March 21, 1949

PC

Donald Methuen Fleming

Progressive Conservative

Mr. Donald M. Fleming (Eglinlon):

I should like to go back, Mr. Speaker, to the speech made this evening by the Minister of Justice (Mr. Garson). Only he could have made it. That speech could not have been made by anyone who had sat in this house during the four previous sessions in the life of this parliament, because the review of the history of legislation with which the minister introduced his speech, and which occupied much of the time of his speech, was very inaccurate history indeed. I wish to set the record right to begin with tonight, because it would be a great mistake if the record which was given to the house by the Minister of Justice (Mr. Garson) ever by any stretch of the imagination came to be regarded by anybody as an accurate account of what happened.

The minister began with the War Measures Act, and then he said the moment the war

1738 HOUSE OF

Transitional Measures Act was over the government ceased to operate under the War Measures Act. Mr. Speaker, that is not a statement of fact. That is a statement which is at variance with the fact. Then he went on to talk about the bill which was introduced in 1945. I want to go back to the fall session of 1945. The bill which eventually became law in 1945 was not the bill which was originally introduced by the government. The bill which was originally introduced by the government was Bill No. 15, which was to be known as the National Emergency Powers Act, 1945. The minister completely glossed over this. Whoever wrote that speech for him had not told him about this essential feature of the history of the legislation because, Mr. Speaker, this legislation was so shocking in the powers that the government sought thereby to usurp at the expense of parliament that an outcry arose from one end of this country to the other. The powers that the government sought in this measure exceeded those which the government possessed under the War Measures Act. It is high time that the Minister of Justice made himself acquainted with the terms of Bill 15, a shocking bill, because by that bill the government sought at the hands of parliament powers as broad as these:

3. (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 of the national emergency . . . deem necessary or advisable for the security, defence, peace, order and welfare of Canada.

Then it goes on:

And for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the governor in council extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say:...

Bear in mind, Mr. Speaker, they are given power to do everything that was considered necessary or advisable arising out of the national emergency. What follows is not exhaustive; it is exemplary:

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

(b) foreign exchange;

(c) transportation by air, road, rail or water;

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

(e) employment, including salaries and wages;

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

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

(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.

That bill did not pass, Mr. Speaker, but it was a measure of the mind of the government.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

What bill is my hon. friend quoting from?

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Bill No. 15.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

What book is my hon. friend reading from?

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

The bills of the second session of 1945. That bill, Mr. Speaker, contained the mentality of the government with reference to the powers that it sought to take from parliament in 1945. The hue and cry was such in this house and elsewhere that it found its place into the deliberations of the dominion-provincial conference then in session. It may have escaped the recollection of the hon. gentleman, but the premiers of the provinces then assembled made it quite clear to the Prime Minister of that time that they would not consent, that they would not continue to deliberate with the federal government, if the federal government, by a measure of that kind, was going to trample underfoot the constitution of this country and usurp powers, not only powers which belonged to parliament, but powers which are reposed by the constitution of this country in the legislatures of the provinces. It was under a stream of protest, Mr. Speaker, that the government had to yield and withdraw that iniquitous Bill 15.

Such was the mind of this government, Mr. Speaker, that they were determined to usurp everything that they could, and with a submissive majority in this house they were able to take from parliament in a bill which did become law, and is chapter 25 of the statutes of the second session of 1945, the following powers as enumerated in section 2, which reads as follows:

2. (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 continued existence of the national emergency arising out of the war against Germany and Japan, deem necessary or advisable for the purpose of . . .

Then there is a series, and (c) reads thus:

(c) maintaining, controlling and regulating supplies and services, prices, transportation, use and occupation of property, rentals, employment, salaries and wages to ensure economic stability and an orderly transition to conditions of peace.

This government wanted absolute power, Mr. Speaker. It wanted all the powers that are reposed in parliament, and it wanted all the powers that are reposed by the constitution in the legislatures of the provinces. That is what this government wanted, and that is the shameful record that the Minister of Justice has the effrontery to stand up in this house tonight and defend, when he says to this house that the moment the war was over this government ceased to act under the War Measures Act, and that it came forward and

did things in a statutory way. What did it do, Mr. Speaker? It took from parliament powers that no government that has any sense of responsibility to the constitution or to the people has any right to demand in time of peace.

That was 1945, Mr. Speaker, and the minister has said that the government came back to parliament in connection with each phase of decontrol. It is too bad that whoever wrote the minister's speech did not take the trouble to give the minister the facts, because the next time that the government came back to parliament was in 1947. And what a proposition it put up to parliament on that occasion! It said: Here are fifty-seven orders in council. It is too much trouble for us to bring in proper bills. We like these orders in council. We have been operating under them, and we have our boards and commissions set up to operate under them. We do not like to make any change. Therefore, parliament, will you be good enough to give statutory effect to these fifty-seven orders in council?

I am going to suggest to the Minister of Justice, Mr. Speaker, that he go back and read that bill, because he told the house tonight that these orders in council were set out in the schedule to the bill. That is not the fact. All that the Minister of Justice, or anybody else, can find in the schedule to the bill is a series of numbers and dates. This house has not yet put its imprimatur upon any official version of the orders in council to which it was called upon to give statutory approval in 1945. All that the house was given, all that you will find in the bill, Mr. Speaker, is the numbers of the orders in council and the dates, and then there are-

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Will my hon. friend permit a question?

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

I have not much time.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

I shall make it as brief as possible. If what the hon. member says is correct, how does he explain the fact that in the schedule to this bill of which he is speaking, as it was passed, there are indications that the wartime prices and trade board orders in council were amended in many particulars, with the regulations of the corporation and so on?

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Surely to goodness the Minister of Justice could not have been paying very close attention to what I was saying. I have just said that the text of these orders in council is not set forth in the schedule to the bill, and all that the Minister of Justice, or anyone else, can find by way of text in the

Transitional Measures Act schedule of that bill is the text of half a dozen amendments. This house was not given-

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LIB

Joseph Arthur Lesage

Liberal

Mr. Lesage:

Will the hon. member permit a question?

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

-an opportunity to put the' text of the orders in council in the bill. I asked the Minister of Justice at that time to put the orders in council in the bill as a schedule. He said: Oh, no; we will do nothing but put the numbers in. And, Mr. Speaker, no one who wants to know the law today, whether about the fifty orders in council that became law under that bill, or about the twelve orders in council that exist today, will find it in the statute books. He will not find in this enactment of the parliament of Canada the text of the law that parliament was then enacting. He must go to the privy council office and try to find there what are the orders in council which are referred to by number and date in this legislation, and that act of 1947 is to be continued today. It is too much trouble, Mr. Speaker, for this government to act in the sensible, proper legislative way. It is too much trouble for a government that has become accustomed to ruling by order in council to bring forward measures and to show parliament the courtesy, or at any rate to do parliament the justice, of putting before it the text of what it is being asked to legislate.

And that same situation prevails today. The Minister of Justice (Mr. Garson) has referred to my leader, shamefully, as the John Hampden of Bay Street. Who is his leader? Surely, Mr. Speaker, in the record I have given you tonight you have the mentality of those who occupy the treasury benches and wielded this omnipotence during the war. And it is to that company that the hon. gentleman has now succeeded.

Let me tell him, if he is talking about people on Bay street, that he had better make sure he has first cleared up or cleaned out the nest of the government. He had better start with the Prime Minister (Mr. St. Laurent). When he is talking about big interests he need not look at my leader, because my leader was never part and parcel of big interests. He never was.

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?

Some hon. Members:

Oh, oh.

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

He never was a bank director; he never was a director of a trust company, or of companies, like the right hon. gentleman who leads the government today. And if you are looking for representatives of big business or those in this House of Commons who represented big business before they came here, then let the Minister of Justice

1740 HOUSE OF

Transitional Measures Act page the Prime Minister. There is where he will find his man.

And bear this in mind, that the fact that the Prime Minister had had that kind of experience was put forward by those who brought him to this chamber in the first place, and those who brought about his election as Liberal leader last August, as one of the reasons he should be leader-because he had had all that experience.

Mr. Speaker, I should think that by this time, if the Minister of Justice knows the record a little better by now, he and his ilk in the government ought to be the last to talk about representatives of big interests.

I am surprised to know that the Minister of Justice, who himself was present at that Liberal convention, that cut-and-dried affair, and heard-at least I hope he heard-all the speeches of the candidates for leadership, did not recognize the words quoted in the house by my leader, reference to which was made by the minister in his speech tonight. So there can be no mistake about the source of those historic words I shall now read, for the benefit of the Minister of Justice, the words which were uttered by the hon. member for Quebec South (Mr. Power) on that occasion on August 7, 1948, when he made a speech as a candidate before the Liberal national convention. And at that time he was speaking of those who sat on the platform. He was speaking of those at whom he was looking when he spoke. This is what he said:

X may be leading a forlorn hope, but I am leading it up to the very battlements of autocracy, complacency and inertia.

He looked straight at the Prime Minister of the day as he spoke. And, Mr. Speaker, that is the mantle which the new Minister of Justice has come forward with great alacrity to wear.

I wish to put him right on one other thing. He says that if the resolution preceding this bill had not passed on Friday night we would not have rent control. That is utterly nonsensical, as every member in this House of Commons must know. It would mean that the government would have an opportunity and that the government would have a duty to introduce a proper measure to bring about a continuation of rent control, and to do it in proper legislative form, and in a form which would recognize the responsibility of the government to parliament.

There has been so much misrepresentation on the subject of the position of this party with respect to the emergency and rent control that I should like briefly to say one or two things on the subject. One finds in the bill today no reference whatever to a national emergency. If the government is so convinced that there is today what the Minister

[Mr. Fleming.)

of Justice contended in his speech on Friday last, namely, a general emergency, a general national emergency-and note the word "general"-then one would have thought that the government would have invited the house to make a clear declaration on the point, or that at the very least there would be in the bill a recital of the continuance of the national emergency. But, no; the Minister of Justice does not like to bring that subject too directly before the House of Commons. So he simply relies upon a continuance of the recital in the preamble to the 1947 bill. That is as close as he wants to bring this subject before the house, and into the discussion on the bill.

My leader made it perfectly clear, and the house can see it at pages 1446 and 1448 of Hansard, that this Progressive Conservative party did not oppose rent control. The Progressive Conservative leader and those associated with him say that we are quite prepared and ready to support a proper measure of rent control. But we do not wish to see it done in this form. We wish to see it done in proper legislative form. And that is the position every member in the House of Commons ought to take, if he has any respect for his responsibility as a member of the House of Commons.

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LIB

Clarence Decatur Howe (Minister of Trade and Commerce)

Liberal

Mr. Howe:

So you are for controls, eh? Running back and forth.

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

We are for controls, but in proper form-not the kind of form to which the Minister of Trade and Commerce (Mr. Howe) has been so long accustomed-a man who, however sound his mind may have been when he entered parliament, has wielded such extraordinary powers for so long that one can see in him the truth of the famous statement of Lord Acton that all power corrupts, and absolute power corrupts absolutely.

Mr. Speaker, the house must make up its mind whether it proposes to proceed by a proper legislative and responsible method, such as we have advocated, or by this omnibus holus-bolus method the government is asking parliament to accept.

Bear this in mind, that we of the Progressive Conservative party have shown how the matter of rent control can be handled. We have shown how it ought to be handled in this House of Commons by proper methods, by a proper legislative enactment which would be clear and which would give to members of the house an opportunity to do their duty, a duty they owe to their constituents, the duty of carefully reviewing legislation before it becomes law. This is impossible to do in connection with these orders in council.

There are some members in the house who have not very much patience with a

discussion about the constitution. That is the kind of mentality that is found in hon. members as a result of the doubtful example set by the government opposite. I wish to give ample warning to those who are prepared to heed warnings that the course that is being followed, in regard to this measure in its present form, is one which may well lead to a defeat of the whole scheme of rent control and of other controls, if this bill should be challenged in the courts.

We have given the House of Commons a clear statement as to how this matter could be handled without jeopardizing the whole system of controls, including rent controls, if the House of Commons would follow the legislative methods we propose.

The Minister of Justice has made it perfectly clear that in his judgment-and in this respect he is correct; that is the one place in his speech where he was right-there is no power in the subjects enumerated in section 91 of the British North America Act to legislate with reference to the matters dealt with in the twelve orders in council which are to be continued.

The minister justified the legislation on the strength of the existence of a general national emergency-not a specific emergency, but a general one. Let me say to the house, and to those who are not interested in the verities of the constitution, and who are not interested in warnings about what may be the fate of democracy if this house does not rise to its responsibilities, that they are jeopardizing everything in these orders in council today by their acceptance of the course the government is pursuing. They are jeopardizing everything.

If the government will bring in individual measures, as it ought to do, it may save the controls believed by the House of Commons to be necessary. But if this measure goes to the courts-this omnibus measure dealing with twelve orders in council on a wide variety of subjects-and if the courts are not satisfied that a national emergency exists with respect to each of these subjects, let us bear in mind the fact that the courts will not sit down and say, "Well, we will recognize the validity of the measure with respect to this control, but not with respect to that control or the other control". The courts are not going to sit down and separate the wheat from the chaff, separate what is ultra vires from what is intra vires.

May I remind the house of what the privy council did in 1937 when they had before them a reference with respect to the validity of the Employment and Social Insurance Act, 1935. The government asked the courts on

Transitional Measures Act that occasion to say whether that act or any part of it was within the legislative competence of the parliament of Canada. They expressly asked the courts in case they found the whole measure was not intra vires of parliament to say what parts of it were. The reasons of the privy council will be found in 1937 Appeal Cases, page 355. In effect they said that they were not going to sit down to try to sift out the wheat from the chaff. Here is the concluding paragraph of the privy council's decision:

The other parts oi the act are so Inextricably mixed up with the insurance provisions of part III that it is impossible to sever them. It seems obvious, also, that in its truncated form, apart from part III, the act would never have come into existence. It follows that the whole act must be pronounced ultra vires.

The privy council were there dealing with only one statute and they were not prepared to say that part III might be intra vires while the rest of the act might be ultra vires. They said that they would not sit down and try to separate the parts that were intra vires from those that were ultra vires. Today we have a measure which cannot be compared as to clarity and specific directness with the statute under review in 1937; here we have an omnibus measure that simply scoops up the twelve remaining orders in council and says that they shall be law for another year. If this measure should go before the courts and it should be found that any part of it is ultra vires by reason of the general national emergency referred to by the Minister of Justice (Mr. Garson) not extending to that particular aspect of it, you may be sure that the whole bill will be ruled ultra vires. Think what a calamity there would be if the whole measure should be thrown out at a time when perhaps parliament was not in session. Would it not be the part of wisdom and common sense to divide up these various subjects and treat them individually, as they ought to be treated, and pass the proper legislative enactments with respect to each? That humble warning may fall on deaf ears, but if this measure is ruled ultra vires those words are on the record.

I wish to comment upon the proposition propounded in this house by the Minister of Justice in support of what he has had to say about the existence of no specific national emergency, if you please, but a general national emergency. He has put the validity of this measure on the basis of the existence of a general national emergency. The word "general" is his. If that general national emergency exists, as contended by the spokesman for the government, it is crystal clear that whether parliament occupies any field of legislative jurisdiction throughout the

Transitional Measures Act whole ambit of self-government in this country is simply a question of expediency or choice on the part of the government. So far as the constitutional argument is concerned, it goes this far: there is no field of legislative jurisdiction in Canada today into which this parliament may not enter by reason of the alleged existence of a general national emergency.

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?

Some hon. Members:

Oh, oh.

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Any Quebec member may well say, "Oh, oh", but the fact is that the Minister of Justice has propounded that very proposition. He was asked the other evening by the hon. member for Moose Jaw (Mr. Thatcher) what he had to say on this subject. The question asked by the hon. member was not an unreasonable one. First of all I shall refer to what the Minister of Justice said, before he was asked the question, as reported on page 1650 of Hansard. He said:

I apprehend that, once a national emergency has been established, then, on the basis of that national emergency, parliament can legislate with regard to any of those matters if it so chooses.

That closing phrase referred to a long enumeration taken out of the general wartime prices and trade board order. The Minister of Justice was saying that today parliament can legislate with regard to all those subjects because a national emergency exists. Then to make the matter crystal clear, the hon. member for Moose Jaw asked this question, as reported on page 1652 of Hansard:

Will the minister permit a question frt>m this corner of the house? If he says that there is a general emergency, as he is arguing, why are we dropping so many controls as he proposes to do?

That was quite a reasonable question from the point of view of the hon. member asking it. The spokesman for the government on everything pertaining to the law and constitution of this country replied:

That is a very easy question to answer, Mr. Chairman. While the general emergency is the foundation for the jurisdiction that we propose to exercise here, it is a matter of judgment in dealing with the general emergency as to how we should carry on controls or dispense with them.

The position of the government is that they say there is a national emergency and everything that belongs to the field of legislative jurisdiction in Canada lies within the power of this parliament, that this parliament can exercise all its rights in view of the existence of that national emergency. There is no limit. That is the argument of the government. It becomes simply a matter of choice on the part of the government whether it invades the whole provincial field or only part of it. This government has assassinated the constitution.

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?

Some hon. Members:

Oh, oh.

[Mr. Fleming.)

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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

Even members of the hon. member's party laugh at that.

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Whoever is ready to support the government in this monstrous argument may accept for himself whatever glory he can find in being the assassin of the Canadian constitution. The proper and sensible method that a parliament at all responsible to the Canadian people should follow nearly four years after V-E day is the course that has been proposed in this house by my hon. leader.

I have asked this question: where will the reader of the statutes find the law we are continuing today? He will not find it in the statute books of Canada. He will have to go to the privy council office to learn the law which parliament has enacted.

We are told in this bill that they are going to confine their power to the orders and regulations in existence today, but where do we find those? We will have to go to the privy council office, we will have to go to the office of the wartime prices and trade board, we will have to go to all the other factories where orders and regulations are turned out.

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March 21, 1949