February 23, 1951

PC

Howard Charles Green

Progressive Conservative

Mr. Green:

Is the Prime Minister going to speak on second reading?

Topic:   EMERGENCY POWERS ACT
Subtopic:   PROVISION FOR ORDERS AND REGULATIONS DEEMED ADVISABLE FOR NATIONAL DEFENCE AND SECURITY
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LIB

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

Liberal

Mr. St. Laurent:

No, Mr. Speaker; I made a statement about the general principle of the bill on the resolution. Of course there will be explanations supplied concerning the different clauses of the bill. The hill was drafted in the Department of Justice, and I believe the Minister of Justice (Mr. Garson)

TMr. Gillis.l

will probably be in a better position than I am to deal with the explanations which may be required.

From the discussion during the resolution stage, I gathered that the principle of the bill was acceptable but that the terms might be carefully scrutinized. I would imagine that the discussion hon. members would desire to have would be upon the provisions of the bill, and not upon the principle of a bill of this character.

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PC

Howard Charles Green

Progressive Conservative

Mr. Green:

Mr. Speaker, we would be very grateful if the Minister of Justice could make a statement on second reading.

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LIB

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

Liberal

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

Mr. Speaker, I find that my hon. friend's suggestion is a rather awkward one for me to follow, because so far as the principle of the bill is concerned or the circumstances under which the bill if passed might operate, both have been covered, first by the extensive statement of the Prime Minister (Mr. St. Laurent) on the resolution stage of this bill, and secondly, by the statements by the Minister of National Defence (Mr. Claxton) concerning the defence program, and the Minister of Trade and Commerce (Mr. Howe) concerning defence supplies, and with particular reference to the use that would be made of emergency control legislation when passed. To those statements I do not think I can usefully add anything. If I am to say anything, therefore, in response to the suggestion made by my hon. friend from Vancouver-Quadra (Mr. Green) I can only do so in terms of some of the criticisms which have been made in the debate on the resolution by the leader of the opposition (Mr. Drew) and the hon. member for Eglinton (Mr. Fleming).

The suggestion was made by the leader of the opposition that the bill should clearly state the powers that it purports to give. I believe that hon. members, having now had an opportunity of reading the bill, will see that it does clearly state what those powers are. Then, as I recall his statement, he said that we should state which of those powers we were proposing to assume. It is that point which is fully covered in general terms by the statement made by the Minister of Trade and Commerce during the debate on the address in reply to the speech from the throne.

In so far as legislation of this nature is concerned, I think that the lawyer members at least would agree that if we knew exactly what powers we are going to need to use, it would not be necessary to pass legislation of this character giving powers to the governor general in council. We would pass a statute applying certain definite powers set out in the statute and be done with the

whole matter. It is because in the situation in which we now find ourselves there is a possibility that some or others of a number of powers may be required, as developing circumstances, which are not known at the time of the passage of the legislation, may make necessary, that legislation of this character is requested, and that these powers are left to the discretion of the governor general in council. All hon. members in the chamber will recall that during world war II an elaborate system of wartime controls of one kind and another was set up, and various crown corporations as well. Very wide powers were exercised by order in council, all pursuant to an act which was passed more than twenty-five years before, the War Measures Act.

From that I think it can be seen that it would be quite unreasonable to have asked the prime minister of the day, Sir Robert Borden, when he was seeking the enactment of the War Measures Act in 1914, to state which of the powers in that statute were going to be exercised by the government.

In the present case the member for Eglinton, in a speech which, with certain rather conspicuous exceptions, I thought was an admirable one, set out four requirements for legislation of this sort. I should like to refer to what he said. He said that, in the first place, it should carefully define the emergency. In the second place, it should trespass as little as required to meet the emergency on powers that are, under our constitution, normally held by the provinces. In the third place, he says we shall wish to see that the exercise of those powers is carried out with due regard for the responsibility of the cabinet to this house. Then he says that in the fourth place, as to defence of the rights of individuals in this country, rights that have often been ignored under similar legislation in times past, there must be in this bill provisions to safeguard the rights of the individual, so that he will not be denied access to the courts.

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Will the minister permit me to draw his attention to the fact that, in connection with the first safeguard, he has only stated part of it. It reads as follows:

In the first place, it should carefully define the emergency. It should carefully define the powers that are sought and the duration, of the powers commensurate with the duration of the emergency.

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LIB

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

Liberal

Mr. Garson:

I thank my friend for the correction. I proceed to point nut that my friend must be gifted with clairvoyant powers because every one of the requirements he set out for legislation of this sort has been carefully fulfilled. This bill was in the course 80709-4H

Emergency Powers Act of preparation before he made his speech- perhaps before he even started to think about it.

In the first place, he said that this bill should - carefully define the emergency. If members will examine the bill they will see that it is succinctly and carefully described. The preamble says:

Whereas an international emergency exists that threatens the security of Canada;

It should carefully define the powers that are sought, and the duration of the powers commensurate with the duration of the emergency. If members will examine the bill they will see that the powers which are effected are practically the equivalent of the powers effected by the War Measures Act, with three conspicuous exceptions which have to do with the rights of individuals with which the member for Eglinton was concerned. The omissions are first the power to detain, deport and exclude citizens; second, censorship and control and suppression of writing; third, appropriation, control, forfeiture and disposition of property and the use thereof.

Then, with regard to the duration of the act, if passed, hon. members will see that clause 5 provides as follows:

Nothing in this act limits or restricts the powers conferred on the governor in council by the War Measures Act and, notwithstanding anything in section four, if while sections one to four are in force a proclamation is issued under the War Measures Act declaring that war, invasion or insurrection, real or apprehended, exists, sections one to four are repealed and all orders and regulations lawfully made under or pursuant to authority conferred under this act in force immediately before those sections are so repealed, continue in full force and effect as if made under the War Measures Act and shall be deemed to have been so made.

In other words, this is an act passed to cover a more limited emergency that exists at the present time until such time-God forbid that it should ever come-as it is necessary to bring into effect the War Measures Act itself; whereupon the invocation of that act will provide a continuity for any steps that have been taken under this act, and go on from that point; otherwise the act expires on May 31, 1952, under clause 4 thereof.

My hon. friend's second point is that the act should trespass as little as is required to meet the emergency on powers that are, under our constitution, normally held by the provinces. I think there will be general agreement-and I need not labour this point-that where there is a declaration of an emergency of this sort, powers that are normally within the jurisdiction of the provincial legislatures comes under the jurisdiction of parliament.

The third requirement suggested by the hon. member for Eglinton (Mr. Fleming) is

Emergency Powers Act that the exercise of those powers be carried out with due regard for the responsibility of the cabinet to this house. If hon. members will examine the bill they will see that it provides for the tabling, under the Regulations Act, of all orders in council made pursuant to this act; and that it also provides in section 2, subsection 4:

If the Senate and the House of Commons within a period of forty days, beginning with the day on which any order in council made under this act is laid before parliament in accordance with the Regulations Act and excluding any time during which parliament is dissolved or prorogued or during which both the Senate and the House of Commons are adjourned for more than four days, resolve that it be annulled, it shall cease to have effect, . . .

In other words the cabinet, in exercising its powers under this proposed act, must table the orders in council resulting from their invocation of those powers; and this bill in express terms provides for the Senate and the House of Commons the privilege of annulling the orders in council which the cabinet has passed if they wish to do so.

The last requirement of, I presume, his ideal statute of this kind which was suggested by the hon. member for Eglinton is that it safeguard the right of the individual so that he shall not be denied access to the courts in the assertion of his rights. If my hon. friend will examine the bill, I think he will find in it no clause which denies access of the individual to the courts.

I therefore think, Mr. Speaker, that the bill might easily be passed with this explanation which I have inflicted upon my fellow members in this house, only at the urgent suggestion of the hon. member for Vancouver-Quadra (Mr. Green).

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. E. D. Fulion (Kamloops):

Mr. Speaker, I think it would be fair to say that if we felt that the bill in fact accorded so completely as the Minister of Justice (Mr. Garson) says it does with the requirements of a perfect bill suggested by the hon. member for Eglinton (Mr. Fleming), we would pass it with far fewer reservations than we find we are compelled to make. Unfortunately, however, we do not agree with the minister that it accords so completely with those requirements as he appears to feel that it does.

I should say at the outset, Mr. Speaker, that the position we take is that, having pressed for some time, and particularly since September of last year, for the government to take some action to deal with the situation which we on this side felt was in fact one of emergency, and in particular having pressed for the declaration of the existence of an emergency, we cannot under the circumstances oppose the principle of this bill which

is, after all, in the first place, that an emergency exists and that therefore it is essential that the government should have emergency powers. That being the case, I can say for the official opposition that we are not opposed to the principle of the bill and will not oppose second reading of this measure. Nevertheless, we have a number of reservations. I suppose that at this point some of those on the government side might say: That seems to be the usual story. The minister, however, has himself referred to the requirements which were suggested by the hon. member for Eglinton as being desirable in legislation of this type. We do not feel that those requirements are met as fully as they might easily be met, and certainly not as fully as I think we are entitled to expect that they be met.

In connection with emergency legislation we have always pressed for as narrow a definition as possible of the powers to be delegated. I do not mean simply to define the categories of activities which are to come under control. There is certainly some effort to do that in this bill, just as there was under the War Measures Act. The minister himself has said that, under the War Measures Act, power to do almost anything in any manner was given to the governor in council. What we want, and what we feel there should be rather than a mere classification of the categories of subjects or activities which are going to be subject to the bill, is that there should be a statement of the way in which those activities are going to be controlled, and of what measures the government intends to take or contemplates taking either in the remote or in the immediate future, to deal with the situation which they must foresee arising by virtue of the emergency which they themselves have declared and to which they now invite the House of Commons to subscribe.

But here we have no accurate definition of the emergency. When one looks at the bill, Mr. Speaker, one finds that it states that an international emergency exists that threatens the security of Canada. That does not seem to me to be an accurate definition of what the emergency is. In what way does it threaten the security of Canada? In what way does it make it essential to take emergency powers to deal with it? Is it because of shortages of commodities? Is it prices that the government is worried about? Is it military action which is going to have to be taken? Or what is the object of this bill, and in what way are the powers going to be used?

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LIB

Clarence Decatur Howe (Minister of Trade and Commerce)

Liberal

Mr. Howe:

What do you think?

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I and other hon. members of this house have been asking that question for some

time, and the Minister of Trade and Commerce (Mr. Howe) appears to have no better answer, even at this stage when the emergency has been in existence for many months, than to say: What do you think?

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LIB

Clarence Decatur Howe (Minister of Trade and Commerce)

Liberal

Mr. Howe:

I do not ask what it is, though.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

The minister says that he does not ask what it is.

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LIB

Clarence Decatur Howe (Minister of Trade and Commerce)

Liberal

Mr. Howe:

What the nature of the emergency is.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

No; the minister does not ask what it is. The minister presumably knows what the nature of the emergency is in the mind of the government, but we have not been favoured with the answer. That is what we are asking for.

There is similarly no accurate description of the powers which are conferred, or the limits within which these powers may be exercised. In connection with this point one has only to look at some of the general subjects, or categories of subjects, which are to be subject to control. Control of communications and means of communications, Mr. Speaker, gives power to do anything. What I think we are entitled to know is how communications are to be controlled. What sort of control is to be exercised over communications and the means of communications? Then we come to transportation by land, air or water, and the control of the transport of persons and things; and also trading, exportation, importation, production and manufacture. There is no attempt to define what type of control over these categories is going to be exercised.

There being no definition, no limitation on the power to control, we can only take it that the control is absolute. This is borne out by the fact that the words used in these phrases which I have read-they are subsections of the bill-are in fact the same words as are found in the War Measures Act. Therefore we have the fact which I have taken objection to in the past, namely, that the government, while not saying that this control is necessary to be exercised now, nevertheless is asking us to surrender into the hands of the governor in council absolute control not of any specified or limited time, and not even specifying the time at which they intend to commence to use and the extent to which they intend to use those controls. Nor, in spite of what the minister has said, do we have in this bill any safeguard on the ordinary legal and private rights of the individual in connection with these matters subject to control.

There was one important point-if the minister will permit me-in the remarks which he made just now which should be corrected. He said that the powers given by the War

Emergency Powers Act Measures Act with respect to arrest, and so forth, of the person are excluded from this bill. They are not all excluded from this bill, Mr. Speaker. The War Measures Act gives power to the governor in council to make orders and regulations extending to, amongst other classes of subjects, one defined as arrest, detention, exclusion and deportation, four important sub-categories. The present bill excludes from the scope of the act only exclusion or deportation. It does not exclude the word "arrest"; so that the general powers given in the first operative clause of clause two of this bill, the powers given by the general words, must be taken to extend to and give to the governor in council the power to arrest. That, Mr. Speaker, of itself makes a very serious inroad into the ordinary legal rights of the individual.

Where in this bill do we find the safeguard of the principle of the rule of law? Control over these matters can all be exercised by the governor in council, including the right of arrest. Surely, Mr. Speaker, the government does not take the position that in order to exercise emergency powers it is necessary to exclude altogether the principle of the rule of law. And yet the words of this measure are sufficiently wide and allembracing to give absolute power to the governor in council at least over the categories of subjects included, and at least to that extent at any rate to upset altogether the rule of law with reference to those categories, including the power of arrest.

If the bill passes in its present form, to that extent and to an unnecessary extent, and to an improper extent, the principle of the rule of law will have been unnecessarily and arbitrarily abrogated. I hope the Minister of Justice (Mr. Garson), if he sums up this debate on second reading, which I hope he will do, will reply to the arguments put forward, or during the committee stage will say whether he does take the position and whether the government takes the position that in order to have any emergency powers it is necessary to abrogate the principle of the rule of law.

These various questions of ensuring greater protection and preservation of the ordinary rights of the ordinary citizen, and ensuring the preservation of the rule of law, will be asked again with greater persistency and particularity in the committee stage. Another thing which we are concerned about now and will have more to say on when we come to the committee stage is the question of preserving the rights of parliament and control by parliament over the actions of the executive.

Emergency Powers Act

It is true the minister said that the government will be tabling the various orders in council within a certain time after they are passed, and that the parliament of Canada by resolution can revoke those orders and regulations. But, Mr. Speaker, it is an established fact under the rules of this house that the government controls the business of the house; and after the first four weeks of the session, which are usually and properly taken up with the speech from the throne, there is very little time for and practically no opportunity to have private members' business or resolutions brought to a conclusion by debate in the house because of the severe limitations on the time allotted to private business for the first four weeks of the session. There is therefore no assurance that any such resolution, if an order or regulation were to be tabled after the first four weeks, or well on into the session, would be dealt with. At that stage we are usually rushed and all the time is then given up to government business. There is in fact no way open to an hon. member, with any certainty, to bring such a resolution before parliament and have effective debate on it and a decision taken by vote either in support of or rejection of a resolution questioning one of these orders or regulations. In effect therefore this House of Commons will under the present bill, if it passes, have no control, no means by which it can express its opinion on the actions of the executive taken under the powers given to them in this bill.

To return to the question of the principle on second reading, there is one matter to which we take great exception, and that is the taking of emergency powers without any indication that the government really intends to use them. Yesterday the Prime Minister (Mr. St. Laurent) devoted a considerable part of his statement to the advantages of having emergency powers under this measure, rather than by proclamation invoking the War Measures Act. I think that, in so far as it gives parliament the right to say whether or not it agrees that there is an emergency, the Prime Minister's argument was an important one, and gave recognition to the principle of control by parliament to that extent over emergency legislation.

But the Prime Minister did not deal with anything like the same clarity or certainty with the question of the application of these emergency powers. I think it would be fair to say that he backed away, as have other hon. members of the government who have spoken in connection with the matter, from the subject of the application of emergency measures to control increasing costs, inflation and the cost of living.

No one likes emergency powers, if I may judge from the debates in the house during the last four or five years. There is hardly an hon. member who has not said at one time or another that, in principle, he does not like emergency powers. But the main division of opinion has been on the question of whether or not it was necessary to take those emergency powers, or to retain them when they had once been invoked. We now agree that it is necessary, and that the situation does justify the taking of emergency powers; but we do not approve of the giving of those emergency powers before they are to be used. Or, to put the matter in a reverse fashion, we feel very strongly that the time is now ripe for the government to use these powers for which they are asking-that they should use them as soon as they get them. Because to take these powers to control the various subjects over which the bill gives them power, and then not to use them, is simply to invite a continuation of the inflation we are now experiencing. It is simply to invite further increases in prices, and further demands for increases all across the board.

As reported at page 499 of Hansard the Prime Minister made this argument:

The very existence of the right to intervene and establish regulations sometimes is in itself sufficient as a warning to prevent abuses; and the existence of these stand-by powers may make it unnecessary to deal with abuses that might arise if they were not in existence.

I submit that argument has been completely discredited by events as they have developed. We saw the same or a very similar argument used in 1948 in connection with the prices committee, when the prime minister of that day, the late Right Hon. W. L. Mackenzie King, said that by taking that action and by setting up that committee, and by bringing the searchlight of inquiry on the activities of people who were increasing prices, the committee would do much to prevent those increases. One has only to look at the history of that period, while the prices committee sat for some four months, at which time, as it was said with justification by members, the longer the committee sat the higher prices rose-and, as my hon. friend from Eglinton adds, the faster.

I suggest to the government and the house that if they simply take these powers, then the longer they sit with those powers unused, the higher and faster prices will rise.

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?

Murdo William Martin

Mr. Marlin:

I am sure the hon. member for Eglinton will deny that.

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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

He will confirm it.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fullon:

The hon. member for Eglinton assures me he confirms every word I have just spoken.

It is an invitation. The taking of these powers and then failing to use them, far from having the effect of discouraging increases in prices and the holding down of inflation, will act as an invitation to increase prices before the measures are actually invoked. Also, in the words of the Minister of Trade and Commerce (Mr. Howe)-used in a different debate, so I shall not quote them- he felt that that very thing had been taking place, and that in many cases industry had got itself ready for the period of control which might be expected.

There is nothing to indicate that those who have taken advantage of this period to raise their prices will not place themselves in an equal position if the government simply takes these powers, and then refrains from using them. So I suggest that, if the government is to discharge its obligations in good faith to parliament and the people of Canada, it must not simply take the powers which it says it is necessary to have to deal with the emergency which it declares now exists, and then refrain from using those powers when people are suffering as a result of the conditions brought about by that very emergency.

I ask for the assurance that when these powers are granted under the bill the government is ready, and that it will bring forward at the earliest possible moment its plans and regulations to invoke these powers and to relieve the distress our people are now suffering as a result of the increase in the cost of living.

There is something else I say we should have from the government in connection with the bill, and that is an indication of how they propose to exercise the controls they will now have power to exercise. I have in mind for instance the control they will have over trading, exportation, importation, production and manufacture. What do they contemplate by way of an organization to exercise that control? Is it to be done by an organization along the lines of the wartime prices and trade board, or how is the control to be exercised? I feel strongly that it is not proper to ask parliament to give these important and sweeping powers, powers for which we say they are justified in asking, without giving us some indication of how they propose to use them.

After all, the government is going quite some way, and the Prime Minister went quite some distance yesterday in indicating that he felt the proper approach to the matter is not for the cabinet simply to declare an

Emergency Powers Act emergency and to invoke the War Measures Act, but that they should now come before parliament and say, "We consider that there is an emergency. Here is the bill we present, and we invite you to join with us in declaring the emergency, and thus to give us power for which we ask". I say the government should complete the picture by taking parliament into its confidence and by saying, "Yes, we are asking you to join with us in declaring the emergency and giving us the power. Here is how we propose to exercise it, and this is the approximate time limit in which we intend to bring those powers into effect". I do not think the government will be discharging its obligation to parliament until it places us in possession of that information.

There is another aspect of this same deficiency, and that is the matter of information. We have always objected to what has been called blank cheque legislation, or the giving of absolute power without limitation and without knowledge of how it would be exercised:. In a sense, that is what is being done here. But it is even worse than that if the bill remains in its present form. It is giving the government the power to take absolute control of our economy without any knowledge as to when that control will be exercised. I think what parliament is being asked to do can best be illustrated by a simile. If a person were to give a cheque for $100 without any date he would not know when it was going to be presented. However, he could make allowance for it in his cheque book and then carry on knowing that some day he would have to meet that debit. But here we have a very different situation.

Some people carry on their household affairs by means of a joint bank account. Many husbands and wives do that. Quite often under those circumstances the end of the month comes around and the husband finds that the account is overdrawn. He does not know how much his wife has been spending. There are others who prefer to operate by trying to make an estimate of what the household expenses will be every month and then deposit that amount in a separate bank account. In that way they always know just what their position is and what demands are going to be made on them. Quite often even under those circumstances the account is overdrawn and then the one partner has to come to the other and say, "Will you give me a little more?" Quite often there is apt to be some difference of opinion, but in the long run what we term the weaker partner generally wins out and the extra accommodation is granted.

I think the government is in much the same position. They should not ask us to give them a joint account with respect to powers

Emergency Powers Act and then put us in the position where we would not know when the account was overdrawn or just what the situation was. Under this bill we will not know until some time after the powers have been invoked just what powers have been used, just what exercise the government is making of the powers we have delegated to them. I suggest that that is not a desirable or necessary-situation.

The government should define its powers much more narrowly and much more accurately, and should indicate also the time at which it intends to make use of them. If it should be found that there has been too narrow a definition, that some powers are needed over and above what have been granted, then I think, like the partners operating with a joint account, if the government were to come back and say, "Our account has been overdrawn; we have had an unexpected call on it, will you give us a little extra accommodation", under those circumstances the accommodation would be forthcoming.

As I see it, the government, parliament and the people of the country are all mutually interested in this matter. We are willing to give the powers. All we ask is that they do not be abused and that powers beyond what are needed are not taken. Then if the government should come back and say, "We have not taken sufficient powers to deal with this emergency", I am convinced that parliament, in a spirit of co-operation and partnership and exercising its right to properly control the executive on behalf of the Canadian people, would be quite willing to give the further necessary powers as soon as the case was made out.

I ask the government to take the house into its confidence. The government should realize that we are as concerned as they are that the emergency should be met. Sometimes I think we are a little more concerned because we would like to see them start dealing with it now, whereas they do not appear to be ready to do so. We are as anxious as they are that this emergency be met satisfactorily and that adequate power to deal with it should be granted. But they should not take advantage of the willingness of the house to co-operate in giving emergency powers by asking for powers over and beyond what is necessary and in advance of the time when they actually intend to use them.

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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

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

Mr. Stanley Knowles (Winnipeg North Centre):

Mr. Speaker, in rising to say a few words on the second reading of this bill I find myself thinking of a former member of

this house whose passing a few weeks ago was a matter of deep regret to all who knew him. I refer to Frank Jaenicke, the former member for Kindersley. Although he was a colleague of ours I sense from the reaction of the house at the mention of his name that it would be perfectly proper for me to say that hon. members in all parts of the house who knew him thought a great deal of him and were indeed sorry to learn of his passing.

I could see from the expression on the face of the Minister of Justice (Mr. Garson) when 1 started that he knew to whom I was going to refer and why. It was Frank Jaenicke who so well expressed our view during the years of the last parliament with respect to the whole question of the right of the federal parliament to deal with matters like price control which were of concern to the people of the entire country. On several occasions Mr. Jaenicke gave the house the terms of the decision of the privy council in the Canada Temperance Act case and told us that their lordships' opinion at that time was that a matter which by its inherent nature was of concern to the welfare of the whole country could be legislated upon by the federal parliament.

It was on that basis that we argued during the years of peace between 1945 and more recent months that it was possible for this parliament to call upon the government to stay in the field of rent control and to impose price controls if it could be shown that they were necessary by their inherent nature to the well-being of the whole country. Having taken that position in what was known as the few years of peace, it is only natural that in an emergency situation such as now confronts us we should take the same position. There is nothing new in that aspect of this legislation so far as we are concerned or so far as our attitude toward it and our support of the principle is concerned. We submit that at the federal level there is the right to control things that are of concern to the whole country and that is consistent with the stand we have taken right along. Therefore we shall give our support to this bill.

However, even at the risk of getting into paths where only lawyers should tread I should like to comment on the situation that seems to be developing with respect to the constitutional basis on which we are proceeding in this country. It seems to me that there are three different bases on which we operate. We have the normal situation, although heaven knows when we are ever going to get back to it, when our constitution is the British North America Act. Then we have the completely abnormal situation which

wartime creates when our effective constitution becomes the War Measures Act. Then we have this third stage that comes in between, which is neither a normal time when we are governed by the British North America Act nor an abnormal time when the War Measures Act gives the federal government all powers. We have this in-between stage when parliament declares an emergency and gives certain powers to the federal government, even though those powers may override the British North America Act.

The right of parliament to do that seems to have been established by one or two court decisions, the Fort Frances case and I believe also the decision of the Supreme Court of Canada with respect to the rent control question. I believe in both those cases the courts decided that if parliament declared there was an emergency it was not the business of the courts to look behind that declaration. Therefore at the moment I am not criticizing the situation or saying that it is good, bad or indifferent. I am just drawing attention to the fact that we now seem to have three different constitutional bases for operating in this country, and apparently we should fly a special flag to indicate which dispensation we are under. When this bill passes we will be under the in-between dispensation where we give to the federal government certain powers because of a limited emergency so declared by parliament.

With respect to the bill itself I am not going to take time to repeat some of the arguments that have already been made tonight with which I agree. I merely say in passing that I think consideration should be given to the point raised by the hon. member for Kamloops (Mr. Fulton) as to the effectiveness of the provision for the Senate and the House of Commons to annul any order passed under this act. I like that provision. I am glad it is there. It is a gesture which seems to provide something completely lacking in the War Measures Act, but the question raised by the hon. member for Kamloops is a very real and practical one. Once a session of parliament gets under way and the first few private members' days get out of the way, how would it be possible for an order brought down by the government ever to be annulled?

Naturally the government is not going to bring in a motion to annul one of its own orders in that way. A private member would have to give notice in the usual way. His notice of motion would go to the bottom of the list of notices of motions, and probably by that time in the session would not be reached at all. I think the government might give some 80709-42

Emergency Powers Act consideration to amending that clause and writing into it some specific provision so that it could actually have more real effect on the floor of parliament.

The other point I want to say something about has been touched upon in part by the hon. member for Kamloops but apparently we have to keep hammering away at it. It is the point made by my leader (Mr. Cold-well) and by the leader of the opposition (Mr. Drew) at the resolution stage, namely, that if parliament is prepared to give to the federal government these special powers because of the emergency that now exists parliament wants the government to start using those powers to try to do something to alleviate the worst effects of that emergency.

I am sure that from the way the newspapers reported the speeches of the leader of the opposition and the leader of the C.C.F. the other day the people of Canada must expect price controls almost momentarily. I remember one newspaper headline to this effect: Drew and Coldwell call on P.M. to hurry up with controls.

That sort of report of what is going on here is going out to the people, and I am sure there are many people in Canada who are greatly confused by what is happening. They heard a few weeks ago that amendments calling for price controls or for effective measures to combat inflation and the rising cost of living were defeated on the floor of the house. Then they hear of the government introducing a bill which will make it possible for the government to bring in controls. Therefore the people are wondering just what is going to happen. The government can resolve the confusion by acting as soon as possible once this bill has been passed and instituting some of these controls, particularly in the field where they are so urgently needed, and I refer to the question of the high cost of living.

This plea for price controls which can be met by the government once the bill is passed -some of us think it could have been met long ago but certainly the government admits it can be met once this measure is passed-is one that is made by ordinary Canadians. To a very large extent it is made by the housewives and workers of this country who are finding it impossible to get along on the amounts of money they have at today's high prices. It is made here on the floor of the House of Commons by members of all parties, but I should like to call one other witness to the plea for doing something about the rising cost of living. In this instance my witness is a justice of the Supreme Court of Canada, Mr. Justice R. L. Kellock. For the purpose of strengthening my argument that something must be done soon about the rising

*

Emergency Powers Act cost of living, I refer to the report that Mr. Justice Kellock made at the time he settled the railway dispute last fall; for, as hon. members will recall, he was appointed arbitrator under the bill passed here at the end of last August.

I have in my hand a copy of the award that he made. It is a very lengthy document. I do not intend to quote at length from it but I would point out that Mr. Justice Kellock accepted, and says so quite early in his report-indeed on pages 10 and 11-the contention of the railway workers that they had a right to expect their wage and cost of living relationship of 1948 to be maintained by the settlement that he would award to end last fall's dispute. That is the basis from which he worked. He tells us that in June, 1948, the cost of living index stood at 154-3. He then had to find out where the cost of living index stood at September 1, 1950, the approximate date of the bill that settled the strike. He ascertained that the cost of living index at that time was 169-8. On page 42 of his report Mr. Justice Kellock says that it would therefore take a 10-2 cents an hour increase in wages to the railway workers to do what he said they had a right to expect; that is, it would take 10-2 cents an hour to keep for the railway workers the same relationship between their wages and the cost of living index that obtained in 1948.

However, Mr. Justice Kellock said that the maximum award he was permitted to make under the terms of the bill passed by parliament last August was 7 cents. He makes that clear on pages 3, 4 and 32 of his report, as well as in other places, namely, that the limitation of 7 cents was placed upon him by the law passed by parliament. Therefore he says in his report when he awards the 7 cents, which is the maximum that he could give them, that he realizes this leaves the workers already, as at September 1 last year, 3-2 cents an hour behind that ratio between their wages and the cost of living index to which he said they were entitled. In fact, he pointed out that the situation would actually worsen, and that has happened already, for the cost of living index is already up to 172-5.

Topic:   EMERGENCY POWERS ACT
Subtopic:   PROVISION FOR ORDERS AND REGULATIONS DEEMED ADVISABLE FOR NATIONAL DEFENCE AND SECURITY
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LIB

George Prudham (Minister of Mines and Technical Surveys)

Liberal

Mr. Prudham:

Do not forget the fortyhour week.

Topic:   EMERGENCY POWERS ACT
Subtopic:   PROVISION FOR ORDERS AND REGULATIONS DEEMED ADVISABLE FOR NATIONAL DEFENCE AND SECURITY
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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

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

Mr. Knowles:

I shall refer to that in a moment. First, let me quote Mr. Justice Kellock on page 42, where he says:

By September 1, 1950, the wage rate-cost of living relationship of the railway worker had deteriorated from the 1948 level to such an extent that 10-2 cents per hour was then required to restore that relationship. In other words, the seven cents asked for was already exceeded by 3-2 cents, and this margin, it would appear, will likely continue to be augmented.

Then, at page 43 in discussing this award he points out that it is to be remembered that, to the extent that past experience may be taken as a guide, the tendency will be for this advantage to be overtaken during the unexpired term of the contract here in question.

The Minister of Mines and Technical Surveys (Mr. Prudham) suggested that I should not forget the forty-hour week. Mr. Justice Kellock makes an interesting comment with respect to the award of the forty-hour week. As a matter of fact, it is found at page 33 of his report. He says:

In my opinion, just as the employees have failed to appreciate the economic gain represented by the reduction in the work week, the railways have ignored in their submissions the disadvantageous position of the employees in the period September 1, 1950, to June 1, 1951, with relation to the rise in the cost of living index and in comparison with the situation in the durable goods industry, a situation which in both aspects would appear likely to become accentuated as the period progresses.

Note this next sentence:

It is the existence of this situation which has prompted me to fix June 1, 1951-

In other words, the seven cents an hour leaves the worker at a disadvantage, but that is all he can give them, so he has to make up for it as best he can.

It is the existence of this situation which has prompted me to fix June 1, 1951, the earliest date open to me, as the date for the coming into operation of the forty-hour week.

There is no doubt about it, Mr. Justice Kellock says the forty-hour week is worth something to the men, and because it is worth something to them he feels he should give it to them at the earliest possible date, as compensation for the fact that he could only give them seven cents an hour when the whole basis he had accepted at the start called for 10-2 cents an hour at September 1.

An hon. member over here said I should not forget the question of freight rates. I suggest to him that he get a copy of this report and see what Mr. Justice Kellock has to say about the increase in railway revenues during the first eight or nine months of 1950. He referred, for example, to the great increases in the revenues of the C.P.R., and he refers also to the C.N.R. deficit being turned into a net gain. He pointed out that these increases would mount still further during the balance of the year. He cites these increases in profits as one of the reasons why he feels the railways should pay the increased wages.

Now, Mr. Speaker, I have gone further into that than I really intended, partly because of the interjections that have come along. My point was to suggest to the house, and to the government, that this plea for price controls

for the protection of the living standards of our workers and our people generally is not just a plea that comes from ordinary people who know only their own difficulties in making both ends meet. It is documented by no less a person than this justice of the Supreme Court of Canada. He says in very moderate terms that the seven-cent increase he awarded was already 3 [DOT] 2 cents behind what they needed to maintain their 1948 ratio as at September 1 last year. He says the likelihood is that that situation will get worse during the period of the contract.

Let me spell that out a moment. As required by the terms of the bill the period of the contract is two years. That means that a situation which was already 3 [DOT] 2 cents an hour short last September will become worse over the two-year period if prices are allowed to continue to rise while the wages of these hundred and forty-odd thousand workers are frozen at that level. Incidentally, Mr. Speaker, some hon. members might have noticed that a publication called The Letter-Review which comes to our desks from Fort Erie, Ontario, referred to what I said in this connection on a former occasion. It was suggested that what I had said was untruthful, and that I should apologize to the Commons for an alleged misrepresentation of the facts. I have shown tonight that what I said before was absolutely correct, and I suggest to the publisher of The Letter-Review that he read what I have said tonight in Hansard, and that if he has not got it perhaps he will obtain a copy of the report made by Mr. Justice Kellock. He will see, I am sure, that if there is any apology to be made, he owes an apology to me.

It is quite clear in Mr. Justice Kellock's report that he knew the limitations the bill imposed upon him. It was because the bill imposed a seven-cent limit on him that he gave the workers the forty-hour week at the earliest possible date, as compensation for the disadvantage of their getting only seven cents. Now, Mr. Speaker, with that situation confronting the railway workers, 148,000 of them according to the report of Mr. Justice Kellock, I submit that an even worse situation confronts many other workers as they find it impossible to increase their incomes while prices are continuing to rise. In other words it is our hope that the spirit of the newspaper reports of the debate of last Tuesday will be carried out. The people of this country heard that all parties were calling upon the government to hurry up and make use of these controls. We want to see these hopes realized so that we will soon get an effort on the part of the government to grapple with this problem of rising prices, and to roll them back if at all possible in order 80709-421

Emergency Powers Act to protect the wage and living standards of our people. Parliament is prepared to give those powers to the government. We will watch the government closely as to their democratic and parliamentary use of them, but at the same time we want them to use them for the well-being of our people.

Topic:   EMERGENCY POWERS ACT
Subtopic:   PROVISION FOR ORDERS AND REGULATIONS DEEMED ADVISABLE FOR NATIONAL DEFENCE AND SECURITY
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Donald M. Fleming (Eglinton):

Mr. Speaker, when I spoke in the debate at the resolution stage preceding the introduction of the present measure, I suggested that we perhaps should not say too much lest the debate become doctrinaire, and lest there might be some surprises for us when the terms of the bill were made known. For my part, I must say that the bill has contained some surprises.

The debate tonight has turned on this point, and it is a point that has not yet been answered by the government. There is an emergency. Everyone admits the existence of an emergency, but it does not follow from that that the government must have powers under an extraordinary measure of this kind to deal with that emergency, especially when we are told by the government that they have no present intention of exercising those powers. Under our constitution, all that the existence of a national emergency does is to give parliament fields of jurisdiction to meet that national emergency that do not normally repose in parliament, but normally repose in the legislatures of the provinces. It does not necessarily follow that parliament must resort to measures of this kind granting vast powers to the governor in council.

The government has done an extraordinary thing in this debate, sir, both tonight and in the debate on the resolution stage. It has said, in effect, that they are not going to give the house any pledge or undertaking that they are going to use any of these powers. All they say is that if they think an occasion arises that calls for the use of some of these powers, they will use them. In the meantime, they are simply stand-by powers.

You will see at once, sir, the inherent weakness of the position the government has taken and the inherent weakness of the position that the government is inviting parliament to put itself in. If these are only stand-by powers, why should they be taken while parliament is in session? That question has not been answered by the government in this debate. As long as the government persists in declining to give to the house any indication as to when and how these extraordinary measures are to be exercised, it seems to me that the government itself is chopping away at the whole basis of the type of jurisdiction that it is inviting parliament to exercise at

Emergency Powers Act this time, namely, the existence of a national emergency. It is for that reason, in view of the continued attitude of the government in this respect, that I approach this bill with even greater misgivings than those I voiced in the debate on the resolution.

The Minister of Justice (Mr. Garson) has been kind enough tonight to build his remarks in this debate around some observations that I made as recorded at page 527 of Hansard of February 20. By some extremely elastic substitute for logic-one might call it ersatz logic-he has undertaken to argue before this house that the bill meets those specifications that I humbly sought to put before the house on Tuesday evening. He does not content himself, however, with so monstrous a proposition. He goes further and says that I must somehow or other, in consequence, regard this bill as carrying out in some ideal fashion the requirements that I put forward in my remarks. Mr. Speaker, I do not think a measure of this kind could ever be regarded as ideal, in the first place. This kind of measure-namely one confiding vast powers in a government-is not one that any member of parliament can approach with any degree of satisfaction. Those of us who sat in the last parliament will view with the greatest reluctance the situation where we feel there is a national emergency and that special measures are needed to meet that emergency if only the government will take the necessary measures. I may just interject here, Mr. Speaker, that they have it within their power to do many things to help to meet this national emergency, without resort to extraordinary and distasteful legislation of this kind. But let me deal with the points that the Minister of Justice took up seriatim in his remarks tonight.

The first requirement that I put forward was that there should be in the legislation clear definitions of the nature of the emergency and of the powers required to meet the emergency, the duration of the powers to be commensurate with the duration of the emergency. The minister contents himself with reference to the first recital in the bill as being a sufficiently clear definition of the emergency. I cannot share his view on that, Mr. Speaker. All that recital says is: Whereas an international emergency exists that threatens the security of Canada.

It says nothing more than that. It

seems to me that the minister rather wisely did not go any further in the reading of the preamble, because the next paragraph is an amazing collection of words. It is just so much verbiage. But apparently the minister does not treat that as being in any sense a

definition of the emergency or the nature of it. So I shall spend no more time on that point.

But what of the definition of the powers in this bill, sir? I in my innocence expected that we were going to have before us a bill setting forth certain clearly defined powers. But what do we find in this bill? We find that, with only several exceptions- and those not of the highest importance compared with other matters-parliament is being asked to repose in the governor in council all the powers that parliament possesses. That is an extraordinary situation. When this bill comes into effect, with the exception of those several matters referred to in one of the subsections of section 2, parliament will have vested in the governor in council all the legislative powers that parliament possesses. That, sir, is not the kind of defined power that I thought, when I was speaking on February 20, a bill of this nature ought to possess. This bill completely fails to meet that simple and necessary specification.

The second point had to do with the disturbance of the normal constitutional relationship between the dominion and the provinces. The minister has said that this bill meets what I put forward there by way of principle, namely that there should be no trespass on the rights of the provinces, except to the extent that the measures necessary to meet a national emergency require it. We shall only know, Mr. Speaker, as time goes on, whether the government proposes to use this power in a way that would give offence to what I put forward as the second principle.

I do not think that any member of this house is going to relish a centralization of power at Ottawa. We had difficulty enough in trying to disperse that centralization of power in these recent years, and we do not want to have to go through that process again. As to powers that are required by the federal government to meet the exigencies of a national emergency, let me make it quite clear that the federal government must have them; and I am sure that parliament will be glad to give them to the government if we can be sure that they will be properly and wisely exercised.

Then I come to the third point, the maintenance of the principle of responsibility of the government to this House of Commons. Much was made by the Prime Minister (Mr. St. Laurent), in his remarks in committee of the whole on the resolution stage, of a provision in the bill to which the Minister of Justice has referred tonight. When the

Prime Minister was making his remarks I thought we were going to have something far exceeding what we, on examination, actually find in this bill. The point that the Prime Minister was making was that whatever might be done by way of the passing of orders in council would come back to parliament, and parliament would have full opportunity to exercise its rights as the supreme body to which the government is ever responsible. I am not going to discuss the detailed provisions of the bill in this second reading stage, but I point out to you, sir, that that provision in the bill falls far short of guaranteeing to us, under present circumstances, the maintenance inviolate of the principle for which I have been contending. In the first place, it applies only to orders in council. It does riot apply to any regulation made under the authority of any order in council. In the second place, as this bill is drawn, there is the possibility of great delay in the tabling of those orders in council in parliament.

Let me remind you, sir, that this bill provides only for the tabling of these orders in council in accordance with the provisions of the Regulations Act, a statute that was enacted in this parliament a year ago. May I remind the house that the provisions of this act run to this effect, that the governor in council shall publish in the Canada Gazette such orders and regulations within thirty days after they are made. Then there is a further provision that within fifteen days after publication in the Canada Gazette such orders and regulations are to be tabled in this house. In other words, sir, forty-five days may pass under that procedure from the time an order in council is made before that order in council need be tabled in the house by the government under this bill. I say, sir, that is far too long a time lag in the tabling of orders in this house, orders that may in their effect be more far-reaching than any statute that parliament in the ordinary course is called upon to enact.

I say, sir, that this is not a case where parliament can be content with the application of the procedure provided by the Regulations Act. It seems to me we must have in this bill a provision requiring the very prompt tabling in the house of all orders in council passed under authority of this bill.

Then, of course, there is the third point, which has already been referred to by my colleague the hon. member for Kamloops (Mr. Fulton). It seems to me that, unless there is to be a revision of the rules of this house, any such provision as appears in this

Emergency Powers Act bill, that parliament may by joint action of the Senate and the House of Commons annul an order in council within forty days after it has been tabled in the House of Commons, is purely illusory; because you know, sir, that the only way in which steps can be taken in this house to effect that annulment of an order in council would be by private members' resolutions.

After the first few weeks of a session what chance has a private member's resolution of ever being adopted in the house? The house knows in fact, sir, that after another few weeks-we do not know how long-the government will be proposing to take away from the house the two days now remaining per week to be allotted to private members for introduction of their notices of motions. Beyond that, such a provision in a bill would be an absolutely dead letter. Even in the early weeks of the session, while the situation this year has improved over that experienced in previous sessions, we know that there simply has not been time enough allotted on private members' days for more than a fraction of the notices of motions standing in the names of private members to be debated in the house. The situation has improved in the present session. There are not nearly as many of these notices of motions filed in the names of private members. But we have no guarantee that the situation obtaining in the present session will be repeated in succeeding sessions. If experience runs as it did in the course of the last parliament we may be seeing something like fifty or more notices of motions standing on the order paper in the names of private members. Then when the government tables these orders in council and some hon. member gives notice of motion of his intention to move to annul the order in council it necessarily starts at the bottom of the list. Therefore I say, sir, that if any weight is to be given this annulment provision in the bill there has to be a new procedure provided in this house to give some real meaning and significance and effect to such a provision in relation to annulments.

I come to the fourth point which the Minister of Justice (Mr. Garson) dealt with tonight, arising out of my remarks of February 20. The fourth point that I sought to make, sir, was that in the bill there must be provision to safeguard the rights of the individual so that he shall' not be denied access to the courts in the assertion of his rights. The Minister of Justice, I think in great error, said that no clause in the bill denies access to the courts. Now, sir, the Minister of Justice is, with one very striking exception, correct in saying

Emergency Powers Act that you do not find in the bill any express provision denying access to the courts. If he refers to the powers conferred by the bill on the governor in council he will see that it will lie within the power of the governor in council by order in council under these provisions to deny access to the courts on the part of the individual.

I mentioned an exception. The great exception was the one that has already been referred to. The War Measures Act provides that the power of arrest is included in the subject matters expressly deemed to be included in the power of the governor in council under that section. When this bill was drawn, and the draftsman came to write the provisions containing these matters that are expressly excepted or reserved from the powers conferred on the governor in council, he did not follow the language of the War Measures Act, which reads in one subsection in these words "arrest, detention, exclusion and deportation." The draftsman dropped that very important word "arrest", and the reservations in this bill in that respect are simply "detention, exclusion or deportation of any person". So that, and we might as well acknowledge the fact, we have in this bill, once it is enacted in its present form, given power to the governor in council to legislate toy order in council in such a way as to cause arrest.

In his reading of the bill I am sure the Minister of Justice overlooked that. The governor in council, mark you, may not under the present bill make orders in council or regulations in relation to the detention, exclusion or deportation of any person; but he may, under the general powers given to him under this bill, make orders and regulations with respect to arrest.

I would have thought a perfectly obvious course for the government to take, if its intentions were so impeccable in this respect, would have been to have specified the word "arrest" along with these other subjects which are what we call in the courts in pari materia.

That is not all. The Minister of Justice was not a member of the government in the days of what I might call the heyday of order in council when, under powers similar to those which the house is asked to confer on the governor in council, orders in council were being passed which did interfere with the right of the individual to have access to the courts. That is no idle statement, sir. There were many orders in council and regulations which had in some of their provisions that result.

In 1947 the then remaining 57 orders in council were consolidated in connection with a bill which then acquired for all eternity,

I trust, the name of the Heinz bill, the 57 varieties. If you refer, Mr. Speaker, to your copy of the consolidation of the 57 orders in council, which I hope you have carefully preserved, you will find provisions like these. On page 11 we have clause 6 of P.C. 6759, passed on the 6th of November, 1945, entitled, "The repayment of subsidy regulations." That provision reads as follows:

6. No person shall institute or continue any action or other proceeding to recover any sum of money paid, before these regulations came into force, to Commodity Prices Stabilization Corporation Limited, or to any person on behalf of His Majesty or of such corporation, as a repayment of subsidy involved in goods that were to he or had been exported, or sold or taken out of Canada as ships' stores.

There is a clear interference with the right of an individual to have access to the courts. Then, if we turn to page 28 of the consolidation, we find clause 15 of a very important order in council, P.C. 8528, dated November 1, 1941. The provision I am now about to read remained in effect until 1947, having been changed slightly in that year. But this was the law of the land, denying access to the courts. Section 15, referring to the wartime prices and trade board, states:

15. (1) No member of the board and no administrator or other person employed or appointed by the board or acting on behalf of or under authority of the board shall be or become liable to any person for or in respect of any act or omission of himself or any other- person in the exercise or purported exercise of any power, discretion or authority or in the performance or purported performance of any duty conferred or imposed by or under these regulations or any regulations for which these regulations are substituted or otherwise conferred or imposed by the governor in council.

(2) No proceedings by way of injunction, mandatory order, mandamus, prohibition, certiorari or otherwise shall be instituted against any member of the board, administrator or other person for or in respect of any act or omission of himself or any other person in the exercise or purported exercise of any power, discretion or authority or in the performance or purported performance of any duty conferred or imposed by or under these regulations or any regulations for which these regulations are substituted or otherwise conferred or imposed by the governor in council.

There, sir, we see by action of the officials named a complete denial of the individual's normal right of access to the courts.

Then if we will turn to page 41 we find another provision in P.C. 7475 dated August 26, 1942, referring to the Commodity Prices Stabilization Corporation. Section 6 of the order reads:

6. (1) No director, officer, clerk, or employee of the corporation, and no person acting on behalf of or under the authority or supervision of the corporation shall be or become liable to any person for or in respect of any act or omission of himself or any other person in the exercise or purported exercise of any power, discretion, or authority or in the

Emergency Powers Act

performance or purported performance of any duty conferred or imposed by or under these regulations or any amendment thereof or any other order in council or statute.

(2) No proceeding by way of injunction, mandatory order, mandamus, prohibition, certiorari or otherwise shall be instituted against the corporation or any director, officer or employee thereof or any person acting under the authority of the corporation for or in respect of any act or omission of itself, himself or any other person in the exercise or purported exercise of any power, discretion or authority or in the performance or purported performance of any duty conferred or imposed by or under these regulations or any amendment thereof or any other order in council or statute.

And, sir, I mention this one further, at page 137 of the same consolidation. This is part of order in council P.C. 9439, December 19, 1944. It is an emergency shelter regulation, and section 9 states:

9. (1) No member of the board and no administrator or other person employed or appointed by the board or acting under authority of the board shall be or become liable to any person for or in respect of any act or omission of himself or any other person in the exercise or purported exercise of any power-

And so on.

There we find the same kind of provision as we had in the other two orders I read, including the prohibition or denial of the right to bring proceedings by way of injunction, mandatory order, mandamus, prohibition, certiorari, or otherwise.

Now, when the Minister of Justice says, therefore, that no section in the bill denies access to the courts, apart from the very striking oversight in regard to the arrest of any person, the minister has completely overlooked the fact that, if this bill is enacted in its present form, power will be vested in the governor in council to legislate by order in council in terms such as I have quoted from these orders in council in the earlier years, and which do effectively deny to the individual his right of access to the courts in matters which to him are of high importance.

The other day the Prime Minister (Mr. St. Laurent) made a remark which received general approbation in the house when he said it was preferable to proceed by way of a bill of this kind rather than by the invocation of powers for which provision is made by the War Measures Act. Sir, I think it is worth noting that while there are some things, some powers, in the War Measures Act that are not claimed by the governor in council under this bill, nevertheless there are provisions in the War Measures Act which might better have been added to the bill.

Now, if hon. members would make comparison of the provisions in the two measures, they would see that there was in the War

Measures Act a provision reserving what might be called vested rights acquired under the provisions of the act. There was in the War Measures Act a provision which has no counterpart in the present bill. The one I now refer to is found in section 3(2) of that act. The earlier words of the subsection are found in section 2(3) of the bill, but the following words are not. The words found in the bill are these:

All orders and1 regulations made under or pursuant to authority conferred under this act have the force of law-

And so on. Then we do not find in the bill any counterpart of the following provision as it is set out in the War Measures Act: -and shall be enforced in such manner and by such courts, officers and authorities as the governor in council may prescribe, and may be varied, extended or revoked by any subsequent order or regulation-

And then please note these words:

-but if any order or regulation is varied, extended or revoked, neither the previous operation thereof nor anything duly done thereunder, shall be affected thereby, nor shall any right, privilege, obligation or liability acquired, accrued, accruing or incurred thereunder be affected by such variation, extension or revocation.

I would ask hon. members to note that under that provision, where any change was made in an order or a regulation by variation, extension or revocation, any right acquired under the order in council as it previously provided was carefully preserved by this legislation. We do not find any counterpart in the present bill of that provision which, it seems to me, is an essential safeguard) of the rights of the individual. And I view that omission with greater concern- yes, alarm-after hearing the statements made in the house several days ago by the Minister of Justice (Mr. Garson) himself. His statement is found at page 420 of Hansard for Friday, February 16. On that occasion he came to the house with the announcement that the government had sustained another defeat in connection with certain litigation pending in the courts. I shall not discuss a subject which is sub judice, but I would point out something in the statement of the Minister of Justice on that occasion which is very significant. The minister said in effect, "We have been unsuccessful in our appeal to the Supreme Court of Canada and we will take this action". He is the man who a year and a- half ago denounced in this house appeals to the privy council as being badges of colonialism. Nevertheless he now announces that this government is going to appeal this case to the privy council. That is a strange course to be taken by a government which spoke through the Minister of

656 HOUSE OF

Emergency Powers Act Justice in the language I have just referred to when dealing with the right to appeal- the badge of colonialism.

The Minister of Justice did not content himself with that extraordinary course of action. He said that if the government were not successful in its appeal to the privy council it would take steps to deal with rights that might be accruing to persons other than those who are parties to the litigation. In other words, what the Minister of Justice was saying to this house was that if they did not beat Hallet and Carey Limited and Mr. Nolan in this case they were going to bring into effect retroactive legislation, by means of order in council or otherwise, to take away whatever rights certain people may have acquired as a result of the decision in the pending litigation.

What an extraordinary proposition! This government is not going to be content simply to reverse the position it took a year and a half ago with respect to accepting decisions of the Supreme Court of Canada and denying appeals to the privy council; it is going to destroy the rule of law by, in effect, taking steps to take away by retroactive legislation, ex post facto legislation, rights which people may have acquired in the course of this pending litigation although not parties to it. That is an extraordinary proposition for this government to put before the house. If that be done in the name of justice, it just makes a travesty of justice.

For that reason it seems to me that this house must be sure that we write into the bill before the house the kind of safeguards that appear in the War Measures Act but which were not carried into this bill by the draftsmen. If we do not take that step and write into this bill important safeguards and further reservations, not only will we be giving to the government practically all the legislative powers that we possess, with the

several exceptions in subsection 2. of section 2 of the bill; we will have failed to apply the safeguards in the interests of the rights of individuals which are to be found in the War Measures Act. Better to have the provisions of the War Measures Act in that respect and particular than the bill now before the house.

I hope that the Minister of Justice will take into consideration the observations that have been made tonight in the course of the debate. I hope that on reflection he will appreciate that what has been said by hon. members who have spoken from this side of the chamber has been said with a view to improving the bill. If the kind of safeguards that have been proposed are added to the bill, it will be an infinitely better bill than it is in its present form. If the government on further reflection will undertake to introduce the necessary amendments, the more credit to the government. If the government will not do that, it will be left to the opposition to discharge its duties.

Topic:   EMERGENCY POWERS ACT
Subtopic:   PROVISION FOR ORDERS AND REGULATIONS DEEMED ADVISABLE FOR NATIONAL DEFENCE AND SECURITY
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February 23, 1951