1970-10-28

ROUTINE PROCEEDINGS


Hon. Allan J. MacEachen (President of the Privy Council):: Mr. Speaker, I wish to advise the House of a slight change in the business that will be called today. As the result of an agreement with the other parties, the first items of government business to be called will be orders Nos. 12, 13, 14 and 15 for the setting up of committees. It is expected that these motions will be carried without debate.


Hon. J. A. MacLean (Malpeque):: Mr. Speaker, there have been discussions between the House Leaders on this matter. It is agreeable to this party to proceed as stated by the Government House Leader.


Mr. Frank Howard (Skeena):: Mr. Speaker, it is quite agreeable. It would be even more agreeable if the Minister of Fisheries and Forestry would put forward a motion to refer the draft agreement with the Soviet Union to the Fisheries Committee.


Mr. Speaker:: Is it agreed?


Some hon. Members:: Agreed.



NATIONAL SECURITY


Mr. David Lewis (York South):: Mr. Speaker, I wish to ask for the unanimous consent of the House to move a motion under Standing Order 43 on a matter of urgent and pressing necessity. A brief explanation for this request is as follows: During the debate on the motion of the Prime Minister (Mr. Trudeau) to approve the proclamation of the War Measures Act and the Order in Council made under it, ministers of the Crown referred to alleged information in the possession of the government which the Prime Minister has so far refused to divulge to the House and to the people of Canada.
[DOT] (2:10 p.m.)
In recent days there have been rumours allegedly originating with persons in high places in Ottawa respecting the possible replacement of the Bourassa government of Quebec by a provisional government, rumours
which the Prime Minister has refused either to confirm or deny. The result is widespread confusion about a crucial matter affecting our democratic institutions, and speculation about many well-known Canadians whose reputation is thereby damaged.
I therefore move, seconded by the hon. member for Winnipeg North Centre (Mr. Knowles):
That the matter of the secret information to which ministers of the Crown referred during the debate on Friday, October 16, and the matter of the rumours regarding a possible replacement of the Bourassa government of Quebec by a provisional government, be referred to the Standing Committee on Justice and Legal Affairs for a full and thorough inquiry and to report thereon to this House.


Mr. Speaker:: As hon. members know, unanimous consent is required before such a motion can be moved.


Some hon. Members:: Agreed.


Some hon. Members:: No.


Mr. Speaker:: There is no unanimity.



QUESTIONS ON THE ORDER PAPER

[Stage Direction]
(Questions answered orally are indicated by an asterisk).

Mr. Rowland: 1. What was the total number of persons accepted for the Canadian Armed Forces regular officers training plan in each year 1967, 1968, 1969 and 1970?
2 By province, how many candidates were accepted for each year?
3. For each year, how many of the successful applicants were (a) bilingual (b) indicated that English was their primary official language (c) indicated that French was their primary official language?
Hon.	Donald S.	Macdonald	(Minister of	National
efence)	[DOT]			
1.	1967	1968	1969	1970554	649	552	4812.	1967	1968	1969	1970Nfld.	3	7	10	5P.E.I.	6	6	2	4N.S.	34	41	22	15N.B.	30	21	11	8Que.	156	171	169	144Ont.	169	232	211	174Man.	26	36	23	32Sask.	30	34	30	39Alta.	43	53	46	46B.C.	53	39	23	14Other	4	9	5	-
646

October 28, 1970
Questions
3. (a) Applicants' ability in a second language is not measured at time of enrolment.
1967	1968	1969	1970434	526	419	3781967	1968	1969	1970120	123	133	103


CPR PENSION PLAN
Mr. Skoberg: 1.	What is the total amount of unfunded liability in the Canadian Pacific Railways' Pension Plan?
2.	Has the Canadian Pacific Railways' Pension Plan been registered under the Pension Benefits Standards Act and, if not, for what reason?


Hon. E. J. Benson (Minister of Finance):: 1. It is not
considered appropriate for the Government to make pub-lice information obtained pursuant to the administration of the Pension Benefits Standards Act concerning the details of a private pension plan.
2. No. The company has claimed that the Act does not apply to its pension plan; discussions have been taking place to resolve differences of opinion and the company was given an extension of time to amend the plan to conform with requirements of the Act.


SALE OF AIRCRAFT CARRIER HMCS &quot;BONAVENTURE&quot;
Mr. Skoberg: What bids were received by Crown Assets Disposal Corporation regarding the sale of the Aircraft carrier HMCS Bonaven-ture and, in each case, what was the respective bid?


Hon. James Richardson (Minister of Supply and Services):: In so far as Crown Assets Disposal Corporation is concerned: The following is the summary of bids received by the Corporation covering the sale of the HMCS Bonaventure:
M.	W. Kennedy Ltd.
Steel Factors (724,200.00 Cdn.)
Latti S.P.A. (719,225.46 Cdn.) International Iron & Metal Co. Shipbreaking Industries Ltd.
N.	V. Intershitra (517,468.13 Cdn.) Havant
Dartmouth Salvage
Peck Iron & Metal Co. (108,229.22 Cdn.)
Kimola Pineridge Holdings
Ann Brodie
Kevin McDermid
Wiltopps (Asia) Ltd.
Shipowners & Shipbuilders

710.000.	00 U.S.
705.123.00	U.S.
601.190.00
588.686.00 507,321.70 U.S.
160.000.	00 166,000.00 106,107.08 U.S. 20,000.00
100.00
5.00
671.555.00
487.500.00


LATE BIDS
[Stage Direction]
Marine Salvage Co. Ltd.
Hua Eng Copper & Iron Establissements Van Heyghen Petmovar S.A. Panama S.P.A. Cantieri Italy Chin HO FA Steel & Iron Chi Shun Hua Steel Co. Ltd. Kenrick George
[Stage Direction]
667.000.	00
360.070.00
200.000.	00 635,000.00 612,345.60
475.890.00 1,000.00

Mr. Broadbent: For each fiscal year 1963/64 to 1969/70, what have been the expenditures under the Defence Research Board to laboratories at Suffield, Alberta and Shirley Bay, Ontario?


Hon. Donald S. Macdonald (Minister of National Defence):: The following figures represent the total expenditures (including operations, maintenance and capital expenditures) for the Defence Research Establishment Suffield (DRES) and the Defence Research Establishment Ottawa (DREO) and cover their programs of atomic, biological and chemical protective research, shock and blast research, research on power source items such as batteries, plastics and rubber technology, geophysics research, arctic research, vehicle mobility, etc., and, latterly, responsibility for DRB-funded research at the Communications Research Centre.
	DRES	DREO
1963-64	$3,152,000	$1,855,0001964-65	3,219,000	1,482,0001965-66	3,751,000	1,733,0001966-67	4,142,000	1,965,0001967-68	4,189,000	1,956,0001968-69	4,271,000	2,071,0001969-70	4,338,000	4,461,000


R.C.M.P. PENSION PLAN
Mr. Knowles (Winnipeg North Centre): 1.	How many retired Royal Canadian Mounted Police personnel are receiving pensions including their basic pensions and any supplement or supplements added thereto, of amounts within each of the following brackets: (a) less than $20.00 per month (b) $20.00 to $29.99 per month (c) $30.00 to $39.99 per month (d) $40.00 to $49.99 per month (e) $50.00 to 59.99 per month (f) 60.00 to $69.99 per month (g) $70.00 to $79.99 per month (h) $80.00 to 89.99 per month (i) 90.00 to $99.99 per month (j) 100.00 to $149.99 per month (k) $150.00 to $199.99 per month (1) $200.00 to $249.99 per month (m) $250.00 to $299.99 per month (n) $300.00 per month and over.
2.	How many widows of R.C.M.P. personnel or of retired R.C.M.P. personnel are receiving pensions, including their basic pensions and any supplement or supplements added thereto, of amounts within each of the brackets indicated in the above question?
3 What is the number of retired R.C.M.P. personnel and also the number of widows of R.C.M.P. personnel or of retired R.C.M.P. personnel presently residing in each province?
4. In respect of how many orphans of R.C.M.P. personnel are pensions being paid and what is the average amount thereof?


Hon. G. J. Mcllrailh (Solicitor General):: 1. (a) Nil;
(b) nil; (c) three; (d) two; (e) seven; (f) 11; (g) nine; (h) 15; (i) 30; (j) 238; (k) 363; (1) 388; (m) 257; (n) 1,097.
2. (a) nine; (b) 11; (c) nine; (d) 14; (e) 14; (f) 19; (g) 10; (h) 10; (i) 10; (j) 49; (k) 42; Q.) 24; (m) seven; (n) 16.

October 28, 1970

3. Province	Retired Personnel	WidowsNewfoundland	39	3Prince Edward Island	21	NilNova Scotia	193	13New Brunswick	78	7Quebec	184	8Ontario	521	63Manitoba	122	12Saskatchewan	148	8Alberta	332	28British Columbia	685	90Northwest Territories	23	1Outside Canada	74	114. One hundred and five, average $26.69.


SPECIFIC ROLES ASSIGNED TO CFB SHEARWATER
Mr. Forreslall: During the next three years, what are the specific roles assigned to CFB Shearwater?


Donald Stovel Macdonald: At the present time, and for the foreseeable future, the role of the Canadian Forces Base Shearwater is to provide base and airfield facilities for both fixed wing and rotary wing anti-submarine aircraft, as well as facilities for training and utility squadrons. Shearwater is also used as an alternate airfield for the long range Maritime patrol aircraft operating from CFBs Sum-merside and Greenwood and as a terminus for Transport Command service flights.


MARITIME COMMAND-REPLACEMENT FOR ARGUS AIRCRAFT
Mr. Forreslall: 1.	Has the government decided on the choice of equipment to replace or augment the role of the Argus Maritime Patrol aircraft and, if so, when can an announcement be expected?
2.	On the basis of present technological information, what is the anticipated (a) air-frame life of the Argus (b) engine life of the Argus (c) efficient useful life of electronic equipment?


Donald Stovel Macdonald: 1. No.
2. (a) The predicted life of the Argus airframe was 11,000 hrs. However, the airframe is a fail-safe or damage tolerant structure which makes the risk of catastrophic failure of the primary structure remote. Thus the airframe life is determined by the economics of maintenance. The manufacturer has stated that appearance of cracks in the primary structure should not occur before 15,000 hrs. At the present flying rate all Argus aircraft in the fleet will have flown 15,000 hrs or more by 1975-77. (b) There is no specified life for the Argus engine. Therefore, the engine life will be determined by the economy of maintenance and the acceptability of the operational performance of the aircraft, (c) This information is classified.
Questions


SEARCH AND RESCUE-WEST COAST
Mr. Mather: What is the present force of ships, boats and aircraft on the Pacific Coast for air-sea rescue efforts?
Hon. Donald S. Macdonald (Minister of National
Defence): Three Buffalo aircraft, three Labrador helicopter, three 95-foot cutters, three 40-foot cutters, and three life-boats are established on the Pacific Coast for primary search and rescue duties. In addition, all other Canadian Forces aircraft and Federal Government vessels in the area may be called upon for search and rescue tasks when required.


AMOUNT OF UNION DUES SUPPORTING POLITICAL PARTIES
Mr. Robinson: Does the government have statistics on the amount of union dues directly or indirectly used to support political parties and, if so, for each year 1965 to 1970 inclusive, how much has been so allotted to each political party?


Mr. J. A. Jerome (Parliameniary Secretary to President of the Privy Council):: No.


LEGISLATION TO OUTLAW PYRAMID SELLING SCHEMES
Mr. Robinson: Will the government consider the advisability of legislation to outlaw "pyramid selling" schemes of every nature and kind such as those cosmetics, household commodities, food products, supplements and land?


Hon. Ron Basford (Minister of Consumer and Corporate Affairs):: Careful attention will be given to this proposal in the preparation of amendments to the Combines Investigation Act which are presently being considered.


FINANCIAL PARTICIPATION BY GOVERNMENT IN LOTBINIERE CONSTITUENCY
Mr. Fortin: For each project to which the federal government has contributed financially since 1965 in the constituency of Lotbiniere (a) what was the nature of the project (b) what was the amount invested by the federal government in each project (c) what was the amount invested by the provincial government in each project (d) were other contributions made and, if so, by whom and what was the amount?


James Alexander Jerome: It is not feasible to provide aggregate information on expenditure disbursements or revenue collections for constituencies, counties or other comparable units. Government estimates are not prepared on this basis nor are records of expenditures kept in this way.
Information concerning expenditures could be supplied about specific projects or programs which are identified in a question. These, of course, would in some cases relate to a particular constituency or locality.
648

October 28, 1970
Motions for Papers


MOTIONS FOR PAPERS
James Alexander Jerome: Mr. Speaker, Notice of Motion No. 78 is acceptable to the government.
Motion No. 78-Mr. Skoberg:
That an Order of the House do issue for a copy of the report of the Canadian Transport Commission concerning the investigation into the mishap on the CNR Rivers Subdivision on April 28. 1968, where three employees were killed when the engine went through the bridge.


[Stage Direction]
Motion agreed to.
James Alexander Jerome: Notices of Motions Nos. 6, 45, 48, 98 and 131 are acceptable to the government subject to the usual reservations concerning confidential documents and the authorization of the governments concerned.


Mr. Speaker:: Subject to the reservations and conditions expressed by the Parliamentary Secretary, is it the pleasure of the House that Notices of Motions Nos. 6, 45, 48, 98 and 131 be deemed to have been adopted?


Some hon. Members:: Agreed.


SURVEY OF NATIVE PEOPLE EMPLOYED IN MINING, NORTHWEST TERRITORIES
[Stage Direction]
Motion No. 6-Mr. Howard (Skeena):
That an Order of the House do issue for a copy of the survey undertaken by the Department of Indian Affairs and Northern Development showing the number of native people employed in mining in the Northwest Territories as referred to by the Minister of Indian Affairs in his address in Yellowknife on November 10, 1969.
Motion agreed to.

[Stage Direction]
Motion No. 45-Mr. Orlikow:
That an Order of the House do issue for copies of all correspondence between the Government of Canada and the native people of Banks Island in the Northwest Territories regarding oil exploration.
Motion agreed to.
NEW LAND-USE REGULATIONS IN CANADA'S NORTHLAND Motion No. 48-Mr. Orlikow:
That an Order of the House do issue for a copy of all representations received by the Department of Indian Affairs and Northern Development regarding new land-use regulations in Canada's northiand.
Motion agreed to.

[Stage Direction]
Motion No. 98-Mr. Macquarrie:
That an Order of the House do issue for a copy of all speeches, reports, resolutions of the northern communications conference held at Yellowknife NWT in September, 1970. Motion agreed to

[Stage Direction]
Motion No. 131-Mr. Marshall:
That an Order of the House do issue for a copy of all memoranda, correspondence, etc., arising out of the proposed closing of the office of the Department of Veterans Affairs in London, England.
Motion agreed to.
James Alexander Jerome: Would Your Honour be good enough to call Notices of Motions Nos. 2, 22, 24, 51, 60, 77 and 114 to 130 inclusive?


REPORT ON ATTENDANCE OF INDIANS
[Stage Direction]
Motion No. 2-Mr. Howard (Skeena):
That an Order of the House do issue for a copy of the report on attitudes of Indian people based mainly on a visit to the Six Nations Reserve on July 16, 1969, submitted to the Department of Indian Affairs and Northern Development by Berger, Tisdall, Clark and Lesley Ltd., as referred to at page 6 of the quarterly report on public relations activity, June, July, August, 1969 by the said Berger, Tisdall, Clark and Lesley Ltd.
Mr. Judd Buchanan (Parliamentary Secretary to Minister of Indian Affairs and Northern Development):: Mr. Speaker, the hon. member for Skeena asked for this report during the past session. It was stated in the reply that since the writer had specifically requested that the confidentiality of the report be respected, the report should not be tabled. The government's stand on this matter has not changed since to permit the tabling of this report. I would therefore ask the hon. member to withdraw his motion.


Frank Howard: The writer of the report was paid by the government to do public relations work for the department. I think the question should be put.


Mr. Speaker:: Is the motion transferred for debate?


Frank Howard: No.


Mr. Speaker:: Is it the wish of the House that I put the question? If nobody asks that it be transferred for debate I will put the motion.


Allan Joseph MacEachen: Transfer for debate.


Mr. Speaker:: Transferred for debate.


FINANCING OF PAN-AMERICAN GAMES IN WINNIPEG
[Stage Direction]
Motion No. 22-Mr. Orlikow:
That an humble Address be presented to His Excellency praying that he will cause to be laid before this House copies of all correspondence between the Government of Canada and/or any minister or department and the City of Winnipeg, including the mayor, the city clerk and the city treasurer, since January 1, 1968, dealing with the financing of the Pan-American Games in Winnipeg.
Mr. Gaston Isabelle (Parliamentary Secretary to Minister of National Health and Welfare):: Mr. Speaker, the

October 28, 1970

mayor of Winnipeg has indicated to the Minister of National Health and Welfare (Mr. Munro) that he considered those documents as confidential and, accordingly, as not to be tabled in the House.

In view of these circumstances, the hon. member may wish to withdraw his motion.


Mr. Orlikow:: Agreed.


Mr. Speaker:: The motion is dropped.
Order discharged and motion withdrawn.


SUBMISSIONS TO MONTREAL MAIL TRANSPORT INQUIRY
[Stage Direction]
Motion No. 24-Mr. Orlikow:
That an Order of the House do issue for a copy of all memoranda, correspondence, briefs, tables and submissions presented to the Commission of Inquiry into Mail Transport in Montreal.
Mr. Barney Danson (Parliamentary Secretary to Prime Minister):: Mr. Speaker, this motion is similar to Motion No. 438 put by the hon. member last session. The stand taken by the commissioner at that time, as recorded in Hansard of April 29, 1970, at page 6407, has not changed. In view of these circumstances I hope the hon. member will agree to withdraw his motion.


David Orlikow: No, Mr. Speaker, because my stand has not changed, either.


Allan Joseph MacEachen: Transfer.


Mr. Speaker:: Transferred for debate.


REPORTS ON SOCIAL WELFARE LEGISLATION AND INCOME SECURITY
[Stage Direction]
Motion No. 51-Mr. Knowles (Winnipeg North Centre):
That an Order of the House do issue for a copy of any reports or reviews with respect to social welfare legislation and income security prepared by or under the direction of Dr. J. W. Willard, Deputy Minister of Welfare for Canada, since June 25, 1968.
Joseph Gaston Isabelle: Mr. Speaker, the documents concerning the legislation on social welfare and security of income, which have been drafted by the Deputy Minister of National Health and Welfare or under his direction, are a part of the revision of the social security plan in Canada and therefore they are only for the internal use of that department.
Therefore, I would ask the hon. member to withdraw his motion.


Mr. Knowles (Winnipeg North Centre):: I cannot agree. Let us put the question.
Motions for Papers


Allan Joseph MacEachen: Transfer for debate.


Mr. Speaker:: Transferred for debate.


REPORT OF SURVEY TEAM ON CONDITIONS SURROUNDING
[Stage Direction]
Motion No. 60-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the Report of the findings of the survey team which, under the direction of Dr. H. C. Rowsell, inspected university research laboratories across the country earlier this year and made an assessment of the conditions surrounding the use of animals for experimental purposes.
Mr. Gaston Isabelle (Parliamentary Secretary to Minister of National Health and Welfare: Mr. Speaker, may I refer the hon. member to the reply given to the Notice of Motion for the Production of Papers No. 255 in the last session. The hon. member was advised that the Canadian Council on Animal Care, under the direction of Dr. H. C. Rowsell, was set up by the Association of Universities and Colleges of Canada. It receives support from the National Research Council and the Medical Research Council-
Mr. Speaker:: Order. I have to interrupt the Parliamentary Secretary. He should indicate briefly whether he is prepared to have the document tabled; he cannot make a speech.


Joseph Gaston Isabelle: Mr. Speaker, the report prepared by the Canadian Council on Animal Care is confidential. For this reason my minister regrets that he is unable to produce the information requested and would ask the hon. member to withdraw her motion.


Mrs. Maclnnis:: Mr. Speaker, I am afraid I am at a loss to understand why a report about animals used for experimentation is confidential.


Mr. Speaker:: Order. Obviously when we have lengthy explanations given by Parliamentary Secretaries in response to motions for the production of documents, it is natural that hon. members who have put the motions want to explain why they feel the document should be produced. I think this indicates the virtue of having very brief explanations, if indeed they are required at all.


Allan Joseph MacEachen: Transfer for debate.


Mr. Speaker:: Transferred for debate.


CORRESPONDENCE RELATING TO POLLUTION CONTROL
[Stage Direction]
Motion No. 77-Mr. Skoberg:
That an Order of the House do issue for a copy of all correspondence exchanged from January, 1968 to March 1970, dealing with pollution control between the Department of Energy, Mines and Resources and the following Companies: Proctor and Gamble Ltd., Lever Bros. Ltd. and The Colgate-Palmolive Company Ltd.
James Alexander Jerome: Mr. Speaker, this motion is the same as motion No. 396 of the previous session which

October 28, 1970
Motions for Papers
was made an order for return on October 7, 1970, following which all relevant correspondence was tabled on October 14, 1970. In those circumstances I wonder whether the hon. member would withdraw his motion?


Mr. Skoberg:: Mr. Speaker, I will look at this correspondence and see whether or not I will withdraw the motion.


Mr. Speaker:: Motion stands.


STUDY ON &quot;PROJET DE RECHERCHE AUPRES DU MILIEU DEFAVORISE URBAIN QUEBECOIS&quot; 1969-70
[Stage Direction]
Motion No. 114-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by Le Centre de Planification Familiale, Montreal, in the fiscal year 1969-70 funded by the Department of National Health and Welfare on "Projet de recherche aupres du milieu defavorise urbain Quebecois".
Joseph Gaston Isabelle: Mr. Speaker, it is an understanding in the scientific community that details pertaining to specific research projects are a matter of confidence between the researcher and the donor organization. For this reason the Department of National Health and Welfare does not make public the findings of researchers.
As the hon. member has already been provided with the list of addresses of the researchers concerned, she may wish to withdraw her motion.


Donald MacInnis: Mr. Speaker, I believe that since the Canadian public has financed these reports it has the right to see what it paid for.


Allan Joseph MacEachen: Transfer for debate.


Mr. Speaker:: Transferred for debate.


STUDY ON &quot;PROJET DE RECHERCHE AUPRES DU MILIEU DEFAVORISE URBAIN QUEBECOIS&quot;
[Stage Direction]
Motion No. 115-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by Le Centre de Planification Familiale, Montreal, in the fiscal year 1970-71 funded by the Department of National Health and Welfare on "Projet de recherche aupres du milieu defavorise urbain Quebecois".
Joseph Gaston Isabelle: Mr. Speaker,
as notice of motion No. 115 applies to the document already referred to in notice No. 114, and for the same reasons, I would ask the hon. member for Vancouver-Kingsway (Mrs. Maclnnis) to withdraw her motion.


Donald MacInnis: Mr. Speaker, my reply is exactly the same.


Allan Joseph MacEachen: Transfer for debate.


Mr. Speaker:: Transferred for debate.


STUDY OF THE EFFECT OF ORAL CONTRACEPTIVES ON FOLATE METABOLISM AS RELATED TO THE OUTCOME OF SUBSEQUENT PREGNANCIES
[Stage Direction]
Motion No. 116-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by St. Boniface General Hospital in the fiscal year 1969-70 funded by the Department of National Health and Welfare on "The Effect of Oral Contraceptives on Folate Metabolism as Related to the Outcome of Subsequent Pregnancies".
Joseph Gaston Isabelle: This notice of motion is similar to the others, Mr. Speaker, and for the same reasons, I shall ask the hon. member to withdraw her motion.
Mr. Speaker, with leave of the House, I would ask that notices of Motions Nos. 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129 and 130 be withdrawn for the same reasons which I gave for the preceding motions.


Donald MacInnis: Mr. Speaker, would you put the
question?


Allan Joseph MacEachen: Transfer for debate.


Mr. Speaker:: Transferred for debate.


STUDY OF THE EFFECT OF OESTROGEN-PROGESTIN COMPOUNDS ON PLATELET SURFACE REACTIONS IN WOMEN OF CHILDBEARING AGE 1968-69
[Stage Direction]
Motion No. 117-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken in the fiscal year 1968-69 funded by the Department of National Health and Welfare on "The Effect of Oestrogen-progestin Compounds on Platelet Surface Reactions in Women of Childbearing Age".
Transferred for debate.

[Stage Direction]
Motion No. 118-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken in the fiscal year 1969-70 funded by the Department of National Health and Welfare on "The Effect of Oestrogen-progestin Compounds on Platelet Surface Reactions in Women of Childbearing Age".
Transferred for debate.

[Stage Direction]
Motion No. 119-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the Jewish General and Montreal General Hospitals in the fiscal year 1968-69 funded by the Department of National Health and Welfare on the "Physiological and Psychological Aspects of Oral Contraceptive Medication".
Transferred for debate.
October 28, 1970

[Stage Direction]
Motion No. 120-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the Jewish General and Montreal General Hospitals in the fiscal year 1969-70 funded by the Department of National Health and Welfare on the "Physiological and Psychological Aspects of Oral Contraceptive Medication".
Transferred for debate.

[Stage Direction]
Motion No. 121-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study "Causes et consequences demographiques economiques et sociales de la pratique de la methode thermique de regulation des nais-sances" funded by the Department of National Health and Welfare in the fiscal year 1969-70.
Transferred for debate.

[Stage Direction]
Motion No. 122-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the Montreal Children's Hospital (McGill) in the fiscal year 1966-67 funded by the Department of National Health and Welfare on the "Evaluation of Results of Genetic Counselling".
Transferred for debate.

[Stage Direction]
Motion No. 123-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the Montreal Children's Hospital (McGill) in the fiscal year 1967-68 funded by the Department of National Health and Welfare on the "Evaluation of Results of Genetic Counselling".
Transferred for debate.

[Stage Direction]
Motion No. 124-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the Montreal Children's Hospital (McGill) in the fiscal year 1968-68 funded by the Department of National Health and Welfare on the "Evaluation of Results of Genetic Counselling".
Transferred for debate.

[Stage Direction]
Motion No. 125-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the Montreal Children's Hospital (McGill) in the fiscal year 1969-70 funded by the Department of National Health and Welfare on the "Evaluation of Results of Genetic Counselling".
Transferred for debate.
Motions for Papers

[Stage Direction]
1967-	68
Motion No. 126-Mrs. Maclnnis:
That an Order of the House do issue for a copy of a study undertaken by Toronto General Hospital (University of Toronto) in the fiscal year 1967-68 on "An Experiment in Community Health Care: The Evaluation of Voluntary Family Planning (a) the need (b) the desire; (c) the effect", funded by the Department of National Health and Welfare.
Transferred for debate.

[Stage Direction]
1968-	69
Motion No. 127-Mrs. Maclnnis:
That an Order of the House do issue for a copy of a study undertaken by Toronto General Hospital (University of Toronto) in the fiscal year 1968-69 on "An Experiment in Community Health Care: The Evaluation of Voluntary Family Planning (a) the need; (b) the desire; (c) the effect", funded by the Department of National Health and Welfare.
Transferred for debate.

[Stage Direction]
Motion No. 128-Mrs. Maclnnis:
That an Order of the House do issue for a copy of a study undertaken by Toronto General Hospital (University of Toronto) in the fiscal year 1969-70 on "An Experiment in Community Health Care: The Evaluation of Voluntary Family Planning (a) the need; (b) the desire; (c) the effect", funded by the Department of National Health and Welfare.
Transferred for debate.

[Stage Direction]
Motion No. 129-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the University of British Columbia in the fiscal year 1968-69 funded by the Department of National Health and Welfare on "Social and Medical Factors of Women Attending Vancouver Family Planning Clinic and a Group of Women not Attending a Family Planning Clinic in two areas of the City of Vancouver".
Transferred for debate.

[Stage Direction]
Motion No. 130-Mrs. Maclnnis:
That an Order of the House do issue for a copy of the study undertaken by the University of British Columbia in the fiscal year 1969-70 funded by the Department of National Health and Welfare on "Social and Medical Factors of Women Attending Vancouver Family Planning Clinic and a Group of Women not Attending a Family Planning Clinic in two areas of the City of Vancouver".
Transferred for debate.
[DOT] (2:20 n.m.)
James Alexander Jerome: Mr. Speaker, I would ask that the other notices of motions be allowed to stand.


Mr. Speaker:: Are the other notices of motions allowed to stand?


Some hon. Members:: Agreed.

October 28, 1970
Inquiries of the Ministry



ORAL QUESTION PERIOD


Hon. Robert L. Stanfield (Leader of the Opposition):: Mr. Speaker, I have a question for the Minister of Justice who was here a moment ago and who I hoped would be able to give the information I sought from the Prime Minister yesterday. I should like to know whether the Prime Minister, the Solicitor General or the Minister of Justice can inform the House if any charges have been laid against any of the nearly 400 persons arrested under the War Measures Act regulations for any offence created by these regulations such as being a member of the FLQ? Have any charges been laid and, if so, how many?


George James McIlraith: Mr. Speaker, it is my understanding that the Minister of Justice will be in the House in a moment or two and can answer the question.
Mr. Fair weather: That is very good of him.



TERRORISM IN QUEBEC-MEASURES TO IMPROVE ECONOMIC SITUATION

Hon. Martial Asselin (Charlevoix):: Mr. Speaker, I wish to ask the Prime Minister a question.
Since the province of Quebec is in a difficult economic situation on account of recent events, is the government considering the implementation of emergency measures in order to help the government of Quebec to bring the situation back to normal?


Right Hon. P. E. Trudeau (Prime Minister):: Mr. Speaker, several weeks ago we announced special measures to try and correct this situation. Perhaps there will be more.
I wish simply to remind the House that the government's potential role in re-activating the economy is always relatively minor. Private enterprise, all investors and corporations must continue to co-operate, and this requires a peaceful and progressive climate.


Martial Asselin: Mr. Speaker, I should like to ask a supplementary question.
Can the Prime Minister tell us if, since last week's events, the Quebec government has called the attention of the federal government to urgent economic measures which should be taken jointly so as to improve the difficult economic situation now prevailing in Quebec?


Pierre Elliott Trudeau: Mr. Speaker, representations have certainly been made in that connection and we have also made some to the Quebec government.
Let us not forget, for instance, that under the development program for the Gaspe peninsula, the federal government, as pointed out so well by the hon. member for Matane (Mr. De Bane) this summer, is ready to contribute over $250 million. That was done on the condition, of course, that the province of Quebec carry out certain projects. It is not our fault if the previous government 
has not done so. I hope that the present one will be successful in that regard.



CHARGES LAID UNDER WAR MEASURES ACT OR CRIMINAL CODE-DETENTIONS BEYOND SEVEN DAYS

Robert Lorne Stanfield: Mr. Speaker, I should like to ask the Minister of Justice this question. Of the nearly 400 persons arrested under the War Measures Act regulations, how many have been charged with an offence created by those regulations such as the offence of being a member of the FLQ, or some other offence created by those regulations?


Hon. John N. Turner (Minister of Justice):: Mr. Speaker, I apologize to the Leader of the Opposition for being out of the House when he asked his question. The information I have from the office of the Attorney General of Quebec as of midnight last night is that the number of persons arrested and detained is 397, the number released is 259, and the number of persons still detained is 138. None of the 138 has been charged with any offence to date.


Mr. Woolliams:: Good God!


Robert Lorne Stanfield: Mr. Speaker, can the Minister of Justice give any explanation why no charges have been laid against any of the nearly 400 persons arrested under the War Measures Act regulations? Is it because it has been found impractical to prefer charges in respect of offences created by the regulations?


John Napier Turner: Mr. Speaker, as the hon. member knows, I think this properly lies within the jurisdiction of the Attorney General of Quebec. I take it he will be making a statement in due course giving the explanation.


Robert Lorne Stanfield: Mr. Speaker, I wish to make sure I understood the minister correctly. Is he saying in respect of the 390-odd persons arrested under these regulations that no charges at all have been laid to date under either the War Measures Act regulations or the Criminal Code?


John Napier Turner: I am saying that in regard to the 138 persons still retained no charges have been laid under the War Measures Act or the Criminal Code.


Robert Lorne Stanfield: Can the minister advise the House how many persons are being held beyond seven days at the request of the Minister of Justice of the province of Quebec without a charge being laid?


John Napier Turner: Mr. Speaker, I asked for the details of that information yesterday and still have not obtained a reply. When I do I shall convey it to the House.


Mr. Speaker:: Does the hon. member for York South wish to ask a supplementary?


David Lewis: I do not know whether it is a supplementary or a direct question, Mr. Speaker.


Mr. Speaker:: If the hon. member is not sure, I rather suspect it is not.
October 28, 1970



INQUIRY RESPECTING JAMES CROSS

Mr. Andre Fortin (Lolbiniere):: Mr. Speaker, I have a supplementary question for the Prime Minister.
Can he tell us today if, according to the information he has, Mr. Cross, Great Britain's commercial attache in Montreal, is still alive?


Pierre Elliott Trudeau: I cannot answer that question, Mr. Speaker.



WAR MEASURES ACT-STATEMENT BY MINISTER OF JUSTICE TO PROVINCIAL ATTORNEYS GENERAL ON PURPOSE AND INTENT

Eldon Mattison Woolliams: Mr. Speaker, in view of the answer of the Minister of Justice to the Leader of the Opposition to the effect that no charges have been laid, could the Minister of Justice advise the House what the terms are of the warning he mentioned he has given the Attorneys General of the various provinces and whether his law officers are instructed to interpret the legislation for those Attorneys General?


John Napier Turner: No, Mr. Speaker. The Attorneys General of the provinces are charged with administering the regulations under the War Measures Act just as they are charged with administering the criminal law under the Criminal Code, and they rely on their own officers for that type of advice.


Eldon Mattison Woolliams: Mr. Speaker, may I follow up this question for a moment? As I understood the Minister of Justice, he mentioned that he had warned the Attorneys General of the various provinces concerning the interpretation of the legislation. What kind of warning did he give them?


John Napier Turner: I have already stated that in the House. I suggested that the purpose and intent, as I interpret the resolution of the House, is that the emergency to which the War Measures Act and its proclamation related had to do with the FLQ in Quebec and that any use of this proclamation or the regulations beyond that purpose might well be harmful. Those are the words I conveyed to the Attorneys General across the country.
Righl Hon. J. G. Diefenbaker (Prince Albert): Mr. Speaker, may I ask the Minister of Justice whether the communications with the various provinces were in writing and, if so, would he table the letter setting out this most unusual course of interpreting a resolution on the basis of a discussion in the House of Commons? I would like to see the letter in question that he wrote because it would be a modern example of an unusual nature.


John Napier Turner: Mr. Speaker, whenever I can see someone personally or arrange that one of my senior officials see someone personally I choose to do that rather than send a letter. Mr. D. H. Christie, Deputy Attorney General of Canada, on my instructions visited
Inquiries of the Ministry
the four western provinces and visited the Deputy Attorney General of each of these four western provinces. He met personally the Attorney General of the right hon. gentleman's province of Saskatchewan and the Attorney General of the province of Alberta. On his return he went to the four Atlantic provinces where he was able to communicate our feelings about the War Measures Act and ascertain their feelings about the type of legislation we should introduce in the House to replace the proclamation by some type of permanent legislation. We have been in touch in the same way personally with Attorneys General of Ontario and Quebec. I know the right hon. gentleman believes in this type of personal communication and this is the type that I have used.


Mr. Diefenbaker:: Personal communication is designed to cover up the government's position.


Mr. Speaker:: Order, please. Has the right hon. gentleman a supplementary question?


John George Diefenbaker: Mr. Speaker, I again mention that these general observations made by ministers are bound to result in answers being made.


Some hon. Members:: Question!


John George Diefenbaker: When there are general observations made such as we have just witnessed, I ask Your Honour to call some of the ministers of the Crown to order.


Mr. Speaker:: Order, please. I again have to ask the right hon. gentleman whether he wishes to ask a supplementary question.


John George Diefenbaker: Mr. Speaker, I am pressing that point, with great respect to you. These ministers are following the course from time to time of making gratuitous observations and then Your Honour says that we cannot answer them. I am simply raising my objection thereto. Now I will ask my question-


Mr. Speaker:: Order, please. I have to bring to the attention of hon. members that there are limitations to the question period and that we should try to get on. I have invited the right hon. gentleman to ask his supplementary question and I have noted his comments with attention, care and sympathy.


John George Diefenbaker: Mr. Speaker, thank you very much. Now, I ask the minister, is it not a fact-


Some hon. Members:: Oh, oh!


John George Diefenbaker: These hon. gentlemen object to anything being discussed as a fact in this House. Is it not a fact that in the regulations that have been drawn up there is not one line or one word that indicates that the Attorneys General of the several provinces shall have other than perfect freedom in interpreting the meaning of what has been drawn up by the minister and those associated with him?


John Napier Turner: Mr. Speaker, I have never contested that freedom. I suggested to the Attorneys General what the view of the government was with

October 28, 1970
Inquiries of the Ministry
reference to those regulations. The right hon. gentleman is perfectly right; they are free to interpret these regulations according to the advice given them by their own law officers.


Mr. Speaker:: Order, please.


John George Diefenbaker: May I ask this-


Mr. Speaker:: Order, please. There seems to be agreement between the right hon. gentleman and the minister. I will take advantage of the situation to call on the hon. member for York South.



INFORMATION LEADING TO INVOKING OF WAR MEASURES ACT

David Lewis: Mr. Speaker, I should have claimed that mine was a supplementary question and I now regret not having done so. I wish to address my question to the right hon. Prime Minister. It arises from a statement in the letter from the premier of Quebec dated October 16 and printed as an appendix to Hansard of Friday, October 16. In that letter the premier of Quebec said:
According to the information we have and which is available to you, we are facing a concerted effort to intimidate and overthrow the government and the democratic institutions of this province-
I wish to ask the Prime Minister whether the information which Mr. Bourassa says was available to him on October 16 contained information in addition to the information which he has made public and particularly whether that information contained any reference to a possible replacement of the Bourassa government by an alleged provisional government?


Pierre Elliott Trudeau: Mr. Speaker, I have given to the House repeatedly the reasons which motivated our action. I have also said that there were other bits of information.


An hon. Member:: Bits, bits!


Pierre Elliott Trudeau: There were also rumours which were circulating. I said to the House that the action we took was substantiated by the three points that I have repeated to the House at least two or three times. I no not think I can go beyond that today. I would not deny that we were not aware of rumours which were circulating or of other types of information which may or not be substantiated. I am just saying that we acted on the information which is known to the House, which is known to Premier Bourassa, which is known to Mr. Drapeau and is known to ourselves as well as to all members.


David Lewis: There was a phrase in the Prime Minister's statement that they had information which may or may not have been substantiated. I believe that is what I heard him say. May I ask the Prime Minister whether such information had anything at all to do with the decision to invoke the War Measures Act or whether only the information which has been made public was the basis for the invocation and, second, whether this House

and the people of Canada may expect to have that additional information at any time within the next week or so when we are likely to discuss the new bill which the Minister of Justice said he would introduce in a few days?


Pierre Elliott Trudeau: I have answered repeatedly, Mr. Speaker, and I repeat again, that the information we had is available to everyone. It is a matter of a judgment made by the government of Quebec, the administration of Montreal and ourselves that there was an apprehended insurrection. This was based on knowledge of the facts that I have recited to the House, on knowledge of the facts in Quebec as they exist today and as known to anyone who knows about the province of Quebec.


Mr. Speaker:: Order. I will recognize the hon. member for York South on a supplementary question and then go to the hon. member for Temiscamingue.


David Lewis: Mr. Speaker, I wish to address this question to the right hon. Prime Minister. I appreciate that the War Measures Act is worded in such a way that the mere declaration by the government that there is an apprehended insurrection makes it so, but I want to ask the Prime Minister whether the information he has given us is all the information on which he acted or did he act on any other information which he has not disclosed to us?


Pierre Elliott Trudeau: Mr. Speaker, I acted on the information that I have been accumulating since I was three years old.


Eldon Mattison Woolliams: It took you a long time!


Mr. Speaker:: Order. I believe that the hon. member for York South is rising on a point of order.


David Lewis: I am, Mr. Speaker. Like all hon. members in this House, I am always touched by the kind of reply the Prime Minister gives on important matters. I appreciate that he is a genius but that he was a genius at three years old I did not know.


Mr. Speaker:: Order, please. May we have order, please. I believe the hon. member for York South was seeking the floor for the purpose of raising a point of order and I am wondering if this is what he wants to do.


David Lewis: I have to leave the interpretation of that to Your Honour but I say to you, Sir, that when the Prime Minister is asked a question about a matter which is of great concern to all Canada for reasons that affect the War Measures Act and reasons which he says affect the future of democracy in Canada, an answer referring to information he has had since he was three years old is the kind of flighty irrelevant answer that makes his position-


Some hon. Members:: Oh, oh!


Some hon. Members:: Hear, hear!


Mr. Speaker:: Order. That is obviously not a point of order and I have to make a ruling. I do not know
October 28, 1970

whether the right hon. Prime Minister wishes to rise on the same point of order or has his own, but certainly I have to rule on this one now and say it is not a point of order.


Pierre Elliott Trudeau: It was pretty much the same point of order but I might try to change it a little bit, Mr. Speaker.


An hon. Member:: Sit down!


Pierre Elliott Trudeau: The hon. member has been asking me repeatedly if we acted on any other information. I told him we acted on information which I put before the House and which I have repeatedly put to the hon. member and to the rest of the House. He asked if I had any other information on which I acted. Mr. Speaker, none that is relevant to this question. I have, I repeat, accumulated information for many, many years, but I do not expect that the members of this House wish me to recite to them everything I have learned since I was, as I say, three years old.


An hon. Member:: You haven't any information.



WAR MEASURES ACT-REQUEST BY QUEBEC TO CONTINUE APPLICATION

Mr. Real Caouette (Temiscamingue):: Mr. Speaker, I wish to address a supplementary question to the Prime Minister.
Has the government of the province of Quebec requested the federal government to maintain the emergency measures now in force until all the FLQ cells have been dismantled and Mr. Laporte's murderers and Mr. Cross's kidnappers have been captured?


Pierre Elliott Trudeau: I do not
believe that any request has been made in such specific terms, Mr. Speaker, but I must say that discussions are under way between the authorities of the province of Quebec and ourselves on the specific question of determining for what period of time in their estimation it will be necessary to maintain this special legislation. To my knowledge, this question has not yet been solved. It is to a large extent a matter of police requirements, as interpreted by the people's representatives, the politicians.



WAR MEASURES ACT-STATUS OF THOSE LIBERATED

Mr. Pierre De Bane (Maiane):: Mr. Speaker, I should like to put a supplementary question to the Prime Minister.
Could he favourably consider the possibility of making a statement to defend those who were freed following their arrest, so that they will understand that the temporary restriction of their freedom was necessary to cure an evil, but that they must not be ostracized by the community in which they are living solely because they were detained several hours?
Inquiries of the Ministry


Pierre Elliott Trudeau: Mr. Speaker, I wonder if I can give a satisfactory answer to the hon. member, but I think that it is now sufficient to say that surely among those arrested, under special legislation the enforcement of which was necessary, as stated by the hon. member, to cure an evil, there were some perfectly innocent and honourable people, and I hope that the fact that they were arrested will not be held against them nor against those who arrested them in good faith.
Beyond that, of course, I can only repeat what the Minister of Justice stated, namely that charges will be laid against those who are deemed guilty of reprehensible action, if there is sufficient evidence.



ADOPTION OF ADDITIONAL MEASURES TO FIND JAMES CROSS

André-Gilles Fortin: Mr. Speaker, I would like to ask a supplementary question.
Could the Prime Minister tell us whether talks are now going on between the federal government and the Quebec government about the taking of additional measures considering the long period of time that Mr. Cross has been held, so that he could be found as soon as possible?


Pierre Elliott Trudeau: The whole question of delays has naturally been discussed between the governments and this is included in the facts the governments and the House will hear when we introduce the legislation aimed at replacing the one that is now in effect.


André-Gilles Fortin: Mr. Speaker, I have another supplementary question.
Could the Prime Minister indicate if, when tabling the special bill on these measures, he is planning to bring the House up to date on this matter?


Pierre Elliott Trudeau: Mr. Speaker, there is no doubt that someone on the government side, the Minister of Justice or myself perhaps, will give a full explanation on this matter and, when certain delays are incorporated into the bill, we shall have to explain to the House why we feel they are necessary.



WAR MEASURES ACT-DISCUSSIONS BETWEEN FEDERAL AND QUEBEC GOVERNMENTS AND MONTREAL AUTHORITIES BEFORE INVOCATION

Hon. Marcel Lambert (Edmonton West):: Mr. Speaker, in light of the Prime Minister's insistence upon the importance of the requests of the government of the province of Quebec and of the city of Montreal, could he advise the House what discussions took place between authorities of the federal government and of the two other governments immediately prior to the invocation of the War Measures Act, and were the two letters in question, which coincidentally arrived in Ottawa-


Pierre Elliott Trudeau: The two what?

October 28, 1970
Inquiries of the Ministry


Marcel Joseph Aimé Lambert: The two letters in question which coincidentally or concurrently arrived in Ottawa-in any way prompted by a request from the federal government for such letters?


Pierre Elliott Trudeau: Yes, there had been a great deal of consultation between the three levels of government in the days preceding the proclamation of the War Measures Act, and the government of Quebec, the administration in Montreal and our own government were very much concerned with the question of whether or not it would be necessary to bring new criminal powers to bear for the administration of justice in the province of Quebec. I believe it is fair to say all governments were reluctant to do so, but that the date was one which was determined by the date on those letters. It was a decision of the province of Quebec to choose that particular time and to send us the letter at that particular time. When we received it, we decided to act.


Marcel Joseph Aimé Lambert: Was there any suggestion by the federal government that the letters should be sent to the government of Canada asking it to act, since the two letters seem to have arrived at about the same time?


Pierre Elliott Trudeau: That is very understandable, Mr. Speaker, since-I repeat-there was constant consultation between the two governments and the city of Montreal. There was, I repeat, a reluctance on the part of all governments, and particularly on our part, to invoke these special measures, but there was a point in time where this crisis did build up, and where the facts that I have repeated to this House became even more important. The dangers of turmoil and confusion in the province of Quebec were even greater, and it was at that point that the letters were sent and we acted.



WAR MEASURES ACT-RIGHT TO COUNSEL AFTER ARREST

Mr. Speaker:: Does the hon. member from Lafontaine wish to ask a supplementary question?


Mr.   Georges-C. Lachance@Lafontaine: Yes, Mr. Speaker, I should like to direct a supplementary to the Prime Minister.
I would ask him if, under the War Measures Act and the special regulations, the right of an individual arrested or jailed to be represented by counsel, as soon as possible after his arrest, has been suspended?


David Lewis: The answer is yes.


John Napier Turner: The answer is yes, Mr. Speaker, even though the hon. member is asking for a legal opinion, but I was forestalled by the hon. member for York South.



APPREHENDED INSURRECTION-INDEPENDENT COMMISSION TO ASCERTAIN FACTS AND INFORM PUBLIC

Mr. David MacDonald (Egmonl):: Mr. Speaker, I wish to direct a supplementary question to the Prime Minister. In view of the continuing concern in the country for a full and complete statement on the nature of the apprehended insurrection, are the Prime Minister and his government giving consideration to the establishment of an independent commission that would be able to ascertain the facts related to this apprehended insurrection on an objective basis and present them to the public in such a way as to make all the facts clear to them?


Pierre Elliott Trudeau: Mr. Speaker, the answer is no. I repeat for the umpteenth time that the facts on which we acted are known to the people. If the politicians of distant provinces are not aware of them, perhaps they should ask their colleagues in the province of Quebec to explain them.


Some hon. Members:: Hear, hear!


David Samuel Horne MacDonald: Mr. Speaker, I am not sure to whom the Prime Minister was referring in his answer. I directed the question to him because there seems to be some confusion within his own cabinet with respect to this information.


Mr. Speaker:: Order, please.


David Réal Caouette: Mr. Speaker, I have a supplementary I would like to ask the Prime Minister.
Is he aware of Rene Levesque's Hallucination program and does he intend to take it into consideration?


Pierre Elliott Trudeau: I never heard of it, Mr. Speaker.



WAR MEASURES ACT-LEGALITY OF FINGERPRINTING OF THOSE ARRESTED

Mr. Andrew Brewin (Greenwood):: Mr. Speaker, my supplementary was addressed to the Parliamentary Secretary to the Minister of Justice yesterday by way of notice. Since those who were arrested under the War Measures Act appear to have been fingerprinted and photographed and none of them has been charged with any offence, has the minister called to the attention of the authorities in Quebec the fact that there is no justification for such fingerprinting under the Identification of Criminals Act unless charges are laid?


John Napier Turner: Mr. Speaker, the words in that statute speak for themselves, and the hon. member's submission has been transmitted.

October 28, 1970



QUEBEC STATEMENT ON ALLEGED PLOT TO ESTABLISH PROVISIONAL GOVERNMENT

Mr. Rene Matte (Champlain):: Mr. Speaker, I wish to ask the Prime Minister a question.
In this morning's Le Devoir, Mr. Claude Ryan directly accuses the Prime Minister and his government of making up the story of a conspiracy to overthrow Mr. Bourassa and replace him with an interim government.
Is it the intention of the Prime Minister to make a specific statement in connection with this conspiracy?


Pierre Elliott Trudeau: Mr. Speaker, by an extraordinary coincidence, I was just reading this story when the question was asked.
Mr. Ryan says the government panicked. I see that he himself, in his article, refers to "errand boys" and "top level sources". For Mr. Ryan to speak English is evidence enough that he himself is feeling panic.


Some hon. Members:: Hear, hear.


Pierre Elliott Trudeau: I only add, Mr. Speaker, that this same journalist is urging the other journalists to identify the "top level sources" which gave them the information. I would be delighted if the journalists were to identify the "top level sources" on which they always base their false reports, but I am surprised to see that it is a journalist who is asking other journalists to disclose their sources, and I am delighted about that.
* # *



INDUSTRY


Donald MacInnis: Mr. Speaker, on Friday last I directed a question to the Prime Minister which he took as notice. At that time I asked the Prime Minister whether, prior to any government financial settlement with the shareholders of DOSCO, the matter would be brought before the House for approval and whether the list of DOSCO shareholders will be made available along with the dates on which those individuals acquired their shares. I see the appropriate minister is in the House today. Could he answer that question?


Hon. Jean Marchand (Minister of Regional Economic Expansion):: Mr. Speaker, I understand that an agreement has been reached between the shareholders and the Dosco Co. As far as the possibility of submitting to the House the text of that agreement is concerned, I am in touch with the Department of Justice in order to determine whether that could be done at present.


Donald MacInnis: On a point of order, Mr. Speaker, one wonders whether Trudeaumania has changed to
Inquiries of the Ministry
Trudeauphobia. Since the Prime Minister indicated that the appropriate minister would handle this question, why has the answer not been given by the Minister of Justice who is responsible for this transfer of shares?


Mr. Speaker:: Order. The hon. member for Humber-St. George's-St. Barbe.


Donald MacInnis: Mr. Speaker, I raise a further point of order. Because of the roster system introduced by the Prime Minister into the House, we are required to wait for an answer until the appropriate minister is in the House. When they show up, when the two ministers are here and the wrong one answers, I think it is about time the roster system was straightened out.


Mr. Speaker:: Order, please.



VETERANS AFFAIRS


Mr. Jack Marshall (Humber-St. George's-Si. Barbe):: Mr. Speaker, may I address a question to the Prime Minister. As a result of the expression of unanimity shown in the House yesterday in supporting the need for increases to veterans, will the right hon. gentleman now act to introduce legislation on veterans pensions and social security to relieve the economic plight of disabled veterans and other sections of society?


Some hon. Members:: Hear, hear!


Jack Marshall: Also, would he please indicate when we can expect this legislation?


Pierre Elliott Trudeau: Mr. Speaker, the Minister of Veterans Affairs stated very ably yesterday the government's position in this matter.


Mr. Hees:: He said it would take a very long time.


Jack Marshall: Since the answer of the Minister of Veterans Affairs was not very clear, would the Prime Minister assure the House that this legislation will be given the highest degree of priority in view of the list of legislation now before the House?



FINANCE


Mr. Max Saltsman (Waterloo):: Mr. Speaker, may I direct a question to the Minister of Finance. Have the minister's views regarding the interest rate levels of the chartered banks been directly communicated to the banks? If so, has he received a reply? If he has not directly communicated with the banks, has he received a reply from the banks regarding the opinions that he has expressed?


Edgar John Benson: Mr. Speaker, I answered that question yesterday. I have been directly in touch with the banks and I have not received a reply.

October 28, 1970
Inquiries of the Ministry
Any reply would, of course, take the form of action rather than the form of correspondence.


Max Saltsman: In view of the statement attributed to a spokesman for the Bank of Nova Scotia indicating that a reduction in lending rates would have to be matched by a corresponding cut in interest rates paid on savings deposits, which would indicate that the banks are not prepared to reduce their profit margins, does the minister intend to bring in legislation to limit the profit margins of banks?


Edgar John Benson: No, Mr. Speaker.
He *	*



NATIONAL SECURITY


Mr. Roch La Salle (Jolielle):: Mr. Speaker, I have a question for the Prime Minister.
In view of the request of the Premier of Quebec for the services of the armed forces in that province, can the Prime Minister tell us whether Quebec will have to pay the total cost of operations scheduled up to April 1971, or whether the Department of National Defence or the federal government will agree to pay for the protection of one of its provinces, in this instance Quebec?


Pierre Elliott Trudeau: Mr. Speaker, the matter is a legal one, but if I can reply, I believe the National Defense Act provides that, when a province requests the assistance of the Armed Forces in the form of civil assistance, the expenses of the operation are borne by that province.


Roch La Salle: A supplementary question, Mr. Speaker.
May I ask the Prime Minister whether, when it was contemplated to send the armed forces to Quebec the federal government informed the Quebec authorities that they would have to bear the cost?


Pierre Elliott Trudeau: I do not think that this question has been raised, Mr. Speaker. It may have been but, as a matter of principle, the province of Quebec is supposed to know the law also.



WAR MEASURES ACT-PAYMENT BY QUEBEC FOR SERVICES OF ARMED FORCES

Robert Lorne Stanfield: Mr. Speaker, I should like to ask the Minister of Justice a question to avoid any confusion, or any more confusion.


Some hon. Members:: Hear, hear!


Pierre Elliott Trudeau: The hon. member had better sit down then.


Robert Lorne Stanfield: Could the minister indicate whether any charges have been laid against any of the persons who
were arrested under the War Measures Act regulations but have been released? He previously told the House that no charges have been laid against those still detained. Have any charges been laid against those who were arrested and have been released?


John Napier Turner: Mr. Speaker, I was going on the assumption that those who were released were released without having been charged. I will confirm that at the earliest opportunity, perhaps tomorrow, for the hon. gentleman.



WAR MEASURES ACT-VANCOUVER POLICE REFUSAL OF PERMISSION TO VIET NAM COMMITTEE TO HOLD MARCH

Mrs. Grace Maclnnis (Vancouver-Kingsway):: Mr. Speaker, I have a question for the Minister of Justice. As the police in Vancouver have refused permission to the Viet Nam Committee to hold a march and rally this Saturday, despite the fact that such permission has been granted twice a year on a Saturday for the past five years, will the minister inquire into the matter with a view to ascertaining if this refusal is an abuse of the present regulations under the War Measures Act?


John Napier Turner: No, Mr. Speaker, because the inquiry should properly be addressed to the Attorney General of British Columbia.


Donald MacInnis: Since the minister has not yet established that personal contact with the Attorney General of British Columbia-


Mr. Speaker:: Order, please. The right hon. member for Prince Albert.



WAR MEASURES ACT-RECEIPT BY PRIME MINISTER OF NAMES OF THOSE DETAINED OR RELEASED

John George Diefenbaker: Mr. Speaker, I should like to ask the Prime Minister whether or not he receives a list of the names of those who are being detained or have been detained and whether he also is informed from day to day of the names of those
released?


Pierre Elliott Trudeau: The
answer is no to both questions, Mr. Speaker.


John George Diefenbaker: Mr. Speaker, would the Prime Minister get in touch with the government of Quebec and secure this information, for I think Canadians as a whole are entitled to know more than they know at the present time?


Pierre Elliott Trudeau: There, is no need to, Mr. Speaker; this is not a presidential system. I have ministers to do that.


Some hon. Members:: Hear, hear!


An hon. Member:: Is that a change of policy?


Mr. Forreslall:: The Prime Minister makes a joke of it, as usual.

October 28, 1970


John George Diefenbaker: Mr. Speaker, I am surprised at the Prime Minister's attitude. I ask him whether or not he will get in touch with the government of Quebec in this connection. It is not a question of the presidential system, of which he, of course, has exceptional knowledge, besides having the desire to invoke it.


Pierre Elliott Trudeau: Perhaps there is a difference between my government and that of the right hon. gentleman. The difference is that I have confidence in my ministers.


Some hon. Members:: Hear, hear!


Mr. Speaker:: Order, please. There are two minutes left before the end of the question period.


John George Diefenbaker: I hope the Prime Minister will not forget what he said today.



MANPOWER


Mr. Gilbert Rondeau (Shefford):: Mr. Speaker, I should like to direct a question to the Minister of Manpower and Immigration.
Can he tell us why scholarships or retraining allowances to male and female student nurses in the eight CEGEP of the province of Quebec have recently been discontinued without their knowing it.


Mr. Speaker:: While someone is giving consideration to this question-

The chair will recognize the hon. member for Fundy-Royal.



EXTERNAL AFFAIRS


Mr.  R. Gordon L. Fairweather@Fundy-Royal: Mr. Speaker, I have a question for the Secretary of State for External Affairs. Has the minister's attention been drawn to the signing of a commercial agreement between Air Canada and South African Airlines at the very time the government has requested another Crown company, Polymer, to divert itself of investments in the Republic of South Africa? Can the minister help a simple-minded person like me to rationalize this conflict of policy?


Hon. Mitchell Sharp (Secretary of State for External Affairs):: Mr. Speaker, it has not been the policy of the Canadian government to discourage trade or any other commercial activities between South Africa and Canada.
Government Orders
[DOT] (3:00 D.m.)



GOVERNMENT ORDERS


Allan Joseph MacEachen: That a Special Committee be established to consider the question of the limitation and control of election expenses in Canada and to report from time to time its observations and opinions thereon;
That the Committee be empowered to send for persons, papers and records; to sit during sittings and adjournments of the House; to print from day to day such papers and evidence as may be ordered by the Committee; and to delegate to subcommittees any of its powers, except the power to report directly to the House;
That the evidence adduced by the Committee during the past session in relation thereto be referred to the said Committee; and
That the members of the Committee be designated at a later
date.


[Stage Direction]
Motion agreed to.
* *


Allan Joseph MacEachen: That in relation to S-22 of the Representation Commissioner Act, Statutes of Canada, 1963, c.40, the Standing Committee on Privileges and Elections be empowered to review the provisions of the Representation Commissioner Act and recommend to the House any amendments, alterations or modifications thereto that to the said Committee shall appear to be necessary or desirable, and the evidence adduced by the Committee during the past session in relation thereto be referred to the said Committee.


[Stage Direction]
Motion agreed to.
* * #


Allan Joseph MacEachen: That the question of radio and television broadcasting of the proceedings of the House and its Committees, including the legal, procedural, and technical aspects thereof, and the question of arrangements made for reporters for the electronic media in the Parliament Buildings, and the evidence adduced by the Committee during the past session in relation thereto be referred to the Standing Committee on Procedure and Organization.


[Stage Direction]
Motion agreed to.
[Stage Direction]
October 28, 1970
Federal Court


Allan Joseph MacEachen: That the question of measures to be taken to ensure the security of the galleries of the House, and the evidence adduced by the Committee during the past session in relation thereto be referred to the Standing Committee on Procedure and Organization.


[Stage Direction]
Motion agreed to.


[Stage Direction]
The House proceeded to the consideration of Bill C-172, respecting the Federal Court of Canada, as reported (with amendments) from the Standing Committee on Justice and Legal Affairs.
Mr. Speaker:: As hon. members know, a considerable number of motions have been proposed for consideration of the House at this time. The Chair has closely studied all these motions. I should indicate to the House that I have reservations concerning three motions about which I suggest there might be procedural difficulties, Nos. 1, 2 and 19. No. 1 stands in the name of the hon. member for Calgary North (Mr. Woolliams) and No. 2 is consequential thereon. This is the first one about which the Chair has reservations.
I am not sure whether the hon. member for Calgary North wants to deal with the matter from a procedural standpoint at this time. I suggest to him that this is an attempt to introduce an amendment of substance by way of an amendment to the interpretation clause of the bill. This is contrary to the practice of the House. This is my preliminary observation which I would like to put for the consideration of the hon. member for Calgary North. As 1 said, No. 2 is dependent on No. 1. If No. 1 cannot be put, then No. 2 cannot be put.
There are no objections to any of the other motions proposed by the hon. member for Calgary North or any other hon. members with the exception of No. 19 proposed by the Minister of Justice (Mr. Turner). It appears to be faulty in some respects, perhaps not substantially, but I do have some difficulties. For the moment, we might deal with No. 1 which stands in the name of the hon. member for Calgary North.


Eldon Mattison Woolliams: I think Your Honour has raised the question as to whether amendments Nos. 1 and 2 are in order procedurally. My first point, which does not put me on stronger ground, is that these amendments were made and studied at the committee level. I will briefly state the purpose of the amendments.
The federal court has been defined in the Federal Court Act. What I have attempted to do in amendments Nos. 1 and 2 is to extend the definition of federal court.
Basically, a federal court has the jurisdiction set out in the bill. The superior courts of the provinces, the trial courts, and the appeal courts would have concurrent jurisdiction. In other words, both those courts would have the same jurisdiction as the federal court, as defined in the act. A matter could, therefore be dealt with before a federal court in accordance with the terms and conditions of the jurisdiction or could be dealt with before a trial court. I submit this goes to the substance of the bill.
This matter was not raised in committee. There was a vote in committee and I point out to Your Honour that it was an even vote. The decision was made by the Chairman. The point I am now trying to explain is the jurisdiction of the court as we find it in the act. If that is not accepted, I bring to the attention of Your Honour that I am suggesting directly or indirectly, that the jurisdiction of the trial courts and courts of appeal do go to the very substance of the bill. This is a very important matter. Three or four witnesses called on this point supported this position. I, therefore, submit these amendments are in order.


Mr. Speaker:: I suggest to the hon. member that perhaps the argument he has made was submitted in a manner that is out of order from a procedural standpoint. The hon. member stated the amendment he proposes goes to the substance of the bill. I appreciate that. This is why I am worried about the matter.
I respectfully suggest to the hon. member for Calgary North (Mr. Woolliams) it is not good procedure to try to introduce a substantive amendment by way of modification of the interpretation clause. I doubt whether a precedent can be found in our practice. I have not been able to find one where a substantive amendment was effected by a modification of the interpretation clause. I have studied the matter very closely. I suggest with respect to the hon. member that I do not think I can vary the opinion I expressed when the matter was raised in the first instance.
Earlier this year I dealt with this matter at some length. I believe it was on May 21. There is a report of a ruling of the Chair in Votes and Proceedings for May 21 dealing with a similar situation. I went into the background of this matter from a procedural standpoint and at that time I reached the conclusion that this kind of amendment could not be moved. I suggest to the House that I have to reach the same conclusion at this time. There may be some other way that the amendment might have been introduced. There is still third reading stage where the matter can be debated.
The hon. member stated this proposal had been made in committee. I cannot reach the conclusion that it necessarily follows that the amendment would be in order in the House because, of course, we are not bound by rulings made in committee. The hon. member realizes this and has so indicated.
Taking all factors into consideration, I must say with great regret that I do not see how I can allow the motion to be put. No. 2 must fall on the same ground. The reservations I have about motion No. 19 might be

October 28, 1970

considered when that amendment is reached. It is my thought that perhaps this proposed motion is irrelevant in the sense that it is beyond the scope of the legislative item that it seeks to amend. I would not like to go into details of the matter at the present time, but the hon. member might give some thought to my suggestion.
[DOT] (3:10 p.m.)
There is also a difficulty relating to the recommendation. The recommendation we have received and which is part of the bill at the present time, might not cover the amendment which is proposed. Again, this difficulty, if it really exists, is one which, I think, might easily be dealt with. But we could discuss this point when motion No. 19 is reached. We now propose for the consideration of the House, motion No. 3.


Eldon Mattison Woolliams: I wonder whether I might say something at this stage on a point of order affecting a matter of procedure. The chairman of our committee on legal affairs, a committee which is, of course, subject to this House, had, at our request, called witnesses to give evidence along the very line of these amendments; in fact, 99 per cent of the time of the committee was taken up in this regard and preparations were made for very extensive arguments reflecting what the witnesses had said in relation to the amendments in question. In these circumstances I would have thought that surely, at some stage prior to this, we would have been placed in a position to discuss Your Honour's ruling, if only as a matter of courtesy to those who had spent many hours of work on the amendments without the benefit of help from a research department. Unlike the minister, who, of course, is able to rely upon a great deal of help, we had to do much of this work ourselves. In this case, it was done by a very small group. Surely, if a decision from the Chair was to be forthcoming we might have been informed by an officer of the House of Commons that these amendments were to be challenged, so that we might have been prepared to argue the matter. In this instance, with the greatest respect, Your Honour had your judgment already prepared. I was out of court before I even got in. Ought there not to be a simple procedure which would be of great assistance in connection with this new committee system, by which we could be informed beforehand?
With regard to the calling of witnesses, may I point out that on two occasions there were equal votes in committee, and each time the tie was broken by the chairman. The witnesses were called at the wish of the steering committee, not at the request of our side. Surely, after all this work, after all the printing of evidence in both languages, we should have been placed in a position where we could have had, arguments to meet the judgment which Your Honour had already prepared?
I would hope that in future movers of amendments could be notified beforehand that the Chair had taken objection to them on certain grounds. Hon. members concerned would then have an opportunity to brief themselves so as, at least, to discuss the matter intelligently with Your Honour. Alternatively, they could rise and say
Federal Court
that having considered the arguments put forward they agreed with the ruling of the Chair. I have never encountered an experience like this. We are out of court before we start. Your Honour has a written judgment already prepared.


Mr. Speaker:: Order. I suggest to the hon. member that perhaps his comments are somewhat unfair to the Chair. He knows that the Chair has to consider these questions in advance, especially when faced with a large number of motions. Even if the hon. member himself were the occupant of the chair, I am sure he would wish to give such matters advance consideration, to have some idea of the procedural position.
At the same time, I recognize the hon. member has a valid point when he suggests that he and his friends are placed in an unfortunate position when they come to the House prepared to discuss motions on which they have spent a good deal of time only to find they are ruled out of court. This is obviously unfair to the hon. member in some way. Perhaps the Chair should take into consideration the valid suggestion of the hon. member that when some doubt is felt about the validity or the acceptability of amendments from a procedural standpoint, hon. members might be given notice in advance so that they can prepare themselves accordingly. I will certainly take this under consideration and do everything that is possible to inform hon. members in advance of difficulties which may come up. We have, on occasions, followed this procedure.
Some time during last session there was one instance when a large number of motions under this standing order were proposed for the consideration of the House; hon. members more directly concerned were informed in advance that some difficulty had arisen in connection with them, and we had an opportunity to discuss these matters outside the House and then inside the House. Perhaps this is what should have been done in the present instance. I thank the hon. member for Calgary North for making his suggestion and we shall attempt to follow it as closely as we can in the future.


Eldon Mattison Woolliams: ;
That Bill C-172, an act respecting the Federal Court of Canada, be amended by striking out clause 7 on page 5 thereof and substituting the following:
"7 (1) The Rules may provide for a rota of judges to provide for a continuity of judicial availability in any centre where the volume of work or other circumstances make such an arrangement expedient."
(2) No judge shall be required under rules made under subsection (1) to remain in any centre other than the National Capital Region for a period longer than one month, unless it becomes necessary to do so to complete the hearing of a cause or matter, or unless he consents thereto.
He said: This is an amendment which would apply to clause 7. Before beginning my argument I might read the existing clause, as follows:
A judge of the court-
Which means a judge of the Federal Court with the jurisdiction as spelled out in the act
-shall reside in the National Capital Region described in the Schedule to the National Capital Act or within twenty-five miles thereof.

October 28, 1970
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The first point I wish to make is this. Under this new measure, much of the business which would normally have come before the ordinary trial courts and courts of appeal of the various provinces will now fall under the sole jurisdiction of the federal court or of the court of appeal. The minister has been gracious enough to admit this. At the present time, there is no provision under this legislation for an appeal court as such. Judges of the Exchequer Court sit for most of the time in Ottawa. All matters have to be tried in Ottawa and all applications in chambers have to be made here, usually through agents. The minister has lent an ear to representations from members of this party, members of the New Democratic Party and others and, as a result, judges nowadays do visit various centres in Canada from time to time. With that in mind, may I congratulate the minister.
[DOT] (3:20 p.m.)
I now want to refer to some of the evidence concerning the jurisdiction that the court has. During the last few weeks we have seen that Canada is made up of many regions. Every region has a different kind of environment. Every environment has to be understood by the people living in those regions. If a trial judge is able to weigh the evidence given in any matter in the light of the environment within which he was raised and understands, he can come to a more just decision.
What my amendment is asking is that judges live permanently in areas other than Ottawa, such as in Montreal, in the Maritimes, in Toronto, in Winnipeg, in Calgary, in Edmonton and in Vancouver. A court that has assumed much of the powers of the provincial courts should be accessible to the public who are seeking the remedies set out in the jurisdiction of the court. This is why I argued in the committee for concurrent jurisdiction, though I was ruled out of order.
More than that, Mr. Speaker, in view of the kind of jurisdiction the court has-and I will enlarge on this in a few moments-even one judge living in Calgary, one in Edmonton and one in Winnipeg could not possibly handle the amount of litigation that can be anticipated, since the new court has now taken over much of the role of other courts. In many of our cities there is a big backlog of cases, both civil and criminal. As far as my own home province is concerned, I do not know whether it is because of the character of the judges or our ability to get work done, there is no backlog. However, I understand that in some of the larger centres like Calgary and Toronto there is a backlog of cases.
Since I am talking about jurisdiction, let me examine what jurisdiction the court has and deal with the question why judges should sit elsewhere. I refer to page 9 of the bill, clause 17, which provides:
The Trial Division has original jurisdiction in all cases where relief is claimed against the Crown-
Pausing there, the crown is becoming a bigger body today. The state is becoming involved in more things than it did before. Since the crown is becoming involved more and more in matters that must be brought to the
federal court, the backlog of cases will be tremendous. There will be a mountain of litigation that will have to be dealt with in this city. I suggest that the president of the court will be unable to cope with the work under the new act, even when his judges visit other centres. This is because of the extensive jurisdiction given to the court. The clause continues:
-and except where otherwise provided, the Trial Division has exclusive original jurisdiction in all such cases.
Subclause (2) provides:
Without restricting the generality of subsection (1), the Trial Division has exclusive jurisdiction, except where otherwise provided, in all cases in which the land,-
I pause to point out that the Crown owns a lot of land.
-goods or money of any person are in the possession of the Crown-
To come to specific cases, let us consider the expropriation of land for national parks. There is a typical example that I should like to deal with briefly. I suggest that a judge who was born, raised and educated in western Canada would have a better appreciation of people's rights as they exist in national parks in the west. I believe I am not breaking the confidence of the Minister of Justice (Mr. Turner) when I say that he has stated that eventually he hopes, when the number of judges appointed to the court is extended, to appoint judges from western Canada on the same basis as appointments are made to the Supreme Court of Canada. I thought that this was a good idea because judges appointed from western Canada would give the court what I would call the western flavour.


John Napier Turner: The president of the court is from Saskatchewan.


Eldon Mattison Woolliams: That is true. He was the deputy minister of justice for a long time, and did become somewhat central Canada oriented. He was educated at Saskatoon university, and if I may say this through you, Mr. Speaker, the president of the court was one of the great scholars in my home province. So it is clear that the court will deal with all disputes about land in which the crown becomes involved.
I want to deal with clause 18 which provides:
The Trial Division has exclusive original jurisdiction
(a)	to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b)	to hear and determine any application or other proceeding for relief-
If the Industrial Relations Board meets in the city of Vancouver and exceeds its jurisdiction, normally the relief of the little man, if there were no appeal from the board, would be in the form of special remedy. If the board did not exercise its jurisdiction in accordance with the law, or if its decision was against natural justice, or if it did some other act which is one of the ingredients for going forward by special remedy-the prerogative

October 28, 1970

remedies that you as a lawyer, Mr. Speaker, know so well-the person aggrieved can go to a trial judge of the high court in the province and get the order by which he was aggrieved quashed. What will be the situation if the bill were passed? The court would now have exclusive jurisdiction with regard to all of the prerogative writs and special remedies in matters pertaining to tribunals and administrative bodies that are set up by the federal government.
What size of court should we have? How will western Canada be served? How will even eastern Canada be served under this kind of legislation? This question has prompted some comment by one of the witnesses who gave evidence. I do not know who called the gentleman before the committee. I did not, and it may have been the chairman who called him before the committee, but I was quite impressed with some of the evidence he gave.
I contend that this federal court is going to be all powerful for the state. It will be too costly for the average citizen of Canada to go to the court, and the judges of the court will not be accessible to the people. As a result, justice in this country will become so costly that the average citizen of Canada who feels aggrieved by decisions handed down by government tribunals will be unable to get the kind of justice we had hoped, even the kind of justice he can obtain today.
Before I quote from the evidence, may I say that I think the government has confused the jurisdiction of the court. If I might be political for a few moments during the course of my legal argument, one thing about this government is that it is just great for chaos. Whenever we have a crisis there is chaos among the government, and then they claim to solve the crisis and become our great masters. I think this is going to be the case, too, with this bill.
Let me just read to the House what this witness said. Professor Watson studied the bill and had this to say, as reported at page 7 of minutes of proceedings and evidence No. 28:
I think, frankly, that the idea of a federal court in Canada other than the Supreme Court of Canada is misconceived.
I contend that it is misconceived in the sense that there will be an insufficient number of judges of the federal court to serve the average Canadian. Litigation will pile up and the backlog will be worse than the backlog before the immigration appeal board, which I understand has or had 1,500 cases waiting to be dealt with.
[DOT] (3:30 p.m.)
I think the first question we have to ask ourselves with regard to this bill is, has the Exchequer Court been successful and, if so, in what way? I suggest there are a number of problems associated with the Exchequer Court and many of them relate to its remoteness from the people and from the lawyers. It is physically a remote court and it is unknown to the layman. I could not say it as well as this.
I doubt that most laymen know that it even exists and it is not something with which most lawyers are familiar. I think it is fair to say that it is the bailiwick of a very small group of perhaps patent and tax lawyers.
Federal Court
The point he is making there is that it will not be accessible, and because it is not accessible, it will not be known by laymen. The remedies normally now available in our high courts and the courts of appeal in the provinces will fall within the jurisdiction of this court, so the average Canadian will suffer. Professor Watson says in volume 28, as recorded at page 8:
It can really give this court only bits and pieces. When it gives it only bits and pieces there will only be a few types of people in a few situations who can resort to the court on any regular basis. Consequently it will remain the bailiwick of a small group of lawyers and this produces a real problem because some of the types of cases over which the court can have jurisdiction are the types of cases in which anybody in any small town or large city across Canada can become involved in, can be dragged into the Exchequer Court. He goes to his regular legal adviser and the legal adviser says, Exchequer Court?
This will be under the federal court. Mr. Watson continues:
I do not know too much about that. And from talking to people who are experienced in litigation, what happens? The normal pattern is that the lawyer gives it a try once, gets his fingers burnt and next time he sends a pink ribbon around the material and sends it to the small group of lawyers who practice regularly before the courts.
There, he has put his finger on the difficulty, having in mind the special remedies given to this court. That is what is going to happen. Even with judges who move across the country, with one judge here and one there, the majority of cases will have to be funnelled into Ottawa. The expenses of travel, the hiring of experts and coming here on chamber applications, will be so costly that these remedies will be out of reach of the average man. That is why I say that if we are going to have this court at all, which I am against, we should have judges- this means a duplication-appointed to sit in the large centres of Canada, wherever those centres may be.
Mr. Watson then goes on in his evidence to state:
If we look at our own history going back into English history, there are two notorious periods in English history, one when the King's Courts went out in England and deprived or fought with the local courts for jurisdiction and there were jurisdictional battles between the King's Courts and the local courts, and of course, the persons who suffered were the subjects.
He goes on to show the conflict. Unless there are judges that are accessible, and unless the members of the bar in various cities become familiar with the procedures and the jurisdiction of this court, these remedies the people should have will wither on the vine. Professor Watson then refers to analogies in the United States and Australia. My friend has talked about these. He suggests that both these countries have a federal court system, so why cannot we have a federal court system here. The fact we overlook is this. The judges of our superior court, our courts of appeal and our supreme courts, as well as the judges of this court in Canada will be appointed by the federal government, whereas in the United States and Australia the system is quite different. Again, this is a strong argument for having more judges appointed and that those judges must be placed in the various centres of Canada. Professor Watson goes on to say:
There is no sort of reason other than a political reason for establishing the court or continuing the Exchequer Court. But

October 28, 1970
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there Is at least one functional argument, it seems to me, and that is the concept that advantages can be gained for the populace, for the people through having a court which is specialized in its functions, and this, of course, has been one of the arguments in favour of the Exchequer Court-
Then, he goes on to say this, and he is right:
The federal government here appoints judges to the Superior Courts of the provinces-
The federal government appoints our judges in the other courts and they are familiar with the rules that govern a writ of certiorari, mandamus, prohibition and references to boards. They know whether they can quash a matter and whether it is a judicial or administrative matter. Therefore, unless this bill provides, and I ask that this be supported, not only an increase in the number of judges but permanent resident judges of the federal court in the big cities of Canada, it will mean justice out of the reach of Canadians. Professor Watson goes on to state:
Well, of course, there are certain costs that we paid for having such a bifurcated system-
He then points out the extra costs, and I have dealt with that. I want to deal with this point as it relates to judges. He states:
Looking at the new areas into which the federal court bill would take us with regard to jurisdiction of the court, who is to be the grateful beneficiary of the investiture of the new Federal Court with concurrent jurisdiction over negotiable instruments? Is it finance companies or is it to be debtors who are going to thank the federal government for having given them another forum to which to take their disputes? Or will it be either one of them who first finds himself involved in a battle, a jurisdictional battle in the court for which he will pay to litigate to find out the answer as to whether or not the court also has jurisdiction over the surrounding matters-
Here again, one of the fights we are having today, as in other countries, involves a sufficient supply of competent judges to make certain that justice is not failed. Failed justice is no justice. It is only when it is expedited you get justice. I oppose the bill and I will have something to say about it on third reading. As bad as it is, I am really shocked that the Minister of Justice (Mr. Turner), with his knowledge and the knowledge of his department, would require that judges must live in Ottawa or within 20 miles of Ottawa, even though they may move around. Professor Watson said:
I simply raise this question: Is the only answer to give this jurisdiction to a federal court? In other words, would it not be possible to draft, if there are problems-and I gather there are problems with regard to, for instance, the location of an action against a federal tribunal, the problem of the plaintiff moving from one province to another suing a federal administrative tribunal-
Some of these people are going to have something to say about this.
This is what the Canadian Labour Congress had to say:
Bill C-192 establishes a Federal Court of Canada to replace the Exchequer Court, and to include in the new Court a division to be known as the Court of Appeal.
The jurisdiction of the Court of Appeal is to be found in Section 28(1) which empowers the Court to "set aside a decision or order ... made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal

(a)	failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b)	erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c)	based its decision or order on an erroneous finding of facts that it made in a perverse or capricious manner or without due regard for the material before it."
We are particularly concerned about (1) (c) above because of its wide implications and the very real possibility that the Court of Appeal may be substituted for the relevant board of commission as the final decision making body.
Where will the Court of Appeal sit? Will it be sitting in western Canada? Will it be sitting in eastern Canada? Will it sit, say, in Calgary, Edmonton, Winnipeg or Vancouver?


John Napier Turner: Why not?


Eldon Mattison Woolliams: Well, it does not say so and I can see why the Canadian Labour Congress was concerned about this. The statement continues:
It is characteristic of both these Boards that they are representative of the parties of interest which appear before them, that they engage in a specialized function and that their value lies in the expertise which their members possess or acquire as a sine qua non of their functions. A further feature of these Boards whose importance should not be overlooked is the expectation that they will hear applications and make decisions expeditiously.
[DOT] (3:40 p.m.)
How can decisions be made expeditiously when sittings may be held once or twice a year in the large industrial centres, not only in western Canada but in eastern Canada and the Maritimes. Certainly, the judges should be stationed permanently in various places. That is why our trial courts are set up as they are. There are judges in Calgary and Edmonton, and there are county court judges in the towns and villages. Yet, under this legislation everything is to be centralized. The excuse is that a judge would be sent out here and sent out there. Then, there is the matter of the registry offices. Apparently there is to be one in Vancouver. Will there be one in all these cities, with one judge to do all the work in respect of these boards. There are over 25 different boards which I could name. I shall not take the time to do so now. I will leave that to another amendment.
On this particular amendment, I do not need, to take any more time. I ask the Minister of Justice first to consider, if he intends to force this through the House of Commons with his majority, the desirability of having more judges to take over the work of the provincial courts. Second, I would ask that those judges be stationed in all the major centres of Canada. Even then, the people in the towns and villages will suffer because it will be necessary for them to go to the various large centres in order to receive justice. Third, I would ask the Minister of Justice to look at the evidence given time and time again before the committee. Even the most favourable witnesses-lawyers-said that this is a specialized field. Very few lawyers will know how to litigate in this federal court. So, there will be specialized lawyers and specialized experts who will deny 90 per cent of the Canadians the kind of justice they already have.
October 28, 1970


John Napier Turner: Mr. Speaker, before I reply to the hon. member for Calgary North (Mr. Woolliams) I wonder if I might raise a question of privilege at the earliest opportunity accorded me. It has been drawn to my attention-I have not had an opportunity to check the blues-that when the hon. member for Lafontaine (Mr. Lachance) asked me whether the right to counsel had been suspended under the regulations of the War Measures Act, the hon. member for York South (Mr. Lewis) said "Yes". I did not hear the question too clearly and said, "Yes, the hon. member is right". I wish to make perfectly clear to the House-and I have asked my Parliamentary Secretary to inform the press gallery-that what I should have said is, no, that the right to counsel has not been suspended under the regulations and applies as in the ordinary law. I regret very much if I misled the House at the time.
Mr. Speaker, this is the first opportunity we have had at the report stage to deal with these motions. First of all, I should like to say how much I appreciate the co-operation of the hon. member for Calgary North and the hon. member for Greenwood (Mr. Brewin) in particular for allowing this bill to be brought forward. As Your Honour knows, this bill lapsed during the last session of this Parliament and, in the ordinary course of events, would have had to be re-introduced for first reading, second reading and study by the committee had it not been for the courtesy of the opposition, particularly those two members who had charge of this bill on behalf of their respective parties. I am very grateful indeed. I think it is a very good example of how co-operation in Parliament can achieve the right result without any rights being infringed.
This bill received first reading on March 2. It received a very thorough review by the Standing Committee on Justice and Legal Affairs. It received the scrutiny of a good many top legal counsel throughout the country. As a matter of fact, I sent a mimeographed letter to all 14,000 members of the Canadian Bar Association, thanks to its distribution system. The Canadian Bar Association designated a committee to review the bill. Two distinguished members of the association appeared on behalf of the association, namely Gordon Henderson, Q.C. of Ottawa and Louis Philippe De Grandpre, P.C. of Montreal. I had the opportunity to appear on a panel discussion which was televised and videotaped and will be shown to all provincial subsections of the Canadian Bar Association. This panel was held in Halifax in September, during the annual convention of the Canadian Bar.
What I am saying is that the bill has received a good deal of public scrutiny from the legal profession, from those organizations accustomed to appearing before federal boards and tribunals and from private citizens generally who are interested in the administration of justice.
What the hon. member for Calgary North is attempting to do by this amendment is to replace all of clause 7. Instead of the clause, providing for the judges to reside in Ottawa and sit by way of rota from time to time throughout the country, he would revise it and provide a rota of judges who would sit in various centres and would not be required to reside in Ottawa. This matter
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was very thoroughly canvassed in the committee. I might say also that it was very thoroughly canvassed at the Canadian Bar Association Convention in Halifax, where certain members of the law association of British Columbia were particularly interested in what answers I could give in respect of this particular aspect of the bill.
The hon. member for Calgary North has said-he admitted this and I thank him for it-that during the past two or three years there has been a great decentralization in respect of the court. The court, under the name Exchequer Court, does go out on circuit and try to handle the business of the court as it arises throughout the country. The court has also set up registry offices in some places, some of them through the co-operation of the provinces and some of them as special registry offices. It is provided by this bill that the decentralization which has brought justice closer to the people will be given statutory form.
Clause 7 (2) of the bill provides that, notwithstanding that judges must reside within 25 miles of the national capital region, the rules may provide for a rota of judges to provide for a continuity of judicial availability in any centre where the volume of work or other circumstances make such an arrangement expedient. If an appeal or interlocutory procedure should arise in any major sector of the country the court will go out to meet the litigants and justice will be administered on the scene.


Mr. Ryan:: Will or may?


John Napier Turner: There is provision for this in the statute. The answer is "will". Now, under clause 16(3), it is provided that the place of each sitting of the court of appeal shall be arranged by the chief justice to suit, as nearly as may be, the convenience of the parties. In other words, if the parties require the court of appeal of the federal court to travel to Calgary, Edmonton, Regina, Vancouver, or Ontario, or the Maritime provinces, then if the appeal is properly triable the court of appeal will travel. There was a suggestion in the committee, and the hon. member alluded to this in his speech earlier this afternoon, that there should be resident judges of this court in various parts of the country. It has been suggested there be a resident judge of the federal court seated in British Columbia, in Alberta and so on. I rejected that idea, and I believe the majority of the legal profession agree with me, because I feel it is essential that the court reside in one locality, in this case the national capital region, as does the Supreme Court of Canada itself. I think it would be very dangerous for the court and would tend to fracture it, if the court were divided into individual resident judges sitting across the country.
[DOT] (3:50 p.m.)
I remember talking to Chief Justice Warren, who was then the chief justice of the United States Supreme Court, just before he retired and he impressed upon me the necessity of ensuring that there is harmony in the court and that the court is proceeding along the same

October 28, 1970
Federal Court
judicial lines. There should not be divergence among the judges in so far as it could be avoided. Every judge brings to the court his own background-his bias if you will and his own type of legal training and temperament. However, in order to have the reasonable harmony that should be expected from a group of men involved in the same venture of administering justice in Canada, there is something to be said for the give and take of daily consultation where possible. This has proven to be a necessary ingredient in every successful court.
A judge resident in British Columbia would be out of touch with brother judges. From the point of view of a lawyer who wanted to appear before the federal court, in B.C., he would appear before the one judge on every occasion, and that would limit his accessibility to the court. I hope I have convinced members of the bar in the western provinces that it would be in their interest to have a rota of judges, not that they should go judge shopping but that they should not be caught before the same judge every time they appear on a procedural matter or on the merits of a case.
There is provision in section 10 for the appointment of deputy judges. This would provide that the president of the court, or the chief justice of the court as he will now be called, if he thinks it is in the interest of the administration of justice, to appoint a deputy judge in any province. This may be a judge of a provincial superior court who could sit as a deputy resident judge when the judge of the federal court cannot appear. It is open to the chief justice of the federal court to appoint a deputy judge in Alberta, in British Columbia and so on, if there is an emergency which has to be dealt with before a circuit judge could arrive.
I envisage that some day when the business of this court is sufficient, there might be a series of circuits of this court. There might well be a western circuit of the court and, say, an Atlantic or Maritime circuit of the court. At the moment, after looking at the statistics and from what I know of the court, I do not believe that is justified.


Sylvester Perry Ryan: Would the minister permit a question?


John Napier Turner: Yes, certainly.


Sylvester Perry Ryan: What would be wrong with providing for a situation where you would have, perhaps, a court sitting permanently in these regions?


John Napier Turner: Mr. Speaker, I think I answered that argument in what I just said, but I have not convinced the hon. member. To summarize, I believe that to co-ordinate the proper functioning of the court it is necessary to provide by statute that judges be on circuit, and to provide that there be a variety of judges available to any particular part of the country. In answer to the question specifically, in some areas of the country there is not enough business at the moment for a resident judge. There may be enough business for a resident judge in British Columbia, but that is not conclusive, and I believe at the moment that the people of British

Columbia would be better served with a rota of judges such as is provided in the bill as it now reads.


Francis Andrew Brewin: Mr. Speaker, I can state in a very few sentences that I support the amendment introduced by the hon. member for Calgary North (Mr. Woolliams). Perhaps I might be indulged as both hon. members mention-


Mr. Horner:: Mr. Speaker, I rise on a point of order.


Mr. Deputy Speaker:: The hon. member for Crowfoot on a point of order.


John (Jack) Henry Horner: Mr. Speaker, I regret very much having to do this but I want to inform you that there is not a quorum in the House. There are no committees sitting, and I think it is the duty of the government to provide the House with a quorum if they want to proceed with this legislation.


John Napier Turner: Mr. Speaker-


Mr. Depuiy Speaker:: Order, please. Will the hon. minister please resume his seat. When it is brought to the Chair's attention that there is not a quorum, it is my duty to instruct the clerk to make a count and I shall ask him to do so now.
And on the count being made, more than 20 members were declared to be present.


Mr. Deputy Speaker:: Order, please. The clerk advises me that at this moment there are 22 members in the House.


John Napier Turner: On a point of order, Mr. Speaker, I should like to draw the attention of the House to some of the Conservative members behind the curtains as well.


Mr. Deputy Speaker:: The hon. member for Greenwood.


Francis Andrew Brewin: Mr. Speaker, I was saying that I could give my reasons for speaking to the amendment very briefly and perhaps I can be allowed a few general remarks-


Mr. Bell:: On a point of order, Mr. Speaker, and so that there will not be a misunderstanding tomorrow in the press, I should like to point out that it is the responsibility of the government to keep a quorum in the House at all times.


John (Jack) Henry Horner: When they are proceeding with
legislation1-


Mr. Deputy Speaker:: Order, please. The hon. member does not have a point or order.


John Napier Turner: Mr. Speaker, on that fallacious point of order, as Members of Parliament we all have a duty to protect the quorum.


John (Jack) Henry Horner: On a point of order-
October 28, 1970


Mr. Deputy Speaker:: Order, please. Hon. members do not have a point of order and it does not accomplish anything to have repetitive speeches on a non-existent point of order.


Thomas Miller Bell: The minister started it.


Mr. Deputy Speaker:: The hon. member for Greenwood.


Francis Andrew Brewin: Mr. Speaker, in starting for the third time, I should like to indulge myself, as have the two hon. members who spoke before me, by dealing with the amendment in detail. On the whole, I think this bill does introduce important and worthwhile changes in the administration of justice so far as it affects the federal government and the federal administration. I think there are weaknesses in it, and I think that the amendments proposed should be considered seriously. I agree with the hon. member for Calgary North that the Minister of Justice (Mr. Turner) did pay careful attention to suggestions made in committee and many of them have been adopted, as we are glad to observe.
Dealing with this particular amendment, I may say that as I understand it, it is very simple. All it proposes is to strike out of section 7 of the bill the positive requirement that all judges of the court shall reside in the national capital region. I think this is an unduly restrictive and unnecessary provision, and that they should be allowed to reside wherever they can most conveniently reside to do the business of the court. The minister has made it clear that the businss of the court will be transacted in the different centres and not transacted entirely in Ottawa. This has been the tendency elsewhere and this bill would be quite unworkable if that practice is not carried out. In centres like British Columbia, for example, if there is sufficient business to keep judges busy most of the year, what is the sense of requiring them to live in Ottawa? The hon. minister says this will help their esprit de corps-


An hon. Member:: The cocktail parties.


Francis Andrew Brewin: -and will enable them to be more harmonious amongst themselves. But what is the difficulty, in these days when people can travel, of judges getting together from time to time in Ottawa if they need to have consultations or need to enlarge the harmony which should prevail amongst them?
[DOT] (4:00 p.m.)
In my view it is important that justice not only be done but that it be seen to have been done, and that it be as close to the people as possible. If that principle be adopted, I see no reason for adopting this residential straitjacket as to where judges should live. The insistence on this provision may even make it harder to get some qualified judges.
British Columbia is one of the more remote provinces, but nevertheless will be intimately concerned with the administration of this bill. Many of the subjects under its jurisdiction are particularly important to that province, and it may be that some respected judge, well qualified
Federal Court
judge, will say, "I am going to be sitting in B.C. for a large part of the year, but I will be forced to move my residence to Ottawa. I don't want that, and therefore I won't accept appointment to the court."
For these reasons, because where possible justice should be administered locally, because judges should be available locally, because the bill imposes an unnecessary restriction and in effect may disqualify some highly qualified people, I hope the minister will even now agree to reconsider this matter and not complicate the legislation with restrictive provisions about where people have to live. It may be regretted in future if this is insisted upon. The minister says that the chief justice of the Court can appoint deputy judges. Mr. Speaker, we are not talking about deputy judges. We are talking about four permanent members of the court. If the court is to be properly decentralized, there is no place for the sort of restrictive provision that the amendment seeks to strike out.


Sylvester Perry Ryan: Mr. Speaker, I should just like to add a few words in support of the member for Calgary North (Mr. Woolliams) and the hon. member for Greenwood (Mr. Brewin). I am convinced, from my own experience as a practising lawyer, that it will cost more to litigate in federal courts if, for the most part, they are set up in Ottawa. I see no reason why judges cannot be posted permanently to the larger centres in Canada. We have the banks and life insurance companies here in Ottawa establishing branches out from the centre, and they have no problem doing business all across the country.
I am further impelled to support the amendment by the fact that I am a member for the metropolitan area of Toronto. I believe the House knows very well that a major portion of the business of this court will originate in the city of Toronto where we have a great deal of land still held under the Veterans Land Act, and a lot of agreements for sale may be the subject of litigation. Also in Toronto we have a very large port, which will have its problems. We have one airport now, and we are likely to have another one, even though I do not quite know when. In this respect, a great many problems could arise in the near future and those concerned with them would require access to this court. I see no harm whatever in making this residential provision read "may" and not "must." I ask the minister to reconsider the rather narrow Ottawa view in this section.


Mr. Deputy Speaker:: Is the House ready for the question?


Mr. F. J. Bigg (Pembina):: Mr. Speaker, this bill had a pretty thorough going over in committee, as pointed out by the hon. member for Calgary North (Mr. Woolliams) and by the minister. I am not entirely opposed to the committee system, but sometimes a committee becomes pre-occupied with the opinions of experts. There is no doubt that the opinions so far voiced before the committee have been largely those of lawyers, members of the bar, jurists and college professors. I would just like, therefore, to give what I would call a layman's opinion.

October 28, 1970
Federal Court
It seems to me that in this age of the rapid adoption oi socialistic measures in Canada, where every day we are coming more and more under the decisions of tribunals of one form or another-what the lawyers would call quasi-judicial bodies-there is a great need for some court of this sort. I think there are many provisions in this bill with which I can agree.
Perhaps some of the provisions in the bill are long overdue and, projecting into the future, no doubt federal courts will become more important. But from the point of view of the ordinary voter, the man in the street, I can foresee some dangers. We have had the prerogatives of the Crown, writs of habeas corpus, writs of certiorari, writs of mandamus-some of these for 700 years-and perhaps because of human nature we have had to preserve these extraordinary rights. Because all courts are made up of human beings, there must be procedures for appeal. But it seems to me, Mr. Speaker, that if we are to put all our eggs in one basket, if we are to give any one federally appointed court sole jurisdiction in these matters, at a time when governments at all levels can interfere deeply with the private fortunes, property and affairs of each single individual in Canada, I for one would at least like to have the assurance that this court does not become a faceless monster in the capital city.
I go along with the idea that we need to have appeals, and that we do need a strong federal court to deal with many of these matters. But I do not think it is necessary to panic the Canadian people and this House into accepting the opinions of legal experts. That is why I do not hesitate to stand here for a few moments to give my opinion. Today, the War Measures Act gives us a very good basis for my argument. Habeas corpus has been suspended indefinitely, or we have a six and a half month moratorium on it, and if you trust our government, our Prime Minister (Mr. Trudeau) and our Minister of Justice (Mr. Turner), which undoubtedly many of us do, you can say that our future and our security are in good hands. But, Mr. Speaker, governments change rapidly these days-


Mr. Deputy Speaker:: Order. I know the hon. member will move very quickly to make his remarks relevant to the motion before the House. I think that at this stage of our proceedings it behooves all hon. members, and the Chair, to keep the debate confined within the terms of relevancy.


Frederick Johnstone (Jack) Bigg: Mr. Speaker, I do not know how I can be more relevant than to bring to your attention, and to the attention of all hon. members, that this bill and any amendments made to it affect the lives of all hon. members and of all members of the Canadian public. I do not see anything that could be much more relevant. There is a need for those of us who are not experts in the law, who are not completely enmeshed in professional attitudes, to express our views.
For instance, this bill provides that all the judges shall reside in Ottawa where they will be out of touch with the people. Unless they are strange men, after 15 or 20 years of living in the rarified atmosphere surrounding the
higher echelons of the civil service, circulating among judges of the Supreme Court and other judges of their own rank, they will probably lose that touch with the little people which is very essential in order to make decisions on such matters as the expropriation of land, as well as the settling of labour and other disputes. It may be true that one of the national parks needs homesteads, or that a game preserve or community pasture should be made out of it. It is, nevertheless, important for us in a democratic society to have full confidence in any judge before whom we may appear. He must remain aware of the sentiments and attitudes which have developed over the ownership of a piece of land. He must also know that the attitudes of those who live in western Canada will be different from the attitudes of those who live in the maritimes, or Newfoundland. I must support what a previous speaker said when he entered a plea in this regard. It is not good enough for justice to be done; we must know that it has been done and feel it has been done. I cannot go along with the assurance of the Minister of Justice. I am opposed to passing Bill C-172 in its unamended form.
[DOT] (4:10 p.m.)
Prominent members of our community do not agree entirely with the minister's views. I do not wish to go into details and take up the time of the House. Prominent men, no matter whether or not they are learned members of one of our committees, may not be able to influence the actions of the government. Evidence of this is to be found in the way the government has reacted to committee reports, and especially to the report of the Committee on Veterans Affairs. That report does not seem to have influenced the Treasury Board or the members of the front benches. I think all members of the House ought to take a little more interest in this matter. It is a very important one since it deals, as I said, not only with the prerogatives of the Crown, but with our ancient personal rights and remedies.
At the risk of boring hon. members may I allude to some Latin words. I am one of those who does not understand Latin very well, yet I believe the most important phrase for us to consider at present is habeas corpus.


An hon. Member:: You have the body.


Frederick Johnstone (Jack) Bigg: At present a person's very right to appear among his friends and, in some cases, to be represented by legal counsel is threatened to the Nth degree. I heard the Minister of Justice himself assure us just a few moments ago that a man detained under the War Measures Act is not denied access to counsel. I will not put words into his mouth or suggest anything devious in his assurance, but that assurance does not spell out exactly how the man is to get in touch with counsel. Is he denied this right for a possible 90 days, as set out in the War Measures Act, or is it to be for some shorter period of time?


Mr. Gibson:: The government is bringing in a measure next week.

October 28, 1970


Frederick Johnstone (Jack) Bigg: Next week is not good enough. I am talking about our present rights; I am talking about the continuous whittling down of our rights as individuals. I do not think it is good enough when members of the House are given the assurance that everything is well, that the matter is in the government's hands and, perhaps, that "We are doing the right thing." We are dealing with a right, Mr. Speaker, which has stood in British countries for at least 750 years, that is the right to appear before one's peers within 24 hours. We have a right to appear before a magistrate, who usually is a simple man of the people or a justice of the peace, who is usually a local man who has reached some small prominence among his friends and whose integrity is beyond dispute. A man has a right to appear in front of the justice of the peace anl this will assure his relatives and friends that he is not being held without cause. We have a right to know that there has in fact been some infringement of the law, or that the man is suspected of infringing the law, and that is why his personal liberty has been laken away. An accused man must be brought before the magistrate or justice of the peace at the first opportunity and allowed, with the help of counsel, to give his account to the officers of the Crown.
Another Latin term I wish to refer to is certiorari. Perhaps not all of us understand that Latin term. In my lay opinion, certiorari refers to nothing less than one's rights to have his case reviewed and corrected. When you think that justice has not been done, you may take your case from the lower court to a higher court and be assured that you have been dealt with in the way you are entitled to be dealt with and that, if you have been convicted, the conviction and the punishment is as set out in the statutes.
A writ of mandamus is an order from a judge to perform an act under the provisions of the Law. Speaking in connection with this bill, I do not know why county judges or district court judges, or judges of the Supreme Court of Alberta, are not to be allowed to deal with these very important prerogatives after this bill passes. I know that by far the greatest portion of litigation is involved with habeas corpus proceedings, where those are applicable. These proceedings apply to people who are caught speeding, or to petty thieves, and so on. Yet, when you come to this larger field where you are dealing with expropriation proceedings, in which federal boards with their impersonal-


Colin David Gibson: Is the hon. member talking about
expropriation?


Frederick Johnstone (Jack) Bigg: Yes.


Colin David Gibson: It will be speeded up under this bill.


Frederick Johnstone (Jack) Bigg: It might be speeded up under the bill if the government accedes to requests that have been put forward in committee and in the House. We must appoint enough federal judges to handle the workload. There is no reason why the government cannot appoint enough 23226-43
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judges to handle it. These proceedings should be decentralized and handled expeditiously at the local level. So far, these local judges have not been subject to the central authority of one Court. I am not trying to talk about the horrors of centralization and how far that centralization ought to go. I think it can go too far. Looking at the matter from a layman's point of view, it seems to me that what has been attempted is this; the central authority seeks to absorb all the rights and prerogatives which heretofore were enjoyed by provincial law officers. The administrations of justice has been on a decentralized basis in this country, and has given very satisfactory service.


Eldon Mattison Woolliams: Mr. Speaker, may I rise on a point of
order that has to do with a matter of procedure. I have talked to my good friend, the Minister of Justice (Mr. Turner) and I assume that the hon. member for Greenwood (Mr. Brewin) will go along with my suggestion. I suggest that instead of voting individually on these amendments, we could vote on them all at one time. While I am on my feet, may I suggest that since Motions No. 4 and 5 standing in my name are closely related, they could be debated and voted on together.


Mr. Deputy Speaker:: The House has heard the hon. member for Calgary North. I take it there is consent that the vote on those motions is to be taken at the same time.


John Napier Turner: Mr. Speaker, we agree with that. I think the hon. member for Calgary North may have been looking at yesterday's Votes and Proceedings. Is he not speaking of motions Nos. 5 and 6? The hon. member for Greenwood has motion No. 4 tucked in there.


Eldon Mattison Woolliams: Yes, Mr. Speaker. I am afraid I was looking at Tuesday's copy.


John Napier Turner: Mr. Speaker-


Mr. Deputy Speaker:: Order, please. Will the minister please resume his seat. Perhaps we should deal with the matter of the voting first and then deal with the second matter. Is it agreed that the votes, where they are so indicated, will be taken at the termination of this stage of the proceedings?


Some hon. Members:: Agreed.


John Napier Turner: Mr. Speaker, I think perhaps the hon. member for Calgary North was referring to the two motions standing in his name, Nos. 5 and 6.


Eldon Mattison Woolliams: Yes, Mr. Speaker.


John Napier Turner: The hon. member for Greenwood is the mover of motion No. 4. Motions Nos. 5 and 6 being debated and voted on together would be satisfactory to us.


Mr. Deputy Speaker:: Order, please. Is the House ready for the question? Subject to the agreement of the House

October 28, 1970
Federal Court
to defer all votes until the termination of these proceedings, I will put the question on Nos. 5 and 6. The hon. member for Calgary North (Mr. Woolliams) moves:
That Bill C-172, An Act respecting the Federal Court of Canada, be amended by striking out lines 1 and 2 on page 18 thereof and substituting the following:
'28. (1) Notwithstanding the provisions of any other Act, the Court'
The hon. member for Calgary North (Mr. Woolliams) also moves:
That Bill C-172, An Act respecting the Federal Court of Canada, be amended by striking out paragraph (c) of subclause (1) of clause 28 on page 18 thereof and substituting the following:
'(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner.'


Mr. Deputy Speaker:: Is it the pleasure of the House to adopt the said motion?


Some hon. Members:: No.


Mr. Deputy Speaker:: All those in favour will please say, yea.


Some hon. Members:: Yea.


Mr. Deputy Speaker:: All those opposed will please say, nay.


Some hon. Members:: Nay.


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


Mr. Deputy Speaker:: Under the standing order and the agreement just made, the vote on these motions will be deferred until the termination of the proceedings at this stage.
[DOT] (4:20 p.m.)


Mr. Deputy Speaker:: The following motion is proposed by the hon. member for Greenwood (Mr. Brewin):
That Bill C-172, respecting the Federal Court of Canada, be amended by striking out clause 18.


David Lewis: I rise on a point of order, Mr. Speaker. In order to save the time of the House, I suggest that motions Nos. 4, 7 and 9 be considered together as they all relate one to the other. These three motions can be debated at the same time. If there is a vote, they will be voted on together. I believe the minister agrees with this suggestion.


John Napier Turner: That is so, Mr. Speaker.


Mr. Deputy Speaker:: The House has heard the hon. member for York South. Is it agreed that motions 4, 7 and 9 be considered together?


Some hon. Members:: Agreed.


Mr. Deputy Speaker:: I will not put motion No. 7. The
following motion is proposed by the hon. member for Greenwood (Mr. Brewin).
That Bill C-172, respecting the Federal Court of Canada, be amended by striking out subclause (1) of clause 28 and substituting the following therefor:
"The Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a decision or order made by or in the course of proceedings before a federal board, commission or other tribunal upon the ground that the board, commission or tribunal
(a)	failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b)	erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c)	based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without due regard for the material before it;''-
The following motion No. 9 is proposed by the hon. member for Greenwood (Mr. Brewin):
That Bill C-172, respecting the Federal Court of Canada, be amended by striking out subclause (3) of clause 28 and substituting the following therefor:
"The Court of Appeal shall have exclusive jurisdiction (a) to use an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or great declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a) including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal;"-


Francis Andrew Brewin: Before dealing with these motions and the reasons for them, Mr. Speaker, I wish to point out that there is a misprint in motion No. 9. At the present time it reads, "to use an injunction,". It should read, "The Court of Appeal shall have exclusive jurisdiction (a) to issue an injunction," the word "use" should read "issue".


Mr. Deputy Speaker:: In view of the hon. member's remarks is it the wish of the House to amend the motion by changing the word "use" to the word "issue"?


Some hon. Members:: Agreed.


Francis Andrew Brewin: Mr. Speaker, the proposal that motions Nos. 4, 7 and 9 be discussed together is entirely satisfactory to me because they all concern the same thing. If No. 4 is rejected, there is no point in Nos. 7 and 9. If No. 4 is accepted, then Nos. 7 and 9 or some variation of them would necessarily follow. The purpose of these amendments is not to disturb the bill in any way or to deal too much with its substance, but to make it more efficient for one of its main purposes.
I have listened to the minister explain this bill on a number of occasions. As I understand, one of the mam purposes of this bill is to remove the supervisory jurisdiction of the provincial courts over the federal tribunals set up under Statutes of Parliament and transfer them to the federal court. That is an important objective of the bill and one with which I heartily sympathize. However, I suggest the way this has been done is highly confusing. The amendment I propose is necessary to eradicate the confusion.
I wish to draw the attention of hon. members to (clause) 18 which I propose be deleted, (clause) 18 reads: The Trial Division has exclusive original jurisdiction
(a)	to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or wirt of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

October 28, 1970

(b)	to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
This confers a jurisdiction under the various forms of the old prerogative writs and other remedies by which the courts habitually check the excesses, errors of jurisdiction, errors of law and failures to carry out the jurisdiction conferred on them by various boards and tribunals. This gives exclusive jurisdiction to the trial division.
Clause 28 of the bill deals with part of the same subject matter. It is confusing and difficult. Clause 18 transfers a very wide jurisdiction in general terms to the trial division. Clause 28 deals with the jurisdiction of the court of appeal which is the second jurisdiction. I think all hon. members understand that this new federal court will operate in two divisions, the trial division and the court of appeal.
In Clause 18, there is a transfer of the supervisory jurisdiction in rather broad terms of the trial division. Clause 28 provides:
Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis,-
This applies to certain circumstances set out in paragraphs (a), (b) and (c), and is just another way of expressing virtually the same supervisory jurisdiction over commissions and tribunals. The clause confers jurisdiction in slightly limiting language on the court of appeal. I say "slightly limiting" because it may not include all of the matters covered in section 18. However, it certainly covers a great many of them. It raises the difficult legal question of when the order is of an administrative nature rather than on a judicial or quasijudicial basis. When this is the fact, the review provided by the bill is then to be handled by the court of appeal for the reasons set out. I make no complaint of the reasons. They are fairly extensive and satisfactory. Clause 28(3) reads:
Where the Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a decision or order, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision or order.
In clause 18, complete jurisdiction appears to be given to the trial division. In certain cases, other than a decision of an administration which is not judicial or quasi-judicial, the power of review is given to the court of appeal under more limited circumstances. When the court of appeal is given jurisdiction it is explicitly by subclause (3).
It is my submission, and this has been expressed by Mr. Gordon Henderson of Ottawa who was referred to by the Minister of Justice (Mr. Turner), that this will be confusing in practice. Indeed, it sounds confusing in theory when trying to explain it. Any experienced lawyer will agree that there is no more complex matter than determining whether the functions of a particular tribunal are to be exercised in an administrative or judi-
Federal Court
cial or quasi-judicial manner. Litigants will seek to check this very healthy and important jurisdiction. They will check on the powers exercised by all of the administrative tribunals that enter into a thousand different fields in our system. Litigants will be uncertain whether they should apply to the trial division of the court or whether they should apply to the court of appeal. Those of us who are often in the courts know how frequently people are told: You are in the trial division but you ought to be in the court of appeal, or: You are in the court of appeal but you should have appeared first of all in the trial division before coming to the court of appeal.
[DOT] (4:30 p.m.)
The amendment I propose is simple. It is that total jurisdiction in respect of this matter be conferred upon the court of appeal. Not only would this avoid confusion and apply a more straightforward remedy but, I suggest, such a step would be good in itself. Why should not this supervisory jurisdiction, instead of being dealt with by overburdened members of the trial division, be dealt with the appellate division? For one thing, this would minimize the number of appeals arising from these matters; it would cut down the time and the expense which are involved. Second, it would mean that the total supervisory jursidiction would be exercised by one court, presumably in accordance with one method of approach. The minister keeps telling us how important it is to have harmony and judicial co-operation. He sees this as being necessary, but here he is providing for a system under which jurisdiction is divided.
I could go on to speak at greater length about this subject, Mr. Speaker. As I say, the proposal I made has been approved by highly experienced counsel. It is a simplifying proposal; it is a proposal which would make the act work better; it is a proposal which, above all, and this is of the utmost importance, would give the supervisory jurisdiction which is so essential to the proper administration of justice in a modern state, to the appellate branch of the new court which is to be set up. The minister and his deputy tried to explain to the committee why this proposal was not acceptable. I must say my conclusion was that it could not be accepted because it had not originally been thought of by them. It has now been thought of, and unless the minister can give us some good reasons, reasons which so far have not been apparent, for rejecting it, a proposal which is devoid of any political intent, a proposal which is, I believe, perfectly sound and in accordance with the best advice we have received from the profession, I shall continue to hold that opinion.
If it is not accepted, I believe there will be confusion, unnecessary expense, delay and an unsatisfactory state of affairs in this key sector. No part of the jurisdiction of this federal court would be more important than the duty of supervising the innumerable boards, tribunals, commissions and so on which relate to the rights of Canadians. For these reasons, I urge the House to take this particular amendment seriously. I know that under our system if the minister frowns, his frown is likely to prevail over all the impassioned pleas that I or other hon.
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October 28, 1970
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members may make from this side of the House. Nevertheless, I do urge that this amendment if adopted will constitute a real improvement; it is the kind of amendment which ought to be accepted if this House is to function usefully.


Eldon Mattison Woolliams: I wonder whether the hon. member would be prepared to answer a question before I make a few remarks on this subject.


Francis Andrew Brewin: I will do my best.


Eldon Mattison Woolliams: My question is this. If we delete 18-I may say at the outset that I agree with the hon. member-and leave in section 28, the section dealing with the appeal court, then the special remedies which are dealt with in 18 would still be available in any trial court with reference, say, to a case in which a board exceeded its jurisdiction or acted without jurisdiction-


Francis Andrew Brewin: I think the hon. member is absolutely right. If a thing is a nullity, the trial court must treat it as a nullity in law. I imagine the hon. member has observed amendment nine which proposes that the use of special writs, if I may call them that, to deal with these matters should be within the jurisdiction of the court of appeal exclusively. This does not mean that if some matter came before the trial division, and it was a nullity through lack of jurisdiction, it would not be their duty so to declare it.


André-Gilles Fortin: Mr. Speaker, I merely wish to put a question to the member who spoke before me.
By his motion he would have the act respecting the Federal Court of Canada amended by striking out subclause (3) according to which the Court of Appeal would have exclusive jurisdiction to use a writ of certiorari. I should like to ask him, since Quebec legislators have amalgamated writs of prohibition and certiorari in the new Civil Code, which has led to a new procedure entitled "Proceedings to obtain relief against the decisions of tribunals falling under the powers of supervision and control of the Superior Court", whether the studies made by the Quebec government and the resulting new procedures have not been useless, since federal legislators now seem to retain the writ of certiorari, for which proceedings have been slightly modified, in spite of the abolition of the writ of prohibition.
I should like to ask the hon. member whether he does not agree that, should his amendment be adopted, this would lead to jurisdictional as well as constitutional conflicts?


Eldon Mattison Woolliams: Mr. Speaker,
I want to say at the outset that I agree with the position taken by the hon. member for Greenwood (Mr. Brewin).


Mr. Deputy Speaker:: Order. I am sorry to interrupt the hon. member; perhaps I misunderstood, but did the hon.

member for Greenwood wish to reply to that question which, after all, was directed to him.


Francis Andrew Brewin: The question was directed to me, Mr. Speaker, but I should like to be a little better advised before I reply to it. I am not sure I grasped its full significance.


Eldon Mattison Woolliams: Before I start, what amendments are we taking together?


John Napier Turner: Four, seven and nine.


Eldon Mattison Woolliams: The confusion arose, Mr. Speaker, because when I was working last night I was using Tuesday's order paper and today the numbers seem to have been changed for some unknown reason; I do not know what happened.


Stanley Howard Knowles: The new
amendments were put in.


Eldon Mattison Woolliams: Oh, the other amendments came in. First of all, with reference to amendment No. 4, I agree with the hon. member. I believe there is confusion as between Clause 18 of the act which deals with the powers of the trial division in reference to the special remedies and section 28 which deals with the powers of the court of appeal. In fact, if hon. members look at Clause 28 with special attention to paragraphs (a), (b) and (c), they will find that some of the grounds for appeal shown there are identical to the ingredients which are necessary in order to get a writ of certiorari, or an order to quash the decision of a board which has exceeded its jurisdiction or which has failed to observe the principles of natural justice.
I was interested to read a letter from a lawyer who has done some work on this subject. I should like to quote from this letter, but before doing so I will say this: when the Minister was talking about having received advice from the Canadian Bar Association I checked the reports again, particularly the evidence of Mr. Henderson, and he made it very clear that though he was a member of the Canadian Bar Association, and, maybe, an executive of the association, he was not actually presenting a brief on behalf of the Canadian Bar Association. The Minister of Justice (Mr. Turner) can say that he sent out this bill, formerly C-192 and now C-172, to some 400-odd lawyers, but the point I wish to make is this: with the greatest respect, there are very few lawyers who are really interested in the litigation which goes on in the Exchequer Court or, particularly, the litigation which may go on in the federal court and the new appeal court. When the minister says that he has the support of the Canadian Bar, let me tell him that I have attended several meetings of local Bar Associations and they were pretty upset about this bill. I do not want the Minister of Justice to leave with the media of communication to the public the impression that he has the Canadian Bar or the lawyers of Canada behind him.
October 28, 1970

[DOT] (4:40 p.m.)
If this bill goes through without the adoption of some of the amendments put down, particularly the amendment I am talking to now, No. 4, and some others, there will be much confusion. If the lawyers, of Canada went along with the Minister of Justice on this, it must have been out of an unusual affection they had for him because of certain things that happen to them from time to time. I do not believe for one moment that he has the majority of lawyers supporting him on this kind of legislation.
Let me come directly to amendment No. 4 which seeks to remove clause 18 from the bill. Amendment No. 7 seeks to strike out subclause (1) of clause 28, which provides:
Notwithstanding section 18 or the provision of any other act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a)	failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b)	erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c)	based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it
I ask the Minister of Justice seriously to consider the first point so ably made by the hon. member for Greenwood (Mr. Brewin). Take the case where a board failed to observe the principles of natural justice. Normally, there is the right to move by means of special writ or order to quash the decision of the board. I ask, what is the difference between the powers given to the trial division and the powers given to the appeal court?
I should like to put on the record what Mr. Campbell said about this. I think every member of the committee received a copy of his letter, though he did not actually appear before the committee. Mr. Campbell is a member of the firm of Campbell, Godfrey and Lewtas of Toronto, and in his letter he said:
Section 18 gives the trial division exclusive original jurisdiction to grant extraordinary remedies against federal tribunals.
Pausing there, there are many tribunals. Let me quote the letter dated May 28, 1970 addressed to me as a Member of Parliament, a letter that I know other members received too. May I also refer to a memorandum prepared by the Dalhousie University Faculty of Law. I support the argument of the hon. member for Greenwood because this bill to establish the federal court confuses the law.
Take, for example, the act setting up the Canadian Broadcasting Corporation. Under that act, a person has the right to sue the CBC in the superior court of a province. I know this from experience, though of course not personal experience. Certain procedures for appeals
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are laid down for many other crown corporations and boards. In other words, there is a double conflict of jurisdiction. Clause 18 provides that special remedies will be used by a judge of the trial division; clause 28 provides for appeals to the new appeal court, which is the same right of appeal given under a writ of certiorari. In the case of some other boards, there is no right of appeal at all. So if you could ever have more legal chaos than that, I would like to know what it is.
The memorandum prepared by the Dalhousie University Faculty of Law has this to say about clause 29:
Section 29 raises the further question of the federal boards, commissions or other tribunals from which an appeal is not provided, for the true intention of section 29 seems to be that it is only to them that the "setting aside" procedure of section 28 is to apply.
So, even they are confused on that matter.
Putting the many crown companies to one side-which is not to imply that they do not create substantial problems for the individual-government relationship-here, with no pretensions to completeness, are some federal statutes that establish tribunals of one sort or another from which an appeal is provided:
The following acts establish tribunals from which an appeal is provided: Agricultural Products Board Act; Anti-dumping Act; Atomic Energy Control Act; Combines Investigation Act; Fisheries Research Board Act; Historic Sites and Monuments Act; Industrial Relations and Disputes Investigation Act; Merchant Seamen Compensation Act; National Design Council Act; National Film Act; Parole Act; Public Service Staff Relations Act; War Veterans Allowance Act. Those are the acts that do not provide a procedure for appeal.
I should like to hear the Minister of Justice explain to the House what is going to happen in the cases I have just cited. I could go on to list a group of others that provide a procedure for appeal, but I will not take the time to do so. Indeed, they may be covered under the bill.
Let me return to what Mr. Campbell said. If ever there was legal chaos in a bill, it is in this Bill C-172. Mr. Campbell writes:
Section 18 gives the Trial Division exclusive original jurisdiction to grant extraordinary remedies against federal tribunals. Section 28 (3) provides that if the Court of Appeal has jurisdiction under section 28 to review a decision, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision.
Pausing there, it has generally been the rule of law, as I understand it-I think the hon. member for Greenwood will agree with my interpretation-that in cases where a right of appeal is laid down the courts are always reluctant to entertain any application for special remedy, be it by certiorari, prohibition or mandamus. I believe that is good law and I do not think there will be any quarrel with that statement. The court says: "You have chosen your remedy; do not try two or three".
Mr. Campbell continues:
It seems to me that the language of section 28(1) is broad enough to give the court jurisdiction to review any decision which could be attacked by the common law writ of certiorari.

October 28, 1970
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So, in other words, clause 18 is entirely superfluous. What Mr. Campbell is saying is that, by providing lor the special remedies as well as lor an appeal under certain conditions, the situation has been remedied. As I say, I cannot believe that the top men in the Canadian Bar Association who have done quite a lot ol work on this legislation would go along with a minister ol justice who would contend there was not a lot ol conlusion surrounding clauses 18 and 28. In effect, I think that il you leave Section 28-I go lurther than the hon. member lor Greenwood-and wipe out Section 18 you have done away with special remedies. I have not always agreed with that hon. member but I do in this regard. Certain boards have an inlormality and a lot ol lawyers appreciate this because they do not like administrative law boards.
[DOT] (4:50 p.m.)
When we are dealing with labour disputes, I can understand this position on the part of unions. They get a decision from the board. I do not think they want the evidence reviewed. Why should the evidence be reviewed through an appeal method when, basically, you have this kind of law? If you take a question of fact before a Court ol Appeal you do not get very far. The appeal has to involve at least a question of mixed law and fact. I can understand why a lot of people are going to be upset when they find out what really is taking place. The letter then states:
Therefore, it would follow that the effect of Section 28(3) is to virtually divest the Trial Division of any jurisdiction in the field of extraordinary remedies. It may be suggested that the remedies of injunction and prohibition are sometimes sought before an order or decision is made and that such relief is not available before the review tribunal established by Section 28.
In other words, there may be times when these special remedies would be requested before the final judgment of the court and before you got to the appeal court. Of course, that occurs in a lot of cases. I have never yet heard anyone define the difference between an administrative or a judicial act. There have been a lot of cases recently which seem to establish that you can only quash where there has actually been some judicial act.
Let me digress for a moment. After a criminal charge has been laid you may, as a result of something that has happened, want to quash that charge by certiorari. The courts have said very clearly the laying of a charge is an administrative act because it really has not yet involved a judicial process. So, the fellow pleads guilty or not guilty. Some courts have said that is still administrative and remains so until somebody gets up and says, for example, my name is John Brown. You then ask that the proceedings be stopped. At this time you really just get into a judicial act. This procedure is very complicated and this bill complicates it even further. That is why I support the suggestion that clauses 18 and 28 cannot stand together since they are somewhat contradictory. The letter then goes on:
It may be suggested that the remedies of injunction and prohibition are sometimes sought before an order or decision is made and that such relief is not available before the review tri-
[Mr. Woolliams.l
bunal established by Section 28. If that is so and if that is the only area of jurisdiction to be left in the Trial Division I would hope that Section 18 might be clarified in that regard.
There has been no attempt made to clarify it. The letter then goes on:
Section 28(1) vests the Court of Appeal with power to "hear and determine an application to review and set aside a decision or order". That power seems to be enlarged by Section 52(d) which gives the Court the additional power to refer the matter back to the tribunal with appropriate directions. In my view Section 28 should define the complete power of the Court of Appeal in an application to review.
There are many federal tribunals which are not required to give reasons for their decisions. If a tribunal does not give reasons a Court on an application to review may find it impossible to determine whether or not an error of law has been made. It is logical that the distinction between error of law on the face of the record and not on the face of the record be abolished. However, to be an effective ground to review one cannot deal with errors of law not on the face of the record without giving some direction with respect to the content of the record and the proof of proceedings before a tribunal.
In reviewing Section 28 one must bear in mind that there are tribunals which fall within the scope of that section which are not obliged to keep a transcript of evidence or to give reasons for decision.
What happens then? The writer then states:
I am not suggesting that there need be a statutory requirement that all tribunals must secure the services of a court reporter at all times. I am concerned, however, that Section 28 be effective and workable as against all tribunals falling within its scope.
Section 28(1) (c) includes as its ground for setting aside a decision an erroneous finding of fact that is perverse or capricious. I am concerned that the following words "or without due regard for the material before it" could be construed so as to give a court unreasonably wide powers to review findings of fact made by tribunals. It is desirable that decisions be quashed if they depend on findings of fact which are capricious or perverse. If it is intended that the "due regard" referred to in Section 28(1) (c) is a requirement only that the board look at all the material, that is another way of saying that the board must not behave capriciously or perversely. If the "due regard" gives the court the power to weigh the evidence and consider that a decision should be set aside because in the opinion of the court the balance of the evidence leads to a certain conclusion, the court is then given extraordinarily wide powers of review.
His point is that if that really is the purpose of the act it means that these powers would merely become superfluous. The court could always say that was a wrong finding of fact and order a trial de novo to rehear the whole case. The letter then states:
The whole question of boards taking into account policy matters and matters of which the board has general knowledge creates a problem for a review tribunal. It is obvious that boards must act on certain considerations not established in the evidence.
The minister may not have admitted this at the time of the committee hearings, but it may be that this provision alters the whole trend of administrative law back to a judicial process. In other words, these boards are just rubber stamps and when they have completed their work you can go before the federal appeal board. Let me ask again, how many judges are we going to need to cope with all the administrative tribunal reviews?


An hon. Member:: A thousand.
October 28, 1970


Eldon Mattison Woolliams: Somebody suggests a thousand, but my mathematics have never been as good as my understanding of certain phases of the law. To quote again from the letter:
When those occasions occur a court sitting in review will have difficulty determining whether the tribunal paid "due regard" to the material or whether the tribunal made an error in law. I would hope that a requirement could be imposed that tribunals taking into account matters outside the record would be obliged to disclose that fact on the record and to give a right to make argument and to call evidence with respect to those considerations to persons directly affected by any order.
In other words, that is the advantage of administrative boards. They are not a court of record in the sense that the evidence is reported. They listen to some evidence and they may take cognizance of facts that are not in the evidence. You go to the appeal court for review and ask it to consider something that is not in documentary form. This is beyond me and I do not understand it. I think this whole bill was an exercise by a group of academics who never practised very much.
I think the House should consider very seriously my amendments and those of the hon. member for Greenwood. We are on all fours and if we accept his perhaps mine become superfluous. Perhaps I might say that on looking at the situation, the amendment moved by the hon. member for Greenwood to wipe out clause 18 completely, when read with the other amendments, is superior to the two I drafted in my attempt to doctor up the bill.
The letter then states:
I assume, from a reading of Sections 18 and 28(3) that the intention of Parliament is to remove motions to quash decisions of Federal Tribunals from provincial courts. I am not sure that the intention has been achieved.
There is another question I should like to ask and I would like to hear the Minister of Justice answer when I sit down. I might as well finish what I have to say.
If there is a federal tribunal which has exceeded its jurisdiction or not carried out the principles of natural justice or any of those other matters which are related to the extraordinary remedies, would a person still be able to go to the trial division of a superior court and have that decision quashed as the section is now drawn? If we accept the amendment of the hon. member for Greenwood would a person have that option? I do not think this is clear. I think if you look at the law, after listening very carefully to the hon. member for Greenwood, that person could take this position. These writs are so fundamental I still think you could go to the trial court and I do not think this federal legislation could stop you. I do not know the answer to that. I think we often pass a lot of things when we do not know what we are doing, and then an entirely different interpretation is put on them outside this chamber. Perhaps that is helpful to the Canadian people. Here we are in a vacuum.
c (5:00 p.m.)


Mr. Deputy Speaker:: I regret to interrupt the hon. member but his time has expired. I point out to him that
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I have taken into account the interruption at the begin-ing of his speech. I would not wish to create a precedent by giving the hon. member three times his allotted time, but is there consent of the House that he continue?


Some hon. Members:: Agreed.


Eldon Mattison Woolliams: Thank you, Mr. Speaker. I can appreciate that you would not want to listen to this argument three times. I say, with tongue in cheek and with the greatest respect, that I would not want to give it three times. The letter continues:
Although section 18 at first glance gives the Trial Division of the Federal Court exclusive original jurisdiction within these areas, that jurisdiction is largely removed by section 28 (3). Section 28 does not indicate that the Court of Appeal has "exclusive jurisdiction" but only that the availability of its jurisdiction prohibits the Trial Division of the Federal Court from entertaining any proceeding. Thus I am concerned that it may not be clear as to whether the Trial Division of a Provincial Court retains jurisdiction within these areas.
This is a very learned counsel who has done a lot of work and who has done a lot of thinking. I am speaking of one of the 400 to whom the minister wrote. He has asked the question about which I am concerned and has put it very clearly and precisely. He states:
While the intention of section 29 is laudible and applications for review are undesirable if appeal proceedings are available, some special thought might be given to those occasions when the appeal is to the Governor-in-Council or the Treasury Board.
What happens there? This is another point with which the faculty of Dalhousie University deals.
If the subject of the appeal is a pure question of law I wonder if those bodies are best equipped to cope with the problem.
May I pause here. If we have a right of appeal to the new federal appeal court, do we then go on to the Supreme Court of Canada? We have always had the right, without leave, to go to the Supreme Court of Canada on special remedies or on questions of law. Why is the Supreme Court of Canada being cut off? Is it because that court has overruled some of the decisions in respect of expropriation made by the former court?


An hon. Member:: They have not been cut off.


Eldon Mattison Woolliams: An hon. member says they have not been cut off. There is an amendment here on that aspect and I will ask my question when it is being considered. I appreciate that the Minister of Justice has a body of law officers behind him and there may be a reason for this. The letter further states:
To the extent, of course, that the matter in appeal involves matters of policy obviously the Court must not have the power to interfere.
We are concerned also about the procedure established in 28(2) for bringing an application for review. I note that the application can be made by the Attorney General of Canada. I presume it is intended that that would occur only if the Government of Canada is a party affected by the decision. I wonder if for purposes of this section the Attorney General of Canada represents all other Ministers of the Crown.

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I do not know the answer to this. It certainly was never answered for the committee.
The time for application is ten days after a person directly affected has given notice of the order or decision of the board.
Now, dealing for a moment with the court's jurisdiction, here is another problem in respect of clause 28 and the right of appeal. If Mr. A and Mr. B are involved in a three car accident with the RCMP, so, the Crown is involved. The courts of Alberta can try the case as between A and B. The trial court in Alberta may say that B is at fault and A is awarded the damages, but it cannot deal with C's problem so the case goes to this new court and the court of appeal which finds that B is not at all at fault but C was. Who decides that conflict? We have one court saying that B is to blame and the other court saying that C is to blame.
Then, there is another problem. There may be a three-party contract; the Crown, A, as one party and B and C as the people. The provincial court may argue that B is in breach and the federal court may say no, it is A or it is C. Who determines that? I do not know the answers. This is what I call legal chaos. The conflict between clause 18 and clause 28 is equally chaotic. Again the letter states:
Obviously there are occasions in which persons directly affected by an order or decision do not appear before the board. In that event the board will not communicate the decision to them. If the board does not so communicate then that person's right of appeal runs indefinitely. It is unreasonable that a right of appeal should be an indefinite one as it seems unreasonable to require a board to communicate its decision to all persons directly affected by it. We know, for example, that all persons employed in an industry are directly affected by an application for certification made by a trade union. In my view it is not now and should not be in the future the practice of the board to communicate to each employee separately.
The objection would to a large extent be removed if the requirement that the communication by the board be removed and if the ten days run from the time when the substance of the order or decision is brought to the attention of the person affected by it.
So, in conclusion, in support of the amendment, I say I think clause 18 should be abolished. First of all, I believe we would be usurping the rights of every Canadian by having that Clause in the bill. It defines the special remedies under special conditions by a special court, and this is far too costly and not acceptable to Canadians. Secondly, if these special remedies are to be handled by a federal court-and it looks to me with the majority the government has that this is what we will have-then I would have to go along with the hon. member for Greenwood who suggests that it would be far better to have them handled by the court of appeal the minister is creating. However, I am not convinced in my mind-and I do not think that anyone who has ever studied the bill and who has done any litigation is convinced-that this will cure the legal chaos.


David Lewis: I shall not be very long, Mr. Speaker. I sympathize with the Minister of Justice (Mr. Turner) because I feel that in these days, when things are happening in Canada, a technical debate on a legal problem is a little difficult. I wish to appeal to

the minister to accept my friend's amendment. I rise because I want to put the argument to him in perhaps a slightly different way, although essentially I will be saying the same things that have already been said. As have the hon. member for Greenwood and I am sure the hon. member for Calgary North, I have had some considerable experience before the courts on applications for special remedies in connection with decisions, particularly, of labour boards. I am very concerned about the difficulties which the presence of both clauses 18 and 28 will create for the ordinary trade union, the ordinary citizen of the country and the lawyer who must guide them as to what steps to take.
The minister no doubt will correct me if I am wrong. However, as I read the two clauses it would seem that the drafters of the bill have attempted to do the following things. First, they have given the trial division exclusive jurisdiction to deal with applications for any of the special remedies such as injunction, certiorari, prohibition, mandamus and so on. Under section 28, they have given the court of appeal what is in effect a right to hear an application, an appeal. I know it is called a review of the order but, in effect, it is a right of appeal to the court of appeal from an order of a tribunal. Secondly, what they have attempted to do, if I understand the two sections correctly, is to leave to the trial division exclusive jurisdiction in respect of the special remedies only in administrative matters, while judicial or quasi-judicial decisions, are left-in effect a right of appeal-to the appeal division of the federal court.
[DOT] (5:10 p.m.)
If I understand it correctly, and I will try to indicate why I think it may be correct, I may say that just stating it that way shows what confusion will be created in fact. Why the minister and his advisers should want to create it, God knows. What the bill does is give the trial division exclusive jurisdiction to issue these special remedies. What happens in fact is, if a party, aggrieved by a board, commission or tribunal, feels he ought to go to court, under section 18 he can go to the trial division and ask for an order of certiorari to quash the decision of the board or other tribunal. So far as there may be an argument on that application for certiorari, it will be precisely that the board or commission has "failed to observe a principle of natural justice"-reading from section 28-or has "acted beyond or refused to exercise its jurisdiction". Those are the only grounds. Perhaps the tribunal may have erred in law because there was an error on the face of the record.
It may be that the act under which the board, commission or tribunal under which jurisdiction is established, has a primitive clause trying to oust the jurisdiction 6f the court. In that case Mr. Justice Roach, as he then was, in a case involving Canadian General Electric was right: if there is a primitive clause in the act, then the court's jurisdiction is ousted with respect to error, unless that error is on the face of the record.
The point I am trying to make is that when you go to court for a writ of certiorari or prohibition particularly,
October 28, 1970

whatever court it may be, what you are really saying to the court and the only thing you can say to the court is: the board or commission has acted outside its jurisdiction or has not observed the principle of natural justice so that in section 18, although you refer merely to the prerogative writs, you are including the grounds in section 28. Unless I am very much mistaken, to speak in good Oxonian English which the Minister of Justice (Mr. Turner) will understand, there "ain't any other grounds you can ask for"-certainly not when the act gives the board or commission the authority. Then, the only ground on which you can go to court to say the decision is wrong is if you can persuade the court that the board has gone outside its jurisdiction and failed to observe the principle of natural justice or that there is an error on the face of the record. Roughly those are the only grounds. In section 18 you are embodying the grounds set oiit in section 28 and why do that?
Then, you go to section 28 subsections (1) and (3). Subsection (1) reads:
Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or auasi judicial basis...
When you read that in connection with section 28, subsection (3), which states that where the court of appeal has jurisdiction under this section the trial division has no jurisdiction, you put the two together and What have you got? It is a little doubtful what exactly you have got but as far as I can make out, what you are saying is in the case of no judicial or quasi-judicial decisions or errors of a board or commission, only the court of appeal has jurisdiction. In the case of an administrative matters only the trial division has jurisdiction.
Then, you get into the question of what is the line between an administrative and judicial or quasi-judicial decision where the cases, and there are many of them, show that under the common law courts have been very reluctant to interfere with an administrative decision. So, what would you have? I say seriously to the minister that you leave the trial division only with the administrative decisions. If you read the two sections together, that is all they can mean, to deal with administrative decisions by way of special remedies or special writs. In fact the courts hesitate to interfere with administrative decisions. That is all I want to say on this point, but I want to raise one other point briefly.
It seems to me that my hon. friend's suggestion ought to commend itself to the minister and his advisers. What the hon. member for Greenwood says is that since it is frequently difficult to draw the line between administrative decisions and decisions that are quasi judicial-and the extent to which you should interfere with an administrative decision is an important question-you refer all these questions to the appeal division of the federal court. The appeal division can then establish the jurisprudence as to where the line is drawn and as to how far it will go to interfere with administrative deci-
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sions which have not a judicial or quasi-judicial character, and as to how it will deal with the latter, judicial and quasi-judicial.
It seems to me that you also obviate the procedural nightmare for the client and the lawyer of deciding whether their application will be an application for a writ or an application for review. In the one case, it is an application to the trial division and in the other case it is an application to the court of appeal. In many cases I can see where a lawyer and his client will appear in trial court thinking it has jurisdiction and the trial court will decide it does not have jurisdiction but the court of appeal does. Alternatively, they may go to the court of appeal and be told it is an administrative matter and they should go to the trial division.
Why should Canadians be put to that kind of trouble? What purpose is there in it? What is lost by taking my hon. friend's very sensible, agreeable proposition? Combine the two, go before one tribunal and the question of whether it is administrative or quasi-judicial is out of the window: the tribunal has jurisdiction to deal with it.
As my hon. friend says quite properly, when you consider amendment No. 9, you not only give the appeal court the right to review under subsection (1) but you also give the appeal court the right to issue special remedies of certiorari and the other special remedies that are there. That makes sense. I want to say that the hon. member for Greenwood and I have always had a little disagreement on this point, a perfectly legitimate disagreement. I have very grave concern about an automatic right of review of a quasi-judicial or judicial decision of a board, commission or tribunal. I have not the same confidence in the greater infallibility of the court as compared with the potential infallibility of a board, commission or tribunal.
[DOT] (5:20 p.m.)


Francis Andrew Brewin: Neither do I.


David Lewis: My hon. friend says that neither does he. Therefore, I have as much confidence in a competent board, tribunal or commission as I have in the courts, and this automatic right of appeal in clause 28 bothers me. But if it is going to be there, then I appeal to the minister that it be there on the sensible basis that my hon. friend proposes, so that you do not have a man, a woman, a union, or an organization of any other kind having to decide whether to go to one court or another and then, coming to one court, being dumped back to the other court or being pushed up to the Court of Appeal. I do not think there is any sense in that, and I do not really understand why the minister insists upon it.
The other very brief point I want to make is to repeat and emphasize a point which the hon. member for Greenwood has already made, namely, that if you accept his proposal you would obviate the possibility of more litigation than is desirable. It is always desirable to have less rather than more courts, and less rather than more actions and steps in one case, because if you have more
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than is absolutely necessary you increase the costs of those concerned.
If you leave clause 18 as it is, there will be cases where you go to the trial division and then, in certain cases, there will be an appeal to the court of appeal of the Federal Court, and also in certain cases a further appeal to the Supreme Court of Canada. If you take my hon. friend's sensible and common sense suggestion, which I urgently ask the minister to consider, you obviate one of the courts in a case that goes higher. You simply have two courts that you can be before. You are before the court of appeal, and if there is an appeal to the Supreme Court of Canada you are before that court, and no more, whereas in the other case you have the three steps.
To summarize, Mr. Speaker, may I suggest to the minister that if he does not want to accept my hon. friend's proposal now, he should take it under advisement for reconsideration, and spend a little more time on it. I have a little experience in this field. I just do not see why the minister is obstinate about retaining the step before the trial division of this court. There is no reason why the court of appeal could not deal with the special remedies as well as with the applications for review. This would obviate the difficulties which the hon. member for Greenwood indicated, and which I have repeated, with the possibility of three courts instead of two in certain cases. In that way you make life much more liveable for the people and the organizations that feel aggrieved by a decision of a board, tribunal or commission. If the minister has any doubts in his mind as to his present position, no doubt forced upon him by his advisers, just as all ministers have wrong positions forced on them by their advisers, perhaps he will take this evening to think it over and see if he could not agree with this very sensible proposal advanced by my colleague.


John Napier Turner: Mr. Speaker, this is a very technical branch of the law indeed, and I have enjoyed the submissions that have been made,
submissions that were also made, I might say, before the committee.
These three clauses, Nos. 18, 28 and 29, governing the review and appeal procedures available before the court in its two divisions over federal boards, tribunals and commissions, really set the preliminary stages for a code of public administrative law in this country. They are very important. They are very complicated even for lawyers because, as the hon. member for Calgary North (Mr. Woolliams) stated, this branch of public administrative law is one with which not too many lawyers are familiar, but with which more and more lawyers should be familiar. I believe those sensitive relationships between the citizen and the state, with which this bill tries to deal in opening more avenues for appeal and recourse for the citizen and for private individuals against the decisions of boards, tribunals and commissions, should receive more judicial attention in this country than they have received to the present.
These three clauses in particular I hope will provide an infrastructure, or underpinning for the development of public administrative law in Canada, particularly since there is now only qualified appeal and appeal by leave to the Supreme Court. But by creating a federal court of appeal we make sure there is no longer the necessity for a petition of appeal to the Supreme Court. Whereas last year one judge of the Supreme Court could hear an appeal from that court on matters that might have dealt with freight rates, or very important labour matters, or matters coming before the National Energy Board, tariff matters, and other matters involving a wide variety of subjects falling within the jurisdiction of this parliament, now it takes three judges.
If this bill goes through we will have a method whereby the highest court in the country will not be dealing with merely factual matters arising from automobile accidents but with matters of constitutional law, with administrative law, with questions involving the provinces, and the interpretation of federal and provincial statutes.
Clauses 18, 28 and 29 are clauses to which the hon. member for Greenwood (Mr. Brewin) addresses himself, and I am grateful to him for having suggested that the House, on report stage, deal with them at the one time. I would like to point out that these three clauses received more attention from me and the members of my department, and from the legal profession in the replies we received to our requests for comments on the bill, than did any other clauses. The hon. member for Greenwood is quite right when he underlines the importance of the clauses with which we are dealing.
These three clauses provide the avenues of appeal and review from federal boards, tribunals and commissions. Under clause 18 the traditional common law prerogative writs, now left to the jurisdiction of the provincial superior courts across Canada arising out of their common law jurisdiction, are transferred to the federal court in its trial division, by reason of the statutory transfer found in clause 18. Those prerogative writs as they stand, and as they have been judicially interpreted, now would be referred to the federal court in so far as they relate to proceedings before federal tribunals, federal boards and federal commissions. So those common law writs, prerogative writs would, within the envelope of the current jurisprudence, be now interpreted before the federal court.
Clause 28 opens up a new statutory process of review. It is not a process of appeal because under clause 28 the court merely has jurisdiction to set aside or to turn back. It does not have the power to substitute its own view of the facts or its own judgment for that of a commission, board or tribunal. It is a referral back, or an order for re-hearing.


David Lewis: Or a quashing.


John Napier Turner: Or a quashing. The court of appeal in the federal court does have the power

October 28, 1970

under clause 28 in respect to those decisions or orders of commissions and boards that are not of an administrative nature, or are not required by law to be made under the judicial or quasi-judicial basis, to review them when one of three things must happen.
These are where a board has:
-failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
Natural justice, as hon. members know, is the right to be heard, the right to receive notice, the right to crossexamine the other party, the right to have the opportunity to force production of documents, and the right to have the reasons for judgment, although that has sometimes been refused in some of the federal Boards with which hon. members are familiar.


David Lewis: And that is the ground for writs of certiorari.


John Napier Turner: I will go into that in a moment.
The second thing which could happen is if a board:
-erred in law in making its decision or order, whether or not the error appears on the face of the record;
And the third thing that could happen is where a board:
-based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
While it is true that the grounds for review may have been duplicated in some respects, may I suggest to hon. members that the grounds with respect to the prerogative writs under clause 18 contain some differences. First of all, it is clear that an error in law can be attacked, whether or not it appears on the face of the judgment, whether or not, in other words, reasons are given for judgment. In other words, it is apparent, under section 28(1) (b), that no federal tribunal can avoid a review process merely by refusing to give reasons for judgment. The case law on the prerogative writs is not entirely clear on the point, as I think my hon. friend for York South said.
[DOT] (5:30 p.m.)


David Lewis: I agree.


John Napier Turner: Paragraph (c) goes far beyond what the prerogative writs allow at the moment, particularly when they ensure that the federal board has at least to pay some regard to the evidence before it.


Francis Andrew Brewin: Mr. Speaker, will the minister permit a question.


John Napier Turner: Mr. Speaker, may I develop what I am saying. This is a rather complicated thought process and I am trying to point out distinctions as between clauses.
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Finally, under clause 29 the present avenues of appeal that may be found under various statutes, whether those statutes be the Tariff Board Act, the Broadcasting Act, the Railway Act, the National Energy Board Act or the Industrial Relations and Disputes Investigation Act, are preserved. An appeal that may lie from any one of these boards by way of petition for leave to the Supreme Court of Canada is now preserved, with the intermediate step of the federal board of appeal being added. In other words, the statutory appeal right, by adding an intermediate step, is preserved in all statutes. In most of these statutes an appeal lies from a federal board or tribunal on a matter of law or a matter of jurisdiction and, in some statutes, on a matter of mixed law and fact. Thus the three review and appeal procedures found under clauses 18, 28 and 29 are alternative and cumulative.


David Lewis: Would the minister mind explaining again how he reads clause 29?


John Napier Turner: Yes, Mr. Speaker. If there is an appeal available from a board or commission under any statute currently in force, then that appeal is preserved; but there is an intermediate appeal to the federal court of appeal and thence to the Supreme Court of Canada. I think if you read clause 29 and then read section 31 which deals with appeals to the Supreme Court of Canada, this will be made clear.


David Lewis: I do not see where the federal court of appeal comes in. I do not see where there is an intermediate step to the federal court of appeal. Does not clause 29 specifically say that where you have a right of appeal under another statute, then the right of review is removed?


Eldon Mattison Woolliams: That is right.


John Napier Turner: Mr. Speaker, I do not read it that way. Let me say that clauses 18, 28 and 29 are not mutually exclusive provisions. They are alternative and cumulative. I think the opening words in clause 28 and the opening words in clause 29 make that quite clear. They say that a man who feels aggrieved or some entity that feels aggrieved may choose to proceed under clauses 18, 28 or 29, or under all at the same time, if that is open. That is the purpose of this; we hope that it will be so.
Why do we include all three clauses? Why should there not be some simplification? We want to make it perfectly clear, first of all, that we seek to preserve prerogative rights as they now exist, merely transferring them to the jurisdiction of the federal court instead of leaving them with the superior courts. The reason for that is this: one of the complaints of having multiple jurisdiction is that a federal board, such as the Canada Labour Relations Board, for example, could, under the present situation be deliberately harassed by a number of jurisdictions. Somebody who wants to attack a decision of the Canada
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Labour Relations Board by a prerogative writ that is available in any one of the ten jurisdictions in Canada, can do so anywhere at the same time, and that is particularly so if the board is dealing with a matter involving a national employment situation. The same applies to the railway boards and broadcasting boards. I want to make it clear here that the attack open under prerogative writs is still available as they exist under common law, but that they will be now handled in one jurisdiction.


Eldon Mattison Woolliams: That will be pretty slow.


John Napier Turner: It is also clear that clause 28 is limited to quasi-judicial or judicial matters. The hon. member for York South (Mr. Lewis) was perfectly right when he said that administrative decisions of boards would not be reviewable under clause 28. They still could be reviewable in so far as they are reviewable today in virtue of clause 18 under prerogative writs. In other words, clause 28 is not self-sufficient; it has to be completed by clause 18. If we are dealing with administrative matters, they can ordinarily be attacked by prerogative writs. In addition, there are certain matters of declaratory relief in special circumstances involving mandamus, where you are asking for a declaratory form of relief that would not be available under clause 28 as it is drawn but which would be available under the prerogative writ of mandamus, as available under clause 18. These are reasons for leaving prerogative writs intact, despite the provision of a new statutory method of review under clause 28.
Why was clause 28 limited to matters of a judicial or quasi-judicial nature? It was so limited because we wanted to make it perfectly clear that it is not the function nor will it be the function of the federal court, which is a continuation of the Exchequer Court, to substitute its judgment for Parliament's judgment on policy matters. These boards have been properly set up by Parliament and have been given powers delegated to them by Parliament to administer the policy set by Parliament. Under the Broadcasting Act the CRTC is given the power of interpreting and administering the Canadian Broadcasting policy; under the Railway Act, the Canadian Transport Commission is given power-and certainly this is so under the declaratory section and section 2-to administer the national transportation policy. It is not the function of a court, nor should it be the function of a court in my opinion, to substitute a judicial judgment for an administrative judgment in the exercise of administering that policy. But if the board assumes a judicial or quasi-judicial function and if it is deciding rights between parties or rights of the citizen as against the state, then it ought to be bound by principles of natural justice, to stay within its jurisdiction, to be compelled to exercise its jurisdiction and to be compelled to pay some regard to the facts before it. So, the distinction in clause 28 is between administrative matters on the one hand and judicial questions on the other, and is to ensure that the court is reviewing judicial and quasijudicial matters only. It is not to be allowed to be used as

a vehicle for substituting judicial policy for administrative policy, a policy that is given to that board by the Parliament of Canada.


Francis Andrew Brewin: We certainly agree with that.


John Napier Turner: That being so, the final clause is clause 29, which is still available. Under the statutes and the cases we do not want to abrogate a statutory right of appeal, whether that be taken under the Broadcasting Act, the Immigration Act or what have you. Thus those avenues of appeal are preserved.
If I may now talk to the specific amendment No. 4 proposed by the hon. member for Greenwood, it seems that he is proposing that we strike out clause 18. I believe that would lead to an unsatisfactory situation. We have studied this carefully. Of course, I will sleep on it one more night but, as I say, we studied this carefully and we feel it is necessary to include the clause in order to unify the jurisdiction over prerogative writs in one court instead of having them under ten courts. We believe that there are declaratory judgments available under prerogatory writs, particularly mandamus, preserved under clause 18 but not covered in clause 28.
We also believe that there must be some way of attacking unsound administrative judgments for which a remedy may still exist under clause 18, but not properly under clause 28.
We want to make it clear that in setting up these separate sections the prerogative writs are to remain intact and are merely transferred from one set of courts to one federal court.
The hon. member's second amendment, motion No. 7, I believe, would delete certain qualifying words. As I understand it, the words to be deleted in subclause (1) of clause 28 are, "decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis." I think I dealt with that.


Francis Andrew Brewin: I think the law defines that.
[DOT] (5:40 p.m.)


John Napier Turner: I think that is right. As a matter of fact, the definition of board or commission is wide enough to include a minister.


Stanley Howard Knowles: Does it also include ex-ministers who happen to be named Pickersgill?


John Napier Turner: Obviously an administrative decision made by a minister properly within his jurisdiction should not be caught under clause 28.
The final amendment of the hon. member for Greenwood with which we are dealing, No. 9, proposes that the jurisdiction conferred on the trial division of the federal court by clause 18 be conferred instead on the court of
October 28, 1970

appeal. I listened very carefully to the argument of the hon. member for Greenwood and his colleague the hon. member for York South. We felt that since the prerogative writs were traditionally exercised before one judge, they ought to remain before one judge.
We felt that on the review procedure which dealt with questions of jurisdiction, law, the facts and whether due regard had been given to the facts would be more appropriately dealt with by a three-man court of appeal. I suppose one of the reasons was cosmetic. If there is a five-man Canadian Transport Commission, or a three-man committee, and a number of members who comprise the CRTC, it is better psychologically to have a three-man court sit in judgment over a three, five or seven-man board. In terms of credibility, I think there is something to that. The hon. member for York South will say, "Fine. Why not have that same credibility exercised by way of prerogative writ?"


David Lewis: You read my mind.


John Napier Turner: I did not read your mind. That is difficult. I read your smile.


David Lewis: My smile will tell you more than my mind.


John Napier Turner: In any event, the officials have given close attention to this. Their experience in this branch of the law is considerable, as I think my friends opposite will concede. Apparently 45 per cent to 50 per cent of the cases before this court involve the government of Canada. We responded to comments received from Members of the Bar. Two or three amendments were accepted in committee. As a result of further consultation, I will be making one or two technical amendments here. I will sleep on this. For the moment I want to preserve our position and I suggest that we reject the amendment.


David Lewis: Just don't have insomnia.


The Acting Speaker (Mr. Laniel):: Is the House ready for the question?


Some hon. Members:: Question.


The Acting Speaker (Mr. Laniel):: The question is on motion No. 4. Is it the pleasure of the House to adopt the said motion?


Some hon. Members:: Agreed.


Some hon. Members:: No.


The Acting Speaker (Mr. Laniel):: All those in favour will please say yea.


Some hon. Members:: Yea.


The Acting Speaker (Mr. Laniel):: All those opposed will please say nay.
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Some hon. Members:: Nay.


The Acting Speaker (Mr. Laniel):: In my opinion the nays have it.
And more than five members having risen:


The Acting Speaker (Mr. Laniel):: Pursuant to Standing Order 75(11) the recorded division on the proposed motion stands deferred. The House will now proceed to motion No. 7.


John Napier Turner: On a point of order, Mr. Speaker. I think by agreement there may have been an order of the House that motion Nos. 4, 7 and 9 be taken together and that one vote would cover the three motions.


Francis Andrew Brewin: That is correct. That is quite satisfactory.


The Acting Speaker (Mr. Laniel):: Is it agreed that the vote on motion Nos. 4, 7 and 9 be deferred?


Some hon. Members:: Agreed.


The Acting Speaker (Mr. Laniel):: The following motion No. 5, is proposed by the hon. member for Calgary North (Mr. Woolliams):
That Bill C-172, respecting the Federal Court of Canada, be amended by striking out lines 1 and 2 on page 18 thereof and substituting the following:
"28(1) Notwithstanding the provisions of any other Act, the Court"-


Eldon Mattison Woolliams: Motion Nos. 5 and 6 are to be taken together, Mr. Speaker.


The Acting Speaker (Mr. Laniel):: The following motion, No. 6, is proposed by the hon. member for Calgary North:
That Bill C-172, respecting the Federal Court of Canada, be amended by striking out paragraph (c) of subclause (1) of clause 28 on page 18 thereof and substituting the following:
"(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner."


Eldon Mattison Woolliams: Before speaking on motion Nos. 5 and 6, I wish to withdraw motion No. 10. As Mr. Speaker did not permit motion Nos. 1 and 2, it is not necessary to have No. 10. It only dealt with the appeal. This applies to appeals in the courts of appeal of the various provinces. With the consent of the House, I will withdraw motion No. 10.


The Acting Speaker (Mr. Laniel):: Does the House give unanimous consent to the hon. member to withdraw motion No. 10?


Some hon. Members:: Agreed.


Eldon Mattison Woolliams: I will be very brief in my remarks with regard to motion Nos. 5 and 6. My reason is that I hope the amendments of the

October 28, 1970
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hon. member for Greenwood (Mr. Brewin) are voted on first. If they are defeated, I will then ask that motion Nos. 5 and 6 be put because they are better than nothing. The amendments of the hon. member for Greenwood would cure the situation more effectively. Motion Nos. 5 and 6, are just a little cake, not the whole cake.
I do not want to repeat my argument regarding the duplication of Clauses 18, 28 and 29. I have already tried to point out some of the difficulties. 1 ask that my argument in reference to the amendments of the hon. member for Greenwood be incorporated into my argument with reference to motions Nos. 5 and 6. I see that the Minister of Justice is surprised at my brevity.


John Napier Turner: I agree with everything the hon. member has said, Mr. Speaker.


The Acting Speaker (Mr. Laniel):: Is the House ready for the question?


Some hon. Members:: Question.


The Acting Speaker (Mr. Laniel):: The question is on motion No. 5. Is it the pleasure of the House to adopt the said motion?


Some hon. Members:: Agreed.


Some hon. Members:: No.


The Acting Speaker (Mr. Laniel):: All those in favour will please say yea.


Some hon. Members:: Yea.


The Acting Speaker (Mr. Laniel):: All those opposed will please say nay.


Some hon. Members:: Nay.


The Acting Speaker (Mr. Laniel):: In my opinion the nays have it.
And more than five members having risen:


The Acting Speaker (Mr. Laniel):: Pursuant to Standing Order 75(11) the recorded division on the proposed motion stands deferred. The House will now proceed to motion No. 6.


John Napier Turner: On a point of order, Mr. Speaker. I think there is agreement that motions Nos. 5 and 6 are to be taken together.


Eldon Mattison Woolliams: Motion Nos. 5 and 6 are together, Mr. Speaker.


The Acting Speaker (Mr. Laniel):: Is it agreed that the vote on motions Nos. 5 and 6 be deferred?


Some hon. Members:: 
The Acting Speaker (Mr. Laniel):: The following motion, No. 8 is proposed by the Minister of Justice (Mr. Turner):
That Bill C-172, respecting the Federal Court of Canada, be amended by (a) striking out line 26 on page 18 and substituting the following:
"party directly affected by the decision or"; and
(b) striking out line 31 on page 18 and substituting the following:
"General of Canada or to that party by".
[DOT] (5:50 p.m.)


John Napier Turner: This amendment proposes to change the word "person" to the word "party" in lines 26 and 31 on page 18. It is made for the purpose of clarification only and I do not believe it changes the substance or principle. We want to make it perfectly clear that it is only a party to the action, or a party to proceedings before a board, who would have the right to be a party in review proceedings. If this were not the case, a person who had no original interest in an action could at any time enter to review the decision or ruling and no final decision would ever be reached concerning a ruling by a board or tribunal.


David Lewis: Such a pleasure to hear the minister make a sensible suggestion and I hasten to support it.


[Stage Direction]
Motion agreed to.
John Napier Turner: That Bill C-172, an act respecting the Federal Court of Canada, be amended by striking out lines 21 and 22 on page 19 and substituting the following:
"where provision is expressly made by an Act of the Parliament of Canada for an appeal as such to the"
He said: Mr. Speaker, this is simply a technical change. Motion No. 11 agreed to.


John Napier Turner: That Bill C-172, an act respecting the Federal Court of Canada, be amended by striking out line 26 on page 20 and substituting the following:
"Federal Court of Appeal, whether or not leave to appeal to the Supreme Court has been refused by the Federal Court of Appeal."
He said: I will explain this, if I may, Mr. Speaker. This amendment is to make it clear that we want to avoid any suggestion that refusal of leave to appeal by the court of appeal would in any way preclude the Supreme Court of Canada from extending the right of appeal.
Motion No. 12 agreed to.


The Acting Speaker (Mr. Laniel):: The House will now consider motion No. 13 in the name of the hon. member for Calgary North.


Eldon Mattison Woolliams: Could we go on with motions 14 and 15? I just want to check this out for a minute or two.
October 28, 1970


The Acting Speaker (Mr. Laniel):: Does the House agree to stand consideration of motion 13 and proceed with the consideration of motions 14 and 15?


Some hon. Members:: Agreed.


The Acting Speaker (Mr. Laniel):: We will turn now to motion No. 14 in the name of the hon. member for Greenwood.


Francis Andrew Brewin: That Bill C-172, an act respecting the Federal Court of Canada, be amended by striking out the words "or to federal-provincial relations," in subclause (2) of clause 41 at page 23.
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He said: Mr. Speaker, we have made very good progress in the consideration of the report stage of this bill. The Minister of Justice has suggested to me that I might call it six o'clock, and I am very pleased to do so.


The Acting Speaker (Mr. Laniel):: Does the House agree to call it six o'clock?


Some hon. Members:: Agreed.


The Acting Speaker (Mr. Laniel):: It being six o'clock, the House will adjourn until two o'clock tomorrow afternoon.
At six o'clock the House adjourned, without question put, pursuant to standing order.



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Thursday, October 29, 1970