May 26, 1930

LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

A condition brought

about by our own will is not a subordination.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I put to my hon. friend a fundamental principle which I think governs all these matters, and which should be in our minds when we are discussing them. It is this: If it becomes necessary for another

parliament to exercise its power in order that we may attain our ends, we are not on an equality of status with that power. That is axiomatic, and it is one of the difficulties in connection with this matter. It is so axiomatic that I sent to the library to obtain an elementary book on constitutional cases, of which the second edition is under my hand. If it is necessary to call into operation the legislative power of another state to enable this state to attain its ends, then there is no equality of status as between this state and that. Leaving that aside for the moment, may I direct attention to these words on page 28 of the report:

Canada alone among the dominions has at present no power to amend its constitution act without legislation by the parliament of the United Kingdom.

The Minister of Justice, when he signed that report, which contains paragraph 63 on page 28 stating in terms unequivocal that this Dominion "alone among the dominions has at present no power to amend its constitution act without legislation by the parliament of the United Kingdom," certainly will not say there can be any such thing as equality of status if that statement is correct. That does not require argument, does it? The Minister of Justice this afternoon said that if Canada desires to have its constitution amended, all it had to do was to express that desire as we are doing in the terms of the address we are now making to the imperial parliament regarding western natural resources and the imperial parliament would act upon our address. But that begs the question. Power must be exercised by another body, and whenever power has to be exercised, by another body to effectuate a purpose that this state proposes, then that state and this one are not on an equality of status. That is clear beyond per-adventure, so clear that the Minister of Justice recognizes it in paragraph 63 on page 28 of the report.

Following the discussion to which attention has been directed, is a legal anomaly which I shall refer to only in passing, and that is this, that while the Colonial Laws Validity Act is no longer to apply when we are dealing with legislation of this parliament, such power as still remains in the Colonial Laws Validity Act will be applicable against Quebec, or Ontario or New Brunswick or Nova Scotia or any other province of the Dominion. That is the position that the conference provides for, as will be found in paragraph 71 on page 31 of the report.

There remains for consideration a matter which, I think, might well involve the atten-

Shipping Legislation-Mr. Bennett

tion of the house for days, and that is the question, of navigation. The greatness of this empire has been built up, of course, upon its power to man and sail ships, to penetrate to the most remote parts of the world, to carry on trade and commerce to meet the demands of peoples of all nations and living under all flags, and to bring their products and commodities to other lands for sale and barter. Every one admits that. The history of the navigation laws of this country would take entirely too long a time for me to trace tonight and I shall not endeavour to do so. But let me say this: I was not long since discussing this matter with a gentleman of the Liberal faith in politics, one of the most distinguished of what is called the advanced school of Liberal thought, to which the hon, gentleman referred this afternoon; and he felt that in dealing with this question as we have, we have taken a step that probably we should not have taken without having some alternative to substitute for present conditions. My only criticism is not a criticism that is urged against the principle of this country having full and plenary powers to deal with matters of navigation, but rather that in the exercise of those powers we should by conference and consultation with other parts of this great empire have an alternative scheme to take the place of what we now have.

I put this question to the house: Is it well for us that we and other parte of the British Empire should have differing laws with respect to navigation when one reads in that report all that is involved and implied, for instance, our rights that flow from being able to command the protection of the forces of the motherland under given conditions, the right to appeal to consuls, the questions of conditions in courts, the question of dealing with sailors, and so forth? Is it not well that we as an empire should have uniform laws in that regard? I think it will be admitted that that is so. I shall not deal at length with the report, but if hon. members will take the trouble to read it they will find it deals with the whole problem of carriage of goods by sea, the whole problem in connection with the enforcement of law, naval courts, destitute seamen, courts of inquiry and certificates of competency and service, internal discipline and agreements with crews. Is it not well that there should be some form of general agreement between the various maritime dominions which constitute the British Empire? That is not as a matter of theory, but as a matter of practice. It is necessary that it should be so if Canada is to take its place as a great maritime power. I recall that in days gone by there were on the registry of

Canada more ships in point of tonnage than there is now. Before the day of iron ships we were building ships in great numbers. That day is past, but in that day we had the benefit of all the advantages and experience of the motherland in dealing with problems connected with navigation and shipping.

Now are we to say, without having any alternative scheme to take its place, that present conditions should be replaced by something that leads we know not where, the end of which we know not? The hon. gentleman this afternoon said that we were afraid to break new ground. It is sometimes better to be careful than careless; it is sometimes better to be discreet than otherwise, and history teaches us that unless we have some alternative to offer to an existing condition, you can give no excuse or reason why you should change that existing condition. The essence of progress is not change; it is a change from one condition to another, the new condition being better than that from which you changed. Here we have no alternative offer, nothing whatever. In fact, this report suggests that in dealing with matters of navigation it is well to remember that we should retain existing conditions for a season -lest what? Lest by trying an innovation we meet with disaster.

If there is one thing which is complicated, it is the law of shipping, as any gentleman who is familiar with the law in that regard knows. It is one of the most difficult subjects in the whole fabric of the law for law students, so difficult in fact that in every generation in Great Britain there are only two or three great shipping lawyers, men who are supreme in their profession, masters of the whole theory and practice of shipping laws. When I read these paragraphs as I did and saw the matters with which they dealt, I asked myself, as I asked friends of mine and as doubtless hon. members are now asking themselves: What is to

take the place of existing conditions? What do you offer as a substitute? What shall replace it? Is it something better, or is it something worse, or nothing at all? At the moment it is nothing at all, and I submit with great confidence to my hon. friend that we should not lightly change a condition unless we have to offer for it something that is at least as good if not better. It is because of my difficulty in that regard that to this one phase of the whole report more than to any other, I direct attention. I also direct attention to the admiralty courts, because they have been so closely connected, so allied to the progress, growth and development of our whole system of navigation and maritime

2614 COMMONS

Shipping Legislation-Mr. Bennett

laws that if we were to say suddenly that we shall set up new tribunals dealing with these matters I think the house will agree that the observations made by the hon. member for St. Lawrence-St. George this afternoon indicating that Canadian ships will not remain upon the Canadian register upon such conditions, were not an overstatement of the case. Does any hon. gentleman think they are too far-fetched in view of the implications that are involved? I think not. Our merchant marine is now somewhat limited. It will become less in tonnage as the days go by, and you will find that the great ships owned by Canadian enterprise will be registered not from Canadian but British ports. I am sure every hon. member of -this house realizes that there is tied up with this very matter one of the most difficult of all questions in the world. The flag a ship flies over her taffrail is the flag that determines the measure of protection she receives from the people of the world, and when we come to consider that we have the British flag, with the arms of the provinces in the fly, authorized for flying upon the seas, one begins to realize all that is involved in this problem. I have heard gentlemen discuss this matter whose knowledge of it is so very great that I feel I know but nothing when -talking with them, gentlemen dealing with matters of shipping and matters of piracy on the high seas, and who have discussed with me the implications of our endeavour in this regard. I confess that when I listened to them I realized how far-reaching were the possible consequences of the action that we are asked to take to-night. It is for that reason that I have suggested that we should proceed slowly in a matter of this kind.

Who has complained? Has any man complained? Has any injustice been done? Has anyone for a single moment asserted that the rights and privileges of Canadians have been invaded, or wrested from them? To the British consuls wrho are sent out by Great Britatin all over the world Canadians have appealed on every occasion where matters affecting shipping were concerned. When the I'm Alone was sunk, if you read the life of Captain Randall, you will see that the first person he went to was the British consul. He is the man that the ship wrecked mariner always goes to. The master of a ship in distress in a foreign port always goes to see the British consul. Can we longer claim the right to go to the British consul if we are to set up our own views with respect to this matter, unless indeed we make a contribution to his upkeep, as possibly we may be asked to do? I know not; that may be. But if we

pass this legislation, if we then suggest that the British consul shall be appealed to, we have divested ourselves of that right by the very action we are taking.

I was born beside the sea. I have seen great ships come and go since I was a youth. I realize just what part they play in the commerce of the world. I have listened to seafaring men tell tales of their experiences in far off lands ever since I can remember anything, and I know this, that the one tale which they have invariably told is that in moments of stress and strain, whether from the Atlantic coast of Nova Scotia or New Brunswick, or from Quebec or the Pacific, the man they have gone to with their complaints has always been the British consul, and from him they have had the protection that came to them because their ships flew the flag of empire. It is because of that I say in all seriousness to my hon. friend the Minister of Justice that I think this matter should be proceeded with slowly. Discussing it with a great legal mind in this country, by common consent I think the foremost Liberal legal mind in Canada, he agreed that we should have some alternative before we destroyed the existing condition.

I shall not weary the house with further discussion, but I should like to make this observation in answer to what was said by my hon. friend from Winnipeg North Centre. I deprecate more than I can say introducing into a discussion in this house at this time conditions in India. I have no desire to exaggerate, but, sir, I am profoundly convinced that whatever there may be about those little islands and their history, the greatest tribute that men will pay to them in the future will be to their administration of law and order and justice in India. There less than one hundred thousand men have maintained law and order among a population of hundreds of millions. The attack made tonight by my hon. friend from Winnipeg North Centre I think was wholly unwarranted, and I do not like to see it go out from this house as representing in any sense a desire upon the part of this Canadian House of Commons to interfere with or even discuss problems of which it knows so little, and about which we are so illadvised. The only discussion I have had about India was certainly a very limited one. It was with the Prime Minister of Great Britain, and when I heard him make the statements he did,

I then and there resolved that for me to discuss conditions in India would be indeed but to give evidence of my profound ignorance of a problem so far-reaching in its consequences and so complicated involving questions of caste and of various races and religions that I t.hink

Shipping Legislation-Mr. Bennett

we all should hesitate before we offer to express opinions on India at a moment when all the power of intellect of British statesmen is being used for the purpose of finding a solution of one of the most difficult problems of our time.

One word more, and I make it of general application. This afternoon and this evening we have heard the words " state " and " nation " bandied about and used as if this were an independent country. Those who read the observations of the hon. member for Bow River in that regard will read into them that he interprets the speech of the Minister of Justice to-day as warranting a conclusion which, if true, means that we are on the verge of jumping off into independence. It means that or nothing. I do not interpret the hon. gentleman's observations in that sense. His committee had no such object in mind. In the broad and general sense there is no man in this country who professes the Conservative faith in politics who has not endeavoured, so far as I know, from the days of Sir John A. Macdonald until to-day to see to if that Canadians occupy no subordinate position within our empire. The term " equality of status " is a term coined by a great philosophic statesman, the late Lord Balfour. It perhaps aptly expresses in a few words what every Canadian would wish, but when we use it we must always remember that in the ultimate analysis it is the judges who interpret and determine what things mean, and resolutions of this House of Commons have no place before the courts. They may not be cited because they are not authoritative. They may not be relied upon because they constitute no binding legislative act. When this parliament acts, it acts through the Senate, the House of Commons, and the King. The three bodies that constitute this parliament must act together. A resolution of this House of Commons has no binding power and no authority upon which judicial process may be predicated or founded. It is well that we should always keep in mind the essential meaning of a state. When we use the word "state" or "nation" let us remember that these words in international law have a well-defined and well-understood meaning. They have a meaning which is as exact in its terminology, as complete in all its implications, as the word, for instance, that my hon. friend the Minister of Railways and Canals (Mr. Crerar) looked for in the dictionary the other day. I hold in my hand the second edition of Outlines of Constitutional Law, and the introductory words are these:

The state.-A state is an independent political society, occupying a defined territory,

and the members of which are united together for mutual protection and assistance. Its function is to repel aggression from without, and to maintain law and order within its own dominion.

That is a modern and legally authenticated definition of a state. The first point is that it is an independent political society. We must always remember that loose speaking, involving loose thinking, with respect to constitutional matters, brings great difficulties. That has been so; it is so in this case. It is essentially desirable that we should utilize words in their exact meaning, and not use wrong terminology in referring to matters which have well-defined constitutional and international meanings.

Then you proceed to the next point, Government defined:

The sovereign, according to Austin, is the person or persons having supreme authority in an independent political society, and in every state there must be a sovereign power which exercises and controls the functions of government, and conducts and regulates the intercourse with other political societies. "The aggregate of powers," says Sir William Markby," which is possessed by the rulers of a political society is called sovereignty. A single ruler, where there is one, is called the sovereign; the body of rulers, where there are several, is called the sovereign body, or the government, or the supreme government. The rest of the members of a political society, in contradistinction to the rulers, are called the subjects.

Now, may I refer to these words as words which every hon. gentleman, whether a member of the legal profession or not, can fully understand and realize the importance of:

The internal functions of government are commonly divided into three categories, namely [DOT]-(1) legislative; (2) judicial; and (3) executive. The legislature makes, alters and repeals the laws. The judicature, or judicial bench, interprets and applies those laws; the executive carries those laws into effect. The sovereign power of a state may be vested in a single individual, as in an autocratic state, or in a smaller or larger body of citizens, as in the case of an oligarchy or of a democracy. The allocation of sovereign powers may vary indefinitely, but whatever the form of government may be its functions must, in a modern state, be delegated to a large number of persons. Sir William Anson divides those persons into the following classes, namely, legislators, main-taineTS of order, and protectors of state independence in dealings with other societies.

These are the meanings which attach to the words I have used, and the division of government into legislative, judicial and executive branches is as old as the time of Aristotle. The legislative function we exercise here through the .commons, the Senate and the sovereign. The judicial function is the function that, under our institutions, is delegated to those who sit upon the bench; they inter-

Shipping Legislation-Mr. Bennett

pret the laws, and the meaning they give to them is the meaning warranted by precedent and authority. Every hon. member, whether he be a lawyer or not, realizes that you cannot. describe Canada as a "state" or as a "nation" and be within the terms of the interpretation which the courts will give to these words. These resolutions have no place before the courts, as I have already said; but when they are crystallized into legislation and enacted by the parliament of Westminster they must be interpreted, and that is the reason it becomes so important that the far-reaching consequences of these acts we are about to pass upon should be considered in every phase. I do regret more than I can say that this matter should be discussed in this parliament so late in the session. In my judgment it should be very seriously studied by the various members of this house.

Sir, in the end they mean this. They mean that we have cut the painter completely, that we have let go the moorings that have heretofore tied us to the islands in the North sea. We have obtained equality of status by the prooess that I have indicated-by the blood and sacrifice of Canadians upon the field of battle and by the genius of our statesmen.

But, sir, it must not be forgotten that when we do these things and make ourselves, as the hon. gentleman has said, "in no way subordinate one to the other," we have attained a position which no longer means that unity of power which has made possible the development of our maritime supremacy. It means more. It does not mean difficulties in the field of domestic legislation; there are none. There is not a Canadian but desires to see what the hon. gentleman from Winnipeg so appropriately termed "constitutional practice embodied in statutory form." That is all that many of these recommendations amount to, merely the embodiment in statutory form of the constitutional practice that has grown up since confederation.

But there is the other phase of it, the phase that breaks new ground. The unitary system that has prevailed, that ties together every part of a quarter of the world's people inhabiting a quarter of its area, you have broken into fragments so far as their position one to another is concerned, and they can depend no longer upon the united action and the power and the authority that come from a unitary system in its dealings with the peoples of the world. We should pause and think before we do these things, we should understand their implications. As the hon. member for St. Lawrence-St. George said this afternoon they involve 150 imperial statutes that affect and

touch the national life of Canada. Have we considered this? Do we realize it. Are we fully cognizant of all that is involved? I think not. Gladly do I give my approval to the changes that are but domestic in their character, that place upon the plane of statutory enactment the constitutional practice evolved during the last half century. But if I had the power this night I would ask that these amendments should not be made without full and fair consideration by the provinces, by all those who are concerned in the far-reaching consequences of a change in the system, a change that strikes at the very foundation of that unity which makes possible the strength of this country as a part of the greatest maritime power in the world.

That is the reason, sir, that I have ventured at some length to point these matters out. I certainly resent as deeply as anyone can resent the idea that one party in this country is the party that is entitled-to what? To credit. It has been said in various parts of the country that the Liberal party is responsible for any effort towards equality of status. Sir, the record does not so prove, and if some of us desire to point out, as it is our duty to point out in this house, the implications and the far-reaching consequences of legislation contemplated by the resolution, we do it not in any spirit of opposition but rather from an earnest desire that any amendment that may be made which will in any sense change the relations now existing between us and the other parts of that entity called the British empire should be made only after the fullest consideration of all the consequences that may follow. And I trust that the words of Professor Kennedy will ring in the ears of hon. members, and that, they realize that grandiloquent terms about autonomy and equality of status are but sounding brass and tinkling cymbal. They do not constitute changes. The changes thus made are not recognized in the courts; the legislation that follows is what binds, and we should pause. and consider very carefully before we give approval to legislation of far-reaching consequences which we have not contemplated.

That, sir, is the position we take with respect to these matters. All who read the two great addresses of the Right Hon. J. C. Smuts while visiting this continent cannot but realize that he of all men who had made so great a struggle for the autonomous units that constitute this empire realized the dangers towards which we are moving when he said that we have obtained equality of status. What is our duty now? The consolidation and the strengthening of empire. That will never, never be brought about by the passing of legislation

Private Bills

that cuts our moorings and leaves us floating in the great sea of the world, content to work out our destiny alone, instead of continuing in unity and combination with the other nations that constitute this empire.

Topic:   DOMINION AND MERCHANT SHIPPING LEGISLATION
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

Mr. Speaker,

I should like to ask my hon. friend the leader of the opposition and other hon. members if it would be agreeable to them to conclude the debate this evening.

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?

Some hon. MEMBERS:

Hear, hear.

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?

Some hon. MEMBERS:

No, no.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I think the

Minister of Justice wishes to reply. I do not know that there are any other speakers.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

No, there are those on

this side who do not desire to continue tonight.

On motion of Mr. Mackenzie King the debate was adjourned.

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PRIVATE BILLS

FIRST AND SECOND READINGS-SENATE BILLS


Bill No. 314, for the relief of Nellie Carr Weeks.-Mr. Kay. Bill No. 315, for the relief of Donald Bur-well Ross.-Mr. Black (Yukon). Bill No. 316, for the relief of Cherry Ray Fletcher.-Mr. Lawson. Bill No, 317, for the relief of Eleanor Ernest -Mr. Casselman. Bill No. 318, for the relief of Hazel May Roland.-Mr. Casselman. Bill No. 319, for the relief of Reginald Ernest Ball.-Mr. Casselman. Bill No. 320, for the relief of Marion Elizabeth Gamsby.-Mr. Sanderson. Bill No. 321, for the relief of Ethel Long Nightingale.-Mr. Lawson. Bill No. 322, for the relief of Winnifred May Cahill.-Mr. Ryerson. Bill No. 323, for the relief of Gertrude Lockhart.-Mr. Garland (Carleton). Bill No. 324, for the relief of Frederick Max Quick.-Mr. Young (Toronto Northeast). Bill No. 325, for the relief of Daniel Mc-Quistan.-Mr. Garland (Carleton). Bill No. 326, for the relief of Anna Ruel.- Mr. McPhee. Bill No. 327, for the relief of Ethel Adine Ross.-Mr. Bell (St. Antoine). Bill No. 328, for the relief of Ronald Paterson.-Mr. Boys. Bill No. 329, for the relief of Rosanna Cbristena Jarrett.-Mr. Black (Yukon). Bill No. 330, for the relief of James Lean.- Mr. Anderson (Toronto-High Park). Bill No. 331, for the relief of Lyal'l John MacDonald.-Mr. Casselman. Bill No. 332, for the relief of Essa Mulant Durry.-Mr. Casselman. Bill No. 333, for the relief of Esther Eleanor Zryd.-Mr. Casselman. Bill No. 334, for the relief of Ida Jane Gertrude Rea.-Mr. Casselman. Bill No. 335, for the relief of Thomas Green. -Mr. Gray. Bill No. 336, for the relief of Inez Elizabeth Gross.-Mr. Pettit. Bill No. 337, for the relief of Viola Tur-quand.-Mr. Spence. Bill No. 338, for the relief of Norville Alberta Gourley.-Mr. Lawson. Bill No. 339, for the relief of Martha Brown Hemsley.-Mr. Hepburn. Bill No. 340, for the relief of Edward Baker. -Mr. Spence. Bill No. 341, for the relief of Herbert Machen.-Mr. Spence. Bill No. 342, for the relief of Marjorie Mary Gwendolyn Dempsey Davis.-Mr. Garland (Carleton). Bill No. 343, for the relief of Wilfred Nathaniel Bickle.-Mr. Ross (Moose Jaw). '


SUPPLEMENTARY ESTIMATES FOR 1930-31


A message from His Excellency the Governor General transmitting supplementary estimates for the financial year ending March 31, 1931, was presented by Hon. Charles A. Dunning (Minister of Finance), read by Mr. Speaker to the house, and referred to the committee of supply. On motion of Mr. Mackenzie King the house adjourned at 11.05 p.m. Tuesday, May 27, 1930


May 26, 1930