April 8, 1938

OFFICIAL REPORT

THIRD SESSION-EIGHTEENTH PARLIAMENT 2 GEORGE VI, 1938 VOLUME III, 1938 COMPRISING THE PERIOD FROM THE EIGHTH DAY OF APRIL, 1938, TO THE THIRTIETH DAY OF MAY, 1938, INCLUSIVE BEING VOLUME CCXVI FOR THE PERIOD 1875-1938 INDEX ISSUED IN A SEPARATE VOLUME OTTAWA J. O. PATENAUDE, I.S.O. PRINTER TO THE KING'S MOST EXCELLENT MAJESTY 1938 CANADA


House of Commons deflates



Friday, April 8, 1938


GERMAN PLEBISCITE

POLLING OP VOTE OF GERMAN NATIONALS IN CANADA WITH RESPECT TO AUSTRIA


On the orders of the day:


LIB

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

Liberal

Right Hon. W. L. MACKENZIE KING (Prime Minister):

Possibly the house will permit me, before we reach the special order, to answer a question asked yesterday by the right hon. leader of the opposition (Mr. Bennett) with reference to the German plebiscite to be taken on April 10. My right hon. friend asked:

(1) Has the German government asked the Canadian government to provide facilities for the vote?

(2) What reply was made?

(3) What steps have been taken to ascertain if any of those who claim, the right to vote have been naturalized?

The answer to the first question is "no," and consequently no answer is required to the second.

With regard to the third question, I might say it is not anticipated that any German nationals resident in Canada will participate in the plebiscite. No question arises of German nationals voting in Canada. The present plebiscite is being held under the provisions of the German electoral law of 1933, as amended in 1935, whereby German nationals living abroad are accorded the right, although they are not obligated to exercise it, of securing from the German consular authorities in the countries in which they reside voting certificates, which are accorded on proof of their German nationality. These voting certificates permit them to vote in German elections either: (1) by returning to Germany; or (2) by taking passage on a German ship and voting on the high seas.

The law provides that if a minimum of ten German nationals in a particular port request it, and a German ship is available in port, the German nationals may be taken outside the territorial waters and permitted to vote.

In the present instance, while the plebiscite is to be held on April 10, there are provisions to cover special cases, which would permit voting at any time between April 1 and April 15. I have been informed by the German consulate that in so far as they are aware, no arrangements have been made either in eastern or in western Canada for German nationals resident in Canada to take advantage of these provisions.

It is unlikely that there would be any substantial number of naturalized Germans in Canada who would be eligible to participate in the plebiscite. As a general rule, under the provisions of German law, a German loses his German citizenship upon naturalization in Canada. There are a few relatively unimportant exceptions to this rule.

There is a possibility that there might be persons resident in Canada who had been naturalized under the provisions of the Naturalization Act and who, notwithstanding such naturalization, were recognized by German law as retaining German citizenship. There is a further possibility -that such persons might be in a position where they could participate in the plebiscite. H they did so participate, they would be subject to section 9 of the Naturalization Act which makes provision for the revocation of certificates of naturalization by the governor general in council on -report of the Secretary of State of Canada.

Topic:   GERMAN PLEBISCITE
Subtopic:   POLLING OP VOTE OF GERMAN NATIONALS IN CANADA WITH RESPECT TO AUSTRIA
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Right Hon. R. B. BENNETT (Leader of the Opposition):

Mr. Speaker, I think the country will be pleased to receive the answer that the Prime Minister (Mr. Mackenzie King) has been good enough to make. There arises out of the last part of the answer, however, a question that need not be elaborated now, but an opportunity may be offered again to do so. The truth is that numbers of Germans who had been naturalized in this country responded to the call of their country in 1914, and they gave us to understand that they felt they were bound to do so. It was desirable, I think, in view of the statements which appeared in the press, that we

Privy Council Appeals

should receive the information that the Prime Minister has been good enough to give us; for it will do something to make clear what I now recall was known in 1934 and 1935 and which I had forgotten entirely until I heard the right hon. gentleman read it, as to the methods which have been provided for taking the opinion of German nationals on matters referred to them by way of plebiscite or otherwise.

Topic:   GERMAN PLEBISCITE
Subtopic:   POLLING OP VOTE OF GERMAN NATIONALS IN CANADA WITH RESPECT TO AUSTRIA
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IND

Alan Webster Neill

Independent

Mr. A. W. NEILL (Comox-Alberni):

May I ask the Prime Minister if his knowledge of the situation indicates that these privileges of voting extend to the children of naturalized Germans, that is, those born in this country, or is it confined only to German nationals and those naturalized?

Topic:   GERMAN PLEBISCITE
Subtopic:   POLLING OP VOTE OF GERMAN NATIONALS IN CANADA WITH RESPECT TO AUSTRIA
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LIB

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

Liberal

Mr. MACKENZIE KING:

I do not think children of Germans naturalized in this country would have the right to vote, but I cannot answer the hon. gentleman's question definitely offhand.

Topic:   GERMAN PLEBISCITE
Subtopic:   POLLING OP VOTE OF GERMAN NATIONALS IN CANADA WITH RESPECT TO AUSTRIA
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CABLE AND WIRELESS RATES

ANNOUNCEMENT TABLED RESPECTING RESULT OF NEGOTIATIONS BY IMPERIAL COMMUNICATIONS ADVISORY COMMITTEE

LIB

Clarence Decatur Howe (Minister of Transport)

Liberal

Hon. C. D. HOWE (Minister of Transport):

I wish to lay on the table the official announcement of the new cable and wireless rates which will become effective on the twenty-fifth instant as a result of inquiries and negotiations carried on during the past two years at the instance of the home government and the governments of the various dominions by the imperial communications advisory committee.

Topic:   CABLE AND WIRELESS RATES
Subtopic:   ANNOUNCEMENT TABLED RESPECTING RESULT OF NEGOTIATIONS BY IMPERIAL COMMUNICATIONS ADVISORY COMMITTEE
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SCOTSGUARD, SASIC., FARMERS LACK OF FEED FOR LIVE STOCK OWING TO DISCONTINUANCE OF WINTER FEED


On the orders of the day:


CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Right Hon. R. B BENNETT (Leader of the Opposition):

I should like to bring to

the attention of the minister, with the permission of the house, a matter that I was asked urgently to direct to the attention of the government to-day, namely, the inability of the settlers of Scotsguard, Saskatchewan, to obtain feed for their cattle and horses, winter feed having been discontinued, and their being unable to secure adequate information in respect to the applications they have made to the officials in that section I was asked to bring the matter to the attention of the minister in the house in the belief that he would perhaps have more information than anyone else and would see that the matter was at least explained to the settlers in that locality.

Topic:   SCOTSGUARD, SASIC., FARMERS LACK OF FEED FOR LIVE STOCK OWING TO DISCONTINUANCE OF WINTER FEED
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PRIVY COUNCIL APPEALS

PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL


Hon. C. H. CAHAN (St. Lawrence-St. George) moved the second reading of Bill No. 19, respecting appeals to the Judicial Committee of the Privy Council. He said: This bill, No. 19, is short, containing only three sections which I propose to place on Hansard: 1. This act may be cited as The Privy Council Appeals Act, 1938. 2. The Judicial Committee Act, 1833, chapter forty-one of the statutes of the United Kingdom of Great Britain and Ireland, 1833 and The Judicial Committee Act, 1844, chapter sixty-nine of the statutes of Great Britain and Ireland, 1844, and all orders, rules or regulations made under the said acts are hereby repealed in so far as the same are part of the law of the Dominion of Canada. 3. Notwithstanding any royal prerogative or anything contained in the Interpretation Act or in the Supreme Court Act or in any other act of the parliament of Canada no appeal shall lie or be brought from any judgment or order of any court in Canada, in relation to any matter within the competence of the parliament of Canada, to any court of appeal, tribunal or authority by which, in the United Kingdom of Great Britain and Northern Ireland, appeals or petitions to his majesty in council may be heard. Though the British North America Act, 1867, purported to declare that the exclusive legislative authority of the parliament of Canada extends to all matters coming within certain classes of subject mentioned in section 91 of that act, it was nevertheless soon ascertained that the Colonial Laws Validity Act, enacted two years previously by the parliament of the United Kingdom, effectively restricted the field of Canadian legislation. Section 2 of that act of 1865 provided that: Any colonial law which is or shall be in any respect repugnant to the provisions of any act of parliament extending to the colony to which such law may relate . . . shall be read subject to such act . . . and shall to the extent of such repugnancy but not otherwise be and remain absolutely void and inoperative. The Statute of Westminster, 1931, which enacts statutory bases for the constitutional position established in 1926, provides, in brief: That the Colonial Laws Validity Act shall no longer apply to any law made after the passage of this act by the parliament of a dominion; That no law and no provision of any law made after December 11, 1931, by the parliament of a dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future act of the parliament Privy Council Appeals of the United Kingdom, and that the powers of the parliament of a dominion shall include the power to repeal any such act in so far as it is part of the law of the dominion; and That no act of the parliament of the United Kingdom, passed after December 11, 1931, shall extend to a dominion as part of the law of that dominion unless that dominion has requested and consented to its enactment; This bill purports to repeal the Judicial Committee Acts of 1S33 and 1844 in so far as they form part of the law of this dominion. In moving for leave to introduce this bill on February 10 last, I pointed out that by the commissions and instructions to governors of the provinces, authorizing the establishment of a judicial system, each governor in council was constituted the highest appellate tribunal in his province, and that such appellate tribunal consisted of the governor and members of his executive council, from whose decisions an appeal lay to the king in council. That was an appeal from a provincial court, exercising both political and judicial functions, to another court at Westminster consisting of the king in council, which also exercised political as well as judicial functions. That was the class of appeals which the Judicial Committee Act, 1833, purported to regulate, and eleven years later the Judicial Committee Act, 1844, provided for an appeal to the king in council from any judgment, sentence, decree or order of any inferior court of justice within any British colony or possession abroad. Those two acts of the parliament of the United Kingdom of Great Britain and Ireland, the one 105 years old, the other 94 years old, which were adapted to the times and to the conditions which prevailed before the establishment of responsible government in these colonies-when the government at Westminster, by order in council, arbitrarily exercised supervision and control over all colonies and possessions abroad-this parliament is now invited to repeal, in so far as they now form a part of the law of this dominion. The judicial functions of governors in council were long ago abolished throughout Canada, but unfortunately the Judicial Committee of the Privy Council, to whom the judicial functions of the king in council were transferred by the Judicial Committee Acts of 1833 and 1844, have never wholly ceased, in the exercise of their political functions, to decide constitutional issues, on appeals from other countries of the empire, on grounds of imperial political policy, which is largely based on considerations of political expediency. Though Canada is declared to be an autonomous community within the British empire, equal in status to the United Kingdom and to the other dominions of the commonwealth, and in no way subordinate to the United Kingdom in any aspect of our domestic or external affairs, yet a committee of the privy council of the United Kingdom, under those two ancient acts which it is the object of this bill to repeal, still controls and directs the political development of Canada, and dominates the independent judiciary of this country, in respect of all civil matters coming within the appellate jurisdiction of the judicial committee. Their jurisdiction in criminal matters was abolished by this parliament in 1931. For practical purposes therefore the sovereignty of Canada in civil and constitutional matters now resides in the judicial committee. Its members assume a final veto power over all the important legislation of this parliament. They arrogate to themselves the right to weigh the motives of members of this parliament in enacting such legislation, and, although personally ignorant, except through meagre press reports, of the social, industrial and commercial conditions prevailing throughout this dominion, they arrogate to themselves a prescience and clairvoyance which entitles them to substitute their political judgments, and even their personal preferences, for the deliberate legislative enactments of the elected representatives of the people who sit in the parliament of Canada. In a debate in the House of Commons at Westminster on March 28, 1867, Mr. Gladstone, referring to the enactment of the British North America Act, 1867, said that this act had been passed- . . . with a promptitude which, if it had been a measure affecting ourselves, would have been precipitancy. This was, however, he continued, ... an acknowledgment of the title of these colonies to deal practically with their own affairs. Mr. Lowe, afterward Lord Sherbrooke, who followed, remarked that the act had been passed with the expedition commented on by Mr. Gladstone just because parliament felt that it was a matter with which it had only the most formal concern. Nevertheless, the judicial committee, which thereafter continued to exercise political as well as judicial functions, have construed and applied the British North America Act, 1867, as if it were an ordinary enactment of the parliament of Westminster. They have ever evinced an extreme reluctance to inform themselves, in Privy Council Appeals


April 8, 1938