August 3, 1960

PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

I rise not so much to refute what the hon. member has just said as to give an additional reason why this amendment should not be accepted.

I am not going to enter into a debate with the hon. gentleman from Essex East as to whose attitude in this committee has been more appropriate. I simply remind the committee that the hon. gentleman himself has a peculiar approach to these matters. He seems to believe that the right to reply should be entirely on one side and that it does not matter what sort of argument or in what terms, larded with what undesirable or offensive innuendo, he speaks, those on this side have no right to put forward a contrary point of view. But I shall leave it there. The committee has heard the discussion and the committee will decide upon which side lies the responsibility for any, shall I say, sharp exchanges which may have taken place.

I admit at once that it is desirable in discussions of this kind to keep them on a high plane at all times. I suppose the obligation in that respect does lie a little more on this side than it does on the hon. gentleman, and there I perhaps pay him an indirect compliment when I say he has a facility for rapidly reducing discussion to levels to which perhaps it is desirable it should not descend.

But let us deal with this question, and I shall be glad to deal with it quite objectively. I do not for a moment question the ability of Mr. Mundell, nor do I say that in the mind of the Minister of Justice personally rests this vast store of knowledge that warrants his rejecting this amendment. I say simply that as a result of the best consideration we can give the question we have concluded that the views put forward by the hon. member for Essex East, whether they be his own or not, in this amendment are not acceptable because they do not serve the purpose we have in mind for the bill of rights as we have prepared it. I am not going to repeat my earlier arguments, but I shall add one further argument which substantiates the position I have taken.

If the committee will read carefully the amendment put forward by the hon. member for Essex East, hon. members will find that although it might be operative with respect to statutes it is almost entirely deficient with respect to regulations, rules and orders, whereas our bill of rights by a combination of clause 2 and the interpretation provision in clause 5 will have effect with respect not only to the statutes but with respect to all orders, rules and regulations made thereunder in the future as well as in the past.

If you look at subsection 1 of the amendment you will find that it reads:

Every act of the parliament of Canada and every order, rule and regulation thereunder in force at the commencement of this section, and all laws in Canada that are subject to be repealed, abolished or altered by the parliament of Canada in force at the commencement of this section, are hereby amended by repealing or revoking them-

Regulations that are in force at this time

would, it is true, be affected by the provision as it is drawn but the amendment is deficient because it does not contain a provision to bring regulations hereafter enacted, under its operation. It is true that subsection 2 does refer to "no act of the parliament of Canada passed hereafter" but that omits all reference to regulations or orders, and "act of parliament of Canada" is not a phrase which is included in the definition of law as we have it in the bill. It is by reason of our definition of "law" our bill has application to all orders and regulations made under statute. There is a vital deficiency in the amendment as drawn.

This, it may be argued, is perhaps a technical objection to the amendment, but it is one of importance because it reveals that there is a wide field of statutory orders and regulations which we believe a bill of rights should cover, both past and future, that are omitted from the amendment as submitted by the hon. member for Essex East. Because we want our bill of rights to be effective in all fields we, for that additional reason, have come to the conclusion that the amendment should not be accepted.

Amendment (Mr. Martin, Essex East) negatived: Yeas, 22; nays, 32.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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LIB

Azellus Denis

Liberal

Mr. Denis:

Oh, oh. That was close.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

Mr. Chairman, at this point I should like to ask the committee to consider an amendment to clause 2 in line 13 thereof, an amendment which would have the effect of inserting the word "Canadian" before the words "bill of rights" so that lines 11 to 13 would read:

Every law of Canada shall, unless it is expressly declared by an act of the parliament of Canada that it shall operate notwithstanding the Canadian bill of rights-

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

I second that motion.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

I have not moved it yet.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

You surely do not object to having my becoming the seconder?

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

No, not at all. I should say briefly to the committee that this was an inadvertent omission from the changes made

Human Rights

in the bill when it was in the special committee. I would ask one of my colleagues if he would move the amendment accordingly.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Alfred Johnson Brooks (Minister of Veterans Affairs)

Progressive Conservative

Mr. Brooks:

I move:

That clause 2 be amended by inserting in line 13 thereof the word "Canadian" before the words "bill of rights".

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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Amendment agreed to.


LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

Mr. Chairman, I regret that I did not have the opportunity of being associated with the Minister of Veterans Affairs in this motion. He will recall that when the Minister of Justice proposed this amendment I agreed at once to second it. I find it difficult to understand why the minister would not give me that honour. However, the Minister of Justice has followed a narrow course in his interpretations throughout the discussion of this bill, and I suppose one would not expect him to deny that honour to one who at least had spoken up first. I think the amendment is a good one.

What I am about to say is not an answer to what the minister said about the purpose of the present discussion in so far members of the Liberal party are concerned. We prefer to look upon that remark more as a lapse on the part of the Minister of Justice in the highly objective attitude he takes in these matters. It is interesting to note that this important question represents very valuable work on the part of the committee. I wish to refer again to the work done by the hon. member for Vancouver-Kingsway, who more than anyone else extricated all of us, including the Minister of Justice, from the difficulty that was posed in clause 2 (b) as it now appears before the committee. The original bill provided for wording which read as follows:

- (b) impose or authorize the imposition of torture, or cruel, inhuman or degrading treatment or punishment:

That was the wording of old clause 3(b). The minister took the position in the committee that he could not change that wording because of the effect of the declaration of human rights. He pointed out, and correctly, that these words "torture, cruel, inhuman or degrading treatment or punishment" were incorporated in the declaration of human rights, and that as Canada had joined in that declaration we could not accept something that was less in the bill of rights.

The minister was rather stubborn. He would not give in on that point notwithstanding the representations that were made by members of the Conservative party as well as by Liberal members. It will be recalled that the hon. member for Greenwood who was there, as I say, amicus curiae, joined with us in the concern we all felt over this measure.

Human Rights

The hon. member for York-Scarborough, who happened to turn up that day, was accorded the right as an interested hon. member to put questions and make his observations. When it was pointed out to him that the words as contained in the bill as originally proposed would do the very thing which he sought to do in the motion he brought before this house during the course of this session, namely abolish capital punishment, he was, of course, very gratified.

I suspect it was only the presence and the gratification of the hon. member for York-Scarborough that caused the Minister of Justice, realizing the dilemna into which his false logic had put him, to decide to accept the recommendation made by the hon. member for Vane ouver-Kings way, who said that the minister might resort to the wording of the bill of rights in England of the seventeenth century and take out "torture" and "inhuman" and "degrading" and put in the words "cruel and unusual". The result was that the committee was satisfied with the arrangement. The only possible dissatisfaction would be that of the hon. member for Scarborough, who will find that all his efforts this session are not going to be backed up by the wording which the Minister of Justice in his omniscience has now put into paragraph (b). I think we all recognize the contribution made by the hon. member for Vancouver-Kingsway.

I now wish to refer to clause 2 (f) of the bill, where among the most important single rights are those put there as a result of the contribution and recommendation made by the hon. member for Fort William. The hon. member for Fort William is not a lawyer but, like the hon. member for Humber-St. George's, he proved to be a useful member of the committee. It was the hon. member for Fort William who pointed out that the bill left out two very important legal rights, which were referred to in the draft bill of the Ontario bar association and in the declaration on human rights. These two important legal rights are the right to be presumed innocent, placing the onus of proving guilt on those making the charge, and the refusal of reasonable bail without just cause. This is one of the rights declared to be sacrosanct in the declaration on human rights.

Other suggestions were made. Accordingly consideration was given by all members of the committee, including those of this party, to obtain elucidations, particularly in clause 2 (d). I merely mention this to indicate that the changes in this section, as in others, were not all made by the minister; they were changes made as a result of the serious study given to this bill by all members of the committee. By implication I hope the

(Mr. Martin (Essex East).]

minister will regard this as an answer to the very objective and wholly selfless observations he made half an hour ago.

(Translation):

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschafeleis:

Mr. Chairman, there is a very important right, one that we certainly look upon as fundamental, which we should like to be included here, in clause 2, on page 2, after paragraph (f). I mean the right to free assistance by an interpreter.

There is no need to elaborate on this; several of my colleagues will want to express their views on this matter. But before introducing my amendment, I wish to point out that when we submitted a similar amendment in committee, the Minister of Justice (Mr. Fulton) hesitated a great deal before agreeing to its rejection.

(Text):

At page 694 of the minutes of proceedings and evidence, after the chairman put the motion having to do with free assistance of an interpreter, the minister said:

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

May we have this stand over?

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Jacques Flynn (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

Is it agreeable then to have the question stand over?

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

It is the moment for adjournment, and I do not think our decision should be taken in haste.

Before putting my amendment, Mr. Chairman, I thought it would be a good thing to outline the hesitation on the part of the minister with regard to similar amendments we have moved.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Edwin William Brunsden

Progressive Conservative

Mr. Brunsden:

On a point of order, is the hon. member in order in reviewing the procedure in committee?

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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LIB

Lester Bowles Pearson (Leader of the Official Opposition)

Liberal

Mr. Pearson:

He certainly is.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

Jacques Flynn (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

Yes. I ruled yesterday that it was in order to discuss the evidence taken before the committee.

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschafeleis:

I move, seconded by the hon. member for Essex East:

That clause 2 be amended as follows:

That the paragraph designated (g) be added after present paragraph (f):

"Deprive a person of the right to have the free assistance of an interpreter if he cannot understand or speak the language used in court or before a board or tribunal".

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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LIB

Lionel Chevrier (Official Opposition House Leader; Liberal Party House Leader)

Liberal

Mr. Chevrier:

Mr. Chairman, the amendment which has just been moved by the hon. member for Maisonneuve-Rosemont is one which it seems to me should commend itself to the Minister of Justice and the Prime Minister. While 1 was not a member of the committee which discussed this matter, I understand that the reason it was not given consideration at the time was that it was felt that there was sufficient protection

under clause 2 (e) and (f) of the bill to meet the position which has been taken in the amendment.

I am going to ask the minister to give consideration to three cases that I should like to put on Hansard, together with an interpretation of the British North America Act with which I will deal in a moment.

I refer first of all to the case which took place in Eastview recently where a commissioner clearly refused the right of an interpreter in a matter which was under investigation under and by virtue of the municipal act. There was no doubt in the mind of the commissioner that the person who came forward to give evidence should not be entitled to an interpreter. That position was in fact confirmed by the attorney general of the province, although he said if he had been present he would have allowed the particular person to be heard in the language of her choice. However, it is clear that in that case the commissioner hearing the evidence determined that that individual should not be entitled to an interpreter.

I pass from that to the case that was mentioned in the house earlier, namely that of a citizen of Czech origin who also was refused the right to give evidence before a court in his own language. That was dealt with by another hon. member, and I shall not deal with it other than to refer to it generally.

However, there is another case which is famous in the province of Ontario because of the attitude taken by a justice of the supreme court of the province. It involves a criminal case which was heard in eastern Ontario some years ago. A witness came forward and when it was recognized by the court that the person spoke broken English counsel acting on behalf of the accused-this, of course, was not the accused but a witness in the case-suggested than an interpreter be allowed for this individual. The presiding justice peremptorily refused to grant the right to that individual to have an interpreter. Not only did the judge refuse the right of interpretation in that case but, and I was present in the court-

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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PC

John George Diefenbaker (Prime Minister)

Progressive Conservative

Mr. Diefenbaker:

What court was that?

Topic:   HUMAN RIGHTS
Subtopic:   MEASURE PROVIDING FOR RECOGNITION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
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August 3, 1960