April 8, 1954

PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

Mr. Chairman, it is not easy, when we are faced with an amendment on short notice, as we are here, and are told that the congresses have given it even the rather cautious approval they have, to enter into an argument in detail, but I still have reservations with regard to this change which, as it appears from the text of the amendment, affects only the last three lines of the saving clause. The reason I have these reservations is that it must be admitted that in so far as the present criminal law is concerned, this introduces a new element, an element

which, at any rate, has not been in it since 1906, if indeed it was there before that time. That is why this making a breach of a contract as between an employer and an employee the subject of criminal law in a manner in which it was never previously-

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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LIB

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

Liberal

Mr. Garson:

My hon. friend is quite

wrong. It was back as far as 1875 that the English analogue of this legislation was passed with the approval at that time of employers and employees in England; and it was in 1877 that the substance of this English legislation that we are discussing was passed in Canada. That was carried on, in fact, in the Canadian Criminal Code of 1892 and has been the law of Canada therefore continuously from 1877 until the present time.

Topic:   EXTERNAL AFFAIRS
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

Not since 1906.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
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LIB

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

Liberal

Mr. Garson:

Yes, since 1906, as regards the first three items: "(a) to endanger human life, (b) to cause serious bodily injury, (c) to expose valuable property, real or personal, to destruction or serious injury".

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

Yes; I should have said it is new since 1906 with respect to subparagraphs (d) and (e) of clause 365.

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LIB

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

Liberal

Mr. Garson:

That is right. But my hon. friend would not be completely accurate if he just dropped his statement there. The reason that this section 365 was not effectively operative with regard to utilities and railways as from 1906 was not through any absence of parliamentary intention but because in the revision which took place in 1906, purely through a draftsman's error, which is quite obvious to one who reads the section, it was so drafted that it was not practically enforceable. If hon. members are interested at all, I could go into the minutiae of the reasons for that. They are technical reasons but I have not found anyone yet, even those who are quite strongly opposed to the clause as a whole, who is prepared to argue that the ineffectiveness of the section as from 1906, in its application to utilities and railways was the result of deliberate policy, or anything else than the result of a draftsman's blunder.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

The point there is this. It is perhaps not very material except to this extent, that while that may have been the reason, the fact is that since 1906 this has not been a provision, or at any rate not an enforceable provision, of our law with respect to subparagraphs (d) and (e) of subclause 1. Therefore you cannot really say that that fact was not due to the absence of parliamentary intention, because since 1906 to the present time parliament has not acted

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to make it an enforceable provision of the law. Therefore, how can you possibly say that it was not because of absence of parliamentary intention? If it had been desired to make it a real and enforceable part of the law, then the section would have been amended; but it has not been amended and no attempt has been made up until the present time to change it. That is an argument with regard to history, and perhaps it does not go to the merits of the situation. The merits of the question now are: Should it be made applicable to contracts between employers and employees in this field, whereas in effect it has not been applicable to it before but has applied only to contracts between corporations engaged in this field? Does the minister disagree?

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LIB

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

Liberal

Mr. Garson:

Yes, I do disagree. As nearly as I can judge, I think that the reason that parliament did not form an opinion in relation to this gap in this section was that until we began the consolidation of the code and had some experts examine the section, parliament was not conscious of the fact that that defect did exist in the section in relation to public utilities and railways. In the interim no occasion had arisen to invoke this section and thus no occasion to see whether it was in vocable. It was just a hiatus in the law that no person was conscious of. It is an extraordinary thing regarding this legislation relating to criminal breach of contract, which was the product in England of a royal commission and of great public attention to the report of the royal commission by, as I said before, the employers and employees, who apparently were of the opinion that this was required to meet situations which might arise, that I have not been able to find, nor have my assistants, either in Great Britain or in Canada, any single instance in which the British statute or the Canadian statute had been used as a basis for a prosecution. That is my reason for submitting what, I admit, is just a personal theory of my own that no person had discovered the real effect of the section until we started to examine it for the purposes of consolidating the code.

But there is no question about the policy involved in this section; for if my hon. friend is interested, he can go back and examine the debates when the code was being passed in 1892 when Sir John Thompson discussed this clause, or go back to when Edward Blake discussed it in 1877 under the Alexander Mackenzie government, when it was first introduced, and see their clear explanations for its presence in the law of Canada.

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I expect that in future it will not be invoked any more than it has been in the past. This section was introduced into the law to deal with only certain types of labour difficulties. It was not introduced so much in the interests of the employers on the one hand, or labour upon the other, as in the public interest. The distinction was drawn in the British statute in this way. They said, here is a small group of contracts which we think in the public interest it should be a crime to break. One of the occasions of examining this in England was a strike of workmen in the gas converter industry which put a large part of the city of London in darkness for a long period of time. That was a rather outstanding example of the public interest being seriously affected by a wilful breach of contract, and that is one of the things which inspired this provision. Happily, in Canada we have never had to invoke it, and I hope we never shall, but there is no question about the legislative policy which inspired it and kept it on the statute books; and the only reason there has been since 1906 a gap in this section in relation to utilities and railways is bad draftsmanship in the Revised Statutes of Canada for 1906.

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Subtopic:   CRIMINAL CODE
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

Perhaps we can leave the historical interest of the matter for the time being, though I believe this observation will be made by responsible labour people who are uneasy-and I am interested only in the responsible ones-that the reintroduction of this provision as part of the Criminal Code, if in fact it has never been invoked, is unsound. I believe they would say that, on the basis that there has been no occasion since 1906 to find out whether it was enforceable with respect to employees, because no case arose. That is a fairly good argument in support of their view, and they claim that if it ever should be necessary to deal with a problem of this nature then the proper place to provide for it is not in the criminal law but rather in the field of labour relations legislation. That is their point and I must say it seems to me a point of some substance.

But I am prepared to leave that argument for the time being and deal with it on the basis that the government put it in the code in the form in which it now is. In that respect, as I understand the attitude of responsible labour organizations, they say that if a breach of contract between employer and employee is going to be introduced into the field of criminal law then you must introduce it in such a form that the normal and recognized rights of labour to strike, after due *conciliation processes have been complied with, should not be made the subject of criminal prosecution. That is their concern.

They recognize that an illegal breach of contract is wrong, and they feel the same way as others do in that regard. In fact, they feel as strongly about an illegal breach of contract as any of the rest of us, but they say they do not want this clause used, and I think they are entitled to say that. They agree there should be a prosecution in connection with a perfectly legal breach of contract: in other words, where a contract has been discontinued or broken after the appropriate effort prescribed by conciliation legislation has been complied with. But they were concerned with the wording of the clause, particularly the last three lines where there appears to be room for a maliciously-minded employer to put them in such a position that they would be forced to disregard the detailed terms of some labour statute regarding conciliation and where they might be aggravated and irritated to the point where they would be unable to restrain their members any longer so that a technical breach is committed. This would then be the subject of criminal prosecution, and they feel these last three lines are too restricted in character. I felt they had a case there and an argument which is well founded.

What we have to do, it seems to me, is to look at the proposed amendment to see whether in fact it removes that objection. I have some rather grave doubts as to whether it does. It restates it in different language, it is true, but it still seems to me to tie them down pretty tightly as to the exact steps which must be taken, the absence of which, they say, should not be made so much a matter of criminal prosecution as a process in the field of labour legislation. I drafted an amendment so that that principle would be there, the language of which, I submit with all humility, achieves that purpose rather better than the present amendment. My amendment was in this form, that the clause be amended by deleting from subclause 2 the words in the last three lines and substituting the following: "If, before a stoppage of work occurs, there has been a bona fide attempt by such a person or a bargaining agent to invoke and observe the provisions of the law then and there in force relating to the settlement of industrial disputes". That is an attempt to state the general principle that, provided the employee or the union has made a bona fide attempt to abide by the terms in force under any labour legislation which might cover a particular contract, and that, if he or they made that bona fide attempt to abide by these provisions, a breach of contract, or a strike, if you like, subsequent to that shall not then afford an opportunity for criminal prosecution. I believe it is sound to suggest that that

principle should be stated in broad general terms, leaving it to the court to decide whether there has been that bona fide attempt, because it is difficult to draw an absolute distinction here and determine who is responsible, the employer on the one hand or the employee on the other.

But we do know, as a matter of fact, that there are some employers, unfortunately, who do not share the generally accepted view with regard to labour unions and will place obstacles in their way and will, in fact, at times conduct themselves in such a manner that the task of the union on its side to comply with the regulations regarding industrial disputes is made difficult. For that reason we could state this general proposition, that provided the employee or the organization has made this genuine attempt to comply with the terms of labour legislation covering industrial disputes, it should not be possible to lay criminal prosecutions, although you might still be free to invoke whatever the provisions are of the labour legislation or the terms of the civil law with regard to the breach of contract. As I say, with all due humility, I rather feel that the type of amendment I had in mind would achieve that object better than would the amendment moved by the minister. I will send him over a copy of the amendment and I would ask him if he would consider the possibility of accepting it as a substitute for his own.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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LIB

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

Liberal

Mr. Garson:

Perhaps I might deal with the hon. member's suggestion now. I am afraid that I would not accept it, Mr. Chairman, for this reason. I do not for a minute hold myself out as being any better labour lawyer than is my friend the hon. member for Kamloops.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I do not think that either of us is particularly well qualified in that field.

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LIB

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

Liberal

Mr. Garson:

No; I do not think we are. Labour law is quite intricate law. I prefer to rely upon specialists in this field. When we have had this particular clause in the Canadian law for upwards of seventy years and when we were consolidating the code and had fairly clearly decided as a matter of policy that the substance of this law was to be carried on, it seemed to me that the most intelligent way of providing for a wording that would continue that substance in a manner that would be acceptable to these people who were immediately concerned, namely the labour congresses on the one hand and the employer interests on the other, was to go directly to them, let them bring in their legal counsel, sit in with us and see

Criminal Code

whether we could work out a satisfactory wording upon which agreement could be secured. I do not pay any disrespect to my friend the hon. member for Kamloops when I say that I would quite honestly prefer the views of Mr. Maurice Wright, for example, counsel for the Canadian Congress of Labour, to those of my hon. friend and I would prefer Mr. Crysler's views, because these are men who are competent specialists in this field.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

But sometimes they have to be content with what they can get. It does not necessarily mean that what they can get is what they want.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
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LIB

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

Liberal

Mr. Garson:

No, it does not necessarily

mean that what they can get is what they want. First of all, in legislation one has to decide on what the policy is to be. But even after that decision has been made there is always involved, in a matter of this kind, the intricate problem of draftsmanship. The best thing to do in a specialized field of this sort is to go to the people who are experienced and competent. That is what we have tried to do. The result is that the Trades and Labour Congress accepted this wording that I have moved. The Canadian Congress of Labour in effect say, "We do not want the legislation, but of course that is a question of policy. If you are going to have legislation, then we would prefer to strike out this 3-line clause at the end of clause 365 (2) of the bill entirely." It seemed to us that to do this might make it possible for a wildcat strike to frustrate completely the intent of clause 365. The Canadian Congress of Labour's next choice was the saving clause that is provided by this amendment which I have moved. That means that so far as the drafting end of it is concerned the two congresses, as a matter of draftsmanship, approve of the wording in the way and to the degree I have indicated. I may also point out that Mr. Crysler says that as far as he can judge there are no defects in this wording having regard to workability. That is an important consideration.

I am sure I do not need to inform my hon. friend that the provinces of Canada have their labour codes. We have our labour code in the federal field, namely the Industrial Relations and Disputes Investigation Act. When one drafts a provision of this sort in the Criminal Code, cognizance must be taken of these other laws. The wording we have here is the result of efforts in consultation with the men whom I have named, whom I certainly regard as being experts in this field, to draft a workable section in order to perpetuate in the law this penalizing of a wilful breach of contract.

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There is one other point I should like to make. This wilful breach of contract is by no means confined to labour unions. It applies to everyone. If there is an unlawful lock-out it applies. If there is wilful breach of contract on the part of some company that has nothing to do with labour relations at all, it applies. The purpose of the application is to see to it, amongst other things, that there shall be a continuous supply of light, heat, power and transportation for society, and that human life will not be put in danger, that serious bodily injury will not be caused and that valuable property will not be exposed to destruction or serious injury.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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CCF

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

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

Mr. Knowles:

The minister has proposed an amendment to his own proposition and the hon. member for Kamloops has proposed another one. As I see it, neither proposition is acceptable. If I may, I should like to deal first with the proposal put forward by the hon. member for Kamloops. It seems to me that it is just as unacceptable as are the last three lines that are now in clause 365. Whether you keep clause 365 as it is with those last three lines in it which read:

... If, before the stoppage of work occurs, all steps provided by law have been taken through negotiation, collective bargaining, conciliation and arbitration-

-or whether you substitute the words suggested by the hon. member for Kamloops, you are limiting the saving clause by whatever labour legislation is now on the statute books of Canada or on those of any of the ten provinces. You are also limiting it by labour legislation that might, in the future, be put on the statute books in any of the provinces. I think that that comment applies equally to the last three lines as they now stand in clause 365 and to the proposal made by the hon. member for Kamloops.

In my view the position taken by the Canadian Congress of Labour is the correct one, namely that we should not have this legislation at all, bearing as it does on trade union contracts. I agree with the position taken by the Canadian Congress of Labour- and it is a position that has already been argued effectively by the hon. member for Kamloops-that any matters affecting trade union contracts should be covered in labour codes or in labour legislation rather than in the criminal law.

As I say, we never know what changes may be made in the law of the provinces. We never know when some province may have in power a provincial government with an anti-labour bias which can change the labour law of that province, with the result that the activities of labour unions within that province could be brought under the

umbrella of the Criminal Code, resulting in an effect which was not the intention of parliament at this stage of the game.

Therefore when the minister tells us that some of the labour people have an order of preference, I do not think it should be suggested that the second or the third choice is really very acceptable. It may be a second choice or it may be a third choice but there is a long gap between the first choice and the second choice. When the minister indicated to us earlier in the discussion-I believe it was yesterday-that there were going to be amendments to clause 365, I had hoped that he would consider an amendment which I understand was laid before him a few days ago by the representatives of the Canadian and Catholic Confederation of Labour. I understand their proposal was that clause 365 be amended by deleting the present subclause 2 and inserting the following:

2. No person wilfully breaks a contract within the meaning of subsection (1) by reason only that

(a) being the employee of an employer, he stops work as a result of the failure of his employer and himself to agree upon any matter relating to his employment, or

(b) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as such workmen or employees.

The proposal that was laid before the minister by the Canadian and Catholic Confederation of Labour, and which I believe had the support of some of the others whom the minister saw the other day, stopped there. In other words, their proposal was that the last three lines that are now in clause 365 should be omitted. Thus they would prefer not to have the words the minister has proposed or the words proposed by the hon. member for Kamloops. The effect of the proposed amendment I have just read would have been to make this saving clause really a saving clause so far as labour is concerned.

My basic position is that we should not have a section that requires a saving clause of this nature so far as trade union contracts are concerned. The minister gave us quite a little story about parliament in the past not being too conscious of what it was doing on one or two occasions. Well, we are conscious now of what we are doing. We know now that clause 365, if enacted, will relate to corporation contracts and will also relate to trade union contracts. It is our very strong view that trade union contracts should not be the subject of criminal law but should be confined to the Industrial Relations and Disputes Investigation Act, so far as federal labour relations are concerned, and to the labour codes so far as provincial labour relations are concerned.

With respect to the amendment that the minister has moved, I find it a bit of a toss-up whether it is any improvement on the wording now before us in clause 365. He says that in some order of preference it is acceptable to some of the trade union groups. This wording has just been presented to us and naturally none of us has had any opportunity to consult with any trade union people on it. But my first reading of it, indeed, my fifth and my tenth reading of it, make me feel that it still further restricts the saving effect of the so-called saving clause. The minister shakes his head.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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LIB

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

Liberal

Mr. Garson:

Shakes his head in dissent.

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CCF

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

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

Mr. Knowles:

Oh yes, that head was going from right to left. The words that the minister proposes to add, it seems to me, add another condition that has to be met before the trade union concerned gets the benefit of the saving clause. Before this amendment was put forward the only condition unions had to meet in order to get the benefit of the saving clause was to make sure that all the steps provided by law had been taken. Now, in addition to that, any provision for the settlement of differences, without stoppage of work, contained in or by law deemed to be contained in a collective agreement must be complied with and effect given thereto.

As I say, it seems to me that is an addition to the conditions that must be met before a question involving a trade union contract can be said to be beyond the pale of clause 365. If the minister can offer an explanation showing that it does the other thing, perhaps we can toss again as to whether this amendment is better than the minister's original wording. So far as I am concerned, it is little more than a toss because both of them are quite unacceptable. It seems to me that a change is being made here that should not be proceeded with at all. For my part, I think it would have been better if the government had retained, with such amendments as would need to be made to bring it up to date, the wording of the old section 499. A number of changes would have had to be made if that had been brought forward-the reference to hard labour and some points of that kind.

But it does seem to me in reading the wording of the old section 499, and it is a very long one, that the whole context of it related much more clearly to contracts by companies and corporations whereas the wording of clause 365 is so much broader that it has definitely brought trade union activities within the compass of this breach of contract legislation. I appreciate the fact that the minister has continued meeting the labour people right up to the eleventh hour so far 83276-246

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as the code is concerned. I appreciate the fact that he has made some changes in some of the other sections that have improved them slightly, but it seems to me that with respect to clause 365 he has not filled the bill, and even with the amendment he has proposed this whole clause is quite unacceptable.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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CCF

Harold Edward Winch

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

Mr. Winch:

Mr. Chairman-

Topic:   EXTERNAL AFFAIRS
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LIB

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

Liberal

Mr. Garson:

May I reply? I do not want to stand in the way of the hon. member for Vancouver East, but I think I should reply now to some of the specific points raised by the hon. member for Winnipeg North Centre. In the first place, I think I should make it clear-perhaps I did not do so sufficiently before-that the revision in 1906 was the same kind of general revision of the statutes of Canada that took place in 1927 and in 1952. Such revisions are conducted by revising officers or draftsmen and never come before parliament at all. Therefore when I say that parliament did not exercise any legislative intention with regard to leaving out public utilities and railways so far as the operation of this bill is concerned, I mean precisely that. This revision was conducted by drafting experts-at least, they pretended to be experts but they were not very expert in this particular matter.

Topic:   EXTERNAL AFFAIRS
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CCF

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

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

Mr. Knowles:

Parliament had many years in which to correct that if it felt it necessary.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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April 8, 1954