April 2, 1937

LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

The answer to the remarks just made by the hon. member for St. Law-rence-St. George has been given by the judicial committee of the privy council. The judicial committee held that the Combines Investigation Act was intra vires of this parliament.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Certainly.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

Does it not follow that

the powers necessary to the proper administration of the act and the proper investiga-

tion into whether there is or is not a combine are also within the jurisdiction of this parliament?

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

As being ancillary.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

Yes. I think that follows as a matter of course. The whole purpose of this act is to provide machinery for investigation into combines. Once parliament has adopted that principle it ought to provide proper and adequate machinery to accomplish the purposes of the act. It does so by giving certain powers to the commissioner, who is the officer appointed under the provisions of this bill. That is the justification for section 20 and section 21. Admittedly section 20 gives wide powers, and section 21 provides for the calling of witnesses and the production of documents. If an investigation is to be conducted properly and thoroughly, witnesses must be called and documents must be produced, because usually the essence of a combine is the making of an agreement of some kind or other, and in many cases that agreement is evidenced by a document. That document is therefore the basic document, and we ought to provide in this bill for the machinery which will enable that document to be produced, so that the commissioner may make the thorough investigation that ought to be made if the principle of this bill is to be applied.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

In reply to that I would

say that a combines act has been declared to be within the competence of parliament, but not this combines bill. The contemplated act is very different. As I attempted to explain yesterday, it is much wider in its application than the combines act which was before the judicial committee of the privy council. Secondly, the basis on which the old combines act was declared to be within the competence of parliament was that it was dealing with an investigation into certain sections of the criminal code to ascertain whether crimes had been committed in respect of those provisions of the code. What I stated yesterday by citation of the acts is. I think, quite sufficient until the amendment proposed by the minister is brought down, and I need not now go into it further. But this proposed combines bill has never been before the judicial committee. Possibly the implication which this bill contains is necessary and inevitable, but it is only by implication that this commissioner is proceeding preliminary to or during an investigation when he proceeds as suggested in sections 20 and 21 of this bill. But assume that he is proceeding with respect to an investigation: in the act which was confirmed by the judicial

Combines Investigation Act

committee of the privy council there was no provision for his forcible entry into offices and seizure of their papers. He could summon witnesses, he could compel the production of papers, but he had no authority under the previous act to seize private property.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I wonder if the Minister of Justice (Mr. Lapointe) would give me his attention for a moment, because now I have the relevant section dealing with search warrants under the criminal code. Section 20 of this bill contemplates the commissioner being himself the executor of the search warrant. That is the first distinction; he himself executes his own warrant, the warrant being this section, as the minister puts it; I decline to accept that view. Let me read the provisions of the existing law:

629. -Any justice who is satisfied by information upon oath in form 1, that there is reasonable ground for believing that there is in any building, receptacle, or place,-

(a) anything upon or in respect of which any offence against this act has been or is suspected to have been committed;

That, could easily be done here. It could be provided that the commissioner upon application to a justice may obtain a warrant under the same provisions as in the criminal code.

or (b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or

(c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any offence against the person for which the offender may be arrested without warrant;

may at any time issue a warrant under his hand authorizing some constable or other person named therein to search such building, receptacle or place, for any such thing, and to seize and carry it before the justice issuing the warrant, or some other justice for the same territorial division to be by him dealt with according to law.

If the building, receptacle or place in which such thing as aforesaid is reputed to be is in some other county or territorial division, the justice may, nevertheless, issue his warrant-

And when it is endorsed it becomes effective Here are the notes in the 1935 edition of Crankshaw, page 698. I believe the minister will realize their importance:

The above section, 629, authorizes the issue of a search warrant, whenever the justice is satisfied by information upon oath that there is reasonable ground for believing that there is in any premises, 1, anything upon or in respect of which any offence has been or is suspected to have been committed, or, 2, anything which there is reasonable ground to believe will afford evidence as to the commission of any offence, or, 3, anything which there is reasonable ground to believe is intended to be used to commit any offence for which the offender may be arrested without warrant.

To justify a magistrate in granting a search warrant to search for stolen goods, the information made before him need not allege that the goods have been actually stolen, but it is sufficient if the information can be fairly understood as alleging reasonable grounds for suspecting that the goods have been stolen.

An information to obtain a search warrant under section 629 need not be signed by the complainant-

He may make his statement on oath.

It has been held, in an English case, that the search warrant need not specify the goods for which search is desired. It is not necessary that the premises directed to be searched should be described in the search by metes and bounds-

Et cetera. In executing a search warrant the officer must have the warrant with him.

There is a point to which I direct attention with reference to the present statute. The complainant has made his oath and the justice has issued a document, which document is the authority for entering the premises, it being expressly provided by a paragraph of section 40 of the code that:

"It is the duty of everyone executing any process or warrant to have it with him, and to produce it, if required."

But paragraph 3 of section 40, ante, declares that a failure to fulfil either of the two duties mentioned in paragraph 1 of the section shall not of itself deprive the person executing a process or warrant of protection from criminal responsibility. .

The constable to whom a search warrant is directed and to whom it is entrusted should use great caution in the execution of it. He should be accompanied to the premises by the owner of the property or by some other person able to point out and swear to the goods in question. If the premises are closed and the constable is denied admission after making demand of admission and disclosing his authority and the object of his visit, the premises may be forced open by him.

It has been held that a formal demand of admission by an officer is sufficient before breaking into a house.

In making the search, care must be taken that no other goods than those designated in the warrant, or such as have been actually stolen, be seized. .

Where a constable has searched premises it will be presumed that he acted under a proper warrant, in the absence of any evidence on the point.

Where evidence obtained from a search has been admitted without objection the presumption is that the officer searching had a proper warrant and the onus is on the accused. . . .

Then, on page 699:

Where a discretion is given by statute to a magistrate issuing a search warrant, the court of appeal will not interfere where there were grounds upon which the magistrate could exercise his discretion.

The proceedings upon which a search warrant is issued and the warrant itself may be brought before the court on certiorari, and if the warrant is deemed to have been improperly issued, it may be quashed.

Combines Investigation Act

It is essential that an information for a search warrant should set forth the "causes of suspicion," in order to satisfy the justice that there is reasonable ground that the articles to be searched for are associated with the crime charged. If the information does not pledge the informant's oath to such belief and state the cause of his suspicion, it is insufficient, and a search warrant granted upon it is bad and should be quashed.

A search warrant based upon an information which is not sufficient to satisfy a reasonable man that there is reasonable ground to believe the existence of what is alleged, will be quashed.

A search warrant which does not show the offence in respect of which the search is to be made is bad and will be quashed on certiorari.

The warrant is regular if the search is authorized "at any time," such authority being authority to search at night and valid under section 630.

Then there is a provision, as we know, as to when the warrant should be executed.

Every search warrant shall be executed by day, unless the justice shall by the warrant authorize the constable or other person to execute it at night.

I now put to the minister these questions. In a proceeding authorized by parliament for the purpose of gathering evidence upon a preliminary investigation for a criminal offence, which is, as far as that is concerned, very much like the provisions of the criminal law of France, is it desirable-I put it on as low a level as that-that we should depart from the established principles that have always governed our law since the time of Wilkes in connection with search warrants? Look at the difference. This section provides that a commissioner shall exercise the power here contemplated upon his mere belief that something exists. He makes no oath, he does not place himself on record, as a man would have to do if seeking a search warrant in a million dollar transaction or in a case of theft or anything of that sort. There is no oath, no appearance before a legal authority; but merely because we have said in this parliament that if he believes that somebody is privy to a certain transaction he can walk in and take that person's books and his property. Section 629 of the code, which has been our law for years, certainly does not make provision for any such absolute power being exercised as is indicated here.

May I suggest what the proper course should be-and I am not trying to burke the bill. I merely offer a suggestion as to the way in which it should be dealt with, without claiming that the suggestion is in any sense a complete solution of the difficulty. The commissioner, when he believes so-and-so, may apply to a justice for a search warrant, and then you have all these provisions of the law; in other words, we have safeguarded in the

transaction the persons whom we are proceeding against, in the same way as other persons are protected by the law. We have not, that is to say, the mere unsupported belief of an individual authorized to exercise great powers, but we have embodied in our statute the common experience of our institutions. He makes his oath that he believes so-and-so, setting out the grounds for that belief, and when he has done that the search warrant issues and he goes and takes possession of the documents. He has a constable do it. As it stands now, however, and as I pointed out to the minister a few minutes ago, the commissioner exercises the powers of a justice, without an affidavit, and he authorizes his representative to walk into somebody's premises notwithstanding that our law provides that a constable or peace officer shall be beside him with an authority, namely a warrant, which warrant can be obtained only upon an affidavit disclosing reasonable grounds. And it has been held by the courts-whether properly or improperly it is not my business to say-that if the warrant has been obtained without reasonable grounds being stated, that is, if the affidavit does not disclose reasonable grounds, such a warrant may be quashed; and such warrants have been quashed frequently.

What have we here by contrast? A belief on the part of one man, merely a belief, not backed up by oath or any such statement, and he walks in, himself, and if he cannot do it himself he signs a paper and sends somebody else to do it, without any evidence at all except that inward belief which is not manifested by any expression of opinion either under oath or otherwise. Is that right or just? I do appeal to the Minister of Justice not to place upon the statute books, now that we are revising an act, a principle that is at variance with every rule that has been recognized, since the great Wilkes case at any rate.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East) :

It is there already.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

No, it is somewhat different. But if it were-

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

It is the same principle.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Well, the fact that it is there only makes me feel all the more strongly that it should not be there. Because in days past we placed upon the statute book something that should not be there is no reason why to-day I should admit its soundness. That argument, to use the language I once heard a lord chancellor use, would deny the possibility of reform.

Combines Investigation Act

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

I know; but my right hon friend stated that it was a new principle that violated something that had been recognized for centuries.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Perhaps I should put

it this way. It embodies in its suggested form, as well as in the section to which reference has been made as having been in the statute since 1923, a violation of well-established rules, and it shifts the whole theory of our criminal law.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

Does not my right hon. friend think that in a statute such as this there ought to be a wide power to obtain basic documents?

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Certainly, and I said so yesterday. I follow the argument made by my hon. friend as well as by the minister, and I approach the matter from the standpoint of there being a necessity for it. But in the exercise of the power, to give effect to that necessity, let us at least recognize the accepted principles of our criminal jurisprudence.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

But ought there not to be a wider power than that provided in the criminal code in respect of search warrants in view of the complexity of the operations that are being investigated and also in view of the fact that this is an investigating rather than a prosecuting statute?

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Yes; but it is an investigating statute the effect of which, not to anticipate, is certainly very serious for individuals. In other words we are going back to the theory that has obtained on the continent; a man is charged with an offence and brought before a judge and he has to prove his innocence. That is not wholly lacking in many provisions of our law where you have something that is presented to you as prima facie evidence of an offence having been committed. But that is not the case here. This is an investigating act, and in the course of the investigation it is thought desirable that books and documents should be obtained, and I do say that it' should not rest upon one man's belief, which may be prompted by malice or anything else, to exercise the power here conferred. He may become annoyed, he may be angry at the difficulties that he has had to meet. Let us leave all that aside and decide to stick to the established rules, and if he wants to obtain certain documents-there is no publicity about it-he merely walks round to a justice, makes an affidavit, discloses his reasons for believing so-and-so, and gets the warrant. But the hon.

member for Selkirk (Mr. Thorson) will agree with me that when you apply it to a person who is not declared upon oath to be privy to something, but who somebody believes is privy, and on the strength of that have a commissioner exercise the power here contemplated, the position is different. I do say that that principle is unsound, and it would not make any difference how many times it had been enacted as far as my judgment is concerned.

I adopt the language of the Minister of Justice. No measures of this kind that violate fundamental principles in dealing with the liberty and property of the subject have ever yet been successful in British countries. They have not been successful for the reason that they at once arouse animosity and antagonism, which are reflected in the minds of a jury if the case goes before one. I do appreciate the view stated by the hon. member for Selkirk, but in the acceptance of it I ask the committee to apply the principles that have stood the test of time with respect to the sanctity of a man's property, his office, and his home. For this is without limitation as to either.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

I do not minimize the weight of the representations made by my right hon. friend. I think he puts the question properly when he says that this is a change from what is generally done under the sections of the criminal code, when we prosecute or intend to prosecute offenders. But is it desirable to effect that change? That is the whole question. It is more a question of public policy than of law. This act-and these remarks will apply to other sections as well as this one-is directed to the suppression of combines which may be detrimental to the public interest. It is the public interest which governs this legislation and which we have in view in enacting every section of it. Apparently this parliament thought in 1923 and since, as well as in 1935, that a provision of this kind was desirable in order to come to ascertain the facts, in order to find out whether there really is a combine detrimental to the public interest. I agree entirely with my right hon. friend in what he says about the liberty of the subject, that the home of a citizen is his castle and in ordinary cases should not be invaded without warrant. But here it is an investigation which does not start until and unless application is made by a certain number of citizens or there is an order by the minister. For the purpose of carrying on that investigation, which is not an ordinary proceeding under the criminal code, parliament has thought it proper to give those

Combines Investigation Act

powers for the examination of documents and so on. It is a question of policy. It is for parliament to decide whether it is better that this power should be given.

The fact that it is only one man, that the commission as provided for under the 1935 act is replaced by a commissioner, whoever he may be, does not alter the principle. I do not think it makes a very great difference whether there are three men on the commission or only one commissioner. I do not find in this bill many differences from the existing law.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

You have only to compare these two sections.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

To avoid all these troubles perhaps it would have been wiser merely to reenact the old legislation, simply substituting for the word "commission'' the word "commissioner."

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   PROVISION FOR ADMINISTRATION BY COMMISSIONER TINDER MINISTER OF LABOUR
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April 2, 1937