May 16, 1950

DEPARTMENT OF FISHERIES


111. Departmental administration, $418,340. Item stands.


DEPARTMENT OF JUSTICE


133. Departmental administration, $270,421. Item stands. Progress reported.


NATIONAL DEFENCE

CONSOLIDATION AND REVISION OF EXISTING

LIB

Brooke Claxton (Minister of National Defence)

Liberal

Hon. Brooke Claxton (Minister of National Defence) moved

the second reading of Bill No. 133, respecting national defence.

National Defence

He said: Mr. Speaker, when the resolution preceding this bill was before the house on April 18 and when the bill was given first reading I stated the objectives of the bill, as reported on page 1681 of Hansard. I stated at that time that the bill had been dealt with in the other place where it was introduced at the last session of parliament and where it received third reading on December 8 of last year. However, the prorogation of parliament prevented our proceeding with the measure in this place and consequently it was necessary to introduce it here. That was done by a resolution which was pult on the order paper on February 21, and, as I have said, first reading of the bill was given on April 18.

When the measure was before the Senate and during the debate on the defence estimates last session I indicated that it was the intention of the government, 'if the bill received second reading, to refer the bill to a special committee of -the house to be set up, if that was the wish of the house. Accordingly notice has been given in Votes and Proceedings of May 12 of the intention to set up such a special committee. If this bill receives second reading it will be the intention of the government to send it to that committee.

It is also our hope that Bill No. 134, to amend the Militia Pension Act and change the title thereof, will receive second reading when it will be referred to the same committee. Finally there is a third measure in the form of a resolution which deals with prize money. If that resolution is adopted and the bill to be based on it given second reading it will be our intention likewise to refer that bill to the proposed committee for consideration. Therefore the committee, if the motion is adopted, will have to deal with all three bills relative to defence.

. 1 do not wish to delay the house further in its consideration of this measure beyond making a few remarks to outline the history of this type of legislation. The first Militia Act of Canada was passed in 1868, the year after confederation, as chapter 40 of the statutes of that year. The act has been revised on a number of occasions but there has been very little substantial change. The present Militia Act is chapter 132 of the revised statutes of 1927. The antiquity of the measure may be appreciated when I recall that, until the passage of an amendment that I introduced in 1947, the Militia Act referred to pack animals but made no mention of aircraft. The Militia Act in its present form does not contain a code of discipline for the Canadian army but by reference incorporates into Canadian law the Army Act of the United Kingdom.

Turning to the legislation relative to the navy, the first Naval Service Act was passed in 1910 as chapter 43 of the statutes of that year. It remained in substantially the same form in which it was passed until 1944 when, by chapter 23 of the statutes of that year, a completely new act was passed. That statute introduced a Canadian naval disciplinary code. This was the first Canadian code to apply to one of the three armed services, and it has been used as the basis for drafting many of the provisions of the present bill.

The first legislation dealing specifically with the air force was the Air Board Act of 1919, later known as the Aeronautics Act. This act dealt with both civil and military aviation. The expanded activities of the Royal Canadian Air Force in the late war resulted in the enactment of the Royal Canadian Air Force Act in 1940. Unlike the Naval Service Act, but following the precedent of the Militia Act, this act contained no disciplinary code. As in the case of the Canadian army, discipline in the air force is governed by the Air Force Act of the United Kingdom which was made a part of air force law by incorporation.

Under the Militia Act, the Naval Service Act and the Air Board Act each of the Canadian forces was administered separately. The department of militia and defence dealt with the army, the department of naval service with the navy, and the air board with the air force. In 1922 the Department of National Defence Act was passed creating a new department to deal with the three services. This act was chapter 34 of the statutes of 1922, and came into force by proclamation on January 1, 1923. The Department of National Defence Act has been amended on four different occasions. The principal amendment, made in 1940, provided for the appointment of additional ministers of national defence.

Experience gained during the last war showed clearly the need for more unified control and greater uniformity in the three services. Further, the present position and status of Canada make it undesirable to depend for the discipline of our army and air force upon legislation enacted by a legislative body not responsible to the people of Canada. Accordingly, soon after becoming minister I directed that work be commenced on the preparation of a single all-embracing Canadian statute to include a common disciplinary code applicable to all three services.

I have previously partially explained to hon. members the course we followed in drafting the measure. It has been in the course of preparation now for some three

Topic:   NATIONAL DEFENCE
Subtopic:   CONSOLIDATION AND REVISION OF EXISTING
Sub-subtopic:   CODE OF SERVICE, DISCIPLINE, ETC.
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IS, 1950


years, and it is the product of the work in the first instance of officers representing the three services working under the judge advocate general. In this connection I should like to pay tribute to the judge advocate general, Brigadier R. J. Orde, for his service which was completed with his retirement from the armed forces this very week after thirty-two years in the judge advocate general's branch and thirty-seven years' service in all. During his service he has had an unusual series of responsibilities in connection with legal matters relative to the acts to which I have referred, the Militia Pension Act, the bringing about of a state of war in Canada, the mobilization of the Canadian armed forces, the demobilization of the forces, and many other measures of great importance and complexity. In all these duties he has rendered the most loyal service, and in a very real sense the bill now before us is a lasting monument to his own achievement and work. It will be found that the bill has 251 sections. It incorporates in its terms legislation which comprised over 600 different sections. Therefore it is not only a consolidation, of existing legislation but also a considerable simplification thereof. It is intended in the bill to give effect to the experience of the Canadian armed forces during the two world wars. We have also taken into account the experience of the United Kingdom where a committee was set up under Mr. Justice Lewis which has made a most important report to the government. We have also taken into account the experience of the United States where a committee appointed by my friend, the late Hon. James Forrestal, reported to the secretary of defence and as a result led to legislation which in many ways is parallel to that now before this house. The importance of the legislation can hardly be overemphasized. Not only will it provide for the administration of the Department of National Defence, the discipline of the armed forces, the work of the defence research board and many other matters but in view of the increased and increasing importance of defence, as I believe hon. members will recognize, there is a real urgency that we should have streamlined legislation to regulate these important matters. Of course at the present time the legislation affects the 48,000 odd officers and men in the active forces, the 49,000 in the reserves, and to a considerable degree the 24,000 civilians working in the Department of National Defence, a total population of something like 120,000. In the event of war its importance can be appreciated when hon. members recall that we had in the armed forces of Canada in the last war no less than 1,200,000 men and women who, National Defence during their periods of service, were all governed by the provisions of legislation which the bill will now replace. As I said to hon. members, the legislation received the most serious and painstaking consideration by a committee in the other place. In consequence a considerable number of amendments, largely of a technical character or affecting the wording, were made. The bill now before the house includes all these amendments without any alterations, but in addition it contains certain sections which were not considered in the other place because we were advised they dealt with money matters. They are sections 10; 11; 12(4); 36; 53(3), (4) and (5); 54(a) and (d); 55; 190(9); 208 and 227. We were advised that those clauses dealt with money matters, with which the other place did not deal, so they are coming before this house for the first time. The bill also has a number of minor technical changes made on the advice of the law officers of the Department of National Defence and of the Department of Justice since the measure passed the other place. The result of all this work is now before the house. As I believe I indicated previously, this is the eleventh complete draft. I have been through the drafts five times myself, and it has received the consideration of senior officers of the armed forces, of the chiefs of staff committee, of a special committee of the cabinet, the cabinet defence committee, and of the cabinet itself on a number of occasions. It has also been subjected to critical examination by officers who had previous experience in the armed forces of Canada. Despite all the work that has gone into it, however, we do not suggest for a moment that the bill is perfect. It is an exceedingly difficult, complex and comprehensive piece of legislation. We have made it as simple and plain as we can, but certainly it can be improved. We hope the house will adopt the suggestion I have made and refer it to a committee consisting largely of men having service experience in one or other or both wars, who will then receive the views of the legal advisers and any relevant service personnel; and I have no doubt they will be able to make a number of improvements. We want the best possible act, and we invite the co-operation of every hon. member of this house, as well as those in the other place, in the interests of greater justice for the services, greater efficiency for the department, and more security for Canada.


PC

George Randolph Pearkes

Progressive Conservative

Mr. G. R. Pearkes (Nanaimo):

Mr. Speaker, as I indicated when this legislation was in the resolution stage on April 18, members on this side will be pleased to co-operate with the government in facilitating its passage.

National Defence

I repeat now that we will give our most wholehearted co-operation in trying to help the minister produce the very best possible legislation to meet the circumstances. When we were at the resolution stage I did suggest that since the hour was late when that discussion took place, we should be given the opportunity to have a full discussion, if that were required, on the motion for second reading, and to that suggestion the minister gave his consent.

Before making some reference to the bill itself I should like to join the minister in extending my congratulations, and perhaps to a certain extent my sympathy, to the judge advocate general who is retiring this week after so many years of service. I know that when one has spent the greater part of a lifetime in the service it comes as a bit of a wrench to enter different fields in civilian life. I do not know whether the judge advocate general has any intention of following in my footsteps and perhaps entering public life in any sphere, but I am sure all hon. members will wish him every success and all happiness.

As -the minister said, to a large extent this legislation is a consolidation of various existing acts. It is designed to bring about unification between the services, unification in the administration of the services, and also to establish a distinctly Canadian code of discipline which as far as practical may be uniform in the different services. As the minister has pointed out, at the present time the three services are administered under separate acts, the Militia Act of 1927, the Naval Service Act of 1944, and the Royal Canadian Air Force Act of 1940. I do appreciate the tremendous task with which those who drew up this bill were faced in order to bring together all -that legislation into one measure.

This bill has been divided into thirteen parts, but generally speaking it consists of three divisions. The first deals with organization, the second with the code of service discipline, and -the third with general provisions such as aid to the civil power. A few moments ago the minister indicated that the bill contains some 251 clauses, which replace more than 600 clauses in these other acts. When this bill is sent -to committee I do hope it will be appreciated that there may be sins of omission as well as sins of commission, and that after compressing so many sections into a comparatively limited number of clauses it is possible that something may have been left out. So I hope the committee will be permitted to consider the sections of the previous acts that have been left out, and not have its activity and discussion confined to

the limited number of clauses in this bill. Before this bill is sent to committee I hope the minister will give us that assurance.

In dealing with the first -part, covering organization, in the very beginning one comes across a clause which was in the old Militia Act but which, as far as I can see, is not in this new bill. I refer to section 4 of the Militia Act, which provides that the command in chief of the Canadian army is declared to continue and be vested in the king and shall be exercised and administered by His Majesty or by the governor general as his representative. I must confess to some surprise at finding this clause left out of -the present bill. Oh, I know no one would expect His Majesty to take command of a cruiser, or to appear on parade and give an order to a troop of cavalry, -but all -soldiers, sailors and airmen are king's men, and they have valued the fact that His Majesty is -their commander in chief.

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LIB

Brooke Claxton (Minister of National Defence)

Liberal

Mr. Claxton:

I quite agree. It was omitted because it is in section 15 of the British North America Act already, and we did riot think we should repeat the same provision in this act.

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PC

George Randolph Pearkes

Progressive Conservative

Mr. Pearkes:

Those things could be

explained no doubt in committee, and that is why I am requesting that where these sections have been omitted we might have an opportunity of asking about them, and not be confined rigidly to the sections in this bill. I give that as a example of a section which has been omitted, and the reason for omitting it is not readily apparent to everybody.

There may also be a good reason for omitting section 8 of the old Militia Act, under which there was a definition of the obligation of service of the citizens of Canada. I know it is out of date because it refers to levy en masse, to enrolment by ballot, and so forth, but I am not sure it is wise to remove from this new act the obligation of service on the part of Canadians. It is quite obvious the obligation is recognized, because when the Secretary of State sends out letters of congratulation to new Canadians who have taken out their naturalization papers, he mentions the fact that one of the obligations is that of service in time of necessity. I shall quote from a letter which he sent to a Chinese resident of British Columbia, and I think it is a form letter. After extending congratulations upon receiving Canadian citizenship he says: [DOT]

Your citizenship carries with it the obligation of defending your adopted country in time of need.

Perhaps that is another example of a place where an opportunity should be given to the committee to ascertain the reasons for the elimination of clauses pointing out to the

citizens of Canada that they do have some obligations towards the defence of their country.

In the division dealing with the organization of the army, I think there is a distinct change in the definition of the responsibilities placed on the chief of the general staff. In the past it was the responsibility of the chief of the general staff to co-ordinate the other branches of the staff, the adjutant general's branch, the quartermaster general's branch, and the master general of ordnance branch, but from what study I have given to this Bill No. 133 it would seem that the chief of the general staff is now to assume more the role of a chief of staff than of the coordinator of all branches of the staff.

Coming to the second division, the code of discipline has been made to apply to the servicemen of the three services. It is unnecessary to point out that a man in the service is also subject to civil law. Apparently the framers of Bill No. 133 have had considerable difficulty in adjusting the various codes of discipline of the three services, and unification of this division has not been as easy as perhaps it was hoped it would be. One notices that there are several sections which are applicable to naval personnel only. There is a general trend throughout this division to increase the powers of a commanding officer in summary trials. I imagine that has been done in order to conform with the disciplinary powers of a captain on a ship. I am not sure that on land it is either necessary or desirable to increase the summary powers of the commanding officer. It may be argued, however, that that will reduce the number of courts martial which have been held in the past.

I know quite well that during the early part of the last war a large number of courts martial were held. I am inclined to think that was more because the commanding officers did not apply the powers that they had, and I doubt very much whether it is necessary to increase those powers. I hope there will be no trend to increase the severity of military punishments, because over a number of years, 150 years and more, there has been a gradual tendency towards reducing the severity of military punishments which, first of all, were administered under the Mutiny Act, and then under the articles of war. It is less than 150 years ago that corporal punishment was abolished. Since then, step by step, the severity of military punishments has been reduced. One step was the introduction of detention as a substitute for imprisonment in the case of a purely military offence. Then there was a reduction in the

National Defence

number of military offences which were punishable by death, and there was also a modification of field punishment.

One group of clauses in this act which I think will be welcomed are those which provide an opportunity of appeal from the ruling of courts martial. I am not sure that we could not have gone much further in that respect than has been done in Bill No. 133. The appeals from decisions of courts martial will be referred to a special board composed of judges and non-service personnel. Many crimes which are of a military nature are also crimes which are dealt with in civilian life by the ordinary courts of law. I am not certain that it might not have been desirable to have restricted the number of military crimes, so that there would have been only those crimes which are essentially of a military nature to be dealt with by courts martial. Service personnel could be sent to the civilian courts during peacetime in preference to courts martial. The members of a court martial are not always well versed in the law. They are not twelve good men and true drawn from the same status of life as the serviceman who appears as the prisoner.

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LIB
PC

George Randolph Pearkes

Progressive Conservative

Mr. Pearkes:

That is a debatable point, as to whether they are usually fair-minded, because they are always appointed by a senior authority. I have known cases in which instructions have been sent out to officers who might 'be sitting on courts martial in the near future, that their opportunities for promotion would be judged largely by their manner in insisting upon discipline and not showing any weakness in awarding punishment. I know it is a legend that a court martial is the fairest court of all; but there is grave doubt in my mind as to whether that is actually the case.

We now come to the last and final division, that of general provisions dealing with aid to the civil power and so forth. During the last few weeks we have been faced with an emergency in which the armed forces of the country have been playing a splendid part in helping the civilian authorities. A few years ago there were the floods in the Fraser valley. Today there are the floods in the Red river valley. Last week there were serious fires at Rimouski and other places. I wonder whether the sections dealing with aid to the civilian power should not now be made more all-embracing so that instead of dealing only with questions of riot, they might also deal with the allocation of authority in cases of fire and flood.

Private Bills

As the minister has said, there are not a great many of the provisions in this bill which are of a highly controversial nature. I should like to offer my congratulations to the framers of the bill. As I said previously, there will be every desire on the part of members from this party who will be serving on the committee to help facilitate the work. We appreciate the statement made by the minister that he will welcome our suggestions and our co-operation to try to improve the existing bill. Because of the fact that a number of sections of the previous bill have been eliminated, and also because of the financial implications to which the minister has already referred, I hope that reasonably wide latitude will be given to the committee to make a thorough investigation into all the ramifications of this bill.

At six o'clock the house took recess.

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AFTER RECESS The house resumed at eight o'clock.


PRIVATE BILLS

UNITED SECURITY INSURANCE COMPANY

LIB

John Horace Dickey

Liberal

Mr. J. H. Dickey (Halifax) moved

the second reading of Bill No. 205, to incorporate United Security Insurance Company.

Topic:   PRIVATE BILLS
Subtopic:   UNITED SECURITY INSURANCE COMPANY
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Motion agreed to, bill read the second time and referred to the standing committee on banking and commerce.


APOSTOLIC TRUSTEES OF THE FRIARS MINOR OR FRANCISCANS

May 16, 1950