July 6, 1955

LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Pori Arthur):

We at least let our munitions people go to court. The rule of law still applies.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

There is nothing, of course, that denies any right that is not clearly stated in this, but the minister knew perfectly well what the circumstances were. The reason I have read this is to explain that. Everyone in Ontario knows perfectly well that both in 1947 and in 1948 these provisions dealt with a power shortage that called for the allocation of power. It would have been utterly fantastic to have permitted every single consumer of hydroelectric energy to have a right of action in relation to any reduction in the amount of power when it was perfectly clear there was not enough power to go around. That is all that means. Far from there being any general provision-

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Port Arthur):

But the legislation is still in effect, as I understand it.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

As far as that is concerned, if there were any circumstances in which there

was a shortage of power, the provision would still apply, and it only applies in a specific and clearly defined case. It applied in this particular case, as the minister well knows, to the results of the limitation of construction during the war; it also resulted from the cancellation of power contracts by the previous Liberal government in Ontario. That was the primary cause of the power shortage.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Port Arthur):

It seems to me you might let the suppliers sue the Hydro.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

The minister's sole concern about the problems raised here, which are clearly stated and clearly defined, is really in strange contrast to his suggestion that powers should be granted to him, and not even to the government, which have no definition and no limitation and are available for no specifically stated purpose except that he thinks it is desirable to take control of these things because of the need of defence production-not merely products that are actually in finished form and are defence requirements, but any of the raw materials or supplies that go into these. You cannot compare the two things. I hope hon. members opposite will realize that the interpretation given by the minister in this case is indicative of his understanding of exactly what is involved in this problem. He cannot even appreciate that in that case there was a clear definition of the circumstances under which this power was exercised and could be exercised, and that that is exactly what we are saying should be done under the act now before us.

Hon. members opposite have had some examples already of this particular thing. Using it only in its strict dictionary meaning, I say that this double-talk is the kind of thing that makes it extremely difficult for anyone to know when the minister is serious and when he is not. On the one hand he says that the Prime Minister does not regard this as an important bill. On the other hand he tells us that he can do the work here just as well when he is away fishing. He makes general statements of this kind in regard to these matters.

For instance, he tells us that powers which are clearly defined can scarcely limit such things as are in excess of those powers.

I am using this illustration to point out how wrong the minister is when he makes these observations, and most important of all when he tells us that this act is more limited in its application than the corresponding acts in Britain and the United States.

There are a number of cases where this act goes far beyond any act in Britain or the United States, and I will refer to two of

them in particular. The first point I would make is that section 7 of the act must be read in conjunction with the general power to take over all kinds of goods, supplies and services

I repeat "and services"-which the minister may think are desirable for the purposes of defence production. Section 7 reads:

(1) The minister may, if he considers that the carrying out of the purposes or provisions of this act is likely to be facilitated thereby, with the approval of the governor in council procure the incorporation of any one or more corporations for the purpose of undertaking or carrying out any acts or things that the minister is authorized to undertake or carry out under this act.

(2) For the purposes of this section, upon the request of the minister, the Secretary of State of Canada may, by letters patent under his seal of office, grant a charter under part I of the Companies Act constituting such persons as are named by the minister and any others who may thereafter be appointed by the minister in their stead or in addition thereto a corporation for any purpose mentioned in subsection (1).

(3) The minister may remove any members, directors or officers of a corporation incorporated under this section at any time and may appoint others in their stead or may appoint additional persons as members.

The remainder of the subsections contain the details relating to those corporations. But in those three subsections of section 7 there is power by the governor in council upon the recommendation of the minister to set up crown corporations to take over any of the undertakings which the minister can be empowered to take over under the general provisions of this act. This would include almost anything conceivable in the Dominion of Canada, including hydroelectric power plants, pipe lines, gas and oil production, forest operations or anything else of that nature. I know that it is said, "Where has this been done?" I emphasized this morning and I emphasize again that our responsibility as members is to examine what can be done in the hands of any government administering this act.

It is all very well for the Prime Minister to express his confidence in what may happen at the next election. Perhaps that is a perfectly human and natural thing for him to do, but the fact remains, as the hon. member for Spadina (Mr. Croll) will recall, that very sudden changes do take place. Sometimes a very large majority on one side is transposed into a very large majority on the other side. It is not our duty to speculate on these possibilities of change; it is our duty to enact legislation with the recognition of the fact that it is within the realm of human possibility that the public may become more or better informed about some aspects of our public affairs. In fact that is what we hope to do as a result of continuing this debate.

Defence Production Act

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Port Arthur):

In that case this legislation would not be permanent.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

What is that?

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Port Arthur):

No legislation is any more permanent than the life of the government that sponsors it. Why are you worrying very much about the permanency of the legislation?

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

I do regret that this has opened up an entirely new line of discussion. It is in view of the fact that the Minister of Defence Production is the minister who has been asking for these powers in the name of the Prime Minister and he makes the statement that no legislation has any more effect or is binding except in the life of the government.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Port Arthur):

I did not say that.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

I will ask the minister to state what he did say.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Port Arthur):

I said that no legislation is any more permanent than the life of the government that passes it. The next government can revoke it.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

No legislation is any more permanent than the life of the government which passes it.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

The government does not pass it.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

In the first place may I point out that this shows just what is permeating the thinking of the minister, who outside the house is such a good and estimable citizen but who inside the house has so absorbed the esteem of his own power which is put forward from time to time by those behind him in enthusiastic terms. It is not the government that passes this legislation, it is parliament. I know the minister thinks that it is the government, but it is parliament. It is to the members of parliament that I am directing my remarks. I know what would happen if it were the government. That would be done now. At least I do assume that the minister extended the courtesy to the government of letting them know he was introducing this bill. However, that is something that naturally remains within the secrets of the government itself.

My remarks are directed primarily to the members who are being asked to support this legislation. Yet they are also being directed to the people outside the house who in this democracy have their opportunity to indicate to the members themselves exactly what they think about legislation of this kind. After all, we have been encouraged by the fact that interest in this subject has been increasing and we still do hope that there

Defence Production Act will be members opposite who-no, I see one hon. member nodding his head; in his case at any rate that is a forlorn hope and we will wipe him off. The hon. member for Waterloo North (Mr. Schneider) apparently is not going to be beguiled by any argument.

Nevertheless the fact remains that arguments are made presumably on the assumption that reason and the traditions of this house and the principles that apply to parliament can bring some impact upon the thinking of members, and above all in a democracy which is responsive to the thoughts of the people. As the Prime Minister has quite correctly pointed out, it is highly desirable that the members respond to the opinions that they find being expressed. I do not think there is much doubt in the mind of any hon. member who has been following the press across Canada what the predominant opinion is, if the press of Canada at the moment expresses on its editorial pages the opinion of the people no matter what their political affiliation may be.

There is another reason why I should refer to the remark just interjected by the Minister of Defence Production (Mr. Howe) when he says that any legislation is no more permanent than is the government which passes it. I shall leave that statement as it stands, having pointed out that it is not the government that passes it, and deal with the other aspect of it. One of the things which people have learned in some other countries is the obvious lesson that you cannot put the eggs back in the shell once they have been broken, or that in any event it is an extremely difficult process.

In Britain, where a government nationalized the steel industry, the transport industry and other industries over there, a government which was strongly opposed to the nationalization of steel and other industry and which stated that it would return those industries to private enterprise, has found that to be an extremely difficult operation. They have been struggling for some years now to unscramble the mess created by the action of a previous government in nationalizing the steel industry.

Hon. members opposite may say, "Oh, what has that to do with the situation here?" If we believe that we are dealing with legislation and not with the power of a single man or a group of men called the government, then we must recognize immediately that under this act-not in the name of any emergency, not in the name of any special need but merely by their decision that it is desirable from the point of view of defence production-they could nationalize the steel

industry, the aluminum industry, the nickel, industry, every mine in this country and every pulp and paper industry in this country..

Oh, yes; I recall the remarks that were made about the fact that we are concerned, about big business. What utter nonsense! This legislation does not limit itself in any way to big or little business. It applies to big business, to little business and to the individual. When the minister says there is: no section of this act that applies to the individual, it is difficult to take him seriously because over and over again throughout this, act there are provisions that deal not only with the freedom of the individual but with, the right of the individual to carry on his. own work under clearly stated laws; and that is the rule of law.

This is a thing that hon. members opposite-should examine. May I submit that unless an hon. member opposite is prepared to agree that the power should rest with this government, without consulting parliament, to nationalize any industry or any activity, then that hon. member opposite has no right to support this amendment. It is as simple as that. The amendment writes into the future as permanent law, to use the expression of the Minister of Defence Production, the power not only to acquire things needed but actually to have crown corporations set up that would take over any of these things. It does not mean merely nationalizing steel,, metal, forest products or things of that kind. The act expressly uses the word "commercial", and the government could take over a commercial operation as well if it thought that was desirable for defence activities.

Then as to those who still retain some appreciation of the fundamental concept of our federal system, may I urge them most earnestly to re-examine their attitude toward this act in the light of the clearly-defined authority of the provinces over property and civil rights, over the development of resources, and over other matters of the kind that fall exclusively within provincial jurisdiction. Under this act the minister is expressly required to carry out an assessment of the resources and, wherever those resources may be regarded as needed for defence production, to take over their operation if that situation arises. That cuts right across the British North America Act. That cuts right into the jurisdiction of the provinces. Then, just so that there would be no need to guess, the act expressly states that the right to take over these operations includes hydroelectric development; and there has been no more exclusive field of development in this country under the provincial

authority than that of hydroelectric development, whether by public or private enterprise. Also by the ejusdem generis rule of law, where reference is made to activities or enterprises including hydroelectric development, this applies to all other developments such as gas, oil, coal and other power and the transmission and distribution of those things.

Then, of course, we have the fact that it does not apply just to those things but that it applies to individuals; and there it brings you right within property and civil rights. In the defining section of the act which interprets the words, we find section 2 (i) which reads as follows:

(i) "essential service" means the carrying on of any commercial activity including the generation or distribution of electrical energy, designated by the governor in council under section 30 as an essential service;

There you have a warning that this legislation not only applies to this great enterprise under provincial authority but any commercial service, large or small, which would fall strictly within the limitations of property or civil rights.

I have emphasized this matter, Mr. Speaker, because we should be examining this law with due consideration to what can be done and then finding out what the effect would be if someone proceeded to exceed the power. I am not overstating the case when I say that what we have before us now would be exactly like the situation which would confront us if the Minister of Justice (Mr. Gar-sen) came before this house saying: "I want to throw a little bit of a scare into some people. We have been having too much crime of a rather severe type and the ordinary threats are not enough. I think it would be well if we turn back the clock in form at any rate and introduced a section in the Criminal Code that those who do certain kinds of acts should be hanged, drawn and quartered." I know the minister would smile and say: "But of course you can count on me. This would never be enforced". But I am now quoting what the minister might well say as a parallel to this. He would say: "You have no idea how effective it would be in dealing with the narcotic traffic or some of these things if I had a law which will not be enforced but which I could point out might be enforced if they did not behave themselves." Of course every hon. member would say we would never have any such silly proposition put before us, but the fact remains that is the proposition that is put forward here-continue these immense powers indefinitely, put them permanently on our statute books, and then rely on us not to

Defence Production Act put them into effect but just to use them as a club behind our backs so that if anybody shows himself a little reluctant to obey what we order him to do we can then remind him that the law contains a provision of this kind.

That is exactly what the minister has told us. He has told us it is very helpful to have these powers and that the real use of the act is not something that is seen in orders but is actually more of a hidden nature. So these powers are real, and when the minister now tells us that they are only for the life of the government which passes them, without at the moment again referring to the incorrectness of that statement may I point out that we have examples in other countries of the long-range damage that can result from intervention in this field, long-range damage that cannot be repaired once the damage is done.

I come back now to the point I had reached at the time the minister made this remark and I proceed with the argument I was making. There are two extremely important sections of the act with respect to which no similar provisions can be found anywhere. As I was pointing out at the time the minister made his comment which I found it necessary to deal with, not only is there the acquisition of resources and supplies but the minister may then, with the approval of the government, set up a crown corporation in respect of which he does all the appointing and all the hiring and firing. What immense power in the hands of a single minister without even having to come back to the government for approval of the course he is following!

Then there is another section of tremendous consequence to many hon. members because there are hon. members who still attach some importance to fundamental legal principles. In section 32, subsection 5, we find a provision which should not be overlooked by any hon. member opposite or on this side of the house. That subsection reads as follows:

Where a corporation is guilty of an offence under this act, any officer or director of the corporation is a party to and guilty of the offence if it was committed with his knowledge unless he exercised all due diligence to prevent the commission of the offence; and in any proceeding against a person who was a director or officer of a corporation when the corporation committed an offence under this act for being a party to and guilty of such offence, the burden of proving his absence of such knowledge or the exercise of such due diligence by him is upon the accused.

There is no similar provision, Mr. Speaker, in either the British act or the act in the United States. There is nothing that even mildly resembles this in the United States.

Defence Production Act In the British act there is a provision that where it is proved in court that an officer was an active party to a transaction the onus is on him to disprove his guilty association, but under the English act there must first be proof. But here, if any corporation, large or small, commits any offence, then the onus of proof is upon the individual.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

That is the Howe idea of

the rule of law.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

What are these offences? Are these clearly defined offences? Why, no. These are offences such as failure to obey an order of a controller, any Tom, Dick or Harry appointed by the Minister of Defence Production (Mr. Howe), someone without any knowledge of the law. If that person makes an order and it is not carried out it is an offence, and if there is an offence on the part of any company in that respect then the onus for disproving that an individual was aware of that and a party to it rests upon the individual himself. There has been no such breach of the rule of law in the history of this country as is contained in that section. Above all, there is a complete repudiation of the fundamental legal principle of presumption of innocence. I do hope hon. members opposite will pay some attention to these provisions and will simply ask themselves the question: Have we any right to continue indefinitely in the statute law of Canada these broad powers?

There is another very important provision and one which merely shows the extent to which a number of hon. members opposite have doubtless been misled by the statements of the Minister of Defence Production. He tells us that there is no case where the individual is affected. I have pointed out a case where the individual is affected, and it is not only under that subsection but under the whole of section 32 that the individual is affected in regard to laws that are not written, in regard to orders that nobody can anticipate in advance, in regard to orders that may be made by people with no knowledge of the law and probably no knowledge of anything else very much. Yet offences are created here which can result not only in heavy fines but in imprisonment as well. The minister tells us, however, there is no section in the act that affects the individual.

But it is not only that section; it is right through the act that this authority is conferred. I hope no hon. member opposite has overlooked section 15 and the effect of subsection (d) of that section. This is under the heading "Defence Procurement", and it is necessary to remember it is under the heading of "Defence Procurement" because

it shows the kind of things that are brought within the enveloping arms of the word "defence". Section 15 reads as follows:

The minister may, on behalf of Her Majesty and subject to the provisions of this act, . . .

(d) arrange for the performance of professional or commercial services.

What a delightfully euphemistic way of saying that the minister may mobilize professional or commercial services under any order he sees fit to issue. That is exactly what it means.

The minister may, on behalf of Her Majesty and subject to the provisions of this act,

(d) arrange for the performance of professional or commercial services:

Surely here is such an interference with the right of the individual, under completely undefined powers and powers unlimited as to time, in such a manner as has not been attempted except in the most severe state of war. When we are told that the government seeks to avoid the application of the War Measures Act, may I point out that we need not be told that the War Measures Act only applies when there is war or apprehended war. That is the only time it could apply. But there was a time when even this government held different views. This morning I read into the record a declaration in the preamble of the emergency powers act, 1951, which made it clear that in certain cases the government did not even wish the wide-open powers of the War Measures Act, and that it felt it was appropriate there should be legislation of another nature. For that reason it introduced the emergency powers act.

Now, Mr. Speaker, when these wide powers are taken in conjunction with the right to set up a crown company, they are certainly not paralleled either in the act of the United Kingdom or in the act of the United States. There is no provision in the act of Great Britain for setting up crown corporations, and no provision in the 600 odd sections of the Defence Production Act in the United States. We alone go that far. The Minister of Defence Production may well repeat, as he has on earlier occasions, that some of these wide powers are contained in the Defence Supplies Act which is suspended by this act. But the Defence Supplies Act has no power so wide as this, and there is no way in the Defence Supplies Act for the government to nationalize industry or set up crown corporations along the lines I have suggested.

When we look at the effect of this act, particularly at the definite declaration that there is a presumption of guilt, then it does become necessary to go back into ancient law. It does become necessary to realize

that we are following a pattern which has not emerged now for the first time. Delegated authority is one of the most difficult aspects of modern government. But it is not new. Delegated authority was found necessary many years ago. The extension of that delegated authority led to abuses, then to corrections and to a reversal of the trend. Then, presently, delegated authority would be extended once again, and again there would be a check of those abuses. We are seeing here carried forward, as this government said it would not carry forward, delegated powers as part of our ordinary peacetime laws, which indicates that now is the time to reverse the trend and to take an historic stand that we have gone far enough, and too far, along the road of the delegation of the powers of government, not only to the executive but in this case to an individual.

Since there seems to be an uncertainty, not only in the mind of the government but in the minds of hon. members, as to the history of delegation, I think it would be appropriate to place on the record something of the history of delegated legislation, because that is what we are dealing with, delegated legislation embedded into the permanent law of the country. There are those, of course, who say, why go back into ancient history? But after all, if you do not go back into ancient history and do not examine what has happened before, it is precisely like a doctor attempting to perform an operation without having studied anatomy and the history of the various experiments which have been carried out during the long history of medicine. We are dealing here with the body politic, a more complex body even than the individual human body. In this case, the human body of the minister is out of the room, but I know that he is beyond the curtains and can hear me.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
?

Some hon. Members:

Oh, oh.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink
PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

Hon. members say, "oh".

Where are the ministers? There is one minister sitting in the house now, the minister of external affairs, at a time when we are conducting this debate. I most emphatically assert that it would be unreasonable for anyone at some future time not to be informed of this fact, because later on they might wonder at some minister indicating he was unaware of the arguments which had been made here, if ministers were not protected by information that they had not been present at this time.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
Permalink

July 6, 1955