October 4, 1949

LIB

Charles-Arthur Dumoulin Cannon

Liberal

Mr. Cannon:

The hon. member admits that he is speaking on the principle of the bill.

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

Thomas Langton Church

Progressive Conservative

Mr. Church:

No, I am not. There are certain rights which we have always had, and we had them long before confederation. We have had them ever since we were a country, and dear knows I have been one of those who appreciate that we have the province of Quebec in this country. I paid tribute to them on many occasions. I paid tribute to them when they had fewer friends in this house than they have now. I say that the manner and method of carrying this out is altogether wrong. It will be noticed that all through the bill it says: "This is new; the amendment will abolish appeals to the privy council." Because the Minister of Justice says so it does not make it so. The provinces have a contract. The other day I quoted from the Statute of Westminster. I quoted from a textbook, Wheare on the Statute of Westminster, which is one of the greatest authorities we have on this particular statute. I said the other day that sections 6 to 13 of the Statute of Westminster

did not apply to either New Zealand or Australia. They were wise to contract themselves out of it.

This particular bill is unconstitutional. In the first place, the government has no power to bring it in. It is going to make a scrap of paper out of what? Out of the British North America Act, out of the provinces and out of the right of a subject to petition his king, which he has always had. That was Liberal doctrine. It was Liberal doctrine that a subject had a right, as a matter of grace, to petition his king as to his citizenship and property. Every subject in this country, whether French or English, or wherever he comes from, has the right as a matter of grace to send a petition right up to the king on the throne.

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. Pouliol:

He may write to the king.

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

Thomas Langton Church

Progressive Conservative

Mr. Church:

And he is sure to get the king's reply. Now you are going to take away that right. Is that Liberalism? Is that the Liberalism that we of the older provinces were promised at confederation? It is not a constitutional question. This bill tears up all the case law and the decisions which were reported here at some length by some hon. members of this side and the Minister of Justice. I am surprised at the Minister of Justice bringing in such a bill as this. I say that if this bill goes through I have no doubt it will be declared unconstitutional. It cannot take away the contract which was made in 1844, and long before that in this country. As this textbook on the statute says, the provinces had a contract when they came into confederation. We first got this law by the Constitutional Act of 1791. At that time so much of the law of England was copied in by two provinces of Canada as was applicable and adapted to our circumstances. That was the law. As I said the other day, the king had to have his courts. He could not do it all himself and administer justice. That is how courts of law came into being.

The other day I referred to several fine Liberal ministers of justice. They were absolutely opposed to the method and manner indicated in this bill. There is a difference between this bill and bills which have been introduced in the past. They widened the bill, if you please, to include what? To include something regarding the use of the French language. If there ever was a body that protected minorities it was the privy council. They held a pretty fine balance. I quoted the doctrine of stare decisis when I spoke in 1921 and 1922 on the matter when it was first proposed in this house. I was quoting that doctrine because some of the decisions were given by magistrates. There

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were 180,000 orders in council passed in this country during the war, only four of which ever got to the supreme court, this famous body to which they want to hand over the law. Only four of them ever got to the privy council. One was in regard to margarine.

This new bill seeks to use this new system of Liberalism. Sir Allen Aylesworth was one of the ablest ministers of justice the country has ever had. I quoted him the other day. He said it could not be done. He is probably one of the greatest lawyers this country ever produced. He was on the Bering sea arbitration. There was also a great lawyer from Quebec. He was solicitor general in the Laurier cabinet at the time, and I got him to kick off the football at Rosedale grounds in a game between Queen's and Osgoode Hall. He became the attorney general of Canada and minister of justice. He became chief justice of the Supreme Court of Canada and lieutenant governor of Quebec. What did these men say? They were absolutely opposed to the method proposed in this bill as suggested by the Minister of Justice and the Prime Minister. We want something better than that from Liberalism.

As I said the other day, and as I said twenty years ago, we want a British North America Act for the living and not for the dead. We want it brought up to date to meet changing conditions. The two debates which went on yesterday showed a need of some change for the working class of this country. Are we going to make a scrap of paper out of the British North America Act? Although the government desires the passage of this bill, I do not think it will ever get past the courts.

During the election the Prime Minister spoke in our city. He was very popular there. He got a great reception, but he should have told them about the bill of rights which he proposed to have introduced. If he had told the people of Ontario, the west and the mari-times, that he was going to wipe out with one sweep of the hand all the rights and privileges which they enjoyed when they came into confederation, things might have been different. If he had told the people of Toronto that, and also the people of the maritimes, things might have been different. As this textbook says, Ontario and Quebec came in on a contract. It was hard to get them into confederation. Their contract cannot be altered without their consent, or without an address from both houses of parliament to His Majesty. Afterwards, other provinces were joined. Is that twentieth century Liberalism as we have it today?

His Majesty the King visited this country, including the province of Quebec. In no part of Canada was he given a better reception

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than in Quebec, thus showing the tremendous popularity of the monarchy at the present time. But what are we going to do? We are proposing to take away the right to petition the king if anything goes wrong with property or civil rights of the subject or citizen. That is going to be wiped out forever by this parliament, where we say, "This is new; we will abolish appeals to the privy council."

But the fact that the Minister of Justice says so, and the Prime Minister says so, does not make it so. As the hon. member for Temiscouata has said, the method and the manner are all wrong. First they have to have a petition from both houses of parliament. Every amendment to the British North America Act has been preceded by a petition. And it is addressed to whom? The petition is to the foot of the throne. That has been done when amendments have been asked to the British North America Act. It will be noticed that at the present time Saskatchewan has some appeals pending in connection with margarine.

I believe this proposal is made to sever relations altogether with the mother country; there is no doubt about it. We have motions on the order paper now to that effect. One wants to change the office of governor general, so that we may have a Canadian in that office. One newspaper in Toronto has gone so far as to announce who he is going to be. Another hon. member has a motion on the order paper to change the flag, there are motions to change the national anthem, to change the name of Dominion day, and to abolish appeals to the privy council.

As I have said, all these matters are only secondary. But there are other primary matters of vast importance which we should be considering. I could read a long list of those matters, which I placed on record the other day. This bill is founded on what? It is founded on an appeal to separatism, to autonomy. Let us not forget that a million men fought in the first war, under their own sovereignty and autonomy. They did not go over to fight for Britain, but they fought by her side-and 130,000 of them fell on the field of battle. What they did changed the whole history of the world.

What was good enough for the men who went overseas in the first war is plenty good enough for me, and it ought to be good enough for all of us who stayed at home because some of us were not able to go. They went over there to fight by Britain's side and, in so doing, they changed the the whole history of the civilized world.

When these are only secondary matters, is this the time or the place to go the distance we are asked to go today, and to wipe out all these appeals? I say no, it is

I

not. And I can tell you this, that it seems to me we are getting farther out of the empire all the time. There are some who seem to want to make all these changes, until we have now reached a point where we have very few links left.

One of those links is that the king is still the king of Canada. He is still the king of Canada, and no one can prevent his being the king of Canada. We have the right to petition him in any matter affecting the rights of the citizens. These are known as matters of grace, and anyone may have that right-not even the privy council can take it away.

This bill deals only with matters which may be dealt with properly by the courts. It is not in any sense a bill which could be considered otherwise. In my view this is a bill of coercion, a bill to coerce some of the provinces, and it is not one which we should pass at this time. It seems to go further than any of the other bills which have come before us. The present measure has been widened out to include the matter of language. There has never been any doubt of the fact that the privy council has always been the protector of minorities-because let us remember that minorities have rights, just the same as majorities. Both groups have always had rights.

We could never have made progress as a country if minorities had not been given rights. They have the right of language and of religion. We will recall how in Louisiana Huey Long, then governor of the state, came along to support the late president of the United States, Franklin D. Roosevelt, in the south. He wiped out the treaty altogether, and abolished their language and religious rights-something which the privy council never would have done. It has always been the protector of the rights of minorities and of majorities.

I object to the method and the manner in which this is being done. I believe it is a political bill first, last and all the time, particularly at a time when there is a wide division between our people, and when there are more important matters to be considered.

This is not the time to bring up the matter of sovereignty or autonomy. Now is the time when we should be discussing primary matters. In the second world war almost five times as many men went overseas, under the same status we now enjoy. They did the right thing, accordingly.

This textbook I now hold in my hand, Wheare on the Statute of Westminster, sets out the rights of the provinces, and it states that they have no right to change the contract made by the four original provinces, including the maritimes. It also makes refer-

ence to what was done in New Zealand and Australia, and makes special reference to sections 6 to 13 of the Statute of Westminster.

That is the statute which caused all this trouble. Had it not been for the Statute of Westminster, which I have always looked upon as one of the most mischievous statutes we have ever known, we would never have had this bill before us. The privy council has given its decision on that statute.

We are widening the breach. We are permitting ourselves to be looked upon as being outside the empire altogether. Why does Canada want to be out of the empire, as we will be if we are going to accept this bill? If the subject is not to be allowed to petition his king, when his property and rights are in danger, what is the use of our talking about it any more? Why do we not get out of the empire altogether, and have a separate country, as some want to do on the banks of the St. Lawrence? We would have a separate flag, and anthem, and all that kind of thing. This textbook says that we have no such right, and that a contract is a contract whether it be made by an individual or by a statute. I hope the bill will not pass. It never should have been brought before the House of Commons. It seeks in a roundabout way to do what never should have been proposed; it refuses to give the right of petition to the king in matters of grace.

(Translation) :

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

Wilfrid Lacroix

Liberal

Mr. LaCroix:

Mr. Chairman, as we are still on section 3, I have an amendment to introduce. I move that section 3 be amended by the addition at the end-

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

Mr. Chairman, I rise to a point of order. The hon. member for Quebec-Montmorency (Mr. LaCroix) moves an amendment while there is already one before us-

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

Wilfrid Lacroix

Liberal

Mr. LaCroix:

We are dealing with section 3 and-

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

I am sorry to interrupt the hon. member, but I must say that we are now dealing with an amendment moved by the hon. member for Kamloops (Mr. Fulton).

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

Joseph-Alfred Dion (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

We are now considering an amendment moved by the hon. member for Kamloops and relating to section 3. The committee will have to dispose of it before another one can be moved.

(Text):

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

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

Mr. Chairman, I believe some answer should be made to some of the statements made by the Minister of Justice in discussing the amendment. The first of these was not so much an attempt to deal with the actual merits of the amendment as it was an attempt to call into question the motives behind the amendment. The minister has

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said that the amendment could be taken only to mean that those who support it have not confidence that the supreme court can be relied upon to apply the law as it now exists.

I think that argument is answered by reminding the minister again of the declaratory acts of the various provinces. Does the minister contend that the enactment of those statutes was an indication that the provinces had no confidence in their own courts? All that those governments were seeking to do was to say what would be the law which should be applied by those courts, and how they should apply it. They were not laying down rules of procedure but rules of substantive law defining the law as it should be applied and followed by their courts. This amendment merely seeks to do the same thing for the Supreme Court of Canada and for the people of Canada.

There cannot be found anywhere in it any suggestion that those who support it lack confidence in the supreme court or the judges who now form the supreme court or in our ability to find other judges of the highest calibre to sit on that court. I suggest that no judge now on the court or subsequently to be appointed to the court would resent in any way the fact that this parliament of Canada, the law-making body of Canada, has seen fit to discharge its duty to the people of Canada, its duty of saying what shall be the law to be applied by that court. That is all that this amendment does. The minister has in fact strained words out of all their possible meaning in an attempt to find an argument against an amendment which on the face of it is quite unobjectionable.

Then dealing with the actual content of the amendment the minister raised the point that the amendment would be unconstitutional because-here I must confess that I could not follow his argument; I found it just as strained as his other argument-we would be seeking to direct the Supreme Court of Canada to apply certain laws with respect to the provinces and in doing so we would be infringing on provincial jurisdiction. This amendment does nothing of the sort.

This amendment merely recognizes that the provinces have the right to pass legislation changing their statute law with respect to property and civil rights. This amendment merely recognizes that right. I was going to say it merely safeguards it, but it is not necessary to safeguard it. The position is that in the past the privy council heard appeals from individuals in Canada who were citizens of this or that province. Let us say that there was an appeal by a citizen from the province of British Columbia concerning the rights of that citizen as against the rights of another citizen. Those are determined by

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the laws of the province of British Columbia. However, those decisions of the judicial committee are now the law of this country. The province of British Columbia could change the law within its proper sphere of legislative power. The amendment reads in part:

Subject to any enactment of the parliament of Canada or the legislature of any province in exercise of their respective powers-

That is merely a recognition of the rights of the province to change the law within the province with respect to its citizens. There is no attempt to infringe on provincial jurisdiction.

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

Alan Carl Stewart

Liberal

Mr. Stewart (Yorkton):

If the hon. member is not afraid of the constitution of the court, and if he is not afraid of the court exercising proper jurisdiction and following precedents, what is the necessity for the amendment? What is the hon. member afraid of?

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

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I have not said that I am afraid of anything. I doubt if the hon. member himself will disagree with me when I say that the proper function of a legislative body is to define with as much accuracy as possible what it is trying to do and what are the laws and the rights and the duties which it seeks to create by the statute it may be passing. We are considering a statute here to give the supreme court final jurisdiction. I take it from the words of the Prime Minister and the Minister of Justice that there is no objection to the principal of stare decisis being followed and applied by that court, but there is a possibility, and we are dealing here with statutes, we are enacting laws-

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

Alan Carl Stewart

Liberal

Mr. Stewart (Yorkton):

Why is there a possibility?

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

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

We are enacting laws affecting all the people of Canada and it is conceivable that as a result of this law an entirely new set of decisions will be started. This does not call into question the constitution or the personnel of the court; it is simply a safeguard against that happening. It is only part of our legislative process and in the absence of further fundamental objections I am not in the least bit weakened in my support of this amendment. This is particularly so since the president of the Canadian Bar Association, which, as has been pointed out, embraces in its membership a large number of judges of Canada, has stated since this debate started that in his view, speaking as the president of the association, such an amendment should be written into the bill which is now under discussion.

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. Pouliot:

I was struck with what my judicious friend has just said, and I wonder if he could tell us if in his capacity as member of parliament he has any judicial capacity,

although he may be very judicious. This is very important. Judicial powers and legislative powers are in tight compartments and must not be confused, although they seem to be in the mind of the hon. gentleman.

I ask him again how he got any judicial authority when he was sworn in as a member of parliament, and from whom? He may be a justice of the peace and as such may be able to speak with judicial authority, but the fact that he is a member of parliament does not mean that he is a justice of the peace. I have listened to justices of the peace who were a little less dogmatic than the hon. member for Kamloops, who were quite ponderous in their thinking. My hon. friend may be a justice of the peace, he may be a judge of the commissioner's court, he may have authority to give an oath, but that is not because he is a member of parliament. His only jurisdiction as a member of parliament is legislative jurisdiction. Does the hon. member not agree with me?

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

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I thank my hon. friend for the lecture he has just given me.

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. Pouliot:

It is not a lecture; I am speaking what I have in my mind.

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

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I quite agree.

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. Pouliot:

I was not clear enough, unfortunately. I should like to be understood by the hon. member.

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

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

If you think it worth it.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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October 4, 1949