September 27, 1949


On the orders of the day:


LIB

George Alexander Cruickshank

Liberal

Mr. G. A. Cruickshank (Fraser Valley):

should like to direct a question to the Minister of Transport. Is the Canadian government or the Canadian National Railways considering the purchase of a "Train of Tomorrow" for the benefit of the Ontario and Quebec members? It is urgent, because they will need it on Thursday.

Topic:   INQUIRY OF MINISTRY
Subtopic:   REFERENCE TO "TRAIN OF TOMORROW"
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SUPREME COURT ACT

VARIOUS AMENDMENTS


The house resumed, from Friday, September 23, consideration of the motion of Mr. Garson for the second reading of Bill No. 2, to amend the Supreme Court Act.


PC

Thomas Langton Church

Progressive Conservative

Mr. T. L. Church (Broadview):

I wish to continue what I was saying the other day and address the house on this measure. In the few minutes left at my disposal I desire

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to reassert some of the principles which I hold as to this particular bill. In the first place I wish to state that I was not offering any criticism of my leader the other day when I said to the Minister of Justice (Mr. Garson), who introduced the bill, that it was a strange proceeding. It was a very strange proceeding. I could not get a copy of the English version of the bill until some time after its introduction. The French version was not printed. In many respects the situation was similar to that which existed as to the Bell Telephone bill of 1947 in the other place. That bill was not printed in English and French. They only had a typewritten copy and they gave second reading to it. If we are to have rules, let us abide by them in this house and in the other place.

I should like to refer to what the minister said on the second reading of the bill on the 20th of September. I want to ask him if now is the proper time to introduce such a measure. It is nothing but a political bill. It is a coercion bill. Sir Wilfrid Laurier never introduced such a bill. It simply is a bill to coerce the two central provinces to accept something in which they do not believe. I can tell you that I have been opposed to such bills from the beginning, from the time when Mr. Cahan was in the house. 1 wish to point out to the house that we should have a legal committee to consider these bills word by word. Nobody knows what the language is. The other day I referred to what they did in England where, out of

40,000 orders in council, only four ever came before the court of last resort. In Canada only three or four out of 120,000 orders in council passed during the war have come before the Supreme Court of Canada. How can anybody know the law? There is no finality to it.

I object to the bill on the ground that the matters involved are only secondary. I named them on Friday. They are secondary matters which can be easily delayed. We should have a legal committee to go over such bills clause by clause and examine them word by word. We should have a proper committee to consider them. It is in the interests of the minister to have one. I do not know why he does not have such a committee. The matters involved are only secondary until such time as the primary matters are dealt with. For that redson I moved the six months hoist for the four bills that were introduced in the last four sessions by a private member of the house.

A much wider bill has now been introduced by a minister of the crown. I should like to ask him if this is the method that Canada should adopt in order to be free? Is it the life, the truth and the way for a young nation

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of only eleven-million people at this time? Is the method proposed by the government the only way? My answer to that is that it is not the only way. It is neither the time nor the life nor the truth nor the way, and this young nation should not follow such a course.

There are going to be nine judges of the Supreme Court of Canada. The United States, with a population of 138 million people, has only that number. Canada, with a population of a little over eleven million, is going to put on the airs and manners of a great nation and deal with status, autonomy and sovereignty. "Sovereignty" is the new word that is used. Away back in 1891 Sir John A. Macdonald said, "We govern ourselves as we please".

Canada is independent of the mother country. They have never tried to interfere with us. Sir John A. Macdonald said:

For a century and a half this country has grown and flourished under the protecting aegis of the British crown. Under the broad folds of the union jack, we enjoy the most ample liberty, we govern ourselves as we please, and at the same time we participate in the advantages which flow from association with the mightiest empire the world has ever seen.

He goes on to refer to the matter in that way. On the 30th of June, 1942, I said in the house, referring to the visit of the king and queen to Canada in 1939:

The visit in May, 1939, three months before the war, showed the great popularity of the king and queen in their visit here, but the decline and decay of our parliamentary institutions had already set in, because of the fact that we had surrendered our rights and privileges and functions to bureaucratic boards of all kinds and to the executive, especially under the present Minister of Finance (Mr. Ilsley).

I pointed out that was a serious mistake. Sir John A. Macdonald dealt with that question, and very properly so. As I said during the debate on the Cahan bill, we want a British North America Act for the living and not for the dead, a British North America Act brought up to date to meet changed conditions. The only way to do that is by a conference with all the provinces, as they seem to have had a pact or contract when they came into confederation. Especially do we need this now in 1949. After two long wars the subjects of education and public health should be written into the original B.N.A. Act. Until recently Canada had only a skeleton health department, although it did good work particularly with reference to immigrants. I support the motion of my leader for the six months hoist. I moved such a motion against similar proposals when privy council bills were introduced by private members. At that time I wanted a legal committee of the two houses of parliament to consider such measures, or a legal committee of the House of Commons. We should have had one long

ago in the house. When Mr. Ilsley was Minister of Justice he said he would consider my proposals, and I understood the present Minister of Justice (Mr. Garson) to say that he would do so too.

There are certain economic truths in connection with this measure, and I believe they should be applied here. We should have the maintenance of internal law and order so that men may reap what they sow. We should have impartial justice administered by the judiciary, freedom from interference and oppression on the part of the executive. You should not be afraid to tell the people you made a mistake, because these days the people do not expect their rulers to be gods. Always tell the people the truth, the whole truth and nothing but the truth. You can ask them to make sacrifices, without fear; but you cannot ask them to accept the sort of things that are in this bill.

This seems to be a conflict of lawyers. Sir Allen Aylesworth did not believe in this procedure. He was Minister of Justice in this house, probably the most able man we ever had. He used to appear before the court of appeal when I was a law student; and he was a great friend of the hon. member for Temiscouata (Mr. Pouliot). At times he would have the whole docket to himself. He had a great sense of humour, which is a wonderful thing for any man to have. About a quarter to five in the afternoon he would say, "Now, my lords, we have been sitting since ten o'clock this morning, and there are certain places that close at five o'clock in the afternoon." I do not know what those places were; they may have been department stores or other places but the appeal judges would all laugh at this act. Sir Charles Fitzpatrick was also minister of justice and attorney general of Canada and later lieutenant governor of Quebec. He was Chief Justice of the Supreme Court of Canada, a great lawyer; and he disagreed with the present government on this matter. So did my right hon. friend the Prime Minister when he was president of the bar association, and there have been many others, including Sir Lomer Gouin, former minister of justice and former premier of Quebec. Here is what the Lord said about lawyers in Luke 11, verses 43 to 47:

43 Woe unto you, Pharisees! for ye love the uppermost seats in the synagogues, and greetings in the markets.

44 Woe unto you, scribes and Pharisees, hypocrites! for ye are as graves which appear not, and the men that walk over them are not aware of them.

45 Then answered one of the lawyers, and said unto him, Master, thus saying thou reproachest us also.

46 And he said, Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne,

and ye yourselves touch not the burdens with one of your fingers.

47 Woe unto you! for ye build the sepulchres of the prophets, and your fathers killed them.

Then later:

52 Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.

53 And as he said these things unto them, the scribes and the Pharisees began to urge him vehemently, and to provoke him to speak of many things:

54 Laying wait for him, and seeking to catch something out of his mouth, that they might accuse him.

Then in chapter 12, in regard to hypocrisy:

25 And which of you with taking thought can add to his stature one cubit?

27 Consider the lilies how they grow: they toil not, they spin not; and yet I say unto you, that Solomon in all his glory was not arrayed like one of these.

34 For where your treasure is, there will your heart be also.

Those are the words of scripture, which were quoted in the other house by Sir Allen Aylesworth, who also quoted the Acts of the Apostles, which were written by the great prophet St. Luke. Here we have a division of lawyers. Fortunately, perhaps, this is not going to be dealt with by lawyers alone. When similar bills were introduced by hon. members to my left I moved the six months hoist. Many years ago, when Mr. Cahan introduced similar legislation, I also opposed it. At that time I said the Supreme Court of Canada was constituted by parliament under certain provisions contained in the act, which I read the other day and need not repeat at this time.

They had a situation like this in Quebec, and even away down in Louisiana. We all remember what happened down there, when Mr. Roosevelt was the great president of the United States and Huey Long was a supporter of his. As you will remember, Mr. Speaker, Louisiana was purchased by the United States from another country; but when Huey Long came into power he simply wiped out the treaty and everything else. The same thing would have happened in Quebec but for the privy council, which has always been the protector of the rights of the provinces and the municipalities. The other day in this house I was referring to the case of the Toronto Electric Commissioners v. Snider. First it was dealt with by a learned county court judge of the county of Wentworth, a great lawyer. He gave a decision, following which an application was made to Mr. Justice Mowat for a mandatory injunction, which was refused. Then the parties went to the Toronto assizes, where there was a trial and again the plaintiff lost. After that the matter was taken to the court of appeal, where the

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appeal was dismissed. That was the third defeat for the city. After that they did not bother to come here to this famous court; they asked for leave to appeal to the privy council, and leave was given. Following that appeal Lord Haldane gave an important decision, which helped the whole country. It was a declaration in regard to property and civil rights in the provinces. That judgment declared that the provinces were supreme; that matters between employers and employees came directly under the provinces, under section 92 of the British North America Act; and by that judgment the Lemieux act was upset.

The legislation before us today is directly opposed to that principle. I say it is also against the principles of Liberalism. It would be far better if we had a legal committee. It would be better if the minister would accept the suggestion of the leader of the opposition that we should have a joint committee of both houses to rewrite this statute. Certainly that would keep this government and the minister out of trouble, because the country is not ready for this yet. Our people are not going to make a scrap of paper out of the British North America Act. Why should we do that at the present time? We want an act for the living, not for the dead. How can the private members of this house, many of whom have come here from municipal councils, support a bill like this? I can tell you this, that although the government desires the passing of this bill, I do not believe it will ever be passed because this is not the proper moment for it.

There are one or two other matters I should like to mention. I agree entirely with the stand taken by Premier Duplessis in a speech he made the other day at the opening of a bridge. He said that although there are ten provinces there is only one province with a minority and that is the province of Quebec. The premier of Quebec says he is going to guard against any encroachment on provincial rights.

I quote from a newspaper report of the speech by Premier Duplessis:

In his speech. Premier Duplessis recalled the memory of the St. Eustache patriots, who, in 1837, fought to obtain responsible government, also events of 1841, when Quebec and Ontario were united, only to fail to come to reach accord on major national questions. In 1867, he said, representatives of the provinces of Quebec, Ontario, New Brunswick and Nova Scotia, had agreed on a confederative pact, handing -over to a central government powers to deal with national problems, but retaining unto themselves the full authority to deal with matters pertaining to the protection of their rights and privileges. It was a pact, a contract, not a statute, as suggested by Prime Minister St. Laurent, a pact that could not be changed without the full consent of the parties concerned, signatories to the pact.

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Mr. Ferguson, when he was premier of Ontario, was opposed to the passing of any measure such as this. I have always opposed these changes, and I believe that this is simply a coercion bill.

In 1898 the Laurier government came into office as a result of the general election which was held in June of that year. It so happened that education was not a federal burden but a matter expressly for the province. The Greenway government in Manitoba abolished separate schools in that province, and it was decided that Ottawa could disallow any provincial statute. Section 93 of the British North America Act says that the province can make laws exclusively on education. If it is the desire of the government to write a new British North America Act, then let it be done in the same manner as it was accomplished in the first place. The inclusion of the tenth province should be a fine opportunity. I do not believe in this way of doing business. The privy council has rendered decisions on sections 91 and 92 of the British North America Act, and some such independent body is needed to pass judgment in cases of this type. I do not believe there is any Canadian body that could give such decisions.

There are Canadians who are members of the imperial privy council. The meetings of this body are held in a private room and gowns are not worn. It has been stated that its central location is the only reason the privy council meets in London. In conclusion, may I say that I do not believe in this manner of doing business. The government will be sorry they ever touched this matter. I represent a large body of public opinion in this country that believes this is not the time, during the dollar-pound crisis, to give the mother country a black eye. This seems to be a separatist movement.

During the first war a million men went from this country, and what was good enough for them is good enough for those of us who stayed at home. I do believe the moment is not opportune for the passing of such a bill and this house would be well advised to let the matter stand for a year.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Jean-François Pouliot

Liberal

Mr. Jean Francois Poulioi (Temiscouaia):

I am sorry to have to disagree with the member for Broadview (Mr. Church). He has such a positive mind, I cannot understand how he could support a negative amendment such as the one sponsored by his leader. Perhaps he has forgotten that seventy-four years ago, when the supreme court bill was adopted, the then minister of justice drew the attention of the house to the fact that the privy council was no longer a court of prerogative. An English statute had changed it into a court of judicature.

Seventy-four years ago, the minister of justice said he hoped that before long appeals to the privy council would be abolished. At that time, Mr. Speaker, an amendment to that effect was moved by Mr. Irving, who was a British-born reformer. It is exactly the same language as section 54 of the Supreme Court Act, which reads as follows:

The judgment of the court shall, in all cases, be final and conclusive, and no appeal shall be brought from any judgment or order of the court to any court of appeal established by the parliament of Great Britain and Ireland by which appeals or petitions to His Majesty in council may be ordered to be heard, saving any right which His Majesty may be graciously pleased to exercise by virtue of his royal prerogative.

The only change was that in the amendment moved by Mr. Irving seventy-four years ago "His Majesty" was "Her Majesty". The obvious reason for the last part of this amendment, which is now section 54 of the act- -saving any right which His Majesty may be graciously pleased to exercise by virtue of his royal prerogative.

-is that the imperial act, which had been passed in 1874 and was supposed to come into effect in the autumn of that year, was postponed until late in 1875. The Supreme Court Act was sanctioned on April 8, 1875, and the imperial statute changing the court of prerogative into a court of judicature in England came into force several months later. It was entirely due to that interval of time that the reservation was made in the last line of section 54 of the act, which was section 47 of the original act, 38 Victoria, chapter 11.

If the leader of the opposition had read the reports of the debate of 1875 concerning the establishment of the supreme court he would have enjoyed reading the following remarks by the then minister of justice, as they appear at page 286 of Hansard of 1875.

In view of the law recently passed in England, which was intended to have come into effect on the 1st November, 1874, but the operation of which had been postponed up to 1st November next, establishing a supreme court of judicature, he thought the realization of his desire in respect to this matter was likely to be fulfilled. Under this law the jurisdiction of the judicial committee of the privy council would be transferred to the Supreme Court of Judicature sitting in London. He did not think the right of appeal would not then be prized so much as it was now, because the new court in London would be a court of law, and not as the privy council is, a court of prerogative. He would like very well to see a clause introduced declaring that this right of appeal to the privy council existed no longer. There were very strong reasons in favour of the right of appeal to the privy council, but the reasons against it were still stronger. The right of appeal had been rather extensively used, and he might add, considerably abused in the province of Quebec, by wealthy men and wealthy corporations to force suiters to compromise in cases in which they had succeeded in all the tribunals of the country. However, as he had

already said, he had made no mention of the matter in the bill now before the house, but left it to be disposed of at some future time.

He had preserved in the bill some provisions which had been put there by Sir John A. Macdonald, who was then the member for Kingston. This happened on February 23, 1875. I shall read further at page 755, from the remarks of the then minister of justice. But before I do so hon. members might be interested to have me point out- and it may surprise the leader of the opposition (Mr. Drew)-that everything was said in the third person. The word "I" was ignored. When the then minister of justice was speaking, he was speaking in the third person of the singular, of course. At page 755 we find the following:

He foresaw that at a day not distant, the appeal to the privy council would end, and he would not be so anxious to have this measure passed. After January next, instead of an appeal to the foot of the throne, as it was termed, we could only appeal to a statutory court in England.

Something which has been done for seventy-four years. I find it more interesting to read the debate on the Supreme Court Act than to quote any excerpt from Mr. Teece or Elliott Roosevelt about the change in the law.

I shall not speak for long, but I shall give two reasons why I favour this bill. The first is that the judges of the privy council in England are political judges. As they belong to the House of Lords, they are lawmakers and therefore they belong to various parties. Few of them are Liberals. Some are Conservatives. In England we see something that is almost unbelievable. We see some Labour lords. I find it to be a paradox, but it happens just the same over there. Each of the judges who sit in the privy council is a born politician; he is a politician first and a judge afterwards. I have seen articles about politicians being appointed to the bench. I do not see how the same party that condemns the practice of the Liberal party in appointing Liberals to the bench should advocate the continuance of appeals to the privy council or to judges who live far from here and who are politicians before being members of the bench. In fact, if they were not appointed to the House of Lords, they would not sit on that bench. Their appointment is their qualification to sit there. One may not be surprised that they afterwards render political judgments.

In our country the situation is entirely different, because no judge has the right to vote. All judges that are appointed by the dominion government are deprived of the right to vote in federal elections. This means that all those judges, even though they have been in politics previously, can no longer be imbued with any partisan spirit.

Supreme Court Act

The first reason why I support this bill is that with the cancellation and the abrogation of appeals to the privy council we shall no longer have anything to do with a tribunal in London which is composed of political judges. The second reason why I support it is for the sake of economy. We have enough appeals from one court to another; they must stop in some tribunal in this country. It is as true today as it was seventy-four years ago, when the supreme court was instituted, that few people have the means with which to carry a case to the privy council. That is a procedure for people who are well off, and for big concerns. They are the ones who are able to carry their cases there, appealing sometimes directly from the provincial supreme court, from the court of appeal or the court of king's bench in the province of Quebec, to frighten the parties who have not the same means from continuing the legal debate overseas.

In my opinion the time has come to put aside all prejudices. When Mr. Irving, who was a good Englishman and a good Liberal, moved that provision which I have just read and referred to, he was acting as a good Canadian. The time has come when we should consider every matter objectively, without any sentiment.

I cannot understand the amendment of the leader of the opposition (Mr. Drew) to give the bill the six months hoist. What is it? As I said before, it is a negative proposal. I am anxious that the bill should go before the committee of the whole. Then we shall have the opportunity of seeing whether the leader of the opposition has any constructive suggestion to make about the constitutional powers of the supreme court. He will then have an opportunity to make any amendment that he thinks will protect the provinces and will protect the minority. Will he do that? He may. I am so anxious to hear him speak on this matter that I will say no more at this time. I shall look forward to hearing his constructive amendments when we are in committee of the whole.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Howard Charles Green

Progressive Conservative

Mr. Howard C. Green (Vancouver-Quadra):

Once again, Mr. Speaker, I find myself on a different side from my good friend the hon. member for Temiscouata (Mr. Pouliot). There is only one compensation about being in that position, namely, that once more it proves I must be right.

I propose to speak for a few moments this afternoon in support of the amendment proposed by the leader of the opposition (Mr. Drew), which was to the effect that consideration of the abolition of appeals to the privy council should be postponed for a period of six

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months. I intend to give several reasons for my support of the amendment.

In the first place, in British Columbia, we place a very high value on the ability and the decisions of the privy council. We should like to see the right of appeal to that court retained. We have had the right for almost seventy-five years. In many cases the appeals have been taken direct from the court of appeal of British Columbia to the privy council. That has been a common practice. I was amazed to hear the Prime Minister (Mr. St. Laurent), when he spoke in the debate on the speech from the throne at the beginning of last session, express resentment against that practice in British Columbia. Hon. members will find the statement on page 65 of Hansard of January 28, 1949. The Prime Minister was giving the figures of the appeals that had been carried to the privy council, and I asked him how many appeals there had been from the court of appeal of British Columbia to the privy council. This was his reply:

I have long deplored this apparent tendency of the litigants of British Columbia to take their disputes to the privy council instead of taking them to the supreme court at Ottawa.

I can only say, Mr. Speaker, that the people of British Columbia have taken their appeals direct to the privy council because they wished to do so, and because they have had satisfaction from that court. Therefore, I repeat, the right of appeal is highly prized in my province, and that is one reason why I am speaking in favour of this amendment.

In the course of his speech in introducing this bill the Minister of Justice (Mr. Garson) tried to make quite a point of the argument that the privy council is only a rich man's court. That is truer of the Supreme Court of Canada than it is of the privy council, and I can give the house an example. A few years ago I was a junior member of a certain firm which had a case against the British Columbia Electric Railway Company Limited. The plaintiff was a widow who had no resources at all. She had fallen in getting off a street car and in the supreme court of British Columbia we were able to prove that she fell because there was a defective plate on the step. We obtained a judgment for $5,000 and costs. We held that judgment in the court of appeal, and then the British Columbia Electric Railway Company Limited appealed to the privy council on the ground that the action had been commenced at a later date than six months from the time of the accident. By the way, that delay was not a delay of our firm. The plaintiff had not come to us until the six months had expired. Under the provincial act which incorporated the company the limitation period was six

months. Under the Railway Act of Canada it is a year, and the point as to whether or not a claimant had six months or one year had never been decided. Therefore the company appealed to the privy council on that point and won. We were able to retain a young Canadian who had been a Rhodes scholar and who had been called to the bar in Great Britain. Before the privy council gave judgment they apparently decided that this widow should not be deprived of the amount of her claim. They took the position that they were sure that the counsel for the company would not ask that the widow be deprived of the $5,000 because the company had won its point. If anybody has any doubt of that, may I say that I hold in my hand the report of the case. It is "British Columbia Electric Railway Company Limited versus Pribble, 1926 Appeal Cases". At page 481 we find the words used by the honourable lords in bringing about this result:

Their lordships are further informed that in consideration of her injuries and of the fact that the general aspect of the matter concerns themselves alone, the appellants have voluntarily arranged with the respondent not to ask for the repayment of any sums already paid to her in consequence of the judgments below, a liberal proceeding to the spirit and justice of which their lordships think effect should now be given by making no order as to costs of this appeal.

The result was that the widow got her judgment. She got her costs in the supreme court of British Columbia and in the court of appeal. I have no doubt that the solicitor for the British Columbia Electric Railway Company Limited in Vancouver has ever since been a firm believer in abolishing appeals to the privy council. That was one case in which a poor woman got a benefit that she would not have received in the Supreme Court of Canada. Other cases are the carrying of appeals to the privy council in forma pauperis. There has been a case in British Columbia which has been carried twice to the privy council in that manner within the last two or three years. Let us not believe we are conferring a great benefit upon the poor man by the abolition of these appeals.

Another point made by the Minister of Justice was that Canada had never been represented on the privy council. I thought he spoke quite bitterly, as though this court had been set up by a foreign country and we were made subject to it and had nothing whatever to say as to who served on the court. The fact is, and the Minister of Justice knows it very well, that chief justices of Canada have served on the privy council. The late Chief Justice Anglin served on many occasions. Chief Justice Sir Lyman Duff, who is a hero to all the young lawyers of British Columbia, served on the privy council

time and again, and his judgments carried great weight all over the commonwealth. The present chief justice, Chief Justice Rinfret, has also served on the privy council. Canada could have been more fully represented at any time if its government had cared to ask for such representation.

Another reason I am in favour of this amendment is that I believe the abolition of the appeals is premature, particularly in the case of appeals on constitutional questions. It is perfectly clear, Mr. Speaker, that we should first work out a method of amending our constitution in Canada. I know that that is going to be a difficult job, but it is a field for the display of real courage and leadership by the government of Canada. There is a field in which there should be real leadership but by the measures which are promised in the speech from the throne the government is making no real attempt to solve that problem.

The government has said in the speech from the throne that it will arrange consultations with the provinces concerning the amendment of our constitution where there is a difference of opinion in regard to certain points. Obviously that is the first move. Once that move has been made and agreement reached as to the amendments to the constitution that should be made there could be far less objection to the bill we are considering today.

But instead of holding that consultation first the government is bringing in this bill to abolish appeals and is then giving notice that it will ask the parliament of the United Kingdom for the right to amend the constitution of Canada in relation to matters not coming within the jurisdiction of the legislatures of the provinces nor affecting the constitutional rights and privileges of the provinces or existing rights and privileges with respect to education or the use of the English and French languages.

The only real difficulties in connection with our constitution concern the respective rights of the dominion and the provinces. That is the only question to be solved. Let us see what will happen if the government course is followed. Appeals to the privy council will be abolished and the right to amend the constitution in connection with dominion matters will be given. As the Prime Minister (Mr. St. Laurent) said the other day, the Supreme Court of Canada is to be the arbiter. If there is any question as to whether the amendments deal with provincial rights, then the supreme court will make the decision. That will probably mean a whole series of new lawsuits having to do with our constitution and whether or not particular amendments affect the rights of provinces.

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I wonder whether the government is proceeding in this way in order to tie the hands of the provinces, in order to present to the provinces a fait accompli. If they will not agree to the amendments made by the dominion they will have to go to the Supreme Court of Canada. I wonder if the idea behind all this is not that the provinces, rather than face that necessity, will yield to the wishes of the dominion? It looks as though the dominion government were putting a gun to the heads of the provincial governments, and I suggest that that is a very high-handed procedure to follow. That is my second reason for supporting the amendment that the bill be considered six months hence.

My third reason is the resolution passed by the Canadian Bar Association at Banff a few weeks ago. That body is composed of leading lawyers from all over the country who belong to all different parties. Their deliberations are non-political and thoroughly objective. If any group in Canada should understand this particular question it is this group. I would point out to hon. members that included in the membership of the committee which recommended the resolution passed by the Canadian Bar Association were such outstanding supporters of the government as Senator J. W. de B. Farris, K.C., of Vancouver and Senator G. P. Campbell of Toronto. These men hold a high place in the public life of Canada.

I should like to quote from a statement made by Mr. Steer, the chairman of the committee. I do not know his politics, but I certainly have never heard of him as an active Progressive Conservative. He may be a Liberal, but as a matter of fact I do not think there was any political angle in the consideration of this question by the association. Here is what he said:

There is little doubt that the Privy Council is the most powerful court in the world. I suggest we should think very carefully before we throw away the right of appeal to such a court. There is no question of sovereignty involved. Sovereignty of Canada has been conclusively established.

I should like to quote from the resolution as follows:

Be it resolved that the Canadian Bar Association, without expressing any view as to the wisdom or otherwise of the proposed abolition, is of the opinion:

(i) That any bill for the abolition of the privy council appeal should contain the necessary provisions as to the organization and jurisdiction of the Supreme Court and the system by which its judges will be appointed.

Here is the portion of the resolution I wish to stress:

That sufficient time be given before the statute is enacted to permit the public to give consideration, both as to the question whether the abolition of the appeal to the privy council should take place and

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to the constitution and powers of the court that may replace it and also to the effect which the abolition may have upon provincial and minority rights.

The resolution then went on to make certain suggestions as to what should be done if the appeal were abolished, among which was the following:

(g) that the rule of stare decisis ought to continue to be applied with respect to past decisions of the court, as well as with respect to past decisions of the judicial committee.

In other words, that there be some provision that previous decisions of the privy council and the Supreme Court of Canada should be binding on the Supreme Court of Canada after this bill is passed. During his speech the Prime Minister professed great respect for the opinion of the Canadian Bar Association, but he then went on to wave aside their suggestion that the bill should be allowed to stand in order that it might be given further consideration. In effect he took the position that he knew what was best and that the Canadian Bar Association could just run along and play marbles or forget about the matter.

The other day he refused to insert a provision in the bill making previous decisions binding. The excuse given was that all the justices of the supreme court took an oath of office when appointed and therefore they were bound to follow previous decisions. It is not quite as simple as that. I do not question for one moment that the justices of the supreme court will carry out their oaths of office, but they may have different views of just what that oath implies. I have here a press dispatch which appeared in the Ottawa Journal of June 2 of this year, just a few weeks ago, which reads:

Not Bound by Privy Council says Rinfret

Jurisprudence laid down by the privy council does not necessarily bind Canadian courts, it was intimated by Chief Justice Thibaudeau Rinfret in the Supreme Court of Canada today.

The report continues:

"Why should we in Canada," queried His Lordship, "accept something that has been said 4,000 miles from here, where they have not the same mentality?"

And then again:

"You might say," His Lordship told counsel, "that the Supreme Court of Canada is the final court of the land and hence is not bound by judgments of the privy council."

"No, my Lord," replied Mr. Stein, "I don't believe I would care to go that far."

"Oh, don't hesitate," urged the chief justice.

Mr. Stein was counsel for the appellant.

There is the position with which we are faced in Canada today. I suggest that because of that stand, if for no other reason, a provision should be written into the bill that the decisions made in the past by the Supreme

Court of Canada and the privy council are to be binding. Otherwise we start interpreting our Canadian constitution all over again in the year 1949, and I do not think anybody in Canada wants that to happen.

A fourth reason why I am supporting the amendment is that by abolition of appeals to the privy council Canada will sever one of the links which hold the British commonwealth together. Such action may lead to similar or far more drastic action on the part of other nations of the commonwealth at a tune when Britain has her back to the wall as she has never had it since 1940. Some of our ministers have been getting up in the house this week to sympathize with her in her present plight, and yet by abolishing appeals to the privy council at this time the government may be adding to the burdens of the already overburdened United Kingdom government. The Minister of Justice (Mr. Garson) may laugh. He is much better at laughing than he is at propounding a sound argument on this particular subject.

Just as certainly as night follows day such action is sure to be interpreted in every capital of the world as a weakening of the British commonwealth, particularly in the capitals behind the iron curtain, when all democratic countries are rightly worried about the Soviet union having discovered the secret of the atom bomb. This step is taken precisely at the time when a strong commonwealth is necessary for world peace. I point out to you, Mr. Speaker, that one of the reasons why the world is in so perilous a position today is the fact that it is divided into two camps, the United States camp and the Russian camp. If the British commonwealth had been kept as strong as it was during the war, if we had a third camp between the other two, we would not have the whole civilized world apparently rushing into a third world war. That the situation is simply unbelievable, everyone in the house agrees. It is unbelievable when we reflect that fighting ceased only about four years ago. But such is the state of the world today.

It is only nine years ago that the British commonwealth stood alone, except for aid from gallant little Greece, and saved civilization. It is less than five years ago that sons of the commonwealth were plunging to their death together in flaming planes, and men of the other parts of the commonwealth were serving with Canadians in the first Canadian army.

I am incapable of expressing my regret that such a step should be taken by the Canadian government at this time, just as I regretted the refusal of the Canadian government in 1938 to allow Great Britain to send her young airmen here to take their training.

That action might very well have meant the destruction of civilization. It is only nine years ago that a few young commonwealth airmen saved civilization. We learn now that at that time the very last squadron was in the air. If there had not been enough of those airmen to save civilization, the responsibility for the consequences that might have ensued would have rested in large part on the Canadian government of that day.

Canada is now a senior partner in the commonwealth. No longer are we in the position of trying' to get something from Great Britain; and since we are a senior partner our influence and our responsibility are great. We should be doing everything in our power to strengthen the commonwealth, and the abolition of appeals to the privy council certainly does not strengthen the commonwealth.

My fifth reason for supporting the amendment arises out of the argument put forward by the Minister of Justice when he opened the debate on the bill. He asked support for the measure on the ground that the government was now achieving nationhood and autonomy for Canada. He even went so far as to say in conclusion that there must not be one instant's delay. That very statement was enough to convince one of the weakness of his arguments. He made a straight appeal to the isolationist and republican sentiment in Canada. I think the house should be told who it was that won nationhood for Canada, and when it was won. Nationhood was won for Canada in the first great war from 1914 to 1918. It was won by '.he young men and the nursing sisters, God bless then, who went over from this land and pla ei so splendid a part in that war. The names of those who won nationhood for Canada are inscribed in the Book of Remembrance in the Memorial Chamber of this building. It ill behooves any minister of the crown to rise in the House of Commons, in the year 1949, and make the claim that he is now winning nationhood for Canada.

Since 1919 Canada has been completely free to do as she wished. Neither the United Kingdom nor any other nation has stood in her way. Canada has been free to do as she wished. As my authority for that statement, I quote the Right Hon. Vincent Massey.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

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

Liberal

Mr. Garson:

Since what date?

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Howard Charles Green

Progressive Conservative

Mr. Green:

The Right Hon. Vincent Massey, who has been our ambassador at Washington and London. He is the Canadian who has had the greatest experience as an ambassador. I do not think anyone questions Mr. Massey's ability or his right to speak on questions of this kind. I have his book entitled, "On Being

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Canadian," published in 1948. On page 9 we find this statement:

We know that our sovereign independence is real, final and complete. If there remain vestiges of subordinate status, we ourselves are responsible and no one else. If, for instance, today we can alter our constitution only by appealing to the British parliament, it is because we apparently still wish to have it so, embarrassing as the arrangement is to the legislators at Westminster who naturally regard such matters as no concern of theirs.

All the talk of winning autonomy for Canada is faking the issue. If there is an autonomy problem before the Canadian people today it has nothing whatever to do with Canada's relationship with the British commonwealth, but with the United States of America. Mr. Massey elaborates that view on the same page. This is what he says:

There is truth in what was said not long ago: "It is hardly too much to say that in some quarters there is a surviving colonialism which cannot forget that the British connection once involved colonial subordination, and would willingly demonstrate independence of Britain by avowing dependence upon the United States." Such "new colonialism" is as damaging to national growth as was the old.

There is the real problem; and it is not imposed upon us by our fine friends the Americans. It arises out of world events. The real problem is how to avoid becoming subservient to the United States. I want to cite a few instances to show how this government has allowed Canada to become subservient to the United States. First I refer to a clipping under date of July 28, 1947, headed "Canada assures U.S. no Jap treaty 'bloc'." At that time the members of the commonwealth were to have a conference in Australia concerning a peace treaty with Japan, and the Canadian ambassador in Washington was instructed to go to the secretary of state there to assure him that there was no intention of setting up an empire bloc. Here is what the Canadian ambassador said:

I told Mr. Armour what I am sure he already knew, that this conference does not and could not mean the formation of a common British front at the peace conference.

That statement is also dealt with by Mr. Massey in his book, where we find this comment at page 105:

When it was reported in the press in 1947 that we had assured the United States government that the forthcoming commonwealth conference on the peace treaty with Japan did not foreshadow the formation of a British "common front," these representations seemed both unnecessary and undignified.

A second instance occurred in 1947, when the government was trying to save United States funds and the Minister of Finance (Mr. Abbott) brought in his austerity program. The prohibitions did not apply only to the United States but to all the members of the commonwealth, in fact to the whole world. When in this house the minister was challenged to say

Supreme Court Act

why he had done that, he replied that it was because the Americans did not like to be discriminated against, in other words because the Americans wanted it that way. We saw the same thing happen yesterday, when the minister rose in his place and announced that the ban on the importation of fruits from the United States was to be lifted. Today we see a Canadian Press dispatch which reads:

A government official said lifting of the controls resulted from pressure brought on U.S. government quarters by California fruit growers.

The inference, of course, is that the United States government brought pressure to bear on the government of Canada. Another dispatch which confirms what I have said appeared on July 30 of this year, written by one of the leading members of our press gallery, a man of great experience and in a very responsible post, who wrote:

The dependence of Ottawa upon Washington becomes more apparent every day. A colleague put it to me this way: "This subservience to Washington is far worse than it ever was to London. Ottawa used to stand up pretty firmly to the dominions office in London."

Another example may be found in the military exercises which took place along the Alaska highway a few weeks ago. The first reaction of the government at Ottawa was contained in a dispatch dated August 10, 1949, and headed "Canada to get American aid if invaded". It states:

Continental defence plans call for immediate United States armed intervention if any sizeable enemy force strikes Canada, informed sources say.

This is part of the official reaction to press reports on exercise Eagle, Canada's biggest peacetime land-air maneouvres, which were critical of the state of national preparedness it bared.

It is a pretty dangerous frame of mind to get into when you expect somebody else's sons to protect your country. I might mention other instances of this type, such as the attitude of the Minister of Trade and Commerce (Mr. Howe) in connection with atomic energy. He has had United States congressmen come up here to investigate our efforts, but has refused to set up a committee of the Canadian house to consider that very matter.

These things have an effect on the thinking of the Canadian people. We can never make Canada a great nation unless we change our ways in this regard. Furthermore, that is no way to maintain the respect of our American cousins. Mr. Massey deals with that point at page 101 of his book, where he quotes with approval the statement of a prominent American, Mr. Lawrence Hunt, to a Canadian audience. Mr. Hunt said:

The self-respecting friendship of a loyal member of the British commonwealth is vastly more important to the United States than the sly subservience of a satellite. We Americans don't want

any satellites. We want friends who can differ with us without fear and can agree with us without servility.

Later, at page 121 of his book, Mr. Massey sums up the situation very well by saying:

This, however, does not relieve us from the duty of making our views known and protecting our interests in all matters which concern both countries.

He is referring to the United States.

Someone has said that "it is the merest common sense, when one lives in the same house with a giant, to attempt to keep on good terms with him." This is no doubt true, but the United States is a very friendly giant who will respect us all the more if we do not take for granted that it is our duty to yield automatically when there are differences of opinion, and will appreciate our speaking with frankness and candour.

Those are my six reasons for supporting the amendment postponing consideration of this bill for six months. I urge that this be done. For these reasons, if for no others, I believe that should be the course followed by the government.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Louis-Philippe Picard

Liberal

Mr. L. Philippe Picard (Bellechasse):

Mr. Speaker, I expected many reasons to be invoked by the opposition in favour of either postponing or killing the bill in one way or another, but I never thought the development of the atomic bomb by Russia would be suggested as a reason for maintaining appeals to the privy council. I have a great deal of respect for the hon. member for Vancouver-Quadra (Mr. Green). He is a hardworking member, whom I like personally, but I do not like the argument he has advanced this afternoon. Before entering upon the body of my own remarks I shall try to deal with a few of the points he brought forward.

The fourth reason advanced by the hon. gentleman for supporting the amendment of the leader of the opposition (Mr. Drew) was that abolishing appeals to the privy council would give a bad example to other parts of the commonwealth and create a bad impression in London, or cause the British government some trouble. I see the trend of thought of the Conservative party has not changed much since the days of Sir John A. Macdonald. I did as the hon. member for Temis-couata (Mr. Pouliot) did; I consulted the debates of 1875, and found this statement by Macdonald at page 981:

Great as would be the benefit of a supreme court to the dominion, it would not compensate for...the feeling of uncertainty it would excite in England as to whether there was not an impatience in this country of even the semblance of imperial authority.

On the same day, he said:

This amendment is the first step towards the severance of the dominion from the mother country.

At the time he was speaking about the abolition of appeals to the privy council, proposed in an amendment to the bill esta-

blishing the supreme court. He expressed concern about the feeling of uncertainty it would initiate in England. Today we heard my hon. friend bringing forward the same argument, that it might be wrongly interpreted in England if Canadians were to decide they have legal minds in their own country, men of integrity and ability who can interpret the terms of the constitution as well as any who are not so familiar with our institutions or so conversant with our body of legislation.

My friend talked about the question of autonomy, Mr. Speaker, and stated there was no question of autonomy involved in abolishing the appeal to the privy council. Does he forget that one of the elements of sovereignty is the establishment of courts within the country designed to interpret the constitution of that country? The fact that we are still taking appeals to the privy council is one badge of colonial status. The other badges are the fact that the constitution is not a Canadian constitution, but an act of the British parliament, and the fact that we have no flag. The removal of two of these badges at least is mentioned in the speech from the throne.

My friend says the country is not ready for such a move. The Prime Minister has gone from one end of this country to the other and has had the courage to speak about the matter and the answer of the people should be convincing. A moment ago we were told that, amongst the members present at the Canadian bar convention, there were some Liberals who helped draft that resolution. Certainly, there must have been Liberals there. The election results showed there were so many Liberals throughout the dominion there must have been some at the convention.

It has been stated that in British Columbia the decisions of the privy council are considered of great value. If the hon. member had represented Rockland avenue or the Uplands section of Victoria, such a statement would have been easier to understand. At any rate, I respect anyone who feels the privy council gave him better protection. I believe a majority of the people in Canada have reached a stage where they consider it necessary for Canada to have the power to amend its constitution, and to have a supreme court to interpret our institutions. A statement has been made to the effect that the abolition of appeals was premature, especially in so far as constitutional rights were concerned. We have been waiting seventy-five years for this.

The member for Temiscouata (Mr. Pouliot) quoted an amendment to the bill to establish the supreme court. This amendment was

Supreme Court Act

proposed by Mr. Irving and it carried by 112 to 40. That took place seventy-five years ago. During the course of my remarks I shall deal with the reason why this amendment has remained inoperative and who was responsible for it. This question has been before the Canadian public and this parliament for many years. Does my friend believe we should wait another seventy-five years before the people of the country will be certain we should establish a supreme court to interpret our own constitution?

My friend says we should start with the constitution. It is well known that any constitutional convention will sit for five or six years before any definite agreement is reached. It took a little less time, but not much less, for the fathers of confederation to come to a conclusion and at that time there was no particular political animosity brought into the discussion. Today, in some parts of the country, there are people who make political capital of such a question. Does anyone believe that a convention established this year could, within the normal course of six months or a year, bring forth a result that would enable the country to establish a new constitution? I venture to predict that any constitutional convention will have to sit for a number of years before reaching a conclusion.

This government did not want to wait for all this to happen. This government believes that the people of Canada are ready to do as the other countries have done, to establish a federal supreme court charged with the duty of interpreting the law. The government believed also that the moment had arrived to consult the provinces as to the first steps to be taken to summon consti-tional convention. This would take some time, but I believe the time has arrived for the country to take the step proposed in the bill now before us.

My hon. friend ended his long speecn, interesting in many respects but out of touch with the question of abolishing appeals, by speaking about our subservience to the United States. Mention was made of the military manoeuvres in western Canada and the joint continental defence. I feel no more satisfied with that than he does, but if there were trouble in Canada tomorrow, could we rely any more upon help from Great Britain than we could upon help from our neighbours to the south? Could we expect more people from Britain to come here to join our army in the defence of our northwest, than would come from the United States? The time has come for the people of Canada to think in terms of practicability rather than in terms of sentiment.

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I was surprised that the hon. gentleman brought forth so many points in his attempt to show the subservience of our country to the United States. He stated that at one time Mr. Massey, the Canadian minister to Washington, had stated there would not be a common British front on international matters. Perhaps today, perhaps tomorrow, the interests of Canada might be much more in harmony with the interests of the United States than with the interests of Great Britain. I do not especially rejoice over that fact, but we have to face the facts as they are. My friend comes here talking about oranges and grapefruit in his attempt to show that Canada is subservient to the United States. I do not imagine that it was the fruit growers of California who influenced the Minister of Finance (Mr. Abbott) in lifting the ban on imports. If the minister was influenced by anyone, he was influenced by the people of Canada who felt their babies ought to have citrus fruits.

The measure now before us, Mr. Speaker, is intended to abolish appeals to the privy council. The adoption of the amendment by the leader of the opposition would have the effect of preventing this measure from being passed at this session of parliament. I readily admit that after the brilliant presentation of the Minister of Justice (Mr. Garson) and the unequivocal declaration of the Prime Minister, there remains but little that can be said as to the advisability or timeliness of the bill.

I am prompted, however, to delve into the matter because of the pleasure I feel in being given the opportunity to contribute to the freeing of our country from one more of its colonial links, even if it be in the humble way of casting my vote for this measure. I also feel I must speak on this question for somewhat sentimental reasons. I have, as no doubt all members have, a great fondness for my constituency and an interest in its history. This interest extends to the doings of my predecessors, the members for Belle-chasse. It was the second gentleman after confederation who occupied the seat for Bellechasse in this house, the Hon. Telesphore Fournier, who sat from 1870 to 1875 who, as minister of justice in the Mackenzie cabinet, introduced the bill to establish a supreme court and a court of exchequer for the Dominion of Canada.

As the intent of any legislative measures can oftentimes be foreseen in the speech from the throne-although it is not always so, it sometimes is-it is not without interest

(Mr. Picard.)

to note that the bill had been described in the speech from the throne in 1875 as "essential to our system of jurisprudence and to the settlement of constitutional questions". It can be readily established thereby that from the very day of its inception the court was rightly intended to study and settle constitutional questions arising in the country, whether brought to the court by private citizens or by the constituted government, whether federal or provincial.

When considering a constitutional question such as that of the supreme court and that of amendments to the constitution, I have made it a practice to consult the documents of the past and to look into the reports of the discussions that took place among the fathers of confederation. The debates of 1875-and my friend the hon. member for Temiscouata (Mr. Pouliot) ably dealt with that point but I shall touch on it again-provide us with an enlightening outlook on the feeling of the house at the time. Prior to the introduction of that bill by the Hon. Telesphore Fournier, the former Prime Minister Sir John A. Macdonald had twice introduced-in 1869 and 1870-and later withdrawn bills for the establishment of a Supreme Court of Canada. When presenting his bill, Fournier-as my friend the hon. member for Temiscouata pointed out-went as far as asking for an amendment that might bring about the abolition of appeals to the privy council, but he outlined one of the aims of the new court as being that of arbiter.

. . . which would settle the extent of the powers of local legislatures when these powers were in dispute.

He also stated:

The bill has for its sole object the harmonious workings of our young constitution.

Fournier was less fearful in 1875 than some people in my province pretend to be in 1949 as to the fitness of a Canadian court of last appeal to settle the extent of the powers of local legislatures, and he was right then as we are right now in taking the same stand.

When proposing his amendment the leader of the opposition (Mr. Drew) stressed the fact that there was no urgency for this bill, just as my hon. friend said, with reference to the atom bomb, that we should wait for another period of time. The Canadian people have considered the question long enough, and I think the time has come for us to cast a vote in favour of ending what Sir John A. Macdonald described as one of the last golden links of colonialism.

In 1870 Sir John A. Macdonald, when proposing the establishment of a supreme court,

stated that he was in favour of keeping appeals to the privy council. It was the trend of the Conservative party then as it is today. Then Sir George Cartier felt the same way. Those who now bring forward Cartier's shadow in order to try to impress us with the idea that abolition of appeals to the privy council will mean the end of provincial rights stress that Cartier was against the abolition but they do not say that he was expressing his feelings as a political man. He was acting as a Conservative and it was his right for him to act that way. But today it is the right of good, thinking citizens of this country to believe that the time is ripe to abolish the appeals and that the time has come for us to think that, as the Prime Minister himself stated, there can be in this country men whose integrity and ability are high enough for us to trust them properly to interpret the principles included in the pact of confederation. Sir John A. Macdonald also said at the time, and I am surprised that my friend did not quote this:

We have no power to deprive a British subject of going to the foot of the throne for redress.

That question was ably treated a year or so ago by a gentleman who sat on the opposite side of the house and represented the constituency of Kindersley. I refer to Mr. Jaenicke who twice proposed a resolution leading to a bill such as the one we are considering now. To my mind, while he was here he made a considerable contribution to the work of this house, and I esteemed him highly. At the time he pointed out that the sovereign himself does not consider grievances, that it is through the judges that he does so, and that judges appointed by the sovereign government of Canada in the name of the king are the same advisers or constitute the same way of advising the sovereign as to which grievances should be heard. Mr. Jaenicke stated as reported at page 2498 of Hansard of 1947:

In making the Supreme Court of Canada the final court of appeal we simply substitute His Majesty's Canadian judges as the final arbiters upon any grievances brought before him by his subjects in Canada.

I can well understand Sir John A. Macdonald's trend of thought; he was speaking in the colonial period. I am less able to understand those who take the same attitude seventy-five years later. While my hon. friends like to boast of the position that Canada has reached, and of what her sons have done to make her a nation, they refuse to recognize one of the elements of sovereignty and try to postpone study of this bill in order to kill it. Mr. Speaker, this has 45781-19i

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been admitted as the Conservative view at all times. The Liberal view was somewhat opposite, even in 1875. As my friend the hon. member for Temiscouata pointed out, Fournier himself when presenting the bill invited an amendment, and the amendment brought forward by the then hon. member for Hamilton was carried, as I said only a moment ago, by 112 to 40. It would be interesting to see why this amendment, although included in the bill when it was passed in 1875, was never operative. The bill creating the supreme court introduced by the then member for Bellechasse was passed on April 8, 1875, and the amendment was included in it as clause 47. How is it that this clause was never operative and that seventy-five years afterwards we are still discussing whether the time has come to repeal this

right of appeals to the privy council? Frank MacKinnon, in a remarkable study entitled "The Supreme Court of Canada", gives a good account of what then followed:

The government was informed through Lord Carnarvon, the colonial secretary, that disallowance was almost inevitable in view of the strenuous objection of the lord chancellor and the law officers of the crown to the principle involved in the appeals clause. .

And he goes on:

Mackenzie and Blake, the latter having replaced Fournier as Minister of Justice, argued the matter with the imperial authorities both by correspondence and by personal visits to England.

Blake's attitude throughout this controversy was truly consistent with the Liberal policy of upholding the full autonomy of Canada.

A careful study of the correspondence exchanged between Blake and the colonial office should convince anybody from my province who might still have any hesitancy as to which attitude is consistent with Canada's dignity and autonomy. I shall say a few words about this correspondence. I shall outline only two or three of the numerous arguments brought forward by Carnarvon, the colonial secretary, and Blake, the Canadian minister of justice, in order that my remarks may not be unduly lengthened. The first concerns the actual decision of cases, and that would interest some of the people especially in my province. Carnarvon thought that British residents-and I do not mean especially those living in British Columbia- "who held rights, investments or property in Canada should be protected by the right of appeal to the privy council". That was the attitude of Carnarvon in the exchange of notes I just mentioned.

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To this Blake replied:

This practically presumes that British subjects and foreigners would not receive justice at the hands of Canadian judges while it affirms that the Canadians would receive justice at the hands of the British court.

Blake thus considered this objection as an insult.

Secondly, the argument that an outside tribunal might judge more impartially than a Canadian one the questions arising between the federal government and the provincial legislatures was put forward. This is in line with the attitude of some people in my province, less and less numerous, fortunately. It is in line with the trend of thought that has prevailed in certain quarters up to a few years ago, but fortunately this tendency has given way in the last ten or fifteen years to a more logical attitude. To this Blake answered directly, and the Prime Minister (Mr. St. Laurent) the other day was consistent with the Liberal tradition when he kept somewhat the same dignified language on Friday last.

Blake said then:

I cannot conceive anything calculated more deeply to wound the feelings of Canadians than an insinuation that impartial decisions are not to be expected from their judges.

With reference, said he, to the alleged values of the decisions of a court not included in the confederation:

I would observe that with the practical operation of the federal constitution of Canada, with the customs and systems which may have grown out of its working ... a court composed of English judges cannot be thoroughly acquainted.

A few years later, in 1879, Blake again touched on the same question. In the course of his speech he declared that the Canadian constitution would be unworkable without a national court to settle problems which would inevitably be arising thereunder. He indicated that it was an anomaly for persons to declare that, while Canadians had the right to make their own laws, there could not be found in Canada men capable of judging by what laws she should be governed. He emphasized the fact that the experience and modes of thought of the British judges were not conducive to the proper interpretations of Canadian conditions and legislation which had their roots in an entirely constitutional system. He concluded with the following words:

Now, a constitution like ours, complicated and delicate in its adjustments, requires for its interpretation that measure of learning, experience and practice which those who live under it, who work it, and who are practically engaged in its operation are all their lives acquiring. I deny that it can be well expounded by men whose whole lives have been passed, not merely in another but in an opposite sphere of practice; and these men must come to

the consideration of these topics at the greatest disadvantage and from the wrong point of view.

Blake's words are as true today as they were seventy-five years ago, and it is the anomaly existing over that period of time that this measure now proposes to abolish. For the edification of the timid souls in my province who may not yet have seen the light let us revert to the controversy of 1875. MacKinnon says:

The biggest issue involved in the question of appeals concerned the material connection, or, more specifically, the principle of enhancing Canada's status by the removal of appeals to an English tribunal. This principle was in line with Blake's policy of keeping the colonial office reminded of responsible government and of diminishing the appearance of colonial governance by making the Governor General responsible to his ministers rather than to himself or the British government.

Lord Carnarvon questioned the expediency of permitting through such means as clause 47 any doubts as to the stability of Canada's ties to the mother country, the same trend of thought that is prevalent amongst the Conservatives but not so openly mentioned today. Blake answered at the time:

The Parliament of Canada, which is composed of the Queen, the Senate, and the House of Commons has power to abolish any prerogative of the crown affecting the Canadian people within the range of subjects on which parliament is authorized to legislate. After all the Canadian judges are Her Majesty's judges just as much as her judicial officers who reside in England.

The British institutions have proven their greatness by their adaptability, and the empire and commonwealth have survived so long owing to the ability of its statesmen to find harmonious solutions to seemingly insoluble problems. The same was true on that occasion. The Supreme Court Act was not disavowed. An arrangement was arrived at in 1876 and clause 47 was considered inoperative, as it was finally agreed that it did not affect the appeals to the judicial committee of the privy council because the clause had read that there was to be no appeal to a court of appeal established by the parliament of Great Britain. The judicial committee was not a court established by the parliament of Great Britain, so clause 47 was inoperative, and did not apply here.

I have brought the debates of 1875 and the controversy as to the abolition of appeals to the attention of the house to illustrate the continuity and the attitudes of the Liberal leaders and to point out to the few remaining hesitant persons in my province the fallacy of their arguments, already refuted seventy-five years ago, as well as the true purpose of the insistence of certain people upon the maintaining of appeals.

One of the objections raised by certain provinces to the principle of this bill,

Criminal Code

Mr. Speaker, is that a federal court could not be an impartial judge in conflicts of jurisdiction between the central government and the governments of the provinces.

At six o'clock the house took recess.

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Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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AFTER RECESS The house resumed at eight o'clock.


CRIMINAL CODE

AMENDMENTS RESPECTING PISTOLS, AIR GUNS, MOTOR VEHICLES, LEVEL CROSSINGS AND PAYMENT OF FINES

PC

Thomas Langton Church

Progressive Conservative

Mr. T. L. Church (Broadview) moved

the second reading of Bill No. 3, to amend the Criminal Code (pistols, air guns, motor vehicles, level crossings and the payment of fines).

He said: Mr. Speaker, this bill contains a number of amendments to the Criminal Code. On the motion for second reading a member is permitted to deal only with the principle of a bill. Two sessions ago the former minister of justice called attention to the fact that a similar bill dealt with many different subjects and was therefore different from most other bills.

The loss of life from motor accidents is appalling. The pages of the newspapers in our cities and towns are filled with details of these accidents. Just today a lady who was visiting this city was accidentally killed when trying to save her grandchildren from being run down. She had just as much right to live as has the person who killed her. This toss of life is one of Canada's greatest scandals.

Just last week end nearly as many people were killed by motor accidents in the Toronto district as were killed on our side at the battle of Queenston Heights. No one knows who is going to be next. Anyone is apt to be called into eternity in the twinkling of an eye by the mad race for speed against the laws of God and man. This is Bill No. 3 and hon. members will find it on their files underneath their desks. I do not intend to speak very long on this bill because I made some remarks when introducing it.

One section of the bill deals with the use of pistols by bandits, burglars and others. Men of this kind are liable to break into your home or into your hotel room when fully armed because it is so easy to buy a pistol. I called the attention of a former minister of justice to the fact that I could walk into a store on lower Spadina avenue and buy a gun or pistol that had been manufactured in Connecticut and imported into

Canada. There are about twenty different types of pistols that these bandits or burglars can obtain.

There should be a prohibition against the manufacture of these guns and pistols and their sale should also be prohibited as well as their importation into the Dominion of Canada. No one knows who may be the next victim from motorcars on our roads.

The loss of life in the United States, England and other countries through the means I have indicated totals more than the casualties in the first great war and nearly as many as the casualties in the second great war. Human life is the most valuable thing there is.

It is the duty of the government to protect the health, wealth, happiness and prosperity of the people. Unfortunately, we have overgovernment and overtaxation in this country. Section 92 of the British North America Act was adopted for political and not economic purposes. They do not have provincial legislatures in Great Britain and yet they have a population of 47,000,000 people. They did not have such provincial legislatures in New Zealand and Australia until just recently and from what I hear they would like to get rid of them.

The loss of life is appalling. I can remember when the late Right Hon. Ernest Lapointe, a former minister of justice, escaped being hit by a motorcar by only a few inches when walking over from the Rideau club. You cannot go down some of our streets without facing the possibility of being hit or killed. Now one can drive as fast as one likes in our cities and towns.

I do not want to speak too long because several other hon. members would like to pass opinions on these matters. The marginal note to section 3 reads:

The appalling fatal accidents and- injuries from highway traffic and level crossings in Canada is mounting steadily and has become a public scandal as almost every highway is coloured red with the slaughter. Nothing is done to avert these accidents as the mad race for speed goes on. Casualties from such accidents are almost as numerous as those from the second world war in persons so killed or injured.

The purpose of this amendment is to set a penalty where a driver is convicted of failing to stop after an accident. I have seen children knocked down on Danforth avenue in the riding which I represent at the present time and have seen the little white coffins in which they were buried. Some of them were on their way to school and that was the last that was seen of them. I think the hit-and-run driver is the most cowardly type of murderer there is. Parents are not given any notice. The father comes home from work and he finds the baby

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in a coffin, or the school child turned over to the undertaker the next day. The slaughter of these innocent children has aroused the sympathy of the people of the Toronto district. It has been going on for years. It is the most cowardly form of murder, the hit-and-run, I know of. They are left all alone on the highway and our Lord and the community take care of them. They have as much right to live as some of the reckless drivers, and I believe far more. There was an instance yesterday. If you pick up today's paper you will read about an elderly lady who came to town from Gananoque to see her grandchildren, walked across the road, and was killed. She will not see her grandchildren any more. She has been sent into the next world without a moment's notice. Clergymen, labour organizations, and many other people have been complaining. Then there is the deplorable economic loss involved in the death of workmen. It runs into millions of dollars for this small country alone.

Turning to one of the other sections, let me deal with driving while under the influence of alcohol. Nearly everyone is a driver of a car. I am not myself because I am too shortsighted. I do not drive any more, and it is fortunate I do not because I would not be here very long. I believe that we should change this section of the Criminal Code. I am not a teetotaler. 1 have a permit for this year but there is not an entry on it yet. I believe that the drunken driver is a pest on the highway. Most of you who drive cars know that to be true. The situation is becoming appalling on the Queen Elizabeth highway. The wider the highways the more accidents there are. The loss of life is deplorable, and so is the economic loss.

The hon. member for Vancouver-Quadra (Mr. Green) wants to take part in this debate. He took part in the debate of 1935 when he first entered the house. There are so many sections of the bill that I will just pass on. The bill deals with hit-and-run drivers. Then there is a section dealing with failure to stop at level crossings. Last year in the Toronto district educated teachers and others were killed. I proposed a bill last year that would have required motor vehicles to stop in the same way that buses stop. Let us suppose that the carpet between the desks is a railway track. Under the Highway Traffic Act, before a motorbus enters upon a railway track it must stop and open the front door. There are nearly 40,000 level crossings in Canada and this country cannot afford adequate protection for every one of them. In the house last year and the year before I proposed an amendment to the Criminal Code, that the driver of a car who did not stop, look and listen should be fined up to $50 for not

doing so before entering upon the right-of-way of the railway. In a country of eleven million people it is impossible to eliminate all level crossings. I think this amendment would be good legislation. I knew some of the teachers that were killed. The number of lives that were lost in the Toronto district last summer is deplorable. Educated teachers and others were killed at the level crossings of the country. It takes two people to cause an accident. Until such time as it is possible to protect all crossings properly I think it would be wise by a Criminal Code amendment to put the onus on two people.

There is also a section of the bill having to do with causing death in a culpably negligent manner. Then there is a section dealing with the trial of young offenders. I think that the parents should be notified when teen-age people get into trouble. These young persons should be represented by counsel. There is no reason why they should not be represented by counsel. Some of them have been tried and convicted without representation by counsel, and I believe it would be a good thing when these people get into trouble. We did not have such a provision after the first great war, but the Addington administration faced the problem in 1801 after the peace of Amiens. The younger Pitt faced it in the years when he was prime minister. These conditions arise after every war, not only divorce but all these other things that grow out of war and involve people who go to war and come back. I believe it would be a good thing if the parents could be notified. If you pick up any newspaper you will read about these cases in the police courts. I referred this afternoon to the Don jail which was built to accommodate a little over one hundred people. The city of Toronto built two jail farms, one on Yonge street for men and one at Concord for women; and should have closed up the old Don jail. There are 400 people there at week ends and it is not fit for 125 or 140.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS RESPECTING PISTOLS, AIR GUNS, MOTOR VEHICLES, LEVEL CROSSINGS AND PAYMENT OF FINES
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LIB

Jean-François Pouliot

Liberal

Mr. Pouliot:

The Don jail is a dungeon.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS RESPECTING PISTOLS, AIR GUNS, MOTOR VEHICLES, LEVEL CROSSINGS AND PAYMENT OF FINES
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PC

Thomas Langton Church

Progressive Conservative

Mr. Church:

I will soon be finished. You will notice on page 5 of the bill there is a provision for juries to decide whether an accused is guilty or not guilty. The explanatory note on the opposite page reads:

On the trial with a jury ol persons who cause death or serious injury, it is desirable that the functions of the jury should not be curtailed or abolished.

Sometimes the judge takes the case away from the jury. The duty of the judge is merely to tell the jury what the law is supposed to be and to add any comments he wishes to make, but leaving questions of fact for the jury to decide. Otherwise the jury

system might just as well be abolished. Jurors are required to take the law from the judge, but in many cases trial by jury is negatived by the judge taking the case away from the jury. There are so many loopholes, and many people who are guilty of negligence get off. The increased number of accidents requires that the law be brought up to date to meet changing conditions, but preserving the liberty of the subject.

In Great Britain they have what is known as the Summary Offenders Act. It would be a good thing if we had it in Canada because the figures I have show that half the jails in the old country after its adoption have been closed. People were charged under orders in council and other such regulations that were passed during the war, and there would not have been any chargeable offence if it were not for the war. The war is over but we still have the same system being continued. I believe we should have such a law in Canada made applicable and only adapted to our circumstances. It would enable such people to walk into the police station and pay their fines to the sergeant by instalments. I believe it would be a blessing to the people of Canada, especially the working classes, if we had such a law adapted and applicable to our circumstances.

I think that is about all I have to say. The power is given to the police to collect these fines. Many of these people never have been in trouble in their lives. Fines are pretty heavy in the Toronto district. I think there should be a graded scale of fines. I see no reason why people in the city of Toronto should be fined $1,000 and in some other place $5. A jeweler in Montreal was fined $5 for giving away two thousand pounds of butter contrary to the prices board rules as an inducement to sell his goods. He was fined only $5. If such an offence had taken place in Toronto he would have been fined anywhere from $1,000 up to $5,000.

The Prime Minister (Mr. St. Laurent) has been very popular in our city. He came there to open our winter fair. I remember asking him last spring if we could not have two or three hours to discuss the deplorable loss of life by fires in homes. He said that at that time the government had so much work ahead of it that he would have to name a time when a discussion might take place; but then we had an election and nothing could be done. I do hope that this year, however, the necessary time will be provided; and I would ask the hon. member for Van-couver-Quadra (Mr. Green) to second the motion, if he will.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS RESPECTING PISTOLS, AIR GUNS, MOTOR VEHICLES, LEVEL CROSSINGS AND PAYMENT OF FINES
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PC

Howard Charles Green

Progressive Conservative

Mr. Howard C. Green (Vancouver-Quadra):

Mr. Speaker, I am very glad to second the

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motion of the hon. member for Broadview (Mr. Church) that this bill be now read the second time. As hon. members who were in the last house well know, the hon. gentleman has brought up these amendments on other occasions. All have been carefully thought out; all arise from a close and deep understanding of the things that are worrying the people out in the constituencies. I do not suppose any member of this house is more closely in touch with the thoughts, the wishes and the worries of his constituents than the hon. member for Broadview. In addition he has had long experience in municipal work in Toronto, and understands what goes on there in the courts, so I do hope the Minister of Justice (Mr. Garson) will give careful consideration to the proposals contained in this bill for the amendment of the Criminal Code. We all realize, of course, that in the ordinary course amendments to the Criminal Code are submitted by the attorneys general of the provinces. That has not been done in this case. Here we have submissions prepared by a member of the house who has taken the trouble to draft amendments which he believes will meet situations we all know exist.

I have no wish to take up further time; I do not want to be responsible for talking out the bill. However, I do hope the minister will give these matters consideration and that he may find it possible to go a long way toward meeting the suggestions advanced by the hon. member for Broadview.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS RESPECTING PISTOLS, AIR GUNS, MOTOR VEHICLES, LEVEL CROSSINGS AND PAYMENT OF FINES
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LIB

Jean-François Pouliot

Liberal

Mr. Jean Francois Poulioi (Temiscouala):

Mr. Speaker, it is a happy occasion when I am not bound to disagree with the hon. member for Broadview (Mr. Church) and the hon. member for Vancouver-Quadra (Mr. Green). The sponsor of this bill is a great humanitarian. I have known him for a number of years. He has always been interested in the humble man, the man on the street. He has done a great deal for his fellow citizens, and has found his reward in the popularity he enjoys in the Queen city and, indeed, throughout the country as a whole.

This bill is another indication of his interest in his fellowmen. I commend the hon. member who has supported the motion on the kind words he has used with respect to its sponsor, who certainly deserves them. So many accidents are occurring everywhere. The newspapers are full of pictures of automobile accidents on highways and at railway crossings, and it is time we did something in an endeavour to reduce the number of accidents. The words of the hon. member for Broadview and the timely remarks of the hon. member for Vancouver-Quadra will be

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broadcast throughout this country, and will serve as a lesson to all those who would take advantage of the fact that the law has not been clearly defined. I am sure this bill will serve a good purpose, and I hope the Minister of Justice (Mr. Garson) will give it favourable consideration.

There are one or two matters, however, on which the hon. gentleman might be more precise. For instance, it is provided that anyone who drives a motor vehicle while under the influence of liquor or narcotics will be guilty of an offence. What does it mean to be under the influence of liquor or narcotics? That should be well defined in the bill; otherwise a man who has taken a glass of beer will be unable to drive his car. In the summer when it is hot there is some excuse for a man taking a glass of beer, and he is not necessarily drunk or under the influence of liquor because he has done so. It is a relative matter; the effect of beer is not the same on every individual. This part of the law should be interpreted with wisdom by the judges who may have to decide upon it.

To summarize my remarks, again I congratulate both hon. members, who spoke very well. I hope the press will give the widest possible publicity to the remarks of the hon. member for Broadview, so that what has been said tonight may not be ignored and in future the number of accidents may be reduced as much as possible.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS RESPECTING PISTOLS, AIR GUNS, MOTOR VEHICLES, LEVEL CROSSINGS AND PAYMENT OF FINES
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LIB

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

Liberal

Hon. Stuart S. Garson (Minister of Justice):

Mr. Speaker, I want to add my congratulations to those which have been extended already to the hon. member for Broadview (Mr. Church) on the excellent effort he has made, as a layman, to deal with one of the most complicated branches of the law.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS RESPECTING PISTOLS, AIR GUNS, MOTOR VEHICLES, LEVEL CROSSINGS AND PAYMENT OF FINES
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September 27, 1949