised by the hon. member for Essex East to seek the advice of the supreme court so as to be sure that this act is in accordance with the bill of rights passed last year.


Mr. Martineau:: Would the hon. member permit a question? Does he think that the procedure concerning evidence described in clause 33 represents something new in criminal law?


Paul Joseph James Martin: That is not the point.


Jean-Paul Deschatelets: That is not the point.


Paul Raymond Martineau: Well, it is the question I am putting to the hon. member.


Jean-Paul Deschatelets: I shall reply to the hon.
member who, I think, was crown attorney.


Paul Joseph James Martin: The purpose is to correct something new.


Jean-Paul Deschatelets: This provision in sections 33 and 34 existed in another act, but under the other drug and narcotics act, possession was an offence whereas under this act, it is quite obvious and the minister has admitted it-that possession is not an offence. So, if a man is found in possession of goof balls, he is brought before the court and charged with peddling goof balls, and there is no offence, no prima facie case against him, because the only thing against him is the fact of possession, and possession is not an offence.
Therefore, I say this is completely new legislation, in which use is made of the provisions of section 33, under which possession is not an offence, to bring the accused before the court and to force him to appear in the witness box to defend himself when no case can be made against him. In that sense it is new legislation and extremely dangerous legislation.

(Text):


Leon David Crestohl: We live in a country which follows the principle that the accused does not necessarily have to step into the box to offer a defence until a case has been made against him. I now invite the minister's attention to subsection 3 of section 33, which reads:
If the accused establishes the facts set forth in paragraph (a) or (b) of subsection (2) he shall be acquitted of the offence as charged; and if the accused fails to so establish he shall be convicted of the offence as charged and sentenced accordingly.
If the accused finds that the evidence presented by the crown is sufficiently strong and the judge orders that a defence be presented, then the accused can step into the box and offer the explanation outlined in paragraphs (a) or (b). It is our submission, and I point this out to the minister, that it is certainly a violation of the principles of justice in this country that no accused should be compelled to enter his defence until the crown has made a case against him. Subsection 3 of section 33 definitely indicates that the accused shall step into the box and offer an explanation when no case has been made out against him. I say that is a violation of criminal law procedure in this country.
I invite the minister to carefully read subsection 3. I think the point I make has some valid ground, and I support the submission made by the hon. member for Essex East. This is the only point I want to make. Let us not change the criminal procedure in this country by enacting a provision in this bill that the accused shall be compelled to offer an explanation before the crown has made out a case. The accused is not now obliged to do so until a case has been made out against him.


Edmund Davie Fulton: Mr. Chairman, a great deal of importance and, in my view, a disproportionate amount of importance has been attached to the statement made by my hon. friends that this section contravenes the bill of rights, and that what we are doing here is to provide, in effect, that the accused will be presumed guilty even in advance of the proof of the case by the crown. In other words, my hon. friends are suggesting that the mere fact that a charge is laid puts the accused on his defence and that he then has to establish his innocence. Nothing, of course could be further from the truth.
The crown, under section 33 of the new act, if this bill passes, will have to prove the facts upon which it relies to establish

the guilt of the accused. It is not until the crown has proven its case that the accused is under any obligation to enter a defence. It is a well understood principle of criminal justice that criminal statutes themselves may provide that certain inferences will be drawn from certain facts; that is all that is being done here. In every one of these cases, just as here, the crown has to establish the facts from which the statute then says that the inferences may be drawn. This is particularly true in the case of dangerous substances such as explosives, for instance, and narcotics, and now we are adding goof balls or barbiturates and amphetamines. As I say, in the case of these dangerous substances, it is common to provide that possession, in the absence of a reasonable explanation, will raise these inferences or presumptions on the basis of which the guilt of the accused can then be assumed if the accused is not able to make a reasonable explanation of the origin and purpose of his possession of these dangerous substances. This is a well understood principle of criminal law.
There is another well understood principle of criminal law, and it is this. When you are dealing with the necessity of proving your case, there is a point at which it is proper that the onus of rebuttal should pass to the accused. This again is particularly the situation with regard to those cases hinging on possession. It is, therefore, understood and accepted, and not a contravention of the bill of rights, that when the crown proves possession then the onus shifts to the accused to establish that his possession is innocent, to establish how he came into possession and the purpose for which he has possession. How could the crown possibly establish all these facts which are peculiarly and exclusively in the knowledge of the accused? He alone knows how he came into possession. He alone knows the purpose for which he possesses. It is, therefore, a well understood principle of criminal law that once the crown has proven, with respect to this category of subjects, that the accused is in possession, then the onus passes to the accused to establish that his possession is innocent and that the purpose for which he possesses is lawful.
Now, the hon. member for Essex East, particularly, has made a gross confusion of these two questions, on the one hand of the presumption of innocence and on the other hand of the transference of the onus of proof. It is because he has made this gross, selfdeceiving confusion that he has so long detained this committee in his self-defeating attempts to establish that there is here a breach of the bill of rights. The bill of rights says that no statute of the parliament of Canada shall be so interpreted as to deprive 90205-6-375
Food and Drugs Act
a person charged with a criminal offense of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
If my hon. friend looks at the bill now before the committee, he will find there is nothing in it which presumes the accused to be guilty until the crown has proven its case in accordance with the principles I have outlined. The crown has to establish the fact of possession.


Paul Joseph James Martin: No, not at all.


Leon David Crestohl: Possession for trafficking, not simple possession.


Edmund Davie Fulton: Does my hon. friend deny that under section 33 the crown will have to establish the fact of possession? Has my hon. friend not read the section?


Paul Joseph James Martin: Surely the minister is not going to confuse this issue by resorting to these debatable tactics.


Edmund Davie Fulton: I have asked a question: does my hon. friend deny that the crown will have to establish the fact of possession under section 33?


Leon David Crestohl: That is possession for trafficking.


Edmund Davie Fulton: I will ask my hon. friend from Essex East this question, if his colleagues will keep silent for a moment: do any hon. members opposite deny that the crown has to establish the fact of possession under section 33?


Leon David Crestohl: Possession for trafficking.


Edmund Davie Fulton: The question is simple: does my hon. friend deny that the crown will have to establish the fact of possession?


Paul Joseph James Martin: When the minister is through I will be able to answer his question.


Edmund Davie Fulton: I have not yet received an answer to my question.


Paul Joseph James Martin: You make your argument and I will give my reply.


Edmund Davie Fulton: I gathered from what was said on the other side of the chamber that hon. members did deny that the crown had to prove the fact of possession. Do I now understand that hon. members opposite do not deny that the crown has to establish the fact of possession because they have not answered my question.


Jean-Paul Deschatelets: Yes.


Edmund Davie Fulton: That is agreed. My hon. friend from Maisonneuve-Rosemont accepts that

Food and Drugs Act
the crown does have to prove possession. The law then makes a presumption that the possession is for the purpose of trafficking unless the accused can establish that the possession is lawful or is not for the purpose of trafficking.


Jean-Paul Deschatelets: Will the minister permit me-


Edmund Davie Fulton: But there is nothing new in this. I would direct my hon. friend's attention to a case recently decided in the supreme court of Ontario where this very issue was before the court. I refer to the issue of whether such a presumption in a statute is a contravention of the bill of rights.


Paul Joseph James Martin: Will the minister give us the name of the case.


Edmund Davie Fulton: Yes, Regina versus Guertin.


Paul Joseph James Martin: Give us the facts of the case.


Edmund Davie Fulton: If my hon. friend will possess his soul in patience, I will do so. I know he does not like to be caught out.


Paul Joseph James Martin: Come now; this is not a debating society; you are the Minister of Justice.


Edmund Davie Fulton: Mr. Chairman, my hon. friend always takes refuge in these interjections when the case is going against him. He has spent a considerable part of two days trying to establish that the government has been derelict in its duty.


Paul Joseph James Martin: That is right.


Edmund Davie Fulton: He has spent two days trying to mislead the public of Canada into thinking that the government attaches no importance to the bill of rights-


Paul Joseph James Martin: That is right.


Edmund Davie Fulton: -whereas he has so misinformed himself and misled himself that he has just been wasting the time of the house and the country.


John Andrew W. Drysdale: That is right.


Edmund Davie Fulton: We had the provisions of the bill of rights in our minds at every moment when we drafted this bill. I have said-and I have to explain this in words of one syllable in order that I may be certain my hon. friends fully understand-that it is a well understood principle of criminal justice, and not inconsistent with the bill of rights, that with respect particularly to these dangerous and offensive substances, once the crown has proven the fact of possession the presumption is made by law that the possession was for a guilty purpose. The law having made that

presumption, the onus is shifted to the accused to prove that the possession was innocent.
That is all this section does. The section says that when the crown has proven possession, the possession shall be presumed to have been for the purpose of trafficking and the onus is then shifted to the accused to establish that the possession was lawful or that it was not for the purpose of trafficking.
When I was interrupted by the hon. member for Essex East I was at the point of referring the committee to the case in the supreme court of Ontario recently where this very issue was before the court, on the basis of whether or not a similar provision of the Criminal Code was inconsistent with the bill of rights.
The section in question was section 80 of the Criminal Code, which provides:
Every one who, without lawful excuse, the proof of which lies upon him,
(a) makes or has in his possession or under his care or control an explosive substance that he does not make or does not have in his possession or under his care or control for a lawful purpose ... is guilty of an indictable offence and is liable to imprisonment for five years.
In the case of Regina versus Guertin, reported in "1961 Ontario Weekly Notes", page 134-


Paul Joseph James Martin: What is the citation again, please?


Edmund Davie Fulton: "1961 Ontario Weekly Notes", page 134. In that case this very issue was before the court. Here is a section of the Criminal Code which says that all the crown has to prove is the fact of possession and then the law presumes the possession was for an unlawful purpose unless the accused can establish that the possession was for a lawful purpose; and the onus of proof, by the provision of the statute, shifts to the accused the moment the crown establishes the fact of possession. Why? Because it is a dangerous substance. That is the reason for these provisions in the code, for similar provisions in the Opium and Narcotic Drug Act, and for the proposed inclusion of this provision in the Food and Drugs Act.
The chief justice of the Ontario court of appeal-Mr. Chairman, I am sorry; I misinformed the committee. I said it was a case in the supreme court of Ontario. The citation to which I have referred is a report of a decision of the court of appeal of Ontario.


Paul Joseph James Martin: Are you sure you got the facts right?


Edmund Davie Fulton: The case was originally tried by a magistrate and was appealed directly to the court of appeal.


Paul Joseph James Martin: Was the appeal allowed or dismissed?


Edmund Davie Fulton: The appeal was allowed. The magistrate had held that the shifting of the onus of proof provided by section 80 of the Criminal Code was abrogated by section 2 of the bill of rights, and the court of appeal of Ontario held that this was not the case.
The chief justice of the Ontario court of appeal, commenting on the argument by counsel for the accused that section 80, by putting the proof of lawful excuse upon the accused abrogates or infringes the right of the accused to be presumed innocent until proved guilty according to law, had the following to say:
I do not agree with this contention. Under section 80 the accused is not deprived of the right to be presumed innocent until proved guilty according to law. The law, it is true, stipulates that upon proof that accused has the explosive substance in his possession, he shall be liable to conviction unless his possession can be justified by lawful excuse. Nevertheless, it is only after conclusion of the evidence, if any, for the defence as well as the evidence for the crown that the trial tribunal is in a position to find his guilt or innocence. The presumption of innocence remains until the whole evidence is before the court. If the accused elects to adduce no evidence or if the evidence he adduces fails to support the defence of lawful excuse, then in either case he may be convicted according to law.
For these reasons, I am of the opinion that section 80 does not abrogate or infringe upon the right to be presumed innocent recognized and declared by section 2 (f) of the bill of rights.
In my submission, Mr. Chairman, this case is completely conclusive of the issue which has been raised by my hon. friends opposite, because of the words of Chief Justice Porter, applying them now to the section before this committee:
If the accused elects to adduce no evidence or the evidence he adduces fails to support the defence of lawful excuse,-
Transposing the words "fails to support the defence of lawful possession" or "innocent possession", in either case he may be convicted according to law. But in no case may he be convicted until the crown has satisfied the onus of proof which rests upon it, that of proving the fact of possession. Just as in the case of explosives covered in section 80, the crown has to prove the fact of possession and then the onus passes to the accused to establish that the possession was lawful.
A great deal of consideration has been given to this whole question by the courts in the United States under the due process clause. I could cite arguments under the due process clause and the reasoning there, but I think that although the committee will agree that in this respect the United States cases are of interst and of value as illustrative of the process of reasoning in this regard, hon. members would feel that a decision of the court of 90205-6-3751
Food and Drugs Act
appeal of Ontario on this very point is conclusive on this question which was raised by the hon. member for Essex East and supported erroneously by the hon. member for Maison-neuve-Rosemont.


Paul Joseph James Martin: I am sure the Minister of Justice will agree, now he has taken his seat, that an argument of this sort is not going to be resolved by the minister losing his patience-


Edmund Davie Fulton: I have not lost my patience.


Paul Joseph James Martin: -or by making accusations against those who believe that there is a violation of the bill of rights as a result of this particular subsection. The Minister of Justice may be correct in his contention, but he must also assume that hon. members who raise issues of this sort may equally be proven to be correct.
It is significant that when this point was first raised, the Solicitor General who has had considerable experience in the practice of the law in Newfoundland and who, unlike the Minister of Justice has had considerable contact with the criminal courts where he served, I believe, as a magistrate, did not resort to the petulant tactics of the Minister of Justice.


An hon. Member:: Oh come off it.


Paul Joseph James Martin: Someone says "oh, come on". Well, that is no way in which to attempt-


Edmund Davie Fulton: You don't like to be discomforted.


Paul Joseph James Martin: The minister, by adopting that attitude, does not add to his stature or to the elucidation of the issue now before us, nor will all the catcalls of the eminent lawyers who sit behind him assist in resolving the problem which faces the Minister of Justice with regard to his duties under the bill of rights.
I was saying that the Solicitor General, when this question was raised, after considerable argument by hon. members on this side of the house, did have a consultation with the Minister of National Health and Welfare who was piloting this bill with the result that they decided to allow this and the other subsection to stand. They thought, at any rate, that some consideration should be given to the point which was raised. The Solicitor General did not say he agreed with the objection which had been taken but he did take the proper course of saying he would have the matter reviewed. The minister comes forward tonight with all the infallibility of one who does not believe in the possibility that there can be any difference about the

Food and Drugs Act
interpretation of a statute and tells us: I believe that notwithstanding what you have stated the interpretation of the statute is not as the hon. member for Essex East, the hon. member for Maisonneuve-Rosemont and the hon. member for Cartier have said-I tell you without any hesitation that this is the situation. And all this is before he had started to set out the judgment of Chief Justice Porter, in the province of Ontario sitting in the weekly court with regard to an appeal that had come from a magistrate who had held in the first instance-


Edmund Davie Fulton: What does the hon, member mean by the words "sitting in weekly court"?
Mr. Pallet!: Does the hon. gentleman not know it was a court of appeal decision of Chief Justice Porter, Mr. Justice Aylesworth and Mr. Justice Mackay.


Paul Joseph James Martin: Now we have another Solon sitting over there. The minister told us that in the weekly notes-


Edmund Davie Fulton: The hon. member said "sitting in weekly court".


Paul Joseph James Martin: The Minister of Justice ought to be able to contain himself and listen to reasoned argument. It might not be one which makes an appeal to him but he should at least attempt to give the impression that he has the judicial manner, and he should allow an argument against his position to be stated without these constant interruptions. It is not characteristic of him. I can only assume that he is tired today after a long-


Edmund Davie Fulton: Not tired, just bored.


Paul Joseph James Martin: Bored?


Edmund Davie Fulton: Bored. By you.


Paul Joseph James Martin: The Minister of Justice is bored. The Minister of Justice, who introduced the bill of rights does not like, now, to have the bill of rights used as an argument-


Edmund Davie Fulton: I am waiting to hear the argument.


Paul Joseph James Martin: The Minister of Justice, who continues to interrupt, who continues to display impatience on hearing a judicial argument, does not wish to be told that the bill of rights he piloted through this house-


Edmund Davie Fulton: I love to see the hon. gentleman irritated.


Paul Joseph James Martin: -protects, also, the common law right of presumption of innocence as it is carried forward in all legislation passed by this house, and there is a further obligation on the Minister of Justice

to indicate whether in his judgment any bill put forward for our consideration represents a contravention of the term of the bill of rights. These are the facts.
When the Minister of Justice says because there are now in the Criminal Code certain sections which say that the mere possession of explosives and, under the provisions of the narcotics act, the mere possession of narcotics, creates an obligation on the part of an accused to explain possession, that is no answer to the particular question raised by the section now before us. We have to analyse this particular section not as it appears to us in the light of sections in the Criminal Code dealing with something else, but in the light of how this particular section itself bears an interpretation with regard to subsection (f) of section 2 of the bill of rights.
The hon. member for Pontiac-Temiscamin-gue who, likewise, has had some considerable experience in these matters asked a proper question, it seems to me when he drew attention to the fact that under the Criminal Code the mere possession of certain substances, explosives and the like, creates an obligation on the part of the accused to explain the circumstances of possession. We readily acknowledge that this is the case. But these sections in the Criminal Code, like their companion provisions in the narcotics act, came into being as a result of acts by this parliament before the bill of rights was passed. The Criminal Code is replete with all kinds of exceptions to the general rule of presumption of innocence. There are many other punitive statutes which have been passed by this house and passed by provincial parliaments where there is a failure to carry out the common law practice of presumption of innocence. There is no doubt about that.


Mr. Campbell (Stormont):: Would the hon. gentleman permit a question? Does he not regard the bill of rights as being declaratory of what already exists in the common law on presumption of innocence, or does he contend that it added anything further to our rights in that respect.


Paul Joseph James Martin: I thank the learned gentleman from Stormont, because his question substantiates what we have always said about the bill of rights-that it did no more than declare the existing law; that it added nothing to substantive law, but was simply declaratory of what was already the law of the land.


Grant Campbell: What happens to your previous argument, then?


Paul Joseph James Martin: May I finish what I am saying? I am glad the hon. member has asked that question, because he is confirming

the position taken by the Canadian Bar Association and others that the bill ol rights added nothing to the existing law. This being the case, the hon. member says, I am placed in an inconsistent position having used the argument I did a moment ago. I am sure it the hon. member for Stormont will allow me to complete my argument he will then be able to give us a clear and undeniable defence of the position that he is now taking. However, until such time, I know he will listen to me with the respect I am now receiving from the Minister of Justice, for which I am extremely grateful.


Grant Campbell: Will the hon. member explain his obviously inconsistent attitude? How does he explain it?


Paul Joseph James Martin: Perhaps if the hon. gentleman will listen to me now with care, which is characteristic of his general attitude in listening to learned counsel, he will then receive an answer.
The minister has overlooked the fact that subsection (1) of section 32-this is the governing factor-provides that if an accused pleads not guilty the trial will then proceed as if the issue to be tried was whether the accused was in possession of controlled drugs. That is the governing factor and principle regarding the argument we make in respect of this matter. As soon as an accused has pleaded not guilty, and the issue is joined, then the obligation falls upon the accused to-


An hon. Member:: It is not an obligation.


Paul Joseph James Martin: The onus is on the accused to prove that he is not in possession contrary to the particular section of this act. If that provision does not place the onus upon the accused, and if it does not presume an accused to be guilty in the absence of proof to the contrary, then I do not properly understand Her Majesty's English.


Edmund Davie Fulton: Mr. Chairman, may I attempt to assist the hon. member by returning to the question asked of me earlier? The hon. member asked me whether, under the wording of section 33 (2), the crown has to prove that an accused is in possession of the drug.


Paul Joseph James Martin: Oh, there is no doubt about that. The section is clear in that respect.


Edmund Davie Fulton: The crown must prove its case in that regard.


Paul Joseph James Martin: That is not the
point. The minister forgets that once a plea of not guilty has been entered the issue is to be tried as though it involved the question of possession.
Food and Drugs Act


Edmund Davie Fulton: That is right.


Paul Joseph James Martin: The issue can only be determined as a result of an accused clearly establishing his legal possession.


Edmund Davie Fulton: No, the crown must-


Paul Joseph James Martin: If the accused cannot do so then the issue is proceeded with as though-


Edmund Davie Fulton: Perhaps my hon. friend would admit that the crown must first prove possession.


Paul Joseph James Martin: If an accused cannot explain the circumstances of possession then, according to subsection (3), he must be convicted of the offence. If the accused establishes the facts as set forth in paragraphs (a) or (b) of subsection (2) he shall be acquitted of the offence as charged. However, as I have said, if the accused fails to establish that, he shall be convicted of the offence as charged and sentenced accordingly. If that does not place the onus upon the accused, then the Minister of Justice will have to give me some satisfactory explanation.


Edmund Davie Fulton: Mr. Chairman, my hon. friend is trying to establish that-


John Andrew W. Drysdale: Mr. Chairman, I should like to- *


Edmund Davie Fulton: Does my hon. friend suggest-


Paul Joseph James Martin: Mr. Chairman, I should like to answer these hon. gentlemen one at a time, and perhaps I should recognize the minister first.


Edmund Davie Fulton: Does my hon. friend suggest the onus shifts before the crown has proved the fact of possession?


Paul Joseph James Martin: The issue arises at the moment there is a plea of not guilty and then becomes a question of possession.


Edmund Davie Fulton: Yes.


Paul Joseph James Martin: It is then up to the accused to explain his possession, not the crown.


Edmund Davie Fulton: My hon. friend misunderstands the situation.


Paul Joseph James Martin: The minister continues to say that I misunderstand. I suggest that I do not misunderstand it but that it is clear. If an accused does not plead guilty the trial proceeds as if the issue to be tried is whether the accused was in possession of a controlled drug. That is quite clear. If the court finds the accused was not in possession of a controlled drug, he shall be acquitted. If the court finds that he was in possession

Food and Drugs Act
of a controlled drug, the accused shall then be given the opportunity of establishing certain things.


Edmund Davie Fulton: How is the court going to find that unless the crown leads evidence as to possession?


Paul Joseph James Martin: Perhaps the accused goes into the box.


Edmund Davie Fulton: The accused does not go into the box until the crown has proved possession.


Paul Joseph James Martin: My hon. friend has not read his bill very carefully.


An hon. Member:: Sit down.


Paul Joseph James Martin: I suggest that my hon. friend has not given this section the interpretation it should be given.


John Andrew W. Drysdale: Would the hon. member permit a question?


Paul Joseph James Martin: The minister speaks of the Guertin case; is that case conclusive? Can the Minister of Justice say whether there has been an appeal entered in that case?


Edmund Davie Fulton: This case was decided, and so far as I am aware there has been no appeal.


Paul Joseph James Martin: So far as the
minister is aware there has been no appeal, but he does not know. I suggest the magistrate held that there was a violation of the bill of rights involved.


Edmund Davie Fulton: That is right.


Paul Joseph James Martin: On appeal, the court of appeal held otherwise.


Edmund Davie Fulton: That is right.


Paul Joseph James Martin: We do not now
know whether or not a further appeal has been taken. I should be very surprised if a further appeal has not been taken in this matter.
It may be that the arguments which were put forward were not valid arguments, and that may be the position the minister is taking. Undoubtedly he will be able to support that position by the support given by those who sit behind him, but there is some doubt.
Obviously there was some doubt regarding the similar circumstances in respect to the Guertin case, at least in principle. I have not examined the facts of that case and must rely upon my hon. friend's interpretation, but there was some doubt in the mind of the magistrate with regard to the situation. That case has not been concluded if it is to reach the Supreme Court of Canada.
In view of the fact that my hon. friend should like this to be the most effective act
[Mr. Martin (Essex East) .1
possible to meet the situation, and in view of the doubt which does exist, as well as because of the interpretation which some hon. members sincerely place on this section, will the minister deny that a doubt may well be entertained by others who will be called upon as judges to interpret this section in the future? Will my hon. friend deny that defence counsel will use this section as a means of avoiding the mischief and the judgment which the minister says must inevitably follow from a proper interpretation of this section?
What will be the result? I suggest the result will be that this legislation will be ineffective for a considerably long time. This bill has been brought in after careful consideration by the government in order to meet a situation which has been brought to the attention of this committee by the hon. member for Ou-tremont-St. Jean. The Minister of National Health and Welfare has stated it was brought in for the purpose of meeting a particular situation which has brought about so much degradation among young people, particularly in our large centres where criminal activity is extensive.
The minister will know, by looking at the punitive section, that the sanctions are very great and that the punishment imposed is intended to be corrective. If the minister intends to make this law effective surely he must recognize the arguments which will be made by defence counsel on the first occasion that this act is tested. What will be the result?
I suggest that when a charge has been laid it will ultimately be tried, after the docket has been so adjusted as to permit the case to be heard; then there will follow an interval, unless judgment is given forthwith. However, if judgment is reserved there will be another interval followed by an appeal to the court of appeal. If individuals who are trafficking in these controlled drugs are anxious to pursue their nefarious practices they will delay the process of justice by seeing that there is an appeal to the Supreme Court of Canada. This whole procedure will take well over a year from the time the charge is first laid under this act. That being the situation, is it unreasonable for the minister to resort to unmistakably clear language containing no ambiguity whatsoever? On the other hand, if the minister persists in the interpretation which he does persist in, why should he not give consideration to the suggestion made by the hon. member for Mai-sonneuve-Rosemont, that this section be referred to the Supreme Court of Canada by way of reference?
In the submission of a reference to the Supreme Court of Canada the crown will not be confronted with any delay in the hearing of a request in the right of Her

Majesty's government on federal account. I suggest this procedure to avoid the kind of delay that will come from defence counsel and others in the interpretation of this section.
If the minister does not accept the arguments we present, surely he ought to, in the interest of the dispatch of justice in this matter, accept the proposal made by the hon. member for Maisonneuve-Rosemont as the effective way of dealing with a matter that is doubtful. The minister cannot take the position that this is not doubtful, because that was the position taken the other night, by the Solicitor General whose legal experience is no less than that of the Minister of Justice. For these reasons I hope the minister will regard our interventions tonight as designed to remove any doubt about the effectiveness of this section, to remove any doubt about a violation of the bill of rights, to remove any doubt about whether or not the minister has complied with the requirements of section 3 of the bill of rights.


Mr. Campbell (Stormonl):: May I ask the
hon. member a question?


Paul Raymond Martineau: May I ask the hon. member a question?


Jacques Flynn: Maybe the hon. member would choose which member should ask him the question.


Paul Joseph James Martin: I think at this time I ought to recognize priority again. I recognize the parliamentary secretary to the Prime Minister.


Paul Raymond Martineau: The purpose of this question is simply to remove any doubt in my mind as to what the hon. member might have been saying. Did I understand him to say that if this clause becomes law and a conviction is obtained in a court of first instance and then appealed, this would mean that the law could no longer be enforced and that the goof ball traffickers could continue to traffic unmolested?


Paul Joseph James Martin: No. I am sure my hon. friend knows that that is not what I intended.


Paul Raymond Martineau: The hon. member was not clear, and that is why I am trying to get an explanation.


Paul Joseph James Martin: Obviously, if a case under this section is appealed, that does create an uncertainty. The crown will not be able to rest until the final court, not the court of co-ordinate jurisdiction, but the final court, has declared that the law is such and such. Until that is done there will be a field day for defence counsel. This traffic will be
Food and Drugs Act
as active as before. That is the experience that attended the Opium and Narcotic Drug Act when it was first introduced and when this kind of argument was made, in the sense that it was a violation of the common law right. At that time there was no bill of rights and consequently it could not be contrasted.


Paul Raymond Martineau: Is it not also true that uncertainty exists when any legislation is enacted until it has been decided in the courts?


Paul Joseph James Martin: Of course.


Edmund Davie Fulton: Mr. Chairman, we always listen to the hon. member for Essex East. We always treat his arguments with the seriousness which they deserve, even when he deals with the problem ad hominem, which unfortunately the hon. member has shown all too ready a disposition to do.
I do not mind what the hon. member says about me or what his opinion may be about my legal qualifications; I merely suggest that it does not really strengthen his argument to be resorting to that kind of tactic. However, sir, what we do object to-


Paul Joseph James Martin: On a point of order, Mr. Chairman, I do not want the minister to think that I attacked his legal qualifications because I did not.


Edmund Davie Fulton: I would not be disturbed if the hon. member did.


Paul Joseph James Martin: I do not think the minister can truthfully say that. I referred to his eminence and I repeat I simply pointed out that one equally eminent, namely the Solicitor General, had some doubts in the matter. If the Minister of Justice takes that as a reflection on his legal competence, then he is very touchy.


Edmund Davie Fulton: I am not concerned about the hon. member's opinion of me; I am merely pointing out that whenever he is in a tight corner he always turns to the argument ad hominem in one form or another, and we attach to his arguments the seriousness which they deserve. Nor, indeed, do we object to the hon. member rising on the basis of a difference of opinion, but what we do point out is that the hon. member indulges himself in those tactics of which he erroneously accuses others. He made the positive and vehement assertion last Tuesday that this was a violation, and a deliberate violation, of the bill of rights.


Paul Joseph James Martin: That is right.


Edmund Davie Fulton: He did not express it as a matter of tentative opinion on which he invites us now to express ourselves. My hon.

Food and Drugs Act
friend was absolutely certain that the government had deliberated disregarded the bill of rights when it brought in this bill, and that the Minister of Justice had disregarded his obligations under the bill of rights, and all those high flown, loudly phrased objections that he took to the bill, on the basis which he suggested, have been a waste of time of this committee. If he had asserted them as tentative opinions or points of view requiring consideration there would, of course, have been no exception taken; but when he asserts in a positive statement that we have violated the bill of rights, which he himself tried so hard to frustrate and to prevent being passed-the bill that he now asserts we have violated-


Paul Joseph James Martin: You know, of course, that that is not so. You know the bill of rights was improved as a result of the efforts of the members of the Liberal party.


Edmund Davie Fulton: I know for a fact that they attempted to frustrate it because I was exposed to the attempt for weeks and months; I was exposed to the efforts of hon. members to delay, to defeat, to frustrate the desire of the Prime Minister to put a bill of rights on the statute books. Now the hon. member is loud in his accusation that the legislation we are introducing is in violation of the bill of rights.


Paul Joseph James Martin: Would the minister give me the page number of the case?


Edmund Davie Fulton: Apparently my hon. friend is now really interested in it. He referred a moment ago-


Paul Joseph James Martin: Don't get too histrionic.


Edmund Davie Fulton: The hon. member said that I had trotted out a decision of the court of appeal of Ontario sitting in weekly court.


Paul Joseph James Martin: Don't get mad.


Edmund Davie Fulton: That is what he said when he was trying to disregard it. Now apparently he realizes the seriousness of the situation in which he has placed himself in his complete disregard of the court of appeal of Ontario.
The case is found in Ontario Weekly Notes at page 134. The court of appeal consisted of Porter, C.J.O., Aylesworth and MacKay, justices of the court of appeal. The date is March 9, 1961, and the case is Regina versus Guertin. It is the issue of the Ontario Reports and the Ontario Weekly Notes, Toronto, April 7, 1961. It is cited 1961 (O.W.N.). The reference is to be found at page 134. I hope the hon. member has now found it because if he has he will agree entirely with the point of view I have been asserting, not exclusively

on my own, but as the point of view which we have come to as a result of research and study of this subject which is fully supported by the judgment of the court of appeal of Ontario not sitting, sir, in weekly court.


Paul Joseph James Martin: Would the minister let me have his copy?


Edmund Davie Fulton: Oh, yes. I am informed that the hon. member may well have some difficulty in finding it. There is double pagination. One has to do with the Ontario Reports and the other with Ontario Weekly Notes. Both are included in the same number. The Ontario Weekly Notes case will be found at page 134. I shall be glad to send this copy across to the hon. member.


Paul Joseph James Martin: The minister has the library copy and I would appreciate having it.


Edmund Davie Fulton: Now, sir, having disposed of the tactics of the hon. gentleman, let me deal with the only argument he really brought to buttress his position tonight and that was that by this section the accused, by virtue of the charge, is placed immediately in the position where he has to go into the box and prove his possession was innocent. Sir, this argument coming from a lawyer surprises me.


Jean-Paul Deschatelets: I support the claim.


Edmund Davie Fulton: I find it most difficult to know how to deal with it because it seems to me it can only be based on a deliberate refusal to appreciate the meaning of words. Let us go through the section clause by clause. Section 33(1) says;
In any prosecution for a violation of subsection 2 of section 32, if the accused does not plead guilty, the trial shall proceed as if the issue to be tried is whether the accused was in possession of a controlled drug.
Very well. The issue to be tried is the issue of possession. The section does nothing to remove from the crown the onus of proof that is on the crown in every criminal case to prove the facts which it alleges or which are in issue as establishing the guilt of the accused.


Jean-Paul Deschatelets: Will you permit a remark at this point?


Edmund Davie Fulton: Yes.


Jean-Paul Deschatelets: The charge is possession for the purpose of trafficking. The minister will admit that. It is not just possession. The charge against the accused is possession for the purpose of trafficking. I admit that the only issue at the trial as far as the burden of the crown is concerned is possession, but

the minister must keep in mind that the charge is possession for the purpose of trafficking.


Edmund Davie Fulton: I admit that and I will deal with it, but at the moment I was dealing with the contention of the hon. member for Essex East that the moment a charge is laid the accused, if he does not plead guilty, has to go into the witness box and refute the charge of possession.


Jean-Paul Deschatelets: Otherwise he is found guilty.


Edmund Davie Fulton: He does not. The onus does not lie on the accused until the crown has proven the fact on which it relies to support the charge and the fact is the fact of possession.


Leon David Crestohl: Possession for trafficking, not simple possession.


Edmund Davie Fulton: The charge is a charge of possession for trafficking, yes, but the fact which has to be proven, the onus of proof which lies upon the crown, is the fact of possession. It is true that the law then says that if the crown proves possession certain inferences will be drawn and then the onus is shifted to the accused of rebutting those inferences. This is a perfectly normal and proper principle of criminal justice and has been for generations. It is one of those principles which is in line with the bill of rights and was in mind when the bill of rights was drafted.


Paul Joseph James Martin: There was no bill of rights then. That is the point.


Edmund Davie Fulton: The bill of rights simply says that an accused will not be deprived of his right to be presumed innocent until he is proven guilty. The bill of rights does not say that statutes may not suggest that reasonable inferences may be drawn from certain facts so long as the onus of proving those facts is not removed from the crown. This statute says that from the fact of possession an inference may be drawn that the possession was for the purpose of trafficking and that that inference will stand unless the accused then proves that the possession was not for the purpose of trafficking. This is a perfectly proper principle of criminal justice not in the least inconsistent with the bill of rights which merely says that an accused shall be presumed innocent until proved guilty.
Once again, may I suggest in all seriousness to my hon. friends that their difficulty is that they are confusing two principles, one, onus of proof, and the other, presumption of innocence. In every criminal case the onus of proving the facts upon which the crown relies in support of its allegations lies 90205-6-376
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on the crown. Once the crown has done that, the onus always shifts to the accused to answer the case which had been brought against him. All that you have here is a variation provided by statute as to the time at which that onus of proof shall shift, but it does not relieve the crown of the onus of proving the facts on which the crown relies to prove the allegation it has made against the accused. Yet the hon. member for Essex East solemnly said a moment or two ago that all the crown would have to do would be to lay a charge and then the accused would have to go in the witness box to prove his innocence. This is completely incorrect.
I have read subsection 1 and the hon. member for Maisonneuve-Rosemont has agreed, even if the member for Essex East has not, that the crown will have to prove the fact of possession because subsection 2 says:
If, pursuant to subsection 1, the court finds that the accused was not in possession of a controlled drug, he shall be acquitted, but, if the court finds that the accused was in possession of a controlled drug, he shall be given an opportunity of establishing-
One or the other of two things. How could the court find that he was in possession of a controlled drug unless the crown proved that he was in possession of a controlled drug?


Paul Joseph James Martin: Under this bill the proof must rest on the accused.


Edmund Davie Fulton: No.


Paul Joseph James Martin: Read the subsection.


Edmund Davie Fulton: I can only say that there is a complete and deliberate refusal to understand the ordinary meaning of words.


Paul Joseph James Martin: My hon. friend
says "deliberate". Look at the words in subsection 2:
If, pursuant to subsection 1, the court finds that the accused was not in possession of a controlled drug, he shall be acquitted-
Does that support what my hon. friend has said?


Edmund Davie Fulton: Most certainly it does because how on earth does the hon. member suppose the court will find these things unless someone proves them? The subsection does not interfere with the ordinary principles of criminal justice which say that the crown shall prove its allegations. The crown is alleging possession; therefore the crown must prove possession. If the crown does not prove possession, the court cannot find possession because up to this point there is nothing for the accused to answer. It is only if the court finds possession that the accused has to answer anything, and until there is something

Food and Drugs Act
for the accused to answer he does not have to go in the box. Therefore the only way the court can find possession is if the crown proves it.
I am sorry, Mr. Chairman, but if my hon. friend will not accept that simple point then there is probably not much use in our continuing this discussion. I can only assure him with the sincerity at my command that every lawyer he might care to consult on this matter who would consider it carefully would agree that what I have stated is correct, that the crown must prove possession before there is anything for the accused to answer. It is only then that the onus shifts to the accused and then, in accordance with proper principles of criminal justice, it is up to the accused to satisfy the court whether or not his possession was lawful or was for an innocent purpose.
It is, as I have said, an accepted practice or principle not in violation of the bill of rights that those facts which are peculiarly and exclusively within the knowledge of the accused and upon which he relies to establish his defence must be proven by the accused because, of course, it would be impossible for the crown to prove how the accused came into possession or what his state of mind was or for what purpose he acquired the drugs. That onus is on the accused to satisfy the court that his possession was lawful or was for an innocent purpose.
I suppose-in fact, I know-that we could go on and on discussing this subject but I imagine my hon. friend has now had a chance to study the case of Regina v. Guertin and the authoritative statement of the chief justice of Ontario that a section of the Criminal Code, parallel in its import and almost identical in its provisions with the section now under discussion, was not in contravention of the bill of rights. I assure the hon. member for Essex East, the hon. member for Maison-neuve-Rosemont and this committee that when we drafted the bill we did so with the greatest care because we recognized that these situations where we are trying to deal with the possession of harmful and deleterious substances do pose special problems and that one must be very careful not to go so far in one's desire to establish effective measures of control as to transgress the bill of rights. It was with that caution in our minds that we drafted this provision and it is for the reasons I have attempted to indicate to the committee that we ourselves are satisfied there is no contravention.
One final word, Mr. Chairman, and it is this. I have maintained throughout, contrary to the urgings of some of my hon. friends opposite, that the courts will, of course, have the final determination of these matters. The

courts may not agree with me. It may be that a court or, indeed the highest court, would say that they find this not to be consistent with the bill of rights. If that should be the case, then of course I would accept the verdict of the court because I respect the court. The courts are the final arbiters, the final protectors of the rights and liberties of the subject. When we introduced the bill of rights, we were at pains to explain that the courts were the final protectors because they are the final interpreters of the law. If the court does not agree with me, then I shall admit that in giving a legal opinion or a legal interpretation of this section, I was wrong. Up to this moment, and at this moment, on the basis of that clear decision of Chief Justice Porter and the other two judges of the Ontario court of appeal, reinforcing the research, the study and the consideration that we have given to it, I have no hesitation in saying that there is no contravention of the bill of rights in section 33 of the proposed Food and Drugs Act.


John Andrew W. Drysdale: 
Paul Joseph James Martin: I do not propose to repeat my arguments, except to say that the Minister of Justice has sent me over a copy of the judgment which I have read. I would simply point out that this case undoubtedly goes a long way in support of the contention the minister has advanced. We are not advised yet as to whether or not an appeal is being lodged from the judgment of Porter, C.J.A. In any event, while this case does go a long way it is distinguishable from the section under discussion because of the wording, as I have said a number of times, of subsection 1.
I am sure that counsel arguing for the accused, confronted with this case, would point out that the language of section 33, in seeing that there is an issue tried on the question of possession, differentiates that case from this one. I cannot, however, say any more to persuade the minister. This is my honest view. A number of us here have been looking at this case, and that is our considered opinion of the difference between the Guertin case and a hypothetical case that might arise under section 33.
Finally, the minister has said that he has given his best judgment and care to the draftsmanship of this section. No one has suggested otherwise, but that does not preclude an hon. member of this house from saying that the section, as drafted, could be regarded by some hon. members as being contrary to the bill of rights. The minister has said he is going to leave to the courts the decision as to whether or not an argument of this kind is valid. Undoubtedly, the courts are going to be making decisions that will bring about many refinements in existing statutes and existing cases. The point is that we are the parliament of Canada. We are now in the process of legislating and it is our duty, in so far as we humanly can, to provide formulae to meet objections we have in mind and take steps to make corrections at this stage when enactments are in the process of being created.


Ernest John Campbell: I listened very carefully to the legal dissertation of the hon. member for Essex East. I hesitate to rise in the presence of such eminent counsel. Although I listened very carefully, he did not explain his inconsistency, or at least I have not been able to hear any such explanation.
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The hon. member contended that the existence of the provisions in the Criminal Code and narcotics act which shifted the onus of proof to the accused, were irrelevant to this legislation because the Criminal Code and narcotics act antedated the bill of rights. Then, he went on and said that the bill of rights had no effect in changing the common law in this respect. There is an inconsistency in these two contentions which the hon. member promised to explain. I am still waiting for an explanation. If none is forthcoming or he is not capable of making an explanation, I am quite prepared to let the subject drop.


Mr. Baldwin:: May I make one brief comment to try to satisfy the hon. member for Essex East as to the state of the law. May I assure the committee through you, sir, that we have in this case to which the Minister of Justice has referred, an authoritative decision on a set of facts which are on all fours with the type of situation which would arise under section 33. Until the Supreme Court of Canada has ruled otherwise, the finding of the supreme court of Ontario in the case of Regina v. Guertin will be binding in the province of Ontario in any prosecution which may be launched in connection with sections 33 and 34 of this act. It would have an equally binding effect, may I assure the committee, in the other provinces and would almost certainly be accepted by those courts as representing the state of the law.


Jean-Paul Deschatelets: Mr. Chairman, I have listened to the minister's remarks with great interest. I should like to examine with him a difficult case that may arise under section 33. Let us suppose a man is charged with possession of goof balls for the purpose of trafficking. Now, under section 33 (1) the crown establishes possession of these goof balls. Suppose that the accused rests on this evidence. He does not testify. The minister will admit that at this moment there is absolutely nothing illegal before the court because possession, of itself, is not illegal. Section 33 (3) provides that the accused shall be convicted if he fails to establish those matters which are contained in paragraphs (a) and (b).
I should like to come to the point where we can see whether we are wrong or whether the minister is wrong. A man is charged with possession for the purpose of trafficking. The crown establishes by evidence the fact of possession. The accused, of course, is free to enter the witness box or rest on the evidence of the crown. There is nothing in our law which forces the accused to go into the witness box.
If the accused rests on the evidence of the crown, am I right in assuming that under

Food and Drugs Act
section 33 (3) he shall be convicted of trafficking although the only fact before the court is the possession, which in itself is not an offence? I should like the minister to comment on this question.


Edmund Davie Fulton: Mr. Chairman, I would say that on the bald facts as suggested by the hon. member, that there was a charge of possession for trafficking and the crown proved possession to the satisfaction of the court-that is, they proved possession beyond a reasonable doubt-and the accused rested there and gave no answer either himself or through other witnesses, he would be convicted.
However, I think the point my hon. friend overlooks is that although the accused is convicted of possession for trafficking, he is convicted because the statute says that when the crown proves possession it is a legal, logical and proper inference to make that he was in possession for the purpose of trafficking, unless he establishes that he was not in possession for the purpose of trafficking. In other words, the statute makes that inference.
I think it might perhaps be appropriate to refer my hon. friend to one or two United States authorities where this point has been discussed. The Corpus Juris deals with this point as follows:
A statute providing that proof of one fact shall constitute prima facie evidence of the existence of another fact essential to the guilt of the accused is not void for want of due process of law, where there is some natural and rational relation or connection between the fact proved and the ultimate fact presumed and the accused is afforded a fair and reasonable opportunity to repel the presumption and submit all the facts being on the issue to the jury ...
Here you have exactly that situation. You have the fact-possession. You have the statute drawing from the fact of possession the inference that the possession was for the purpose of trafficking; and you have here some natural and rational relation or connection between the fact proved, that is the possession, and the ultimate fact presumed, that is the purpose of trafficking.
You go on and you have also the situation where the accused is afforded, and he is expressly afforded it by this statute, a fair and reasonable opportunity to repel the presumption and to submit all the facts bearing on the issue to the jury. That is the authority of Corpus Juris, and there have been a number of such cases in the United States.
There is a decision of the United States supreme court in the case of Mobile Jackson and Kansas City Railroad Company v. J. A. Turnipseed. The judgment in that case contains the following passage:
The statute does not, therefore, deny the equal protection of the law, or otherwise fail in due process of law, because it creates a presumption of
[Mr. Deschatelets.l
liability, since its operation is only to supply an inference of liability in the absence of other evidence contradicting such inference.
The judgment continues:
That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.
A criminal case in point where another United States supreme court decision was made is the case of Yee Hem v. United States of America, where the judge referred expressly to the presumption of innocence and the rule against self-incrimination. He said as follows:
The legislative provisions here assailed satisfy these requirements in respect of due process. They have been upheld against similar attacks, without exception so far as we are advised, by the lower federal courts.
Then the judge said:
Every accused person, of course, enters upon his trial clothed with the presumption of innocence, But that presumption may be overcome, not only by direct proof, but, in many cases, when the facts standing alone are not enough, by the additional weight of a countervailing legislative presumption. If the effect of the legislative act is to give to the facts from which the presumption is drawn an artificial value to some extent, it is no more than happens in respect of a great variety of presumptions not resting upon statute.
He went on:
The point that the practical effect of the statute creating the presumption is to compel the accused person to be a witness against himself may be put aside with slight discussion. The statute compels nothing. It does no more than to make possession of the prohibited article prima facie evidence of guilt. It leaves the accused entirely free to testify or not, as he chooses. If the accused happens to be the only repository of the facts necessary to negative the presumption arising from his possession, that is a misfortune which the statute under review does not create, but which is inherent in the case. The same situation might present itself if there were no statutory presumption, and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances, and not from any form of compulsion forbidden by the constitution.
I put these additional authorities from the United States on the record, Mr. Chairman, not for a moment suggesting that United States authorities are binding in Canada. I have frequently made it clear in the past that they are not. I simply put them on record because they are illustrative of the process of thought of eminent jurists who have held that provisions similar to the one now before us do not constitute an abuse of due process,

nor do they run contrary to the principle of the presumption of innocence until proven guilty.
I suggest that these United States authorities are of illustrative value only, but when they are added to an authority of binding value such as a decision of the Ontario appeal court, I hope that temporarily, at any rate, the concern and the doubts of my hon. friends will be set at rest.


Leon David Crestohl: Mr. Chairman, the minister is no doubt correct when he speaks about possession. Under certain conditions possession creates a presumption under the provisions of the Criminal Code. I refer to recent possession, possession of burglary tools, the possession of narcotics or the possession of explosives, where there is nothing else said as to the type of possession. Simple possession might create a presumption in those circumstances.
However, in this bill there is a qualification of the type of possession which creates the offence. Before we began discussing section 33 I bring to the minister's attention the fact that section 32 does qualify the type of possession which creates an offence under this bill.
Section 32 (2) says:
No person shall have in his possession any controlled drug for the purpose of trafficking.
So we have in this section a qualification of the type of possession which creates an offence. If we then turn to section 33 which deals with the possession, surely the minister does not think he can, under that section, sheer away from the quality of the type of possession set up in the preceding section. You cannot eliminate the type of possession you define elsewhere. You cannot read section 33 as defining possession without considering the definition created in section 32. You have established that it must be for trafficking, and when a complaint is lodged it cannot be lodged in respect of anything else. If you can prove the man was in possession for the purpose of trafficking he must explain the kind of trafficking. The moment you say nothing and remain mute with regard to the quality of possession and do not show that the accused was found in possession for trafficking, I imagine a competent defence lawyer would simply say: you have not proven the principal ingredient of the offence, namely that the accused was in possession for the purpose of trafficking.
I submit it would not stand up if the minister were to contend that an accused person was found in mere possession. You cannot say, under section 33, that mere possession means anything unless you attach to it the quality of the type of possession created
Food and Drugs Act
in the same statute in the preceding section. Once you have established the quality of the type of possession and proved that the accused has placed upon him the obligation to get into the box and defend himself or explain the circumstances of possession. But until such time as that is proven, no valid case exists. Until the crown has proved possession for the purpose of trafficking, I submit there is no burden of proof shifted to the accused. To say that mere possession of a controlled drug applies in the same way as it does with respect to a section in the Criminal Code is, in my view, altogether wrong. It is my considered opinion that section 33 when it speaks of possession means possession for the purpose of trafficking and not just simple possession.


John Andrew W. Drysdale: Would the hon. member permit a question? He says that under section 31 (b) possession is defined as possession within the terms of the Criminal Code. In the Criminal Code it says:
For the purposes of this act,
(a)	a person has anything in possession when he has it in his personal possession or knowingly
(i)	has it in the actual possession or custody of another person, or
(ii)	has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b)	where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Does the hon. member not feel that this particular definition shifts the statutory onus on to the accused to prove a prima facie case that he was not in possession for the purpose of trafficking?


Leon David Crestohl: I shall be glad to answer that question. Of course, the definition of possession here is perfect but that applies only to the case of a definition which is not otherwise qualified by a statute. In this bill we have the word "possession" qualified and given a meaning according to all the circumstances. It does not fall within the general definition of "possession" which we have here in section 32. I shall read it once more for the benefit of the hon. member:
(1)	No person shall traffic In a controlled drug or any substance represented or held out by him to be a controlled drug.
(2)	No person shall have in his possession any controlled drug for the purpose of trafficking.
We have given meaning, here, to the type of possession intended.
(Translation):


Paul Raymond Martineau: I should like to say just a few words to refute the argument which the hon. member for Cartier has submitted and which the hon. member for Maisonneuve-Rosemont mentioned previously.

Food and Drugs Act
The hon. member claims that there is nothing in common between section 33 of the bill which we are considering now and the provisions of the Criminal Code under which the onus of proof rests with the accused after the crown has proved an essential fact like possession. He said that under this section, the crown merely has to prove possession, without regard to the type of possession, and that the accused has placed upon him then the obligation to explain the circumstances of possession.
There are several sections of the Criminal Code where that principle applies but I will read only the following, which is section 80:
Every one who without lawful excuse, the proof of which lies upon him,
(a) makes or has in his possession... is guilty of an indictable offence and is liable to imprisonment for five years.
Now, possession in this case is qualified in that it must be without lawful excuse.
On the other hand, section 32 provides that the controlled drug in the possession of the accused must be for the purpose of trafficking; that is how possession is qualified.
In that case qualified possession must be without lawful excuse and for the purposes of trafficking.
Section 80 states that it is the accused who must prove lawful excuse. Here is what it says:
Every one who without lawful excuse, the proof of which lies upon him-
Therefore, if the accused takes the attitude that he has nothing to answer and if the crown proves possession, the court is fully justified to infer that such possession is "without lawful excuse" and, therefore, the accused may be found guilty.
Under this bill, if the accused does not submit any plea after the crown has proved possession, the crown can infer that the accused is guilty.
Therefore, there is a striking analogy between the two provisions, and in either case, the principle remains that the onus always rests with the crown to prove the accused guilty beyond any doubt; but at a certain stage of the procedure, the onus may be transferred from the crown to the accused, and even when the accused has given some proof of legal possession or has proved that he had no intention of trafficking, there again the crown may, by way of rebuttal, prove that the facts the accused attempted to establish are unfounded.
It is precisely on that point that the Ontario court of appeal gave a decision recently in

the case mentioned by the Minister of Justice: Regina v. Guertin.
Another point I should like to make in reply to the suggestion of the hon. member for Cartier, is that the accused does not necessarily have to appear in the witness box. He is free to do so if he wishes to prove his innocence or to establish that the possession of drug was not illegal. But he has many other ways of proving this and, therefore, there is no violation of the Canadian Bill of Rights.


Jean-Paul Deschatelets: Would the hon. member allow me a question?


Paul Raymond Martineau: Yes.


Jean-Paul Deschatelets: Suppose a person is
charged with trafficking in controlled drugs- in this case goof balls-and the crown establishes possession under section 33, but the accused decides not to move and just to adopt a waiting attitude. Would the hon. member, who has been a crown attorney, kindly tell me whether in such a case he thinks the accused should be found guilty under section 33 (3)?


Paul Raymond Martineau: Mr. Chairman, I would not want to deal with this at great length. The accused is then in the same position as one charged under section 80 when the crown has proved possession of explosives.


Jean-Paul Deschatelets: Let me add only a word. Would the hon. member for Pontiac, who has acted as a crown attorney, be satisfied if one of his clients, having been brought to court under a charge of goof ball trafficking, decided not to put up any defence, and if the judge, after the crown had proved possession, found him guilty under section 33(3) of trafficking in goof balls when in fact only possession of goof balls would have been established and when possession is not an offence under the act?
Would the hon. member tell me how he can reconcile this nonsense which is something totally new in our legislation?
The minister referred a moment ago to court decisions. Never has a law with such a nonsensical provision been passed. I have never seen any, nor have I ever heard of such a thing.


Paul Raymond Martineau: It is because you do not understand.
(Text):


Edmund Davie Fulton: Mr. Chairman, perhaps I could be allowed to reply to the hon. gentleman. He has made a fundamental error in his

judgment regarding what an accused would be convicted of. He said a moment ago that if the crown proved possession, and the accused person gave no evidence, nor took the box himself to give evidence on his own behalf, the judge would have to convict the accused of trafficking.


Jean-Paul Deschatelets: Yes, of trafficking.


Edmund Davie Fulton: That is where my hon. friend is in error.


Jean-Paul Deschatelets: That is the charge.


Edmund Davie Fulton: If my hon. friend will read the bill he will find that the charge is possession for the purpose of trafficking. Therefore, an accused will not be convicted of trafficking, but will be convicted of having possession for the purpose of trafficking, which is very different indeed from being convicted of having trafficked or of trafficking.


Jean-Paul Deschatelets: Would the hon. minister answer a question at this point? How will an accused be found guilty of an offence which has not been proven?


Edmund Davie Fulton: The offence must be proven by evidence presented in conjunction with the inference of fact which the statute creates. The statute creates an inference of fact. That is, once it has been proven that an accused was in possession of goof balls, the statute creates the inference that the possession was for the purpose of trafficking, and the onus shifts to the accused to establish that the possession was lawful or was not for that purpose.


Leon David Crestohl: Would the minister say that an accused would be found guilty because the accused remained silent?


Jean-Paul Deschatelets: That is the whole point.


Edmund Davie Fulton: The accused is always found guilty if he remains silent after the crown has proven a prima facie case.


Leon David Crestohl: Does the minister contend that when the crown has proven simple possession, without establishing that the possession was for the purpose of trafficking, that would be a prima facie case?


Edmund Davie Fulton: Oh, most certainly, in the light of the inference which the statute creates, as other statutes in many cases create inferences. For example, section 80 of the Criminal Code creates the inference that possession is for an unlawful purpose. In that case the crown does not have to prove the unlawful purpose, but merely the possession. Once that has been established the section provides that the onus is upon the accused to prove lawful possession. The supreme court of Ontario has held that
Food and Drugs Act
there is no contravention of the bill of rights in this regard. This statute creates the inference that an accused, who has been found to be in possession, is in possession for the purpose of trafficking, and the onus then falls upon him to prove otherwise.


Paul Joseph James Martin: Mr. Chairman, the minister has sought vainly to impress us with the validity of his position. We in turn have sought vainly to give him the facts as to the interpretation of this bill, as we see them in the light of this section. I suggest to the minister that we have now reached the point where we cannot convince one another. The fact is that throughout this discussion there has existed an honest difference of opinion. However, that difference of opinion, I suggest, is strongly indicative of that which will happen in the case of any statute which we believe to have been formulated ambiguously without the kind of precision which should obtain, having in mind the objective.
The minister has rejected our interpretation, and has refused to accept the suggestion of the hon. member for Maisonneuve-Rose-mont, that this matter be referred to the Supreme Court of Canada for an opinion which could be readily obtained before the end of June, thereby clearly establishing the situation, giving to this act the effect of the purpose intended. We cannot do any more than we have done. We believe that our position is sound. We believe the Guertin case, while similar in one particular, is distinguishable in another.
For these reasons we believe that section 2 of the bill of rights will be violated by this proposed act, in that the presumption of innocence principle has not been recognized. We believe that the Minister of Justice in consequence has failed to act in accordance with section 3 of the bill of rights, which causes him to advise this house in respect of any draft or bill which is in violation of the bill of rights, or which could be regarded as a violation or contravention of that statute. We have had a long argument this afternoon, during which we have presented our opinions. We regret that we are unable to convince the Minister of Justice. Nevertheless, we are certain that this legislation will be contested in the courts by defence counsel in the way that we have indicated.


Edmund Davie Fulton: I am quite prepared to admit that the legislation will be tested in the courts. I am also prepared to admit that there is a difference of opinion here. There was a difference of opinioii between counsel in the Guertin case. That difference of opinion was so strong that counsel felt it was worth while to appeal the decision. My point is, that

Food and Drugs Act
counsel on one side was satisfied there was no violation of the bill of rights, and that point of view was upheld in the courts. The situation is similar here. We are satisfied that the hon. gentlemen have argued their case with just as much vehemence as persuasive force, but they have not convinced me that they are right. If the courts agree with my hon. friend, then I shall be the first to admit that he was right.


Gabriel Roberge: Will the minister permit a question at this time? He spoke about the Guertin case. Is this the case where explosives were involved?


Edmund Davie Fulton: Yes.


Gabriel Roberge: Under section 80 of the code?


Edmund Davie Fulton: Yes.


John Andrew W. Drysdale: Mr. Chairman, the thing that has concerned me particularly is the reasoning of the hon. member for Essex East. On the one hand, he says that the hon. member for Outremont-St. Jean has done a tremendous service to the nation in publicizing the goof ball problem. The hon. member for Ou-tremont-St. Jean has in effect indicated the tremendous danger of those goof balls and the fact that they can be put into soft drinks and alcohol. In fact, they are almost like handling dynamite. When by this legislation the crown has proved beyond a reasonable doubt that somebody has in his possession what is clearly in effect dynamite ready to blow up, then it seems reasonable that the person who has it in his possession is the person who would himself know why he has it in his possession and should be called on to give a reasonable explanation why he has it in his possession. Under the legislation he does not have to prove beyond a reasonable doubt why he has this dynamite. As I see it, he merely has to give a reasonable explanation. He can give any explanation, such as that he obtained it from a druggist, or by prescription, or any other explanation which is inconsistent with trafficking.
But the hon. member for Essex East says, on the one hand, I am trying to back up my hon. friend from Outremont-St. Jean but on the other hand I do not understand what is going on. He wants to set loose this dynamite-


Jean-Paul Deschatelets: We want a good bill.


John Andrew W. Drysdale: -which is doing damage to a great number of juveniles whom the federal government has sought to protect by bringing in this legislation. The persons that we are trying to protect are those who, if they have goof balls in their possession, are quite competent to give a very reasonable and

innocent explanation of their possession. I think the legislation is quite clear. The legislation when enacted will enact what we have had in legislation in many years past and what they have in legislation in the United Kingdom as well.
I am shocked and amazed at my hon. friend from Essex East taking this very negative view of this excellent legislation which his hon. friend from Outremont-St. Jean has backed up. I just cannot understand it.


Paul Joseph James Martin: I had not intended to say any more on this bill, but the remarks of my hon. friend cause me to say this. We believe this bill is needed. The other night when this matter was discussed we indicated our support of the principle of the bill and we also indicated we believed that it was as a result of the efforts of the hon. member for Outremont-St. Jean that the government had been persuaded at long last to bring forward this legislation. Are we to take the position, which the hon. gentleman seeks to place us in, that because we support this bill and because at the same time we find that in our judgment one of its provisions violates the bill of rights we are not to point it out? That is the argument of my hon. friend. That is what my hon. friend is now indicating. By his remarks he wants to leave the impression that although we have praised the hon. member for Outremont-St. Jean, although we have praised this bill, we are now in effect taking a position which suggests that this bill should not be passed in this form and consequently the corrective measures envisaged should not be pursued.
We want this bill to operate; we want it to operate in a most effective way. It is not characteristic of the hon. gentleman, for whom I have the highest esteem, to say that because we point out what we believe to be a violation of one section of the bill of rights, on that account we are to be justifiably accused of not being in favour of so positive a measure as this. That was not worthy of the hon. gentleman. There is no consistency whatsoever.
I should have thought that the hon. member who was so enthused over the Prime Minister's championing of the bill of rights would be the first to join with us in pointing out to the Minister of Justice that he as one of the precursors of this bill of rights has now been proven to be one of its most serious violators. That is what I thought the hon. gentleman would do. Instead of that he seeks to suggest that we are not in favour of this constructive measure.


John Andrew W. Drysdale: I can come to no other conclusion.

Food and Drugs Act


Paul Joseph James Martin: Everyone in this chamber is in favour of this bill and we can thank the hon. member for Outremont-St. Jean for it.


Gabriel Roberge: A little while ago I asked the minister a question with relation to the Guertin case, which he cited. I wish to refer to the hon. member for Pontiac-Temiscam-ingue who also spoke on section 80 of the Criminal Code. I see a difference between the clause we are considering and section 80 of the Criminal Code. Let me read section 80:
Every one who without lawful excuse, the proof of which lies upon him,
(b) has in his possession a bomb, grenade or other explosive weapon,
is guilty of an indictable offence and is liable-
And so forth.
If I were wording the section I would say:
Every one who has in his possession a bomb, grenade, or other explosive weapon is guilty of an indictable offence except that he may have a lawful excuse, the proof of which lies upon him.
The first principle of section 80 of the Criminal Code is that possession of an explosive is an unlawful act. Then, when the crown has proven that, the accused may bring forward an excuse. The Opium and Narcotic Drug Act, chapter 201 of the statutes of 1952, section 4, provides that the mere possession is an offence. In the bill that we shall be discussing later, namely Bill No. C-100, mere possession is an offence. In this instance mere possession is not an offence and, therefore, it is my view that the crown should be obliged to discharge the complete onus of proving that possession is for the purpose of trafficking, and not just mere possession.
(Translation):
Mr. Chairman, I have a concrete example to give. The Minister of National Health and Welfare (Mr. Monteith) told us the other day that he could not in the circumstances, and we understand him, make an offence of a simple possession because each of us has at home some of those barbiturates when they are needed.
Well, according to clause 33 of the bill before us, related to clause 36, any law officer may come to my house, take away the barbiturates which I may have in my medicine cabinet and bring me to court for possession and for traffic of barbiturates. Then, I have to prove that lawfully bought those barbiturates at a drug store and that I am entitled to have them.
I therefore submit that clause 33 goes really too far and I again urge the minister to consider our views.
(Text):


Edmund Davie Fulton: Mr. Chairman, I do not want to prolong this discussion. I would simply refer my hon. friend from Megantic to the fact that if he will read section 80 of the Criminal Code, which was the section in question in the Guertin case, he will surely agree with me that it is not the simple fact of possession which is the offence; it is possession without lawful excuse, and the onus of proving lawful excuse is, by the section, placed explicitly on the accused.
Here the charge is possession for the purpose of trafficking. The crown has to prove possession, then the onus is on the accused to prove the possession was lawful or was not for the purpose of trafficking. The situation seems to me very closely paralleled. May I just remind my hon. friend that all the accused has to prove to rebut the presumption which proof of possession has raised is either that he acquired the material from a druggist through a prescription, that he got it through a prescription, or that he does not have it for the purpose of trafficking. As I say, he can rebut the presumption by proving either that his possession was innocent or that it was not for an unlawful purpose. I cannot go further than that. The two cases do seem to me to be very much on all fours.


Gabriel Roberge: Would the minister permit a further question? Does he not agree that under section 80 possession is presumed first to be unlawful and then it is up to the accused to prove that it was lawful for him to have the dynamite or explosive? In this case it may be lawful to have goof balls in one's possession.


Edmund Davie Fulton: I am afraid I cannot agree with that. Possession under section 80 is not presumed to be unlawful because the section says "Every one who without lawful excuse". Therefore it is recognized that possession may be lawful. It is recognized by section 80 that possession may be lawful but the onus is on the accused to prove a lawful excuse. So here by section 33 it is recognized that possession may be for an innocent purpose but it is up to the accused to prove either that possession was innocent or that it was for an innocent purpose. I could not envisage anything very much more closely parallel than these two sections.


Murdo William Martin: I should like to carry that point further. I have listened very carefully tonight to lawyers on both sides of the house and I must frankly admit that for most of the time they were away over my head. However, as a layman I should like to pursue this matter for a moment. The minister said that it is not presumed that people are in illegal possession of these substances but

Food and Drugs Act
in the same breath he said that all the crown has to do is to prove that they have possession and once the crown has proved that the onus is on the accused to prove that he does not have possession illegally. That is the crux of the whole thing. If the crown proves you have possession then, as I have listened to the discussion and understood it, you have possession illegally unless you can prove otherwise. I think that is the whole point.


Edmund Davie Fulton: You have it for an unlawful purpose unless you prove otherwise. That is quite true. Just as in section 80, unless you prove you have it for a lawful purpose you are presumed to have it for an unlawful purpose.


Murdo William Martin: I am not familiar with the sections of the bill of rights, but is this not contrary to British justice under which you are innocent until you are proven guilty? In this instance you are guilty unless you can prove yourself innocent.


Edmund Davie Fulton: I have endeavoured all evening to explain and to establish, and I think with success


Paul Joseph James Martin: Not at all.


Edmund Davie Fulton: -that it is not contrary to the principles of criminal justice which for years have drawn a distinction between presumption of innocence and onus of proof. The crown always has the onus of proof and it is not until the crown has proven a prima facie case that the onus of replying passes to the accused. Proof of the case may be by inference from facts which the crown establishes and these inferences may be drawn either by the court itself from the circumstances or because a statute establishes that certain inferences can be drawn from these facts. That is what is done here.
If my hon. friend will look at the section, he will see that the crown has to prove possession. The onus then shifts to the accused and the accused can establish innocent possession. If he makes out a prima facie case in that regard, the onus shifts back to the crown to rebut it. There is no shifting at any time of the principle that the accused is innocent until proven guilty. It is a matter of the burden of proof.


Murdo William Martin: If he does not prove innocent possession, he is automatically guilty.


Edmund Davie Fulton: Once the crown has proven the facts upon which it relies, yes.


Jacques Flynn: Shall clause 33 carry?


Some hon. Members:: On division.
Clause 1, section 33, agreed to.
Clause 1, section 34, agreed to.
Clause 1 as amended agreed to.


[Stage Direction]
Title agreed to.
Bill reported.
Mr. Speaker:: When shall the report be
received? Now?


Jay Waldo Monteith: May I ask a question? If I move third reading at this time, will I have the opportunity of replying later if there is a debate?


Mr. Speaker:: We have not come to third reading yet. The question may not be relevant, but if we do come to third reading I shall answer the question. When shall the said bill be read the third time?


Some hon. Members:: Next sitting of the house.


Paul Joseph James Martin: We have more arguments.


Mr. Speaker;: Next sitting of the house.



PROVISION FOR CONTROL OF DISTRIBUTION AND SALE OF NARCOTICS

[Stage Direction]
On the order:
Second reading of Bill C-100, an act to provide for the control of narcotic drugs.-The Minister of National Health and Welfare.
Mr. Speaker:: Shall I call it 10.30?


Some hon. Members:: Agreed.



BUSINESS OF THE HOUSE

Lionel Chevrier: May I ask the house leader if we will be dealing with legislation tomorrow and in what order?


Mr. Churchill:: We will deal with legislation tomorrow and third readings will come first on the program. Then we will take second reading of the bill to amend the Judges Act and the Exchequer Court Act. The third item will be Bill No. C-100, to provide for the control of narcotic drugs. The fourth item will be the resolution in the name of the Minister of Trade and Commerce dealing with the Export Credits Insurance Act. Item No. 5 will be the resolution in the name of the Minister of Agriculture dealing with the Farm Credit Act. Item No. 6 will be the resolution in the name of the Minister of Finance with respect to amending the Financial Administration Act. Item No. 7 will be Bill No. C-98, an act to amend the Canada Shipping Act.
At 10.30 p.m. the house adjourned, without question put, pursuant to special order.