November 7, 1945

PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

Section 6 would not

apply to anything which took place prior to the commencement of this legislation.

Mr. ST. LAURENT: There had been no actions for prize salvage instituted in Canada and, though we did not anticipate there would be any, we were asked to provide that there could not be any without the consent of the Attorney General.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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Section agreed to. On section 2-Definition.


PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

Should there not be

added to section 2, a definition of the word "aircraft", as the jurisdiction of the court now extends to aircraft? In section 2 we find a definition of "ship", but there is no definition of aircraft.

In section 6 of the Aeronautics Act of 1944 I find the following definition of "aircraft".

In this part, unless the context otherwise requires (a) "aircraft" means any machine used or designed for navigation of the air.

I am not quite certain whether that would include gliders which are attached to aircraft and I find no reference to goods or cargo, as it appears in the definition of "ship".

Would the minister think well of adding to section 2 the following definition of "aircraft":

(b) "aircraft" includes any glider or machine used or designed for navigation of the air, with the equipment, tackle, furniture and apparel of the aircraft, and goods taken upon the aircraft.

If this were accepted the definition of "ship" would appear as paragraph (a).

Mr. ST. LAURENT: We have never had occasion to institute prize proceedings in connection with aircraft, and it was felt that it was an expression we might well leave to the judicial determination of the court. If the question arose as to whether or not something seized or brought under the jurisdiction of the court was aircraft, such question would no doubt be determined by the court. I should be rather fearful that any definition we might choose to make would be restrictive rather than otherwise.

We are dealing here with things taken from an enemy. We should) not, I think, be very much concerned about too precise definitions to protect the rights of the enemy. I would fear that any definition we inserted would necessarily have a restrictive effect rather than the effect to enlarge the possible jurisdiction of the court.

Canada Prize Act

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

If that be true, why does the minister maintain his definition of "ship"?

Mr. ST. LAURENT: That definition was inserted because it was desired to make it broader than the definition included in the Admiralty Act of 1934, to make it cover more than it would without the words used in this section 2.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

I do not wish to insist if the minister is entirely satisfied, but I draw to his attention that if we are forced in a prize case to accept the definition of "aircraft" given in the Aeronautics Act of 1934, the prize or a part of it might escape from the jurisdiction of the court, because that definition is, it seems to me, restricted to something that is propelled by an engine and leaves a port.-a glider or trailer or whatever you may choose to call it-as well as the cargo.

Mr. ST. LAURENT: I do not think any prejudice is likely to arise from the bill as drawn. The inclusion of aircraft was borrowed from the United Kingdom statutes which applied principles of naval or maritime law to aircraft. Of course, if it is something that gets within the territory or territorial waters of our country it would be taken by the custodian of enemy property if it were not something dealt with under the prize court law. All enemy property of any kind or description becomes vested in the custodian on the outbreak of war.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

Grote Stirling

Progressive Conservative

Mr. STIRLING:

Would the minister explain why under this clause the definition of "ship" covers tackle, furniture and apparel of the ship but does not cover either the machinery or the cargo?

Mr. ST. LAURENT: The machinery, I think, would be included as an integral part of the ship itself. It was only necessary to deal with such things as remain movable, and not with such things as are incorporated into the structure of the ship. The. substantive provisions deal with aircraft or goods. That is intended to cover everything that is on the ship, including the cargo.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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Section agreed to. Sections 3 and 4 agreed to. On section 5-Court to take cognizance and judicially proceed in certain matters.


PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

Do I undertsand from, the minister that it has been determined that no effort will be made to codify these statutes, rules and other enactments that go to make up the body of the prize law in Great Britain lest reenactment might place the object of a

{Mr. St. Laurent.] I

prize beyond some of the ruling cases which have been decided on this antiquated body of law?

Mr. ST. LAURENT: That is the report which was made to me by the law officers, that they would hesitate to take the risk of codifying that body of law because they did not feel that they were then, as competent as the courts might be to provide in statutory language for all the possible variations of circumstances which have been dealt -with by the decisions.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

I can understand that. I do not know that in this particular instance there is a great deal at stake, because prize law comes into effect only during wars and there does not seem to be any likelihood of wars coming upon us in which the sources that inspire the legislation here will be on a side other than ours. But it is extraordinary that we should incorporate into our law a vast system of law which is not more definitely stated than by a date, the 10th of September, 1939. It will mean- that, whenever this question comes up, someone will have to. acquaint himself with that ancient and honourable system of prize law, and that there will probably be no local statute or enactment for the guidance of the court and counsel.

Mr. ST. LAURENT: My hon. friend and

myself find that rather embarrassing, but I understand that is the basis of the common law in the other provinces of Canada. They take as the foundation the law of the United Kingdom as of a certain date and have to apply it subject to such modifications as may have been made by statute, and they even accept subsequent decisions of the courts of the United Kingdom as elucidating what the law was and what therefore should be applied in their respective provinces. This will be a similar system. Even in my province, the province of the hon. member, up to the introduction of our code on the 1st of July, 1866, that is what we had to do for the civil law which we had inherited with our French traditions.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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Section agreed to. On section 6-Consent of Attorney General to take proceedings.


PC

Douglas King Hazen

Progressive Conservative

Mr. HAZEN:

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

Douglas King Hazen

Progressive Conservative

Mr. HAZEN:

Well, then, I will not ask

the minister to give it again.

Mr. ST. LAURENT: It was requested by

the United Kingdom authorities, for reasons which I explained and which the hon. member will find reported in Hansard.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

Douglas King Hazen

Progressive Conservative

Mr. HAZEN:

What principle will guide the Attorney General in refusing or granting permission?

Mr. ST. LAURENT: Probably it would be shorter to repeat the explanation. Under a statute of 1864 prize salvage was fixed at one-eighth of the value of a thing recaptured from the enemy; the allies during this war arranged that they would not recognize any prize salvage as against each other; and for the purpose of preventing the statute of 1864 from being invoked by individuals who might have been entitled to prize money a statute was enacted in. the United Kingdom stating that no such proceedings could be instituted without the consent of the admiralty or of the secretary of state. In order to make the arrangement effective, the United Kingdom authorities asked all the dominions to adopt similar provisions, so that no actions anywhere foT prize salvage money would be taken to the prejudice of each other, and what would guide the Attorney General would be the respect he would wish to have to an international arrangement. If-, in a case which was submitted, it appeared that the granting of the permission would violate an international agreement he would refuse to grant it.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

That would appear

to be a section very much analogous to the position of affairs to-day with respect to the taking of civil proceedings requiring a fiat.

Mr. ST. LAURENT: Yes.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

This will possibly

give an opportunity to discuss this question of the fiat or order of the Attorney General permitting the taking of an action. This is a matter which has been dealt with on a number of occasions by the Canadian Bar association, the feeling generally being this, that having regard to the diversity of activity in which the government participates to-day, and having regard to the expansion of the activities of the government, the doctrine upon which the issue of a fiat is based should no longer be in effect. That generally is the viewpoint, I believe, expressed by committees of the Canadian Bar association which have dealt with this particular matter; and I feel that a statement by the Minister of Justice on this question would be very much welcomed. The procedure is based, no doubt,

upon the principle that "the king can do no wrong", and that therefore the king should not be brought before the courts of the land. I realize and I think the bar generally does, that under the present Minister of Justice there has been a considerable widening of the issue of fiats. I can think of one series of cases which came up some years ago, started by the Indians in Saskatchewan as against the Indian department for an accounting. A fiat was granted in one case. That case came before the exchequer court. It revealed that the Indians were receiving treatment which was far from what it should be, and that considerable sums of money rightfully belonging to this tribe of Indians should be returned to it. From that date on, other Indian tribes endeavouring to get fiats found themselves unable to get them.

I think that, generally speaking, the people of Canada believe that the time has come when this ancient doctrine of the inability of the subject excepting with the consent of the crown, to sue the crown should be, if not altogether removed, certainly diminished so as to enable justice to be done as between the subject and His Majesty the King.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

There is just an additional word which might be said on that topic, that it never takes very long to know what the Department of Justice will do. I think requests for fiats are received there and dealt *with the day they are received. But the antiquated practice requires, or at least it did when I knew more of the Department of Justice than I do now, that the fiat go to the department affected, and there it has to wait until somebody dies or somebody blasts it out of the baskets of gentlemen who have things that they consider more important to do than to consider why their department should be pursued before the courts, and why gentlemen's peace and equanimity should be disturbed by being haled before the tribunals of the land to explain something they cannot explain.

Mr. ST. LAURENT: With respect to the question of petitions of right, I am not in a position at this time to state any other government policy than that of respect for the traditional prerogatives of the crown.

The matter has been frequently under discussion. There were reports required from the interested departments every time a petition of right was filed, and sometimes those reports took a very long time in coming back. For a considerable time now I have asked the officers, when sending out a request for information, to inform the department

Canada Prize Act

that the petition had been received and that a recommendation for a fiat would be made at the expiry of thirty days unless in the meantime they submitted good reasons for doing otherwise. I believe that method has speeded up considerably the issuing of fiats.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

Gordon Graydon

Progressive Conservative

Mr. GRAYDON:

On the question of traditions of right to which the minister referred a moment ago, it seems to me there is much merit in what my hon. friend the member for Lake Centre has said, and for a reason which appeals to me and will, I think, appeal to the committee generally. Year by year, owing to the trend of conditions in Canada, and perhaps elsewhere, government departments are dealing in a business way with more of the citizens than they have since confederation. This means, of course, that determinations of rights as between the various departments of government and the individuals with whom they deal have become much more multitudinous, and the business, of course, has become much more important than it was in those days when the idea existed that there was reluctance on the part of governments to grant fiats. I believe the minister should carefully consider the whole question of the granting of fiats in the light of changed1 conditions, which are not simply a matter of argument and theory, but are actually established facts under the present circumstances of government operation. For one individual who in former days would have business dealings with the government, there are to-day, I suppose, twenty-five; perhaps even that does not present the picture in an unduly exaggerated form. That being the case, it seems to me that there is a special reason and a powerful argument for the widening of powers with respect to the giving of fiats. It is an easy thing to deny an individual his rights when he is dealing with a government under the present system. Too much power, if I may say so, rests in the department which would be, in the event of litigation, a party to the suit. That is something which the minister might carefully review in the light of the changed conditions I have just described.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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Section agreed to. Sections 7 to 10 inclusive agreed to. On section 11-Proceedings commenced prior to this act to continue.


PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

How many of the twelve cases pending have been finally disposed of?

I thought the minister said that one had been.

Mr. ST. LAURENT: There have been cases where the thing seized has been condemned, but there is no case where there has been a final disposal of the proceeds of the prize.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

So that there will foe a

substantial demand upon judicial time in disposing of the twelve cases.

Mr. ST. LAURENT: I do not anticipate that there will be more than two or three in which there will be anything more than an application to the court to ratify an arrangement arrived at out of court.

Topic:   CANADA PRIZE ACT
Subtopic:   PRIZE COURTS AND PRIZE LAW-EXCHEQUER COURT JURISDICTION
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November 7, 1945