1967-12-19

[Stage Direction]
First report of standing committee on health and welfare-Mr. Harley.
Third report of standing committee on justice and legal affairs-Mr. Cameron (High Park).

[Stage Direction]
Mr. H. E. Gray (Essex West) presented the seventh report of the standing committee on finance, trade and economic affairs and moved that the report be concurred in.
Motion agreed to.
[Note:	Text of the foregoing reports
appears in today's Votes and Proceedings.']

[Stage Direction]
_ Hon. Allan J. MacEachen (Minister of National Health and Welfare) moved that the first report of the special committee on procedure of the house, presented to the house on Monday, December 11, be concurred in. Motion agred to.

Hon. Allan J. MacEachen (Minister of National Health and Welfare) moved: that the second report of the special committee on procedure of the house, presented to the house on Monday, December 11, be concurred in.
[DOT] (2:40 p.m.)


Mr. Gilles Gregoire (Lapointe):: Mr. Speaker, in its second report, the special house committee on procedure recommends that its members be authorized to visit the United Kingdom in order to study the procedure followed over there.
I am all for improving the present procedure of the House of Commons in Ottawa.
However, I ask the minister responsible for that committee to tell me one thing. Is it merely a question of making a trip, or will the government make last minute changes in the membership of the committee, so that, finally, those chosen for the trip will not be the regular committee members, or will those who sat on that committee since the beginning of the session be going?
If it is simply a question of authorizing a trip and having the government taking this opportunity to change the membership and reward those who always accept the decision of the caucus, then, I do not agree and I shall not accept this report.
If it is a question of sending the true members of the committee without changing the membership in any way, and without replacing by other members those who were sitting on the committee two or three weeks or a couple of months ago, in short if it is a question of sending those who have always attended the sittings, then, Mr. Speaker, I have no objection.
That is why I would ask the minister if there will be any changes on the membership of the committee? Will others rather than the members regularly sitting on the committee be sent? Will some be sent simply as a reward or will the original members of the committee really go to work seriously?
That is what I would like to ask the minister and I believe that he should tell us if he intends to make changes in the membership just before the departure for the United Kingdom, so that this will be a reward for those who have served the party well?
I should like to have an answer from the minister on this.


Mr. Speaker:: I should bring to the attention of hon. members that by making his
motion the minister has already spoken. It is only by leave of the house that he can reply to the question asked by the hon. member. Is this agreed?


Some hon. Members:: Agreed.


Allan Joseph MacEachen: Mr. Speaker, we do have
a hard working procedure committee, and it is the intention that the members of the
December 19, 1967

Inquiries of the Ministry committee will continue their work by making this visit to the parliament of the United Kingdom. I cannot give the hon. member any assurance that as chairman of the committee I might not have to cancel my own trip.


Mr. Knowles:: Explain.


Allan Joseph MacEachen: However, other hon.
members will go.


[Stage Direction]
Motion agreed to.

Allan Joseph MacEachen: that the third report of the special committee on procedure of the house, presented to the house on Monday, December 11, be concurred in.


[Stage Direction]
Motion agreed to.

[Stage Direction]
On the orders of the day:
Hon. Robert L. Stanfield (Leader of the Opposition):: Mr. Speaker, I would like to direct a question to the Minister of Trade and Commerce as the senior member of the government in the house at the moment, and ask whether it is the intention of the government to send anybody to Australia to represent Canada at the funeral of the late Prime Minister.


Hon. Robert Winters (Minister of Trade and Commerce):: Mr. Speaker, I thank the Leader of the Opposition. It is the intention of the government to send the Minister of Indian Affairs and Northern Development to represent the government of Canada on that sad occasion.



THE CANADIAN ECONOMY


[Stage Direction]
On the orders of the day:
Mr. David Lewis (York South):: Mr. Speaker, I should like to address a question to the Minister of Finance. In view of the report of the Dominion Bureau of Statistics that nonagricultural production in Canada rose by only 2.8 per cent in real terms in the first nine months of this year as compared with an average annual increase of 4.8 per cent in


the preceding 20 years, is the minister prepared to reconsider the fiscal policies he has
recently introduced which threaten to still further slow down the economy?


Hon. Milchell Sharp (Minister of Finance):: No, Mr. Speaker. The present developments in the economy are pretty much as I had predicted them in my budget addresses both in June and recently.



SHIPBUILDING


[Stage Direction]
On the orders of the day:
Mr. Roland Godin (Porfneuf):: Mr. Speaker,
I intended to put a question to the Minister of Transport but, in view of his absence, I shall address it to the Minister of Trade and Commerce. Have members of the Canadian shipbuilding industry recently advised the government of the difficulties they are experiencing, and can the government tell us if they intend to levy a tax on ships built abroad and sold in Canada?


Robert Henry Winters: I do not think so, Mr. Speaker, but I will take the question as notice.
iTranslation]


Roland Godin: Mr. Speaker, may I ask a supplementary question? Have Canadian maritime companies complained about the unfair competition of foreign ships in our inland waters, and what steps does the government intend to take to rectify this situation?


Robert Henry Winters: Naturally there have been some complaints, Mr. Speaker, but anything that is done will be a matter of government policy to be announced in the usual way.


Hon. Theogene Ricard (Saini-Hyacinihe-Bagot):: Mr. Speaker, may I put a supplementary question to the Minister of Manpower and Immigration?
Have special steps been taken in order to provide work for the 800 employees of the Davie Shipbuilding Company in Levis, who have recently been laid off because of the austerity program implemented by the Minister of Finance?
December 19, 1967


Hon. Jean Marchand (Minister of Manpower and Immigration):: Mr. Speaker, my department has a number of manpower programs: mobility programs, retraining programs, employment programs, etc. Shipyard workers may benefit from all those programs just like any other workers.



CANADA LABOUR CODE


[Stage Direction]
On the orders of the day:
Mr. Howard Johnston (Okanagan-Revel-sioke):: Mr. Speaker, in the absence of the Minister of Labour I should like to address my question to his parliamentary secretary, to whom I have sent notice. In view of the continuing lay-offs of employees by Canada's railways, could the parliamentary secretary report on the progress made in the discussions with unions and management regarding termination of the existing deferments respecting hours of work on Canadian railways?


Mr. B. S. Mackasey (Parliamentary Secretary to Minister of Labour):: Mr. Speaker, I thank the hon. gentleman for his usual courtesy in notifying me of this question ahead of time. I have found that negotiations going on at the present moment between management and labour are proceeding satisfactorily, and the conclusion of the department is that some agreement could possibly be reached within the next few weeks.


Howard Earl Johnston: I have a supplementary
question, Mr. Speaker. In view of the answer given by the parliamentary secretary, if the railways continue their present policy of laying off long term employees with little notice and no severance pay or alternate employment, will the government consider issuing an order to end the deferments, or state a date on which they will be ended?


Mr. Speaker:: Order, please. The hon. member's question is hypothetical.


EXTERNAL AFFAIRS
[Stage Direction]
On the orders of the day:
Hon. E. D. Fulion (Kamloops):: Mr. Speaker, in the absence of both the Secretary of State for External Affairs and the right hon. Prime Minister perhaps I may direct my question either to the Acting Prime Minister
DEBATES	5587
Inquiries of the Ministry or to the Minister of Energy, Mines and Resources. I should like to know whether the government is now in a position to reply to the question I asked yesterday, as to whether there is in the cultural agreement between Quebec and France a provision regarding a joint enterprise in the development of uranium in that province?


Hon. Jean-Luc Pepin (Minisier of Energy, Mines and Resources):: Mr. Speaker, I was told the Secretary of State for External Affairs would answer this question today. Since he is not here I presume he will do so tomorrow.

Meanwhile, may I give some information regarding the research done in Quebec to discover uranium.
Under the regulations erf the Atomic Energy Control Board any individual or corporation which discovers an ore deposit containing more than .05 per cent of uranium must advise the board. If such individual or corporation wishes to proceed with the exploration of that deposit, it must obtain from the board a licence to that effect. One of the conditions of issuance of this licence is the filing of regular reports to the board.
In 1967, 17 companies were granted such exploration licences in Quebec territory, mainly on the north shore and in the Mistassini area and, up to now-according to my officials' statement which was also confirmed yesterday by the deputy minister of the Quebec department concerned-none of those explorations has shown any deposit economically worthwhile, in view of the present conditions of the demand with regard to uranium and the price at which it is sold at the present time in the world. Of course, this could change.


Edmund Davie Fulton: May I ask a supplementary question, Mr. Speaker. In respect of the companies that have these licences to which the minister just referred, are any of them or all of them consortiums in which the government of France is participating?


Jean-Luc Pepin: It is very difficult to know. I have the 17 names, but as hon. members realize it is sometimes quite difficult in this industry to ascertain who is behind a name. The information I have from my officials is that some French companies are in there. It would be difficult for me to establish exactly
December 19, 1967

Inquiries of the Ministry the relationship between those companies and the government of France. I might add, for the information of my colleagues, that at least a French company is also at work in other parts of Canada, which would seem to imply that the French are interested in uranium as such, in the whole of Canada.


Gilles Grégoire: Mr. Speaker, I should like to put a supplementary question to the Minister of Energy, Mines and Resources.
Would the minister tell us whether he has objections to the development by France of a uranium mine in Quebec and whether, in view of the fact that natural resources come under provincial jurisdiction, he, as a federal minister, has a say in this matter?


Jean-Luc Pepin: Mr. Speaker, I have already explained that. I have no objection to that, on the contrary, but the rules of the Atomic Energy Control Board must be complied with and I just pointed out that, in fact, these rules were being adhered to.


Gilles Grégoire: Mr. Speaker, may I ask another supplementary question?
In view of the fact that natural resources come under provincial jurisdiction, and should a conflict arise between the Atomic Energy Control Board and the provincial authorities about natural resources, can the minister tell us what jurisdiction would prevail?


Mr. Speaker:: That question is obviously hypothetical.


Mr. J. R. Keays (Gaspe):: I should like to direct my question to the Minister of Energy, Mines and Resources. I wonder if he can answer my question of yesterday concerning any information he may have as to visits by French officials to these uranium prospecting areas in Quebec. At the same time, Mr. Speaker, I believe the Minister of Industry was ready to give us some information in relation to the first question posed by the hon. member-


Mr. Speaker:: Order, please.
\_Later:]


James Russell Keays: I wonder if I could ask the Minister of Energy, Mines and Resources if he can reply to my question of yesterday.


Jean-Luc Pepin: Which one?


James Russell Keays: A supplementary question, Mr. Speaker. I asked the minister whether he had any information concerning any official visits by members of French delegations to probable uranium deposit areas in the province of Quebec.


Jean-Luc Pepin: No, Mr. Speaker, but I imagine that French citizens can travel in Quebec without getting my permission.


Hon. Michael Starr (Ontario):: My question is for the Minister of Energy, Mines and Resources. To disperse the confusion that seems to exist, could the minister tell me whether the mining of uranium comes under federal or provincial jurisdiction?


Mr. Speaker:: Order, please. This type of question certainly may not be asked at this time.


Gilles Grégoire: Mr. Speaker, may I ask a supplementary question?


Mr. Speaker:: Order. The question having been ruled out of order, the hon. member cannot ask a supplementary.


Hon. C. M. Drury (Minister of Industry):: As Acting Secretary of State for External Affairs I might advise the hon. member for Kamloops, in respect of the activities in Quebec in relation to uranium, that no formal agreement was concluded between France and Canada, or France and Quebec, as a result of the visit of the French minister of education, Mr. Peyrefitte to Quebec last September. The communique issued at the end of that meeting indicated that arrangements would be put into effect to promote co-operative studies and research on a variety of subjects including hydrology, electrical energy, nuclear energy, computer systems, electronics, Quebec northern development, forestry, fisheries and geophysics. There was no indication that any formal arrangements had been made with regard to uranium mining.


Gilles Grégoire: A supplementary question, Mr. Speaker.
I should like to ask the Minister of Energy, Mines and Resources or the Minister of Justice, as the case may be, if it is the gov-
December 19, 1967

ernment's intention to make a statement in the near future with respect to the authority that will have jurisdiction over Quebec's uranium. Will it be under provincial jurisdiction or under the authority of the Atomic Energy Control Board?


Mr. Speaker:: Order. The hon. member is only repeating a question which was asked a minute ago and which was ruled out of order.


Gilles Grégoire: Mr. Speaker, with your
leave I should like to ask a completely different question. Does the government intend to make a statement soon-


Mr. Speaker:: Order. If the hon. member feels his different question is urgent, he could give notice that he intends to discuss it on the adjournment motion.


Gilles Grégoire: Mr. Speaker, if I believe the matter is urgent and I give notice of it, then it is urgent, and the minister ought to reply to it.


Michael Starr: I have a question for the Minister of Energy, Mines and National Resources. Would the hon. gentleman tell us whether uranium mining comes under his jurisdiction?


Mr. Speaker:: Order. This is a type of question which an hon. member cannot ask. Questions cannot be asked when they call for an interpretation of the law or the distribution of ministerial responsibilities.


Michael Starr: On a point of order, if we are not able to ascertain what jurisdiction a minister has we are under a considerable handicap in directing our questions correctly. I think this point must be cleared up before we can ask any further questions on this subject.


Mr. Speaker:: There are quite a number of questions which have already been asked on the subject.


Michael Starr: And I am asking one more of the Minister of Energy, Mines and National Resources. Does uranium mining come under his jurisdiction?


Mr. Speaker:: Order. I have already suggested to the hon. member that the question cannot be asked at this time. If he thinks it can or should be asked, there is a rule of the house which says he can give notice and

Inquiries of the Ministry discuss the matter at the time of the adjournment this evening, and have the matter settled at that time.


Mr. Erik Nielsen (Yukon):: Can the minister advise us whether it is the intention of the government to alter the policy which brings uranium mining under his jurisdiction?


Some hon. Members:: Oh, oh.


Mr. Speaker:: This subject seems to be of great interest to a number of hon. members; it might be easier to get a reply from the minister. The question has been asked by a number of members now. Apparently the minister does not want to answer it.


Mr. Nugent:: May I ask the minister
whether he claims jurisdiction over uranium
mining?


Mr. Turner:: On a point of order, I wonder if I might refer Your Honour-


Mr. Speaker:: Order. I suggest to hon. gentlemen that there is really no point in discussing the point of order.


Michael Starr: I rise on a question of privilege. I intend to do so on behalf of the Minister of Energy, Mines and National Resources.


An hon. Member:: He can speak for
himself.


Michael Starr: He certainly wishes to clear up this situation so the facts may be known to all the people of Canada, including hon. members of this house. I understood he was ready to answer and tell us whether uranium mining comes under his jurisdiction.


Mr. Speaker:: As I said a moment ago, in view of the interest shown by so many hon. members the minister may answer if he wishes.


Jean-Luc Pepin: I do not wish to give a legal opinion. I will simply say that I am responsible to parliament for the atomic energy control board which, because of the security aspects, has the responsibility of implementing regulations in connection with the exploitation of uranium.


Michael Starr: Because uranium is of national interest.


Mr. Speaker:: Order, please. Could we go on to another subject? The hon. member for Ontario will recognize now that he was asking a question which called for an interpretation of statutes. It is clear that this type of question cannot be asked.
5590	COMMONS
Inquiries of the Ministry


James Russell Keays: May I ask the Acting Prime
Minister whether he knows of any French financial assistance being given to the province of Quebec in connection with education?


Mr. Speaker:: Order. The hon. member is repeating a question which has already been asked.



NATIONAL CAPITAL


[Stage Direction]
On the orders of the day:
Mr. Roger E. Regimbal (Argenteuil-Deux-Montagnes):: I should like to address my question to the Acting Prime Minister. On December 4 the Prime Minister announced the creation of a tripartite committee to make recommendations concerning a federal district for the national capital. My questions are the following. Have the nominations to that committee now been made by the parties involved? Has any action been undertaken by the committee as yet, or is any action being contemplated in the near future?


Mr. Speaker:: Order. The hon. member knows he can ask only one question, not a series of questions.


Roger E. Régimbal: Could we take them one at a time? Have all nominations to that committee been made by the parties involved?


Robert Henry Winters: I think I can answer all three questions, Mr. Speaker, by saying a great deal of work has been done in this connection. I prefer, however, if the hon. member does not mind, to take the questions as notice and leave it to the Prime Minister to reply.



FINANCE


[Stage Direction]
On the orders of the day:
Hon. Marcel Lambert (Edmonton West):: should like to address a question to the Minister of Finance. Yesterday, in reply to my question concerning the support of the United States dollar, the minister said the Canadian government had not been asked to join the gold pool. My question is, has Canada been asked to render any other assistance in support of the United States dollar as a medium of international exchange, or are we to stand idly by as apprehensive watchers?

DEBATES	December 19, 1967


Mitchell William Sharp: Mr. Speaker, I believe the United States government, which is the primary supporter of gold, is very happy with Canada's role at the present time.


Marcel Joseph Aimé Lambert: As a supplementary question, Mr. Speaker, may I ask the minister what precisely is Canada's role?


Mitchell William Sharp: Mr. Speaker, I believe the statements I have made are quite clear.


Marcel Joseph Aimé Lambert: In other words, nothing.



SEARCH AND RESCUE


[Stage Direction]
On the orders of the day:
Mr. J. R. Tucker (Trinity-Conception):: Mr. Speaker, I have a question for the Minister of Transport. On December 7 I asked him if any trace had been found of the missing aircraft which left St. John's, Newfoundland for St. Anthony on November 29. Would the minister please advise the house whether any trace has been found of the missing aircraft, and whether the search has been officially called off?


Hon. Paul Hellyer (Minister of Transport):: Mr. Speaker, the air force and the coast guard co-operated in a massive search for this aircraft. Unfortunately no trace of the aircraft, the pilot or the passengers has been found. I was advised yesterday that the search operation had been terminated.



HIGHWAY SAFETY


[Stage Direction]
On the orders of the day:
Mr. Barry Mather (New Westminster):: Mr. Speaker, I wish to direct a question to the Minister of Transport. It has to do with automobile safety. Having in mind the tire and rim safety regulations which I understand are coming into effect in the United States on December 31, can the minister say what is the situation with regard to tire safety in Canada?


Paul Theodore Hellyer: Mr. Speaker, the department is still in the process of organizing this branch. We are not yet in a position to establish definite standards, but I have asked the department to give priority to the establishment of tire safety standards in the development of the new program.
December 19, 1967	COMMONS DEBATES



REQUEST FOR ASSISTANCE TO EXPORTERS OF MARITIME PRODUCTS

[Stage Direction]
On the orders of the day:
Mr. Lloyd R. Crouse (Queens-Lunenburg):: Mr. Speaker, I wish to direct a question to the Minister of Trade and Commerce. Since approximately 25 per cent of the Nova Scotia apple crop is scheduled for export to Britain, have any steps been taken by the government to aid maritime apple, lumber and fish exporters who are looking for new trading agreements with British buyers that will enable them to hold on to their markets which have been weakened by the devaluation of sterling?


Robert Henry Winters: Mr. Speaker, there was an increase in the British apple quota some few weeks ago, and I think that was of considerable assistance to Canadian apple growers. We have been searching the markets of the world for outlets for our fish and lumber. Fortunately there has been some improvement there. However, devaluation has had an impact, and we will try to help compensate for that by searching for other markets.



WHEAT-INQUIRY AS TO INCREASED DELIVERY QUOTAS

[Stage Direction]
On the orders of the day:
Mr. Reynold Rapp (Humboldt-Melfori-Tis-dale):: Mr. Speaker, I would like to direct a question to the Minister of Trade and Commerce under whose jurisdiction the Canadian Wheat Board comes. Could the minister supply some information as to whether, by the end of the 1967 calendar year, the quotas for delivery of wheat will be increased, so the farmers would be in a better position to judge whether to deliver their grain before the end of 1967 or carry it over to 1968 for income tax purposes?


Robert Henry Winters: Mr. Speaker, I thank the hon. member for giving me notice of this question. I can tell him that within the past few days the wheat board increased the quota to four bushels for 232 stations and this should accelerate the movement of wheat off the farms. As of December 18 there were 33 stations on the one bushel delivery quota, 546 on the two bushel quota and 1,045 on the three bushel quota. The Canadian Wheat Board has asked for the co-operation of the
5591
Inquiries of the Ministry railways to give priority to those stations remaining on the lower quotas. The wheat board will authorize further quota increases as soon as sufficient space becomes available at individual delivery points.


Mr. S. J. Korchinski (Mackenzie):: 
Robert Henry Winters: Mr. Speaker, we are still working out the details, but as of now it applies to each individual contract.


Stanley James Korchinski: Yesterday, in reply to a question of mine, the minister indicated that the matter of whether there would be a government subsidy-


Mr. Speaker:: Order, please. Is the hon. member asking a supplementary question?


Stanley James Korchinski: Yes, a supplementary
question for clarification because yesterday, in reply to a question of mine, the minister said this would be in connection with the over-all operation of a whole year. Does this apply in the case of all the Chinese wheat deals, in connection with the whole year's operation of the pool, or does this matter apply to the one contract?


Robert Henry Winters: Mr. Speaker, this would
apply to the one contract, in the case of China. I thought the hon. member yesterday was referring to the over-all year's operation for wheat transactions.


Stanley James Korchinski: A further supplementary question. In view of the fact that at the close of the 1965 pool prices generally were higher than $1.95J, and since from the beginning of the new crop year prices have been lower, will the minister prevail upon the wheat board-


Mr. Speaker:: Order, please. The hon. member is making a representation to the minister; it is not a question.


Stanley James Korchinski: Will the minister prevail on the board or will he make certain that the wheat pool is closed in such a way that the farmers do not receive lower prices for their grain?


Mr. Speaker:: Order, please. The hon. member has made his submission.
5592	COMMONS
Inquiries of the Ministry


Stanley James Korchinski: May I direct another question to the Minister of Trade and Commerce in view of the fact that I may have fumbled the last one in my excitement, or something. Will the farmers not be receiving a lower price if the closing date of the current pool is deferred?


Mr. Speaker:: Order. The question is
argumentative.


Stanley James Korchinski: Ten o'clock.



HEALTH AND WELFARE


[Stage Direction]
On the orders of the day:
Mr. P. B. Rynard (Simcoe East):: I wish to direct a question to the Minister of National Health and Welfare. In view of the serious shortage of doctors and the imminence of medicare, has the minister had any communication with the universities in order that the medical schools may teach the year round, to meet the shortage?
Hon. Allan J. MacEachen (Minister of National Health and Welfare: No, Mr. Speaker. There has been no communication from the university medical schools with this objective in mind-no recent communication, at least.


Mr. Heward Grafftey (Brome-Missisquoi):: A supplementary question, Mr. Speaker. Does the minister propose to bring the representation that has just been made to the attention of the medical schools in order that the possibility of medical schools being operated the year round may be studied?


Allan Joseph MacEachen: I am sure, Mr. Speaker, that the authorities in the medical schools have considered these proposals. However, I shall be happy to make certain that they are drawn to their attention.



INDUSTRY


[Stage Direction]
On the orders of the day:
Mr. David Orlikow (Winnipeg North):: My
question is for the Minister of Finance, Mr. Speaker. May I ask him whether the inquiry he has been making into the reason for the increased price of copper has yet been completed. If not, when does he expect that inquiry to be completed, and when will he make a statement to the house?

DEBATES	December 19, 1967


Mitchell William Sharp: Mr. Speaker, the Minister of Trade and Commerce and I are still conducting our inquiries. I hope to be able to make a report soon.



NORTHERN AFFAIRS


[Stage Direction]
On the orders of the day:
Erik Nielsen: I have a question for the Minister of Indian Affairs and Northern Development. Since the Yukon legislative council adjourned yesterday pending the production of the government's white paper with respect to the constitutional reform of the Yukon, could the minister say when he expects the white paper to be finished and tabled in the house?


Hon. Arthur Laing (Minister of Indian Affairs and Northern Development):: Mr. Speaker, when we met the Yukon council in Ottawa some two months ago I indicated that we were hopeful of having the white paper before the end of the year. I have since told them that it has been delayed, but that nevertheless we will hasten with it and endeavour to prepare it at the earliest moment possible. I will not be held down to any date in particular, but I should think it will be ready within the next two or three months.



SHIPPING


[Stage Direction]
On the orders of the day:
Mr. Robert Muir (Cape Breton North and Victoria):: Mr. Speaker, my question is for the Minister of Transport. I have not sent him notice; possibly he may take this as notice. I ask it because quite possibly the matter may involve a hazard not only from the point of view of economics but also a marine hazard. Is it the intention of the department to remove the pilotage station from North Sydney-to change the base, in other words- or is the department's intention to completely remove the services of pilots from Sydney harbour?


Mr. Speaker:: Order, please. It is difficult for the Chair to determine whether this is a matter of urgency. I realize that it may be most important. If the hon. member feels there is urgency he may wish to debate the matter at the time of adjournment.
December 19, 1967	COMMONS


Robert Muir: On a point of order, Mr. Speaker, there is urgency since the house may rise in a day or two, and since the matter that I raised in my question could come into effect before the end of the year. We have only one or two days left in which the minister can inform us as to the intentions of the department.


Paul Theodore Hellyer: I shall take the question as notice, Mr. Speaker.



NOVA SCOTIA


[Stage Direction]
On the orders of the day:
David Lewis: In the
absence of the Prime Minister, Mr. Speaker, perhaps I could address my question to the Minister of National Health and Welfare. In view of the reported widespread uneasiness among plant and managerial employees of Dosco, in Sydney, can the minister give the house any additional report about the part the federal government -has undertaken to play in the takeover of the Dosco steel plant by the government of Nova Scotia and what commitment, if any, the federal government has made with respect to operations after April 30 of next year?


Allan Joseph MacEachen: Mr. Speaker, as was understood following the recent meeting between the Prime Minister and the premier of Nova Scotia, the premier of Nova Scotia was to send forward in writing certain proposals which he had in mind for assistance from the government of Canada. I believe these proposals have arrived; I received a copy this morning. They will be considered, I am sure, very soon by the government.


David Lewis: A supplementary question, Mr. Speaker. Does that mean that until now no commitment whatever has been made by the federal government, either for the period to April 30 or for the period after that?


Allan Joseph MacEachen: A commitment has been made with respect to the period to April 30. The further period is a matter of consideration at the present time.


Robert Muir: A supplementary question, Mr. Speaker. May I ask the minister whether, when the decision is made as to financial 27053-3531
DEBATES	5593
Inquiries of the Ministry assistance for the province of Nova Scotia beyond the date he specified in his reply, the Goldwaterites in the cabinet will outweigh the left wing element?


Mr. Speaker:: Order.



ADMINISTRATION OF JUSTICE


[Stage Direction]
On the orders of the day:
Mr. J. N. Ormiston (Melville):: My question is for the Solicitor General, Mr. Speaker. Since a convicted murderer who was sentenced to life imprisonment escaped from a minimum security institution at Agassiz, British Columbia, may I ask whether convicts of this type are to be kept in minimum security institutions in the future, and what steps will be taken to prevent similar escapes.


Mr. Speaker:: Order. I suggest that the hon. member should place this question on the order paper.



INDUSTRY


[Stage Direction]
On the orders of the day:
Mr. A. D. Hales (Wellington South):: should like to direct my question to the Minister of Industry. Now that preliminary discussions have been held between Canadian and United States officials on the Canada-United States car pact, will the minister give the house the assurance that before changes or amendments are made to the existing pact the matter will be brought before a committee for discussion and will not be announced by way of a press release, as was the case when the original pact was announced?


Mr. Speaker:: Order. I wonder whether the hon. member is asking a question which has been asked before. If not perhaps the minister might reply.


Charles Mills (Bud) Drury: Though the original pact, which arose from the joint signatures of the President of the United States and the Prime Minister of Canada in Texas, was in fact announced by a press release, and though the Canada-United States agreement was tabled in the House of Commons and was, in substance and form, the subject of debate on a resolution, I can
5594	COMMONS
Inquiries of the Ministry give the house or the hon. member the concrete assurance that before the terms of the Canada-United States automotive agreement are altered or modified there will be an opportunity for discussion by members of the house.



NATIONAL DEFENCE


[Stage Direction]
On the orders of the day:
Mr. Ed. Schreyer (Springfield):: May I
direct a question to the Minister of National Defence. In cases where defence department airfield facilities, hangars in particular, are going unused or under-used, is it departmental policy to co-operate with regional air lines, air freighters and so on, by leasing such facilities at suitable rates?


Mr. Speaker:: Order. This is a general question about general policy and it cannot be asked at this time.



PUBLIC SERVICE


[Stage Direction]
On the orders of the day:
Mr. G. L. Chaiterion (Esquimall-Saanich):: May I ask the Minister of National Revenue or the Minister of Finance whether an answer is now available to the question I asked last Friday about applying a higher rate of interest to the superannuation accounts.


Mitchell William Sharp: There is no intention at the present time to change the rate of interest.



REPORTED THREATS IF LEGISLATIVE AMENDMENTS ENACTED

[Stage Direction]
On the orders of the day:
Stanley Howard Knowles: Mr. Speaker, I should like to direct a question to the Registrar General. Does the minister intend to make any comment concerning the open letter received by all members of parliament from the drug firm of Glaxo-Allenburys (Canada) Limited in which certain threats are made should the government proceed with its bill to amend the Patent Act and the Trade Marks Act?


John Napier Turner: have received a communication from the
[Mr. Drury.)
DEBATES	December 19, 1967
president of the company mentioned by the hon. gentleman. We have given his representations careful consideration, and it is my intention to deal with the matters raised in his letter when this house debates second reading of the bill in question.


Mr. William Dean Howe (Hamilton South):: Can the minister assure the house that the government will not be blackmailed by any drug company through misleading information sent direct to members of parliament?


Mr. Speaker:: Order. The question is
argumentative.



DIVORCE


[Stage Direction]
The house resumed, from Monday, December 18, consideration in committee of Bill No. C-187, respecting divorce-Mr. Trudeau-Mr. Batten in the chair.
The Chairman:: When the committee rose yesterday clause 4 as amended was under consideration.
On clause 4 as amended-Additional grounds.


Mr. Cowan:: At eleven o'clock last night, when the house rose, I was making some comments on clause 4 of the divorce bill. Hon. members who were present, or who have looked at Hansard for yesterday, will be aware that I stated I do not like duplicity in any manner, shape or form. I shall be voting for clause 4, but I cannot allow it to pass without commenting on the actions of certain people who use one argument on one side of the fence one day and the same argument on the other side of the fence the next day.
[DOT] (3:20 p.m.)
As you will recall, when eleven o'clock was called I was emphasizing that we had been read homilies from Sir Winston Churchill, who spoke in the House of Commons and pointed out that we must spend all our time endeavouring to reform criminals. Sir Winston said that we must seek the treasure within the man, if we can find it, in the heart of every man. Then I read a statement by Anthony Storr which appeared in the New Statesman, in which he pointed out that to condemn a man is inhuman; it is to fall into the trap of treating him as he treated his victims, as a thing and not a person. The South African, Alan Paton, said "-but to punish and not to restore, that is the greatest of all offences."
December 19, 1967

I understand that I cannot refer to a previous debate in the House of Commons in the same session and I do not wish to transgress the rules of the house. However, I should like to remind hon. members that the Solicitor General stated we should never lose faith or abandon hope of reforming even one of these terrible people; we should never lose hope. Then why does the same cabinet come forward with this clause to the effect that after three years, when we can see no expectation of rehabilitation within a reasonably foreseeable period, then there are grounds for divorce? Why is it that in one moral argument we are told never, never to give up the possibility of reforming this type of criminal; then within a month have a bill before us to the effect that if a drunkard or a drug addict cannot be reformed within three years we have the right to say that the marriage has been broken on a permanent basis. In fact in subclause 2 of clause 4 we talk about "where the existence of any of the circumstances described in subsection 1 has been established, a permanent breakdown of the marriage by reason of those circumstances shall be deemed to have been established."
It is interesting to me that the cabinet by order in council has established that no murderer can be paroled in less than ten years, and then only if the parole board has O.K.'d it and the cabinet O.K.'s that. So the cabinet must consider that within ten years they can reform the most hardened criminal; that is, they can reform a man who thirsts for blood. Then why not spend ten years in reforming a man when he thirsts for liquor or drugs? But we are told, no; if in three years you find you cannot reform the drug addict or the drunkard, forget him, take away his spouse, take away his family and in some cases take away his property because he has had three years in which to reform and he has not reformed. But we can reform a murderer in ten years.
They used to reform murderers in eight years, ten months and one day, but I think they found that short course was not long enough so an order in council was passed to the effect that it would take at least ten years to reform a murderer. If we can reform a murderer in ten years, who says we cannot reform the drug addict or the drunkard? Why must we give up on the drunkard and the drug addict at the end of three years? Frankly, Mr. Chairman, you cannot have it both ways.
We in the Liberal party, of course, believe the members of our cabinet are the salt of
Divorce Law Reform
the earth; if they were not they would not be the cabinet. I am telling you when they bring forth these moral arguments on behalf of one type of criminal we have to agree that they are the salt of the earth. But I say to the cabinet, if the salt within a month hath lost its savour wherewith shall the world be salted? It is thenceforth good for nothing but to be cast out and to be trodden underfoot by man.
I do not like having homilies read to me a month ago about how we should spend our time reforming criminals for the rest of time-for the rest of my human life-and then be told today that if after three years the reformation of drunkards and drug addicts is not effective, forget them and cast them on the dung heap. I say to you that if the trumpet give forth an uncertain sound, who shall prepare himself to the battle? I hate duplicity. When the trumpet is sounded one way in November I do not like to hear it sounded the other way in December.
I believe this clause of the proposed bill should be amended and some clarification given. The cabinet may point out that this is not what they meant in November when they said you must spend the rest of your life reforming these hardened criminals, and that in what they are saying now in December they are blowing the trumpet to let you know that if after three years you have not completed the reformation of the drunkard or drug addict, snap your fingers, grant a divorce, take away his family from him and take away his material possessions in some cases; because if we cannot reform him in three years what hope is there?
I say to you it is not right to use arguments such as this on both sides of moral questions. Either the cabinet was right a month ago and wrong now or was wrong a month ago and is right now. Frankly I would say they were wrong a month ago and are right now, because I shall be voting for this bill and I did not vote for the other.
I sincerely hope, Mr. Chairman, that the cabinet will not refuse to heed the advice of the Solicitor General, who points out that we must never give up hope of reforming these criminals; and will not throw aside the advice of Sir Winston Churchill which was read to us in such fulsome terms as the words of one of our greatest speakers, when he pointed out that there is a treasure in the heart of every man. Sir Winston must have been somewhat of a dubious temperament because he added the phrase "if you can find

December 19, 1967
Divorce Law Reform
it." That is my attitude so far as Sir Winston Churchill's message goes. He went on to say that we must have an eagerness to rehabilitate; we must make tireless efforts toward the discovery of creative and regenerative processes; have unfailing faith that there is a treasure, if you can find it, in the heart of every man. I think that proves that Sir Winston was a sceptic.
A month ago we were told to follow Sir Winston Churchill's advice and work, work, work in order to reform these criminals. But I say to you, if we can reform murderers in eight years, ten months and one day surely to heaven we can reform drug addicts and drunkards in a shorter space of time, even if it takes more than three years. We could bring in these rehabilitation specialists the cabinet has working with the murderers and making gentlemen of them in eight, nine and ten years, and turn them on these drug addicts and drunkards. These specialists who are making gentlemen out of murderers should not have any difficulty at all making gentlemen out of drunkards and drug addicts. Think of all the marriages they could save, thus making it unnecessary to go through the divorce courts.
I cannot see why the cabinet in December do not take the advice they were so freely giving in November. Either their memory is very very short or they think the public will not remember the advice they gave when we were being asked to consider the matter of capital punishment in the month of November.
I am sure if they trotted out all the nice Nellies and bleeding hearts they recruited to their banner in November and turned them loose on these drug addicts and drunkards, they would be reformed the moment they saw the bleeding hearts and nice Nellies in their presence. I sincerely hope this clause 4 can be altered so we would not be admitting that we are giving up the reformation activities of the cabinet in such a short period of time as three years. Three years in the average man's lifetime is as nothing. I believe the cabinet should take the advice of the Solicitor General and never give up in the expectation of being able to reform these drug addicts and these drunkards.
As I said before and repeat now, their advice was wrong in November and I did not accept it. Now that they are talking in December their advice is pretty good and I intend to take it. But I do not like duplicity no matter who is practising it, and I could not care less whether it is the cabinet that is

practising it or the man on the street. I dislike duplicity and hate to see it in black and white in this bill.


Herman Maxwell Batten: Shall clause 4 as amended carry?
[DOT] (3:30 p.m.)


Mr. Baldwin:: Mr. Chairman, I should like the minister to explain why it was found necessary to insert clause 4(1) (c). This deals with the situation in which one spouse has not heard of or from the other for a period of three years, which will then be deemed to be a marriage breakdown. Under paragraph (e) it is also provided that where the spouses have been living separately and apart for three years for any cause this will be deemed to be a marriage breakdown. Is there any reason to refer specifically to special circumstances which would make paragraph (c) necessary in view of the wording of paragraph (e), subparagraph (i)?


Mr. Trudeau:: That is a question that
stumps me, Mr. Chairman. I can see that it is harmless but perhaps redundant. I know historically how it got in there. We were using the breakdown clauses which are current in other countries and the breakdown clauses found in the joint committee's report. As the hon. member will realize, we did subtract some of the recommendations because they were covered by paragraph (e) (i). I do not have the answer to the question now. I will read the clause and search my memory to find the answer. It may be that before the day is out I will be able to give it. However, the hon. member will realize that it is not a harmful clause though it may be redundant.


Gerald William Baldwin: It may not be harmful but it might lead to some misunderstanding on the part of counsel who have been consulted by clients who propose to take proceedings. It seems to me that the simple provision in paragraph (e) (i), which refers to where there has been a separation for any reason for a period of three years, would be the more simple, easy and desirable way of handling this matter. There may be attempts to bring parties under (c) which may lead to complications. The minister might be good enough to look at this with the idea of withdrawing the paragraph later.


Pierre Elliott Trudeau: Mr. Chairman, perhaps we could stand this subclause for a few minutes while I search my memory and seek assistance in order that I may answer this question.
December 19, 1967


Herman Maxwell Batten: The proper thing for the committee to do under these circumstances is to stand the whole clause.


Mr. Otto:: Before standing the clause, Mr. Chairman, I should like to make some remarks and ask the minister one or two questions. My question in respect of paragraph (c) is based on a different understanding of its intention than that expressed by the hon. gentleman. The purpose of this paragraph seems to me to be to prevent collusion. If this paragraph was not in the bill then an automatic separation for any reason at all, even if it was agreed to, would automatically lead to a successful petition for divorce.
I should like to ask a question in connection with paragraph (b) which refers to a three year period preceding the petition during which a party has been grossly addicted to alcohol or a narcotic, as defined in the Narcotic Control Act. Are we to assume that "grossly addicted" is defined in that act?


Pierre Elliott Trudeau: No, it is only narcotic addiction that is defined in that act.


Steven Otto: That being the case, who is to define this expression? Up to now this has been within the jurisdiction of the courts. If it is intended that the jurisdiction will remain there I am in favour. On the other hand, if that is the case I question subclause 2 which seems to indicate that if the parties are living apart and any of the circumstances defined in paragraphs (a) to (e) inclusive exist, then automatically it will be presumed that there is a marriage breakdown. Does this mean that the whole question of marriage breakdown is removed completely from the courts? If this is the case I have no argument but I should like to hear the minister's reasoning and understanding. If people living separate and apart under any of the circumstances outlined in paragraphs (a) to (e) can establish automatically that there is a breakdown of the marriage, I take it that the one or the other would unilaterally be entitled to a divorce without any contest. Is that the case?


Pierre Elliott Trudeau: Mr. Chairman, the first part of the question is related to the expression "grossly addicted". This will be a matter of fact to be established by the judgment of the court. The idea of addiction and gross addiction is not foreign to our statute law. Many crimes or infractions are defined by the words "gross" or "grossly", and the intention here is to indicate that the courts must use
Divorce Law Reform
their judicial discretion in deciding whether or not there is minor addiction, addiction to a substantial degree, or gross addiction. Once this judgment has been made by the court, subclause 2 applies and a breakdown is deemed to have been established. This will be, of course, a judgment of the court leaning on (b). This judgment of the court is subject to appeal and we will see the appeal provisions later on. This is one example of the many cases where the courts are left by parliament to make a decision on a question of fact, and this entails the forming of a certain amount of opinion.
The hon. member also raised a question in respect of time. Here again I suggest that if he refers to clause 9, subclause 3, he will find that a rule for the calculation of the period of separation will perhaps answer his question. If it does not, I will be glad to deal with it again when we are considering that clause.
Referring again to paragraph (c) I would say that the hon. member has given a reason for its usefulness. One can make a distinction, although there is perhaps a certain amount of redundancy. For the clarification and instruction of the parties who will be reading this bill, I think paragraph (c) will be useful because it will cover the case of a person who has disappeared and never been heard of and therefore might be dead. Paragraph (e) would apply to people who are obviously alive. That is part of the answer.
Another part of the answer is that if we struck out paragraph (c) one would not know for sure whether to proceed under paragraph (e) (i) or (ii), because the question would arise whether the disappearance was real and valid, that is, actually a desertion. If the petition was made under (e), the courts would have to make a decision on whether or not there had been a desertion so as to know whether to apply the five year rule or the three year rule. By including paragraph (c), the courts do not have to make this judgment which may be very difficult in the hypothesis of my explanation in respect of the disappeared person who is dead. Such a person would not be known of and the courts could not consult with him or seek information on whether that individual deserted willingly or unwillingly. For these reasons I think the clause is not useless. I agree with the hon. member for Peace River that there is perhaps an element of redundancy regarding paragraph (e), but for the reasons I have given I think it is useful to retain the paragraph.

December 19, 1967
Divorce Law Rejorm
[DOT] (3:40 p.m.)


Mr. Wahn:: Mr. Chairman, I should like to ask the minister a question with reference to paragraph (d). An actual case has been brought to my attention where a marriage was consummated-indeed, the couple had several children-and at a later date, as the result of an operation, the husband became permanently impotent. Would the wife, under this legislation or any other matrimonial legislation already in effect, have the right to terminate the marriage in those circumstances?


Pierre Elliott Trudeau: Mr. Chairman, I am now being asked to interpret statutes other than this one. I do not mind giving advice to such a close colleague. With respect to this bill I would say that the answer is clear. If there has been consummation, no matter what happened later this clause could not apply. In the case mentioned by the hon. member, if there was a desire to obtain a divorce it would most likely be established by the living separate and apart of the parties.
I should say that this example is akin to the one given last night where one of the parties is maimed, ill or insane. If the parties continue to live together, as many undoubtedly will, in spite of the fact that one spouse has been disabled, there is obviously no cause for divorce. If they decide, after mature consideration, that they want to obtain a divorce, they will have to go through the same three year waiting period that is necessary when one of the parties becomes incurably insane or incurably ill.
With respect to the final part of the question, whether any other statute would provide for dissolution of marriage in these circumstances, my uninformed recollection is no. But once again I think it might be wise for any lawyer to reread the dissolution of marriage act and the other acts which have causes for annulment spelled out therein.


Mr. Smith:: Mr. Chairman, in my very limited training I was always taught that a legal draftsman would try to make his bill as clear as possible in the first place so there would be as little room for judicial interpretation and appeal as possible. But now we have the minister telling us that the clause is all right and we will be able to clear up this fuzzy provision because it will be subject to appeal.
I should now like to refer to clause 4(e)(ii). It seems passing strange that there should be a differentiation in respect of the time after

which a person can petition for divorce. The spouse who is deserted can petition for divorce after a period of three years but five years must elapse before the deserting spouse can petition for divorce. This provision implies essentially a trial within a trial. When a person petitions for divorce it must first be ascertained who deserted whom.
What kind of desertion are we referring to in the clause? Are we referring to other acts? In the child welfare act of Ontario "desertion" has one meaning and in most other provinces it has another. What kind of desertion do we refer to in this bill? Do we refer to physical desertion? Suppose a man is married to a shrewish wife and he just walks out of the matrimonial domicile and leaves the wife but continues to maintain her. What is the situation then? She was really responsible for his leaving her. Does this mean the husband cannot petition for divorce for five years but the wife can petition for divorce after three years? Do we mean physical desertion? If one spouse just walks out and leaves the other, does this provision mean he or she incurs an extra penalty?
It would seem to me that clause 4 (e) (ii) is completely redundant. If the clause were passed in its present form all we would do would be to make divorce more expensive to the litigant. I think the clause should provide for three years in either case, in which case, of course, we could withdraw paragraph (ii) completely.


Ian Grant Wahn: Mr. Chairman, I refer again to paragraph (d) because of the minister's answer. Would he not consider the possibility of an amendment to permit a marriage to be terminated in circumstances such as I mentioned earlier, namely, where the marriage has been consummated but as a result of illness or disability it has become impossible to continue cohabitation? Otherwise a person has to wait three years before the marriage can be terminated. It seems a little inconsistent to permit the immediate termination of a marriage which has not been consummated and to force a person to wait three years when the marriage has been consummated but cohabitation cannot be continued. It just does not seem to be consistent with principle.


Pierre Elliott Trudeau: As I said last night, Mr. Chairman, there is no question of principle involved here and there is no magic in the figure of three years.


Marcel Joseph Aimé Lambert: The period of three years is set out in the subclause.
December 19, 1967


Pierre Elliott Trudeau: If this honourable house wants to make the period two years, one year or one week, that is a matter for the house and I will not defend the period of three years on the ground of principle. I will not move such an amendment and I do not think I would vote for it, because after comparing the periods which are most acceptable in civilized countries I found that three years was a rather liberal figure.
The fact that this particular form of impo-tency has occurred does not require, it seems to me, that we spell out special treatment in the bill. Surely there is no great difference, at least in principle, between the spouse who cannot have sexual relations for that reason and the one have them because the other spouse happens to be living in an asylum somewhere. I do not think the hardship is greater in one case than the other. The test is whether the spouses are separated. Once again, if three years appears much too long to most hon. members I cannot say that I will defend that period of time on any moral ground, but it seems to me the kind of period we have to impose in order to bring forth the point that a marriage contract is not an ordinary contract and that the state has some interest in it, that society feels that marriages should not be broken off by consent no matter whether one person happens to fall sick or falls prey to an injury, as in the example given. This is my feeling on the matter.
Getting back to the question asked previously, I object to the expression having been used that the subclause is fuzzy. The courts are asked all the time, in respect of all our statutes, to interpret words and questions of fact. It is absolutely inconceivable that any law would be written in such a way that the courts would have absolutely no discretion. I cannot think of a single statute or single code anywhere that does not rely in some instances on an amount of judicial discretion. That is what we have courts for, namely, to apply the law according to their best interpretation. If there was no need for the interpretation of our laws we could have machines to decide these questions. We could put the statute in a machine and the answer would come out. There is always room for a degree of judicial discretion, and because this is the case it does not mean that the bill is fuzzy.


Sydney John Smith: But I suggest that you should be as careful as possible in the beginning.


Pierre Elliott Trudeau: I accept that suggestion, Mr. Chairman, and I think we should be as care-
Divorce Law Reform
ful as possible not only in the beginning but in the continuation and at the end. I believe this is what we have done. All the words of an act cannot be defined in the interpretation section of every statute. It is a well known rule of the courts that, if the words are not so defined, they use the ordinary dictionary meaning of the words. I agree that the courts disagree in some cases, and this is why we have appeal courts.
[DOT] (3:50 p.m.)


Marcel Joseph Aimé Lambert: It is obvious to me that the
minister has engaged mostly in academic consideration of the law and has certainly not had experience in the practice of advising clients who come to seek advice from counsel or solicitors. The minister said that the best answer that a solicitor can give is to say he does not know how the courts will interpret this statute. In that event, determination of desertion, as my colleague has indicated, is something that a court may interpret according to the state of the judge's digestion on a particular day, all of which is most unsatisfactory.
One of the prime requirements of any statute, of law in general, is its certainty. I suggest with the greatest respect that this is precisely where this bill is deficient, namely, in its uncertainty and the minister's Marie Antoinette attitude that if a client is not satisfied in the court of first instance there is always the court of appeal. This is really fine advice to give to a client. To tell the client he can always go to the court of appeal if he is not satisfied can never be a very satisfactory answer.
What is the purpose of the definition clause in the bill? As a matter of fact, clause 2 to some extent defines children and children of the marriage. What is collusion? Lord only knows. This term has been subject to judicial interpretation but the minister has seen fit to define it in the bill so as to avoid judicial interpretation. Yet we find in the bill the word "desertion", and the minister says that it all depends on how the judge interprets it. There is such a thing as constructive desertion, and the interpretation of the term in one jurisdiction may be as different as night and day from the interpretation of the same term by another jurisdiction. I must confess that I find the minister's answer to be very unsatisfactory. I wish he had included in the bill a definition of desertion in the same way in which I suggest to him the bill should contain a definition of domicile because it appears in the bill in a way which I believe makes legal nonsense.

December 19, 1967
Divorce Law Reform


Pierre Elliott Trudeau: I think it is rather paradoxical for the hon. member to say that my approach to this matter is academic and then proceed to give a lecture against the positivist approach to law. Surely he has done nothing more than to state that he has a certain legal philisophy. It may be an admissable one but it is not necessarily compatible with our approach to statute law. There is one philosophy according to which the law may be defined as what the courts will decide in any particular case, and this to me is a perfectly respectable approach to the law. However, I do not think much will be gained by engaging in a discussion respecting a philosophical approach to law at this time.


Marcel Joseph Aimé Lambert: It is a "spin the coin" philosophy.


Pierre Elliott Trudeau: The hon. member could ask for a definition not only of desertion but of any other term such as respondent, petition, addition, period, presentation, and many other terms such as adultery, homosexuality, bestiality and cruelty. I do not think it is a fair accusation to say that a lawyer cannot tell a client exactly what the statute means. There are two sides to most cases and the courts are there to decide between two points of view.


Erik Nielsen: Mr. Chairman, I like the minister's argument, particularly when he dealt with the need for leaving a residual, discretionary power to the judiciary. Because I like it I wish to suggest to him that there may be a way in which the deficiency to which the hon. member for St. Paul's referred a moment ago might be cured. I have great sympathy with the kind of example which he has commended for the consideration of the minister. In my own personal experience I have seen petitions for divorce of the nature described by the hon. member for St. Paul's and a good many others which deserve judicial consideration and are not covered by the provisions of the bill.
My friend from Peace River has made a study of the British legislation in this regard and he showed me an article from the Montreal Star which sets forth a proposal in a private member's bill which was made the subject of consideration in the house at Westminster. One section of the bill states as a condition for bringing a petition for divorce misconduct which a husband or wife cannot be reasonably expected to endure. This kind of provision in this bill would meet the rather sad cases such as the one raised by the
IMr. Lambert.]
hon. member for St. Paul's and would also cover other circumstances, one of which I will describe in a minute, which are not met by the provisions of the bill. For instance, in paragraph (d) a petitioner is on solid ground if the marriage has not been consummated. Here I think even the minister fell into the trap of using the term "consummate" in a different sense. To consummate, in law, and I do not see any provision in the bill which changes this concept, means consummation at the beginning.
There are cases where a married couple has been living together for ten years and then one party or the other will decide not to cohabit with his or her spouse. In circumstances such as those there is no recourse. If the conduct continues for a year or two, surely it becomes grossly unreasonable. Certainly there are wreckages of marriages where the couples remain together and where one partner is denied any recourse whatsoever because of the circumstances I described and which the hon. member for St. Paul's brought to the minister's attention.
[DOT] (4:00 p.m.)
I have an amendment which I will not move but I think it is worthy of consideration by the members of the committee. I will read it in the hope that the minister might advance it as a government amendment. I will go over the wording once again although I am sure the minister has it before him. I would propose that an additional paragraph be added after paragraph (e) (ii) of clause 4 subclause 1. The full stop at the end of the paragraph would be changed to a comma and then there would be another paragraph which would read as follows: "Or if there is conduct which a husband or wife cannot be reasonably expected to endure." The wording of that provision would meet the kind of case the hon. member for St. Paul's has raised and would meet the many cases of which I have personal cognizance and for which no remedy is available under the provisions of this bill.


Mr. Basford:: between the two. It seems to me that by trying to add this punishment of two additional years to the petitioner who is the actual deserter we lead the courts into a problem which has been raised here of trying to decide what desertion is. There are circumstances which will allow a petitioner to leave home justifiably and, in fact, legally be a deserter. I see no reason for putting this punitive provision into the law. It seems to me that if spouses have been separated for three years for any reason, either one of them should be free to apply for a divorce and obtain dissolution of the marriage. I should like to move, therefore, seconded by the hon. member for Simcoe North:
That paragraph 4 (1)	(e) be struck out and
replaced by the following:
(e) The spouses have been living separate and apart for any reason for a period of not less than three years immediately preceding the presentation of the petition.


Terence James (Terry) Nugent: When the minister replies, would he tell us what that does to paragraph (c) which would seem to have no place really because it refers to not even knowing where the other party is? Would that paragraph be redundant?


Pierre Elliott Trudeau: Mr. Chairman, I think I will vote against that amendment because it was the intention of those drafting the bill to make a distinction between the offended and offending parties. There was no desire to give any incentive in this bill to the desertion of one spouse by the other. I think the law would be better if we made sure there was no such incentive to desertion. If two parties decide to separate and live apart, for whatever reason, then I suppose that is a fact which the law must accept. This was the reason we wrote this particular concept of breakdown into our law. I think we must be careful not to accept the kind of thinking, generous though it may appear, behind this amendment because once again we are giving an incentive to desertion. I do not believe we should do that. Incidentally, it is for that type of reason we did not accept the recommendation of the joint committee for another kind of breakdown, which was shorter than three years, in a case when there was wilful non-support of either party. We did not want to write into our law any clause which would incline one party not to support the wife, husband or children because such a party might get a quicker divorce and not have to wait for three years. It is for this reason that I, personally, cannot accept the amendment. Once again, I cannot defend my actions on
Divorce Law Reform
any other ground than this which seems to me to be a common sense ground.
While I am on this subject I might answer some of the remarks that have been made about desertion. This is not a new idea we are introducing here for the first time, as some hon. members have said. Desertion is already in our laws because section 2 of the Divorce Jurisdiction Act speaks about desertion. Certainly, the courts have had to interpret this word and they have done so with some differences of opinion among the courts. It is for this reason that the idea of constructive desertion has also been spelled out by the courts.


Erik Nielsen: And in the Criminal Code.


Pierre Elliott Trudeau: And in the Criminal Code. I believe that when we want to change the meaning of a word we define it, and that is why we have defined "collusion" and "condonation". It is not condonation in the ordinary sense of our statute law. We provide an exception to the ordinary meaning of condonation by saying there can be 90 days of cohabitation without that constituting condonation. We have a long definition here of collusion which is a particular definition that applied to divorce. These are the justifications I give for preferring to stick to these particular words.
I should like to add a final word on the suggestion of the hon. member for Yukon that we have a new paragraph (f). I am struck by the fact that the idea he wants to introduce, which I think is a good one has been dealt with in words which are almost the same in clause 3, subclause (d). The reference there is to cruelty of such a kind as to be intolerable. I believe the hon. member's amendment used the word "unbearable". There is perhaps a slight distinction here but I think what the hon. member has in mind is something closer to the notion of an offence rather than the notion of a breakdown.
The hon. member uses the word "unbearable". When we talk of mental cruelty which becomes intolerable we come in a large degree to the idea the hon. member for Yukon wants to put forward.


Gerald William Baldwin: I should like to add a word in reply to what the minister has said. I think we have to take a minute to look at the historical background. When cruelty was introduced in the United Kingdom in 1933 as a ground for divorce, there was a series of

December 19, 1967
Divorce Law Reform
judicial decisions which gradually crystallized so that cruelty, as a ground for the dissolution of marriage, must be cruelty of a kind which is clearly within the meaning of clause 3(d) in the bill the minister has introduced.
[DOT] (4:10 p.m.)
This is the culmination of a series of legal decisions in the United Kingdom, by which cruelty, prior to the introduction of the new act into its parliament, had to be of a kind as to render intolerable the continued cohabitation of the spouses. In considering the act which was introduced in the United Kingdom it is quite obvious that its framers-they were people in the government who consulted with private members and some of the other authorities-came up with what has been referred to, or suggested with great sense by the hon. member for Yukon, as conduct which a husband or wife cannot be reasonably expected to endure.
It is true that it is against my views and the views of some other hon. members-I cannot comment on that now since the house has seen fit to reject the suggestion that we should make marriage breakdown the sole basis-but there is no reason why a greater significance could not be given to that philosophy by introducing here what would be the counterpart of clause 3(d) and providing, as my hon. friend from Yukon has suggested, conduct which could be something less than the legally defined and established cruelty which is brought within clause 3(d). I think every member of the committee can contemplate circumstances under which conduct falling short of cruelty could, if it was persisted in for a very long time and was of a certain character, render intolerable the further cohabitation of the spouses.


Pierre Elliott Trudeau: Would that be mental
cruelty?


Gerald William Baldwin: No. I think you have established the cruelty which would be included within clause 3(d) but there is conduct falling short of that. Members of the bar have had occasion to advise people in matters of this kind, and I am sure other members of the committee also know of people in unfortunate circumstances where there is a course of conduct which is not cruelty within the meaning of clause 3(d) but which would justify a court in making a declaration, subject to all the other safeguards in this bill, that the parties need not further continue in the union which was binding upon them. I think

it is on that basis that the hon. member for Yukon has made this proposal. I confirm and approve of what he has done. I do not know whether there is any use putting it in the form of an amendment, but I would like the minister to look at it and see if it could be a counterpart to the marriage breakdown provisions elsewhere in the bill.


Mr. Brewin:: Mr. Chairman, I would like to support the amendment proposed by the hon. member for Vancouver-Burrard, seconded by the hon. member for Simcoe North, because it seems to me that it simplifies and clarifies these provisions. I think that is desirable.
The minister, if I understood him aright, said it had been deliberately decided to treat a deserting petitioner differently from one who had just separated without the element of desertion. Perhaps this is reasonable, but I suggest to the minister that the purpose of making these separate categories is clearly carried out in the provisions of clause 9(1) (f) where it is provided that it is the duty of the court:
where a decree is sought under section 4 by reason of circumstances described in paragraph (e) of subsection (1) of that section, to refuse the decree if the granting of the decree would be unduly harsh or unjust to either spouse or would prejudicially affect the making of such reasonable arrangements for the maintenance of either spouse as are necessary in the circumstances.
It seems to me that this provision in the bill would amply take care of the situation where a petitioning husband had deserted his wife and was refusing to make reasonable arrangements for her. I believe it would be a better way of dealing with the matter to leave it to the discretion of the court to say: You, as a deserting husband, are not in a position to secure your divorce; I must refuse it to you under clause 9 because it would be either unduly harsh owing to your conduct or unjust to the spouse you left without provision and would prejudicially affect the making of reasonable arrangements. In addition, under clause 10 and the following ones orders for arrangements can be made.
I suggest that the minister should contemplate the virtues of simplicity in dealing with these matters. He said we should not try to define everything. I am inclined to agree with him on that, but the fewer paragraphs we have about desertion as distinct from separation the better. If we have these provisions about desertion it will just add to the complications where there is a clear case of separation and the court is required to go into the question of whether the husband is
December 19, 1967

providing adequately for the wife and also whether this was done in the initial instance three years before.
The definition of desertion, however it is made, is a complex and not a simple matter. It is not a question of just physically walking out of the house. It is a question of the provision that was made, of the circumstances and whether under those circumstances the person was justified in walking out of the joint domicile. It is a complex matter, and once you have established the principle of separation I contend you do not need to go into the question of desertion.


Steven Otto: I put it to the minister that with respect to all of the offences under clause 3 and the grounds for marriage breakdown under clause 4 there is, with one exception, an opportunity to object. In other words, where the petitioner claims adultery on the part of the other spouse the other spouse has the opportunity to object and to prove that there was no adultery. The same applies to all the other marital offences and the grounds under clause 4 except one, and that is where there is a separation because of the husband or wife being in jail. Then, of course, there is no doubt. There obviously is a separation. A jail term has been handed down and in those circumstances there is no defence of any kind. Thus a divorce will be granted without defence.
I have no particular objection to that but for any of us to think that this bill is going to cure many of the ills present today would be not to face reality. Many of the provisions in the bill have been in force in the United Kingdom since 1937; yet one of the witnesses who appeared before our committee said that 95 per cent of the actions for divorce in the United Kingdom are still based on adultery. The minister will understand the reason for this. Adultery is a very simple thing to prove. There is a claim of adultery, there is an admission of adultery, and that is as far as the court goes. Therefore it is the cheapest and simplest way where a marriage is being put to an end by consent. Where there is no consent, at the present time it is impossible to get a divorce. Under the terms of this bill a divorce can be secured without consent after a period of five years. Other than that I cannot see that the bill changes the picture very much. I cannot see that any judge is going to accept an admission of cruelty, even by both parties. No matter how detailed and long the evidence in the case might be, I submit that what I say holds true. The same might be said about desertion.
Divorce Law Reform
[DOT] (4:20 p.m.)
The minister may say that where a husband is jailed for a long time the wife has an automatic right to a divorce. In other words, the imprisoned party loses his defence. It makes little difference if the period of separation is five years, three years or two years. A divorce is to be granted without the consent of the party not suing. For either party to sue for divorce before the prescribed period of separation there must be proof before the court of some form of marriage breakdown. In the alternative, the case must come within the confines of clauses 3 and 4 of the bill.


Ian Grant Wahn: I do not wish to labour the point that I originally brought to the minister's attention. His reply indicated that possibly he did not understand my suggestion clearly. I agree with the minister that a three year separation period as a ground for divorce is arbitrary. No one can say whether three years is right or wrong any more than whether five years is right or wrong. That is not the point to which I wish to direct the minister's attention.
My point is that where permanent impotence exists a divorce should be permitted and the parties should not be forced into a period of separation for three years, one year or for any period. I submit that in such cases the marriage should be terminated on the request of the aggrieved spouse without the necessity of any waiting period.
I know that the minister does not lack imagination. Let me refer to circumstances which are likely to exist to illustrate what I am suggesting. Take the case of a marriage which has been consummated and there are children of the marriage and then permanent impotence develops. Under this bill, in order for the wife to obtain a divorce she would have to desert her husband. She might have to take the children with her or leave the children with her husband. She might be without means of support. In any event, she must wait for three years at least before suing for divorce. The bill clearly states that a divorce may be granted after a certain period of separation.


Pierre Elliott Trudeau: Will the hon. member permit a question? What about impotence because of old age? Would he include that in the bill?


Ian Grant Wahn: I would have no objection to an exception being made in that case. I did not wish to complicate my argument by raising

December 19, 1967
Divorce Law Reform
the point that the minister has raised. If it involves real difficulty I have no doubt that the departmental officials are adept enough to cover that contingency.
As presently drafted the bill provides that a divorce may be granted where the respondent for a period of not less than one year has been unable, by reason of illness or disability, to consummate the marriage. That ground is conditional on the marriage not having been consummated in the first instance. That clause, it seems to me, is almost mediaeval in tone. It is entirely out of keeping with the minister's character. It attaches too much importance to the single and original act of consummation. After there has been an act of consummation, there cannot be a divorce even though impotence develops. The parties must then seek their remedy under the separation clause of the bill.
To say that a divorce will not be granted in a case where a marriage has been consummated even though permanent impotence develops later is contrary to sound principle. I think the minister would be wise to correct this paragraph by deleting the words, "the marriage has not been consummated and" from paragraph (d). I hope the minister will consider this suggestion because the amendment which was suggested by the hon. member for Yukon and supported by the hon. member for Peace River might not cover the cases I have in mind. I submit that when a man is impotent he cannot be accused of wrong conduct.


Erik Nielsen: It might be wilful refusal to cohabit.


Terence James (Terry) Nugent: I am puzzled about paragraph (c). It seems to me that paragraphs (e)(i) and (ii) are wide enough to cover the three year separation period. Any petitioner who pleaded desertion as a ground of divorce would have to come within the confines of this clause. Surely the deserter would come under the confines of paragraph (e)(ii). To say under (c) that one of the parties could not be located for three years is to add confusion to the bill. My argument mainly is that paragraph (c) will bring difficulties. I cannot see the purpose of including it. Obviously, if the parties under paragraph (e)(ii) have been living apart for up to five years they have been separated; the marriage has broken down and a ground for divorce exists. I submit that paragraph (c) will hamper the courts in making their decisions. For that reason I think it is unnecessary in this bill. As I see it, paragraph (c) will bring nothing but difficulty.


Steven Otto: Mr. Chairman, the hon. member for St. Paul's raised an interesting point. Though the hon. member believes that impotence or non-consummation should be grounds for divorce I wish to point out that the common law of England, from which our law derives, and the laws of many other nations hold that non-consummation constitutes a breach of contract. The common law of England have never held that sexual relations cemented the marriage bond, because marriage was based on concepts of property.


An hon. Member:: Oh, no.


Steven Otto: When a man commits adultery with another man's wife he appropriates unto himself another's property. That was the old legal view. Non-consummation was a ground for divorce because it implied a contractual failure. The marriage contract was void ab initio. In other words, the contract never existed. If one of the parties is unwilling to participate in sexual relationships, that matter might be covered under clause 3(d). Otherwise it is not covered in the bill.
[DOT] (4:30 p.m.)
We cannot surely leave it to either of the spouses to decide that by withholding the pleasures of marriage or, indeed, by making such a claim, they will have grounds for divorce. This would presume that the laws of marriage and of divorce are based to some extent on this relationship. It may be that today we can make allowances for this relationship in our marriage and divorce laws by legislating in a different way, possibly under clause 3. This is a clause which is, unfortunately, linked with natural offences, and of course we are not dealing now with a marital offence. I understand that most countries which have had considerable experience with legal interpretation in connection with mental and physical cruelty have interpreted inability to engage in the sexual relationship as a form of cruelty and have made provision for granting divorce on this ground.


Stanley Ronald Basford: I should like briefly to
answer the Minister of Justice in connection with my amendment and then to suggest, on a point of order, that we might have a more orderly debate if we confine our discussion to the amendment before us. The Minister of Justice has suggested it cannot be the purpose of the law to encourage or appear to encourage or reward or entice people to desert their spouses. Of course, I agree with that as a general principle.
December 19, 1967

I understand it was this thinking which led the special committee to recommend that a three year period be stipulated, that marriage be considered to have broken down it one of the partners had been deserted for three years or if one had been a deserter for a period of five years. It seems to me that when a marriage is going on the rocks few people will, in fact, be considering these legal distinctions and whether they have to wait for five years or only three years before they can go to court. From my own experience in the years when I was practising law I believe it would be unrealistic to say that the abolition of this distinction would be enticing or rewarding these people.
For those who might be considering their legal rights, it seems to me that the distinction created in paragraph (e) would lead to an undesirable situation in which a husband and wife whose marriage was going on the rocks would be jockeying around to see who was going to desert whom in order that the one deserted could have the advantage of a shorter period of three years before applying to a court. I can envisage that in some situations where hatred runs so high a husband who wanted to leave would refuse to do so and would create hell for his wife in the hope she would desert so that he would be entitled to the advantage of the three year period. For these reasons it seems to me that the distinction created in this paragraph is altogether undesirable, and I hope hon. members will support my amendment.


Pierre Elliott Trudeau: I can only say that on this occasion we have gone farther than the committee recommendation which provided for three years on the petition of the deserted spouse and did not provide at all for the deserter. I should remind hon. members that there has been a discretionary power in the divorce and matrimonial causes legislation of 1857 under which desertion was one of the bars to divorce. We are going much farther than that. We are permitting divorce even when there has been desertion but we are asking that the period should be five years.
Amendment (Mr. Basford) negatived: Yeas, 17; nays, 36.


Erik Nielsen: I wonder whether the minister would reconsider the suggestion I put to him a moment ago in connection with the addition of a paragraph (f) ? My hon. friend from Peace River has properly pointed out in regard to paragraph (d) that mental cruelty, the basis upon which a petition is founded, must be mental cruelty within the meaning
Divorce Law Reform
of a strict judicial definition. I do not like using the word "definition" but it must be used here. Over the years the courts have defined this phrase within rigid boundaries.
The case raised by the hon. member for St. Paul's where there is no wilful refusal to cohabit but it is impossible to do so due to circumstances beyond the control of either of the spouses, could be repeated where parties have been physically injured as a result of accident or disease and where there is no wilfulness on the part of one party or the other but it is in fact impossible for them to cohabit. Notwithstanding the remarks of the hon. member for York East whose version of the law I cannot share, this is one of the main and fundamental factors for married people. I would therefore ask the minister to consider introducing a government amendment which would permit a judicial discretion to be exercised in cases of misconduct which a husband or wife cannot reasonably be expected to endure. This consideration could then be submitted to the courts as a ground for the exercise of judicial discretion in terminating a marriage.
[DOT] (4:40 p.m.)


Pierre Elliott Trudeau: This debate has such an agreeable tone and hon. members are so constructive that I hate to appear obstinate. Moreover, as hon. members know, I really have no vested interest in the legislation one way or another. In response to the hon. member for Yukon I can only say on the question of whether there is cruelty or not that if there is nagging I suppose it could be interpreted by the courts to be mental cruelty if it goes on for a long time. So there is the test under clause 3. If there is not cruelty, then I must object to the suggestion on the ground-and I think the hon. member for Yukon and the hon. member for Peace River realize this-that it is really introducing the breakdown concept once again in its almost pure form, because here the courts will have to say there has been no cruelty. But what is it that one of the parties cannot reasonably be expected to endure? Is it something less than mental cruelty, a physical handicap of illness and, if so, how long does it have to be unendurable? Having taken the stand in respect of this bill that we will introduce only a modified breakdown concept, I can only say I am caught in my own logic and, perhaps with nostalgia, must reject the suggestion of the hon. member.
Clause as amended agreed to.
Clause 5 agreed to.

December 19, 1967
Divorce Law Reform
On clause 6-Rule for determining domicile.


Mr. Aiken:: Mr. Chairman, in connection with subclause 2 of clause 6 there is some doubt in the minds of several members who have read it and reread it concerning what it means. Would subclause 2 of clause 6 result in the recognition in Canada of Mexican divorces or divorces granted by any other jurisdiction outside Canada? At first glance it seems that this subclause is placed here in order to give effect to the first part of the clause relating to the domicile of married women who are under age and married women separate from their husbands' domiciles. However, there does not seem to be any limitation. The wording is most difficult to straighten out. Could the minister either give us the assurance that we will not recognize any divorce granted in any other jurisdiction which does not define domicile as we do, or tell us whether it limits it to places which recognize the domicile of a married woman only?


Pierre Elliott Trudeau: I will gladly answer that, Mr. Chairman. As a matter of fact I stood at the same time as the hon. member for Parry Sound-Muskoka because I had an amendment to introduce which I think tends to clarify the very question which has been asked. I realize that since we introduced the bill there have been some questions raised both in the house and in the press about the interpretation of this provision. I should like to distribute copies of this amendment both in French and English. It is seconded by the Postmaster General. I should like to explain here what the intention is and what I believe the amendment spells out. We intend to introduce domicile rules which are new to our law and which will go beyond even the recommendations of the joint committee because we not only apply the new rule of domicile to the married woman within Canada but also outside Canada.
I should begin by saying that clause 6, subclauses 1 and 2, really apply only to married women. In other words, we are not changing the law of domicile as it presently exists for men. That is the reason that in the amendment-hon. members might look at lines two, three and four-I have added these words to the present clause:
-without limiting or restricting any existing rule of law applicable to the recognition of decrees of divorce granted otherwise than under this Act-
Let us sum up the situation in respect of men first. In the case of men the rule will not

change. If a man goes to Mexico, Nevada or anywhere else, that is his domicile if he is domiciled there within the meaning of domicile as given by Canadian courts. Members, especially those who are lawyers, know that this is a difficult term and I would not attempt to define it here because domicile has varying meanings from province to province.


Mr. Bell (Carlelon):: That is the crux of the issue. It is what the Canadian courts determine.


Pierre Elliott Trudeau: Yes. I do not intend to rewrite all the laws in respect of domicile in Canada. There is a constitutional difficulty involved here. The provinces have their laws in respect of domicile and there has been some difficulty, as hon. members know, with regard to federal statutes in the matter of grappling with this idea of domicile. We did not wish to re-open the debate on that. If a man is domiciled in Nevada he can obtain a divorce under the Nevada laws, but he cannot just go there, establish a short residence there, not domicile in the sense we use the term, come back and expect our courts to recognize his divorce. So for the moment there is no change. Once again may I say that I am not attempting to cover all the jurisprudence and case law in respect of domicile. We are just trying to make the existing rule applicable to women as well as to men.
A woman who is married and domiciled in British Columbia does not have to move to the province where her husband has established his domicile in order to sue for divorce. In other words, under this clause, she is being treated equally with him. I believe this is a step forward toward fair treatment for men and women. We went a step forward and established this rule also in respect of persons domiciled outside of Canada. Here again we are going a bit farther toward liberalism and equality of the parties. We thought that the equality in this regard should apply not only within Canada but also outside Canada. That is the reason for subclause 2. Once again there is no attempt here to solve the problem of domicile in the final sense for men and women. We are just saying that whatever the laws are under provincial statutes or under provincial laws they will in divorce matters be the same for men as for women, a woman being in the position of a man for the purpose of divorce.


Mr. Macdonald (Rosedale):: Do I understand the minister is saying basically that so
December 19, 19G7

far as a man is concerned the law is not changed? The minister gave the example of a man who is domiciled in Nevada. The question of whether or not he is domiciled there is determined not by the laws there but by the law of Ontario if that is the province of the court in which the petition is brought.


Pierre Elliott Trudeau: That is correct.
[DOT] (4:50 p.m.)


Donald Stovel Macdonald: On the question of domicile the rules to be applied are the rules of the Canadian court rather than the rules of the purported place of domicile.


Pierre Elliott Trudeau: That is correct.


Sydney John Smith: I have a question for the minister relating to the first part of this clause which suggests that the domicile of a married woman shall be determined as if she were unmarried. This may lead to circumstances which are quite common to lawyers who live in the vicinity of armed forces bases. A soldier and his wife may have come from the province of British Columbia, for example, to live in Ontario. The cause for divorce may have arisen in Ontario. The man has no domicile here but the woman, if she has not gone into the labour force, may very well intend to return to her home, from whatever part of Canada she came, and could not meet the requirements. It seems to me it is not clear whether she has Ontario domicile for the purpose of divorce. It says "as if she were unmarried", but perhaps she has not entered the labour force or set up any permanent residence in Ontario and has not demonstrated one of the ingredients of domicile, namely, the intention to stay. Is that woman to be placed in the position of having to return to British Columbia where she intends to resume her separate life and be put to all the expense of a divorce in Ontario?


Steven Otto: The minister has said that it would be very difficult to establish Canadian domicile and I should like to know why. The minister will realize that domicile is very complicated so far as men are concerned because it involves the intention of living somewhere for the rest of one's life. I think this provision will lead to many appeals. We are now saying that a woman is to be put in the same position as if she were unmarried. I think this will lead to difficulties particularly if there is any objection to the establishment of Canadian domicile. If a person had domicile in Canada that person could originate a suit anywhere in Canada. I am given to
Divorce Law Reform.
understand there is some constitutional difficulty in this regard. The minister should indicate the provinces, if any, that have objected to this type of change in the law. Why do we not take advantage of this opportunity to change the ridiculous common law on domicile?


Gordon Harvey Aiken: Before the minister answers I should like to outline one other thing that still puzzles me, and I have in mind the words "without limiting or restricting any existing rule." Could we not merely use the word "altering"? I am concerned about enlarging the existing rule of law applicable to the recognition of divorce. I do not tbink we are too concerned about limiting or restricting any existing rule of the law because the existing rule is fairly clear. What we are concerned about is that this clause may expand or enlarge the rule of law. I am wondering whether the minister has any objection to the word "enlarging"? This is more what we are concerned about. I suppose it is difficult to define what you mean by "restricting" and "enlarging" because this depends on the direction of your thought. To my mind enlarging the existing rule of law would be making foreign divorces more broadly recognized. I do not think this amendment completely covers the point in that this clause is not intended to enlarge the recognition of foreign divorces.


Pierre Elliott Trudeau: Perhaps I may be allowed to answer some of the points, if I am able to do so. In answer to the question as to why we do not settle once and for all the rule of domicile and set it out in this law, apart from the constitutional difficulty, I think it is unrealistic for hon. members to want to settle this kind of extraneous question by the divorce law. I must refer members to the text of the bill which says "for all purposes of determining the marital status in Canada." It is for this purpose alone that I introduced the amendment. This amendment would not apply to other purposes which have to do with income tax, inheritance or anything else. We are saying that the existing laws on domicile, whatever they may be, when you are talking about marriage, will also apply to women.
Surely hon. members are aware of the reason we are doing this. It is not to complicate the law but rather to meet the case of a husband and wife who are living separate and apart. We want to avoid the necessity of a wife having to cross the country or perhaps the world in order to plead her divorce case

December 19, 1967
Divorce Law Reform
in his domicile, which is the case under our present laws. Under our present laws, by and large we define a woman's domicile as that of her husband, if she is married. We are saying that in respect of a divorce which puts an end to the marriage, so far as the establishment of domicile is concerned, a woman can establish domicile in any way which is open to a man. I cannot refer to all the domicile laws in Canada, but if hon. members will look at sections 79, 80 and 81 of the Civil Code of Quebec I think they will find a very satisfactory definition of domicile. We could write this into the statute laws of Canada, but I am not sure that all hon. members would be prepared to do so without having a committee look into the matter. I am suggesting that we bypass this broad definition now and say we are going to accept the laws of domicile but make them equal for men and women.
As to the point of saying "without limiting or restricting" rather then saying "without enlarging", it seems to me the point is we are enlarging the existing rule of law in Canada in such a way that it will apply to women as well as to men. I think that is all we should say at this point.


Terence James (Terry) Nugent: I am a little puzzled, since I think we all agree that the purpose of this clause is to make it possible for women to have a fair shake in the courts when it comes to domicile, because the clause says:
-of any country other than Canada by a tribunal or other competent authority that had jurisdiction under that law to grant the decree-*
I cannot get over the feeling that a court could interpret this as meaning that we are saying that if the court in the other country has jurisdiction then its law applies. I cannot understand why we have to word the clause in this way. Certainly the Reno courts would say that under their jurisdiction they have authority, and that is not our purpose. The minister shakes his head and indicates that it is, but it is my understanding that we are not recognizing the validity of a Reno divorce. The wording of this clause seems to me to leave it open to an interpretation which is not intended. All we are trying to do is to change the law in respect of women in order to make it clear that they have equal status. I think there should be some clarifying words to that effect.
[DOT] (5:00 p.m.)


Mr.   Olio@: Mr. Chairman, the minister has said that we should not tie in domicile with

property, taxes and so on. My intention, of course, was to define "domicile" only under this bill and for the purposes of the bill, and to allow any person domiciled in Canada to initiate a divorce action anywhere.
The minister said that we are putting the married woman in the same position as the man. I have taken part in the debate on this clause because this question brings to mind the famous case of Gulbenkien v. Gulbenkien on the question of domicile. The minister will remember it. Young Gulbenkien, the son of the oil baron, pleaded that he was domiciled in Paris because that was where his father lived and from where he got his income. In all these cases it will now be pleaded that the wife's domicile is really that of her husband because she depends on him for her maintenance. We may be restricting the right of a wife to plead a divorce action by allowing the domicile rule to remain as it is in the clause. Why could it not refer to Canadian domicile?


Gordon Harvey Aiken: Mr. Chairman, I may be
extremely dense today but if I am I was dense yesterday and I have a number of dense associates because we cannot figure out how this subclause will not have the effect of permitting a person who has obtained a divorce anywhere in the world to say that the divorce is valid because it was granted on the domicile determined by that particular court. The subclause starts with these words:
For all purposes of determining the marital status in Canada of any person-
In other words, the subclause starts out by covering those persons who have been legally divorced. Then it says:
-recognition shall be given to a decree of divorce granted after the coming into force of this act under a law of any country or subdivision of any country other than Canada by a tribunal or other competent authority that had jurisdiction under that law to grant the decree, on the basis of the domicile of the husband or wife in that country or subdivision, or on the basis of the domicile of the wife therein determined

Let us leave out the part about the wife because we know that is the intention of the subclause. I am concerned about the general law of Canada as related to husband and wife. As I read the subclause-and perhaps the minister could make it a great deal clearer-it provides that recognition is given to a decree of divorce granted on the basis of the domicile of the husband or wife "in that country", that is, the country that granted the divorce. How can the minister say this subclause does not say that? I know the
December 19, 1967

minister's intention. The intention relates only to the wife. If that is the case, all right, but the subclause does not say that and it refers to any person. I think this subclause is so badly phrased that an amendment would only make it worse.


Pierre Elliott Trudeau: Mr. Chairman, I can explain the meaning again, but before doing so let me say that when we find the word "domicile" in a Canadian statute-and I gathered from the question of the hon. member for Rosedale that this was understood-the Canadian courts interpret the word according to our law and not according to the law of whatever land is referred to. This explains the meaning of the phrase "domicile of the wife in that country." It is domicile as defined and understood by our courts in connection with our statutes and common law.
This means that if a person goes to Reno and obtains a divorce on the basis of residence and the person is effectively domiciled in Nevada-domiciled, once again, as understood by our courts-we will recognize that divorce because it was granted by a tribunal which had jurisdiction under the law of Nevada. In other words, the Nevada law will apply if the person is resident in Nevada under Nevada law and will be recognized in Canada if the person is domiciled there. Once again, the Canadian courts have always interpreted the word "domicile" in a Canadian statute according to Canadian laws and standards. This is the rule.
I would not mind spelling it out in a clearer way if that is the desire of the committee. I must say that we struggled quite a bit with this wording and I had the assistance of very able draftsmen, especially when there was some doubt after second reading. We then looked at this wording again. If we do not want to meet the kind of problem raised by the hon. member for York East and try to rewrite our laws on domicile, which I suggest we should not attempt if we want to adjourn for Christmas, we must not try to go any further than we do here. We must rely on the Canadian courts to continue interpreting the word "domicile" appearing in Canadian statutes as they have always interpreted it in the past.
With regard to the problem raised by the hon. member for York East, I would refer him to section 80 of the Civil Code of the province of Quebec and let him find the test there, which I think answers his question.
Divorce Law Reform


Terence James (Terry) Nugent: Mr. Chairman, would the minister answer a question? We say we are going to give recognition to a divorce granted by a tribunal that had jurisdiction under the law of that country. The only time domicile comes into the question is with regard to jurisdiction, and we are saying that we will recognize a divorce granted by a tribunal that had jurisdiction under the law of that country. This is the plain meaning of the word "domicile." I wonder whether we could not include a phrase such as "jurisdiction as defined or as recognized under Canadian law", in respect of a tribunal that has jurisdiction as recognized now by Canadian law?


Pierre Elliott Trudeau: I do not think it would meet the point at all. Let me try to illustrate by another example. I am only repeating the same thing in different forms. Let us consider the law of France. The law of that country will grant a divorce on the basis of nationality, not on the basis of domicile or residence or anything else. We would recognize a divorce granted in France by the authorities in that country authorized by their laws to grant divorce if the person asking for the divorce to be recognized in Canada was domiciled in France, not if he had the nationality of that country.


Mr. Bell (Carleton):: According to our laws.


Pierre Elliott Trudeau: The hon. member for Carle-ton says "according to our laws." We would apply the Canadian law of domicile to the person asking our courts to apply it. We would apply that test according to our law. I think I must sit down, Mr. Chairman.
The Assisiant Deputy Chairman: Is the
committee ready for the question?


Some hon. Members:: Question.


The Assistant Deputy Chairman:: All those in favour of the amendment will please rise.


Some hon. Members:: Carried.


Maurice Rinfret: Shall the amendment carry?


Some hon. Members:: Carried.


[Stage Direction]
Amendment agreed to.
Maurice Rinfret: Shall
clause 6 as amended carry?
Clause as amended agreed to.

December 19, 1967
Divorce Law Reform
[DOT] (5:10 p.m.)
On clause 7-Duty of legal adviser respecting possibility of reconciliation.


Donald Stovel Macdonald: Mr. Chairman, my comments on clause 7 will also apply to clause 8. In my opinion neither clause is consistent with the function either of a lawyer or a judge. It is the role of the lawyer to determine the facts in the particular case and to advise his client of their effect under the law. In the role of an advocate it is the duty of the lawyer to adduce proof of facts in support of his client's case and then to persuade the court of his client's rights under the law in the face of these facts.
I should like to turn to some of the considerations which are involved in these two clauses, namely, whether or not a particular couple may be reconciled, whether it would be appropriate to require them to undertake further efforts at reconciliation, and what these efforts should be. In my opinion these are not legal questions and should not properly intrude into legal proceedings. There may be persons with appropriate training in the social sciences capable of prescribing for conduct on the part of either or both the spouses which might lead to reconciliation, and it might well be that following a further study of human relations some more general process of reconciling this type of dispute may be established. I must express some doubt as to the likelihood of finding such an early solution to these problems, but I do not discount the possibility.
I note that the report of the joint committee at page 153 was much less positive than is the draft bill as to the efficacy of this proceeding. The committee acknowledged that compulsory marriage counselling is not a practical proposition and the following statement is made in its report:
However, while the introduction of such provisions into the law might be desirable, it would be a mistake to expect too much from them. The experience in Australia, and some other jurisdictions, would lead one to believe that such powers tend to be exercised infrequently.
It seems clear to me that at the present time members of the legal profession and the bench are not qualified to make definitive judgments on the kind of question which is imposed on them, and it seems likely that the words in the clause which will most frequently be used are the so-called escape words, namely, "except where the circumstances of the case are of such a nature that it would clearly not be appropriate to do so." I have the suspicion that this exception will
[The Assistant Deputy Chairman.]
be invoked far more frequently than the other provisions of the clause.
I do not think the clauses impose a serious legal problem or a serious impediment to parliament but I think they are unrealistic. I direct my comment not so much at the minister as at my colleagues at the bar in Toronto who have asked me what we intend to do by this requirement. I do not think these are appropriate provisions. I think I understand some of the minister's thoughts in introducing them but I do not predict legal efficacy for them.


Mr. Fairweaiher:: I could not agree more with the hon. member for Rosedale. I spoke on this matter at an earlier stage of the debate on the bill. I respect the minister and therefore I think he will not mind when I use strong language. I believe this is nothing more than a sop and window dressing. I am absolutely certain that it will just become a technique sloughed off by barristers merely to fulfil the meaning of this clause. I think this is a great pity because the need for assistance arises long before the case reaches the lawyers office.
I believe the minister will agree that there is a need for a useful marriage counselling service to be set up by whichever jurisdiction has the power to do so under the constitution. I think it is a pity that a basically good piece of legislation is cluttered up by a catchall section which is thrown in here merely to placate those who are interested in the strengthening of marriage and in the reform of the law in general. I know the minister can give a good answer and we eagerly anticipate it, but I think it would be better if we did not have this clause at all. Parliament should not say something in the legislation which it knows perfectly well will not have a meaningful or useful effect.


Steven Otto: Mr. Chairman, I support the hon. member who has just spoken and I suggest to the minister that the clause be deleted entirely. I urge the committee to vote against this clause. Let us consider it carefully. It reads as follows:
It shall be the duty of every barrister ... except where the circumstances of the case as of such a nature that it would clearly not be appropriate to do so-
Barristers are in business to make money. The old concept of professional ethics has certainly dimmed in the past 10, 15 or 20 years. I would hate to entrust some barristers
December 19, 1967

with the decision as to which of the circumstances in any case are or are not appropriate. They are not trained to decide that. This is why in subclause 1(a) of clause 7 it is stated:
To draw to the attention of his client those provisions of this act that have as their object the effecting where possible of the reconciliation of the parties to a marriage;
That is easy enough. The lawyer will say to the client: Here is the act, read it. Subclause 1(b) reads:
To inform his client of the marriage counselling or guidance facilities known to him-
I for one cannot even think of one marriage counsellor in Toronto to whom I would care to send anyone. The qualifications of marriage counsellors in Toronto are nonexistent, and complaints have been made about this for years. There are no competent people in this field in Toronto. Of course there are psychiatrists who charge a great deal of money for their services, but I would not suggest to any person that he spend $40 or $50 an hour over a period of several years. Subclause 1(c) reads:
To discuss with his client the possibility of the client's reconciliation with his or her spouse.
I suggest that whatever is usually done by lawyers will be done. I found whenever I undertook to discuss reconciliation with a petitioner for divorce that they had already made up their minds to get a divorce and did not want my advice. Subclause 2 reads as follows:
Every petition for divorce that is presented to a court by a barrister-shall have endorsed thereon a statement by such barrister-that he has complied with the requirements of this section.
I suggest that the compliance will be in word only; it will merely be a rubberstamp compliance. Who will then judge whether the lawyer has indeed complied? Therefore I suggest to hon. members that they should vote against this clause.


Mr. Herridge:: Would the hon. member permit a question? He said that barristers are not trained to do the things he mentioned. I am in the dark on this issue. Could he explain his statement?


Steven Otto: I am sure the Chair does not wish me to start a discourse on the training and qualifications of lawyers. All that can be said with certainty is that they are not trained to be marriage counsellors.


Mr. Enns:: Mr. Chairman, I do not want to let the remarks made by the hon. member
Divorce Law Reform
for York East go by without some challenge. Would he not agree that some effective counselling is being done by marriage and family counselling agencies, not particularly related to divorce proceedings but rather preventive counselling services to strengthen and keep families together? Would he not agree that such a service is available in Toronto?


Steven Otto: No, Mr. Chairman, I do not agree with that. I have come to the conclusion that qualified psychiatrists are hesitant about taking marriage cases because they feel there is not much chance of success. If any lawyer tries to send a client to a marriage counsellor or a psychiatrist who specializes in this field, he will find it very difficult. In the city of Toronto marriage counsellors are usually retired tax assessors or hangers-on at city hall. These counsellors often say: There is not much you can do so you had better get a divorce. After all, this is a very complicated business. There are no doubt some competent marriage counsellors, but the average marriage counsellor leaves me with little hope for the success of this provision.
[DOT] (5:20 p.m.)


Francis Andrew Brewin: The minister may be surprised to know, Mr. Chairman, that I should like to support this clause. I do not want to be diverted by the hon. member for York East into discussing either the qualifications of lawyers or of marriage counsellors in the city of Toronto. I should like to say to him only that I do not agree with his rather pessimistic conclusion on both groups of people. I am sure there are lawyers who have no qualifications. I am sure there are marriage counsellors who have no qualifications. I should like to suggest to him there are lawyers with very good qualifications embracing experience and humanity. There are marriage counsellors who have the same qualifications.
During the debate on second reading of the bill I said I was apprehensive about clauses 7 and 8 when they were attached to legislation which maintained the concept of marriage offences. What the hon. member for Rosedale and the hon. member for Royal have said may be correct. This may be just a sop, as they put it, or a formality which the profession may not take seriously. I share their basic views on this matter but I want to disagree with them in this respect. I believe that the maintenance in this bill of clauses, however inadequate they may be, which look to the concept of reconciliation is good. I take the view that if in the future it turns out these provisions are inadequate it will be up

December 19, 1967
Divorce Law Reform
to parliament to amend them and make them more effective. 1 do not believe that we should just remove them from the bill as though parliament did not believe that procedures for reconciliation are important. This would leave the impression that parliament had adopted the view of the hon. member for York East that lawyers and marriage counsellors are quite incapable of dealing with matters of this sort. I repudiate this contention. I do not believe that these clauses, as they stand in the framework of this bill, are going to produce any wonderful results. However, I suggest there is greater value in keeping them here than in taking them out. I suggest we should support these clauses.


Terence James (Terry) Nugent: Mr. Chairman, I believe the hon. member for Rosedale and the hon. member for Royal put the argument very well. There is almost nothing to suggest that these two clauses should be retained in view of the fact the house has considered and rejected the marriage breakdown concept. These two clauses really suggest to the courts that we are bringing in the marriage breakdown concept by the back door. Before the court can look at the petition for divorce the lawyer must advise the petitioners of this concept and the court must be satisfied that it has been considered. We then have a case which amounts to marriage breakdown. I suggest to the hon. member for Greenwood, who is so much in favour of that principle, that he is in favour of these two clauses because they do everything that he feels should be done in so far as the marriage breakdown concept is concerned. Since the house has rejected it and since it would be an unsatisfactory and unworkable way of trying to bring about a divorce, I must agree with the hon. members who support the rejection of these two clauses.


Ian Grant Wahn: I should like to support the retention of these two clauses. I say to the hon. member who has just spoken that the house has not rejected the principle of marriage breakdown, as I understand it, but has accepted the principle of marriage breakdown as one of the grounds for divorce. The house has rejected the contention of those who wished to have marriage breakdown as the only ground for divorce. The principle of marriage breakdown as an important ground for divorce has been accepted. These two clauses are completely consistent with the principle of marriage breakdown. I hope they will not be treated merely as formality either 
by the legal profession or by the bench but on the contrary will be taken very seriously.
It may well be that at the moment we do not have adequate facilities for marriage counselling, but we have some in the city of Toronto. It is my understanding that they have been effective in some cases. I feel these are important clauses and they should be retained. We are primarily concerned with the maintenance of sound marriages in Canada, not merely with providing a quick method for cutting the marriage tie. These two clauses are important and if they prove to be less effective than we think they should be strengthened in the future.


Mr. Leboe:: I wanted to ask the minister to explain what an advocate is. There is a reference in the clause to "barrister, solicitor, lawyer or advocate." These words appear also in clause 8. It is interesting to note that after a petition is brought before the court, the court can nominate a person of experience and training in marriage counselling or, in special circumstances, some other suitable person. I am wondering what an advocate really is. Perhaps the minister would relate his explanation to clause 8. I realize we are dealing with clause 7 but perhaps he could relate his explanation to clause 8 and give some clear explanation of what an advocate is.


Pierre Elliott Trudeau: Perhaps I should deal with that point first. As hon. members will recall, when you are in doubt about the meaning of a word in a statute of Canada you look at the translation. The words "barrister, solicitor, lawyer or advocate" are translated into French by the one word "avocat". I think the key to the enigma is that the bar of each province decides who has the right to appear be. ore the court to present petitions for divorce. In some provinces they are called solicitors and barristers. The bar of each province will decide who is entitled to appear and the names given to these people will vary from place to place. I cannot explain exactly why the word "advocate" was used here except that perhaps some provincial bars use the word "advocate". From the context obviously it is any person who is entitled to present a petition for divorce.
[DOT] (5:30 p.m.)
On the same general problem, in dealing with the question of why we talk about reconciliation in these clauses the word "sop" was used. I am sure it was chosen with a little bit of irony. The truth of the matter is
December 19, 1967

that the government took the view that it should write into the bill provisions intended to go as far as possible to avoid divorce by ensuring that reconciliation procedures would be attempted. We did this not as a sop to the very responsible bodies which made representations to that effect but because we wanted to respond as ably as we could to the desire of the Canadian people to maintain marriage as the important institution it is and to put divorce in a very special place in our society. I can say that we went as far as we could under our constitutional authority.
The hon. member for St. Paul's gave the bill his support. I am grateful for his support. He indicated that if it did not go far enough we should try to do better. I agree with his comments. But I can only say here that to go much farther we would have to enter a field which is not strictly a federal field. As I explained in my opening remarks, in this bill we were faced with all kinds of constitutional difficulties, and it would have been simpler if we had sought an amendment to the constitution to transfer jurisdiction over marriage and divorce to the provinces. I hope nobody in the press catches this, but this would have permitted an easier solution of one aspect of the matter because the provinces, through their authority over social welfare, through their authority over the general matter of children, marriage and the consequences of marriage in a social sense, can do much more than we can in the area of reconciliation. Perhaps I should point out, Mr. Chairman, that the first part of my last sentence was partly facetious. We have authority over divorce. We legislate on divorce and we have gone as far as we can to write provisions respecting reconciliation into our laws.
To lessen the fears of the hon. member for Rosedale that we are going outside the spirit of the law by asking the lawyers and the judges to do this, I can only refer him to the laws of a number of countries which are guided by the same rule of law as we have. I would not mention France, which has a different system and which imposes upon a judge the duty to attempt reconciliation, but I would point out that in New Zealand the court is required to consider the possibility of reconciliation, and it may adjourn for that purpose. The adjournment there is for 27 days instead of the 14 days that we have provided. In Australia the court is also required to give consideration to the possibility of reconciliation. Once again, I say we did
Divorce Law Reform
the best we could under our law. Perhaps in better times and under a different constitution we could have a different type of court, similar to those I was attempting to describe yesterday, which would be closer to the concept of administrative law. But once again for constitutional reasons we could not do this.
We felt we must not refuse altogether to tackle the problem, and we have tackled it by a measure that went as far as we felt we could under the constitution. I would gladly accept amendments if they could make it go farther, or I would suggest we take the attitude that, in later years, after some time for study of the application of this legislation, we should see if we can improve it.


Edward Richard Schreyer: Mr. Chairman, it is interesting to note that all the members who have spoken on clause 7 are members of the legal profession. Perhaps they should have a special concern because what is involved is the imposition of duties on lawyers who attempt to act in divorce cases. I listened carefully to the hon. member for Rosedale but I could not really determine whether he was opposed to the provisions of clause 7 because he felt they had no efficacy or because he felt they were undesirable. Perhaps he meant both. I am still not sure.
I would like to support the retention of clause 7 in the bill for the reason that it simply puts the onus on lawyers who presume to act in divorce cases to attempt to try to help toward the achievement of reconciliation between marriage partners who feel they have no way out but to seek divorce. It may be that some members of the legal profession will use the escape feature contained in subclause 1. It may be that some lawyers will simply ignore the provisions of clause 7 by consistently using the excuse that in the circumstances of the case it is clearly not appropriate for them to advise their clients that there are marriage counselling services, guidance facilities, etc., available. But in that case, let the onus be on the individual lawyer. Let his conscience bother him. I do not see why we in this parliament should remove the substance of clause 7 simply because it is felt that some lawyers may seek to ignore its provisions.


Bert Raymond Leboe: Would the minister consider a situation where in a province someone other than a barrister, solicitor, lawyer or advocate presents a petition to a court? It seems to me that there are other qualified people who

December 19, 1967
Divorce Law Reform
could present petitions and it the provincial authority gave them that right they should be able to do so. This is something that should be left to the provinces, is it not?
I can see a real heyday for lawyers so far as money is concerned when they get into a situation like this with one postponement after another. The result will be that they will continue to add a little more to their fees and really go to town. It seems to me that we are putting the presenting of petitions solely in the hands of the legal profession.


Pierre Elliott Trudeau: 
Bert Raymond Leboe: Mr. Chairman, should there not be some mention about an individual himself being able to plead his case? That is not mentioned in the bill. I am not a lawyer; I am merely seeking information.


Pierre Elliott Trudeau: That might be ultra vires.
The Depuiy Chairman: Shall clause 7 as amended carry?


An hon. Member:: On division.


Pierre Elliott Trudeau: On a point of order, Mr. Chairman, I do not think there was any amendment to clause 7. In any event, no

amendment has been carried. The clause must either carry as it is or not carry.


Francis Andrew Brewin: On the same point of order, Mr. Chairman, I recall that there was an amendment before us but I did not hear the amendment being put. Had it been put I should have voted against it.


An hon. Member:: There was no
amendment.


Mr. Cameron (High Park):: There was the suggestion of the hon. member for York East. We did not vote on it. I want to say a few words on this clause because I support what the minister is trying to do. The thinking of the committee is well set forth on page 153 of the report in the following words:
However, it is to be hoped that conscientious lawyers would do this without official urging.
Sometimes reconciliation is impossible. If a lawyer loses a case, so what? Every conscientious lawyer takes on that responsibility. The law is a profession; it is not a mercenary trade. The responsibility of the lawyer is to see that the law is carried out. That was the thinking of the committee.


Some hon. Members:: Hear, hear.


Maurice Rinfret: Shall clause 7 carry?


An hon. Member:: On division.


[Stage Direction]
Clause agreed to.
On clause 8-Reconciliation proceedings.
Siegfried John Enns: I share the reservations that some hon. members have expressed about the efficacy of clauses 7 and 8 of the bill. Clause 8(l)(b) increases the number of disciplinary professions that may be involved in counselling. Paragraph (b) reads:
(i)	a person with experience or training in marriage counselling or guidance, or
(ii)	in special circumstances, some other suitable person,
I ask the minister why so many categories are included. I also ask him to recognize that effective work is being done by child care institutions, family bureaux and other agencies throughout the country. They do good preventive work and they have kept many families from appearing before the divorce courts because of their counselling and preventive work. I wonder whether the minister would accept a suggestion. I am not prepared to move an amendment at this stage. Could paragraph (bXi) read this way: "a person or
December 19, 1967



agency with experience or training in marriage and family counselling". The other words in (b)(i) could be deleted. In fact, (b) (ii) could be deleted altogether. Would the minister accept this suggestion?


Francis Andrew Brewin: Mr. Chairman, I want to deal with precisely the same question that the hon. member who has just spoken has raised. Someone who is in the social welfare field with the social planning council of Ottawa told me yesterday that in the Canadian field of social services there are some who have been trained in family counselling rather than in marriage counselling. If marriage counselling is to be regarded as a separate discipline requiring a separate form of training, few Canadians have been trained in that field. For that reason I prepared an amendment which I sent to the minister. The amendment would strike out the words, "marriage counselling or guidance" in (b)(i) and substitute the words "family counselling". The latter term, I understand, includes marriage counselling or what is purported to be guidance.
I bring this subject forward not because I have any knowledge in this field but because certain information was conveyed to me. The term that ought to be used in the bill is "family counselling". I agree with the suggestion which the hon. member for Por-tage-Neepawa brought forward. I do not wish to move a formal amendment since formal amendments have not been too successful. But I ask the minister nevertheless, to give this matter consideration. Perhaps he might suggest such an amendment.


Pierre Elliott Trudeau: The hon. member for Greenwood raised this subject yesterday. I have had time to reflect on what he said and I shall answer him at the same time as I answer the hon. member for Portage-Neepawa. I think the hon. member for Greenwood, who is sensitive with respect to constitutional questions, will understand my reasoning. I have no objection to the expression "family counselling" as such but I want the language of the bill to be as strict as possible. Though hon. members may have dissenting opinions on the matter, I wish to stick to the words of the B.N.A. Act which give the federal government jurisdiction over marriage and divorce but not over family matters.
Perhaps considerations having to do with the B.N.A. Act might not influence every member but I think they are important. I do not wish to give a pretext to any parties who
Divorce Law Reform.
might look at the bill for saying that the bill deals with subjects that directly or indirectly do not come within federal jurisdiction. I am certain that marriage and divorce come within federal jurisdiction but, on the other hand, family questions are mixed questions and are not entirely within federal jurisdiction. For that reason I do not think that we should spend too long on the words which have been suggested as amendments. The language of the bill is safe language, in my opinion.
The hon. member for Portage-Neepawa suggested that paragraph b(ii) should be eliminated. I thought that in some instances the court might decide that the family priest or pastor, who is perhaps not specialized in marriage counselling or guidance, would be the appropriate person to bring in as a counsellor. That is why the wording is as it is.


Siegfried John Enns: Since the minister is reluctant to delete (b)(ii) would he consider adding to (b)(i) the two words "person or agency". I wonder whether the bill as it now reads excludes the worth-while work that certain agencies now perform. Certain family agencies may be excluded from participating in guidance or counselling as the bill now reads.
The minister referred to the language of the B.N.A. Act. What he said may be very true. The minister, I am sure, wishes to see certain revisions made to that act. We are now in 1967 and the act could include some new words. It could well include the words "marriage and family counselling". Would the minister not agree that far from being revolutionary this would, in fact, be more in keeping with the usage of language which is common today-"a person or agency with experience and training in marriage and family counselling"?
[DOT] (5:50 p.m.)
I find a special difficulty with the word "guidance". In my mind guidance has very much to do with vocational counselling. Most guidance counsellors work in schools or universities and advise students on courses of training appropriate to their future careers. Perhaps the meaning as I have expressed it is too limited. Perhaps the minister could expand it. I would still ask him, though, to include the word "agency" and the word "family" so that the clause might read, "marriage and family counselling" and so on.


Francis Andrew Brewin: The Minister of Justice said I was sensitive to constitutional issues and I hope he is right. But surely he is carrying a constitutional issue beyond any conceivable

December 19, 1967
Divorce Law Reform
relevance when he says that because we suggest in a clause dealing with a peripheral matter, that a family counsellor should be consulted we are in some way or another being unconstitutional.
After all, if the minister has been able to swallow clause 11 which deals with custody of the children of a marriage and the maintenance of the wife-and I do not know what is closer to being a family consideration than that-if he can swallow that camel surely he should not strain at the gnat in clause 8. I do not think this is an earth-shaking matter, but if the minister has found out that my information is correct, namely, that there is a group of people who are trained in family counselling and who happen to be the people most capable in Canada of performing the function referred to in clause 8, I wonder why what I must say appears to be a farfetched constitutional argument should be dragged in to prevent a description of the officials who can help.
I point out that when we are through with family counsellors we can get any other persons to do the counselling. Surely the minister does not mean that reference to family counsellors would lead to constitutional difficulties simply because we do not put in the word "marriage" or "divorce" in every clause and subclause of the bill.


Pierre Elliott Trudeau: It seems to me we can rely on the courts to call on a marriage counsellor or a family counsellor. I think we can rely on their common sense. Even if an agency is called a family agency or family guidance agency, the courts could conceivably say that the people concerned must know a little about marriage.
I do not think this discussion is a very useful one. I used the word "marriage" perhaps because there was a slight constitutional bias in my mind in favour of a word appearing in the British North America Act, the subject of federal jurisdiction. I am not irrevocably wedded to it but I do not think it is worth while suggesting an amendment inspired by the idea that the courts would not use the services of people who happen to call themselves family counsellors instead of marriage counsellors.
I think the reason we used the word "person" instead of "agency" is that we did not want this to become impersonal. We think that, in fact, the courts will probably choose counsellors who are members of agencies, but
[Mr. Brewln.l
there is nothing lost by using the word "person". Indeed, if one looks at the Interpretation Act one might even find "person" interpreted as being an agency on occasions. I am not sure. It might be the case.


[Stage Direction]
Clause agreed to.
On clause 9-Duty of court on petition.
Francis Andrew Brewin: In connection with this clause I have an amendment to move which I believe to be of some substance. It relates to subclause (1) (a) which provides that when divorce is being considered by a court it shall be the duty of the court to refuse a decree based upon the consent, admissions or default of the parties or either of them, and not to grant a decree except after a trial, which shall be by a judge without a jury.
Here I believe that what was intended was that a decree should not be based upon either written or formal consent presented to the court, or upon mere admissions or default in the absence of a trial. I think it was intended to deal with the question of proof or the manner of proof either of the offence or of the circumstances indicating marriage breakdown. But I would point out to the committee and the minister that a perfectly proper interpretation of the words I have referred to could give them a far wider meaning. They could mean that where there was consent basic to the circumstances concerning the ground for the divorce, the court must refuse the divorce.
It is my suggestion that this weakness could be cured very easily by adding two words to the paragraph which would then read as follows:
It shall be the duty of the court-to refuse a decree based solely upon the consent, admissions or default of the parties or either of them-
And so on. The use of the word "solely" would indicate that it is the intent of parliament merely to deal with the question of how one proves the case upon which a petition for divorce is based, and that the reference is to formal consent or pleadings. This is important because it is quite possible that the intent of parliament could be defeated by some judge who would say that upon the evidence it appears to him that the parties consented, for example, to commit adultery or consented to a separation, and the petition was therefore based upon the consent of the parties.
The fact of the matter is that many divorces under the old system have involved an element of consent. No doubt this will
December 19, 1967

continue to be the case when the new system is introduced. I am not talking about collusion. I am talking about consent to the extent that the parties are in accord as to the facts or are aware of what is going to happen. In these circumstances I suggest it would be useful to clarify clause 9.
I do not know, Mr. Chairman, whether you propose to call it six o'clock and proceed with other business at this stage, but I have an amendment to present to the committee and I will read it in order that the minister may consider it. I move:
That clause 9 (1) (a) be amended and the following substituted therefor:
(a) to refuse a decree based solely upon the written consent, admissions or default of the parties or either of them, and not to grant a decree except after a trial which shall be by a judge, without a jury.
[DOT] (6:00 p.m.)


Maurice Rinfret: Order. It being six o'clock it is my duty to leave the chair in order that the house may proceed to the consideration of private members' business.



PROCEEDINGS ON ADJOURNMENT MOTION


The Acting Speaker (Mr. Rinfret):: It is my
duty, pursuant to provisional standing order 3 9A, to inform the house that the questions to be raised at the time of adjournment tonight are as follows: The hon. member for New Westminster (Mr. Mather), Unemployment Insurance-inquiry as to inclusion of hospital employees; the hon. member for Carleton (Mr. Bell), Public Service-request for reconsideration of increase refusal; the hon. member for Winnipeg North Centre (Mr. Knowles), Public Service-pensions of retired civil servants.
The house will now proceed to the consideration of private members' business as listed on today's order paper, namely, private bills public bills.



PRIVATE BILLS


[Stage Direction]
The house in committee on Bill No. S-17, to incorporate Vawn Pipe Lines Ltd.-Mr. Jorgenson-Mr. Rinfret in the chair.
On clause 1-Incorporation
Maurice Rinfret: Shall clause 1
carry?
Private Bills


Mr. Barnett:: December 19, 1967
Private Bills
the situation which was in fact created in this country in an earlier era with regard to the charter of a multiplicity of railway companies. I do not intend to repeat the argument I advanced in connection with the other bill. However, I notice that during the committee hearing some inquiry was made concerning the area of operations this company has in mind if it should be authorized to go into business. Reference was made to an area in the northwestern part of Alberta close to the Alberta-B.C. boundary. I should like to read from the minutes of proceedings and evidence No. 9 of the standing committee on transport and communications, page 315. This is the evidence of Mr. Matheson. He said:
At this time we are probably talking about only 30, 40 or SO miles, in that area, depending on how far east we have to go of the B.C. boundary to pick up the product and move into B.C.
Then the hon. member for Wellington-Huron asked about the existing pipe line over the boundary in British Columbia. In the questioning the fact is brought out that Westcoast Transmission Company Limited operates in the field of gas and a provincial company known as Western Pacific Products and Oil Pipelines Ltd. transports crude oil. It is mentioned that these lines run roughly parallel to one another down through British Columbia. Apparently it is made clear that this proposal would enable the transmission of petroleum products west through the outlet leading to the British Columbia coast rather than through the Rainbow Pipe Line system which apparently operates in the same general area of Alberta.
[DOT] (6:10 p.m.)
The point that interested me was a question by the member for Wellington-Huron in which he remarked that it would appear as though there were going to be an awful lot of pipe line companies out there. I mention this to show there are members of the house who may not be very familiar with the geography of a particular part of the country but who are interested, if not concerned, about the great multiplicity of pipe line companies and the possibility of unnecessary duplication of pipe line construction.
The spokesman for Vawn Pipe Lines made it very clear that while in comparison they may not be as big as Westcoast Transmission they would like to be. This leads me back to the point I was trying to make during an earlier discussion, that by granting to company after company wide open authority and power to build anywhere and everywhere, as

is proposed by the terms of this bill, we are setting up group after group of businessmen who think they are going to be able in effect to run the pipe line business of the country.
By setting up a multiplicity of conflicting and competing interests we will in my view have overconstruction and overexpansion of transportation facilities, in spite of the authority for regulation conferred by the National Energy Board Act. This concern is more pointed if one examines the National Energy Board Act to see what terms of reference are given to the board by that act. As I understand the act, practically no terms of reference are given to the National Energy Board. I other words, it is a board that, subject to the occasional and very spasmodic review of parliament, acts at any particular time in relation to the allocation of certificates for construction of pipe lines almost entirely on the whims or fancies of government policy as they exist at any particular time. This situation is far too closely parallel to the kind of situation which existed in the days of the railways building boom in this country.
The National Transportation Act passed by parliament during the 1966-67 session and as hon. members are well aware, there is reference in that act to pipe lines but pipe lines which are defined strictly as commodity pipe lines. By definition this does not include the kind of pipe lines used for the transmission of oil or gas. It is true there is a preamble to the National Transportation Act which purports to set out a general transportation policy for Canada, but that transportation policy applies only to commodity pipe lines. I do not want to attempt to say whether it is adequate, but as I understand it that is the situation. It applies only to commodity pipe lines which are covered under part II of the National Transportation Act. It does not in any way apply as a term of reference laid down by parliament in respect of gas or oil pipe lines.
This leads me back to the contention that the existing terms of reference in respect of licensing for the construction of pipe lines are not such as to satisfy me that it is advisable or desirable to go on passing bill after bill incorporating companies with wide open authority to construct pipe lines anywhere in the country. In fact, the principle involved in the incorporation of this company is concerned only with the construction of a very modest pipe line within a fairly limited area,
December 19, 1967

Private Bills
according to the evidence placed before the committee.
I am prepared to suggest in connection with this bill, as I did in connection with the previous one, that we should have a serious look at the advisability of continuing to incorporate companies of this kind. It is all very well to suggest that this is simply a matter of creating a corporate being, and I notice the National Energy Board Act says that pipe lines may be constructed and operated by companies, but this leads us to suggest that we ought to have a serious look to see whether it is necessary or advisable to allow groups to come before parliament with this kind of application for incorporation.
At this point perhaps I should draw the attention of the committee to another feature of this bill, and attention was drawn to this situation during the committee hearing by the hon. member for Kindersley. The terms of this bill, it was suggested, would give this company the power to get into the commodity pipe line business. In this respect it seems to me we are creating a situation in which the company will be given authority to operate under the National Energy Board Act and under part II of the National Transportation Act when that act is proclaimed and comes into being. Here again, in view of discussions we have had about a possible breakthrough in respect of commodity pipe lines it seems to me that by allowing as a matter of routine to any and all comers the right to enter this field, in addition to what they claim to be their immediate concern, the construction of a small pipe line for the transmission of petroleum products, we are opening up a real Pandora's box. If this is allowed to continue it seems to me it will become virtually impossible for any body such as the National Energy Board or the Canadian Transport Commission to maintain any kind of rationale because of all the conflicting interests and pressures which will be brought to bear.
The concern I am trying to express is by no means frivolous and I am not attempting to express an obstructionist view. I feel that hon. members should give consideration to a broader term of reference than apparently was dealt with by the transport committee. Indeed, when the transport committee meets to hear a particular applicant it cannot go beyond the terms of reference in questioning the proposals. I think it is up to the committee of the whole house to explore the broader aspects of whether the practice of incorporating companies such as this should be continued.
[DOT] (6:20 p.m.)
When I say that, Mr. Chairman, I am not in any way being directly critical of this applicant because the proposals contained in this bill have been put forward by others. No doubt counsel for this company, when assisting it to prepare the bill suggested the company should ask for all these powers, with the kitchen sink thrown in, as one might say. This is the kind of examination and consideration that I feel should be carried out in a broader context before we placidly rubber-stamp these applications one after another as they come before us in committee of the whole.


Terence James (Terry) Nugent: Mr. Chairman, the only thing that surprised me in the address just given was that the hon. member said he was not being frivolous or obstructionist. As to the rest of his speech, I have no doubt as to the sincerity, earnestness and ignorance displayed in the views he brought to bear on this subject. I have had private conversations with the hon. member and I said to him that his last speech was obstructionist and he managed to talk the bill out so that it went to the bottom of the list.


Thomas Speakman Barnett: The hon. member for Edmon-ton-Strathcona did a fair amount of talking himself.


Terence James (Terry) Nugent: I gave him as much information as I could, and I thought this time I had better put it on the record rather than privately and quietly in conversation with him. First, if the hon. member wanted to know anything about this company's plans, in order not to waste the time of the house- there is only a certain amount of time for private members' bills-these questions could have been asked in the committee. Certainly the efforts of the New Democratic party in the committee are notably lacking. They are not interested. All they want to do is make sure that they kill these bills in the house. I want it on the record that this is a pipe line bill in the usual form, the form that has been settled by parliament, by both the Senate and the House of Commons, for a long time as being the most suitable for pipe line construction. I want it on the record that this is a Canadian company, Canadian owned, Canadian managed, and working in a Canadian field-the sort of thing I thought most of us in this house wanted to go along with.

December 19, 1967
Private Bills
The talking out of the Cabri Pipe Lines bill, as they are doing now with Vawn Pipe Lines, means that these bills will not be passed this session. As the New Democratic party members know, this means we will not be able to provide jobs for welders and other workers in the pipe line and construction industry whom most of us want to see working. The New Democratic party, by their tactics, are keeping these people from valid employment this winter.
There was no valid point of criticism in the speech just made, nor was there in the speech of the hon. member for Timiskaming when the previous pipe line bill was before the house. There has been no validity at all in so far as criticism of the form of this bill is concerned.


Mr. Peters:: Mr. Chairman, would the hon. member permit a question? Was there any indication anywhere in the evidence that this company had any intention of building the pipe line this year?


Terence James (Terry) Nugent: With regard to Cabri Pipe Lines, I am not sure what the evidence was that was given before the committee.


William Arnold Peters: I am referring to this bill.


Terence James (Terry) Nugent: With regard to Vawn Pipe Lines the evidence given before the committee was that some drilling companies are now engaged in drilling for oil and gas in the field. If those efforts are successful, and the indications are that they will be, there will be an early demand for this commodity. Bearing in mind the time necessary to go before the National Energy Board and the various provincial bodies, if the company is to be able to service those oil fields at the time the service is required they need this authority now. I am not sure whether this will take two or three months, and obviously the hon. member who asked the question could not care less whether or not there will be jobs this winter.
The hon. member who just spoke talked about paper tigers and setting up a company with unlimited powers. All we are being asked to do is set up a corporate entity with the capacity to do any number of things that the National Energy Board will give them the power to do in the national interest. This house has delegated to that board the responsibility of checking to see what powers are necessary, what areas the company may serve, to what extent they may serve and in what manner they may do it.

All this is known, of course, to these members. Any suggestion that this bill is wide open and the company can build anywhere for any purpose is just so much nonsense, as they well know. I cannot for the life of me understand the attitude of the New Democratic party members in making such a fuss with regard to other bills. They have talked out other private members' bills because, they said, there was not enough Canadian content in the company. They wanted to ensure Canadian ownership, Canadian capital in the company, Canadian management and that Canadian workmen would get the jobs. When we find all these conditions met by this company, as they were by Cabri Pipe Lines, the New Democratic party finds another excuse. Perhaps I am being unfair to the New Democratic party; it could be that it is simply the hon. member for Timiskaming and his helper who have decided that there is no better way in which they can show how powerful they are as members than by abusing private members' hour and saying that everybody must knuckle under to them and to any peculiar notion they have.
I suggest that if the will of parliament were supreme in these matters members would rise and voice their valid objections and then let the matter come to a vote in order that the house could decide whether in a matter of this kind we were giving wide open powers to a group that was irresponsible or that we were neglecting to exercise control. Since the members who talk out these bills are singularly unwilling to let them come to a vote, it shows they know they would have no support whatsoever in the house in trying to obstruct these worthy projects. When these members try to talk to us about their duty as legislators, I submit their words fall on rather unfertile ground.
There is no use my talking any further, Mr. Chairman. I am sure we will hear a long harangue from the hon. member, but I want it on the record at the time these members are speaking that if there is anything wrong in the form of this bill I have yet to discover it. In my conversations with them and from what they have said in the house I have discovered they have yet to bring forward a single valid criticism of the powers granted or show that they are unnecessary. I am willing to answer any argument in this respect.
This is the type of company that we want to encourage in Canada. It has the kind of
December 19, 1967

ownership that we want to encourage in Canada. There is good reason for not talking the bill out and for letting the matter come to a vote. If these obstructionists want to talk out these bills in order to build up their own ego, let them pick on a couple of companies that merit criticism. These are the wrong companies to pick on. Anybody with any understanding knows that these are companies that should not be picked on for this kind of treatment because they are exactly the kind of small businesses that we are trying to encourage in Canada. They have Canadian ownership and Canadian purposes.
The members of the New Democratic party always pretend to be champions of the working man. I hope that the various union people across the country, who through a levy on their union dues provide the funds that help elect these sort of people, will understand that their enforced contribution to the New Democratic party helps to make sure that there are no jobs available in this field this winter.


Donald Stovel Macdonald: Mr. Chairman, I wonder whether I could ask the hon. member a question? The hon. member has recognized that he has run into some difficulty on this bill. Would he be agreeable to standing it this evening so that it will retain its place on the order paper? Then he would be able to have the full hour on it again on Thursday. I think there might be general agreement to such a procedure.
[DOT] (6:30 p.m.)


Terence James (Terry) Nugent: Mr. Chairman, I am afraid that the hon. members who are trying to obstruct this bill, as they did the last one, have to take the responsibility for it. There is no reason for the bill not being passed. I hope it will be passed.


Mr. Germa:: I heard it said on this side of the house when the hon. member for Edmon-ton-Strathcona was speaking that he made the same speech five years ago. I am surprised that he has been engaged in this activity for so long and yet has not become acquainted with the policy of the New Democratic party. He states that we want Canadian content, Canadian ownership, Canadian boards of directors, and everything Canadian. This is true; but I must also remind the hon. member that we have no more faith in Canadian boards of directors than in foreign boards of directors, because they are all motivated by the same principles; and I think the hon. member is quite familiar with the principles of the business world today.
Private Bills
I must also remind him that it is not only the N.D.P. that is objecting to the introduction of this type of legislation. The hon. member for Kindersley is certainly not a member of this party, and he moved an amendment in committee which would delete one of the provisions having to do with the movement of solids in the bill as it now stands. The hon. member for Kindersley said he had a feeling of guilt for taking what he thought was a rather superficial view of this provision for the movement of solids. In referring to other bills incorporating gas or pipe line companies which have been passed by the house he said he had a sense of guilt for not having objected to the passage of these bills. I am surprised that the hon. member for Edmonton-Strathcona gave full credit to the N.D.P. for seeing that justice is done in Canada instead of giving the credit to a member of his own party.


Terence James (Terry) Nugent: Mr. Chairman, I rise on a point of privilege. I did not give credit to the N.D.P. for having a sense of justice. Instead I blamed them for obstruction. I think it is an insult to put the hon. member for Kindersley in the same class as the hon. member for Sudbury or the members of his party.


William Arnold Peters: That is some point of privilege.


Melville Carlyle Germa: If the hon. member wishes to dissociate himself from the members of his party, that is up to him. However, he cannot dissociate himself from us without dissociating himself from a member of his own party. I have more respect for the hon. member of the Conservative party, who is not afraid to be called an obstructionist, if that is what the hon. member considers him to be.
I offer constructive criticism. We are not satisfied with the incorporation of a multiplicity of such companies. The hon. member is oversimplifying the situation, which is often the case when a complicated problem is reduced to simple terms of yes or no. If an hon. member happens to say no, the hon. member for Edmonton-Strathcona charges him with obstructionism.
I do not consider an application for the incorporation of a pipe line strictly in that limited sense. When we speak about the incorporation of these lines we must think about transportation as a whole, because certainly a pipe line is a mode of transport. We all know that the movements of solids either in capsule form or dissolved in another product will be the order of the day and may

December 19, 1967
Private Bills
turn out to be our major mode of transportation in this country. This is why we are concerned. If I had only my own interest at heart I could be doing better things by joining the other 235 members who are absent. Perhaps this is why rail transportation in Canada is faced with such difficulties. The lack of interest in the house may have been the cause of the predicament in which the Canadian National Railways finds itself, faced as it is with a debt in perpetuity. Our children and our grandchildren will be paying this debt to the bondholders. The company was not nationalized in the interests of Canada, but to make the bondholders rich. This is precisely why I object to the creation of a multiplicity of conflicting and overcompetitive pipe line systems without any regard for the over-all transportation policy in Canada.
The hon. member only wishes to consider a small corner in western Alberta. He wants a 30-mile pipe line to be run across the border. I admit this is only a small project, but how many bills dealing with the subject have come before the house in the last four or five years? I have only recently arrived in the house, but my colleagues in the party have told me what is going on and the attitude of this parliament with regard to the subject. Nobody seems to care what will happen to transportation in Canada. Who will take the responsibility for the effect these bills might have? Is it the job of the 25 hon. members who are present here today to determine transportation policy? It certainly is not. I object to these bills, endorsed by a private member, being brought before the house. In the long run, he does not have to take the responsibility for what happens.
These bills should be brought in by the government and it should take the responsibility for the ultimate result. No one bears the responsibility for the incorporation of these companies because by the time the effects are evident hon. members sponsoring these bills will be gone. It is a surprise to me that there are so few members in the house who take an interest and who try to come to a consensus on how the transportation policy of Canada should evolve.


Terence James (Terry) Nugent: Would the hon. member permit a question? Does he not realize that the question is not how the transportation policy of Canada should be evolved? He should realize that the reason for the small number of hon. members in the house is that they are aware of the fact that if they were here they
[Mr. GermaJ
would have to listen to members like the hon. member who now has the floor.


Melville Carlyle Germa: That is what I referred to, namely oversimplification. The hon. member cannot think of more than one thing at a time. As I said at the beginning, these pipe line systems cannot be considered separately from the over-all transportation policy in Canada. They are inter-related; eventually they will conflict with each other and become a great burden on the taxpayer.
Some members have a high degree of faith in business. They believe that as long as it is business it must be good. I have nothing against business, but to me it is only a means of supplying me with a service. It is not an institution like the church or schools, which we have to perpetuate and develop. If I could supply my needs without business, I would do so. That is how much faith I have in business as it exists today.
Some people are more cynical about business than I am. When I visited the Yorkville area in Toronto, where the real cynics of Canada are concentrated, I met a girl who was selling toilet tissue at one cent per piece. I asked her what she was up to, to which she replied that she was a businesswoman and that as long as it is selling and people are buying she is doing business. She was highly cynical with regard to the business community.
I am glad I am not that cynical, but I do not have the faith in it that some hon. members here seem to have. In the long run the general public support business, and yet the costs of advertising, of competition and of overconstruction are being borne by the people of Canada. Business itself does not support this.
[DOT] (6:40 p.m.)
The support the business set-out in this bill will receive must come from the people, and therefore the people have a right to say where, when and how it will function. Parliament is the voice of the people, it is for that reason we are standing here tonight asking these questions.
The hon. member for Edmonton-Strath-cona certainly should not be making disparaging remarks about the N.D.P. He has not said anything constructive so far, and he has not answered any of the questions.


Terence James (Terry) Nugent: Ask your questions and I will answer them.
December 19, 1967


Melville Carlyle Germa: I should like to read what he said at the time we were discussing the other pipe line, as reported in Hansard at page 5442.


Herman Maxwell Batten: Order, please. I have been listening very carefully to the remarks of the hon. member. While I recognize there is a general debate on clause 1 of a bill of this nature, that general debate must be relevant to the bill before the committee. May I suggest to the hon. member for Sudbury that he confine his remarks to the bill before the committee. If he wants to quote from the debate on another bill, I must advise him the Chair would not consider that to be relevant to the bill before us.


Melville Carlyle Germa: Thank you, Mr. Chairman. I appreciate your interjection. I hope you will feel free to correct me at any time I stray from the rules of this house. I realize I am not fully acquainted with the multiplicity of rules for this chamber, and I do appreciate your guidance and instruction. I accept them quite readily. I should explain that I was going to quote those remarks because the committee report referred to the two bills in one sentence. The committee said both bills were in the same form and contained the same powers. I thought therefore I could relate them, but I accept your decision.
The hon. member did ask what we objected to in the bill. We have told him that we did not want to give Vawn Pipe Lines the power to erect townsites and, in fact, reduce a whole group of people to living under the federal system. This bill would give the company the power to buy and sell land, to construct streets, roads, sewers, instal electricity, and do almost anything an incorporated town would have the power to do. I do not see where such powers have any relationship to the export, transportation or refinement of petroleum products. However, these powers are in the bill.
The only argument put forward so far as Bill No. S-17 is concerned is that it is in the same form as other pipe line bills. This is precisely our objection, Mr. Chairman. Since we were wrong yesterday or we were wrong last year, does that mean we have to continue to be wrong for time immemorial? Are we never going to demand that these bills be put in a form which is acceptable to me and to the large following we have in Canada?


Terence James (Terry) Nugent: How about the majority of the house; would that be acceptable?
Private Bills


Melville Carlyle Germa: I made a proposition which would enable these bills to be passed by the house. If the government would introduce the bills and accept responsibility for these pipe lines, then certainly the bills could be rammed down the throats of the people. So long as the bills are in this form, and no one takes responsibility for the mess which we are going to have in Canada as a result of this proliferation of pipe lines, then we will object. The passage of this bill would result in the construction of 30 miles more of pipe line.
The hon. member also criticized the fact we were going to stop welders from having work this winter and that we were delaying construction. There is nothing to indicate the company is going to start work now. They are still exploring and have high hopes of obtaining some product to transport. According to the committee report the company hopes eventually to get a product to transport. At the moment, they have nothing so we are not delaying the development of Canada. Certainly if the product were piling up waiting to be transported we would have to grant this incorporation for the immediate public good. We would have to disregard the long term effect. This certainly is not the case now. There is no oil or gas running out on the ground for lack of transportation.
I believe, Mr. Chairman, that is all I have to say about Vawn Pipe Lines at the moment. If someone were willing to delete or amend the powers in the bill to which we have objected, then certainly we would have no objection to a Canadian company being incorporated to transport a Canadian product and to supply work to Canadian workers. In fact there is probably no party in this house more concerned about labour than the New Democratic party.
If you just look at our members, Mr. Chairman, you will see the section of society from which they come. I believe the members of the other parties represent a different section of society. So, Mr. Chairman, I am unwilling at this moment, for the price of $1,200, to grant this hunting licence to Vawn Pipe Lines Limited.


William Arnold Peters: Mr. Chairman, I will be prepared to ask the indulgence of the committee to have this bill remain at the top of the list for further debate, as we did with the Cabri bill, if the circumstances were similar. We were then of the opinion that Cabri Pipe Lines was sincerely interested in having a pipe line constructed. However, the Vawn

December 19, 1967
Private Bills
company, which is the same company under a different name, does not fit into that category. As the previous speaker said, the Vawn company is asking for a licence to hunt. They are going to hunt anyway, because they get that licence from the provincial government. When they find something, then we will supply them with the means of transporting and delivering it.
[DOT] (6:50 p.m.)
I agree with some of the remarks made by the hon. member for Edmonton-Strathcona. I certainly endorse those remarks which were related to the fact this is a Canadian company which is engaged in a Canadian development for the purpose of handling one of our natural resources. Really this company and the previous one should have formed only one company, but in the case of Vawn in particular more time is needed to reconsider just what they need. Today the hon. member for Edmonton-Strathcona is sponsoring this bill. I think he is a more appropriate sponsor for it than his predecessor. At least he comes from the area where these companies will be operating, while the previous sponsor came from another province.
The hon. member has referred to the National Energy Board as the regulatory agency, as the policeman of the federal parliament. I have looked up the National Energy Board Act, which was passed in 1959, and which has been amended a number of times since then. I find that in operation it has not done exactly what it was inferred it would do. It was the intention that the board would grant rights to a pipe line, once a pipe line company had been incorporated by parliament and received corporate identity. These rights that the board was to grant cover most of the rights which are laid out in this bill.
If hon. members turn to page 315 of volume 1 of the Statutes of Canada, 1959 they will find there Part V of the National Energy Board Act, dealing with the powers of pipe line companies. Section 2 deals with the general powers granted to pipe line companies under the act. It speaks about entering upon crown lands, and in subparagraph (b) uses these words:
-purchase, take and hold of and from any person any land or other property necessary for the construction, maintenance and operation of its pipe line-
In subparagraph (c) it uses these terms:
-construct, lay, carry or place its pipe line across, upon or under the land of any person-

Subparagraph (d) reads:
-join its pipe line with the transmission facilities of any other person at any point on its route;
Subparagraph (e) uses these words:
-construct, erect and maintain all necessary and convenient roads, buildings, houses, stations, depots, wharves, docks and other structures-
Subparagraph (f) contains the following:
-construct, maintain and operate branch lines-
Subparagraph (g) says:
.-from time to time alter, repair or discontinue- Subparagraph (h) reads:
-transmit hydrocarbons by pipe line and regulate the time and manner in which hydrocarbons shall be transmitted-
And subparagraph (i) says:
-do all other acts necessary for the construction, maintenance and operation of its line.
Section 2 deals with a pipe line handling sulphur compounds obtained from an oil or gas well, or any product thereof. In other words, Mr. Chairman, we gave the National Energy Board the right to make all these decisions, and what we are being asked to do in this bill is duplicate those decisions. I point out that Part V of the National Energy Board Act, in section 80, winds up by saying: Except as otherwise provided in this Part,
(a)	this act shall be construed as incorporate with a special act, and
(b)	where the provisions of this Part and a special act relate to the same subject matter, the provisions of the special act shall, in so far as is necessary to give effect to the special act, be taken to override the provisions of this act.
We have given the National Energy Board the authority to give the company the right to do everything that foreseeably it will be able to do. Now we are being asked through this special bill to give Vawn Pipe Lines the right to do all the things that it foresees within its expanded expectations.


Terence James (Terry) Nugent: Within the capacity given to the company to accept that power.


William Arnold Peters: I am not interested in what may not happen; I am only interested in the eventuality.
There is an interesting thing about this particular company. In the proceedings before the transport and communications committee of the Senate on June 29 of this year Mr. Matheson, one of the witnesses for the company, was asked how far the pipe line would extend and he replied that it would extend approximately 17 to 18 miles. But on November 28 the same gentleman
December 19, 1967

said they were talking about 30, 40 or 50 miles, depending on how tar they had to go to pick up the product and move it into British Columbia. This company has a great propensity for convincing itself of its expanded requirements.
I think both of these pipe lines are excellent ones. In my view the company's original proposition was worth while and could be supported. I and members of this party will support it, but we will not support all the junk that goes with it. Of the 11 private bills on the order paper, five deal with pipe lines. These five companies are asking for powers that they will never use. Had Vawn Pipe Lines Limited just wanted to build a pipe line to collect from an oil or gas well that has not yet even started to produce, and was not opposed by Westcoast Transmission and other pipe lines, we would be agreeable. I hope the sponsor of the bill will convey to the company our willingness to acquiesce in any reasonable projection.


Terence James (Terry) Nugent: You have given no suggestion of any reasonable projection. You simply say, "Don't ask for this power," but there is no practical limitation of power that you can suggest, or that I may suggest, in which you will acquiesce. Give us some reasonable suggestion, and not just say that we must clean up the bill in order to suit you.


William Arnold Peters: If the hon. member will sit down and read the evidence given before the Senate committee and the House of Commons committee, and then study the bill that was drafted following those proceedings, leaving out the one amendment that was moved, I think he will not find it difficult to draft a bill that will get a better hearing than this one.


Herman Maxwell Batten: Order. The hour appointed for the consideration of private members business has expired.
Progress reported.


Mr. Deputy Speaker:: The house will now resume the business that was interrupted at six o'clock.



DIVORCE


[Stage Direction]
The house resumed consideration in committee of Bill No. C-187, respecting divorce -Mr. Trudeau-Mr. Batten in the chair.
At seven o'clock the committee took recess.
27053-355i
Divorce Law Reform AFTER RECESS
The committee resumed at 8 p.m.
Maurice Rinfret: When the committee rose at six o'clock the amendment moved by the hon. member for Greenwood (Mr. Brewin) was being considered.


Pierre Elliott Trudeau: Mr. Chairman, I am rising to speak about the amendment which the hon. member for Greenwood proposed. I dealt with this subject previously when I was asked whether the word "consent" in this clause would bar the possibility of parties consenting to separate for three years. My reply is that the matter has reference to procedure within the court. It cannot be taken to have meaning within any other context.
I see no harm in that part of the amendment that the hon. member suggests. Possibly there may be usefulness in accepting it. I do not mean to belittle the amendment. If the introduction of the word "solely" before the word "upon" would achieve a greater degree of precision, I should welcome the amendment.
I am not so enthusiastic, however, about other parts of the hon. member's amendment. I refer to the word "written" before the word "consent". It seems to me that by adopting the word "written" we should destroy the precision of the sentence. In other words, if there were "written consent" in the clause, the courts might be inclined to judge a con-trario and to say that a verbal consent was not written consent and that therefore they need not necessarily refuse the divorce.
While we are waiting for other hon. members to enter the chamber perhaps I might move a subamendment to the effect that I have outlined. If the hon. member who moved the original amendment would agree not to insist on the word "written" I should have no objection to including the word "solely". That word corresponds with our intention, and therefore I welcome it.


Francis Andrew Brewin: Mr. Chairman, I am so overwhelmed by the flexibility of the minister that I gladly accept his suggestion. I think he is quite right; we do not need the word "written". The word "solely" is perfectly adequate. I do not know the right way to go about amending the amendment. In any event, should the minister move the amendment he suggests, I should gladly accept it.

December 19, 1967
Divorce Law Reform


Maurice Rinfret: Order, please. It
might be easier if the hon. member were to withdraw his amendment and move a fresh amendment.


Francis Andrew Brewin: With your leave, Mr. Chairman, and with leave of the committee I shall withdraw my original amendment and substitute the amendment which would add the word "solely" before the word "upon".


Maurice Rinfret: Has the hon. member leave to do that?


Some hon. Members:: Agreed.


Maurice Rinfret: Is it agreed that the hon. member for Greenwood has leave to withdraw his amendment?


Some hon. Members:: Agreed.


Maurice Rinfret: For the information of members of the committee the hon. member for Greenwood, in his new amendment, moves:
-that clause 9 (1)	(a) be amended and the
following substituted therefor:
(a) to refuse a decree based solely upon the consent, admissions or default of the parties or either of them, and not to grant a decree except after a trial which shall be by a judge, without a jury.


[Stage Direction]
Amendment agreed to.
Clause as amended agreed to.
On clause 10-Interim orders.
Mr. Forest:: Mr. Chairman, with regard to clause 10, on second reading, the Minister of Justice (Mr. Trudeau) indicated in his reply that jurisdictional conflicts should not be allowed to interrupt the study of a divorce bill. I fully agree with him, but clause 10 of the bill provides that the divorce division of the exchequer court could make orders with regard to alimony and the custody of children.
Now, could the minister tell us which will have precedence, the divorce division of the exchequer court, the superior court, or a provincial court, such as the welfare court, regarding the custody of children, or if agreements will be entered into with the provinces in that connection, in order to avoid any jurisdictional conflict, if, for instance, a decree has already been granted and, afterwards, a petition for divorce is submitted by one of the parties wishing to have the judgment of the courts, already rendered in that regard, reviewed or amend-

ed? Could the minister enlighten us on that matter?
[DOT] (8:10 p.m.)


Pierre Elliott Trudeau: With pleasure, Mr. Chairman. I have indicated that this problem deserved consideration and I am happy to be reminded of this by the hon. member for Stanstead (Mr. Forest) at this stage.
I think that if proceedings in separation have been started in the provincial courts with subsidiary or corollary relief concerning the custody of the children, alimony, etc., and that, later, a petition for divorce is introduced and accepted by the courts, it seems to me that when a divorce decree becomes absolute, there does not seem to be any doubt that a divorce having occurred, judicial separation ceases to exist and, as a result, the corollary relief ordered under the separation decree would also cease to exist. In other words, and I base this on the jurisprudence of our courts, when a divorce decree occurs, the bond is broken and there is no longer any question of separation of bed and board because, under the law, there is no longer any marriage.
Therefore, the effects resulting from a judicial separation no longer exist, as would be the situation if one of the parties died. There is a breach of the marriage bond, there is a breaking off of the cause which resulted in subsidiary effects and, therefore, in such a case, the federal act on divorce would prevail, not because of a precedence of the federal act on the provincial act, but because the decree of divorce, once again, destroys the very bond of marriage and thus destroys the effects which may result from a decree of separation. The conflict would be resolved in that way.
The other hypothesis which might be proposed in theory would be: Could the court which granted a decree of separation amend its decree after the divorce? Certainly not, since the divorce ended the marriage.
This brings me to deal with another question raised the other day by the hon. member for Quebec-Montmorency (Mr. Laflamme) about the conservatory measures which can be taken under the Civil Code and the Code of Civil Procedure now in force in the province of Quebec, and which should be taken before the superior court. There is no doubt that those measures of conservatory attachment could not be regulated under our act because, as accurately pointed out by the hon. member, those are measures concerning civil property and rights, and the central
December 19, 1967

government is unable to legislate directly in that field, even if it wanted to. Therefore, the hon. member was right to suggest that, in such a case, the parties in the province of Quebec-and I think that the same reasoning would apply in the other provinces where, as we know, separation legislation exists -should take another petition in separation with the conservatory measures before the civil court, if that were necessary to protect his share of the common property.
This leads us to the conclusion that everything would be much simpler if, first of all, federal legislation regulated not only divorce, but also separation from bed and board. I indicated at the resolution stage that we intended to hold discussions with the provinces in an endeavour to deal with this problem of separation from bed and board and, if possible, treat it in the same way and deal with it in the same legislation as divorce. Secondly, I said that we were hoping the provinces of Quebec and Newfoundland would decide to follow the wise advice of the hon. member for Quebec-Montmorency (Mr. Laflamme), according to whom it would be greatly beneficial to the parties if these provinces were to use clause 22 of our bill to allow the superior courts of Quebec and Newfoundland, rather than the exchequer court, to apply the federal legislation.


Mr. Laflamme:: Mr. Chairman, I should like to ask the hon. minister just one thing. Subclause (b) of clause 10 says:
-for the maintenance of and the custody, care and upbringing of the children-
When referring to children, in clause 10, are we referring to the definition of children given in clause 2, subclause (b) which says that they are under 16 years of age?


Pierre Elliott Trudeau: Yes, Mr. Chairman, since the courts acting under this bill would have no jurisdiction over the children who are over 16 years of age and that is why we have insisted a little on the interpretation clause which gives a definition of "children".
Of course, the problem which we face is this: what would happen to children over 16 years of age, and for an answer to that problem I refer the hon. member to a statement which I made earlier, to the effect that the rights of the children born from the filiation, under the Civil Code, subsist and could be pleaded under other proceedings. Therefore, a child 18 or 20 years of age would have other recourses against his
Divorce Law Reform
father, but they would not be available to him under this legislation. I must add that this is true also for the other provinces, since all of them do not accept the age of 16 as the age when obligations of custody and so on cease.


[Stage Direction]
Clause agreed to.
On clause 11-Orders granting corollary relief.
Gordon Harvey Aiken: On clause 11 my hon. friend from Kamloops had intended to raise a point concerning the need for more definite inquiries on the part of the court into the circumstances of the parties. The suggestion is that a duty should be placed on the court to do more than is required by this clause-that another form of words should be used which would oblige the court to make inquiries.
With this in mind I suggest to the minister an amendment along these lines:
That clause 11 be amended to read:
(1) Upon granting a decree nisi of divorce the court shall, if it thinks it fit and just to do so ... make one or more of the following orders-
Then the clause would go on to paragraphs (a), (b) and (c). The substitution of "shall" for "may" would I believe strengthen the bill. This would make it more certain that we really do intend to protect the spouses, particularly the wife and the children.
Before deciding whether this should be put forward as a formal amendment I should like to know whether the minister would be sympathetic toward such a proposal.
[DOT] (8:20 p.m.)


Pierre Elliott Trudeau: Once again my intention here is the same as that of the hon. member for Parry Sound-Muskoka. I suggest the wording of the bill meets the intention he has in mind. The court may make one or more of the following orders, which is his phrase. He indicates, however, that perhaps the court should have regard to "the condition of the parties", and so on. I suggest that the way it is spelled out here amounts to the same thing. If the court thinks it is fit and just to do so, "having regard to the condition of the parties" and so on, this means that the court must have "regard to the conduct or condition of the parties", and so on, in order to know whether it is fit and just to do so. In other words, the court cannot just decide whether it is fit and just, in the abstract. It will decide whether it is fit and just, having had some look at the evidence and after

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having looked at some substantiation of the fitness. The way to do so would be to have "regard to the conduct of the parties", and so on.
Therefore I suggest that the other wording may be more happy wording, but I believe this present wording meets the same end and perhaps has the added advantage of not imposing upon the courts any obligation which it obviously must not fulfil in any great detail.
I have in mind a case where perhaps one of the parties is dead, has gone or has disappeared. The court will have regard to this, but it does not have to make a very detailed investigation into the moral conduct of that disappeared person because there is no question of that person being given the custody of the children. Therefore I do not think the amendment is absolutely essential, and under the principle of Occam's razor, I suggest it should not be accepted.


Edmund Davie Fulton: Mr. Chairman, I would ask the minister to reconsider this matter because, without reflecting on the merits or demerits, it seems to me that what is being done by this bill is not only to regularize divorce but make it easier. Earlier in respect of clause 7 and other clauses we had discussion about the obligation which it is suggested falls upon various people to bring about reconciliation, and the criticism that perhaps this is not a proper function to impose upon the advocates who represent the parties in these proceedings, a suggestion with which I concur. If the minister, however, is prepared to impose upon the lawyers the obligation of attempting to bring about a reconciliation- an obligation which may be both too late in time and misplaced after the onus has shifted-then, it seems to me he should also be willing to ensure that the courts will carry out a function, which will now properly belong to the court, not of trying to bring about a reconciliation of the marriage but rather of ensuring that the consequence of the breakup of the marriage does not bring hardship to the children of the marriage.
It seems to me that what is the concern of the clause should be the concern of the bill. I believe that the concern is suggested somewhat casually in a sort of passing fashion in the following words:
Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders-

So, it may do so if it thinks fit having regard to the circumstances. There is no obligation upon the court to inquire into the circumstances. There is no obligation upon the court to decide whether the circumstances properly require the making of some order to ensure that the welfare of the children is provided for, and to ensure that there is proper provision for the injured spouse.
What the amendment seeks to do is to ensure that the court, which I submit can discharge this function, will accept as an obligation upon the court the function of ensuring the welfare of the family. The old principle of wards of the court gives testimony to what I am saying. In respect of a bill which is designed to rationalize a divorce, and to ensure that there will be a larger number of cases with regard to which divorce may be granted by the court- divorce having all the consequences it has with respect to the family and children-I suggest it is proper and indeed essential that the legislation should direct the courts to the extent that they will have an obligation to inquire into the circumstances of the family, and make an order accordingly. Therefore, Mr. Chairman, in order to bring the matter to a head. I should like to say that I hope the minister will reconsider this matter. I wish to move the amendment which I believe my colleague the hon. member for Parry Sound-Muskoka has already read to the committee.


Pierre Elliott Trudeau: This is perhaps one case in which we can demonstrate the utility of publishing the statutes in both languages and illustrate that it is useful to lawyers to have both texts of the statute in order to know what really is meant. Especially when debating with the hon. member for Kamloops I know I do not have to apologize for speaking in French.

If we look at the French text, it is clear that clause 11 intends to achieve what the hon. member wants, and I have tried to show this by reading the English text. I feel that if we look at the French text, it becomes even clearer:
-the court may, if it thinks it fit and just to do so, make one or more of the following orders-
Then, it is precisely what the hon. member wishes as far as orders are concerned.
-the court may,.. . make one or more of the following orders-
But after that,
-if it thinks it fit and just to do so,
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We have:
-having regard to the conduct of the parties and the condition, means and other circumstances of each of them-
Mr. Chairman, the parenthetical clause, the one between comas, a sort of ablative absolute, if I may refer to the classics, is the one that is important and should be taken into account; the court that would not consider the conduct of the parties, as well as their condition, would, I suggest, be overruled in a court of appeal, because it would have acted in an ill-advised fashion that would not correspond with the French text and, also, I would say, with the English text.
Once again, Mr. Chairman, it is not a substantive matter. I agree with all the hon. member has said and with his purpose to make the obligation of the court more specific; but I would suggest to him very humbly that the French text does that and, such being the case, it is not necessary to accept the amendment.


Maurice Rinfret: For the information of members of the committee perhaps I should read the amendment moved by the hon. member for Kamloops. It is as follows:
That subsection (1) of Section 11 be amended by deleting lines 16 to 20 thereof, and substituting the following:
(1) Upon granting a decree nisi of divorce, the court shall make such inquiries as may be necessary to determine the condition, means and circumstances of the spouses and the children, if any, of the marriage, and may make such one or more of the following orders as shall seem fit and just having regard to the conduct of the parties and the circumstances disclosed by such inquiry, namely:


Edmund Davie Fulton: Mr. Chairman, I appreciate what the minister has said in respect of the meaning of the clause in the French language, but I think the minister will agree with me that the courts in English speaking Canada do not read French, and therefore will be governed by what the English text says. I am aware that the nuances of the French language are sometimes more precise in that beautiful tongue than they are in English, but we are dealing here with the English text, which is the text with which the English speaking courts will be dealing.
[DOT] (8:30 p.m.)
If the minister wishes I would confine my amendment further by saying that the text of the English bill should be amended as follows, thus leaving the French context with
Divorce Law Reform
the precision the minister suggests it already has.


Stanley Ronald Basford: Would the hon. member permit a question? I take it that his objection really is that "may" is permissive rather than mandatory. Can the hon. member imagine a situation in which a court or judge would think it fit and just to make an order but would not make the order?


Edmund Davie Fulton: Frankly I cannot think of a situation where it was felt to be fit and just to make an order but the judge would not make such an order. I want to be sure by this amendment that the court will have the obligation to make the inquiry, so that it will then know whether it is fit and just to make an order. The court cannot know until it has made an inquiry. It is the making of the inquiry that I want to see mandatory.


Pierre Elliott Trudeau: Supposing one or both of the parties had not asked for such subsidiary-relief, why should it be mandatory for the court to make an inquiry? If there was no need or desire on the part of the parties for such to be done, why should the court be required to do so? This clause is permissive and empowering, and not one which must apply in all cases.


Edmund Davie Fulton: My answer to the minister is that it is precisely because the parties may omit the seating of such an order that I think it should be mandatory upon the court to inquire into the circumstances. The court should inquire to see whether there are children whose welfare has not been brought before the court by the pleadings of the parties. It is an obligation of the court, when it is proceeding solemnly in respect of the dissolution of a marriage and the breakup of a family, to find out whether there are children whose welfare is affected, and to find out whether the welfare of those children is properly provided for, and then to make such order as seems just and fit. If the parties have properly provided for these children, then it will not be necessary to make an order. I have left the permissive word "may" in that part of the amendment. The mandatory word relates to the making of the inquiry to satisfy the court as to the circumstances.


Francis Andrew Brewin: Mr. Chairman, I have the feeling that the amendment proposed by the hon. member may not be necessary because nearly all courts are required in matrimonial matters including divorce by their own rules of practice to have disclosure as to whether

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there are children of the marriage and what provision has been made for them. However, I cannot see what possible harm the amendment could do. I am speaking about the English language, not the French, and I cannot see what possible harm it could do to underline the fact that it is the duty of a court in dealing with the dissolution of a marriage to deal with the ancillary matters and to deal with the obligations that arise from a marriage. Certainly an inquiry into the means of a spouse, to see that she or he and the children are properly looked after, is an obligation.
The case might arise where the wife had not put forth her case, as she should for some reason, such as intimidation or something of the sort, or where the husband and the wife wanted to forget about their responsibility for the children. This amendment merely makes it clear that the court should do what
I	think it would normally do as a matter of course.
In my opinion there should be an obligation on the tribunal that pronounces the dissolution of a marriage to see that these matters of the family which are essential to the marriage be dealt with because, if one thing is clear, it ought to be that dissolution of marriage is conditional upon people living up to their obligations to the children as well as possible. Sometimes it is not completely possible, but they should as best they can live up to their obligations. The amendment makes that abundantly clear. I do not think it does any harm, but it will make clear what I am sure many responsible courts would likely do in any event. Why not make that clear while we are at it by accepting the amendment?


Pierre Elliott Trudeau: In answer to the hon. member for Greenwood, if he is indicating that there should be a duty on the courts to make such inquiries, I suggest that the duty already exists in clause 9 paragraphs (d) (e) and (f), which make it clear what are the duties and obligations of the court. It is spelled out that we must consider questions in respect of the children and the spouse.
Once again let me say that clauses 10 and
II	are empowering, and make it necessary that the courts applying these divorce laws will have the power by statute to do something as regards the spouse and children. We wrote this in to make it clear that, in our minds, the application of our laws must be taken into account regarding those things we have been discussing with the hon. member for Stanstead and the hon. member for

Quebec-Montmorency. This would make it clear that the court is empowered to do these things and it must do them in certain circumstances as spelled out.


Francis Andrew Brewin: The minister referred to paragraphs (d) (e) and (f) of clause 9 which has already been dealt with by the committee. Are not all those paragraphs applicable to divorces granted under clause 4 of the bill, which does not refer to clause 3? Clause 3 is the one which deals with matrimonial offences other than because of breakdown. Surely if there is an obligation to deal with these matters, clause 11 covers all decrees nisi, whatever the basis may be, whereas clause 9 paragraphs (d) (e) and (f) do not relate to clause 4. It does seem to me that clause 11 covers the whole thing, together, and should be of universal application.


Pierre Elliott Trudeau: Admittedly the duties of the court to which I referred apply to the breakdown aspect of divorce cause, and not to the offence cause; and this is the way it should be. Surely the hon. member would not want the existence of or the consideration for the children to be an absolute bar to divorce granted on the ground of adultery. If he does, he is going backwards from our present law. Under our present law the judge is not obliged to look into the situation of the children, if adultery is the ground for divorce. All we are doing by clause 9 is spelling out this kind of bar that applies in the case of breakdown. Once again this is the clause that spells out the duty of the court. Clauses 10 and 11 are empowering clauses. I made reference to a certain part of the French text, and I think this is even more clear in the English text, which reads "having regard to the conduct of the parties". That is to say, the court must have regard to the conduct of the parties. I cannot accept the amendment as I do not think it is a useful one.
[DOT] (8:40 p.m.)


Steven Otto: On this question, Mr. Chairman, I believe that hon. gentlemen opposite, belatedly but nevertheless realistically, are concerned about the vast question that presents itself, namely who are the parties to the marriage? To presume that there are only two, the husband and wife, is of course to deny the whole status of marriage, which affects all the children of the marriage. Indeed, where a decree is made it affects not only the husband and wife but the children, whose position is changed. I believe the concern expressed by hon. members opposite is
December 19, 1967

quite real. They want included in clause 11 a provision that is more than just permissive. They want the clause to provide that it is the duty of the court to make an order which includes the rights and disposition of the children.
The minister has said that this matter is covered in clause 9 (d) (e) and (f). I do not agree, because clause 9, in paragraphs (d) (e) and (f) appears to cover the case where a decree is not granted, whereas here we are talking about a case where a decree is granted. Whether or not the petitioner begs the court to make this order is not the issue. Indeed, that is of no consequence if it is the duty of the court to do so.
Hon. members opposite wish the bill to provide that regardless of the desires of the two main parties, the husband and wife, the court shall make this order and this investigation. I put it to hon. gentlemen opposite, and in this I agree with the hon. member for Vancouver-Burrard, that at the present time there is in the laws of the provinces a provision-in fact, there are several such provisions

that the court shall look into these matters and consider them. It may be argued that this is a provincial area and if a province decides to move out of this sphere the children of Canada should be covered by federal law.
In that case, this is a question to be decided here. I see no objection to such an amendment and I am completely in favour of it. I would like it to be set down on the record that there are not two parties only to a marriage. If there are children, each child has rights equal to those of the husband and wife of the marriage, and his or her rights should be protected in any decree granted or order made by a judge.


Maurice Rinfret: Is the committee ready for the question?


Some hon. Members:: Question.
Amendment (Mr. Fulton) negatived: Yeas, 37; nays, 50.


Maurice Rinfret: Shall clause 11 carry?


[Stage Direction]
Clause agreed to.
On clause 12-Payment and conditions.
Edmund Davie Fulton: Mr. Chairman, I have an amendment to move to clause 12 as follows:
That clause 12 be renumbered as clause 12 (2) and a new clause 12 (1) be added as follows:
12 (1) Where a court makes an order pursuant to clause 10 or 11, it shall have regard to the laws
Divorce Law Reform
of the province of domicile of the petitioner related to each of the matters referred to in the said clauses, and shall make its order as nearly as possible in consonance with the laws of such province.
The substance of this amendment is suggested by the hon. member for Carleton and I have pleasure moving it for him. The committee will recall the arguments the hon. member has already made as to the necessity of bringing this law into conformity with provincial jurisdiction, preserving the principle of provincial control of provincial courts and providing that any decrees, and so on, made should have regard to the form and substance of provincial law, the principle mentioned a moment ago by the hon. member for York East.


Maurice Rinfret: Is the
committee ready for the question?


Some hon. Members:: Question.


Pierre Elliott Trudeau: Mr. Chairman, I hate to delay the committee on this matter but I think I should indicate, in fairness, that the hon. member for Carleton gave me notice of this amendment and I have prepared a little argumentation against it. I do not want necessarily to deliver it if the committee feels it is well informed in this regard.
The purpose of the amendment is laudable, especially as it may help to solve certain problems as to the custody of the children of a marriage. However, on reflection, I have found that it would create many more problems than it would solve. Amongst other problems, it would tend to create a situation where the parties would shop around for domicile in whatever province happened to better suit their action. It would tend, and this is more serious, to perpetuate different treatment being afforded under different provincial laws, whereas we are trying to seek some sort of uniformity.
Such a provision would be of difficult application in the case of an action brought in one province by a petitioner who was domiciled in another. It would make it difficult for the court to decide the question of the domicile of the petitioner if it happened that the petitioner was petitioning in another province. There are many other difficulties inherent in the amendment, Mr. Chairman. I do not think I need go into them in detail, but the amendment would not provide as happy a solution as would appear to be the case.

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Divorce Law Reform


Maurice Rinfret: Is the has an interest in the issue it should be committee ready for the question?	allowed to enlighten the courts if possible.


Some hon. Members:: Question.
Amendment (Mr. Fulton) negatived: Yeas, 21; nays, 71.


Maurice Rinfret: Shall
clause 12 carry?


[Stage Direction]
Clause agreed to.
[DOT] (8:50 p.m.)
On clause 13-Decree nisi.
Gerald William Baldwin: Mr. Chairman, I should like to ask the minister a question on subclause 3 of clause 13 in which it is provided that:
Where a decree nisi of divorce has been granted but not made absolute, any person may show cause to the court why the decree should not be made absolute,
Does the minister not think that he is inviting a great deal of difficulty by extending the power to any person, whether or not they have a vested interest or a concern in the matter, to make an application to the court to prevent the granting of an absolute decree? There may be a valid explanation for it, and I can understand that one might give the right to intervene if necessary to people in authority, such as the Queen's Proctor in various provinces. But why should any person have that right? I may have misread the clause.


Pierre Elliott Trudeau: I think the hon. member's reading of the clause is valid. He interpreted correctly the meaning which went into the writing of the clause. The person in question could be the Queen's Proctor or, under the Quebec law, a public officer who represents the state. However, as has been said often in this debate, the dissolution of marriage is a formal and public act which is of concern to the state and to society. The approach adopted in drafting the clause was that any member of society who has information relevant to this issue should be entitled to bring it forth. This is perhaps a less formal way of obtaining the same result as if we had empowered a special official of the state to represent the public interest, as is done in some countries, or if we had empowered an officer of the courts or of the government to plead the public interest.
I have no further explanation to give on the interpretation of this clause. Its terms are perhaps broader than the hon. member would have liked. It does not seem to me to be a clause which could easily be abused, and it is an indication that since the public


Howard Earl Johnston: If collusion is discovered after the divorce decree nisi is granted, would it not make more sense to treat collusion as some other form of crime and impose a fine or some sort of penalty, rather than rescind the decree, because surely not much can be made of a marriage already broken up, where two people are joined together in collusion.


Pierre Elliott Trudeau: The reasoning behind the clause is that we do not want to recognize divorce solely by consent, if I may borrow the phrase used by the hon. member for Greenwood. If we merely punished collusion by the imposition of a fine or in some other way it would be tantamount to saying that divorce by mere consent can be granted, but a fine may have to be paid if collusion is discovered.


[Stage Direction]
Clause agreed to.
Clauses 14, 15 and 16 agreed to.
On clause 17-Appeal to court of appeal.
Francis Andrew Brewin: Mr. Chairman, all I wish to do with regard to this clause, and it would apply equally to clause 18, is to ask the minister why it is necessary in this measure to deal with the matter of appeals. As I understand it, and I may be wrong, the provinces have under their judicature acts a series of appellate courts which provide for appeals from final decisions of the supreme courts, and the Supreme court of Canada deals with appeals from the decisions of the appeal courts of the provinces. It seems to me to be a mistake to incorporate in each federal act a new code relating to special appeals with regard to this subject matter. I appreciate that, for example, the Criminal Code is quite different. In the Criminal Code special provisions relating to criminal matters require a special hierarchy of appeals and the normal judicature roles would not apply. But I ask the minister why it is not sufficient to leave the matter of appeals from judgments made by the court to the provinces? Anyone who has had to deal with appeal courts knows that appealing under the precise statutory rights of appeal often creates many problems, and that it is simpler and better to rely upon the general rights of appeal which have been worked out over the course of time.
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Pierre Elliott Trudeau: The explanation is that here again we wanted to make sure that we would not perpetuate a different approach in various provinces. We wanted to reach a degree of uniformity which would be compatible with the freedom of the provinces to administer justice as they wish. To use an expression employed earlier, we do not want the parties shopping around to find a province whose appeal provisions would suit them best. We have allowed in sections of this act a great degree of latitude as regards the rules of procedure and the rules of evidence, and we have shown that it is the intention of the present statute to respect the procedural differences among the provinces. However, we feel that in a new statute such as this one which is breaking ground in the divorce law, it is for the good of the country for the courts across the land to view the divorce law with a certain degree of uniformity. In other words, we want to avoid a different application of divorce laws by the various provinces. It is with this in mind that we decided that appeals should be dealt with in a uniform manner.


[Stage Direction]
Clause agreed to.
Clause 18 agreed to.
[DOT] (9:00 p.m.)
On clause 19-Rules of court.
Gerald William Baldwin: I want to take one minute to direct the attention of the minister to the possible dangers which may be inherent in subclause 2 of clause 19. By clause 14, which we have already passed, a decree of divorce granted under this bill shall have legal effect throughout Canada. This includes the decree of divorce and ancillary orders affecting the children, alimony and maintenance. There has been built up in the provinces a jurisprudence with regard to the custody of children. You will find at the present time decided cases in some of the appellant tribunals of the provinces which have been decided upon somewhat different principles.
I suggest to the minister that any attempt under subclause 2 of clause 19 by the governor general in council to pass regulations dealing with the provision for the registration and enforcement of orders covering the custody of children, the allowance of alimony and maintenance, should be handled very carefully. This may be a very delicate situation. The minister has already drawn to our attention the effect of some of the provisions in this bill.
Divorce Law Reform
He is aware of the problem in the constitutional area. I hope, without in any way attempting to dilute the effect of clause 19, that the minister will exercise the utmost care in fixing regulations which would supersede the regulations made under provincial authority.


Pierre Elliott Trudeau: The point is very well taken, Mr. Chairman. I should think that any governor in council who was thinking of applying this subsection would do so only in fear and trembling. I feel it is important that each province feel free to administer justice in its own way. I can only suggest, in the same sense as I did to the hon. member for Greenwood, that it is good, especially at the outset, that the government which makes this law should also have the power to make sure that there are not too many discrepancies in the application of it, at least in the early stages.
By way of reassurance, I would remind the hon. member for Peace River that the Criminal Code has the same type of provision under which the governor in council can make uniform procedural laws across the country. To my knowledge, this power has never been used. I hope that this present clause would not be used to any great extent either. I think it is safe to have here for the same reasons that it exists in the Criminal Code.


Robert Gordon Lee Fairweather: May I ask the minister once again, Mr. Chairman, for some reassurance. He knows I have some concern about procedures in the province of New Brunswick. I have had an assurance, but at this stage could I have an underlining of that assurance? I really believe this is serious. I put it forward in no partisan way. I think it is within the spirit of subclause (2) of clause 19. I know a great many members of the profession in New Brunswick and even more important than the profession, the people who are affected by this law, are concerned. I hope no provision has been made to continue in New Brunswick a policy which I feel is not right.


Pierre Elliott Trudeau: Is the hon. member referring to the matter of the courts of law? The hon. member nods in assent. If that is the case, I think I can reassure him. This bill provides that the court in New Brunswick will be the supreme court of the province. This will be the divorce court. If the province wants to give divorce jurisdiction to the county courts, that can be done under the procedure which was indicated the other day by amending its

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own law. The province would have to pro- and provincial authorities on such matters as vide that judges of the county court would this, not only between governments but also become local judges of the supreme court.	between the chief justices and the federal
In other words, Mr. Chairman, this bill officials, does not permit any province to say that	Clause agreed to.
divorce will not be a matter for the supreme	Clause 20 agreed to.
court of New Brunswick but shall be a matter for some other matrimonial or divorce On clause 21-Admissions and communica-court. This the province cannot do. It must ions made in course of reconciliation make divorce a matter for the supreme court. proceedings.


Robert Gordon Lee Fairweather: Yes, but some people wish to continue the status quo in New-Bruns-wick whereby one judge of the present court of appeal of New Brunswic is the judge of divorce and matrimonial causes. All causes are heard in the capital city of Fredericton. This works a great inconvenience and hardship on the members of the profession, the petitioners and witnesses.


Pierre Elliott Trudeau: I know this point well because the member has gone to some pains to explain it to me on other occasions. I did look into it, and I can assure him that the province would have no choice but to agree that the court for divorce is the supreme court of the province, and no other.


Marcel Joseph Aimé Lambert: I do not rise to criticize this clause but to express the hope that the various courts that may be making rules with regard to procedures and so forth, particularly with regard to subclause (1) (d) dealing with maintenance orders, will make it possible to enforce maintenance orders in other jurisdictions with a minimum of difficulty. In the past it has always been one of the most difficult and painful operations a lawyer acting on behalf of a client who is aggrieved can undertake. There may be an order for maintenance in one jurisdiction and the husband may have moved away from the original jurisdiction into another. There have been so many safeguards and formalities hedged around the enforcement of an alimony or a maintenance order that I hope the minister will use his moral suasion upon the courts and various jurisdictions to streamline the rules with regard to the enforcement of these orders in order to facilitate the enforcement of them.


Pierre Elliott Trudeau: This is a fair request, Mr. Chairman. I will use whatever moral suasion I can muster. It was for this purpose that we provided for the three months interval before the law can be put into application. We intend to have discussions between federal


Siegfried John Enns: I should like to commend the minister for having included in this bill the protection of the principle of confidentiality which is guaranteed by clause 21. One word however bothers me in this clause which reads:
[DOT] (9:10 p.m.)
A person nominated by a court under this act to endeavour to assist the parties to a marriage with a view to their possible reconciliation is not competent or compellable in any legal proceedings to disclose any admission .. . made to him-
The wording "not competent" bothers me. I wonder if as a social worker I am too defensive, but perhaps this casts an undue reflection on other professions, and here I am thinking of doctors and priests who could be involved in this counselling procedure. I suggest that these two words "not competent" be deleted. The clause would still retain its sense and protect the very important principle of confidentiality.


Pierre Elliott Trudeau: I can understand that if the word "competent" is taken in a defensive sense it would be an offensive word and I would certainly want to withdraw it, but I suggest that the words "not competent" in a statute such as this means that a person not able for legal reasons to do certain things. The first definition of competent in the Oxford dictionary is "legally qualified", I suggest that is the meaning which should be given to the word in this clause.


Sydney John Smith: How is the social worker or family counsellor going to communicate with the judge? Is there any provision for him to file a report with the judge on the success or failure of his work? In Ontario we have the official guardian reports. There is a system whereby they go into the record. What happens under this legislation?


Pierre Elliott Trudeau: This is a dilemma, Mr. Chairman. For the reason which was just given by the hon. member for Portage-Neepawa we had to make sure that any person assisting the parties with a view to
December 19, 1967

reconciliation would have at his or her disposal all the information needed to make reconciliation possible. For the reason given by the hon. member we had to ensure that there would be absolute discretion. How do we reconcile this with the problem raised by the hon. member for Simcoe East?
I suggest that clause 8 applies here, that the reconciliation would be attempted after the judge has adjourned for that purpose. The test will be 14 days later if the parties apply to the court to have the pleadings resumed. The court will then presume that the reconciliation effort has not been successful.


Sydney John Smith: I can understand that the social worker's evidence, or admissions made to him, cannot be used in determining whether there shall be a divorce, but surely his report upon what he found out would be absolutely vital to the judge in later determining the custody and maintenance of children? It seems to me that at some point there ought to be a provision whereby his report would go into the evidence, or at least be placed before the judge and become part of the court records.


[Stage Direction]
Clause agreed to.
Clause 22 agreed to.
On clause 23-Consequential amendments.
Gerald William Baldwin: Mr. Chairman, as a poor, deluded member of parliament who for four and a half years has been trying without success to follow the confused wriggling of the government in many things, would the minister explain why under clause 23 there is a right given under certain circumstances to provide that a county court judge may sit and hear divorces in the provinces of Newfoundland and Quebec, while he has refused the legitimate and logical request made from this side that such action be permitted in other cases?


Pierre Elliott Trudeau: I explained during debate on some other clause that the provinces could, as indeed British Columbia does, declare that their county court judges can operate as local judges of the supreme court if they are so designated in their instruments of nomination by the federal government. In other words, the province is the power which can validly make a distinction between superior courts and county courts.


Gerald William Baldwin: This is at the request of the president.
Divorce Law Reform


Pierre Elliott Trudeau: I was indicating this was the case for all other provinces. Now, in the case of Quebec and Newfoundland, where we have made provision that a judge of the exchequer court would be the competent judge until such proclamation as is mentioned in clause 22 is made, the exchequer court will be the court which will judge the cases from those provinces. This provision, being an amendment to the Exchequer Court Act, is made in order that the Exchequer Court can add additional judges to its ranks to meet any congestion of cases in that court.
I think it is done in a way which is an improvement on the present Exchequer Court Act. Under section 8 of the Exchequer Court Act, the president is permitted to appoint deputy judges, and these deputy judges are appointed at the pleasure of the governor in council. In this proposed new section 8 of the Exchequer Court Act, we are saying that there shall be a procedure to appoint special judges. They can be retired judges of the exchequer court, or of a superior court or county court. They can also be sitting judges. The amendment provides that they can sit and act as judges of the exchequer court.
It is reasonable to expect that if this can be done by the provinces it can also be done by the federal government. Now the federal government can designate one judge or another to act in this capacity, but in passing may I say that the Exchequer Court Act, I think, has been improved because such a nomination will no longer be at the pleasure of the governor in council which, to me, smacks a little of impingement on the independence of the judiciary. An appointment at the pleasure of the governor in council could result in a government some time saying, "We don't like some of these judges and therefore they will no longer be judges." Under the proposed modification, the appointment of such judges can only be for particular periods or purposes and their appointments are no longer at the pleasure of the governor in council.


[Stage Direction]
Clause agreed to.
Clauses 24 and 25 agreed to.
[DOT] (9:20 p.m.)
On clause 26-Repeal.
Mr. McCleave:: May I ask the minister whether, in subclause 2, he would consider substituting the words "no longer have effect" for the words "are repealed". I suggest that, because I talked to a deputy attorney general of a province and he thought it

December 19, 1967
Divorce Law Reform
rather strange that this parliament should repeal the laws which have been passed by other legislative bodies. The amendment would bring no change in substance. It would be a diplomatic step. Perhaps the minister might accept it.


Pierre Elliott Trudeau: I shall use this opportunity to say to the provinces that I do not wish to be rude to them. If we appear to be rude in the wording of this legislation, then I apologize in advance. Our intention must be quite clear. All other laws having to do with divorce that were in force in Canada are repealed. Why we are doing this is quite obvious. In this country we have a system of divorce laws that antedate the present constitution of the country. It must be made quite clear that those laws no longer have effect. This is done in legal jargon, which is not meant to be offensive. I should not be surprised if that kind of jargon were used in the Statute of Westminster. I should be surprised if we did not find the word "repealed" there.


[Stage Direction]
Clause agreed to.
Clause 27 agreed to.
On clause 1-Short title.
Herbert Wilfred Herridge: Mr. Chairman, I wish to make a few remarks on the first clause. In doing so I might say that I am not a suppliant for divorce. For over 50 years I have lived a happily married life, but anybody looking, at today's newspapers might think that my wife has grounds for divorce. That is not so.
I rise to make a few brief remarks and to interject some historical notes. I have been in this house for over 23 years and I have seen the ebb and flow of the different moods and spirit of this house. I rise to support the spirit of the bill which has been introduced by the minister, and to commend him on what I consider the flexible way in which he has handled the entire matter.


Some hon. Members:: Hear, hear.


Herbert Wilfred Herridge: Already I have received correspondence from my constituency which indicates that quite a number of people are pleased with the introduction of this bill. I am sure they will be pleased to hear of its passage. One lady informed me that she thought the minister was a very sensitive, humanitarian intellectual. I thought I would pass that on to him.
As other members have mentioned, it has been more than a quarter of a century since
[Mr. McCleave.J
the last attempt was made to reform the divorce laws of this country. According to the record, Senator Aseltine was able to persuade the members of the other place to pass a measure that would have widened the grounds of divorce to include cruelty and desertion. However, this bill was allowed to expire quietly on the order paper of the House of Commons, without any member even asking a question as to when the minister intended to proceed with legislation.
A very different situation exists today. Since then, public opinion has changed to such an extent that the Minister of Justice has created a precedent in Canadian history by introducing this measure. I am sure that members on all sides of the house will give him credit for that. Politicians from all parties throughout the years have avoided this contentious issue, because it was politically dangerous. We all knew it. In my opinion they underestimated the changing circumstances and opinions in our society, particularly in recent years. It was not until the churches and other organizations and groups in Canada recognized the need for a drastic change in our divorce laws that parliament was persuaded to act in response to public opinion.
In this connection I have had a little research done. This is a matter of historical record which has been passed on to me. Apart from the bill that was introduced by Senator Aseltine in March, 1930, the hon. member for Winnipeg North Centre introduced a bill intituled "An Act to provide for the Jurisdiction of the Exchequer Court of Canada in Matters of Divorce". He introduced that bill continuously from 1949 to 1956. The explanatory note says:
This bill does not change the grounds for divorce. It does not establish divorce courts in Quebec or Newfoundland. It does not make available to persons residing in Quebec or Newfoundland anything not now available to them. It merely transfers the hearing of divorce petitions, in the case of persons residing in these two provinces, from parliament to the Exchequer Court of Canada.
That was a most commendable objective and, in view of the climate of public opinion which then prevailed, that was about as far as anyone would wish to go.
Later the hon. member for Timiskaming introduced a bill a number of times from 1960 to 1966. These provided for changes in the grounds of divorce. The purpose of that bill was to provide a law for the dissolution and annulment of marriage that would be common to all persons domiciled in Canada. That
December 19, 1967

bill widened the grounds for divorce. I must give my hon. friend for Timiskaming credit for introducing his bill continuously from 1960 to 1966.
In 1962 another major effort was made in this house to transfer divorces from the House of Commons to the Senate. The hon. members for Timiskaming and Skeena conducted a filibuster for some months. I know that was very trying for members of the government and for other members on occasion, especially when they had to listen to long extracts being read from the Senate divorce proceedings in order to indicate the need for the change in procedure. I wish to pay tribute to the courage and persistence of those two hon. members. Finally, the government of the day saw the light, gave in and introduced legislation that provided for divorce to be transferred from the House of Commons to the Senate.
As the years went by the courage of hon. members picked up. The public climate was changing also. On February 18 and April 8, 1965, in the new session, the hon. member for Burnaby-Richmond introduced a bill which would give to the provinces concurrent jurisdiction in Canada and also widen the grounds for divorce. Later, in 1966, the hon. member for Kootenay East introduced his bill. That bill provided for additional grounds for the dissolution of marriage.
As the years went by and as the climate of public opinion changed, as the need for changes in our divorce laws grew, members of parliament responded to that different climate of public opinion by introduction of this legislation.
[DOT] (9:30 p.m.)
Later we saw the introduction of a bill by the hon. member for Vancouver-Burrard in 1966-67 to widen the grounds for divorce and make them applicable to all persons domiciled in Canada. Later, the hon. member for York-Scarborough introduced his bill to provide for the dissolution of marriage on a just and common basis throughout Canada. The hon. member told the house in an explanatory note:
Essentially, the grounds for divorce provided for in this bill are adultery, cruelty and desertion, but include involuntary desertion by reason of incurable insanity and three years separation without reasonable likelihood of reconciliation.
It is interesting to note that the development of public opinion in Canada has been accompanied by an increasing understanding on the part of members of the house. The
Divorce Law Reform
final act was the introduction of a measure whose committee stage we have now almost concluded.
I wish now to mention one or two other things. On March 15,	1966, the house
approved a motion that a special joint committee of the Senate and House of Commons be appointed to inquire into and report upon divorce in Canada, the social and legal problems relating thereto and such other matters as might be referred to it by either house. I was personally very pleased when this committee was appointed, because I have long been of the opinion that committees of the Senate or of the Senate and the House of Commons can undertake investigations into any subject at much less expense than those incurred by some royal commissions. I have read the report of the special joint committee carefully and I must congratulate the joint chairmen, the members of the committee, and the witnesses who appeared before it. I should also pay tribute to the services rendered by the committee's special assistant, Dr. Peter J. King, associate professor of history at Carleton University, and by Mr. Patrick J. Savoie of the Senate committees branch. In my opinion the committee has made a splendid contribution to the understanding of problems relating to divorce in present circumstances.
I heard the minister's speech, I have read it a couple of times and I have listened carefully during the greater part of this debate to what he has had to say by way of explanation of the clauses and in his comments on the various amendments offered. Whether we agree with every detail of what has been done or not, I believe, in all fairness, that we must admire the hon. gentleman for the attitude he has taken toward this legislation and for the spirit in which he has pursued his purpose.
The minister has indicated his willingness to learn from experience in the administration of this legislation and to make improvements or amendments if necessary. In adopting this measure the house will have remedied a quarter of a century of indifference compounded by political apprehension -and we all know what that is in certain circumstances. In conclusion, I say the house has acted with wisdom and prescience to meet a specific human problem which affects a large number of Canadians.


Steven Otto: In case some hon. members may get the impression from the speech of the hon. gentleman who has just spoken that this

December 19, 1967
Divorce Law Reform
bill is the result of the efforts of everyone except the Minister of Justice, let me set the record straight by saying it is the Minister of Justice who had the courage and the tenacity to introduce the bill before us and get it through.


Some hon. Members:: Hear, hear.


Steven Otto: This is something I did not expect, to be frank; I did not think my hon. friend would move so quickly. It is to his credit that he has done so. My hon. friend did say earlier in the debate that he had no vested interest in the subject of this bill. But of course he has, as a member of the Canadian community. And his children, if and when they form families-I am assuming, of course, that he does get married and have children-will be affected by this far reaching measure.
The hon. member for Kootenay West told us he had read the report of the committee. I was a member of that committee and I heard all these briefs presented. We heard presentations from deserted mothers, mothers alone, men, women and judges. But at no time did we hear any evidence as to the effect of divorce on children.
At no time did anyone say a study had been made as a result of which we knew that the effect of divorce on children was so and so. Consequently I rise to say that this bill is not a panacea. It will not result in a greater number of divorces. It will certainly not be a sovereign remedy for marriage or family problems. Indeed, it is but the beginning of new work which we must undertake. We must put our house in order with respect to all matters affecting family units and the rights of children. At the present time the children at least know to what establishment they belong. But we, as a society, having adopted a very liberal view of divorce, have failed to provide a suitable climate for the children of divorced parents; they are still looked upon as being somewhat apart from the rest of the community. They are not yet accorded the same treatment as is accorded to the children of married parents. We have to deal with this situation because these are the children affected by the legislation we are passing.
I hope the minister's next endeavour will be to continue research into the problems of divorce as they affect the children, and into the whole field of the laws relating to divorce proceedings.


Alan John Patrick Cameron: If it is appropriate and in order may I say a few words on this bill? As the hon. member for Kootenay West has indicated, this amounts to a demonstration of the worth and merit of joint committees of this house and of the Senate.
There were 24 members from the house and 12 from the Senate represented on the special committee. Many of the representatives from the house were members of the justice committee and they included some of the brightest legal minds among us. I have no doubt at all as to the efficiency of the committee. Added to that, we had the experience of the senators from the other place, and I refer in particular to my co-chairman, Senator Roebuck.
Senator Roebuck has been chairman of the divorce committee for many years and has heard some 15,000 cases. He is a master of the law on divorce. As co-chairman it was easy for me to assist in the organization and in the work of the committee and to preside at some of the meetings. The real work was done by him. I think we should all congratulate him and pay tribute to him for what he has done-a 90-year-old Senator who is 90 years young, a (9:40 p.m.)
The report which the minister has been kind enough to indicate has been the basis for the bill emanated largely from the work of Senator Roebuck of the other place. Some members of the committee made contributions in the nature of suggestions, and other members of the committee took an active part in the discussion when the report was finally considered and settled. I do not wish to praise the members of the committee unduly, but may I refer to a comment which appeared in the Globe and Mail and ask hon. members to take their praise, in place of what I might say:
In many respects, the bill is as broad and liberal a piece of divorce legislation as any western nation has written. Yet it will still maintain some unjustified matrimonial prisons and it will still contribute to perjury in the courts.
I should like to congratulate the minister for the very able way in which he has presented the bill to the house.


Some hon. Members:: Hear, hear.


Alan John Patrick Cameron: I take it as a tribute to the committee that the bill as drafted was largely founded on the report of the joint committee. I hope that the prison
December 19, 1967

doors that will be opened as a result of this bill will be sufficient reward to the members of the committee for the many long hours and very determined concentrated studies they put into this subject.
Mr. Chairman, I think when this bill becomes law the parliament of Canada will have a bill to be proud of.


Gordon Harvey Aiken: Mr. Chairman, we seem to be passing around laudatory remarks, and therefore, before the bill passes I should like to give credit to the senior member for Halifax (Mr. McCleave) who has carried through our work on this bill. The hon. member was one of the few people jointly from the house and the Senate who did the real groundwork for the Dissolution and Annulment of Marriages Act which was the first real step to a more rational divorce law in Canada. This particular law to be passed today completes the process to this point. For this reason I believe we should acknowledge the part the hon. member has taken in this matter. More than that, I believe that today is his birthday.
Mr. Chairman, I must take issue with just one remark made by the hon. member for Kootenay West when he commended the minister for his flexible attitude. I am afraid we on this side of the house did not find that he had such a flexible attitude. In spite of the number of amendments which were proposed very few were accepted. However, this bill does represent some real progress. For this reason I am authorized to say we would be happy to consider, if it is the wish of the house to do so, proceeding to third reading tonight. The bill has been changed so very little in committee that it really does not amount to any change at all.
Clause 1 agreed to.


[Stage Direction]
Title agreed to.
Bill reported and read the third time and passed.
Allan Joseph MacEachen: Mr. Speaker, in the mood of good will which prevails in the house I should like to move the following motion:
That pursuant to Section (6) of standing order 6 this sitting be extended until eleven o'clock this day or until consideration of Bill No. C-163 in committee of the whole be completed, whichever shall be the earlier of these two eventualities.


Ralph Bronson Cowan: I object.

Canadian Policy on Broadcasting


Mr. Speaker:: Order, please. There is an objection. Are there any members rising in support of the objection?
Pursuant to section (6) of standing order 6, the order is deemed to have been adopted by the house.



BROADCASTING


[Stage Direction]
The house in committee on Bill No. C-163, to implement a broadcasting policy for Canada, to amend the Radio Act in consequence thereof and to enact other consequential and related provisions-Miss LaMarsh-Mr. Batten in the chair.
On clause 2-Broadcasting policy for Canada.
Mr. Nesbili:: Mr. Chairman, there are a number of us who did not have the opportunity to speak on second reading. There are some of us, I believe on both sides ef the house, who have some ideas we would like to put forward. We understand, because of the resignation of the former president of the Canadian Broadcasting Corporation, that a new president is to be appointed very shortly. Numerous rumours have been circulated to the effect that a very highly respected and very senior civil servant will be appointed to this position.
All members of the house are cognizant of the fact that the new president of the C.B.C. may be faced with problems which he or she has never experienced previously. I think it is only proper that the person who takes on this very important job should have the opportunity of receiving suggestions from members of this house. I know, Mr. Chairman, that suggestions from members of this house are not welcomed by the senior officials of the C.B.C. and that when one does offer suggestions which are not welcome they are not taken very kindly.
[DOT] (9:50 p.m.)
We hope when this broadcasting act passes many of the complaints about the C.B.C. will disappear. Let that not be a fond hope. Perhaps the new president will be able to spruce up his policies. I am sure this will be acceptable to the Secretary of State and, indeed, to many members of this house, and the country. Perhaps many of the faults which have caused the complaints over the years can be rectified.
5640	COMMONS
Canadian Policy on Broadcasting
There has been created an impression in the public mind, through the press, periodicals and the like, that a number of members of this house are opposed to the C.B.C. as such. There may be some who are, but I for one have been accused repeatedly of this and I am not opposed. I think the corporation performs an excellent and valuable service to the country and can continue to do so. What I object to are some of the policies that have been carried out in some branches of the C.B.C. It is those policies which over the years have caused the vast majority of complaints. I am sure it is the hope of many members of this house, as it is mine, that these complaints which I intend to deal with specifically, can be rectified in future so that the C.B.C. can continue to serve Canada.
There have been many complaints raised about the intellectual entertainment programs. I do not suppose it is easy to please completely any two people in the country, because one is pleased by something while another is pleased by something else. This is because people have different tastes and like different things. I do not intend to make any comment about the general level of the quasi-intellectual entertainment programs of the C.B.C. Some people like them and some do not. Personally I like the majority of them but I may be unique in this respect. The only suggestion I would make is that it is obvious some of the producers of the entertainment programs for the C.B.C. lack the same standard of taste which is generally acceptable in Canada. I hope the new president puts his foot down and will insist that some of these producers will accept these general standards. Perhaps they feel these programs are acceptable because of a new spirit of permissiveness in Canada, but since it is the public which must pay for them, they should have some regard to general standards of behaviour. I hope this will be borne in mind by the new president, and some of these producers who I think produce these programs for no other purpose than to show off and to shock the public.
Another complaint on the part of many members of this house, including myself and many members of the general public who have brought this to my attention, concerns the public affairs programming of the C.B.C. It is in this regard I have serious complaints which fall generally under three headings. The first relates to political interference on the part of the C.B.C., and a heavy political bias in respect of many public affairs programs.

DEBATES	December 19, 1967
The second group of complaints relate to matters of public controversy such as the Viet Nam question, race riots and apartheid, to mention a few. Unfortunately the C.B.C. seems inevitably to present only one side of a question. Any opposing point of view is presented in such a biased manner it cannot be considered a fair presentation.
The third group of complaints relate to the deliberate and fraudulent misrepresentation of the credentials of speakers. This can also be said of photographs and other things. I hope all these complaints can be avoided. If the causes can be corrected I am sure the complaints will disappear. It goes without saying that any member of this house would strenuously object to any outside political interference in the C.B.C. At the same time I think it is proper to object to political interference, or that which appears certainly to be political interference, from within the C.B.C. itself.
I have no hesitation in saying that on rare occasions it may seem that a point of view of the Liberal party or the Conservative party is presented by the C.B.C., but most people to whom I have talked regard the C.B.C. as a propaganda machine for the N.D.P. All one has to think of is the interviews by Mr. Laurier LaPierre and Mr. Pierre Berton. I have several examples of this.
During the 14 or 15 years I have been a member here I have driven back and forth between my constituency and Ottawa on innumerable occasions. During those trips I have listened to the C.B.C. constantly and made notes on every occasion. I have a file containing hundreds of examples. If any member of the C.B.C. would like to discuss these with me privately on some occasion I would be only too happy to accommodate him.
The general impression created is that the point of view of the N.D.P. is greatly overemphasized out of all proportion to the number of its members in this house and its percentage vote in the country. That party is promoted steadily in every conceivable field of public affairs. Let me make it quite clear that I have no objection to N.D.P. propaganda on C.B.C. My objection is that the two major political parties receive almost no time in this regard. After all, the supporters of the Liberal and Conservative parties pay the taxes that keep the C.B.C. going, and this situation does not seem fair.
My next point relates to this same matter, I refer to the one-sided point of view on
December 19, 1967

matters of public controversy. The parliamentary secretary to the present Prime Minister in a speech in Winnipeg pointed this fact out very well. That speech has been quoted at length by other members of this house including the hon. member for Athabasca, the hon. member for Leeds and I believe the hon. member for Kenora-Rainy River. I can only say that when you receive one-sided views on race problems in the United States, or the Viet Nam situation, it does not help the public reach a reasonable conclusion.
Most of us in this house have had the opportunity from time to time of talking with fairly senior people in the C.B.C. I have had the viewpoint expressed to me on many occasions that it is not the function of the C.B.C. to present a balanced picture of such controversies, but to lead the people in thinking in the proper way. It would seem to me that on matters of great public interest and controversy such as the Viet Nam situation, a balanced point of view should be presented so the public could draw its own conclusions as to who is right and who is wrong. This is difficult to do at the best of times, but when you get only one side of the picture the brain washing effect is pretty evident.
[DOT] (10:00 p.m.)
This leads me to a question in respect to the commentators on C.B.C., and this matter relates also to the previous point. I refer to the falsification of the credentials of those people who speak on C.B.C. I have here a good many examples of this, some of which I have heard and seen myself, and others that have been brought to my attention. I will give just two illustrations which might be of interest to the house. The first is this. A few years ago on the program "Preview Commentary", which I think is described as a free expression of opinion, whatever that means, on a good many occasions we heard one, Professor Michael Oliver, giving a commentary on the news. He was described as a professor of political science at McGill University. Some thought it strange that no professor of political science of any other university was ever called upon to comment.
We later discovered that this gentleman was elected president of the New Democratic party. He continued for some time on the C.B.C. to give commentaries on the news, as Professor Michael Oliver. As a matter of fact these commentaries were very interesting, but I just wonder what would have been said

Canadian Policy on Broadcasting from some quarters of this house if the president of the Liberal association or the president of the Progressive Conservative association had been brought on to "Preview Commentary" to comment freely on the news every morning. I can imagine the comments that would have come from some of my friends to the left, had this taken place. This is just one illustration.
I will give another example which I think is a really interesting one. This occurred several years ago when I happened to be at the United Nations. It was brought to my attention that a television show which had been produced in Toronto was exceedingly critical of the entire Canadian delegation at the United Nations, its activities and the personnel thereof. At that time the Toronto Globe and Mail published an editorial and said that ordinarily, from their information, they would not have thought this to be so, but since the speaker on the television show, Mr. Arnold Beichman, was described on the C.B.C. as the United Nations correspondent of the Christian Science Monitor, they must pay attention to it.
I was quite familiar with members of the press gallery of the United Nations and made inquiries about this matter. I asked whether Arnold Beichman, who was described by the C.B.C. as United Nations correspondent for the Christian Science Monitor, in fact held that position. I was told he had never worked for the Christian Science Monitor, was not a member of the United Nations press gallery, never had been and was not known to the press gallery. The C.B.C. were contacted and said they had made a little mistake and it would not occur again. About three weeks later, on a television program advertised in the Globe and Mail, the program being about anti-Americanism in Canada, I noticed that on the panel were Mr. A, Mr. B, Mr. C, and Mr. Arnold Beichman the United Nations correspondent for the Christian Science Monitor. So there was no possibility at all of a second mistake having been made by the C.B.C. As it turned out Mr. Beichman was apparently editor of the "AFL-CIO" News Bulletin.
These are just illustrations, Mr. Chairman, and I have many more here, of what can only be described as misrepresentation of the credentials of people who appear on the C.B.C. I have another illustration. Not too long ago there was on the C.B.C. a program about the Viet Nam war. Certainly the suffering of individuals on both sides is a subject
December 19, 1967

Canadian Policy on Broadcasting of pity and concern to everybody. There were televised a number of pictures purporting to show atrocities in Viet Nam which undoubtedly resulted from bombing. One picture shown on this program was of a small child covered with black as a result of an explosion, sitting on the steps of a building crying and obviously covered with blood. It was a very moving picture indeed.
There was only one thing wrong. Those of my vintage and others perhaps remember that this was one of the leading propaganda pictures of world war II. It was a picture which appeared on the cover of Life magazine at the time of the bombing of Chungking. It may be said that this was just the kind of thing that happened in Viet Nam, but it was represented as having taken place in Hanoi.
This is what we have complained about so often in the house. Attention is never paid to complaints made in the house. Impertinent telegrams are sent by officials of the C.B.C. and summonses are received to appear in their office to discuss the matter with them. There is a gap between members of the house and the C.B.C. It may be that C.B.C. officials feel they are unfairly treated, that there is a lack of dialogue, although I hesitate to use the word, and "conversation" may be a better word in this context. Perhaps officials of the C.B.C. feel there is lack of conversation between members of the house and the C.B.C., but I feel that the public which has to foot the C.B.C. bills to a tune of $140 million or $150 million a year should at least be permitted to express its views through members of parliament to the Secretary of State, who is in charge of the C.B.C. and who can then relay these viewpoints and complaints to the corporation.
Naturally no one expects the management of the C.B.C. to pay attention to every single complaint which comes in. Every one knows that is impossible. But one does expect a slightly more courteous hearing of these complaints. I can only hope that when the new president of the C.B.C. and the new senior officials take over, these serious complaints, whether they are made by members of the house as individuals or on behalf of their constituents, will be given serious consideration. No one wants to hamstring the management of the C.B.C. I imagine it is probably difficult to administer such a large corporation. However, I think the management should pay some attention when complaints are made with regard to the political bias of certain broadcasts of the news and one-sided


presentations are made of matters of great public concern. The C.B.C. management should then make some effort to bring some of the producers to heel.
I should like to make one more comment. It has always puzzled many of us why some subjects which have no direct bearing on Canada are dealt with at such length by the C.B.C., a good example being the racial disturbances in the United States. Naturally these matters are of some interest to Canadians, because the United States is our next door neighbour and we have been tied up with them one way or another. It is natural that what goes on there is a matter of great interest in Canada. But when day after day and hour after hour we get nothing but pictures of racial disturbances in Alabama or in Cleveland, it becomes rather much. Someone has suggested to me that perhaps one of the reasons for the emphasis on this subject is that since a great many of C.B.C. radio broadcasts permeate a large section of the United States, and so do some of our television programs, perhaps some of these programs are really being directed at the United States and not at Canada. Be that as it may, and even if the intention is to direct some of these programs at the United States in an effort to reform them or change their attitude, the fact to be remembered is that we are paying for the programs. If anyone is going to reform the United States, they had better do it themselves. I am not suggesting that such programs should not be broadcast. I think that anything that goes on in the United States is of interest here, but it does not warrant so much C.B.C. time. I think this matter should be reviewed.
I know other hon. members will wish to comment on this subject and I intend to bring my remarks to a conclusion. Let me just make it clear that I am very much in favour of the C.B.C. and I like the great majority of its programs. I think they are excellent and the C.B.C. should be commended for them. I refer particularly to some of their artistic and sports programs. However, with regard to public affairs programs I hope the new president and the senior management of the C.B.C. will pay a little attention to some of the complaints that have been made in the house.


Mr. Priitie:: Mr. Chairman, I was not going to make a general speech at this stage; I was prepared to speak on particular clauses of the bill. However, having heard the number
December 19, 1967

of shots fired by the hon. member for Oxford I have come to the conclusion that some of them require a reply.
[DOT] (10:10 p.m.)
If the hon. member is a friend of the C.B.C., all I can say is God protect the C.B.C. from its enemies. I got the impression that he would like a broadcasting corporation which did nothing controversial and which had lots of commentators expressing views which he liked. Then there would be no problems. It is some news to us that the C.B.C. is the political arm of the New Democratic party. I have a great deal of evidence to the contrary. I wish I could show the hon. member the thick file of correspondence which has passed between the leader of our party in the province of Saskatchewan and the president of the C.B.C. He would know that gentleman, in any event, does not consider it to be the political arm of the New Democratic party. A number of my colleagues in the House of Commons, when they get fed up, say the C.B.C. is just a bunch of Liberals. Perhaps this is the way it should be: Keep everybody guessing. I can assure you if the C.B.C. is the political arm of the New Democratic party they are not serving us the way we would like them to.
The hon. member for Oxford is also asking for a balanced view on race relations in the United States and conditions in Rhodesia. He will have a hard time finding many public spokesmen in Canada who will express opinions he may like to hear on these subjects. I should like to say a word or two, Mr. Chairman, about the proposed new appointments of president and executive vice president of the C.B.C. I imagine that the announcement of these appointments will be made after the house has recessed. The Prime Minister did say that he would make the announcements after the bill had third reading. There is not very much time and, as I say, I suppose these announcements will not be made until perhaps next week or the week after. We have heard reports concerning the names of two gentlemen who have been suggested for these positions. They are both highly qualified in the field of administration and have proven themselves respectively in the public service and in private business. Without saying anything detrimental about either of the two gentlemen suggested, I should like to say it is a pity neither of them has any experience in broadcasting. I think one of the two should have had broadcasting experience.

Canadian Policy on Broadcasting
Broadcasting is a complex field and the C.B.C. is a complex organization. It would have been better if one person had had experience in broadcasting. Again, these appointments have not been made as yet and we are only going on rumour. I hope that the new heads of the corporation, whoever they may be, do not try to put their feet down too heavily, as the hon. member for Oxford suggested they should. If the C.B.C. ever reaches a stage where they do not do things that annoy members of parliament or annoy the public, where they do not do challenging, controversial things, then I do not know what we will need them for. I hope we will have a public broadcasting corporation that will continue to put on public affairs programs, entertainment programs, that will challenge the people, that will please some people and that will annoy others.
I recall, Mr. Chairman, about 20 years ago when I was living in Ottawa Max Ferguson began broadcasting. At that time he imitated some members of parliament, and I believe they got up in the house and complained about the kind of thing this man was doing on C.B.C. radio. We need people who will poke fun at us, who will challenge us, who will present conflicting points of view. The experience has been that this is much more likely to happen on a public broadcasting system than on private broadcasting. I hope therefore, that the new heads of the corporation will perhaps make organizational changes which may be necessary, effect economies which may be necessary, but leave a free rein to the producers who produce the kind of programs which will interest and arouse the people of this country. Otherwise, it would be a very tame body and would not be serving the purpose at all.
I should like only one other comment on the remarks on the hon. member for Oxford. He based his whole statement upon the fact we are paying for this public broadcasting service and therefore we have a right to speak. This is true. We are paying also for private broadcasting. If the hon. member would look at the information supplied by the Dominion Bureau of Statistics for 1965 he would see that a total of $162 million was spent on radio and television advertising in Canada.


Wallace Bickford (Wally) Nesbitt: We are talking about the C.B.C. at the moment.


Robert William Prittie: We are talking about the Broadcasting Act which deals with all of
December 19, 1967

Canadian Policy on Broadcasting broadcasting in Canada, and I would point out to the hon. member that I am just as able to make wide ranging remarks as he is. If the hon. member would look at the D.B.S. statistics for 1965 he would see that $162 million was spent on radio and television advertising in that year. Taking away approximately $30 million which the C.B.C. receives for advertising, this leaves $132 million which went into advertising on private radio and television. As consumers we are paying for that too. There is nothing wrong with it; but people tell us that we do not get anything in this world free. That is true, Mr. Chairman, and in this regard we are paying for both public and private broadcasting.
I could continue at great length and make the kind of speech which hon. members normally make on second reading or on clause 1 of a bill but, Mr. Chairman, in the interest of speeding things up tonight I shall confine my remarks to the few I have already made. We in this party are ready to go ahead with discussion on the clauses of this bill.


Some hon. Members:: Hear, hear.


Mr. Laprise:: Mr. Chairman, I wish to make a few remarks about this broadcasting bill which is now before us again after having been referred to a committee and reprinted following several essential amendments. At first sight, some of those amendments seem rather minor ones, even though a few are somewhat interesting.
I should like to refer particularly this evening to clause 2. My remarks may seem of a general character, but they will deal mainly with that clause of the bill.
For many years, Canadians have been asking for radio and television services everywhere and in all areas. That is to say that this medium of information, of culture and of recreation is quite highly esteemed by the public. For those reasons, then, I feel this bill must be studied and passed as soon as possible, because it seems to make the necessary changes.
Once this new act is passed, the committee entrusted with managing the broadcasting system, private as well as public, can then satisfy the request of Canadians who have been clamouring for radio and television services. In this connection, I should like to point out that too many fairly important centres are still deprived of the services of this system or this means of information.
[Mr. Prittle.l
I recall that, in 1962, when I was elected for the first time, I noticed that certain areas in my riding had made application and had brought pressure to bear, to get the services of the C.B.C. Not long after the 1962 selection, we were faced with a severe austerity program and, at that time, the millions of dollars granted the C.B.C. for its expansion were withdrawn, and the C.B.C. could not provide the additional services it had intended to give. Therefore, as a result of that austerity program, of that financial crisis, areas such as Chibougamau, Chapais, Clova and many others, throughout the country, were refused radio and television coverage because of a lack of money. Therefore, year after year since then, those developments have always been postponed due to a lack of money.
Once again this year, following the announcement made a few days ago by the Minister of National Revenue (Mr. Benson), the same situation prevails and the citizens who live in those regions, which the Secretary of State (Miss LaMarsh) as well as the Minister of Finance (Mr. Sharp) like to call remote regions, isolated regions which cannot be reached or can be reached only with great difficulty, will have to wait again, in short will have to wait again until the government finds the necessary funds to give them that service.
[DOT] (10:20 p.m.)
Mr. Chairman, when the ministers or the government tell us that those regions are remote, isolated and, thus, inaccessible, I disagree with such statements because when it comes to collecting taxes there, the Minister of National Revenue does not find them too remote. The miners who live in those regions know that very well, for they have to pay twice over for services which they do not get because, as pointed out by the hon. member who spoke before me, television, whether public or private, must be paid for.
Therefore, when the people of those regions buy a bar of soap, a pack of cigarettes or any other product advertised on television, they pay a slightly higher price because the companies which advertise their products on television raise their prices to pay for the publicity. Therefore, these people are paying for television services which they do not get. This is an injustice which I hope will be corrected by the new broadcasting council. I think that the hon. Minister of Finance should be approached as soon as possible by the Secretary of State, so that the
December 19, 1967

C.B.C. may obtain the appropriations it needs to extend its services in all parts of the country, so that as many Canadians as possible may enjoy them, as well as private stations. We note that private enterprise can hardly serve those places, and it is up to the C.B.C., which is a crown corporation, to give those services.
Now, Mr. Chairman, there is another point which I would like to raise this evening. I referred to it a few days ago and I would like to bring it up again this evening. In some areas such as the one in which I live, the northwestern area of the province of Quebec, we have a private radio and television station. However, as that service does not entirely meet the requirements of the public and broadcasts programs which sometimes people can hardly understand, because they are unsuitable, I ask the C.B.C. to extend the services of FM radio, in order that we may obtain some truly cultural programs which could be heard by everyone, by those who prefer good music, first-rate music rath-em than music which I would compare to abstract art music which means just about nothing and only produces headaches and some rhythm.
So, I think that the C.B.C. should provide the northwestern region of Quebec, the region of Abitibi, with FM radio service so as to serve the public as well as possible.
Before closing, Mr. Chairman, on clause 2 of the bill, I am wondering about subclause (i) stating that:
-service should be provided within the Canadian broadcasting system for educational broadcasting;
I should like to ask the Secretary of State if there is an agreement with the province of Quebec, because I believe that, in matters of education, the government of the province of Quebec is rather touchy, and rightly so. I think that agreements should be reached by the two governments so as to avoid any encroachment.
Mr. Chairman, in closing my remarks, I hope that the minister will pay them particular attention and that the C.B.C. particularly will have available the necessary money to extend broadcasting services everywhere in Canada.


Howard Earl Johnston: I should like to discuss the undiscussable this evening at some length. When I say "undiscussable" I refer to a subject which might be stated in one word -taste. Or if you want to use two words,

Canadian Policy on Broadcasting good taste. I realise that this is an area which is difficult to define and therefore one from which a modern individual tends to withdraw in helplessness or confusion rather than attempt to make a case for standards in an area in which it can be difficult to set standards.
I would say, further, that this is particularly undiscussable at 10.30 in the evening of a long day, and I regret that this important piece of legislation should be brought down at this hour for hon. members to begin a clause by clause study in committee. I regret also that this legislation should be brought before the house on the eve of a Christmas recess, especially on a Tuesday evening when we know that Wednesday is a short day and that Thursday is to be taken up by a debate on housing which was supposed to have taken place on Friday. So the time available for this clause by clause study will be of the very briefest.


Thomas Speakman Barnett: Might I suggest that the hon. member is not altogether correct. As I understand it, the regular hours of sitting on Thursday are to be extended, and the morning sitting will be additional to the normal proceedings of the house. I think the hon. member's reference to the debate on housing is incorrect.


Howard Earl Johnston: I appreciate the illuminating point of order raised by the hon. member. I do not mind what excuse he puts forward for the suggestion that doing double duty on Thursday will add to the lustre of this chamber and do justice either to housing or the Broadcasting Act. I submit it will do justice to neither.
To return to my point, I am much concerned about this undiscussable area in the C.B.C. It was not discussed in the committee to any extent. At the beginning of the sittings, every time we came to one of these difficult, dangerous or possibly embarrassing aspects, the clause was allowed to stand. We were told this had been done so that the committee could get on with the housekeeping part of the subject and that at the end there would be time for a complete discussion of these problem areas. Of course when we did eventually reach that point, passage of the bill through committee was drastically accelerated as a result of the resignation of the president of the C.B.C. and the urgency of rushing ahead with the legislation so that the nation could cease holding its breath and learn who the new president was to be.
December 19, 1967

Canadian Policy on Broadcasting
All the clauses which had been allowed to stand were rushed through in a single afternoon, with the bare minimum of discussion. I felt this was a regrettable and reprehensible use of the committee. We hear a lot about what the committee system can do for parliament generally, but if we continue doing to the committee system what we are doing to it now there is not much hope in that direction.
[DOT] (10:30 p.m.)
I should like to talk about what I would call the sweet smell of decay which has surrounded a good part of the supposedly entertainment programming of the C.B.C., particularly in some of its most prestigious spots on the prime time. I know the minister has received letters about some of these programs and I know other members as well as myself have received such letters also. Previously I was one of those people who defended the program "Festival" particularly. I took the position that the good things it did were quite capable of balancing out the odd utter failure that would happen every so often. But I do not think that ever before in the history of our Canadian broadcasting have we seen such a lengthy process of assault on the sensibilities of the Canadian public as we have through this fall and early winter season of the C.B.C.
In spite of the remarks of the hon. member for Burnaby-Richmond I do not quite see why the public should have to sit back and in a sense allow itself to be hammered over the head by material that is pointless, tasteless, provocative and expensive or have to turn it off after they become sick of writhing as they watch it, knowing that they are paying for it through taxation. Although the hon. member for Burnaby-Richmond may equate the sums which go through by the means of advertising into program production to those which come through the public purse, I do know that although you can stop buying the product-you do not have to buy the soap or detergent or whatever it may be-you cannot stop paying taxes. At least I have not found a method of doing so yet and I doubt whether the minister has either.


Miss LaMarsh:: Have a low income.


Howard Earl Johnston: I would entirely agree with the minister in that regard.
I should like to quote from an article written by Mr. John Sparrow which appeared in the Sunday Times of London, England. In a sense speaking to today's public and using

examples drawn from samples of Swift and Burke he says:
"You have subtilized yourselves," he might tell with Burke, "into savages," pointing to two revolutions that are taking place within our gates: the Abdication of the Artist and the Abdication of the Adult.
The abdication of the artist means the triumph of Anti-Art; the domination, in literature and in music, in painting and in sculpture, of a random element. The chance object usurps the place of the artefact; finding is making; the spectator takes over from the artist, the audience from the composer and the executant. If the artist asserts himself at all, it is not to carry out a conscious purpose, but to fulfil an inner impulse which he does not seek to control.
In all this Swift might see a revolt against the rule of order of design, of restraint; a deliberate appeal to chaos and an invitation to violence; a challenge to the very idea of art as a special kind of conscious activity.
He then went on to say that through this abdication by the artist we have a policy of simply presenting life as it is without expurgation and with a minimum of editing. The article then continues in this regard:
-an aim which, if its validity is admitted, justifies not only the presentation of the random "happening" as a work of art, but the description in print, and the representation, (even, perhaps, the actual exhibition) on the stage, of copulation, excretion, sadistic practices, anything, in short, that people do.
Later the article states:
All this Swift might well observe and record with an amused and perverted relish. His scorn he would reserve for the abdicators-
Mr. Sparrow lists them as critics, instructors, parents and legislators. He then says:
-who might well appear to him to have lost, in a paralysis of confidence, the will and the power to criticize, to control, to condemn; and that, at the very juncture when civilization and enlightenment are under the heaviest attack.
I am afraid that through the rising processes and through the timing the government has used in presenting this bill for study this chamber will find its members among the legislators who are abdicators. This area will not receive the consideration and the discussion it should, and because of a paralysis of hesitation we will withdraw from the attempt to regulate and to call, through the legislation itself, for a little more order out of the chaos.
You might feel that these words are a little harsh. Let me quote from the C.B.C. Times itself, which is not usually regarded as the most severe critic of the C.B.C. Let me quote from the previews they gave of three of the programs which followed in a series and had
December 19, 1967
a rather cumulative effect on the public. I begin with a review of something called "The Ernie Game". It states:
"The Ernie Game is very modem, very contemporary-the things that it deals with are things that are the preoccupation of the psychedelic generation ... sanity, insanity, consciousness."
These are quotations from what was said by Mr. Owen, the producer. It continues as follows:
I'm presently very much interested in surfaces. I think that's where the profundity is-in the surface, that there is only a surface, that the other thing is an invention ... In The Ernie Game, which is all surface, nobody ever tells you anything about the characters, no information is provided, the reason for doing anything is completely unclear, because I think it never is clear.
I have no objection at all to the artist having a private insight or playing a private joke on the public, but I do question the advisability, the desirability and the propriety of asking the taxpayer to foot the bill constantly and regularly without being able to obtain anything from it.
Let us look at the description of "Waiting for Caroline" from the C.B.C. Times a week or two later. It states in part:
It's not, however, just a simple love story. That's something Kelly says he's not interested in filming.
The last thing I want to do is entertainment," he says. "Unless one stimulates an audience to be aroused rather than to be more soporific, it's a waste of time.
I think people should come away with their complacencies somewhat jarred."
[DOT] (10:40 p.m.)
I must admit that it stimulated the audience. It stimulated people to write letters to me and, I am sure, to a great many other members of parliament. These people are aroused because they are being asked to pay for this form of stimulation.
I should now like to refer to the final effort of this series, called "The Paper People". One director described it in the C.B.C. Times in these words:
-light, gay, frivolous, but underneath is an edge of despair and terror. I have been told it has the baroqueness of a Fellini production, and the mysticism of some of Antonioni's work. It's not an historical piece. It's very contemporary and avant garde, about the "now" generation.
The description continues in this way:
It's a slice through the artsy crowd. To some people it may seem sick, a little camp, a bit decadent. But it's really a rather strange love story, and a search by the artist for many things.
I submit that when the C.B.C. in the C.B.C. Times calls its own programming
on Broadcasting decadent and suggests that it may seem sick and a little camp, it really is, and that we have it on the best authority. We have noticed this fall something that has been missing from the Canadian television scene, that is, a revolt amongst the critics themselves who have grown weary of calling this sort of programming harmless, artistic, very fine. They have grown weary of seeing the same bedroom scene over and over again, week after week, regardless of what is the title of the production. The undressing of the characters in the bedroom scene has not been sufficient to add that much interest to the program, and it has reached the stage where the critics now describe this scene as the "obligatory" scene; it has to be in or it will not be a C.B.C. production.
I should like to quote one critic who reviewed "The Paper People", the last of this series of programs, and described it as "pretentious, sickeningly arty, and boring." Sheila H. Kieran says:
I've always considered myself one of that band .. who have thought of the C.B.C. as a noble experiment and who have looked down on its detractors as Philistines ... but, boy, is the C.B.C. making it hard.
This was because she had seen the screening of "The Paper People". She went on to say:
Yesterday I saw a screening of "The Paper People", next Wednesday's Festival production. Even for the precious types who inhabit the C.B.C. this play is a bit much: it is pretentious, arty-in the worst sense-and downright boring.
Most of all it is insufferably arrogant-it seems to have been made by the few for the few. I don t subscribe to the idea that everything the C.B.C. does has to have the widest mass audience but, with this production, the C.B.C. becomes the world's only national network serving 50 people.
I think that is a rather good line, because I understand this final production of the series cost $150,000. This figure has been mentioned in various reviews on the program. At a time when we have heard an appeal for austerity, which has great merit, and the government has seen fit to take the subsidy off quality farm products, I wonder whether it might not consider that it is too highly subsidizing in the C.B.C. a product singularly lacking in quality. Sheila Kieran talks about "the characters standing around and talking significantly." Then she says:
-frankly, I still don't know what they were talking about. (I have a sneaking suspicion they don't know either.)
I might tell the minister that I was invited out for dinner the evening this production

Canadian Policy
5648	COMMONS
Canadian Policy on Broadcasting was to appear, and so I hesitantly asked my host and hostess if we could not watch "The Paper People" because I was concerned about it. I knew it was the third part of a trilogy and I thought I should at least see it before I rose to criticize it in the House of Commons. Very graciously they consented to watch it. I am still apologizing in a way for the imposition on those who were entertaining me that evening, because if Sheila Kieran whose business it is to write about it did not know what they were talking about, then certainly the average Canadian or even the considerably intellectual Canadian failed to know what they were talking about.
I know the minister has received strongly worded letters about the program. I will quote from one, a copy of which I have received. The program commenced with a warning that this is adult entertainment, and perhaps one should shut it off. As the writer points out, this was a slightly pompous warning. She went on to say:
Did anyone think of the myriads of 13-18 years group baby sitting, watching their own T,V.'s or otherwise out from under adult supervision? What are you trying to do to them? They are struggling into a strange complex adult world and these are the guide lines they are offered.
Here the author was referring to the program "Waiting for Caroline" but I am sure the confusion was compounded a week or two later by "The Paper People". She went on to say:
In our youth certain people undoubtedly behaved like this but their example wasn't thrown at us and depicted as the adult, glamorous, ''in" way to conduct our lives, by a communications medium that subtly affects us all. All youth is not yet decadent and corrupt. Their decency amazes one. But what chance are we giving them, depicting licentiousness as freedom, self discipline as a quality completely unknown and truth in personal relationships not even to be considered.
I repeat, where is the C.B.C. leading these people who will take Canada into the second century? Don't underestimate your influence.
I would suggest that in the final stage of considering the legislation we should give serious thought to amendments which will set down a little more firmly guide lines for the Canadian radio television council not only for C.B.C. broadcasting but also in the private area, because I think it is important for us not to abdicate this great responsibility. I feel the council is far too small in number to adequately take care of all the housekeeping duties which the bill assigns to it. The members of the council will scarcely be sufficiently representative to include representation of the areas most concerned

DEBATES	December 19, 1967
about the moral and religious well-being in the country, and I suspect they will spend their time setting down regulations about how many minutes of advertising should be allowed per hour, about which station should be licensed where, and about how much colour we should have in television programs,-in other words about housekeeping and not about programming.
Unless we provide in the bill more guide lines than are contained in it at present, I am afraid the council will have few occasions to consider seriously the impact and the purpose of the productions that are, after all, what broadcasting is all about.
[DOT] (10:50 p.m.)
It bothers me when I receive a letter such as the one from which I have quoted, and I am sure my experience is repeated throughout the house. I experience a tremendous sense of helplessness in the face of such a letter. It is not a letter from a crank. It is a letter from an intelligent, articulate, reasoning and concerned person who wants to know what can be done. I have received many letters like it in the last two years.
I think there is something that can be done without in any way impinging on the artistic freedom of the producers and artists. If they are truly artistic they will learn to select and they will discipline themselves. They will find that, by selection, the meaning is increased and not decreased. Without impinging unon their artistic prerogatives at all, we can set down guide lines that will express the wishes of the voiceless mass of Canadians who sense something is wrong and who have felt up until now they just could not get at that something which is wrong. We can express concern for the sensitivities of religious groups, of parents and of those who are concerned with the moral development of the young. We can do this as legislators in this parliament.


Mr. Cantelon:: Mr. Chairman, I hesitate to rise at this point since there are only a few minutes left. However, perhaps I can complete what I have to say in those few minutes. There are only two things I want to bring to the attention of the minister. The hon. member for Chapleau has dealt with one as it applied to his area, and the hon. member for Okanagan-Revelstoke has certainly dealt with the other in a very capable manner. However, I would feel remiss in my duty as the member of parliament for Kind-ersley if I did not say a few words about the
December 19, 19S7

T.V. situation in Saskatoon and in northern Saskatchewan in particular.
As has been pointed out on numerous occasions, there is no T.V. station owned by the C.B.C. in that area. The result has been that we find it difficult to receive adequate C.B.C. coverage in many areas of the province. The intention was to put a station in Saskatoon but because of the freeze on certain areas of the dominion, including Saskatoon, nothing was done for about two years. Finally the matter was brought before the Board of Broadcast Governors back in March and approval was given in April for the construction of the station in Saskatoon.
This matter then went to the cabinet. I am astonished that it has taken the cabinet some months to make a final decision upon whether or not they would proceed with the building of this station, since it had been obvious for at least four years a station was needed in that area. Yet in spite of that, nothing was done. Now we are caught in the so-called economy squeeze, and nothing is going to be done in the immediate future. The people in this portion of the west to which I refer might accept this decision more readily if they did not feel there had been a great deal of money wasted by the C.B.C. in launching coloured television. I will not say that money is actually wasted, but when some $30 million odd goes into colour television and we do not have adequate black and white television it can be understood that we in that area are a little bit incensed. Furthermore, when we realize that the C.B.C. spent some millions of dollars giving television coverage to Expo we are somewhat disturbed that our area of the country is being forgotten.
Canadian Policy on Broadcasting


Stanley Howard Knowles: Did they miss the Tory convention out there too?


Reginald (Reg) Cantelon: Yes. Now the station has been deferred once more as an economy measure on the part of the cabinet, and more than ever we feel we are the forgotten area of the country. We have heard this government say it intended to go where the votes are. Apparently the votes in western Canada cannot be of much value to it or it would have concentrated a little more on building this station.	"
We have done everything we could to get proper coverage. In fact we investigated cable television, but the company responsible discovered the distances were so great that it could not get enough stations on its line to make it a profitable venture.
We are further disturbed when we are given to understand that a new French language radio station, which is supposed to be built in the Windsor area, will cost something like half a million dollars. I must say I am not opposed to French language stations; please do not misunderstand me; but if money is to be spent in that way, then we feel money could be spent to put the television facilities into our area that we feel ought to be there.


Maurice Rinfret: Order. I regret to interrupt the hon. member, but it being eleven o'clock shall I rise and report
progress?


Some hon. Members:: Agreed.
Progress reported.
27053-356J

Wednesday, December 20, 1967