1967-12-15

CRIMINAL CODE


Mr. Andrew Brewin (Greenwood) moved: for leave to introduce Bill No. C-189, to amend the Criminal Code (preventive detention of sexual offenders).


Some hon. Members:: Explain.


Francis Andrew Brewin: Mr. Speaker, the purpose of this bill is to deal with a problem which became apparent in the Supreme Court of Canada decision in the case of Klippert v the Queen. The court decided that under the present wording of a section of the Criminal Code a homosexual might be held in preventive detention for life if he were likely to commit the offence again.
The majority of the court said the wording of the section as at present in the code would have that result. A minority of the court, of which Chief Justice Cartwright was one, held that the real intent of parliament was that this should only apply in the case of a dangerous offender. The purpose of this bill is to amend the law to make it comply with the view of the minority of the court.
Motion agreed to and bill read the first time.



PATENT ACT-TRADE MARKS ACT AMENDMENTS RESPECTING IMPORTATION OF PRESCRIPTION DRUGS

Hon. John N. Turner (Registrar General) moved: for leave to introduce Bill No. C-190, to amend the Patent Act and the Trade Marks Act.


Some hon. Members:: Explain.


John Napier Turner: Mr. Speaker, the purpose of this bill is to amend the Patent Act and the Trade Marks Act to allow compulsory licenses to import prescription drugs, having the effect of injecting more competition at the manufacturers' level in the drug industry, and beneficially affecting the prices of drugs.
Motion agreed to and bill read the first time.
[DOT] (11:10 a.m.)



FISH INSPECTION ACT


Hon.   H.-J. Robichaud@Minister of Fisheries: the first reading of Bill No. S-27
(from the Senate), to amend the Fish Inspection Act.
Motion agreed to and bill read the first time.



MANPOWER


[Stage Direction]
On the orders of the day:
Mr.   Roger-E. Regimbal@Argenieuil-Deux-Montagnes: Mr. Speaker, I should like to put a question to the Minister of Manpower and Immigration.
In view of the fact that nearly 100 instructors in the area of Toronto alone have been laid off for lack of trainees under the manpower training program, has the minister planned to remedy this apparent breakdown of the training program?


Hon. Jean Marchand (Minister of Manpower and Immigration):: Yes, Mr. Speaker.


Mr. Regimbal:: A supplementary question, Mr. Speaker.
Could the minister give us some idea, since this matter is urgent and causes serious concern in many areas of the country? At the same time, could he say if this situation prevails elsewhere in Canada and where?


Jean Marchand: Mr. Speaker, on several occasions I have explained in the house why the number of recruits had decreased. I also stated that we were taking measures designed to correct that situation and we have every reason to believe that everything will return to normal as of January.


Hon. Michael Sfarr (Ontario):: I have a further supplementary question, Mr. Speaker.
December 15, 1967

Inquiries of the Ministry In view of the fact that the minister and his department have contracted with the provinces for a great many man days of training, does the minister not think it is imperative that steps be taken immediately to accelerate the program so the taxpayer will get his money's worth out of the training, and so that many more people will be trained?


Jean Marchand: This is exactly what we are doing now.


Michael Starr: Where is the result?


Mr. Roland Godin (Portneuf):: Mr. Speaker,
I wish to direct a question to the hon. Minister of Manpower and Immigration.
In view of the fact that 4,000 out of a total of 5,000 unemployed in a certain area of the country are eligible to maintenance allowances to students, can the minister tell us whether he intends to make an investigation in the Quebec area where only 580 unemployed out of a total of 13,000, have been accepted?


Jean Marchand: Mr. Speaker, I am not aware of the exact figures, but there is no need for a special inquiry. All the necessary information is available as received from our manpower centres.


EXTERNAL AFFAIRS
[Stage Direction]
On the orders of the day:
Mr. T. C. Douglas (Burnaby-Coquillam):: Mr. Speaker, I should like to direct a question to the right hon. Prime Minister regarding Canada's relations with the military regime in Greece. Since the Secretary of State for External Affairs earlier this session said that Canada's relations with that administration were not in question because the chief of state was still there; and in view of the fact that the prime minister of Britain has now said that the United Kingdom's recognition is no longer valid because King Constantine has left the country, may I ask the Prime Minister what are Canada's relations with the military regime in Greece? Will this regime still be recognized, and will diplomatic relations be maintained with that country?


Right Hon. L. B. Pearson (Prime Minister):: In view of the uncertainty of the situation in Greece from the constitutional point of view, and in view of the effect on the constitution of the withdrawal of the king, it is not possible for me to give a definitive answer to that question at this moment. We are studying this matter, and as soon as the situation has cleared up, as I hope it will before many days, I will be in a better position to reply to the question.


Thomas Clement (Tommy) Douglas: May I ask a supplementary question, Mr. Speaker. In view of the fact that many Canadians of Greek origin are concerned about the safety of their relatives in Greece, and in view of the widespread arrests which have been going on and which have been accelerated in recent days, is the Canadian government making any representations to the government of Greece regarding these violations of basic human liberty?


Lester Bowles Pearson: Mr. Speaker, I have no information to the effect that such arrests have been accelerated in recent days. However, we will be receiving a report from our ambassador in Greece with regard to the effect, if any, of recent developments on the matter of arrests. We have already indicated our attitude toward the regime. I would prefer not to say anything further until we have a more accurate picture of what is happening in that country.


Mr. Harold E. Winch (Vancouver East):: have a supplementary question, Mr. Speaker. In view of the statement just made by the Prime Minister, when he makes a report to the house will he also include a statement concerning the attitude of Canada with regard to the position of Greece within the NATO alliance?


Lester Bowles Pearson: Yes, Mr. Speaker. My hon. friend knows, of course, that the NATO council has been meeting and the Greek government has been represented at that conference.


Mr. Gerard Laprise (Chapleau):: Mr. Speaker, I wish to put a question to the Prime Minister. Could he tell us whether he believes that, in view of the situation in Greece, the plans concerning Cyprus may be altered and whether a decision has been taken as to the renewal of the mandate of the peace-keeping force we are maintaining
December 15, 19G7

in Cyprus and which is to terminate on December 26 next?


Lester Bowles Pearson: Our information is that the recent events in Greece have not affected in any way the attitude of the Greek government toward the arrangements which were worked out among Turkey, Greece and Cyprus. The question of the mandate of the United Nations force in Cyprus and its possible extension I believe is coming before the security council on Monday.



UNITED NATIONS


[Stage Direction]
On the orders of the day:
Mr. Howard Johnston (Okanagan-Revel-stoke):: Mr. Speaker, my question is for the Prime Minister. Has he had time to study the resolution to be presented to the United Nations on the increased use of French there, and will Canada be stating its position in respect of that resolution?


Lester Bowles Pearson: Yes, Mr. Speaker, I have had a chance to study it. My hon. friend will be glad to know that Canada is one of the sponsors of this resolution, so naturally we will be supporting it.


Howard Earl Johnston: Have any representations been received from the government of France in regard to Canada's support for this resolution?


Lester Bowles Pearson: I do not think any representations were required, Mr. Speaker, because we joined with other delegations in drawing up the resolution. I think the French delegation was one of them.



NORTHERN AFFAIRS


[Stage Direction]
On the orders of the day:
Mr. Erik Nielsen (Yukon):: Mr. Speaker, I have a question for the Minister of Indian Affairs and Northern Development. The minister has no doubt by now been in touch with the commissioner of the Yukon in respect of legislation passed by the council the day before yesterday. Can he now say he has agreed to the request of the council for the establishment of a committee on constitutional reform, and that the government will cooperate in discussing with the council the question of reforms to the Yukon Act?
Inquiries of the Ministry


Hon. Arthur Laing (Minister of Indian Affairs and Northern Development):: The
answer is no, Mr. Speaker. This seems quite in order, because the council yesterday agreed to withdraw all the conditions it had inserted the day before.


Erik Nielsen: As the minister is aware, the council did so with the request that the minister give a written undertaking to enter into discussions on constitutional reforms. I wonder whether the minister has acceded to this request of the council.


Arthur Laing: I think my information is a little more up to date than that in the possession of the hon. member. The council withdrew entirely its suggestion that it required me to make any statement. I want to say that I cannot agree to the council imposing a condition that instructs me to take a certain action which I had informed the council at least six weeks ago I was going to take.


Erik Nielsen: I wonder whether the minister, in keeping with the reply of the Prime Minister earlier this week, would make a statement on this matter some time early next week, so the position of the government can be established with respect not to the demands but the requests of the Yukon council?


Arthur Laing: Mr. Speaker, we will be making a statement when we call the council together to discuss the white paper we are preparing.



IMMIGRATION


[Stage Direction]
On the orders of the day:
Jean Marchand: Mr. Speaker, yesterday the hon. member for Fraser Valley (Mr. Patterson) asked me if the department intended to deport the two young Americans who took an active part in a demonstration at Toronto University against the representatives of a chemical company who were recruiting on the campus.
Those two American students, Messrs. Carl Gilbert and Paul Hocks, are in Canada after having complied with the regulations. They have been admitted to complete their postgraduate work at Toronto University and have in no way violated the Immigration Act. As long as they respect the provisions of the act, I believe they will be allowed to express themselves freely in Canada.
5470	COMMONS
Inquiries of the Ministry


Michael Starr: Mr. Speaker,
I should like to address a question to the Minister of Manpower and Immigration in relation to his statement yesterday that bars would be put on the windows of the immigration department's building to stop rejected immigrants from committing suicide in this way on the premises. Does the minister not consider it would be simpler and more humane to remove the bars in the Immigration Act and regulations?


Jean Marchand: Mr. Speaker, if the hon. member for Ontario wishes us to remove all restrictions from the Immigration Act, I am ready to discuss the matter in the house.


Hon. E. D. Fulton (Kamloops):: Mr. Speaker, I should like to ask the Minister of Manpower and Immigration a question supplementary to the one asked yesterday and to which he replied a few moments ago, with respect to incidents at the University of Toronto. Is the minister or the government satisfied that no action is called for by the immigration authorities with respect to the conduct of a man who comes here from another country and deliberately advocates that action be taken to bring to a halt the administration of one of our great Canadian universities?


Mr. Speaker:: Order, please. The hon. member is asking a very general question. He is asking for an expression of opinion, the way the question is put.


Mr. Lambert:: The question is very direct; it is not general.


Edmund Davie Fulton: Mr. Speaker, I was asking for a statement of fact as to whether the government is satisfied that no action is called for under these circumstances.


Jean Marchand: Mr. Speaker, I have
received information to the effect that those two young students took part in a quite legitimate demonstration in Canada. All students have this right, and students who come here to receive formal university education have the same rights as others.

DEBATES	December 15. 1967



FINANCE


[Stage Direction]
On the orders of the day:
Marcel Joseph Aimé Lambert: Mr. Speaker, my question is to the Minister of Finance. Does Canada form part of the consortium, and if not has it been consulted by the consortium of central bankers, who have been taking action in the gold market in recent weeks and days in order to protect the dollar? Also, could the minister advise the house how this action may affect Canada and its relationship with the international market?


Hon. Mitchell Sharp (Minister of Finance):: Mr. Speaker, Canada is not a member of the so-called gold pool. However, we have been kept well informed of the operations of that pool. We have not been asked to join it. Of course, as the hon. member and the house know, the outcome of the present transactions in the gold market are of the very greatest importance to Canada.


Marcel Joseph Aimé Lambert: A supplementary question, Mr. Speaker. Does this mean that dealing in futures in the gold market will not apply in Canada as well as in the pool countries?


Mitchell William Sharp: I would like to take notice of that question, Mr. Speaker.



UNITED NATIONS


[Stage Direction]
On the orders of the day:
Mr. Heath Macquarrie (Queens):: Mr. Speaker, I have a question for the right hon. Prime Minister. It concerns the terribly difficult question of Arab refugees now before the special political committee of the United Nations general assembly. Can he advise whether the Canadian delegation is to propose any initiative toward the solution of this long standing problem, on which the Israeli representative made some interesting suggestions yesterday?


Lester Bowles Pearson: Mr. Speaker, we have been continually discussing this matter with other delegations at the United Nations. I will have to look into the question to see whether any representations have been made by us in the last few days.
December 15, 1967

Inquiries of the Ministry PUBLIC SERVICE	In recent months the government has



APPOINTMENT OF ADVISORY COMMITTEE ON EXCLUDED PERSONNEL

[Stage Direction]
On the orders of the day:
Mr, David Lewis (York South):: Mr. Speaker, I have a question for the President of the Treasury Board arising out of the recommendation made by the joint House of Commons-Senate committee on the public service that within six months of the coming into effect of the law an advisory council to deal with compensation and related matters of excluded personnel be set up. I would ask the President of the Treasury Board whether this council has been set up, and whether he can give us the names of the people appointed to it.


Hon. E. J. Benson (Minister of National Revenue and President of the Treasury Board):: As I indicated to the house earlier, Mr. Speaker, the cabinet has agreed to the setting up of such a council. I have been approaching persons to be members of the council. I anticipate that I will be able to announce the names of those appointed by the end of this month.



ADJUSTMENT OF INTEREST PAID ON SUPERANNUATION ACCOUNTS

[Stage Direction]
On the orders of the day:
Mr. G. L. Chatterton (Esquimalt-Saanich):: Mr. Speaker, my question is directed to the Minister of Finance. In view of the concern of ex-government employees over the government's decision not to adjust their pensions, will the government give consideration to increasing to a more realistic rate the interest which is now credited to the balance in the various superannuation accounts?


Edgar John Benson: Mr. Speaker, may I take this question as notice.



SUBMISSION BY PHARMACEUTICAL MANUFACTURERS ASSOCIATION

[Stage Direction]
On the orders of the day:
John Napier Turner: Mr. Speaker, yesterday the hon. member for Hamilton South asked me whether I had received a submission from the pharmaceutical manufacturers association of Canada which had been sent to all members of parliament.	.
received a number of submissions and representations from the pharmaceutical manufacturers association of Canada. The hon. member for Hamilton South by now will have had, or shortly will have, an opportunity of reading the bill amending the patent and trade marks acts, which has just been introduced. I can assure him that all representations which I have received from any quarter regarding this bill have been carefully considered.



FINANCE


[Stage Direction]
On the orders of the day:
Mr. H. W. Herridge (Kootenay West):: Mr. Speaker, I wish to address a question to the Minister of National Revenue. On December 6 last I asked the Minister of Finance whether there was any legislation or any regulation which permits the government to compensate Canadians who are in receipt of old age or disability pensions from the British government. In reply he said he would take my question as notice and discuss it with his colleague. Has the minister any further information to give the house on this question, which does concern a good number of Canadians suffering the effects of the devaluation of the pound?


Edgar John Benson: Mr. Speaker, as a result of the new Canada-U.K. income tax agreement all pensions from Britain, except certain government pensions which were in force prior to January 1, 1965, are exempt from U.K. tax. Even these pre-1965 British pensions may be received free of British tax if the pensioner elects to have them taxed in Canada.
We have these U.K. forms in all the district taxation offices. They will be supplied to people interested along with instructions on how to apply for a refund of the British tax.


Mitchell William Sharp: Mr. Speaker, the hon. member for Kootenay West asked a question today about British disability pensioners, and my colleague the Minister of National Revenue answered that question. The hon. member had also asked a previous question, and I believe I owe him a reply. The question concerned the effect of devaluation upon these pensions. The answer is that British disability pensioners domiciled
5472	COMMONS
Inquiries of the Ministry in Canada who have qualified for the Canadian supplement in the past will not lose because of the devaluation of sterling.


Herbert Wilfred Herridge: I wish to thank both ministers for their complete and comprehensive answers respecting the present situation.



HEALTH AND WELFARE


[Stage Direction]
On the orders of the day:
Mr. Heward Grafftey (Brome-Missisquoi):: Mr. Speaker, I should like to direct my question to the Minister of National Health and Welfare, and ask him whether the officials of his department have now completed their study of the clean air package required by law for all motor vehicles in the United States in 1968.


Hon. Allan J. MacEachen (Minister of National Health and Welfare):: No, Mr. Speaker.


William Heward Grafftey: I have a supplementary question, Mr. Speaker. In view of the fact that air pollution is a serious problem in our country, can the minister give us some idea as to when he expects this study to be completed?


Allan Joseph MacEachen: I will be very happy to consider the matter with my officials and give an answer later.


William Heward Grafftey: I have a further supplementary question which I should like to direct to the Minister of Transport. Can the minister tell us whether, in so far as the matter involves transportation, the officials of his department are looking into this very serious matter of a clean air package for motor vehicles in 1968?


Hon. Paul Hellyer (Minister of Transport):: Yes, Mr. Speaker.



CANADIAN CONSTITUTION


[Stage Direction]
On the orders of the day:
Hon. R. A. Bell (Carleton):: Mr. Speaker, may I ask the Prime Minister whether there has been any correspondence with the provinces regarding the proposed dominion-provincial conference on the bill of rights, additional to that which was laid on the table of the house on November 21 and printed as an

DEBATES	December 15, 1967
appendix to Hansard of that day. If there has been, would the Prime Minister be so good as to seek consent to have it laid on the table of the house before the recess next week and have it similarly printed?
Righl Hon. L. B. Pearson (Prime Minister):
Yes, Mr. Speaker, I will be glad to do that. To the best of my recollection there has been only one suggestion for an additional subject, and that is the B and B report. There may be others, but provincial leaders have indicated they would not like to have the agenda restricted to subjects already on the agenda, and we are very much in favour of that.
In that way the conference can be the beginning of a consideration not only of these specific subjects but of the process of constitutional revision, and with that purpose in mind we are setting up in the federal government a special office of qualified officials and others who would be giving full time consideration to the agenda and to other problems before the conference opens.


Mr. Gilles Gregoire (Lapointe):: Mr. Speaker, I should like to ask a supplementary question.
I should like to ask the hon. Prime Minister whether he expects to receive the other volumes of the report by the Laurendeau-Dunton commission before the federal-provincial conference which is called for February next.


Lester Bowles Pearson: No, Mr. Speaker, I doubt that they will be ready before February 5. However, I have been in touch with the commission to urge them to complete the other volumes as quickly as possible. As the house knows, I have been informed that they might be completed in the new year.


Mr. S. J. Korchinski (Mackenzie):: I should like to address my question to the Prime Minister. In view of the obvious importance of maintaining a proper perspective on all aspects of the B and B commission report, can the Prime Minister give us now or will he undertake to obtain from the commission a rough estimate of when the remaining volumes of the report will be available?


Mr. Speaker:: Order. I have the impression this question was just asked by the hon. member for Lapointe.
December 15, 1967	COMMONS



POST OFFICE DEPARTMENT


[Stage Direction]
On the orders of the day:
Mr. Ed. Schreyer (Springfield):: My question is for the Postmaster General. Last Wednesday, I believe, the hon. member for Selkirk asked the Postmaster General if he would reconsider his decision to transfer the post office at Libau, Manitoba. The question was taken as notice in the absence of the minister. Can he now reply to that question?


Hon. Jean-Pierre Cole (Postmaster General);: Mr. Speaker, the situation in Libau seems to be quite normal at this time.


Mr. S. J. Enns (Portage-Neepawa):: Mr. Speaker, the Postmaster General must surely be aware that a petition is being circulated in Libau asking for his resignation. He could stave off this petition by acting in a manner that will settle the question in Libau once and for all.


Edward Richard Schreyer: If I understood the Postmaster General correctly, Mr. Speaker, I believe he said the situation was normal. I wish to ask him if he would now take the opportunity to correct two matters of fact which he misstated here in replying to my question on Tuesday. This almost amounts to a question of privilege, Mr. Speaker.
The Postmaster General stated that the two facts upon which he relied in making the decision to transfer the post office were, one, that the post office had changed hands three times in the past four years. Upon checking I am informed the post office has changed hands only twice in 30 years.


Mr. Speaker:: Order. The hon. member knows that at this stage of the proceedings he can only ask questions; he cannot make speeches.


Edward Richard Schreyer: This is a question of privilege, Mr. Speaker. I should like to ask the Postmaster General if he will not take the time now to correct his statement.


Mr. Speaker:: Order. This is not a question of privilege. I fail to see how the hon. member's privileges have been affected by the situation of which he complains.


Edward Richard Schreyer: I suggest it is a question of privilege because the Postmaster General
DEBATES	5473
Inquiries of the Ministry misinformed this house in replying to my question.


Edward Richard Schreyer: Mr. Speaker, I should like to ask the Postmaster General whether he would not show a sense of grace and magnanimity in this matter and transfer the post office-


Mr. Cote (Longueuil):: Mr. Speaker, on a question of privilege.
I do not have to accept any lesson from the hon. member as concerns my conduct as Postmaster General. I believe that since I have been here I have done everything I could to satisfy everyone.
As for the post office of Libau, the member charged me a moment ago with misinforming the house because I said that this post office had changed hands at least three times since 1962. I do not have the exact dates on hand because the file has gone back to the department, but I can assure members of the house that the business establishment or the building where the post office used to be has been sold three times. All postmasters who operate a business in the same premises should be told that they cannot sell the post office when they sell their business.
The present postmaster is a resident of Libau. Every time the postmaster changed, in the same business, it was always someone from outside who purchased the business and it is a policy of the department to appoint residents of the community where the post office is located whenever a postmaster has to be appointed.
I would not want this question to become a political issue, Mr. Speaker, because I have discovered that the demonstration which took place had been organized by certain members of a certain party.


Some hon. Members:: Hear, hear.


Edward Richard Schreyer: Mr. Speaker, in order not to make it difficult for Your Honour I shall confine my retort to a very short question. Will the minister refer this matter to an appropriate committee of this house so the circumstances can be properly investigated?


Joseph Julien Jean-Pierre Côté: No, Mr. Speaker, I can take decisions.


Some hon. Members:: Hear, hear.
December 15, 1967

Inquiries of the Ministry


Edward Richard Schreyer: A supplementary question, Mr. Speaker. If the Postmaster General refuses to refer this question to an appropriate committee of this house or to any impartial tribunal, may I ask him whether he will not take the opportunity next week, after reading his reply to my question on Tuesday last, to correct his statement which on at least two matters of fact is completely erroneous.


Mr. Speaker:: Order. We are again obviously getting into a debate on this question. I suggest to hon. members that we might well go on with orders of the day.



COMMONWEALTH RELATIONS


[Stage Direction]
On the orders of the day:
Mr. David Lewis (York South):: 1 should like to direct a question to the Prime Minister in the absence of the Secretary of State for External Affairs. In view of the fact that the Secretary General has tabled a report with the security council on the effects of mandatory sanctions against Rhodesia, can the right hon. gentleman inform the house whether the commonwealth members are having or are planning to have a further meeting on the question of sanctions?


Lester Bowles Pearson: I should like to check, but my recollection is that they had a meeting last week at which they considered this report, among other things. I will try to find out whether they are having another meeting next week.


David Lewis: May I ask a supplementary question. In view of the right hon. gentleman's very great contribution to establishing the sanctions committee and the steps that have followed, can he inform the house whether Canada has formulated any proposals for overcoming the obstacles which the sanctions have encountered?


Lester Bowles Pearson: I think we ought to study the United Nations report first. It was just received a few days ago. After we have studied that with the other members of the commonwealth, then we will be in a better position to report on what should be done with regard to this matter.


Howard Earl Johnston: May I ask a supplementary question about the sanctions report. Can the Prime

Minister tell the house whether we are now purchasing from the Union of Soviet Socialist Republics the chromium we used to buy from Rhodesia?


Lester Bowles Pearson: I do not think so, Mr. Speaker, but I should like to look into that matter.



TRANSPORT


[Stage Direction]
On the orders of the day:
Mr. Melvin McQuaid (Kings):: I should like to direct a question to the Minister of Transport. I should like the minister to assure the house and the people of Prince Edward Island, if he can, that there will not be any curtailment of the present passenger service by rail-I stress those words "by rail"- between Charlottetown and Borden.


Paul Theodore Hellyer: I will have to take the question as notice and refer it to the railway company, because it is a matter within their jurisdiction.



PUBLIC SERVICE


[Stage Direction]
On the orders of the day:
Mr. Stanley Knowles (Winnipeg North Centre):: Mr. Speaker, I should like to direct a question to the Prime Minister. When the Prime Minister is making up the list of things to attend to before he leaves office, will he put on that list a reconsideration of the question of pension increases for retired civil servants, in line with his statement that he hoped this reconsideration would be possible soon?


Lester Bowles Pearson: Mr. Speaker, I think I have stated that we hope the situation will be such that we will be able to reconsider sympathetically this very difficult problem. I hope the situation will so improve during the remainder of my period on this side as Prime Minister that this may be possible. Perhaps it would be also a good thing to reconsider, in these circumstances, the question of members' pensions.
December 15, 1967

Inquiries of the Ministry
HISTORIC SITES AND MONUMENTS	AGRICULTURE



FORT OGILVIE, N.S.-REQUEST THAT DEMOLITION BE CANCELLED

[Stage Direction]
On the orders of the day:
Mr. J. M. Forrestall (Halifax):: I should like to direct my question to the minister for Indian affairs. I should like to ask the minister if it is at all possible for his department to reconsider the recent decision to demolish Fort Ogilvie, near Halifax.


Mr. Speaker:: Order. The hon. member has made his representations to the minister now.



CANADIAN CENTENNIAL


[Stage Direction]
On the orders of the day:
Thomas Clement (Tommy) Douglas: In
the absence of the Secretary of State, Mr. Speaker, may I direct my question to the Prime Minister regarding the staff of the centennial commission. On May 20, 1965 Mr. Lamontagne, who was then secretary of state said, as reported on page 1501 of Hansard:
I want to assure the staff of the commission that everything will be done to ensure that they suffer no hardship or sudden break in employment when their task has been accomplished.
In view of the fact that I understand over 50 of the fairly senior employees of the centennial commission have not been placed in any employment, may I ask if the government is making any endeavour to see that this commitment made by Mr. Lamontagne is carried out?


Lester Bowles Pearson: I understand the Public Service Commission is doing its best in this regard. I will make some inquiries.


Gilles Grégoire: Mr. Speaker, I wish to put a complementary question to the right hon. Prime Minister.
Could he tell us whether the centennial commission is to make a financial report and whether this report will be presented to the house?


Lester Bowles Pearson: I should expect there would be a report.



INQUIRY AS TO ASSISTANCE CHEQUES FOR CROP FAILURE AREAS

[Stage Direction]
On the orders of the day:
Hon. J. J. Greene (Minister of Agriculture):: Mr. Speaker, yesterday the hon. member for Rosetown-Biggar asked me a question about P.F.A.A. payments which I undertook to answer today. I understand payments commenced on December 1, and some half million dollars has been paid. Most of the inspections have been completed and payments will continue. Inspections in the Peace River area will not be completed until late spring. They are the only ones with which we contemplate any delay. Total payments are anticipated to be in the neighbourhood of $12 million, and these payments will be made as far as possible by the end of January.



FISHERIES


[Stage Direction]
On the orders of the day:
Harold Edward Winch: Mr. Speaker, I desired to ask a question of the Minister of Fisheries, but he seems to have disappeared for the moment. Since he was here a couple of moments ago perhaps I can address the question to him and he can take it as immediate notice. I understand the minister is behind the curtain, so if he will come into the house I will ask my question.
In view of so many authoritative complaints about the last seal hunt and matters within the jurisdiction of Canada, may I ask the minister whether new and special provisions will now be issued under the authority of the minister for the next hunt and killing of baby seals.


Hon.   H.-J. Robichaud@Minister of Fisheries: Mr. Speaker, as I have stated many times in this house, proper supervision and control were exercised last year during the seal hunt. If at all possible, still better supervision and control will be exercised during the next season.


Harold Edward Winch: A supplementary question, Mr. Speaker. In view of the fact that the report of the minister to the house has been contradicted by those who attended the hunt in a supervisory capacity, will there be any special provisions and supervision this year?


Mr. Speaker:: Order.

December 15, 1967
Inquiries of the Ministry


Mr, Robichaud:: Mr. Speaker, may I be allowed to answer this question. Those who were sent to the hunt by the S.P.C.A. reported exactly as I stated in the house. Responsible observers reported that control was adequate, and that there has been much improvement in the last two or three years.


Mr. Lloyd R. Crouse (Queens-Lunenburg):: A supplementary question to the Minister of Fisheries. In view of the importance of the sealing industry to the economy of the Atlantic provinces, could the minister state whether the price of seal skins has improved so it will be economically possible for those engaged in this industry to carry on this year?


Mr. Robichaud:: I am sure the hon. member is aware that in view of the most unfortunate propaganda about this operation on the part of irresponsible observers the price of seal skins has been depressed so much that the livelihood of those who depend on this operation for a living has been affected. However, Mr. Speaker, I hope that the new regulations which will be introduced next year whereby the season will be reduced by delaying the opening date, both in the gulf and on the front, will have a beneficial effect on the market.


Mr. Robert Muir (Cape Breton North and Victoria):: A supplementary question, Mr. Speaker. I wonder whether the Minister of Fisheries could advise the house as to how many years these so-called experts in sealing have been in the business, to give the minister advice.


Hédard-J. Robichaud: Mr. Speaker, the advice which the department is acting upon is given by experts who have engaged in this particular aspect of research for the last 25 years. I feel they are much more responsible than the reports I have been given by those people referred to by the hon. member and who have no interest whatsoever in this operation.


Robert Muir: Mr. Speaker, on a question of
privilege-


Mr. Speaker:: Order. I wonder whether hon. members do not feel that we are now into a debate.


Robert Muir: On a question of privilege, sir.


Mr. Speaker:: Order, please. The hon. member for Trinity-Conception.


Mr. J. R. Tucker (Trinity-Conception):: Mr. Speaker, I should like to know from the minister whether his department has considered prohibiting the taking of seals by aircraft.


Hédard-J. Robichaud: Mr. Speaker, I would not say we have considered abolishing completely the operation of aircraft in this hunt, but we have been in communication with the Department of Transport in order to better control and limit the use of such aircraft.


Robert Muir: Mr. Speaker, I have a further supplementary question. The minister completely misunderstood my question. I was not referring to the experts within his department; I was asking about these so-called experts who are trying to advise the Minister of Fisheries and his department, and who are outside the department.


Mr. Speaker:: Order, please. There seems to be agreement now between the minister and the hon. member.


Hédard-J. Robichaud: Mr. Speaker, I understood perfectly the question put by the hon. member.


Harold Edward Winch: A further supplementary question, Mr. Speaker. In view of the statement by the minister may I ask him whether he would be prepared to go before the agriculture committee on this matter and have evidence presented on every side of the question.


Hédard-J. Robichaud: Mr. Speaker, this is a matter that concerns the Department of Fisheries, not the Department of Agriculture.


Mr. Marcel Prud'homme (Saint-Denis):: Mr. Speaker, could the hon. Minister of Fisheries inform the house whether he has considered adding an observer from the Progressive Conservative party and from the New Democratic party to the list of government observers?


An hon. Member:: What about the trained seals over there?


Some hon. Members:: Oh, oh.


Mr. Speaker:: Order. We are now passing on to a new subject.
December IS, 1967

[DOT] (11:50 a.m.)



DIVORCE


[Stage Direction]
The house resumed, from Thursday, December 14, consideration of the motion of Mr. Trudeau for the second reading of Bill No. C-187, respecting divorce.
Francis Andrew Brewin: Mr. Speaker, I am not sure whether you can hear my voice but I will do my best. Last night when I was speaking in this debate I sought to outline in general terms the main objection which I and some others have to the bill we are discussing. This objection is that it fails to accept a new approach to the question of determining the proper basis for divorce, that new approach being by way of marriage breakdown.
May I turn now to discuss the present bill in the light of the general observations I have made. The main provisions of the legislation are contained in clauses 3 and 4. Clause 3 provides that adultery, cruelty and certain other matters shall be grounds for divorce. Cruelty includes both mental and physical cruelty so as to "render intolerable the continued cohabitation of the spouses." It is fairly obvious that if the breakdown principle were adopted such a situation would be clear evidence of marriage breakdown and the petitioner would be able to obtain a divorce on that ground without specially naming cruelty. Clause 3 retains as a ground for divorce the commission of the act of adultery. Under the breakdown theory, if it were adopted, it might well be that an act of adultery or continued acts of adultery would form the basis of a breakdown of a marriage. However, there might well be circumstances in which the commission of an act of adultery would not be sufficient ground for saying a marriage had broken down. There seems little reason why the law should concentrate on such a superficiality, if I may use such language about conduct which is clearly wrong and which may, indeed, wreck a marriage. But, after all, it is a wrong which is nearly always a symptom rather than the cause of the failure of a marriage.
If the law is amended as proposed by the minister we shall continue under the new law to hold trials based upon contrived hotel and motel assignations. This will continue to be the easiest way to secure a divorce. Its
Divorce Law Reform
popularity, in the sense of its frequent adoption, will continue, and I suggest the abuses attached to it will remain.
Clause 4 pays lip service to the idea of the breakdown of a marriage as a ground for divorce. It lists a number of situations which are said to constitute a permanent breakdown. However, it will be noted that subclause 2 provides that a permanent breakdown of a marriage is deemed to have been established when any of the circumstances named in subclause 1 are shown to exist.
Perhaps the minister will tell us later whether this is intended to be what lawyers call an irrebuttable presumption. I assume it is. In other words, once any of these circumstances has occurred it is presumed that the marriage has broken down. If this is the proper interpretation, and I believe it is, what is the purpose of referring to permanent breakdown at all? The individual paragraphs themselves spell out the circumstances which are the basis for divorce. May I point out that these specific headings make no provision for other circumstances not listed which may cause the breakdown of a marriage. They therefore restrict the courts on occasions when the courts should, I suggest, grant a divorce-cases in which the marriage is clearly dead but the circumstances do not fit into the pigeonholes of the bill.
On the other hand, the clause presumes the irreparable breakdown of a marriage whenever any of a list of circumstances exist. This is quite apart from any marriage breakdown. Imprisonment for a long period may well lead to a marriage breakdown, it is true, but I cannot understand why imprisonment alone, unaccompanied by evidence of marriage breakdown, should be a proper ground for divorce.
One of the unfortunate features of the bill before us is that it continues all of the present rigmarole which lawyers know as the three C's-collusion, connivance and condonation. These are the formulas whereby the dissolution of a marriage can be refused on the ground that the parties have agreed to it, have forgiven an act of misconduct complained of or have encouraged its commission. I believe all lawyers familiar with divorce cases are well aware of the farce which is carried on in the courts whereby a petitioner for divorce is drilled to repeat a firm denial that he has offended against this formidable though somewhat unintelligible legal proposition.

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The bill goes even farther. I do not know whether it intends to do so, but I invite the attention of the minister and the house to clause 9 which provides that it shall be the duty of the court to refuse a decree based upon the consent of the parties. In the context it may have been intended that this should refer to formal, written consent. But it might well be interpreted by the courts to mean that where the parties have consented to a divorce or to the circumstances upon which the divorce is based, a decree must be refused.
Take the question of separation. Suppose the parties have been separated for not less than three years, as mentioned in the bill. Such a separation might obviously be the subject of consent. Indeed, it could be the subject of legal agreement, and the parties might well have contemplated that at the end of the period of separation one or other would seek a divorce. Under the wording of this bill would it not then be the duty of the court to refuse to grant divorce on the ground that the petition was based on the consent of the parties?


Mr. Trudeau:: Would the hon. member permit a question? Taking the example he has given, would not the consent be consent to the separation, not consent to the divorce? In other words, the court would be passing judgment not on the consent to separate but on the issue of divorce.


Francis Andrew Brewin: I confess the wording is ambiguous. It says the court should refuse a divorce based on consent. If the court found that the consent of the parties was the basis of the divorce proceedings it might well interpret the bill as saying that divorce should be refused, and this would negative the provision for divorce based on separation. I suggest to the minister that before we get to committee this point be looked at again in order that the sense of it may be clarified, because the reality of the matter is that many divorces are and always will be based upon consent, whatever subterfuges may be forced on the parties to conceal the element of consent.
[DOT] (12 noon)
I agree with many hon. members who have the view that divorce should not be based solely on consent. The marriage contract is not a mere private contract of partnership that can be terminated at the will of the parties. Marriage creates obligations with which the state is concerned. It is important

that there be independent tribunals so that people cannot unilaterally, or even by agreement, get out of the obligations created by marriage. I am not suggesting that agreement by itself should be sufficient to bring about a divorce, but it is quite unrealistic to say that because the parties happen to agree they should not have a divorce. Under existing law, as a lot of people know, many divorces are arranged, but it is nevertheless necessary for the parties to go through a parade of empty words before the courts. They are obliged to swear on oath that in fact there is no element of agreement or consent although this is often not true.
It is in this context that I want to deal with the provisions of the bill with respect to reconciliation. I suggest they will be virtually useless. Clause 7 provides that the legal adviser should draw attention to the provisions of the legislation with regard to reconciliation. Clause 8 provides that the court may adjourn a hearing for divorce in order to afford an opportunity for marriage reconciliation or marriage counselling. Judging by the experience in divorce courts today, the total effect of this is likely to be the addition of some extra words to the formal pleadings, plus the addition of a few extra sentences at the trial. Counsel or the judge will ask a few perfunctory questions about attempts at reconciliation. This is particularly true where the divorce is based upon the old grounds of adultery and matrimonial misconduct. Now lawyers will have to add another formula to the three c's they have been asking about in the past.
However, I point out that if the breakdown principle were adopted it would alter the existing situation. In that case it would give substance to the question of reconciliation. A judge would not make, except in the case of a long separation, a finding of complete breakdown of the marriage until satisfied that a reasonable attempt at reconciliation had been made. This would make it a matter of substance rather than a mere matter of formality.
If I may sum up on this aspect of the bill before us, Mr. Speaker, I wish to say that it is really a continuation, with changes, of the old system. It rejects a new approach. It seems to me to be quite ridiculous for the government to say, as many members supporting it have said, that public opinion is not ready to accept such a sweeping change in the law and that we must maintain the old, familiar concepts. The fact of the matter is that the churches, usually noted for a
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conservative approach to questions of marriage, have opted for the new approach and have urged it upon the government.
The churches are naturally conservative in matters of this sort. Although they have disclaimed any intention of forcing their opinions upon others who do not share their faith, they are particularly concerned about the stability of the family and marriage as a permanent institution. But the churches have been able to say, and nearly all of them have said, that when a marriage has broken down and there is no hope of reconciliation the institution of marriage is more honoured by declaring that it is at an end than it is in trying to maintain empty legal ties. In these circumstances I find it strange to hear a Liberal government, and a Liberal party that prides itself on being a party of reform, maintain that the churches have gone too far and are too radical and that public opinion will not accept such a change. It is not just the churches which have urged the new approach. Social workers, experts in mental health, councils of women and some of the most experienced lawyers have also given their support to the new approach.
Now that the government has accepted the other, more old-fashioned approach, the approach adopted in Britain more than 30 years ago, and has declared this bill to be a government measure, I suppose there is little likelihood of a quick change of mind and we shall once again have to accept the second best. However, I hope that this discussion and the issues involved will be the subject of widespread examination by the Canadian people, and that it will not be too long before the legislators as well as the people are ready for a totally new approach to the question.
There is one other general matter, although it is partly a matter of detail, of great importance in regard to the bill that I wish to raise. I refer to the decision of the minister and the government to turn down the unanimous recommendation of the joint committee of the Senate and House of Commons that jurisdiction in respect of divorce in provinces other than Quebec and Newfoundland should be conferred upon county and district courts and not confined to supreme courts.
The committee heard a strong plea in this regard from former Chief Justice McRuer of the Supreme Court of Ontario. He pointed out that judges of the Supreme Court of Ontario-and I think the same is true in other provinces-go on circuit throughout the
Divorce Law Reform
province. They may visit a particular county town once in five years or ten years or only once. Therefore the judges of the Supreme Court are not accessible in large parts of the country. Yet this bill gives jurisdiction to that court with regard to all sorts of ancillary and corollary provisions dealing with maintenance and custody, provisions that have been varied from time to time and which require constant supervision. The minister has said that the matters involved in divorce are at least of equal importance to property matters dealt with by the highest courts. Of course they are as important, perhaps more important, but intimate family affairs are better dealt with by a court closer to the people and more accessible to the people.
Another advantage of transferring jurisdiction to the county courts or district courts would be that it would substantially cut down the cost of divorces. This is surely an extremely important matter. I wonder why the decision of the committee, which was composed of many lawyers from all parts of Canada serving both in the Senate and the House of Commons, was turned down. I can only suspect that someone with a more academic acquaintance with the subject decided that the matter should be confined to the supreme courts alone. I urge the minister to reconsider this point.


Pierre Elliott Trudeau: If the hon. member will accept a question, does he know that all provinces can, and some provinces do, provide that county court judges be also named to the position of local judges of the supreme or high court?


Francis Andrew Brewin: This is an elaborate procedure. It would not cut down the cost. You would have to go to the supreme court to have the matter referred and, when referred, it would be subject to review by the supreme court.


Pierre Elliott Trudeau: I am afraid the hon. member's academic knowledge is not good enough.


Francis Andrew Brewin: It may not be, but I have a great deal more practical experience in this field, a great deal more experience than the minister has ever had or is ever likely to have.


Mr. Deputy Speaker:: Order. I must advise the hon. member for Greenwood that the time allotted to him has expired.

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Divorce Law Reform


Mr. H. E. Stafford (Elgin):: Mr. Speaker, today, in 1967, we are discussing the proposed reform of a law we inherited in 1867 that was based on the English law of 1867, which law was completely altered in 1937, and is more antiquated than the law of Rome in 37 B.C. The world of our great-great-grandfathers was a completely different world from our world in this centennial year. Yet most of our social laws have hardly changed. No laws in Canada are crying out more for reform than our divorce laws. They cause more suffering than did the rack in the middle ages.
[DOT] (12:10 p.m.)
It would be an ideal world if every married couple lived happily ever after. For various reasons marriages go on the rocks, families break up. The reasons are legion. It may simply be because the wrong people went to the altar. It may be because of the immaturity of the partners, a failure to adjust, lack of understanding of the responsibilities of marriage, or even simple selfishness on the part of one partner or both. I have personally seen dozens of situations where because of one mistake people have been condemned to unhappiness and frustrating loneliness owing to our antiquated and uncivilized divorce laws.
For example, I recall the case of a girl who married at the age of 18. Three months later her husband deserted her. A child was born seven months after the desertion. Since that time the husband has travelled all over North America. She has attempted almost frantically to obtain evidence of adultery on his part. She has been unable to afford the tremendous detective fees and 15 years later is still trying to find evidence of adultery. During this period of 15 years she has supported herself and her daughter. The daughter is now a lovely teenager going to high school. For the past ten years this woman has wished to remarry. She refuses to live with the man with whom she is in love because of her child and her own religious views. Here is a girl who has excellent marital prospects but because of a youthful mistake is confined to a form of imprisonment from which there is at present no escape.
Many people, of course, do not have the self-discipline and views of the lady I just mentioned. Personally I know of hundreds of so-called common law relationships. In most cases illegitimate children are born and in many cases the couple live together as happily as possible. However, they live together

under tension created by the fear that their neighbours, friends and fellow workers may find out. When the children start to school the names on the birth certificates create crises. The sense of guilt, the recurrent feelings of insecurity, are always just below the surface. Unhappiness is not only promoted; immorality and illegitimacy are invited.
One of the strongest indictments against our present divorce law is the fact that disrespect for the law is the natural result. This disrespect amplifies into a disrespect for all laws. Seldom is adultery the real cause of a marriage breakup. In order to obtain a divorce adultery must be found or created. My experience in hundreds of these cases has convinced me that in only a very small percentage is there not perjury or collusion. I have observed almost a contempt for the law in the minds of the people involved. This is a most natural human reaction, because how can a law be respected when a single act of adultery is considered far worse than 20 years of beatings or far worse than a man deserting his family or going to jail for 20 years? On no rational or religious grounds can such laws be defended.
May I say a few words about the marriage breakdown concept. There is no doubt whatsoever in my mind that when a marriage has irretrievably broken down it should be dissolved if one of the parties desires dissolution. This would not be a case of breaking up a marriage; it would simply be a case of making legal what has in fact already happened. To confine ourselves to the principle of matrimonial offence is to give no relief to either party when a man and wife without misconduct or matrimonial offence, have become so estranged as to be beyond the possibility of reconciliation. It would give no relief either when the so-called innocent party refuses to take the initiative and seek a dissolution, preferring to imprison the other party within bonds which become meaningless.
The elimination of the marriage offence provision and substitution of the breakdown theory would result in something which would be difficult to carry out in practice. The law must have definite rules; otherwise the people affected will not know where they stand and the lawyers who advise them will not be in a position to give definite advice.
In the past few months I have attempted to give the problem very serious thought in the light of my own practical experience and particularly in the light of the experience of
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others who have been closely connected with the practical problems. I have concluded that the proposed bill is excellent and that the retention of the matrimonial offence theory, plus the introduction of the marriage breakdown theory, is by far the most realistic and practical approach.
If divorce were to be granted solely as a result of the breakdown of the marriage, the result could well be long delay in determining whether the marriage actually had broken down even though the situation was crying out for a remedy. The fact is that the vast majority of problems will be solved under the matrimonial offences provision. Those that will not be solved under this provision will be solved under the recognition of marriage breakdown, proven by three years of separation and subject to the discretion of the court. I have observed over the years that once a couple has actually separated for a considerable period of time the chances of reconciliation are very slight. When one party has indicated a desire for divorce and has commenced proceedings the chances of reconciliation have been reduced to almost nil.
I am pleased to note the presence of clauses 7 and 8 which relate to marriage counselling and reconciliation. In considering the whole question of marriage and divorce our prime objective to promote marriage and to protect the family must be maintained. When a marriage has deteriorated to the point where one of the parties is actively considering the dissolution of the marriage bond, the likelihood is that the marriage has deteriorated beyond repair. The marriage then has gone beyond the point of no return.
We agree that the time for counselling and the educational process is before the first cracks in the marriage begin to occur. This period is both before marriage and early in marriage. Sometimes we do not appreciate the adjustment required by marriage. Two persons who had no need whatsoever to consider the interest of anyone but themselves suddenly must adjust and accommodate each other. This adjustment carries on throughout life and marriage as people change.
As soon as possible we should make provision for counselling. This should be patterned on the provision introduced in Australia in 1961. Australia's matrimonial causes act provides for support to marriage guidance organizations. As I understand the act, provision is made for both voluntary and full time counselling services for both premarital education and marital counselling. A complete
Divorce Law Reform
program and network must be set up. The availability of this program must be known generally. The reluctance to seek help must be overcome. There must be no shame or stigma attached when both parties actively and sincerely seek assistance. Many marriages which would otherwise be broken can be made viable and happy if help is given early enough.
The bill, unfortunately, does not follow the recommendation of the committee with respect to giving jurisdiction to the county courts. Like the hon. member for Greenwood (Mr. Brewin) I am in favour of giving the county courts concurrent jurisdiction with the supreme courts in the matter of divorce. In Ontario actions for divorce have taken their place in a long list of cases to be tried as rapidly as possible in a short time. If there are recurrent problems it is impossible in most cases to arrange to have the matters brought before the same judge who heard the case in the first instance. In the county courts, on the other hand, the judges are local. Appointments can readily be made and orders with respect to children and maintenance can be explained or reconsidered with the minimum of procedure. By this means costs could be greatly reduced. Of course, when we reform our divorce laws the divorce rate will increase. For a time, of course, the number of cases will increase greatly because of the great backlog of broken marriages in respect of which relief has been denied. After this accumulation has been taken care of the rate will still be higher than previously. This need not alarm us, however. The increase will simply reflect the reduction in common law marriages.
[DOT] (12:20 p.m.)
I disagree with the view that an increase in the divorce rate indicates a weakening of the institution of marriage. On the contrary, the fact that a person seeks a divorce to bring to an end a shell of a marriage is an indication of greater respect for the institution of marriage. It is the widespread common law marriages with their illegitimate children that seriously threaten the institution of marriage. The great reduction in the indicence of these relationships that will follow the enactment of this bill will strengthen and foster both marriage and the family.
We in Canada had a great ability to retain our Victorianism in the twentieth century. While England, Australia, New Zealand, Scotland and other commonwealth and European countries have reformed their divorce

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Divorce Law Reform
laws to reflect modern conditions and views, we have lagged behind. We have not only lacked the courage to innovate, we have lacked the courage to follow. We have condemned tens of thousands of our people to unhappiness and immorality. While thinking we are perserving the family we are in actual fact undermining the family. Let us make this a real centennial year for all those we have imprisoned through our archaic laws by passing this bill.


Mr. G. W. Baldwin (Peace River):: Mr. Speaker, I should like to congratulate the hon. member for Elgin (Mr. Stafford) in spite of the fact that he and I part company on one aspect of the problem which faces us. I suggest to him that if he will read his speech in Hansard tomorrow he will see that the arguments he has made in fact buttress, support and lend foundation to the belief which I hold and which has been expressed by the hon. member for Greenwood (Mr. Brewin) and other members on this side, that irretrievable marriage breakdown with certain safeguards can be the only ground upon which a marriage can be dissolved. It is my belief after listening to the hon. member that his arguments point in that one direction.
In any event, legislation of this kind touches closely and deeply the social conscience of all of us, as it must. I think that when we come to methods we must weigh any legislation on the scales of balance of the good of society. We must decide what are the good points and what are the bad. We must place on the scales the different views we hold and the different points we advance to find out whether on balance the good features of this legislation outweigh the bad. With great reluctance I must say I will vote for this bill on second reading because there is certain specific good it will do, but I must also say that there are many aspects which I think it is a great pity the government has seen fit to introduce in the legislation in the face of what I believe is an irresistible movement toward accepting the marriage breakdown philosophy as being the sole ground for dissolution. In my judgment, and I venture to make a prediction, within ten years most of the countries which have now dealt with the problem of divorce will have embraced the philosophy of marriage breakdown as the sole ground for divorce.
What are the good points? The very fact that there is a change and that this legislation breaks loose the solid grip in which this country has been held for so many years in

regard to the very serious and difficult social problem of divorce is good. The minister, the hon. member for Elgin (Mr. Stafford), and others have said that the subject of divorce takes us back to the first divorce bill in the United Kingdom around 1857 which, as a matter of fact, was simply a restating of old ecclesiastical law developed over many centuries. It provided that adultery would be the ground, not for the dissolution of marriage, and I hasten to point that out, but for divorce from bed and board. The only exception to that was, I think, shortly after the accession of King Henry VIII to the throne and his becoming head of the church. He, being somewhat of a marrying man, came to the conclusion that he either had to cut off his respective wives' heads or divorce them. He decided that it was probably less expensive to cut off their heads than to go through the process of divorce.


Stanley Howard Knowles: We have made some progress.


Gerald William Baldwin: Outside of that exception in Great Britain, in ecclesiastical law adultery was the ground not for dissolution of marriage but for separation from bed and board. Late in 1857 this was brought up to date and allowed for the dissolution of the mariage in the United Kingdom and so became the law in Canada. It has subsisted here for some 100 years. Now we are at least making a change. We are breaking out of the grip in which these ancient laws have held us.
Another provision has been introduced in the bill which I have no hesitation in saying is an improvement, and I refer to the provisions in respect of domicile. Many members of the bar who have struggled with the very difficult problem of domicile in the ten provinces are very glad, I am sure, to see that the recommendation of the joint committee has been virtually adopted so that there may be Canadian domicile. This will do away with the double standard and put married women, to all intents and purposes, in the same position as their husbands. I congratulate the minister and the government on this very excellent change which is so very desirable.
With regard to the introduction for the first time into the courts dealing with matrimonial issues of these provisions for certain conciliation procedures, I think they are fumbling and weak and that a great deal of difficulty will be experienced in trying to apply them. But at least this is a beginning. This is not an easy problem because of the
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lack ol precedents. It is only recently that in Australia and New Zealand, and I believe in the United Kingdom, a somewhat similar proposal has been the subject of serious consideration. Society must regard the institution of marriage as its most important unit. Society must be concerned, as well as the individuals who are involved, with making every effort to preserve marriage and to preserve couples in the bonds of matrimony for the sake of society, for the sake of the children and for the sake of everything else that is involved.
The other day I spoke on this subject to a club in Calgary. A meeting had been held, sponsored by the university there, at which some professor had made a speech. The next day in the newspaper headlines appeared to the effect that this professor had suggested that the cure for divorce is trial marriage. This is a very interesting suggestion but it seems to me it involves one of the difficulties we face today. Many television programs and books relating to the disintegration of the bonds of family units make the suggestion that there can be a complete abandonment of those things that have been held sacred and upon which western civilization as we know it has been fashioned and improved. This is a very dangerous suggestion and I welcome any attempt, no matter what its faults may be and no matter what defects we may see in it, on the part of the government to recognize the role of the courts and government services to try to preserve marriage and to link this attempt with the new divorce procedure. I think any such recognition is excellent and represents a step forward. My guess is that within five or ten years so many changes will be made in these procedures that the minister will not recognize them.
[DOT] (12:30 p.m.)
I should now like to state very briefly my criticism of this aspect. I think there will be a tendency for an automatic approach to the procedure in regard to conciliation. Lawyers consulted by a litigant seeking a divorce will now be compelled to give certain advice to their clients and they must endorse this fact upon the pleadings. The court is directed to give the respondent, if he or she is available, as well as the petitioner notice that these conciliation procedures are available. I think it will become automatic in the same sense as today there are automatic questions and answers with regard to condonation and collusion. However, this provision is a start and
Divorce Law Reform
to that extent I am very happy to see it in the bill.
I am also pleased to see that at long last we have done away with that travesty of the legislative process by which parliament was required to sit as a judge and deal with private bills for the relief of people seeking divorce. For too long this has been a black mark on the record of parliament. I am very happy to note that the procedures contained in the bill will provide, first, for a divorce division of the exchequer court and ultimately, I hope, the provinces of Quebec and Newfoundland will see fit to clothe their courts with jurisdiction to dissolve marriages by the method provided in the bill.
I am also very very glad to see that the opinion given by Mr. Driedger, then deputy minister of justice, to the committee to the effect that in his opinion-I should say that he hedged it with the statement that he was giving it not necessarily as deputy minister but as his personal legal opinion-the parliament of Canada has jurisdiction to deal with ancillary and related matters of custody of children, maintenance and alimony. In fact, I think Mr. Driedger went as far as to suggest that this jurisdiction would include dealing with judicial separation.
This is something to which we may have to come in due course. I recognize that various provincial legislatures have dealt with this question. It is a subject that has not been dealt with by a federal government. I doubt that a case dealing implicitly with this question and which has established a binding precedent has been dealt with by the supreme court. I am glad to see that parliament will now recognize this question so that we will ultimately have a situation where one court alone can deal with all the issues which are so closely and intimately related to marriage and its dissolution.
Finally, Mr. Speaker, another good feature of this measure is that at long last there will be an opportunity for the thousands of people all over this country, who have for so many years been handicapped because of the grim rigidity of our divorce law, to legitimize the unions which so many of them have in good faith and with the best intentions in the world entered into. I think all of us know people who because of the reluctance of the other party, religious scruples or various other reasons have not had a legal dissolution of their marriages, and one party has then entered into an illegal liaison with somebody else and children have been born of that

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union. In some cases these unions have subsisted since the first world war. I believe that this bill, through its provision dealing with marriage breakdown will bring relief, help and assistance to the thousands of people who have waited so long for such a measure to be introduced.
Having said that, Mr. Speaker, I have exhausted all the good things I can say about the bill. I must say that I thoroughly agree with the hon. member for Greenwood (Mr. Brewin) who said it was unfortunate that the government and the minister had not seen fit to adopt the principle of marriage breakdown. In respect of that aspect of the bill which attempts to bring together these obviously opposing views, I can only say that in my opinion it is a ramshackle, motley conglomeration of inconsistent and irreconcilable proposals which will never work. It is my belief that within a few years whatever government is in power will be asking parliament to enact necessary and essential modifications to the law in this respect.
This bill continues the principle of matrimonial offence whereby one person must be the offender and the other must be innocent. One is black, one is white; one is guilty of a matrimonial offence, the other is innocent. This raises the whole question of the consideration of matrimonial offences and the dissolution of marriage. In my view this position is not sound and does not correspond to facts.
I recall sitting in a court waiting for a case in which I was concerned to be tried. I listened to a supreme court judge complete the hearing of ten cases and grant decree nisis in one hour. That is six minutes a case. How is it possible for a judge in five or six minutes to go through the formal proof of the marriage, the formal proof of domicile, the formal proof that there was no condonation and no collusion? How is it possible for a judge, devoting approximately two minutes to each of these points, to say that because of an allegation of adultery which has been proved by evidence of a certain type a dissolution of marriage shall be granted? How can he in six minutes undo 20 years of marriage and conjugal life? I think those of us who have been concerned professionally in the practice of law will agree that the practice to which I have just referred is not sound. I believe this fact is being increasingly recognized in many countries throughout the world.
I have here the Montreal Star of Friday, November 24 which contains an article on

the proposed new divorce law in the United Kingdom. I notice that the measure has not been introduced by the government, although the government has indicated that it will give tacit approval to the bill which will be introduced by a private member. I shall deal with this matter later. I do not know whether the minister has been able to secure a copy of the bill which has been introduced in that country. All I have in the newspaper article is a condensed report of the major provisions of the bill. England has experimented with its divorce law, as I believe the hon. member for Elgin and the hon. member for Greenwood said, since 1937 as a result of the book "Holy Deadlock", written by Sir Alan Herbert. The government widened the grounds for divorce and has now had 30 years of experience with those wider grounds based upon matrimonial offences. All those who are concerned with this question, sociologists, judges, people in public life, the clergy, all those who direct their attention to this problem, are satisfied beyond any reasonable doubt that the principle of the matrimonial offence must be eliminated. The following is proposed in the new bill introduced in the United Kingdom:
[DOT] (12:40 p.m.)
There will henceforth be only one ground for divorce in Britain-proof that "the marriage has irretrievably broken down". This will be deemed to have happened:
(a)	If the parties have ceased to cohabit for two years...
(b)	If the couple have ceased to cohabit for five years, even though one does not want divorce ...
(c)	If there is conduct which a husband or wife cannot be reasonably expected to endure, or adultery which either cannot after reflection forgive.
However, even these provisions do not go as far as I would like them to go. I should like to see the addition of a provision stating "and for such other reasons as may seem adequate to the court". In other words, a catch-all phrase would be inserted which would entitle a court to say that the marriage has irretrievably broken down for other reasons related to but not necessarily the same as those which have already been set down.
I agree with the hon. member for Greenwood that in fact the government is only paying lip service to the marriage breakdown philosophy. I think it is merely attempting to appease a very substantial body of public opinion represented by various church groups and womens organizations as well as other people who have felt that the marriage breakdown philosophy should be adopted in
December 15, 1967

the new legislation, and that in using the words "marriage breakdown" there may be a hope on the part of the government, if not on the part of the minister, that this will appease and satisfy them. We are still harking back to the virtually mediaeval conditions under which there was trial by ordeal and under which if a man had been injured or killed through accident by an inanimate object the court would try that inanimate object and find it guilty. Sometimes a man accused of a criminal offence would have his arms and legs tied and would be thrown into a pool of water. If he rose to the top he was deemed to be guilty and was immediately taken out and executed, but if he did not rise he was deemed innocent. However, all too often, even when the accused was finally brought up from the bottom he was drowned in any event and it did not matter.
I do not know how carefully the matter of divorce was studied and I do not know to what extent the government seriously considered adopting the marriage breakdown philosophy, but I must say I am bitterly disappointed with what they have done. Let us take a look at the bill and see to what extent it substantiates my view. A draft bill was attached to the report of the joint committee. It provided for certain matrimonial offences and in subsequent sections it went on to provide that certain acts should also be considered as constructively establishing marriage breakdown.
Under the bill before us anyone seeking a divorce will first direct his or her attention to clause 3 which provides four grounds as the basis for dissolution of marriage, namely, adultery, acts of sodomy, bestiality, rape or homosexuality, most of which have already been considered and accepted by the courts as being a basis for the dissolution of marriage. Another ground for divorce is when a person has gone through a form of marriage with another person. This is in fact adultery because anyone going through a form of marriage with a person other than his or her spouse must have the intention of going to bed with that person shortly after the marriage, which is in effect constructive adultery. The final ground for divorce is when a person has treated the petitioner with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
What will happen is that people seeking a divorce will first turn their attention to the provisions of clause 3 in looking for a quick divorce or a "quickie", as it has been called
Divorce Law Reform
in some speeches. Under clause 3 there will be an opportunity for an immediate petition to be issued claiming the dissolution of marriage on the ground of either adultery or cruelty. For those who are adverse to committing adultery for the purpose of securing a quick divorce or in cases where cruelty cannot be established, clause 4 will provide an answer. It contains all that can be considered in this bill as coming within the four corners of the marriage breakdown philosophy. It provides an alternative means of securing a divorce when it cannot be secured on the ground of adultery or cruelty, namely, minor or inferior matrimonial offences or constructive marriage breakdown established by certain specific acts.
All the witnesses and organizations which appeared before the joint committee and proposed the adoption of the marriage breakdown philosophy stated quite clearly that in their opinion these two differing philosophies cannot be included together. Let me refer to the evidence of Reverend Hosking, a very distinguished member of the clergy who has also had experience in the family courts. He was a very impressive witness. When asked whether it is possible to have these two opposing principles in one bill he said:
I am sitting here as a witness, but I would hope to high heaven you would not do that, for this reason. This is something fundamental: You are lifting the struggle from the shoulders of husband and wife and looking at the institution known as marriage in a way that removes from it much of the bitterness and sense of failure and hopeless frustration. For heaven's sake, let us take our courage in our two fists and make this step. For I think it is profoundly sound; and, speaking as a religious person, I believe it is the will of God. I honestly do.
This is the view taken by all those who have considered this new approach. All of them have come to the firm decision that it is not possible to link these two principles or these two means of securing a dissolution of marriage. This is amply established by the fact that in England they have come to the same conclusion, having pioneered much of the new forward looking legislation dealing with the problem of divorce. In their view marriage breakdown is the only basis for a divorce. I should like to refer to the article from which I quoted previously in which Mr. Abse, a member of the British parliament who has been keenly interested in this issue, is reported as arguing that the aim of the bill

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Divorce Law Reform
is not easier divorce but rational divorce. He said:
I am for the family, not against it. A divorce is the death certificate of a dead marriage. You can't stop people dying by refusing to issue death certificates.
[DOT] (12:50 p.m.)
I think I have made it quite clear where I stand on this issue. I just want to refer to one or two of the objections which have been raised to the marriage breakdown theory. It has been suggested that marriage breakdown is not a triable issue. I think this is nonsense. The minister took it a step further in his speech on second reading and said it would appear too much like an inquisition rather than a trial. The minute the government introduced the conciliation procedure they introduce a peg upon which there will from time to time be hung in process of an inquisition. Trials in all courts involve the process of inquisition. I do not think that is a fair answer at all.
However, the suggestion it is not a triable issue is, I think, one which must be met. I should like to look at some of the problems which courts have met, very much more difficult problems than having to make a declaration that a marriage which has irretrievably broken down, in which there is no hope of reconciliation, is dead and ought to be so legally pronounced. The courts have tackled successfully the defence of insanity, the burden of proof in criminal cases, that is, establishing guilt beyond a reasonable doubt. The courts have had a mandate from parliament to deal with problems under the Restrictive Trade Practices Act and the Combines Investigation Act which involve a difficult assessment of the result of present actions.
I think there is no real problem at all in this regard. When two people find they are unable to live together, that marriage, something which was once alive, is then dead. There are only the ashes left and no fire can be breathed into those ashes. The marriage should be dissolved. There may be difficulty for the courts, but the courts exist to serve the people. The minister might look at it in this way, that specific directions could be given to the courts which would permit them to evolve a jurisprudence over a period of time by which it would be, if not easy, at least possible for the courts to declare there had been a breakdown of the marriage.
As a matter of fact, I think there is some recognition of that principle in the bill. The draft bill proposed by the committee, which

appears on page 159 of the report of the committee, provided that two of the grounds which would be established as matrimonial offences were desertion for a period of three years and wilful refusal to consummate the marriage for a period of at least one year. When we come to the constructive grounds which the government has introduced in clause 4 of the bill as being the basis for marriage breakdown, we find they have lifted these two proposals out of the section which provided for the creation of matrimonial offences. The minister has said, we will not accept these as matrimonial offences but we will accept them as constituting a basis upon which a court can deem the marriage has broken down. This is proof of the proposition I have been trying to make that the line between matrimonial offences and marriage breakdown is very tenous and should no longer be continued.
I suggest this quite seriously, Mr. Speaker. I know that at this time the government has all the pride of paternity in this legislation. The minister has indicated, and the Prime Minister (Mr. Pearson) has confirmed, that there will not be a free vote on this issue. There is no doubt that this bill, with some improvements and modifications, is going to pass. I sincerely hope that, after it passes, what has been said in this house and what has been said in all the briefs that have been presented to the committee will be given the most earnest and serious consideration. I hope the government will not be wedded to these proposals in the bill, at least not to the extent that the old marriage and divorce legislation which we have had in this country has been continued in the past. I hope that in the course of his reply the minister will give an indication that the principle of marriage breakdown as the sole cause will not be abandoned. Perhaps in the light of the experience of the courts there will be another look at this matter within two or three years.
The only other point I want to make is to confirm what has been said by the hon. member for Elgin and the hon. member for Greenwood. Why should not county and district courts be given jurisdiction? The minister has said that divorce is a very important and fundamental matter, but so is 20 years in prison. The district and county courts have jurisdiction to impose substantial sentences in criminal cases. As a matter of fact, I think it is about time we took a look at the division of jurisdiction between county and superior
December 15, 1967

courts. I do not know why we should have on one side of the street 5 and 10 cent store justice merely because the judge receives a lower salary and on the other side of the road have plush department store justice for the carriage trade, and yet this is implicit in what is said. I think it is about time we eliminated all these distinctions.
The courts are going to be engaged in a great many trials of divorce issues which will follow the completion of this bill. Surely the government should be prepared to allow county and district courts to try these issues to ease the load which will have to be carried. I hope before we get into committee the minister will give some indication of his interest in this matter. I hope he is not hidebound and is prepared to consider the proposal made by members of his own party as well as members of this party to invest county and district courts with the power to hear these trials for the dissolution of marriage.


Mr. Ovide Laflamme (Quebec-Monlmoren-cy):: Mr. Speaker, may I call it one o'clock, if you please?

At one o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at 2.30 p.m.
Ovide Laflamme: Mr. Speaker, I deem it advisable to take part in the debate on this bill because to my mind very serious implications are involved for our society as we have known it up to now. I wanted also to bring to the attention of the Minister of Justice (Mr. Trudeau) some suggestions which, I am sure, must have been considered, just as the other factors that have been brought to his attention, concerning the bill now before us which provides for a reform in depth of our divorce laws.
Mr. Speaker, I have listened with considerable attention to the comments of the preceding speakers, particularly those of the member for Greenwood (Mr. Brewin). However, I must say that even though I sat on the divorce committee, most of my time was taken up by the finance, trade and economic affairs committee sitting concurrently. Nevertheless, this did not prevent me from reading most attentively all the briefs presented.
Divorce Law Reform
I should like at this stage to make some observations on the remarks of the hon. member for Greenwood concerning what is commonly called marriage breakdown.
Mr. Speaker, in considering the clauses of the proposed bill, more specifically clauses 3 and 4, we realize that on the whole the government is being blamed for not going far enough with this measure. As I reject marriage breakdown as the essential and only valid ground for divorce, I should like to bring forward an opinion or at least a thought.
I have read with considerable attention the briefs that were presented by some religious authorities on this point. To my mind, what is difficult to reconcile is the permanent marriage breakdown with clause 4 of the bill. In fact, if marriage breakdown were accepted as grounds for divorce, I think we should conclude that this would overly facilitate or at least considerably facilitate in the mind of husband and wife the possibilities of obtaining a divorce.
[DOT] (2:40 p.m.)
Even though the briefs submitted to the committee were to the effect that marriage breakdown could not be agreed upon by mutual consent, I fail to see how one could possibly suggest, by the same token, that marriage breakdown does not enable to obtain a divorce by mutual consent, a solution that the bill is trying to prevent.
Mr. Speaker, it is precisely on that particular point that the bill, even though some may feel it does not go far enough, gives rises, both in its spirit and its letter, to the serious thought that a state cannot possibly admit that a married couple can, merely by mutual consent, without giving any reason or justification, obtain a divorce, which would be possible, if the principle of marriage breakdown were accepted as criterion.
But when the champions of that theory tell us that this does not allow divorce by mutual consent, but merely becomes a permanent breakdown in the marriage, I refer them to clause 4 of the bill which, to my mind, gives wise and intelligent support to those who claim that a permanent breakdown of the marriage is sufficient cause for divorce. We see that in particular in clause 4 of the bill and more specifically in paragraphs (b), (c), (d) and (e) where it is stipulated that a spouse may petition for divorce when the respondent has been grossly addicted to alcohol for three years, or has deserted him

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Divorce Law Reform
for the same period, or after a year where the marriage has not been consummated, and where, in fact, the spouses have lived separately for over three years, or where one has abandoned the other for five years.
What is it, if it is not, really and truly, marriage breakdown? However, there may have been a degree of shock about clause 3; perhaps the legal profession did come to the conclusion that it is generally disagreeable, for the parents as well as the children, to have to publicize the grounds for their separation, or again, before a divorce is granted, to have to commit acts of cruelty or others.
Mr. Speaker, I think the bill as it now stands is based on a sound principle, which is to respect the marriage institution and that the state should try as much as possible to consolidate it. The acceptance of the marriage breakdown concept as the only grounds for divorce is a confirmation by the state that a married couple may, by mutual consent, agree to separate for a period of one, two or three years, and then, without any other factor than such a separation, be able to secure a divorce.
Of course, my hon. friend from Greenwood (Mr. Brewin) will object that this is perhaps not possible in practice, but this makes it too easy to get a divorce. And when the state takes it for granted or wants to maintain the de facto responsibility for both husband and wife in important cases, the crown will be forcing the spouses or those about to be married to understand that it is a contract or a compromise and that, in such a case, there must be tolerance, forbearance and sound understanding, above all because it gives crucial importance to the sad and deplorable results for society and unfortunately a cause for divorce occurs, especially if there are children from such marriages that are terminated by decree.
I do not wish to repeat, Mr. Speaker, everything that has been said about the bill. It is, of course, a great step forward compared to what has been done in the past, but I think it should be said that if, generally speaking, legislators did not dare to deal with that matter, it was because of religious convictions and perhaps also of a certain weakness on the part of our politicians who were afraid to tackle this important social problem, precisely because of the fear of setting certain religious authorities against them, which might have had a considerable impact on future elections.

That is so true that this legislation has not been dealt with for 97 years so that, for instances, so far as the province of Quebec especially is concerned, our civil code which is now in force and exists, as the minister said-and as it is well known-since 1866, a few days before the adoption of the Canadian constitution, stipulated that marriage was indissoluble.
The Canadian constitution of 1867 states that marriage and divorce are matters of federal jurisdiction, thus applying the provisions of section 129 of that same constitution which states more explicitly that, in each province, the laws existing on the day when the constitution came into force will continue to apply in the respective jurisdictions of the federal or provincial authorities.
Under the circumstances, the application of the constitution prevented, on the one hand, the Quebec legislature from amending its constitution, and in the absence of legislation by the federal government, there was not any way of remedying that situation or of amending the Civil Code of our province.
Of course, we see how slowly we proceeded. In fact, as reported in the proceedings of the committee, No. 2, Mr. Maurice Ollivier, legal adviser to the House of Commons, said that section 188 of the Civil Code of the province of Quebec, which existed until 1954, stated, and I quote:
A wife may demand the separation on the ground of her husband's adultery when he keeps his mistress in their own home.
Naturally, this disappeared and from that time until a few years ago, as has been pointed out, private bills were introduced in the Senate. Those who, on account of religious scruples, objected not so much to the principle of these bills but rather to their form, professed to be shocked and would not vote, so that the Canadian parliament passed one private bill after another without any deep understanding of the motives.
Mr. Speaker, I wish to put on the record what constitutes to my mind real progress, the very wise statements made by the Canadian Catholic bishops in the brief they submitted. I will quote these statements verbatim, because I think they show why no one can take offence at the decision of the government to take the initiative in presenting this bill and not to allow a free vote for, in my opinion, there is not lack of respect shown to individual conscience.
December 15, 1967

It is said, in this brief of the Canadian bishops, and I quote:
Canada is a country of many denominations and it is possible that other citizens, equally anxious to promote the common good, feel that under certain circumstances, it is less detrimental to the individual and to the whole society to permit divorce. As far as we are concerned, we are not opposed to changes in the present divorce laws, really intended for the common good of the lay society.
I think that it is a text clearly conceived, freely expressed and which obviously makes it possible for all legislators, whatever their religious convictions, to make their views known clearly and freely without being accused by the religious authorities of endangering their faith or their religious principles.
When we consider this whole problem, we are obliged, I think, to admit that it prevails in our society, as other actual situations.
[DOT] (2:50 p.m.)
. when a member of parliament speaks in support of divorce legislation that does not mean that he favours divorce in itself. In the same way, when he votes in favour of a law amending the Criminal Code, concerning theft or any other crimes, it does not mean that he is in favour of theft or crime, but those are facts that entail important civil consequences. I suggest the government and specially the present Minister of Justice deserve to be commended for the generous thoughts, they have expressed in introducing this bill before the house.
I have dealt with the important effects of the legislative amendments since the constitution was adopted, by referring to section 129 of the Canadian constitution. But nevertheless, this will result legally in keeping the citizens of the province of Quebec at a disadvantage, compared to the citizens of other provinces, to such an extent that mixed or parallel procedures will be necessary.
We know, for instance, that the French civil code provides for parallel jurisdictions, which provide, on the one hand, for separation from bed and board, in itself a divorce without the right to remarry and, on the other hand, the granting of divorce, when the party involved is convinced, in all good faith, that he retains the right to remarry, if he so wishes. I really do not think we should attach too much importance to this point, because those who are granted a divorce are not obliged to remarry. The law merely tells them that they may do so in the future, if they so desire. This, then, does not affect their conscience. I am no expert in this field but I cannol see why much importance should be attached to this point.
Divorce Law Reform
In Quebec, a legal separation is granted in those cases. This separation is, as I have just said, a divorce without legal right to remarry, since the Civil Code has not been amended and precisely because of the inertia of the central government, the provincial authorities, I say that incidentally, did not show any desire to deal with it and they have never amended the Civil Code to remove the section that stipulates as follows: Marriage is indissoluble and cannot be dissolved by preventing the legislature from enacting divorce laws.
We may, as I have said, obtain a judicial separation which implies to a certain extent separation from bed and board. The Supreme Court of Canada has already ruled that a divorce decree also provides automatically for division and total separation of community property. But, Mr. Speaker, the consequences-and I want to bring the attention of the Minister of Justice to this-for Quebec citizens pending acceptance by the legislature of the offer under clause 22 of the Act to set up its own courts as in the other Canadian provinces are such that any petitioner wishing to obtain a divorce under the new legislation shall petition the exchequer court and at the same time, in order to protect or prevent squandering of property by the respondent or to protect possible claims on community goods, such petitioner is required to initiate procedures for a separation as to bed and board before the superior court of the province of Quebec which will allow through protective seizure the withholding and custody of property until such time as a divorce decree is issued.
This, of course, necessitates two actions. It has been said in society, in public, that divorce was previously possible only for rich people because it cost a lot of money. The simplification of the present jurisdiction will permit married couples, whatever their social rank or position, to come before the courts and be equal to all other citizens, whenever they unfortunately find themselves in similar circumstances. On the other hand, the result of this joint jurisdiction, this parallel jurisdiction, will be that the citizens in the province of Quebec will assume before the courts double charges and a double burden. Here, Mr. Speaker, as a federal representative of the province of Quebec, 1 should simply like to appeal to the legislative authorities in my province and ask them to take advantage of section 22 of the act so as to accept, once and for all, in a clear and objective way-even

December 15, 1967
Divorce Law Reform
though it may not be something pleasant, throughout the province, I am sure, supports something fortunate, even though it may not it in principle. They are quite happy that be something essentially flamboyant, in a legislation finally is forthcoming on this mat-multiconfessional society-the responsibility ter. There will be no concern in the province, of putting their own citizens on an equal because the Quebec bar itself, about a year footing with the other citizens of this country ago, submitted a brief in which the provin-and of allowing the superior court of Que- cial authorities were requested to establish bee to be empowered to hear divorce cases. juvenile and family courts for the express We have heard this morning about ancil- purpose of effecting attempts at reconcilia-lary powers, or the theory that when the tion.
federal authorities have the constitutional On the basis of my own experience as a right to decide on divorce cases, they have at lawyer, I must admit that we are extremely the same time the power to decide on the poor, not only in Quebec, but throughout consequences, be it alimony, care of children Canada, in respect of agencies that might or domicile which is, of course, established work to reconcile unfruitful or unhappy
and is rather a factual matter.
I want to call the attention of the minister to this point and ask him to enlighten the house. When a decree nisi is granted by the court for example, what happens when the constitution stipulates that the civil rights of ownership are under provincial jurisdiction, when it becomes necessary to apportion the property?
I appreciate that if the federal law does not deal with that, property separation will be carried out according to existing provisions-in Quebec, for instance, by division and licitation-because, of course, the Supreme Court has found that divorce breaks the community property.
There is one point I regard as particularly important and I will come back to it briefly. Until the province of Quebec decides whether it would be advisable to entrust the superior court with the hearing of divorce cases, would it not be possible to conciliate the field covered by the Civil Code and the ambit of this legislation? What could happen or what amendment could be presented to prevent duplication of procedure by one of the spouses when it is a question of protecting the property during the proceedings?
That could have extremely important consequences, because one can readily understand, for instance, that if it is necessary to wait a year or two to get a divorce ruling and if, at the same time, a conservatory garnishment procedure is necessary to ensure the conservation of the property during the hearing, failing an agreement between the spouses, the garnishment or conservation, will be extremely detrimental and costly for the petitioner or for both parties.
[DOT] (3:00 p.m.)
Mr. Speaker, personally, I can but do otherwise than support this bill. I know that the bar as a whole, at least in Quebec, and

marriages.
We have practically never gone to the root of the problem. However, and this speaks well for all Canadian lawyers who practice their profession, I think they are the only ones who have understood that point and who, generally speaking, have tried to effect reconciliations; they have often failed, but at least they tried.
I myself have seen couples who wanted to obtain legal separation simply give up because they decided that it was better to endure the other's faults and to make other sacrifices than to make a public show of their sufferings and to face all the attendant, disastrous consequences on the economic and social levels as well as with regard to their children. Those people simply changed their minds and decided that it was wiser after all for them to accept their partner's faults and to live a life of compromise in the hope that their spouse would change for the better.
Another point, Mr. Speaker, on which I wanted to draw the attention of the minister, is section 2 of the bill which defines a "child" as being any person under the age of sixteen years. That may give the impression that in the case of people over 16, the bill does not apply. I would like the minister to tell us what jurisdiction will be involved. Will it be clearly the provincial jurisdiction? In the case of a child 17 or 18 years old who attends school or university and who wants to get money from his father, even if he is divorced, what power will he be able to exercise to get the necessary money? Would the decree of divorce, which would thus be established and which would define the financial responsibilities of either one of the spouses, prevent a child of more than 16 to go to court and claim from his father, even divorced, or his mother, if she had financial means, to accept alimony. I feel that that is extremely important.
December 15, 1967

On the other hand, I can hardly see how anyone could get a divorce and thus evade his judicial responsibilities towards his dependents, even if he does not have to support his wife, for instance, in short how he could be not responsible for looking after his children, until they are 21, and seeing to their education in particular, because one knows that during such periods the children especially need to be looked after and to pursue their education as far as possible.
Mr. Speaker, those are the main points I wished to draw to the minister's attention. I am, I repeat, in favour of this legislation and before concluding, I hope that the Quebec legislative authorities will take advantage of clause 22 which makes it possible for them to give the superior court jurisdiction over divorce cases. That may represent a certain revolution in the minds of some people but, fortunately, we have seen many newspaper editorials which said that the legislation is reasonable and sound and that it was up to Quebec to deal with it as the other provinces. That will spare considerable trouble to all those who will benefit from it, and I think Quebec will understand that there is obviously no question of giving it responsibilities that belong to the federal authority since in all other areas, the organization of the courts, briefly, the administration of justice comes under the provinces. Why would it not be the same for the implementation of this legislation on divorce to avoid heavy additional expenses and parallel jurisdictions to protect the interest of either spouse?
In closing my remarks, Mr. Speaker, I may say that, to my mind, this is good legislation. It is not only good, but it is sound for our society as it is organized at the present time and I am in favour of implementing it. I think that I am expressing in this not only the views of the majority of the members of the Quebec bar but also those of society as a whole, because this legislation is in the interest of all citizens unfortunately placed in this deplorable situation.


Mr.   J.-A. Mongrain@Trois-Rivieres: Mr. Speaker, I have listened to most speeches delivered on divorce. I should like to point out three that I found particularly interesting, that of the hon. member for Greenwood (Mr. Brewin), of the hon. member for Peace River (Mr. Baldwin), and the one of hon. member for Quebec-Montmorency (Mr. Laflamme).
From another point of view I find the presentation of this bill rather amusing. I
Divorce Law Reform
wish to point out that it took a Minister of Justice who is a confirmed bachelor to present a bill so up to date on the question of marriage. I hope this will not convince the Minister of Justice (Mr. Trudeau) to remain unmarried until the end of his days, because, after all, the country should not be deprived of such brilliant offsprings, since the potential father is so much so. I would not want him either to be discouraged from taking a wife, because of all the disquieting things he has been hearing in this house.
Mr. Speaker, all this to say in a rather light vein, that it was high time for the divorce legislation to be improved.
I shall not discuss it from a legal point of view, because I am not qualified to do so, nor from a moral point of view, because it seems to me that is not our concern. I think we all agree, here in the house, that divorce in itself is an evil. As far as I am concerned, my religion tells me it is inadmissible. The fact remains, however, that we also believe, and more strongly than ever since the last council held by the authorities of my Church, where oecumenism and similar topics were discussed, that it is not admissible either that we, legislators, Catholics or others, should impose our convictions on those Canadians who do not share our convictions.
Mr. Speaker, like most hon. members in this house, I believe, for instance, that human life is sacred. However, I recognize that, under certain circumstances, such as war, self-defence and, as I persist in believing, retribution, the state has the right to take human lives, to put people to death.
Personally, I feel that the physical integrity of a human being, man or woman, is also sacred, but, in some cases, to prevent a greater evil, an arm or a leg may be amputated, an organ may be removed.
So, I think we should consider the matter of divorce somewhat in the same light. In itself, it is wrong; morally speaking, my conscience tells me it should not be allowed; still, there may be borderline cases, people who hold divergent views, and we have no right to impose upon them such conditions as would lead them to live immoral or hypocritical lives.
[DOT] (3:10 p.m.)
That is why I find it comforting that the Canadian spokesmen for religious groups of every hue should have told us that it was high time to amend the divorce legislation, even to modernize it, and put an end to the

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Divorce Law Reform
hypocrisy which leads to perjury and false representations. There is no need to dwell on the subject for it was taken up brilliantly in this house, and I am quite convinced that all the members of this house even if the bill is not perfect, must approve of it in principle. We shall never have a perfect bill in this house, although we may have bills that are less imperfect. The fact remains that this bill certainly has its good points, that it improves the situation even if every member can still suggest amendments.
Still Mr. Speaker, some figures are shocking and we simply cannot refuse to take notice. For instance, there were in Canada, at the close of 1966, about 400,000 people-this figure comes from authoritative social agencies-living in common law marriage. So, we may reasonably assume that many of these people, if more reasonable divorce legislation had been available, would not live that way and would probably be living in more normal conditions.
At the end of 1961, there were in Canada
81.000	separated women living alone, in many cases in conditions of hardship, and of this number 15,600 were divorced. I am speaking only about women, but we can assume that the same figures probably apply to men.
In the United States, in 1965, there were
1.780.000	marriages, and of these 481,000 broke up within one year or since and most recent statistics show that there are 6 million divorced people in the United States.
Naturally, this is not a situation of which most of my colleagues and I can approve in conscience, but it is a definite situation which must be faced and which we cannot refuse to examine in order to see whether it could not be helped in some way.
I wonder, therefore, whether we might not look at this divorce law in a broader context, and whether we should not add to it a preventive measure against divorce, so as to create a certain cohesion between all the social welfare agencies and family services in the country. In doing this, we could first reduce the causes of divorce and then try to act as mediators, negotiators or advisers, when trouble starts in a marriage, to prevent that final rupture between two people called divorce, which is always regrettable.
Aside from the religious considerations of which I spoke earlier, there are natural considerations which make divorce normally unacceptable. One of the best studies of this problem, or at least that which seems to me

to be the best, was written by representatives of various religious denominations and submitted to parliament by the Canadian Anglican Church, through its Christian Social Service. I am translating as best I can, for I only have the English text.

Anglican Church of Canada, Christian social service; Canadian Catholic Conference, family life bureau; Lutheran Council in Canada, division of social service; Mennonite Central Committee, Canada, peace and service office; Presbyterian Church in Canada, board of evangelism and social action; United Church of Canada, marriage guidance council.

In my opinion, this study-and we have received a great deal of documentation-is excellent.
Mr. Speaker, I wonder if I may quote some passages from it at this stage of our consideration of the divorce bill, because I think it expresses my opinion better than I could express it myself.
This brief says, and I quote;
In this collective brief, however, we feel that there is presently in Canada a common agreement on the need for reform of our legislation in order to facilitate the setting up of more adequate social welfare facilities to settle marital troubles.
And this should be emphasized, Mr. Speaker, that as legislators we would fail in our responsibilities if we merely make divorce easier in the case of marriage breakdown. I think we should add, parallel to this legislation, some provision making it possible to prevent marital trouble and cure it when it has become too serious.
And the brief goes on to say:
Canadians are agreed on the following points:
(1)	The need for a reform of present divorce laws and legal procedures.
Now, I should like to refer to a point raised a moment ago by the hon. member for Quebec-Montmorency, to the effect that, with this legislation, divorce proceedings costs would be brought down to reasonable proportions. I do not feel it is enough, as there are a large number of very poor families who, in some cases, would like to secure a legal separation, if not a divorce, but who do not have the means to do so.
I will quote a few cases which have come to my knowledge since the last few weeks. I have in mind, for instance, a particularly sad case where, for 7 or 8 years, every effort was
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made, with the help of matrimonial agencies, to make the marriage successful, but, as things now stand, there is no solution possible, other than a legal separation. This, not a divorce, has been requested.
The poor wife who must ask for a judicial separation is told by her lawyer: you have to deposit $300. She does not have it, Mr. Speaker. In that case, will she have to bear her lot till the end of her days? Would not legal aid have a formula or could not the state provide that inherent expenses be reduced in keeping with the means of those who may require divorce or judicial separation? Otherwise, people will continue to say that there is a double standard of justice in our country: one for the poor and another for the rich. I think a situation where such things can still be said is unwholesome.
I continue reading the brief:
(2)	Divorce proceedings are taken as a last resort in the case of a marriage which, obviously, seems to have broken down. The ideal is to ensure a lasting marriage-
-in that respect, everyone agrees-
-and that ideal will be achieved only if the preparation starts at home and continues through educational programs sponsored by schools or other organizations. Those organizations should receive public funds as a help and as an encouragement to private enterprise.
There, of course, I see the need for a conference in the future between the provinces and the federal government to discuss legislation, to reconcile the laws which might be urgent, for instance, in the case of Quebec and Canada, to undertake that educational program, to prevent marriage from floundering on the shoals of misunderstanding or other reasons.
Here is another extract of the report:
(3)	Sometimes, even the best of marriages may be in need of counselling at a given moment. All Canadians should be able to have access to such services. And in order for these services to be effective, it is necessary for the state to have an interest in them and to help them financially.
Some already exist. Perhaps there is a lack of co-ordination throughout the country. Perhaps they lack the means of improving techniques by themselves or the qualified personnel they would need in order to analyse each case, because there probably are no two identical cases, and this is where the help of the state is needed; I suppose this would be a joint effort by the provinces and the federal government.
Divorce Law Reform
Here is the fourth recommendation of this report, and I quote:
Reconciliation procedures are often of great help in restoring marriages that are far from being examples of harmony and stability. Attempts to reconcile the parties should be made part of any legal procedure that deals with marriages that have broken down or are on the verge of a breakdown.
As a layman, Mr. Speaker, I feel that we should have courts specialized in family or marriage matters.
There are family courts in Quebec, but I would rather call them embryos of family courts which are not always headed by competent people, who themselves do not always have counsellors conversant with social, psychological or pedagogical matters. There would be room for much improvement.
But I feel that if the conservation of our natural resources and research in the physical and scientific fields are taken care of, we should first of all, under a priority which, in my opinion, is obvious, invest the amounts needed so that research and organization are made to meet the needs of our human capital.
Married life, family life, marriage are certainly the basis of social life in our country.
I quote again from the same report:
(5) Even if we are not all in complete agreement, it should be noted that, in divorce proceedings, the "matrimonial offences" concept should be replaced by the "breakdown of marriage" concept. This last concept, as explained to the joint committee, answers more adequately the needs of the programs and services which are concerned with the consolidation or rehabilitation of marriages.
Further on, mention is made of federal-provincial co-operation, of which I spoke earlier. This is the conclusion arrived at:
1.	Federal divorce legislation should not play a purely negative role, in the sense that it would merely facilitate the dissolution of already broken marriages.
I spoke about this a little earlier.
2.	The federal government, and all the members of parliament, should be dynamic leaders in promoting and helping the provincial and municipal authorities, as well as the private organizations to have their own legislation, special educational and welfare programs which would supplement the federal policy in order to insure the success of marriages.
It will not be enough, as law-makers, to wash our hands once the divorce legislation is improved. To make it easier in the valid cases, our responsibility must go further than that, that is we must try to prevent the ailment before it becomes acute.

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A third recommendation reads as follows:
3.	If Canada wants adequate marriage programs, its legislation and bills should be submitted to constant inquiries, review and scientific assessment.
At least as much as in material fields.
And I say in closing:
It is the duty of the state to strenghthen marriage and family life.
Mr. Speaker, when considering that bill, certain things strike me. I told you that quite frankly when I admitted that I do not have the legal qualifications of many of my colleagues.
[DOT] (3:20 p.m.)
For instance, under the heading "Grounds", clause 3, page 3 of the bill, it says:
3. Subject to section 5, a petition for divorce may be presented to a court by a husband or wife, on the ground that the respondent, since the celebration of the marriage, (a) has committed adultery:
I find it a little hard to understand that because the husband or wife commits adultery once, the spouse would be justified to ask for an annulment or a divorce. That is beyond me. I am under the impression that if Christ came back on earth, he would show the same generosity he had for the adulteress; he would probably forgive a third and a fourth time and would not be pleased to see a marriage dissolved when there are innocent children, unless the judge should decide, of course, that the situation is becoming extremely serious, which is not the case as a rule, except if the spouse who feels badly treated listens to his or her pride or hurt feelings. I wonder whether we are not opening the door a little too wide. In the past, we complained because adultery could be the only reason for divorce, and we noticed that in a great many cases, the adultery was forged, brought up under false representations. That case still remains.
I find it a little hard to accept that clause, Mr. Speaker. The second paragraph in the same clause states that:
If the respondent has been guilty of sodomy, bestiality or rape, or has engaged in an homosexual act;
Rape, bestiality, sodomy-I have no objection to that because it is against nature. But if we are now prepared to legislate in order to make homosexuality legal, unless it is habitual homosexuality, which has lasted for years and which prevented one of the spouses from fulfilling his or her matrimonial duties, I still think that a distinction should

be made. I imagine, I suppose and I assume that the judge dealing with that case will have enough leeway to say: It has happened once, therefore, it is not grounds for divorce. I do not have the legal competence to pass a final judgment on that but I still submit that it is a matter which impresses me.
There are other grounds a little further, such as for example:
(a) the respondent
(i) has been imprisoned, pursuant to his conviction for one or more offences, for a period or an aggregate period of not less than three years during the five year period immediately preceding the presentation of the petition-
Here again, I suppose that judges would have some discretion, because I could mention cases where a fellow was sentenced to three or four years in prison, but he was not necessarily a bad husband, for all that. But if during that period, the wife gets bored, acquires bad habits which are not in accordance with the requirements of marriage, and if she decides that it would be absolutely necessary to ask for a divorce or a separation, well that would raise problems for the children.
I hope that the judges called upon to settle those cases will not feel bound by the wording of the act which provides three years of imprisonment for adultery and homosexual offences. It is automatic, absolutely cut and dried. They should have enough discretion to say: Since your particular case is not as serious as some others, I shall not allow divorce.
Mr. Speaker, I shall support this bill even though it may be amended, as many of my colleagues have suggested. I suppose that in future years, other amendments will be made to improve it still more, since, for once, this is legislation dealing with such important human problems that year round research and studies should be made in that field and consultation should take place between all competent social and religious organizations, in an attempt to find new formulas.
I repeat it again-it must be repeated, and I am pleased that my colleagues stated it- what has been said in this house in favour of this divorce bill must not be interpreted in the misinformed areas of our country, and that is why it is well that we should say it often, as an approval of divorce as such.
I believe most members, if not all, in this house consider divorce, first for natural reasons, and second, for religious reasons, as inadmissible in principle.
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In principle, it is evil but we must make allowance for human weakness and consider the fact that we have no right to impose our religious beliefs on those who do not share them. We must also do our utmost to put an end to the old system which fostered hypocrisy, false representations, perjury and a whole lot of things which were denounced in this house.
And we are in good company, since we find that we have the support of religious authorities of almost all religious denominations in Canada. There might be differences of opinion on some details, on such or such a word or condition, but I believe that, on the whole, we have the support of all responsible people who are concerned with the vital cell of society, the family, which will enable the state to survive and to thrive.
It is in this spirit, Mr. Speaker, that I intend to vote in favour of the bill.


Mr. G. H. Aiken (Parry Sound-Muskoka):: Mr. Speaker, I am in complete agreement with the purpose of the bill before us, namely, to improve the divorce law of Canada. However, reaction to a number of the provisions of the bill is not good. I believe that the government has in several areas missed an excellent opportunity to make the new divorce law more acceptable to Canadians generally. I believe there was an opportunity to legislate a better definition of the marriage breakdown principle, a better arrangement to bring about reconciliation, and with regard to several other matters with which I shall deal in the course of my remarks.
I say that the government has missed an opportunity because for the first time in many years, following the hearings of the special joint committee which ran over a period of a year, public opinion at this moment is favourable to extending the grounds of divorce to a much greater degree than is the case now. At the same time, the major religious groups in Canada are ready for this type of legislation. Many members of the house who have had reservations in the past are now ready to consider some really profound changes in the divorce law of Canada. Here was an opportunity for the government not only to follow public opinion but perhaps to lead it. I say that in several fields they have missed this opportunity.
[DOT] (3:30 p.m.)
Before the bill is passed this situation might be remedied by amending the bill in
Divorce Law Reform
the committee stage at which time the house and the minister will have the opportunity to consider some of the amendments which I believe will be necessary anyway in the next few years and might better be brought in now so that the total jurisprudence on new divorce legislation may be developed at the same time. However, be that as it may, I would say there are several grounds on which the government has completely missed its opportunity.
The first one is on the principle of marriage breakdown. The bill goes so far in accepting marriage breakdown that the government could really leave out matrimonial offences as a ground and extend the definition of marriage breakdown, thus making a uniform divorce law in Canada. Instead, one part of the bill is based on matrimonial offences in which the cause does matter and another part of the bill is based on marriage breakdown in which the cause does not matter. How these two absolutely opposite principles can be blended and a reasonable jurisprudence developed so that the intent of the bill is made clear to the courts and to the people is beyond me. This is why I feel that the opportunity of taking one more step has been missed.
I will not spend much time on the marriage breakdown theory because others have gone into it fairly completely. But I would like to say one word in reply to the remarks of the hon. member for Quebec-Montmorency who spoke a few minutes ago. He said it was his fear that the adoption of marriage breakdown as the sole ground for divorce would make divorce easier. This is a misconception which it took the committee almost a year to clear up, because in many cases divorce would be more difficult to prove in courts.
The fact is that under a satisfactory marriage breakdown system, as recommended by the special joint committee in its draft bill, several safeguards would have to be included. The first one is that reconciliation efforts have been made and can be proven in court in every case. This is not the case under the proposed law and, as I will show later, a simple question put to the applicant in court will settle all the efforts at reconciliation. What we really want is proof that there is no hope of reconciliation and that it has been tried. This is not found in the bill before us.
The second proof is that the marriage is at an end because of the separation of the spouses. This also is not in the bill before us. Under this bill, if a divorce is sought on

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Divorce Law Reform
grounds of adultery it can be obtained on the proof of a single act of adultery. A divorce which is obtained on only one ground, namely, a matrimonial offence, is what we now call an easy divorce. But it will not be so easy if, in addition to adultery, you have to prove that efforts have been made at reconciliation and that the marriage is at an end and is not likely ever to recover. Finally, in a marriage breakdown bill you would have to provide for care of the children and other ancillary matters to make sure that no one suffers as a result of the divorce.
So I say that marriage breakdown as a ground for divorce would not make divorce easier in a good many cases but would make it more difficult. It would establish to the satisfaction of those interested in the good of society that there is no hope of reconciliation, that all possible efforts have been made, that the marriage is at an end, that the children are provided for, and that the parties are actually and have been living separately for a number of years. In such a case it could never be said that marriage breakdown would make divorce easier. I merely raised that point because it is a misconception which has existed and which was repeated today.
First, I should like to comment on reconciliation procedures. We have heard from the minister and from other members that this bill will provide for procedures for reconciliation of the parties, if there is any hope of this. I say that the bill lacks anything along these lines, and I wish to refer particularly to clause 8. I know that normally we do not refer to specific clauses at this stage of the debate but I wish to quote the wording of the clause because it is important. Clause 8 reads in part as follows:
On a petition for divorce it shall be the duty of the court, before proceeding to the hearing of the evidence, to direct such inquiries to the petitioner and, where the respondent is present, to the respondent as the court deems necessary in order to ascertain whether a possibility exists of their reconciliation-
It goes on to say that if the court believes there is some hope of reconciliation, many possibilities are open for action. The court can adjourn the proceedings, nominate a person to engage in marriage counselling or guidance, and so forth. However, that is only done when the judge feels on examining the parties that there is some hope of reconciliation. Under this bill-and I am sure this will be the case-all that the judge will have to do is to ask the petitioner whether there is

any hope of a reconciliation with the spouse and the only answer necessary in that case will be "no". If such is the answer the judge will have satisfied the statute, and that is all there is to it; all effort will have gone out the window.
Under our present divorce proceedings a number of questions are asked. For example, on condonation the question is asked: Have you forgiven your husband or wife? The petitioner is always warned by counsel of the meaning of this question because a good Christian might think the best answer would be to say that he had forgiven his spouse; she might have erred but he has forgiven her. We know that there will be no divorce if adultery has been condoned. So I am sure that most petitioners seek divorce in the courts with the complete knowledge that they must answer this question correctly. It is a simple question and you can be sure of the answer. When the judge asks you if there is any hope of reconciliation you have to say no. If you say anything else your divorce is delayed or is gone altogether. You must make sure there is no mistake about this.
[DOT] (3:40 p.m.)
Clause 7 of the bill provides that counsel must certify he has advised his clients fully upon the opportunities for reconciliation. Counsel cannot even pass by this provision. He cannot even say, I will let this client satisfy the judge on whether or not reconciliation is possible. He will have to advise his client not to say that there is a possibility of reconciliation because the client will not get the divorce. If the client says there is no possibility, the divorce will be granted. I do not believe either the petitioner or counsel will go ahead with a case with the firm intention of having that case thrown out. I cannot see it. If you are going to have any real hope from reconciliation procedures you have to have more than is provided in this bill. There will need to be some other provision than just the necessity for the judge to ask the question, which is all that has to be done at this moment.
This brings me to the next point I want to discuss and it is closely tied to this question of reconciliation. Under these circumstances, we are going to try divorce actions in the high court. They are still going to be on the list for trial at the assizes and there will be half a dozen other cases, civil or criminal. If every trial court does the same thing as is done in Ontario, it will mean the court will try to find half an hour when nothing else is
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taking place to slip in these divorce actions. Sometimes this occurs when the jury is out considering a criminal case. Sometimes this will occur when there is an adjournment to allow counsel to attempt an agreement in a case. Since there is just a limited amount of time, many of us feel that these cases will be hastened.
We feel, therefore, that county and district courts should be permitted to handle divorces. County and district court judges, except in the larger centres, are always available. They will be there today, tomorrow and next week and so will have some time to give thought to the question of reconciliation. They will not just pass off the question of reconciliation with a simple question as the high court judges are going to do. I know, just as sure as I am standing here, this is what the high court judges will do. They will put the simple question: Is there any hope of reconciliation? The answer will be no. If the judge has nothing else to do he may take some time to probe, but in the normal case the judge will just ask the question. The high court judge will be anxious to get these cases off his list. If he receives the right answer to that simple question the case will be disposed of. The high court judge will not want to be tied up with the question of reconciliation because he will move to another assize next week and may not be back to that centre for two years. Counsel would have to chase him around to another centre or try to find another judge, and in some cases may have to wait until the next time the judge is in that place.
Under those circumstances what hope is there for reconciliation? I believe for all these reasons that this bill is absolutely useless, especially in so far as the reconciliation procedure is concerned. The fact that county courts are not being given jurisdiction in these cases means there is no hope of people pursuing the possibility of reconciliation if that would be helpful. I say, therefore, that the bill falls short of what many of us thought it would do.
I should like to follow up the other question about county courts because their use is not related just to the reconciliation procedures. The special joint committee gave this matter a lot of thought. We heard a lot of witnesses. When the minister made his introductory remarks I asked him why the county and district courts had not been given jurisdiction under this bill. He gave two answers. He said, first, that we were dealing with the fundamental rights of people which should
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be settled in the high court and, second, that jurisprudence would be built up over the years and this should be done in a high court. I should like to deal with these two matters.
In the first place, I have already mentioned the question of reconciliation and of marriage breakdown. There is in addition the question of cost, and this is an even greater reason for putting these divorces into county courts. Under this bill we are trying to make divorces available to those whose marriages have broken down and for whom there is no hope of reconciliation. Many of these people cannot now obtain a divorce and in some cases they cannot afford it. If we could put these divorce actions into county and district courts, the tariffs and fees in those courts are half of what they are in the supreme court. While we are trying to make divorces more available to Canadians under this bill, regardless of their ability to pay, at the same time we are keeping divorce actions in the superior courts to which these people cannot afford to go. It has been pointed out on several occasions that if there is any possibility of reconciliation the procedures established under this bill that counsel will have to undertake will be monumental. These procedures are going to shove up the cost. The procedures are not those that can be undertaken by social workers or by other people engaged in this type of activity at public expense. These procedures, in a large measure, are going to have to be carried out by a lawyer. When a lawyer starts a case, therefore, he will start it with the possibility of reconciliation procedures in mind.
This same situation exists now in the province of Ontario with regard to children. If there are children involved in divorce proceedings you have to go through an ancillary procedure under which you need a report from the official guardian with regard to the maintenance of the children. We know, therefore, that a divorce involving children is going to take more time and is therefore going to be more expensive.
[DOT] (3:50 p.m.)
Under the new bill there are three possibilities. First, there is the possibility that during the trial or before judgment absolute the court will find that reconciliation procedures would be helpful. In that case, Mr. Speaker, the judge would order a review of the whole case and the court would have to be satisfied that there was no possibility of reconciliation.

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Divorce Law Reform
So, Mr. Speaker, bearing in mind that not only is there the question of divorce but also the welfare of the children and reconciliation possibilities to be considered, the cost of a divorce action would be difficult to determine because there could be an extended hearing which might last months or even years. This is particularly so should the action reach the supreme court where higher fees are quoted. In this connection some assistance has been given in Ontario through the introduction of legal aid; however, legal aid is not universal throughout the country.
Therefore, Mr. Speaker, for these reasons I think the bill has not met the objective parliament hoped to achieve. It has not followed in its terms the major recommendation made by the committee in cases where there is a possibility of the marriage being revived.
In conclusion, Mr. Speaker, I should like to comment on the two answers given by the minister regarding county court jurisdiction. This goes beyond the question of cost and reconciliation proceedings, but the minister did deal with the two other fundamental points. First of all he said that in divorce cases the courts would be dealing with the fundamental rights of individuals and therefore felt that this was a matter for the superior courts.
Judges of the county and district courts are drawn from the legal profession of the provinces. County and district courts deal at times with very substantial matters. They settle very real legal questions and, with one or two exceptions, actually have concurrent jurisdiction with the high court. Nevertheless I have never heard it said that the county and district courts did not deal with fundamental rights. Certainly they hear jury cases, and the judges try criminal offences either with or without a jury. So surely fundamental rights are involved in the county and district courts, the judges of which can deal with almost any crime except murder, and some other serious offences. Therefore I do not think the minister has put forward a valid reason for not trying divorce cases in these courts.
The second reason offered by the minister was that jurisprudence should be settled in the high courts. Although I would agree with this statement, I think it is well known that jurisprudence is mostly settled in the appellate courts, not in the trial division. In cases involving interpretation of statutes it is almost certain that one of the parties will appeal the decision, and it is the appeal court that settles the question.

I therefore see no difference between an appellate court hearing an appeal from a county court and hearing an appeal from a high court. As you know, Mr. Speaker, the appeal procedure in county court cases is almost identical to that in high court cases. While I think a case may be made for saying that jurisprudence is settled in the higher courts, I do not see this as a valid objection in this instance. Against that there are the other disadvantages of the county court system to which I have already referred.
One final word about county courts, Mr. Speaker. They are in most cases much more closely in contact with the social agencies in the area. If the court decides that in a given case reconciliation procedures will be of assistance, while the county or district judge would know the appropriate agency to which to refer the parties, I am sure a high court judge on circuit would not have the same information. He would therefore have to turn to someone, perhaps the sheriff of the county or to counsel themselves, and would have to decide which was the most suitable body in the area to deal with the case. For example, in one district or county it might be the Children's Aid Society. In another area it might be a welfare agency. In yet another it might be a clergyman or some other person who has had reasonable success with rehabilitation and reconciliation procedures. Therefore, I contend that the county or district courts are better equipped than the supreme court in this particular exercise.
I think I should give the minister warning now-though he probably has received it- that we intend to move some amendments after the bill has been given second reading. Certainly I hope he will give serious thought to the question I have raised, otherwise the value of the bill will not only be diminished but divorce will be made more expensive, thus detracting from the very purpose of the bill in the modern context of today, which is to make divorce more accessible to those in dire need.


Mr. John Gilbert (Broadview):: Mr. Speaker, I should like to make a few remarks on Bill C-187. It has been said that this bill is the best centennial and Christmas gift to the 500,000 Canadians who are living under common law marriages that the government has produced this year. The introduction of this legislation has also produced the feeling among Canadians that the government is
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determined to restore the institution of marriage and to give it its necessary moral, physical and spiritual well-being.
It would be very easy for me to give the full credit and glory to the Minister of Justice (Mr. Trudeau) for bringing forth this measure at this time, but I think we would be doing an injustice if we did not recall the efforts of previous pioneers in the matter of divorce reform. When one thinks of the active work undertaken by the hon. member for Timiskaming (Mr. Peters) and the hon. member for Skeena (Mr. Howard) in forcing the government to stop rubber stamping divorces, and to send them to the exchequer court, making the Senate finally responsible for the decrees, he realizes the courage and foresight that these two particular members possessed.
One would like also to recall the suggestion the hon. member for Winnipeg North Centre (Mr. Knowles) made some time ago to the effect that divorce cases be dealt with by the exchequer court. It would also be unfair not to give a great deal of credit to the communications media, to churches and other organized public opinion bodies throughout Canada who have brought this social issue to the forefront and forced the government to take action.
[DOT] (4:00 p.m.)
The special joint committee of the Senate and House of Commons performed yeoman service in studying this problem and it would be fair to say its report forms the basis of the bill we have before us. I was not a member of that committee, but from my reading of the report it appears to me that the main issue was between those who advocate an approach by way of matrimonial offences as grounds for divorce and those who believe in the marriage breakdown theory. The former set up a list of matrimonial offences and rely on the judicial adversary system for proof thereof before a divorce is granted. Proponents of the marriage breakdown theory rely on the inquisitorial approach; the separation of the parties forms the basis for the action and the court proceeds to determine whether there has been an irretrievable marriage breakdown. If this is found to be the case, then if adequate provision has been made for the wife, the children, and in some instances for the husband, a divorce is granted.
Under the marriage breakdown theory great emphasis is placed on reconciliation. The government in its wisdom has combined both approaches, the major emphasis being
Divorce Law Reform
placed on the matrimonial offence approach. The government shied away from the marriage breakdown principle because it was felt the courts would be given an indefinite and uncontrolled discretion, and preferred marriage breakdown to be established by proof of specific matrimonial offences.
Although I agree with the matrimonial breakdown principle, I must say the attitude which has been taken by the government appears to me to be proper at this time. I believe that in Canada we are not yet ready to accept in its complete form the marriage breakdown theory. Hon. members who have supported it have pointed to the examples of England and Australia. I would remind them that England is reaching its present attitude in two stages. Back in 1937 the government amended the divorce laws so as to include many of the matrimonial offences which are set out in the bill before us. Now Britain is ready to take a second step by recognizing the principle of matrimonial breakdown.
I would remind the house, too, that the English courts are specialized. Divorce petitions are heard in the divorce and admiralty court; criminal cases are heard separately; civil cases are heard separately. These courts are presided over by judges who specialize in particular fields of law, and judicial appointments to the bench are made bearing in mind the particular aspects of the law to be considered. We in Canada, on the other hand, appoint as our judges lawyers who have had experience both as solicitors and as counsel, and it seems to me we might not have available the specialized experience on the bench which would be required if the marriage breakdown theory were adopted.
Then again, I believe application of the marriage breakdown principle would leave too much room for interpretation and discretion on the part of the judges. Decisions could vary widely, and become highly unpredictable. Precedents would have to be built up in connection with many of the matrimonial offences to be considered. In other words, we might find that as the matrimonial offences theory is cast out of the front door by the legislature, it creeps into the back door of the courthouse.
Another reason advanced in support of the marriage breakdown principle has been the sordidness attached to proving adultery. I suggest it may be even more embarrassing or humiliating to proceed on the basis of marriage breakdown than it is at present, or than it would be under the terms of Bill C-187.

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I can only speak from my own experience in the practice of law in Ontario. What I have found is that 98 per cent of all divorce cases are undefended and that no more than 5 per cent or 10 per cent are concerned with detective evidence. In the great majority of cases the action is approached on a so-called friendly basis; there is an absence of the humiliation and embarrassment to which some hon. members have referred.
Some have said there is a great deal of fabrication attached to evidence given in divorce actions. My experience has been that the judges of the supreme court are mature in their approach and can detect quite easily any fabricated evidence. In most instances it is not necessary to present evidence of catching a defendant in the act of adultery. Usually the evidence which is presented is evidence of past adultery which has been reported by one of the parties to the solicitor of the other party.
All one needs to do with regard to proving adultery in Ontario is to lay the foundation upon which an inference can be drawn that adultery has been committed. So there is a minimum of bitterness and humiliation. Ontario courts also require a report from the official guardian setting forth particulars with regard to the parties and the circumstances in which they are living, in order to give full protection to the wife and provide for the maintenance and custody of the children.
[DOT] (4:10 p.m.)
My criticism of the marriage breakdown basis is that an undue weight would inevitably be placed on the independent evidence of social workers and experts in marriage counselling. It is not clear whether the court would be called upon to take the mandatory or discretionary approach with regard to the procedure of reconciliation, and so social workers would be placed in the very awkward position of having to take sides with regard to the presentation of the evidence, and their function as social workers would be greatly impaired.
Again with respect to the marriage breakdown theory, the basis of the separation approach, it is said that once the separation has been established the court must determine whether the marriage is irretrievably broken down. In fact, in the committee report, as recorded at page 121, four questions are set forth as follows:
Firstly, has the marriage broken down? Secondly, if so, are there any reasonable prospects of

reconciliation? Thirdly, if not, is there any reason of public policy, especially involving the parties of the children, why the divorce should be denied? And finally, if not, what arrangements should be made regarding the parties and the children?
By the suggested procedure, on proof of a period of separation alone, the court would be prepared to assume a positive answer to the question: has the marriage broken down; and in the absence of evidence to the country, it would assume similarly that reconciliation is not reasonably likely and that there is no reason to withhold the divorce. If there was anything in the evidence that led the court to believe reconciliation was possible, it could adjourn the case for an attempt to be made, but unless the fact of the marriage breakdown was strongly disputed by one of the parties, there would be no inquest to establish that the marriage had irretrievably broken down. . . Probably the only occasion for a full inquest into a marriage would be when a wife opposed it on the grounds that it would bring hardship upon her and her children, despite the fact that a husband had made quite an equitable arrangement. These cases would probably be few and the courts would be able to cope with them without any undue strain.
In this type of case you find one of the parties disputing the breakdown of the marriage. Advocates of the separation theory have said the separation term should be three years, but that may not be a sufficient period to bring about any reconciliation of the parties with regard to matrimonial offences. If a matrimonial offence has been an outrageous one, then possibly the period of three years may be too long. Some of the recommendations that were made covered periods ranging from two years to seven years. It is very difficult to determine an exact period with regard to the separation, and that may be the reason why it would be unwise to have separation as a sole and comprehensive ground.


Francis Andrew Brewin: May I ask the hon. member a question?


John Gilbert: Certainly.


Francis Andrew Brewin: Does he not see you could still have breakdown which would require separation for three years, if that was the sole reason for the action; but if there was the so-called outrageous conduct you could then say the marriage had broken down in a period of less than three years?


John Gilbert: I think my colleague appreciates the position I am placed in, that basically I believe in the marriage breakdown theory, but I find many practical difficulties presented by it. It may be, as he says, that if there has been an outrageous matrimonial offence within the three year period, then that period would be more than sufficient.
December 15, 19S7

Now, directing my mind to the bill, Mr. Speaker, there are certain provisions which I am very happy to see in it. One is the extension of the matrimonial offences, and the combination of the two approaches covering matrimonial offences and the breakdown theory. The second is the provision which would have the effect of abolishing parliamentary divorce by setting up temporarily a new divorce division of the Exchequer Court of Canada, and enabling the jurisdiction to be transferred to the superior court of Quebec and the supreme court of Newfoundland.
The third provision in the bill which makes me happy is that respecting domicile. Practising lawyers appreciate the problems they have faced in the past with regard to domicile, especially where the husband had deserted. An attempt was made in 1930, through the Divorce Jurisdiction Act, to give the wife a limited break, but the provision in this bill goes far beyond that and it is certainly a most welcome one.
Next comes the question of the disappearance of one of the spouses to a marriage. In Ontario we had the situation that if one of the spouses could not find the other, after a period of six or seven years that party could apply under the Ontario marriage act for a marriage licence, and if, after reasonable inquiries were made, proof was offered that the other spouse could not be found, a licence was granted to marry a second time.
However, such people were always under the cloud that the first husband or wife might turn up, and this is not a very happy basis for a marriage. Further, the children of the second marriage were placed in a very awkward position if the first husband returned and the second marriage was declared to be void.
Of course there are shortcomings with regard to the bill. The first has been elaborated on by most hon. members, and it concerns the jurisdiction of the county courts. One would think the government would be happy to accept the county court jurisdiction as concurrent with that of the supreme court. Able argument has been presented by hon. members to show that small towns may be visited by judges on circuit only three or four times a year, and also the difficulty this causes in modifying maintenance agreements.
The question of costs is very important, and one would think that the costs in a county court would be much less than they
Divorce Law Reform
are in a supreme court. One cannot help but be impressed with the evidence given to the joint committee by the former chief justice of Ontario. He gave that committee the benefit of his experience and recommended that there should be concurrent jurisdiction.
I would like to draw the attention of the Minister of Justice (Mr. Trudeau) to clause 3(d) where there is set forth certain conduct as a basis for a petition for divorce. This includes "sodomy, bestiality or rape, or has engaged in a homosexual act." One would think that lesbian acts should also be included. I think that is a shortcoming with respect to this particular provision in the bill. Another shortcoming concerns the question of adultery, where there is artificial insemination without the consent of the husband. These are provisions which probably will have to be amended in the future, and it may be necessary to incorporate new clauses now.
I also draw the minister's attention to clause 4(a)(i) dealing with imprisonment as the basis of a petition for divorce. It reads at present that the respondent-
-has been imprisoned, pursuant to his conviction for one or more offences, for a period or an aggregate period of not less than three years during the five year period immediately preceding the presentation of the petition,-
e (4:20 p.m.)
One finds that in criminal law there are many sentences for two years less a day. So in respect of that sentence which sends a person to a reformatory in the particular province, one would have to determine whether two years less a day would constitute really two years time. A person could be convicted to two years less a day on one offence and be convicted for one year determinate on a second offence. In this case the petitioner would have the difficulty of not complying with the three year period because of the provision of two years less a day. I should like to direct the minister's attention to that particular sentence because it may be that some clarification is necessary with regard to this type of problem.
I should like to draw the minister's attention to another clause with regard to desertion, which says:
...by reason of the desertion of the petitioner for a period of not less than five years...
I note that under the Australian law the period in respect of desertion is two years. It

December 15, 1987
Divorce Law Reform
would seem to me that the five year period might create quite a hardship. In Australia, where they have adopted the marriage breakdown theory and where they have set forth 16 types of situations, we find that the period is two years. One thing which I am sure is in the minds of many members and many other Canadians is the problem of the possible flood of divorce actions in the next three years in the Ontario courts. Therefore I thought it might be wise to read about the experience in Australia, where they have standardized their divorce procedure. I should like to refer to an article in the Toronto Daily Star of April 29, 1967 by Geoffrey Tebbutt, which in part reads as follows:
The standardization of the law and its liberalization in some important ways has not resulted in any startling increase in divorce.
The number of dissolutions, nullities and judicial separations in Australia in the decade before the uniform divorce laws averaged 6,973 a year. There was a small drop to 6,750 in 1961, the first year of the uniform divorce law.
Since then, the figures have been 1962, 7.290: 1963, 7,513; 1964, 7.967; and 1965 , 8,534. The upward trend is largely due to population growth.
The single ground most frequently cited in Australian divorces in 1965 was desertion (3,777 cases), followed by adultery (2,035 cases) and separation (1,706 cases).
Mr. Speaker, this should give some encouragement and some consolation to people who think we will be flooded with divorce actions. When one realizes that there are 500,000 common law marriages in Canada at the moment he also must realize that if people are to put their matrimonial house in order there probably will be an increase for a certain period to take care of the problem and to restrengthen the institution of marriage.
In closing, Mr. Speaker, I should like to give the Minister of Justice credit for his courage and his initiative in bringing forth this bill at this particular time.


Melvin James McQuaid: Mr. Speaker, I might say at the very beginning that despite the shortcomings of this very important piece of social legislation I intend to support it. In all probability I shall vote for it on second reading. I take this position despite the fact that I am one who believes that a valid marriage cannot be dissolved by any civil authority. However, I must say I do not expect to impose my beliefs on all the people of Canada. The power of the civil authorities to dissolve a marriage is now an

established fact in our society. I do not expect that the laws of this country should be framed in such a way that they would prevent from obtaining a divorce those who in good faith do not believe that marriage is indissoluble.
I was privileged to be a member of the joint committee of the Senate and the House of Commons which heard the representations made by various organizations which appeared before it. There certainly seemed to be broad general agreement on the need for legislative reforms which will provide more adequate social means to deal with marital problems. Those of us who listened to the testimony could not help but be impressed by the fact that unfortunately there are today some marriages which in fact are a hell on earth. We were very often reminded of the heartbreak and sometimes physical cruelty which results from such marriages. For those who find themselves in this unfortunate situation and believe in divorce, there should be some relief.
However, in our enthusiasm to provide this relief by a reform of our divorce laws we must not lose sight of the fact that lifelong marriage is the ideal, and that suits for divorce must be the last resort in the case of apparently broken marriages. We must not forget that the family is still the basic unit of society and that any forces which tend to destroy that basic unit are the enemies of men, and must be recognized as such. I believe we will all admit that a stable marriage is preferable to divorce.
It had been my hope that the proposed legislation would have made some provision to help promote stable marriages. In our desire to give relief in deserving cases we must not abandon our efforts on behalf of happy homes. I suggest that this is of direct concern to parliament. I suggest further that any further changes in the divorce law should be related to measures which have as their objective the fostering of stable marriages.
It is true that the present legislation does provide measures for reconciliation procedures but, as already suggested here today, I am afraid these will not be very effective. Clause 7 of the bill provides that the solicitor who is acting for the parties is required to draw to the attention of his client the provisions of the act which have as their object the bringing about of a reconciliation. He is
December 15, 1967



obliged under this clause to inform his client that marriage counselling assistance might be available to him. He is obliged to discuss with his client the possibility of reconciliation. I suggest, however, that this may very easily become merely a matter of routine. The solicitor will do it simply because he is required to do it. That in itself does not guarantee a reconciliation.
[DOT] (4:30 p.m.)
I followed very carefully the proceedings of the committee and tried to analyze the more than 1700 pages of evidence, which I think represents every shade of opinion. It would appear to me that six major points evolved from these hearings and I should like to place these on record. The first is the need for reform of our present law. I do not think there is any question about the fact that everyone who appeared before the committee agreed that the present laws need reform. The measure now before us is a step in the right direction, and while I do not entirely agree with it I am prepared to support it because it is a reform of what we now have on the statute books.
The second point is that suits for divorce should be the last resort. This was also recognized by practically everyone who testified at the committee hearings. The third point is that at times even the best of marriages, as they pass through various stages, require counselling services. These services should be available to all Canadians.
I realize that to provide such services will present problems, inasmuch as people who are properly qualified to give these services may not be readily available. Something should be done to encourage more people to take up this profession so that counselling services can be made available when required. The fourth point is that reconciliation procedures are often necessary and often effective in rebuilding marriages that are on the brink of destruction. Reconciliation attempts should therefore be a part of any legal proceedings dealing with faltering or broken marriages. The fifth point is that there is impressive, if not complete agreement that the marriage breakdown concept should replace that of marital offences in divorce proceedings. This has been adequately dealt with by other speakers. I personally would prefer to see the marriage breakdown concept supplanted as the only ground for divorce, rather than retaining the various things set out in the measure.
Divorce Law Reform
I do not think it is true that the marriage breakdown concept will lead to more divorces or make divorce easier, and I think this concept was recognized by most of those who appeared before the committee as the one more likely to relate properly to the necessity for divorce, rather than the specific things mentioned in the present law, or this bill.
The sixth and final point was in relation to the need for specialized courts to handle divorce cases. That point was clearly brought out by a number of people and organizations who presented briefs and gave evidence. I am fully cognizant of the many difficulties involved in this matter. There are constitutional questions which have to be taken into consideration. In Canada today there is a shortage of facilities and trained personnel for marriage education and counselling work, but the fact remains that the evidence presented to the joint committee indicated a widespread feeling throughout Canada that nothing short of an all-out effort should be made to establish and maintain the stability of the family unit. It is our duty as parliamentarians to strengthen marriage and family life, and foster enduring marriages.
It is for these reasons I should have liked to see more incorporated into the provisions in this measure which would help to provide marriage stability. Unless I am mistaken, there is a rather serious deficiency in the provisions of clause 4(l)(d) which provides that one reason for dissolution of marriage is that the marriage has not been consummated and the respondent at least for a period of one year has been unable by reason of illness or disability to consummate the said marriage. It seems to me, and if I am wrong the minister will correct me, that in this regard one would have to prove two things. He would have to prove that the marriage had not been consummated and that for a period of not less than one year the respondent had not been able to consummate the marriage. What about the case of a married couple who had originally consummated the marriage and then, by reason of a serious accident to the husband, it was not found possible further to consummate the marriage? Is there any provision for divorce in a case of that type?


Pierre Elliott Trudeau: In answer to the hon. member, Mr. Speaker, there is no such provision. The hon. member will realize the difficulty in

December 15, 19S7
Divorce Law Reform
respect of the problem he poses, because if there has been consummation how would we define the accident or its seriousness? Would we include old age, or just disaffection? There is this problem, once the marriage has been consummated. One can visualize that if there has been no consummation for a period of a year this may be because the couple are elderly. Does the hon. member want to allow divorce in this kind of case? This is the problem we grappled with, and short of spelling out what type of accident might fit the provisions I do not know of a solution.


Melvin James McQuaid: Would it not be better to provide that by reason of illness or disability the marriage could not be consummated rather than leave it as it now is? Could we not say that if a marriage had not been consummated for a period of at least one year by reason of illness or disability this would be a ground for divorce, rather than making it necessary to prove in addition that the marriage had never been consummated? I am not particularly anxious to widen the grounds for divorce but I think in this kind of case there should possibly be some relief. If non-consummation of a marriage is to be a ground for divorce then I think that nonconsummation by reason of illness or serious injury should also be a ground.


Pierre Elliott Trudeau: Of course in such a case the other test would be used. If a couple had lived in separation or apart for three years they would come within the provisions of this bill. If we follow the one year period, the condition that there has been no consummation must apply; otherwise once again you might have divorces between aged people at the end of one year rather than three.


Melvin James McQuaid: I do not want to argue with the minister, but at this time I suggest that the separation or living apart provision is not good enough. These parties may be living together in one household, and I suggest that some consideration be given to providing relief for those who by reason of illness after original consummation of the marriage are no longer able to consummate the marriage. I think this follows one of the recommendations of the committee. Speaking from memory I think the committee recommended that wilful neglect or wilful refusal to consummate a marriage be made a ground for divorce, and that also serious mental or physical illness, with some evidence that such will continue for a lengthy period of

time, should be a ground. I am not suggesting that a period of one year should be sufficient. One can foresee the case of a man who has been in a serious automobile accident being disabled for a period of a year or more. There should be some time limit so that relief can be given in cases of this kind. This should be possible to work out. a (4:40 p.m.)


Mr. A. B. Patterson (Fraser Valley):: Mr. Speaker, I do not intend to speak at any length at this stage of the bill, nor is it my intention to enter into a discussion of the details contained therein. However, I do want to make a few brief comments in a general sense regarding the matter that is now before the house. I followed with a great deal of interest the minister's statement when introducing this measure, which proposes to make some fundamental changes in Canada's divorce laws.
We all know that for some time this subject has exercised the minds of a great many Canadians. Many have vociferously urged divorce reform while others have viewed such reform with some misgivings. Those who tend to oppose reform in our divorce legislation do so, not because they desire to inflict further unhappiness on those concerned but because they view the trend as a threat to the established and divinely ordained institution of the family and the home, which in turn is recognized as the very foundation of our society and our nation.
Therefore the introduction of this legislation will meet with a mixed reception across the country, even though many members have stated that the country in general is more than ready to accept fundamental changes in our divorce laws. Personally I cannot share the undisguised joy with which some members of this house have greeted the measure. I have been rather surprised at the almost unanimous support that has been indicated. As I have pointed out, some have referred to this legislation in very glowing terms, even to the extent that it will be a wonderful Christmas present for a great many people. It seems to me that we have now reached the point where we have some very queer ideas about Christmas and Christmas presents. Therefore, Mr. Speaker, I do not think this legislation would fit into the category that has been attached to it.
December 15, 1967

I have a copy of the brief, as have all hon. members no doubt, that was presented to the House of Commons committee on divorce by the Congress of Canadian Women on June 27, 1966. I should like to read just two sentences which are to be found on the first page of the brief:
Divorce is a social devil, a disease symptom of a society that is ill. The remedy does not lie in making divorce more difficult but in seeking out the causes and as much as possible in removing them.
I am not indicating that this brief is opposed to the suggestions of divorce reform, but I wanted to place on record this particular definition of divorce because I believe it is something that should cause us some uneasiness as we deal with the legislation that is before us.
I do not believe that divorce reform will be the cure-all for the social problems that face us. Mention has been made of a number of these problems, such as illegitimacy, so many people living in a common law relationship, and many other things. Hon. members have spoken about the unhappiness that is inherent in a situation where love has departed and the relationship has settled down to more or less an endurance proposition.
I do not believe that divorce will solve all these problems. I am not so naive as to believe that if we make it easier for people to obtain a divorce there will not be common law relationships, because we find that a great many of these relationships are formed even if there is no impediment to marriage. Therefore, making divorce easier to obtain will not meet this particular problem. It will not mean that those who obtain a divorce and then remarry will be happy.
I think we all know of a great many cases where people have been divorced and have remarried three, four, five or six times and still have not been happy. Therefore, Mr. Speaker, this measure will not be a cure-all as far as the unhappiness of certain individuals is concerned. I acknowledge, however, that there are those who will benefit by changes and amendments to our divorce laws. But this measure certainly will not meet the situation in every case.
I believe it should be a source of great concern to us that we have failed in our endeavour to promote and maintain a society that is built on the concept of the sacredness and permanence of the marriage relationship.
Divorce Law Reform
I think if we viewed the question from this point of view it would take some of the jubilation out of us as far as the introduction of this measure is concerned.
My attitude to the bill before the house does not involve a choice between what I conceive to be right and what I conceive to be wrong. I am forced into the position where I have to make a decision between what I consider to be two evils, on the one hand divorce and on the other the regrettable tragedy of legal relationships without meaning. Therefore in making my decision with regard to this matter I have to choose the lesser of the two evils.
Having voiced these fears, and while my understanding of the moral and spiritual laws as outlined in the Bible require that those of us who accept its authority govern ourselves accordingly, I am constrained to acknowledge the validity of the argument advanced by many in this house and by the minister in his introduction of the bill, namely that we must recognize the difficulty of applying what may be ecclesiastical, religious law to what the minister has termed a secular, or I believe he used the word profane, society.
As I have pointed out, it is not my intention to deal at this time with the various provisions of the bill. I wanted to indicate to the house that we are not unanimous by any means in approval of the measure that is before us; at least we are not in full agreement as far as its general concept is concerned.
[DOT] (4:50 p.m.)
Reference has been made to the brief presented by a number of Canadian churches. The names of the churches have been placed on record and I do not propose to name them again, but I just wish to say that I have been rather surprised by the position taken by some of the churches in regard to this particular issue. The hon. member for Greenwood (Mr. Brewin) mentioned in his address the fact that this brief supports the marriage breakdown concept. I assume that it does, for it states that the validity of the marriage breakdown concept must be examined seriously and scientifically in contrast to the marital offence concept. Therefore I do not think I am doing the brief an injustice by assuming from it that its authors advocate the marriage breakdown concept.

December 15. 1967
Divorce Law Reform


Francis Andrew Brewin: May I ask the hon. member a question? I do not wish to give him information but merely to ask him a question. Does he know that the United Church of Canada, the Anglican Church of Canada, the Seventh Day Adventists, and a group of other churches explicitly advocated the marriage breakdown theory as a basis for divorce? They stated so clearly, not by implication.


Alexander Bell Patterson: Yes, individual briefs have been presented with regard to that; but I was reading one section taken from this brief, and perhaps I should place on record the names of the churches involved. They were The Anglican Church of Canada, The Canadian Catholic Conference, the Lutheran Council in Canada, the Mennonite Central Committee, the Presbyterian Church in Canada, and the United Church of Canada. I want to say again that I was very surprised at the position taken by these churches. However, I would not agree with the suggestion which has been made that all the churches in Canada take the same stand.
I would be interested to know to what extent these statements reflect the views of the membership of these religious organizations, because we know that a great many briefs which are presented to parliament on various subjects do not represent the views of the rank and file of the organizations which sponsor them.
I should like to commend the minister for taking the position that we should not go to the full extent recommended and advocated by the churches, but rather combine the two concepts, namely the marital offence and the marriage breakdown concepts. I think he was wise in doing this. If we are to move in this direction-and I do not think there is any question about it-we will have to do so. It is my view that marriage should be indissoluble, and I think some other hon. members also have stated this view. The indissolubility of marriage is the ideal toward which we should strive, and we should do everything possible to promote this concept.
Some hon. members have said that divorce should be the last resort. I believe so also. I think that ample time should be provided for counselling and guidance to save the marriage, if at all possible. I have been discussing with some of my colleagues the possibility that many young people will be more likely to enter into marriage without considering it carefully, and will say: If we cannot
tMr. Patterson.]
make a go of it, we can always divorce. The relationship they would enter into would then be a trial marriage. I suggest there should be a time limit of two or three years following a marriage before consideration is given to granting a divorce in these instances. I also believe that every possible provision must be made for any children involved.
In conclusion let me emphasize that every effort must be made to develop and to promote a full and healthy respect for the institution of marriage, which is basic in our society.


Mrs. Grace Maclnnis (Vancouver-Kingsway):: Mr. Speaker, I do not suppose there is a single member in this house who would disagree with the belief just expressed by the hon. member for Fraser Valley (Mr. Patterson), that marriage should be a partnership for life and that this is the ideal toward which we should strive. But as in human relationships in other fields, the ideal cannot always be achieved, and people for one reason or another have not found it possible to continue a partnership for life although they entered into it with the full expectation of doing so. In my view it is wrong under these circumstances to compel people, who have lost the love and respect for each other which brought them together in the first place, to continue that relationship when they no longer have the basis on which the marriage was built in the first place.
I also believe that divorce is no cure-all. There is no cure-all for such situations. I think that divorce is an essential measure which we must keep up to date as we do other measures in other fields. We live in a climate of social change which means that we must bring our legislation up to date, whether it be on capital punishment, divorce, birth control, abortion or any other matter, because public opinion demands that we sanction in our legislation the changes which our society has brought about.
May I call it five o'clock, Mr. Speaker?


The Deputy Speaker:: It being five o'clock, the house will now proceed to the consideration of private members business as listed on today's order paper, namely private bills and public bills.
December 15, 1967

[DOT] (5:00 p.m.)



BUSINESS OF THE HOUSE

Allan Joseph MacEachen: May I rise at this time to advise the house that the business for Monday will be the divorce bill.


Stanley Howard Knowles: Followed by-?


Allan Joseph MacEachen: Broadcasting.



CRIMINAL CODE


Mr. David Orlikow (Winnipeg North) moved: the second reading of Bill No. C-18, to amend the Criminal Code (wire tapping, etc.).
He said: The purpose of this bill is to revive the old common law offence of eavesdropping. I introduced this bill because of my concern and the concern of an increasingly large number of people in this country about what we believe to be a pernicious practice. This practice has been followed by law enforcement agencies, private investigators and probably other interested people who have invaded the privacy of ordinary citizens for personal reasons through the use of more and more highly sophisticated equipment. This practice used to be called wire tapping but the equipment used is now so sophisticated it does not require the physical tapping of the wires.
This bill, Mr. Speaker, is very similar, with small amendments, to the bill introduced in this house several sessions ago by the Solicitor General (Mr. Pennell) when he sat as a private member. We in Canada have traditionally looked upon ourselves as being very moral people. We have been quick to condemn the very antisocial activities in other countries such as the United States. One of the subjects upon which we have seen frequent reports in Canadian newspapers and magazines has been this question of wire tapping in the United States, the interception of telephone conversations. These articles suggest that is a common thing in the United States. Until recently this practice was reported in Canadian newspapers as if it were something which did not happen in Canada. The facts of course are entirely different. As they have become known in recent years, the facts prove that in every province of Canada there is no doubt taking place what we commonly call wire tapping.
On other occasions when I have introduced this bill I have given some illustrations. I
Criminal Code
will go over them quickly today because I do not believe there is any need to put all of the details on the record. I said earlier, Mr. Speaker, and I repeat, that I am satisfied on the basis of information I have received and which I consider to be accurate, that the Royal Canadian Mounted Police used wire tapping extensively in Montreal at the time they were investigating the bombing carried on by the F.L.Q. I said before, and I say again, that this was a very serious situation, so one cannot blame the police for taking all the steps which were required. The point I made before, and which I make again, is that if the parliament of Canada believes wire tapping is necessary, then the law should be amended to make clear that wire tapping by the police is permissible and legal, and any restrictions or limitations upon it should be spelled out.
If hon. members doubt that the R.C.M.P. carries on the practice of wire tapping, I refer them to an article which appeared in the Toronto Star of August 31, 1966, written by Robert Reguly. I am sure most members will know him as a very aggressive, successful and accurate reporter. I should like to quote a couple of paragraphs from this article:
For the R.C.M.P. has a discreet liaison with the Bell wiretap-checking branch in Montreal. The three Bell men there who check for wiretap are ex-mounties, according to a former Bell official.
Later, in the same article, I read:
S.I. maintains a wiretap installation in one of the major downtown Montreal hotels, enabling it to tap any room phone.
Another Montreal hotel-and one in downtown Toronto-are notorious for susceptibility to mount-ie wiretapping.
It is a very frightening thing, if it is true and I believe it is true, to think that if a member of parliament or any other citizen happens to be at these hotels his telephone conversation may be overheard. I do not know whether this would be the Mount Royal, the Queen Elizabeth or the new Bonaven-ture. In any event, a telephone conversation may be listened to by the R.C.M.P. or some other private agency. Other competent reporters have put on the record several times instances of wire tapping activities by the R.C.M.P. I know for a fact, Mr. Speaker, that during the S.I.U. investigation by the R.C.M.P. a hotel room in Toronto was set up so the R.C.M.P. could listen to conversations taking place. It is now an established fact of record that in Saskatoon the one telephone

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Criminal Code
which prisoners in the jail could use had been so worked over by the police that they could listen in on every conversation. I say that if a person wants to speak to his lawyer, for example, and the police or anyone else can listen in on the conversation, then this is a pretty serious thing. One would hope that in our kind of society, with our ideas of British justice, the conversation between the person accused of a crime and his lawyer would be confidential. Otherwise how can a person get the kind of defence in court to which we think he is entitled?
In Edmonton, under a local bylaw, the police were permitted to listen in on telephone calls. There was a report in an Edmonton newspaper, I think in 1965, to the effect that in the previous year the police had tapped 87 telephone conversations. Within the last year in the city of Vancouver a royal commission held hearings about the tapping of the telephones of certain union officials. I believe in the right of people to have privacy. I believe that wire tapping should be prohibited. For the benefit of the hon. member for Rosedale (Mr. Macdonald), who usually follows me when I introduce this bill, I may say that I do not exempt any person from my distaste for wire tapping. I am not going to argue today whether the hon. member for Rosedale is correct in his statements. Let me say right now that if a former attorney general in the C.C.F. government of Saskatchewan was guilty of recording telephone conversations by wire tapping or by tape recording, I think it was wrong. If a union official in British Columbia, who I feel is a very fine person, asked a private investigator to do any wire tapping, then this was wrong.
[DOT] (5:10	p.m.)


Mr. Macdonald (Rosedale):: Mr. Speaker, may I ask the hon. member a question, which really is a question by way of a statement. I regret that he has not a new speech this year, because I have. I may not have the opportunity to make it because I understand one of my colleagues is following the hon. member, but to save him any trouble I am not going to use last year's arguments this time; I have a new set.


David Orlikow: That is good, Mr. Speaker. I hope that this year the hon. gentleman will support me, because I have some new stuff too.
I understand that the civil rights section of the bar association has endorsed in principle

legislation to prohibit the use of wire tapping, except in very special circumstances. I think these special circumstances are covered by the bill I am introducing today. I hope that the hon. member for Rosedale (Mr. Macdonald) will listen, if not to me, as he has not in the past, then to the Canadian Bar Association, and give my bill some general support, rather than the kind of living to death that he has given it in past years.
I put these facts on the record, Mr. Speaker, to demonstrate once more that wire tapping in Canada is taking place. An article appearing in the May 17, 1966 issue of the Toronto Globe and Mail dealing with industrial espionage in Canada went into great detail to demonstrate that increasing use is being made of wire tapping. I do not know whether the hon. member for Rosedale read this article but I should like to read one paragraph. The article referred to a man who was in the business of supplying equipment for wire tapping purposes, and one paragraph was as follows:
Most of his clients are lawyers, private investigators and industrial companies. He described industrial espionage as growing by leaps and bounds in Canadla.
"It is reflected in my business. May sales of devices have increased more than 500 per cent in the past five years," he said.
Since it has usually been the hon. member for Rosedale who has contributed to the talking out of my bills, I thought I would restrict to the Toronto newspapers my quotations from newspapers which have come out against wire tapping. I would therefore put on record what they have had to say. It is not often that the Toronto newspapers agree with each other but here are some of the things said in editorials.
In an editorial that appeared in the Toronto Star on September 8, 1967, the following appeared:
The bar association's suggested amendment deals with both these problems. It begins with a general prohibition of electronic espionage. An exception would be made in favour of the police, but this would be hedged around with special restrictions.
Police officers would have to get a court order -and presumably satisfy the judge that the procedure was necessary-before they could be permitted to instal bugging devices in a suspect's home, office or car in order to listen in on his conversations.
As a further safeguard, no court order could be issued authorizing the police to listen in on conversations between lawyer and client, husband and wife, or priest or minister and parishioner.
December 15, 19G7

Here is one paragraph from an editorial that appeared in the Toronto Globe and Mail on December 9, 1966:
Obviously, there is a need for laws to restrain electronic eavesdropping-not just for private individuals, but for the police, the military, and everyone. Bugging is an invasion of individual privacy; the dangers of permitting such an invasion to go unchecked are far greater than those involved in depriving private and public investigative agencies of a useful tool.
An editorial which appeared in the Toronto Telegram on May 13, 1966, critical of the Solicitor General (Mr. Pennell), had this to say:
If the R.C.M.P. resorts to wire-tapping, which is illegal under the Criminal Code-
I interject to say that I do not think that is right.
-he must put an end to this practice, for the force is breaking the law. He should also announce this action to parliament and the country.
If the R.C.M.P. is not engaged in wire-tapping, he should clear it of this suspicion at once by making a statement in parliament.
If Mr. Pennell believes that wire-tapping is a necessary method of investigation, he should admit this. He should then introduce legislation to make it legal for the R.C.M.P. and other police forces to carry on this practice.
It is not often that I agree with the editorials of the Toronto Telegram, but in this case I agree completely. As far as I am concerned, Mr. Speaker, I see no reason for wire tapping. Nevertheless, if those who are charged with the administration of justice do believe it is necessary, then I suggest they ought not to carry it on injudiciously, refusing to admit it is being carried on, hoping to get by, and that the public will ignore it. They at least ought to have the honesty to report such cases to the minister; and the minister ought to bring in legislation which would make it clear, as I think my bill does, that wire tapping is prohibited except in certain special circumstances, anti these circumstances should be detailed.
It may be that I would not agree with the reasons given by the minister for permitting wire tapping, but at least the matter could be discussed by parliament. Then if wire tapping were permitted it would only be on the condition that the police went to a judge of the superior court, gave reasons for the wire tapping and obtained a court order. In addition, Mr. Speaker, a report should be made once a year, as I understand is the case in Great Britain, of the number of times the authority given the police by the law had been exercised.
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As I say, Mr. Speaker, not only do the police resort to wire tapping but I am also satisfied-and I think the evidence proves this-that private investigators can and do resort to this, to me, dirty practice. I think the practice is reprehensible and should be prohibited.
I do not expect the government to give passage to the bill tonight, but I hope that when the Minister of Justice (Mr. Trudeau) brings forward his consolidation of the changes to the Criminal Code it will include a new section of the Criminal Code that deals with wire tapping practices. I would like to add that if this kind of section is not included in the changes to the Criminal Code, then the members of this party will bring forward an amendment to that end.


Mr. Robert Stanbury (York-Scarborough):: Mr. Speaker, it seems I have the honour that normally goes to the hon. member for Rosedale (Mr. Macdonald). I certainly appreciate the opportunity of speaking on this subject, which is of considerable concern to me as it is to the hon. member for Winnipeg North (Mr. Orlikow) and others including members on this side of the house.
It has been pointed out that this matter was first raised in this house by the hon. member for Brant-Haldimand, the present Solicitor General (Mr. Pennell), and I believe that the bill now under debate is substantially a copy of his original bill. This is a source of great disappointment to me, Mr. Speaker, because I think it must be recognized that the bill introduced several years ago by our present Solicitor General was entirely inadequate for the needs of today.
The bill introduced today by the hon. member for Winnipeg North I would have expected to be much improved over the one he introduced last session, but this is not the case; it is still a horse and buggy approach to one of the problems of the electronic age. One might say, this is a horse and buggy approach to bugging. Today, snoopers have progressed beyond the stage conceived of by the hon. member for Winnipeg North in this bill.
[DOT] (5:20 p.m.)


David Orlikow: May I ask the hon. member a question?


Robert Douglas George Stanbury: Yes, and I will be pleased to try to answer it.


David Orlikow: Does the hon. member really believe that if I had done a great deal of

December 15, 1967
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work to bring the bill more up to date it would stand a better chance of passing?


Robert Douglas George Stanbury: I am glad the hon. member asked that question. If he were familiar with the work done in connection with this subject he would realize that there was a bill introduced in the house last session which did go far beyond his own. As a matter of fact it was introduced by me. It was not passed because the hon. member who was then minister of justice was not prepared to see it pass, as I am sure his successor is not prepared to see the bill under discussion today pass. I recognized the validity of my hon. friend's reasons then for not wanting to pass that legislation in the form in which it was submitted. What I did not understand was his failure to have these bills or their subject matter brought before a parliamentary committee. I regret that the present Minister of Justice (Mr. Trudeau) is not in the house at the moment because I intend to suggest that in the next session, at least, if not in the present one, this kind of study should be made by a parliamentary committee.
The hon. member for Winnipeg North in presenting his most inadequate bill gave the impression that approval had been given to it by the civil liberties committee of the Canadian Bar Association. If he had done his homework he would know that this is not the case. What has happened, as I understand it, is this: Last fall a report was made to the annual general meeting of the Canadian Bar Association in the form of a resolution far broader than that suggested by the hon. member. My information is that it was in these terms:
(1)	All electronic eavesdropping be made a criminal offence with the proviso that electronic eavesdropping may be employed by law enforcement agencies under judicial control.
(2)	Electronic eavesdropping shall not be permitted under any circumstances to interfere with privileged communications.
(3)	Electronic eavesdropping shall only be authorized in circumstances analogous to those under which a peace officer has the right to arrest without warrant.
(4)	Evidence obtained through the illegal use of electronic eavesdropping shall not be made admissible in any court of law.
(5)	Any charge before any court, the investigation of which has in the opinion of the court been furthered by means of wilful disregard of the provisions against electronic eavesdropping shall be dismissed, unless the court is of the opinion that such a dismissal would not be in the interest of justice.
I understand that this resolution was not adopted by the Canadian Bar Association
[Mr. Orlikow.l
because a majority of the members present for the closing session were of the opinion that there was not then sufficient time to consider properly a matter of such importance. However, I believe it will be considered at the next annual meeting and it is intended that a copy of the resolution will be circulated well in advance so that a full discussion might take place. I am informed that a half day of the general meeting will be set aside for the sole purpose of considering this resolution. This gives some indication of the importance attached to it by the Canadian Bar Association.
It is clear that the hon. member for Winnipeg North has scarcely scratched the surface of this problem in his minimal approach to it. If one looks back to the report of those who studied this subject for the benefit of the civil liberties section of the Canadian Bar Association, one finds that as far back as 1965 the chairman of that group, Mr. Aubrey E. Golden, in a report he submitted on September 2 of that year set out what he and his group felt were minimum requirements for legislation. I should like to quote from this report.
It is my respectful submission that only one federal enactment is required. It must be such that it constructs an effective balance between the interest of the individual citizen in maintaining his privacy and the right of the state to secure itself against crime or unlawful activity.
Federal legislation should absolutely prohibit eavesdropping and wire-tapping and make only rigidly defined exceptions where the interest of the state appears to be paramount.
Later, he says:
I would submit the very minimum requirement for exemption is that a county court judge be assured that the conditions of the statute for exemption are satisfied by ex parte vive voce examination of the police officer in charge of the investigation as well as obtaining a written information setting out the basic facts.
The conditions which seem to be reasonable for the granting of a warrant of exemption to a police officer are:
(a)	the offence being investigated must be an indictable offence;
(b)	normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried;
(c)	there must be good reason to think that an interception would result in a conviction;
(d)	where the identity of the person sought to be convicted is known, that no other charge is pending against him.
Mr. Golden in his report goes on to examine in some detail the considerations which should enter into the drafting of such legislation. He states it should be an offence
December 15, 1967

to divulge any confidential communication between counsel and client which may happen to be overheard by anyone. He suggests that any kind of approved eavesdropping and wire tapping activities should be limited to a period before the actual charge is laid. He suggests that the only reasonable sanction for failure to observe any restriction which might be placed in the Criminal Code concerning wire tapping or eavesdropping would be the automatic dismissal of any resulting charge in the event that it follows any unauthorized activity. In addition, he suggests, violation of such legislation should be made an indictable offence, with severe minimum penalties provided.
[DOT] (5:30 p.m.)
Mr. Golden in this report stresses the fact that we must sanctify the right of privacy with strong legislative action, and only then should we recognize a carefully defined and safeguarded procedure which will assist our law enforcement agencies. He points out that both the United States and Great Britain have held public inquiries, with some educational effect, on the questions of wire tapping, eavesdropping and the invasion of privacy, but in Canada this has not been done.
I agree with Mr. Golden that it is difficult to see how truly effective legislation can be enacted by a government until it is in possession of such basic facts as would indicate where eavesdropping is most useful to law enforcement agencies, and until it has a definition of the real civil liberties issue. I submit that there should be such an inquiry where all interested parties could make submissions, and the issue be put into perspective for government and public alike.
In the United States there have been hearings on this subject over the past two years. Since last March the subcommittee on administrative practice and procedure, headed by Senator Edward V. Long, Democrat, of Missouri, has held hearings on a right of privacy bill. The first witness to be heard at those hearings was the attorney general of the United States, Ramsey Clark. Those hearings continued until October last when the bill was referred to the senate judiciary committee. At that time the Missouri senator in a press statement said:
This bill is essential if we are going to clear up the legal fog that now surrounds wire tapping, eavesdropping, and snooping in America. I think Congress owes it to the citizens of this nation to act on this measure as soon as possible.
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This right of privacy bill would prohibit all wire tapping or mechanical bugging except with the consent of one party. However, an exception is made for the President of the United States to authorize the use of these devices where the national security is threatened. It would also prohibit the manufacture, shipment, and advertising of all devices in interstate commerce which are designed for wire tapping and electronic snooping.
Another prominent American who has spoken out on the subject is Senator Robert F. Kennedy, Democrat, of New York, who in a speech before the law school forum at Columbia University last year said that all modern technology must be used in fighting crime, and he added:
At the same time, however, we must act to assure that the new technology serves us properly and does not invade the privacy of the individual.
That should surely be the purpose of any legislation on this subject which is passed by this house. We should be much more ambitious in our attempt to attack this most modern of problems than has been the hon. member for Winnipeg North. Our purpose in reform in this field should surely be to protect truly the little man from the big ear.
It is clear from previous debates in the house on this subject that corporations and wealthy persons can protect themselves from electronic snoopers with counter devices which are almost as sophisticated as those available for snooping. There is, in fact, no legal restriction in Canadian law against the manufacture, sale or use of electronic devices for either snooping or the detection of snooping. This is a very grave lack in the law which should preserve the rights of Canadians to privacy.
In stressing the importance of a broad brush approach to such reform I would like to refer again to an editorial which my hon. friend from Winnipeg North mentioned in support of this bill; but when he hears my quotation from it, I think he will recognize it in fact as a clear denunciation of his approach. This editorial in the Toronto Star of September 5, 1964, included the following statement:
What is needed is an amendment to the Criminal Code that would ban all electronic or mechanical eavesdropping. The only exception would be made for police eavesdropping with the permission of a superior court judge.
That obviously goes far beyond what the hon. member is proposing in his bill.

December 15, 1967
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David Orlikow: And far beyond what the Minister of Justice will agree to.


Mr. Slanbury:: The previous minister of justice took the position that he wanted to receive the report of the royal commission on security before making any further study of this matter. I disagree completely with that approach, and I hope the present Minister of Justice will not take that position. I have suggested in the past, and I suggest today, that while we are awaiting that report there is no reason why a study could not proceed, for instance in the justice and legal affairs committee, on matters not touching national security. I urge the Minister of Justice to have the subject matter of the bills now on the order paper, and of the bills previously introduced, referred to that committee for study.


Donald Stovel Macdonald: Mr. Speaker, it is a great pleasure to be here again debating with my hon. friend from Winnipeg North (Mr. Orlikow). In a time of continuing change in the political situation of Canada, it is always reassuring that there will be occasions like this when he will reintroduce the bill he has introduced for many years past and I in turn will have the opportunity to speak about it.
Several things have occurred in the useful relationship he and I have had in this regard. The first, dealing with eavesdropping, has been the appearance of intruders in this field. I am pleased to have the participation and the assistance of the hon. member for York-Scarborough (Mr. Stanbury), and I am sure the hon. member for Winnipeg North must be equally delighted to have the support of that pillar of ultramontane society, the doyen of manners and morals in this house, that defender of king and empire, the eloquent and articulate member for Kootenay West (Mr. Herridge), who has introduced the bill which immediately follows that of the hon. member on the order paper, dealing with this same subject matter.
Therefore we will have the opportunity not only of discussing the type of law which the hon. member for Winnipeg North thinks is appropriate here-and for reasons I will deal with later, which I think is inappropriate-but in the near future and I think I can predict a time of not less than an hour, we will have the opportunity of discussing at great length, the legislative proposal being put forward by the hon. member for Kootenay West.

The hon. member for Vancouver Quadra (Mr. Deachman) tells me he thinks I should express a little praise also for the members who have stayed to listen to this debate, and I am quite prepared to recognize their participation in that manner over the years.
e (5:40 p.m.)
I have given an undertaking to the hon. member for Winnipeg North not to refer to any of the material I used in previous years, or for example to the fact that his political friends may have engaged in these self-same practices in Saskatchewan. I take it as accepted that that has occurred, and therefore I will not go further into the question. I should like to introduce into the debate what I believe has been perhaps a useful addition to the public documents on this subject. This has become available since we last discussed this matter. I am referring to the report of the Commission of Inquiry into Invasion of Privacy. The hearings of this commission were conducted by Commissioner R. A. Sargent in the province of British Columbia, and the report is dated August 9, 1967. As I believe hon. members are aware this had to do not so much with telephonic wire tapping as with bugging or eavesdropping which had been engaged in during the course of a union dispute.
The first conclusion to which the commissioner came, as the hon. member for York-Scarborough (Mr. Stanbury) has already said, was that there was no question that the union official, Mr. O'Neal, was involved in any illegal conduct. In fact there is no criminal law and I do not believe there is any civil law in Canada-although I should not speak for a jurisdiction where I am not a member of the bar-in this regard. Perhaps the most useful part of the report of the commissioner, however, is the catalogue of types of eavesdropping or interception of conversations which were engaged in in British Columbia.
The reason I feel I cannot accept the hon. member's bill-although I acknowledge that it is similar to a bill which was introduced at one time by my hon. friend the Solicitor General (Mr. Pennell)-is that it is not adequate in this regard. I should like to refer my hon. friend to the excellent study made under the direction of Mr. Samuel Dash of Pennsylvania. The details of this are to be found in a book entitled "The Eavesdroppers". I believe Mr. Dash has presented much better than I could the particular criticism I
December 15, 19G7

would have of the hon. member's bill. At page 6 of "The Eavesdroppers" there appears this observation:
The failure of legislators to recognize the relationship among these eavesdropping techniques-
That is, telephonic interception and bugging.
-has led some states to enact strict prohibitions against one technique and completely overlook another. Thus, in Pennsylvania in 1957, it was made illegal for anyone to intercept a telephone communication, even for a law-enforcement purpose. The legislature ignored the use of concealed microphones, with the result that it is legal in Pennsylvania to bug a bedroom, den, or office, but illegal to intercept a telephone communication.
It seems to me that that captures the inadequacy of the hon. member's bill. While he is concerned about telephonic and telegraphic bugging he is not concerned about bugging of conference rooms or other more intimate places of meeting.
One of the more interesting things, as I have already said, was the reference made by Mr. Sargent to the very extensive use of bugging practices not only in the union field but also in industry and in other areas of Canada. Reference was made, for example, to the fact that in the automobile retail business it was not uncommon to use bugging devices to bug the conversations which may be taking place in the showrooms or in rooms adjacent to the showroom of automobile establishments. It was also established that an Arthur Murray dance studio in the province of British Columbia used a bugging device. The evidence was to the effect that it was used as a safety measure. The evidence discloses the enterprise which has been used in respect of bugging devices in the province of British Columbia. Reference is made to the fairly extensive monitoring practice carried on in jails. The hon. member referred to one type of monitoring. I would share his concern about the monitoring of telephone conversations when an accused is communicating with his counsel. However, in respect of monitoring devices in jails, to monitor the drunk tank so that the authorities may know whether there is a change in an individual's conduct which would suggest that treatment was necessary, or in respect of monitoring in maximum security institutions, I do not believe I can accept this.
However, the commissioner did refer to what he himself thought was extensive use of this type of equipment for industrial
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security. Unfortunately the report does not go into very much detail concerning the type of devices used or the type of situation in which they would be used. But apparently the commissioner did believe that this kind of electronic eavesdropping is used. The hon. member made reference to a situation in the city of Toronto, which I have the honour to represent. It is interesting that the Toronto Transportation Commission uses a type of television bugging device at the turnstiles of the St. George station so that they can find out who has been dropping tokens in the fare box and who has not been dropping tokens in the fare box.
Some of the comments of the commissioner and some of the comments I have made indicate that there is a wide spectrum of uses to which eavesdropping devices are put. Some of these I think would generally be recognized as being legitimate and others not. It is clear from the remarks that I have made that my reason for opposing the hon. member's bill-and this I am sure does not come with any great surprise to him-is the fact that he has not gone far enough in dealing with this kind of legal problem.
It might be interesting to have on the record some examples of the types of equipment and some indication of the scientific advance there has been in this area, as well as an indication of how subtle some of the types of equipment are. At page 30 of the commissioners's report we are given a number of examples. He pointed out that there are a great number of electronic devices now for sale and used in various situations. There is a sub-miniature FM transmitter known as the sugar lump. It is the world's smallest FM bug transmitter. It will pick up even whispers in a normal sized room. The transmission range is from 300 feet to more than one quarter mile. It can give a constant transmission for five days with a \\ ounce battery. Then the report goes on to refer to what are called spiked mikes, which I am sure is not intended as any assault on the hon. member for Ontario (Mr. Starr). This appears at page 35 of the report as follows:
There is another contrivance, spike mikes, that look like needles. They go into the wall of the next room-about the size of a nail. It is not pushed quite through. The monitor on it is about as big as a thumb. They are equipped with small ear phones something like a stethoscope device.
The conclusions of the commissioner are interesting. First of all, he recommends some possible changes in the civil law within the


David Orlikow: I wonder whether the hon. member would answer a question before he sits down.


Donald Stovel Macdonald: I think I will have time to do so.


David Orlikow: The hon. member has said that he would vote against this bill when it comes to a vote because it does not go far enough. Would he consider drafting a bill for submission at the next session which would go further than my bill, and cover all the new modern problems to which 1 have referred, and which I admit are not covered by this bill? If he did that I can assure him that I would be very happy to vote in favour of such a bill.


Donald Stovel Macdonald: I will certainly give that suggestion consideration. I must say I am touched by the confidence implicit in the hon. member's suggestion. Probably the first step would be to wait for the omnibus

Criminal Code bill which will be coming forward, to see whether this important problem will be covered. I am looking forward to the presentation of that bill and if this matter has not been dealt with I will certainly consider the suggestion seriously, and perhaps make an effort to prepare a bill in respect of this very important matter.


Mr. S. Perry Ryan (Spadina):: Mr. Speaker, it would seem that this afternoon is the afternoon for the hon. member for Winnipeg North (Mr. Orlikow) to get his lumps, although they are not exactly sugar lumps. This hon. member has said he anticipates a new section which will deal with wire tapping in the new proposed omnibus amendments to the Criminal Code to be presented soon, and that if there is no such provision in that bill he will have a great deal to say about that lack. Surely none of us can seriously expect that there will be such a provision in this omnibus bill to be presented shortly. We are not ready yet, I submit, for the introduction of such an amendment to the Criminal Code.
Let me say first that it would be only common sense to wait for the report of the royal commission on security, which has been sitting since about November of 1966. That report should be in our possession in the not too distant future. It is extremely likely that this report will make recommendations in respect of this particular subject. The Minister of Justice (Mr. Trudeau) and the government should also have the benefit of the considered view on this whole subject by the Canadian Bar Association. We have just heard from the hon. member for Rosedale (Mr. Macdonald) that this view or opinion will not be available until at least September or October of next year.
At this time there is authority in Canada for penitentiary officials to open letters either to or from inmates. There is also authorization here to search houses and other premises when a search warrant has been obtained. It would seem therefore that a parallel authorization to use electronic eavesdropping devices in certain cases should be provided. Under certain circumstances this would be in the public interest.
As pointed out by previous speakers we have at this time a variety of devices for eavesdropping such as sugar lumps and spike mikes, and other types of electronic listening
December 15, 1967

aids. We must explore this whole field in greater detail, using the best legal and technical minds available, before making any decision as to the type of legislation we require.
It may be of interest to hon. members to consider a bill relating to wire tapping which was introduced in Congress by the attorney general of the United States in 1964. The purpose of the bill is stated as one-
-to afford a clear cut basis for the legitimate and controlled use of wire tapping by law enforcement officials.
The attorney general suggested this should be so, while expressly forbidding all other types of wire tapping.
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Speaking before the Senate subcommittee on organized crime and illicit traffic in narcotics, the attorney general said:
Section 5(b) of this bill empowers the attorney general, or an assistant attorney general specially designated by the attorney general to authorize application to a federal judge for a wiretap order.


The Acting Speaker (Mr. Tardif):: Order, please. I regret to interrupt the hon. member but the hour provided for the consideration of private members business has now expired. It being six o'clock this house stands adjourned until Monday next at two thirty o'clock in the afternoon.


[Stage Direction]
At six o'clock the house adjourned, without question put, pursuant to standing order.
[Stage Direction]
Monday, December 18, 1967