November 23, 1945

NATIONAL" EMERGENCY

BILL TO CONFER CERTAIN POWERS UPON THE GOVERNOR IN COUNCIL


Hon. L. S. ST. LAURENT (Minister of Justice) moved the second reading of bill No. 15, to confer certain powers upon the governor in council during the national emergency following the war. He said: Mr. Speaker, I do not think that much need be said in support of the motion that this bill now be read a second time, in other words that the principle of the bill be adopted. Its introduction was forecast in the speech from the throne in the following words: You will be asked to approve a measure to extend certain specified emergency powers to meet emergency conditions in the period of reconstruction. The necessity for such a bill was then the subject of extended debate, when the house was being moved into committee by the Minister of Finance (Mr. Ilsley) to consider his resolution to appropriate $1,365,000,000 for war purposes, demobilization, promotion of trade and industry, and so forth, I spoke on the subject at some length on October 2 last and I shall endeavour to avoid repeating much of what I said at that time. The adoption of the motion for second-reading of the bill will mean two things, two very important things, both matters of principle : one, that in the opinion of this house the circumstances in which Canada as a whole finds herself during this period of transition to normal from the exceptional conditions existing during the war are still such as to give some matters comprised within the subjects enumerated in section 92 of the British North America Act aspects of such paramount significance as to take them outside the sphere of that section; two, that those circumstances are such that certain legislative powers of parliament delegated by parliament to the government under the War Measures Act during the period of the war should continue to be exercisable by the governor in council in the expeditious manner required by emergency conditions instead of having to be exercised by parliament itself in the unhurried way in which it is usual and proper to deal in the houses of parliament with legislation intended to be of a permanent character. National Emergency The first principle has to do with the temporary distribution of the legislative powers as between parliament and the- provincial legislatures. The second principle deals with the distribution of legislative functions as between parliament and the governor in council in connection with temporary emergency conditions. These are two quite different questions, but both fall to be decided as a consequence of the view which it may be proper to take of the same set of facts. Are we still in a condition of national emergency? The legal principles which have to be applied are very clearly stated by the authoritative decision of the privy council in the Fort Frances case. Perhaps I may be permitted to call the attention of hon. members to some short sentences from that decision. Hon. members will remember that it was a decision rendered in 1923 in connection with the powers of a paper controller-


CCF

Major James William Coldwell

Co-operative Commonwealth Federation (C.C.F.)

Mr. COLDWELL:

Is that the case known as the Free Press case?

Mr. ST. LAURENT: Yes-Fort Frances Pulp and Paper Company v. The Manitoba Free Press Company:

In the event of war, when the national life may require for its preservation the employment of very exceptional means, the provision of peace,, order and good government for the country as a whole may involve effort on behalf of the whole nation, in which the interests of individuals may have to be subordinated to that of the community in a fashion which requires section 91 to be interpreted as providing for such an emergency. The general control of property and civil rights for normal purposes remains with the provincial legislatures. But questions may arise by reason of the special circumstances of the national emergency which concern nothing short of the peace, order and good government of Canada as a whole.

And a little further down:

It may be, for example, impossible to deal adequately with the new questions which arise without the imposition of special regulations on trade and commerce of a kind that only the situation created by the emergency places within the competency of the dominion parliament. It is proprietary and civil rights in new relations which they do not present in normal times, that have to be dealt with.

And again:

The kind of power adequate for dealing with them is only to be found in that part of the constitution which establishes power in the state as a whole. For it is not one that can be reliably provided for by depending on collective action of the legislatures of the individual provinces agreeing for the purpose.

And again:

Where an exact line of demarcation will lie in such cases it may not be easy to lay down a priori, nor is it necessary. For in the solution of the problem regard must be had to the broadened field covered, in case of exceptional necessity, by the language of section 91, in which the interests of the dominion generally are protected. As to these interests the dominion government, which in its parliament represents the people as a whole, must be deemed to be left with considerable freedom to judge.

The other point which arises is whether such exceptional necessity as must be taken to have existed when the war broke out, and almost of necessity for some period subsequent to its outbreak, continued through the whole of the time within which the questions in the present case arose.

When war has broken out it may be requisite to make special provision to ensure the maintenance of law and order in a country, even when it is in no immediate danger of invasion. Steps may have to be taken to ensure supplies and to avoid shortage, and the effect of the economic and other disturbance occasioned originally by the war may thus continue for some time after it is terminated. The question of the extent to which provision for circumstances such as these may have to be maintained is one on which a court of law is loath to enter. No authority other than the central government-

And ,of course here it means the government which in its parliament represents the people as a whole.

-is in a position to deal with a problem which is essentially one of statesmanship.

It is that problem of statesmanship which is before the house at this time. I submit to you, Mr. Speaker, that it is not a problem of a party or of partisanship, though every time the necessity arises to do something of this kind, no matter which party is in power, is always an occasion for the parties opposed to the government to reaffirm in the strongest possible terms their attachment to the constitutional processes of parliament. I think it is quite proper that they should be affirmed. No one deplores more than I do that at times there should be occasions when it is necessary and inevitable to ask parliament to delegate some of its legislative powers to a government in which it is willing to express and to maintain its confidence. It is unfortunate that that should be so, but it is nevertheless a fact; and it is, when the circumstances arise, a question of statesmanship as to whether or not that shall be done, whether or not the circumstances are such that it i3 requisite for the safety of the state as a whole that it be done.

As I said before, the matter was the subject of extended debate when the resolution of the Minister of Finance (Mr. Usley) appropriating in bulk $1,365 million was being discussed at the end of September and early in Ootober, and that was a similar occasion. It is not in accord with traditional constitutional practice that moneys should be placed in bulk by parliament at the disposal of the executive without specific appropriation in a schedule of estimates called and indivdually considered.

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But under certain conditions it is inevitable that that be done, and it was done each year during the period of active hostilities and it is being done again at this session, of parliament. When war breaks out, the War Measures Act, which was passed in 1914 and which is now chapter 206 of the revised statutes of 1927, contains a delegation of legislative powers to foe exercised by the governor in council as circumstances may require. The statute provides that the issue of a proclamation declaring that a state of war exists is conclusive and that slate of war is deemed to exist until another proclamation declares that it has come to an end, and technically that might be sufficient to enable the governor in council to carry on for a protracted period. But it was the intention of that War Measures Act, I submit, to delegate these extraordinary powers to the governor in council for the purpose of making such orders and regulations as he may by reason of the existence of real or apprehended war, invasion, or insurrection deem necessary or advisable for the security, peace, order and welfare^of Canada.

I believe it was intended to delegate these powers for the purpose of enabling the governor in council to take such expeditious

measures as might be required to secure the safety of the state against the immediate dangers resulting from a state of war; and though it might be technically correct, it would not be within the general intent, of that statute that the governor in council exercise under that statute extraordinary powers to protect the safety of the state against dangers arising out of the economic disturbance consequent upon war.

On the former occasion that aspect wasgone into and it was stated by many hon.members that such was their view. Resolutions or recommendations or reports submitted to the Canadian Bar association were invoked to show that that had been the view of a committee of the Canadian Bar association, and there were specifically cited portions of that report which I venture to read again, because the argument I wish to submit is strengthened by the language used there, to which I could find none preferable. I quote from page 690 of Hansard:1. Continuation of controls after the war. There appear to be many who believe that some measure of control, specially in relation to ceiling prices, should be had and continued for some time after the war as a transit and adjustment period policy. Otherwise prices might jump suddenly to extreme limits, and bring a chaotic situation.2. Should the necessary controls be continued under the War Measures Act?

It is expected by some, feared by others, that the federal government, for such controls as may appear necessary to maintain, will continue to rely on the authority of the War Measures Act.

And the view was expressed that that should not be done.

Your committee recommend that the proclamation declaring that the war no longer exists be issued as soon as the war with the enemy is really at an end according to the established principles of international law.

Let us make the distinction here between the war emergency itself, which is the fact of a state of war, an an economic emergency, which, though a consequence following the war, is not the war emergency. It may be an economic emergency. The calamity against which we have to protect the nation is not the war itself, or a consequential defeat of our arms, or the invasion by the enemy, but is an economic state of affairs that may be most serious, and that may. or may not be adequately coped with by the provinces. If the federal administration feel that, after the war, and in relation to such economic conditions of the country, a state of emergency exists, of a most serious character, and national in scope, let them face the issue directly and submit to .parliament a new law affirming the existence or the apprehension and determining the exact nature of the new emergency.

That is what had been decided even before this report was made. At the time I exhibited to the members of the house this bill which I had received from the printers on August 2S last designed for the purpose of submitting to the house the belief of the government that a state of national emergency existed, and asking the house to pass up<*n that question and declare whether or not it shared the view that there still existed a national emergency which givps to some of the matters that normally fall within the provisions of section 92 of the British North America Act, aspects which are not proprietary and civil rights in their normal acceptation but which are something more vital to the safety and well being of the state as a whole.

Hon. members will recall that at that time I quoted a sentence or two from a speech which had been delivered by the leader of the opposition in April of this year and which I placed on Hansard at page 690. I will not read it. again to the house but will sim.ply paraphrase it. The statement was that it would be dangerous to cut off all at once the controls that were found to be necessary' during the war period; that they constituted something which would have to be unwound carefully and according to careful planning.

Once again I deplore that this has to be so; but if it is so, neither the government nor parliament would be discharging its responsibility to the Canadian nation if it did not adopt appropriate measures to cope with the situation. And it is not only in this country that such a situation has arisen. Hon. mem-

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bers doubtless know that there has been recently adopted by the parliament of. the United Kingdom a bill dealing with supplies and services, and transitional powers to continue for a period of five years the delegation to His Majesty in council in respect of regulations which had been made for the purpose of meeting conditions arising out of the war.

Hon. members know that the parliament of the United Kingdom adopted in 1939 the Emergency Powers Defence Act, which provided that: *

Subject to the provisions of this section, His Majesty may by order in council, make such regulations ... as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community.

This bill of 1939 had been passed foir a period of two years subject to its being extended from year to year if an address were presented to His Majesty in that behalf by each house < of parliament. The last extension by address would have expired on August 24. 1945, and the coalition government. had introduced a transitory powers bill for a period of two years. Before the resignation of the non-Conservative members from the coalition government, it had not been possible to have the bill considered and passed.

Topic:   NATIONAL&quot; EMERGENCY
Subtopic:   BILL TO CONFER CERTAIN POWERS UPON THE GOVERNOR IN COUNCIL
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

The country was still at war.

Mr. ST. LAURENT: Yes. The caretaker government modified the project and provided for a bill that would extend it for a period of six months, to February 24, 1946. But after the general election and the constitution of the new government, a new bill was introduced to enable His Majesty in council to exercise those extraordinary powers for a period of five years. The bill was the subject of animated debate in the House of Commons of the United Kingdom, as one would naturally anticipate it would be; because I have always felt that there no people were more careful of the preservation of their constitutional rights and the traditional functions of parliament than the British people.

The criticism of the bill seems to have been predicated on its duration, not on its principle. I understand that Mr. Eden declared in the debate that had it been restricted, as was the original bill, to a period of two years, opposition would not have been raised against it. Here the situation is different. Of course in the United Kingdom

they have only one of the two questions facing them which I mentioned in opening my remarks. They have no problem of distributing the legislative powers as between themselves and any other authority. They have only the .problem of distributing the legislative functions as between parliament and His Majesty in council. Here we have the other problem, which is a serious one. On Monday we are to' resupie the deliberations of the dominion-provincial conference. This parliament and this government have a responsibility to respect in its terms and in its spirit the provisions of the constitution. I think that only a declaration of this parliament will be sufficiently impressive upon the Canadian people to be accepted as to whether, or not there exists a condition which gives to some of the things normally within provincial jurisdiction aspects which require that they be dealt with in another sphere in the national interest. That is a matter upon which each member of this house will have his responsibility to assume by his vote upon the principle of this bill, because the adoption of the motion for second reading would imply that in the opinion of this house there exists a situation in which some matters which would normally be of provincial jurisdiction, have to be dealt with by a central authority, by the state as a whole, through this parliament representing the peopfe as a whole. This is a serious matter, one not to be passed upon lightly, and not to be passed upon without good and sufficient reasons.

On a former occasion I suggested that I did not think there was any member of this house who would have been prepared, since the cessation of active hostilities, to take the responsibility of declaring that the war had come to an end and that everything which had been done under the War Measures Act had ceased to be operative. I suggested to lion, members on that former occasion that a very interesting reference book on economic controls had been placed before the dominion-provincial conference, in which the situation was discussed and in which the reasons for its appearing to be necessary .to maintain for a time some measure of control, and to de'control gradually, were set out. I hope that hon. members on that former occasion that sidering the thirty double-column pages of that interesting reference book. I am not going to read it into the record at this time; I am merely going to summarize it and to state it is my view that if all the remaining controls were removed to-day the consequences would be immediate, drastic and far-reaching. Prices would rise sharply; the cost of living would move steeply .upward: exist-

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ing shortages in food, housing accommodation and clothing, which are the three most important items in living costs, are such that sharp price advances would appear to be inevitable. The immediate price increases resulting from the hungry market and the removal of subsidies on such key commodities as milk, bread, butter, cotton textiles, would accumulate rapidly as workers sought to protect themselves through wage increases, as producers raised their prices in response to rising wages and material costs, as buyers scrambled for goods and shelter to protect their individual needs, and as the speculative tendency gained momentum. It would be difficult to say how high the cost of living would go before the inevitable collapse. At first, higher prices in the United States and in other countries would stimulate increases here. Later perhaps price levels of the United States, if that country maintained some measure of control, might provide a ceiling.

Nevertheless it seems, to me clear that the increase in the Canadian cost of living before the recession set in would be very substantial, and the consequences of this would appear to be serious. The weaker producer groups in the community would be unable to increase their incomes to compensate for the higher cost of living. Savings of the whole Canadian people would depreciate. The returned service man would get poor value for his gratuity and reestablishment grant. Dependents of those fighting men who, unfortunately, did not return, would face serious privations. Pensioners and others who have made provision for their old age, through life insurance or other means, would find that that provision would be imperilled and their security materially lessened. Many citizens would not get a fair share of the necessities now rationed, and those who did would do so only at a very substantially increased cost. And above all our post-war objectives would be lost or indefinitely postponed in the atmosphere of confusion, bitterness and class conflict that would certainly ensue. Orderly reconversion to a high level of peace-time employment would not be possible .under such circumstances.

It may be said that, according to correct international principles, the war is still continuing-and that is so. We still have troops in the occupational forces. But the adoption of measures designed to cope with economic conditions, under the War Measures Act, in the manner in which it is drawn, would not appear to be desirable. The War Measures Act was enacted for the purpose of protecting against the immediate consequences of the state of war; and it would not appear to be proper to try, to use the technical terms of

that act to deal with matters which were not intended to be included by the parliament which sat when the terms of the act were drawn.

It is submitted to the house that it is preferable to face the situation. The emergency which now exists overlaps the war emergency, and is a consequence of that war emergency, but is not in itself a part of the war emergency with which it was intended the War Measures Act should deal. I would not be prepared to say how far the courts would go in holding that measures adopted now were for the purposes envisaged by the War Measures Act, though technically the act is still in force and still provides a delegation of powers therein contained. It must be remembered that parliament can delegate only that which is within its jurisdiction; and one of the important questions for the consideration of the house is this question of fact: Is it or is it not true that some matters normally of provincial jurisdiction have aspects at this time which are other than their normal aspects as dealt with in the subsections of section 92 of the British North America Act?

I think hll hon. members will agree that it is necessary that those controls which were established during the war period should not be abrogated at one fell swoop. I mention bread, milk, butter, the prices of which have been controlled by the payment of subsidies. If these controls were removed the prices would jump to much higher levels, and it would not be possible to maintain wage controls. The whole of these controls are integrated, and each part is necessary to the harmonious functioning of the whole system. A large number of the controls have already been removed, and all are under active consideration by the respective departments which are administering the regulations made under the War Measures Act. The Department of Justice is in the fortunate position of having been able to recommend the repeal of practically all that had to be administered by its officials. Neatly all the defence of Canada regulations have been repealed, and those small portions which remain to deal with such matters as prisoners of war and with the troublesome question of residents of Canada of the Japanese race, et cetera, and are constantly under active consideration for the purpose of effecting restriction to the greatest possible extent.

The bill as drawn will of course be subject to very careful scrutiny, as to each of its sections, when it is considered in committee. This is not the time to discuss the extent to which its provisions go. WThen the bill has reached the committee stage I expect to be

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able, to supply much information which will be required by hon. members. At this time however there are only the two questions I mentioned in my opening observations which require consideration. Are we still in a condition of national emergency such as to affect the distribution of legislative powers between the dominion and the provinces, and, as a practical proposition, such as to affect what should be the distribution of legislative functions as between parliament and the governor-in-council?

Though active hostilities have ceased since V-J day, I would ask hon. members to bear in mind what took place after the first great war. To refresh their memories I would point out that the cost of living index in November, 1918, showed' an increase of 54 per cent above that of 1914, and in July 1920 it showed1 an increase of 92 per cent above 1914. The wholesale price index in November, 1918, showed an increase of 100 per cent above 1914, and in May, 1920, showTed an increase of 155 per cent over 1914. It will be seen that the economic consequences of the disturbance brought about by war conditions were more serious following the cessation of hostilities than they were during the period of hostilities. That is something which might very well be anticipated as likely to happen again- and with increased violence this time, because the amount of purchasing power which has been distributed and saved by the Canadian people is very much larger than it was in 1918, and the shortages of essential supplies, housing and so forth appear to be greater now than they were at the end of the other war.

I submit, to the house that without in any way departing from its attachments to the traditional constitutional practices of a free parliament, there is a situation which requires to be dealt with in an extraordinary way, and for that purpose there is required the extension of- some emergency powers. This bill provides that it shall be in operation for no more- than one year, unless before its expiry the houses of parliament by an address request that it be extended for a further period. That is not only because we are more modest than the government of the United Kingdom; it is because we think it is necessary that there be frequent consideration by parliament of the real situation as it exists, and that the only safeguard for the kind of legislation which was found to be necessary during the war, and which overrides the ordinary aspects of property and civil rights, would be a declaration, not by the government but by parliament, representing the nation as a whole, that parliament considers that that situation

still exists. And there should be at periods not exceeding one year a review by parliament of the situation. No other declaration would comply with the language used by the privy council as a decision of statesmanship. The courts will be loath to interfere, only if it is made by a parliament representing the nation as a whole after due consideration of all the factors and the consequences involved.

I submit that the principle of this bill should be adopted, and I suggest that as expeditiously as may be convenient, we should get to the committee stage so that we may determine there the' extent to which emergency powers should be provided for at this time.

Topic:   NATIONAL&quot; EMERGENCY
Subtopic:   BILL TO CONFER CERTAIN POWERS UPON THE GOVERNOR IN COUNCIL
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PC

John George Diefenbaker

Progressive Conservative

Mr. J. G. DIEFENBAKER (Lake Centre):

Mr. Speaker, first may I say to the Minister of Justice (Mr. St. Laurent) that I followed with much interest his remarks in regard to this bill. It was an address delivered without any suggestion of partisanship, and in what I have to say I intend to follow a similar course.

May I say at the outset that I felt that at times the minister was struggling as he endeavoured to explain why it was necessary for the government to ask for the extensive powers that are requested in this 'bill. He expressed the opinion that the principle to be decided on second reading was this: First, is there an emergency? Second, by reason of that emergency should certain powers that ordinarily rest in the legislatures of the provinces be allocated to the dominion for a period of one year?

I found myself in agreement with him when he stated that certain controls were necessary, and when he referred particularly to the necessity of controlling prices and goods in short supply in order to assure a fair distribution of scarcity. But I draw the attention of the house to the fact that while the government asks that certain controls be continued, the government through the minister does not designate what those controls are to be. The minister quoted with approval a reference in the speech from the throne wherein the governor general used these words:

You will be asked to approve a measure to extend certain specified emergency powers to meet emergency conditions in the period of reconstruction.

Mr- LALONDE: Do I understand my hon. friend to say that he thinks the minister should have given a list of controls?

Mf- DIEFENBAKER: If the hon. gentleman will permit, I should like to follow through my argument. I want to know what controls are being asked for. I do. not want

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to be misunderstood, because I think the question is a proper one; but at the moment I was leading up to the point I wished to make. When the minister stated that there was a principle at stake in this bill, the only control he referred to was a control with reference to prices. In order to bolster up his argument he went back to the prices that prevailed during the inflation days following the last war. He says that no reference should be made to the details of the bill. I contend that parliament, in a desire to assure that there shall be a fair distribution, of scarcity and that the dangers of inflation shall be prevented, will be in general agreement provided that specific measures are brought, before it. What the government in fact is doing under the guise of this bill is to introduce a measure which goes farther than any other ever introduced in this parliament or any other parliament in the empire, and which far exceeds the powers asked for by the government of the United Kingdom within the last six or seven weeks, and it need hardly be mentioned that in that country there is in power ft Labour government- which intends to change the whole economic system and bring into effect socialism by the socialization of banks, coal mines and other great industries.

Let me point out that the powers being asked for in the bill that are objected to are not the powers that were referred to by my learned and hon. friend; they are powers that cover everything that any province could possibly do under its constitutional powers, as well as everything that parliament can do. If, as the minister says, all the government is asking for is the power to impose certain controls, I say to them: Bring in a measure to that effect and tell us how they are going to operate. The government should not be permitted through a measure conferring upon them general powers, to ask for the powers that are vested in them by this legislation.

Only the other day the Minister of Finance enunciated a proposition with regard to cabinet government which was a return to the days of Charles I. It was of interest to me to note that in the quotation the minister gave at the end of his remarks he indicated that he had been reading of the period of Charles I and Charles II. Here is what this government is asking for. It is asking parliament to delegate to the governor in council the following powers: First, all the powers under the War Measures Act as it exists to-day. Then the bill says this:

and for greater certainty, but not so as to restrict the generality of the foregoing terms-*'

[Mr. Diefenbaker.l

In other words the War Measures Act does not give the government sufficient powers. It goes on:

-it is hereby declared that the powers of the governor in council extend to all matters coming within the classes of subjects hereinafter enumerated.

Let me refer to those subjects:

(a) production, manufacture, trading, exportation and importation.

Everything under the sun that business or agriculture could do in Canada is covered by that. And the powers asked for are over and above those contained in the War Measures Act is contained in that paragraph. Then "(b) foreign exchange." I am not going to argue about .that, realizing the necessities of the moment and the agreements among the united nations. Then "(c) transportation by air, road, rail or water." If the only control the government wants is the control over prices, as has been stated, why ask for control over transportation by air, road, rail or water? What is the purpose of that? Then, the next:

(d) supply and distribution of goods and services, including the fixing of prices;

(e) employment, including salaries and wages.

These are the only two controls to which the minister made reference. Next (f):

(f) appropriation, control, forfeiture and disposition of property and of the use thereof, including the control of rentals and occupation.

Why does this government ask for the power of forfeiture of property? If the only control that is necessary is one over prices in order to ensure a fair distribution of goods in scarcity, and to prevent inflation, I ask again, why does the government ask for the power of forfeiture? Little wonder that the minister was somewhat apologetic when he stated how difficult it was to come before parliament and ask that these undemocratic powers be vested in the governor in council. I am pleased with what the government did in regard to the legislation in dispute in the province of Saskacthewan, in that it has left that legislation to the courts. That is democratic ; it is proper; it is the course, I say with deference, that should have been followed. But under this act it asks for powers that no socialist government taking power in this country could ever surpass; in fact, a socialist government could with much fewer powers change the entire economic system of this country'.

I go on to the next:

(g) entry into Canada, exclusion and deportation, and revocation of nationality.

Sir, what has that to do with controls over prices and the assurance that everyone shall receive a fair share under rationing and at.

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reasonable prices? This paragraph is a denial of the rights of British citizenship and it is asked for and placed in a measure introduced by a government which has said over and over again that irrespective of one's racial origin British citizenship means something. Instead of the government bringing in a bill to revoke British citizenship, it brings it in by the back door by giving power to the governor in council to deport anybody, no matter how many generations he may have lived in this country. Sir, there is more in this paragraph (g) than the principle to which the hon. Minister of Justice referred.

And then finally:

(h) imposition and recovery, in connection with any scheme of control contained in or authorized by orders and regulations, of charges payable to the Receiver General of Canada or into such fund or account as may be ordered.

There may be an explanation of that. But it is a comprehensive section of this bill which the government asks parliament ;to approve.

I shall refer later to some other sections of the bill, which in effect would constitute an abnegation by parliament of its rights.

I said at the beginning that I accept the need for certain controls. But why is the government, in taking this means of continuing these controls, adding powers which by no stretch of the imagination are capable of being used for the purposes indicated by the minister in his speech? In moving the second reading of the bill the minister on behalf of the government is asking us to say that there is a national emergency. Here let me refer for a moment to the declaration of the committee of the Canadian Bar association, which the minister quoted with approval. Let me quote one part of it with approval-nay, all of it, in fact:

Let them face the issue directly and submit to parliament a new law affirming the existence or the apprehension and determining the exact nature of the new emergency.

I ask the minister, when he replies, to tell us where in the speech he delivered he determined the exact emergency that requires the vesting in the governor in council of control over production, manufacture, trading, exportation and importation; transportation by air, road, rail or water; appropriation, control, forfeiture and disposition of property; entry into Canada, exclusion and deportation, and revocation of nationality.

We accept the principle of the need of some controls being continued as enunciated by the minister; we accept it with approval. But we say to the government, bring in your bill defining in precise terms what the nature of the control is to be, and in respect of what 47696-155

matters. I realize that in a time of war it is axiomatic that the survival of the state is paramount; the continuance of democratic symbolism is of lesser importance. But I also say this, that subject to the immediate needs and necessities which should be determined and placed before parliament, unnecessary abridgments of undemocratic rights must end with the return of peace.

This bill is epoch making. If it become law it makes the governor in council allpowerful for a period of one year, without regard to the desires of parliament. Sir, parliament has been a casualty of this war, and it must not remain so. Under the proposals contained in this bill as drafted the only right which parliament will possess will be the right to determine supply. It not only grants to the governor in council the powers to which I have referred, but it gives the governor in council power to delegate them to someone else. In support of that contention I refer to section 3, subsection (1):

The governor in council may do and authorize such acts and things, and make from time to time such orders and regulations, as he may by reason of the existence-

The authority for delegation is contained in the words, "and authorize such acts and things." Parliament will be supplanted for one year, and the bureaucracy which this country has built up during the rperiod of the war is perpetuated.

Look at the powers asked for. The minister would not let members look at them; we are just to look at the preamble and ithen we are to vote on a question of principle. I say to you, sir, without fear of contra

diction that section 3, coupled with the preamble, contains a comprehensive and allinclusive dictionary of the powers which were or could have been in the contemplation of the draftsman. There is not a field of economic welfare, not a field of business, not a field of life itself in all its ramifications that the governor in council will not have absolute power over, as will those to whom he will delegate the power. It goes beyond anything suggested in the speech from the throne of September 6, the words of which, I repeat, are these:

You will be asked to approve a measure to extend certain specified emergency powers to meet emergency conditions in the period of reconstruction.

Is this emergency such that there is no power under the sun which the government will not need? _

The governor general in his speech said "certain specified powers". The government introduces a bill with no specification, but simply an enunciation of all the powers which

Topic:   NATIONAL&quot; EMERGENCY
Subtopic:   BILL TO CONFER CERTAIN POWERS UPON THE GOVERNOR IN COUNCIL
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RET I SET) EDITION


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can be contemplated under the War Measures Act and, "without restricting the generality of the foregoing," the other additional powers. What parliament is being asked under this bill as it stands is to give the governor in council a blank cheque of power authorizing the governor in council or those delegated by him to exercise all the powers under the War Measures Act and all the additional powers comprised in scetion 3, subsection 1. This bill pretends to place the War Measures Act in peace-time garb, whereas in point of fact it clothes the governor in council with greater powers than ever before. Parliament ceased to exist, legislatively speaking, during the period of the war. The legislation in the main was passed by boards and controls and deputy ministers under the War Measures Act. There are six volumes of these acts and regulations. Boards were multiplied on every hand, new agencies were created, and every board and every agency became a little parliament of its own having the right to legislative authority. The first principle as I apprehend it that we must follow in this house is to assure a fair distribution of goods; to take measures necessary to prevent inflation; to give private enterprise an opportunity to do a job for this country a's it did during the period of the war, both in industry and in agriculture. The people of this country want jobs, and they expect parliament to create an atmosphere of confidence in government instead of the uncrntainty that now prevails. No man knows what the next control is going to be, or the next interpretation of controls already effected. I believe that an end must be put to the uncertainty of having 'one board giving the green light to business and to industry, and another, almost at the same time, giving the red light. I believe in the maintenance of economic equilibrium, but economic equilibrium cannot be secured or maintained by the establishment of administrative anarchy under a bill such as the one now before us. The minister mentioned Great Britain, and spoke of the powers parliament had delegated to the executive for a period of five years. Powers were granted, but parliament was left in control by a provision of the British act that any orders in council passed under that act should be laid on the table of the house for a period of forty days, during which any member of parliament may on motion ask parliament to revoke or repudiate or discharge the order in question. There is no such power here. Why was not that power included if it was not intended that absolute power without recourse to parliament was to be exercised on the part of the governor in council? The only provision in that regard is contained in section 3, 'subsection 4: Every order in council made under this act shall be laid before parliament as soon as may be after it is made. No provision such as is made in Great Britain, where a socialist government, carrying out its great programme as it sees it, took steps to see to it that parliament should have the right to review at any time the acts of the king- in council. Re-read the powers to be conferred under this bill. If the government exercise these powers it will be but a short step from regulation of business by government to government in business. I believe that the government has a place in the control of business to assure fairness and square dealing and to prevent cartels, and it has a place too in certain monopolies-electricity and the like. But, sir, no country can exist one-half private business and one-half government enterprise, each in competition with the other in the field of business and commerce. If another government came into power to-morrow all the powers which are conferred permit of just that. Now I come to section 5, for the description of which it is difficult to find suitable words. How many hon. members in this house realize the import of that section? The orders and regulations made under the War Measures Act or pursuant to authority created under the said act in .force immediately before the day this section comes into force shall, except for the purposes of subsection 4 of section 3 of this act-[DOT] That is, those already revoked. -be deemed to be reenacted on that day under this act or pursuant to authority created under this act. Mr. ST. LAURENT: The reference is not to those already revoked; that is already provided for. The reference there is to the requirement to table. They have already been published. Mr. DIEFENBAKER.: The correction is properly made. I thank the minister for it. That section means that all the orders in council that have been passed since 1939 will, on the day that this bill becomes law, be deemed to have been enacted by parliament and to be thereafter in effect./. The minister said that the government was proceeding rapidly in the matter of decontrols. Well, here is the record. The promise in May and June, during the election campaign, was that unnecessary controls were to be removed, and the Minister of Reconstruction made the Statement in one of his speeches as reported in the press that eighty per cent would be removed immediately after the end of hostilities in Japan. National Emergency I do not believe in wholesale decontrol. I realize that there must be a degree of gradualness. In this regard the minister saw fit to compare Canada with Great Britain. Let us compare them, then, from the point of view of the speed with which the two countries have respectively decontrolled. In Canada, between V-E day and October 22, 1945, the total number of orders in council that had been dealt with, which had been passed under the War Measures Act, were: revoked, 13; revoked in part, 5. Since V-J day there have been revoked in their entirety, 21 and revoked in part, 5. In Great Britain the home secretary, when introducing the measure in the House of Commons on October 10, pointed out that as far as possible the government to which he belonged would ensure that parliament maintained control over controls and that orders in council would be revoked with dispatch, particularly those that were undemocratic. This is what he said-as reported in the press-speaking in the House of Commons: The government intends only to retain those war-time powers which were desirable in the public interest during the period of transition from war to peace. The government of the United Kingdom do not w-ant ail the powers this government is asking for, and in the main, are keeping the power to control prices and to make sure that all will receive a fair distribution. He goes on: ' On May 8, V-E day, there were in existence 342 defence general regulations and 345 other regulations; a total of 687. On the next day the present Lord President of the Council, then the Home Secretary- Mr. Morrison. -announced the withdrawal of 84 of the general regulations and 95 others, a total of 179. He then points out that since the Attlee government came into power it has Ween doing the same, and the result is that to-day the total number that has been reduced is 219 general regulations and 241 others, a total of 460. The only powers that Britain is retaining in its government are the powers that affect activities that must be continued during the period of transition if chaos is to be avoided. What is the situation here under section 5? The total number of formal acts of the governor in council up to September 28 is 94,731 including 58,402 orders in council. These are orders in council that have been brought to light. How many are there that have not been brought to light? How many secret orders in council is this parliament asked to approve under section 5, making them law on and after the date on which this bill becomes law? Only the other day the 47G96-155i Eldorado order in council was brought to light, two months after it had been .passed. The seamen's order, which denied a man the right to have counsel, and placed him in the position where he could1 be brought before a board and made to give evidence against himself and be sent to prison thereunder, came to light in the prosecution of an unfortunate in British Columbia. Section 5 ratifies everything that the government has done under the War Measures Act and all the orders in council in effect on the date when this bill becomes law. If this bill had become law when it was first introduced, or two or three or four weeks afterwards, parliament by passing the measure would have been unwittingly approving the Eldorado order in council, although it was a secret order, however tyrannical its operation and however detrimentally it might have affected justice. I do not know how many orders in council -were passed under the War Measures Act, and neither does the minister, becuase he told me so in answer to a question some weeks ago. No one knows. The minister said it would require a careful examination over a considerable period to find out, first, those that were passed under the provisions of the War Measures Act, and second, those which, while not designating the War Measures Act as the parent, had nevertheless been in effect passed thereunder. I repeat, under section 5 parliament is asked to give approval to orders in council passed amder the War Measures Act, sight unseen, in some cases unheard of by parliament. That section when it was introduced, had it been translated, into law; would have afforded the commissioner under Eldorado an opportunity to exercise tyrannical powers and would have denied anyone affected by this provision recourse to the courts,. because it would have been considered to have been passed by this parliament, and as the minister stated if parliament declares that there is an emergency the courts will accept a lawful emergent legislation passed in consequence, and cited in support of his contention the Fort Frances case. . Parliament should not be asked on second reading or on any other reading to approve and adopt as its own star chamber legislation which it does not know anything about, the production of which was denied-held back is possibly, a better way of putting it-and in respect of which the government refused or neglected for one month to answer questions I asked on October 5. Under the guise of giving support to certain controls we are asked to stand up manfully in this parliament and say to the government: We place National Emergency



our approval on everything that your controllers and ex-controllers, your boards, agencies or commissions have done under the War Measures Act whether we know of their existence or not. We are asked to say: We accept the orders in council upon which they acted. Surely, sir, never before was any parliament asked to do such a thing. Admitting the necessity of controls such as those to which 1 have referred, I ask why the government did not bring in a bill covering them specifically? Under the guise of bringing in certain controls we should not give to the governor in council a despotic power uncontrolled by parliament. I should like to know this from the minister who drafted the bill: Were some of the bureaucrats who desire to hang on to the powers they have had during the period of the war consulted? Did they participate in the draftsmanship? Experience has shown, sir, that men who get unlimited power are not willing to release that power without a battle. Under section 5 parliament is asked to approve orders in council under which democratic powers have been annihilated. And what is more-I could refer to them by name- under some of the orders in council which we are asked to approve, bureaucrats not only make the laws but they are also the judges of their own acts. Are we to approve those acts? Are we to be asked to approve what las been going on in this country, discrimin-ited in some cases against small businesses? That is what we are being asked to do. In Great Britain the government accepted suggestions from the members and carried them into effect. I suggest that this bill be submitted to a committee of the house with power to examine the controllers who will be affected by this particular bill and have them answer for what they have done, have them give an account of their stewardship before parliament perpetuates them in office under the provisions of section 5 of this measure. I deny to the government the right to ask parliament to approve and accept secret orders in council which deny access to the courts; yes, and under which in some cases where gross unfairnesses were effected by tyrannical acts on the part of certain investigators and snoopers who went about this country inciting the commission of offences, and who have been imputing bad faith to honest people instead of excusing mistakes that were of small significance. I make that statement advisedly. In my own province an honest man was followed, and followed, and followed, and finally after a week's inducement he did what men sometimes do when given the opportunity of having a large amount of money placed before them; he capitulated, and then he was prosecuted. Sir, it was never intended that justice should be administered as it was in that particular case-and it is not an exceptional one. I deny the right of the government to ask parliament to perpetuate the general emergency as envisaged in paragraph 3, subsection 1, when all the minister establishes is an emergency in one or two fields. If the government do not intend to use these powers, why do they want them? Surely it cannot be argued that the government wants them only for decoration. Does the government contemplate that before parliament meets again in March, a matter of three months, they will need the power under this section to introduce a planned economy and industrial and agricultural regimentation such as is envisaged in certain of the provisions of this measure? If the government do not intend to use these wide powers, why do they ask for them? Why do they not ask only for the powers that are necessary, instead of asking for a blanket authority to cover everything that can possibly be conjured up? I refer also to the section dealing with entry into Canada. Does parliament intend to confer on the governor in council the right to say whether any particular person shall come into Canada? Why is this not done under the Immigration Act? What has the government in mind? Why is this power sought? For years I have heard people speak of how unfair certain legislation was in 1917. In 1945, with the war over, the government asks parliament supinely to place in its hands citizens of whatever racial origins they may be, British subjects or any others, with the right to deport them on the order of the governor in council or of some other person designated by him. I come to another phase of the question. In 1941 I happened one day to be studying a statute, and I found that the advice I had given on it did not work out as it should. Well, lawyers sometimes find that. When I looked into the matter I found that the statute had been amended or suspended in part by an order in council. I placed- a question on the order paper. There were those who said: "Do you mean to tell me that statutes passed- by parliament are being amended, suspended1 or abrogated by order in council?" Finally I got an answer. It took a long time. A return fully an inch and a half thick was brought down, listing the statutes suspended or amended by order in council. Are we being asked under section 5 to approve in time of peace what has been done in this regard during the period of war? National Emergency


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John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

The hon. member for Yale (Mr. Stirling) says that we are; and it is a fact. The government ask this parliament, after the end) of hostilities, to approve that statutes which are still in a position of being suspended, amended, or abrogated by orders in council shall be accepted by parliament as being amended, suspended or abrogated, as the case may be.

The preamble always gives the course and indicates what has been in the mind! of the ' draftsman. When one reads the preamble to this bill he can come to only one conclusion, and that is that the government intends that everything that has ever been done under the War Measures Act shall be approved, and that further powers shall be given.

Let me read part of this preamble:

And whereas it is necessary for the peace, order and good government of Canada that during the period of transition to normal from the exceptional conditions existing during the war, with the attendant dangers and responsibilities for the nation as a whole, acts and things done and authorized and regulations and orders made under the War Measures Act be continued in force.

As I said a while ago, we are asked to approve everything, the controllers have ever done under the provisions of the War Measures Act. We are asked to accept and adopt all the orders in council passed under that act. I always thought that knowledge was necessary before there could be approbation or approval.

Then the preamble goes on to say:

-and that the governor in council be authorized to do and authorize during the said period such further acts and things and make such further orders and regulations as he may by reason of the national emergency resulting from the war deem necessary or advisable for the security, defence, peace, order and welfare of Canada.

That is the conclusion of the preamble. This bill as it now stands seems to have been carefully conceived and equally carefully drawn to assure that every hon. member who votes in favour of it will be placed in a position where it can be said of him that all criticism, of what has been done by controllers, officials and other war agencies, of the unfairnesses which in many instances have occurred, of the administrative despotism which has denied appeals to the courts, of the orders in council which have denied the rule of law and in some cases have permitted discrimination as between members of the same class, has been ffilse and empty, for on voting for the emergency powers bill you have approved and adopted them. On the other

hand, if one takes the other view some w'ill say to the people of Canada that those who so voted are against proper controls.

I say to the minister: Bring in a measure showing what you are going to do in maintaining necessary controls, and there is not a member in the house who in the interest of peace, order and good government in this country will not support you. But we want to know. We do not want the minister to come before the house and, after a cursory examination of the bill, say to us, "Well, there are a couple of things everybody is in favour of"-knowing that we are all in favour of those things, but at the same time failing to deal with the larger principle at stake, namely, that of whether in this country we shall perpetuate the despotism of a bureaucracy which to-day controls in every part of our country, which is endeavouring to maintain itself, and can so maintain itself only if it secures powers such as are comprised in this bill. . ,

Now I come to an even more serious matter. The minister, when referring to the Fort Frances Pulp and Paper company case, quoted the following words from the judgment:

In the event of war, when the national life may require for its preservation the employment of very exceptional means, the provision of peace, order and good government for the country as a whole may involve effort on behalf of the whole nation in which the interests of individuals may have to be subordinated to that of the community in a fashion which requires section 91 to be interpreted as providing for such an emergency. The general control of property and civil rights for normal purposes remains with the provincial legislatures but questions may arise by reason of the special circumstances of the national emergency which concerned nothing short of the peace, order and good government of Canada as a whole.

If parliament passes this bill in its present form, we in parliament will be conferring upon the governor in council, or his delegated authorities, power to entrench on matters of provincial legislation-not in respect of a scattered few subjects, but in everything that can possibly came within the ambit of the powers of a provincial legislature. The government is asking for legislative jurisdiction over property and civil rights equal to that possessed by any legislature in this country. If passed in its present form, this measure places the dominion in a position where it can dominate the dominion-provincial conference. If we pass this bill in its present form, then for a period of one year parliament is informing every legislature in the dominion, "We have emasculated your powers, and turned them over to the governor in council. They comprise everything that a legislature can do,

National Emergency

every possible power a legislature could ever discharge, and we have placed all these powers under the control of the governor in council."

Have the provinces been consulted?

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John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

Are they agreeable to having all these powers turned .over to the governor in council, for a period of one year? And it is not only for a period of one year; if the minister is in a position to have the necessary majority behind him to secure an address passed by this house and the other house. I say that we in parliament have a right to know whether the provinces are willing to have their rights taken away for a period of more than a year or more, because if they have agreed thereto much of my argument in that connection would have no point. If they have not intimated to the dominion government that they do not mind what powers are taken from them, then the dominion-provincial conference next week will be nothing more than a formality, controlled by the fact that the provinces will be in a position where the dominion can do anything it pleases regardless of their wishes and desires.

There were certain other matters I had intended to discuss at this time, but I shall defer them to the committee stage. I would ask that, before second reading, this bill be sent to a committee, so that once and for all we would have an opportunity of seeing and hearing from some of the men who control the destinies of this country outside parliament, and who have legislated for us throughout the period of the war. There is no one in this house who could ask those men any questions that would be embarrassing. Find out from them at first hand what powers they need and what the economic situation is in certain particular phases wherein they believe necessary controls should be maintained.

While the minister talks about the danger of inflation and the necessity of controlling wages, across the line thg President of the United States avers that what must be guarded against is the possibility of disastrous deflation and that industry as a whole could raise wages substantially for a period of six months without increasing prices.

Let us find out what powers these controllers or officials intend to use, how they are going to use them, when they are going to use them and who they are going to use them on. If we in this parliament are to delegate the power that we are delegating to the governor in council and to those to whom he delegates the power, do we discharge our responsibilities in parliament in accepting as our legislation the thousands of orders in

council that are still in effect under the War Measures Act? Why should we put our imprimatur of approval on something we do not know anything about? Let the government bring before the committee the orders in council which have been passed under the War Measures Act, after the government finds out which ones were passed under that act. Bring them before the committee and let us examine them so that we shall know what they are and the import of each.

If we are going to delegate this absolute power that will make of this parliament for a period of one year a phantom, legislatively speaking, let there be a provision in this bill, as there is in Great Britain:

. . . and every order in council made under this act, shall be laid before parliament as soon as may be after it is made; and if either house of parliament, within the period of forty days beginning with the day on which any such order in council, order or instrument is laid before it, resolves that it be annulled, it shall cease to have effect, but without prejudice to anything previously done thereunder or to the making of any new order in council, order or other instrument.

Why have we not done that here? The minister spoke of the fact that in Great Britain the Labour government had taken this power for five years but, as the home secretary said, they intend to leave parliament to control; they are going to let members of parliament rise in their places and ask for the support of the House of Commons or the House of Lords, as the case may be, to revoke or repudiate orders in council passed under the emergent powers granted by parliament.

There is another control in the United Kingdom. The House of Lords has set up a committee to review' all these orders in council. I think the time has come when possibly the other place might well consider-and I say this with great deference'-looking over afid considering the mass of ordfers in council, this march of legislative enactments oyer a period of years. They should be examined so that it could be ascertained which of these orders in council impinge and infringe upon private rights, and are unnecessary.

Can there foe any objection to that? That committee would have before it the controllers and other officials who could come marching with their orders in council which they are asking us to perpetuate for a period of another year and possibly more. Great Britain protects the right of parliament by providing that orders in council may be set aside after being submitted to the scrutiny and examination of parliament. Do that and those who desire to perpetuate themselves in office under order in council legislation will be placed on the defensive. In my opinion this

National Emergency

bill as it now stands asks parliament to abdicate its right to control. The laws that are to be passed will affect every phase of the economic life of this country, as well as our national life, under the section dealing with nationality and deportation. Let us retain in parliament, with the coming of peace, the right to legislate. If that is given up, let us know how it is being exercised. Let us act, if I may use the expression, as the police of the regulations that are enacted.

The minister said that we have to continue controls, but in Great Britain to-day the trades union congress is demanding that controls over labour ,be relaxed. They contend that if these controls are perpetuated and continued they will prove a hindrance rather than a help to obtaining production and giving an assurance to men that they will be able to secure jobs. In this country we find that some of these controls curb industrial expansion. No one knows what will happen to-morrow. There can be jobs only if there is encouragement to industry to expand. There is no encouragement when industry does not know what the next law is to be that is passed behind closed doors by a controller who is not responsible to parliament.

Let us examine the "whole situation; let us review the controls that now exist. I think the minister was rathgr apologetic as he placed this measure before parliament because, distinguished and outstanding lawyer that he is, he knows that never before did any government ever ask for powers like these. I like to think of what would happen if the position were reversed, if we were on that side of the house and they were, over here. We would hear of Magna Charta and the Bill of Rights; we would hear of the Atlantic charter.

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An hon. MEMBER:

We are getting it

now.

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John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

I am glad my hon. friend is listening. He just arrived and he does not realize what I have been dealing with up to the present moment. I read the debates of parliament during 1920 and 1921 before the Meighen government went out. That government never attempted to bring before parliament a bill asking for a scintilla of the powers that are being asked for under this bill.

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LIB

Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLANTON :

Did it not just enact section 98?

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John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

The minister speaks about section 98. I ask him what that has to do with the question before us now. Is that all the legislation that he knows anything about?

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Brooke Claxton (Minister of National Health and Welfare)

Liberal

Mr. CLAXTON :

Will the hon. member allow me to answer.

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John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

The minister can

make his speech later on., I say that no government in this country would have attempted to bring in a bill such as this one before the last six j'ears because of the fear of liberty loving people. I am beginning to think that this government, having regard to some of its expressions with regard to representative and responsible government as enunciated by the Minister of Finance during the past few days, has arrived at a point where it believes the people of this country after six years of war have been anaesthetized against responsible government and democratic institutions. I think of the words uttered in the British House of Commons by one hon. gentleman who said:

Legislation such as this may kill the instinct to liberty in this country simply because liberty becomes a legend which nobody remembers.

Liberty will become a legend in this country for a period of one year if parliament abdicates its powers to the extent that it will have done if this bill passes in its present form. Parliament will have placed the governor in council in the position that all the powers he exercised during the war will be as nothing compared with the powers that he will be permitted to exercise if this legislation is passed in its present form. Parliament must call a halt.

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November 23, 1945