August 3, 1960

LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

I thank the minister for his remarkable display of flexibility and the very generous words in which that flexibility was noted. I leave to him the decision as to who shall have the honour of making the motion.

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PC

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

Progressive Conservative

Mr. Fulton:

I shall ask one of my colleagues to move the amendment.

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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:

I think before this amendment is moved, the hon. member for Essex East will need the consent of the committee to withdraw his amendment.

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Some hon. Members:

Agreed.

Amendment withdrawn.

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PC

Alfred Johnson Brooks (Minister of Veterans Affairs)

Progressive Conservative

Mr. Brooks:

I move:

That clause 5 be amended by adding a new subparagraph 3:

(3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the parliament of Canada.

(Translation):

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschaleleis:

Mr. Chairman, only a few words to say how sorry I am that the Minister of Justice (Mr. Fulton) was less generous towards my colleague the hon. member for Essex East (Mr. Martin) as he was to me when he let me submit an amendment. At all events, I want to say how very pleased we are that this amendment is accepted, because our position has remained unchanged from the moment when the original bill was put before us.

If the minister will recall, in the original bill there was no reference at all to the Canadian parliament's legislative jurisdiction, and it was only after we had repeatedly raised the matter at the committee that the Minister of Justice agreed to include in a preamble the very important principle that will eliminate all uncertainties from a constitutional point of view. Now, after the amendment of the hon. member for Essex East, we are very happy to see that principle recognized.

Before resuming my seat, may I remind hon. members that, ever since we took up this bill, we have been consistent in our

effort to eliminate every uncertainty as regards any interference with provincial powers.

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PC

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

Progressive Conservative

Mr. Fulton:

Mr. Chairman, only one

remark, at this stage, to inform the house that the amendment was first suggested by the hon. member for Vancouver-Kingsway (Mr. Browne).

(Text):

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CCF

Herbert Wilfred Herridge

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

Mr. Herridge:

I just want to express the support of this group for this amendment which is further proof that we have always been consistent since we urged upon the Liberal government in 1946 the necessity for a bill of rights.

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Amendment agreed to. Clause 5 as amended agreed to. On clause 6 War Measures Act.


LIB

Lester Bowles Pearson (Leader of the Official Opposition)

Liberal

Mr. Pearson:

Mr. Chairman, clause 6

is the one that is concerned with the War Measures Act, which is included in this bill of rights, and which is amended by this clause. This is a very important clause of the bill and we propose to move an amendment to it. I expressed the opinion on second reading of this bill that in underlining the importance of this clause of the bill perhaps human rights and fundamental freedoms-I could take out the word "perhaps"-fundamental freedoms and human rights need greater protection in a situation in which the War Measures Act is operative than in any other situation.

I quoted Professor Lower in that connection when he affirmed that viewpoint, as he has on so many occasions and as he did recently in the committee. I do not propose to repeat what I said on that occasion. But I would like to refer to the importance that was attached to this particular amendment by some of the witnesses who appeared before the special committee and to quote one sentence or two from what these witnesses said about it. When Professor Scott appeared before the special committee he had this to say, as reported on page 38 of the evidence:

-I am saying that this bill lays it down in black and white that if the War Measures Act is proclaimed, these rights no longer stand in the way of the enactment of the War Measures Act; and we have not got that statement in the law at the moment. This might, in fact-

This amendment:

-weaken our position under the War Measures Act. Maybe the War Measures Act is at the moment more restricted by the principles of human rights than it will be if paragraph (5) of clause 6 is made law. Frankly, I am frightened of that.

We did not go as far as that; in fact, we did not take that position in regard to this

Human Rights

amendment. We thought, and expressed our thought, that this amendment was an improvement, so far as it went, but that it did not go nearly far enough to deal with threats to rights and liberties in time of war or apprehended war, because we all know that wheq. arms clash laws sometimes cease to protect as they do in normal times.

This matter was discussed before the special committee, not only by Professor Scott but by Professor Lower himself. It is a matter to which he has given a great deal of consideration over the years and about which he has written much. He had this to say, as reported on page 318 of the evidence:

This clause, it seems to me, giving parliament-

And this is the amendment he was talking about:

-the power to resolve that the declaration be revoked, does not mean a thing. It fust does not mean a thing because, of course, the government of the day, under that clause, will do as it likes and parliament will obediently follow it, especially in a time of hysteria such as wartime.

I would think today, when within our own country we are relatively peaceful and there are no particular difficulties coming forward, our civil liberties are not in too much danger. I must say I do not find any great complaint about the way things go on.

Then he said later:

It is not in peacetime that our civil liberties are in any overly great danger: it is in wartime, or other such emergencies.

That, of course, is when we need protection most-as experience has shown. When Professor Cohen was questioned about this matter in his evidence, on page 396 he said this:

May I give you my conclusions in two seconds, Mr. Chairman. Let me draw my balance sheet about this bill.

Then he mentioned some points against the bill. His second point was:

-the inadequate consideration of the role of the War Measures Act.

Mr. Mundell, on page 505, took the same position generally when he said this in answer to a question asked by the hon. member for Essex East:

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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

Mr. Mundell, have you any comment to make on clause 6 of the bill?

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Mr. Mundell@

I would say that clause 6 is an improvement to the War Measures Act, but of comparatively, probably, little practical importance.

The present War Measures Act comes into force on a proclamation of the governor in council- which is the government, really-and stays in force until a further proclamation is issued. Parliament could at any time, of course, pass a statute repealing the War Measures Act and declaring it to be of no force and effect.

This provision-

That is the amendment we are discussing:

-permits parliament-the two houses acting together-to pass legislation making the War Measures Act ineffective. To that extent it is an expectation and aids parliamentary control. The likelihood of its being used is, I think, slight.

Human Rights

That is why, I say that while we think this particular amendment has some value when it states:

Sections 3, 4 and 5-

Of the War Measures Act:

-shall come into force only upon the issue of a proclamation of the governor in council declaring that war, invasion or insurrection, real or apprehended, exists.

Then it says:

-shall be laid before parliament forthwith after its issue, or, if parliament is then not sitting, within the first fifteen days next thereafter that parliament is sitting.

Then parliament can, in its wisdom, take action in respect of the proclamation. I think, as I have said, that that is an improvement but, according to so many of the witnesses who testified before the special committee, it is not an improvement that is going to be as effective under war conditions in protecting human rights and liberties as they thought desirable.

The Prime Minister has always had a great interest in this matter, and far back in 1947 he advocated far more drastic action in respect of the War Measures Act than that which is included in this amendment. I am quoting the Prime Minister from a debate with which the committee will be quite familiar, because it has been referred to so many times in this discussion. It is the debate of May 16, 1947, and on page 3157 of Hansard the present Prime Minister is reported as saying:

I have a few suggestions to make. The first one is that this committee should consider the advisability of the repeal of the War Measures Act which has been on the statute books since 1914.

Then he said:

It was passed by the Sir Robert Borden government in 1914.

Mr. Ian Mackenzie said, when he intervened:

A very necessary act, too.

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PC

John George Diefenbaker (Prime Minister)

Progressive Conservative

Mr. Diefenbaker:

My right hon. friend says it was a very necessary act. It was necessary in the period of the war; but in the days of peace, with the challenge that the state is making to the rights of the individual. Professor Lower supports the stand that I take, namely, that the act should be repealed.

We on this side of the chamber do not go so far as the Prime Minister went at that time. But we do think that this amendment should be strengthened and made more effective for the purpose which we all have in mind. Therefore, Mr. Chairman, I move, seconded by the hon. member for Essex East (Mr. Martin):

That subsection (5) of section 6 be deleted and that there be added the following section as section 6A:

"6A (1) Subject to subsection 2, any act or thing done or authorized or any order or regulation made under the authority of this act, shall be deemed not to be an abrogation, abridgement, or infringement of any right or freedom recognized by the Canadian bill of rights".

Then subsection (2)-and this is the amendment:

(2) No Canadian citizen may be deported from Canada under this act.

We know that in the not too distant past action has been taken under the War Measures Act which resulted in the deportation of Canadian citizens. I have said previously, and I do not mind repeating it, that I think it was unfortunate that that was done, and I hope in similar circumstances it would not be done again and this amendment would make it impossible to do it.

Therefore, Mr. Chairman, I hope that this amendment, which would prevent this kind of thing in any circumstances, the deportation or driving out of Canada of Canadian citizens, will commend itself to the committee.

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Some hon. Members:

Hear, hear.

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PC

John George Diefenbaker (Prime Minister)

Progressive Conservative

Mr. Diefenbaker:

Mr. Chairman, the

Leader of the Opposition has pointed out that in 1947, among other things, I stated that I believed the time had come for the repeal of the War Measures Act. I remember very well holding that view and it received no support at that time, and that was within a year and a half after the United Nations had been set up at San Francisco. Canadians, as were free men all over the world, were of the opinion that the possibility of another war taking place was remote, if indeed such a possibility existed at all. We believed at that time that we had entered upon a new era where peace would become the universal way of mankind. Indeed, I am one of those who having heard Mr. Molotov at San Francisco in 1945 believed that that would indeed be the course which mankind would take. Events since have shown that the hopes of mankind have not been completely justified, and I think that statement is a major understatement.

I remember many years ago being in the gallery of the House of Commons-I cannot now place the year, and I have not Hansard before me

but I recall the late Ernest Lapointe saying that the War Measures Act was no longer in effect. He said it was still on the statute books but it was not in effect. My recollection is that at that time he, or someone else speaking during the course of the discussion in this regard, indicated that the law officers of the crown had given that opinion.

The War Measures Act is a measure which, of course, was adopted just prior to the outbreak of the second world war. It is well to

refer to the powers contained in that act. It authorized the governor in council:

-to do and authorize such acts and things and make from time to time such orders and regulations as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada, and for greater certainty among other powers are-

And the powers mentioned include censorship, arrest, detention, exclusion and deportation, control of the harbours, ports and territorial waters of Canada and the movement of vessels, transportation, trading, exportation, importation, production and manufacture, appropriation, control, forfeiture and disposition of property and the use thereof. Then the rights of the individual are greatly diminished by section 5 which reads:

No person who is held for deportation under this act or under any regulation made thereunder or who is under arrest or detention as an alien enemy or upon suspicion that he is an alien enemy, or to prevent his departure from Canada shall be released on bail or otherwise discharged or tried without the consent of the Minister of Justice.

Those are wide and terrifying powers when considered in the light of the rights of free men. However, it has been recognized by all political parties that during the days of war the rights of the individual are placed in pawn, as it were, as security against the day of victory.

I had the opportunity during the days of war to serve on the defence committee set up on the defence of Canada regulations. It was a committee, as I recall, of some eight or nine members and it was one which gave those of us who were privileged to serve on it an opportunity of seeing the operation of the War Measures Act.

One recalls the internment of numbers of Canadians who in the light of subsequent events were as innocent of wrongdoing as any hon. member of this house. They were taken into custody. I am not going to mention names, but there is one outstanding Canadian of Italian origin who spent a considerable period in an internment camp and, who, upon examination of the record, including the confidential and secret record, by any fair-minded man should not have been interned. Indeed, upon the record as I saw it that man was as innocent as it is possible for anyone to be. But there was the finger of suspicion. Accepted was the chit chat and hearsay of others. Wrongs took place, justified though they were because of the exigencies of war.

The same condition of affairs applied in the United Kingdom under the defence of the realm regulations. Indeed, the record of two

Human Rights

world wars is replete with examples of injustices done to our fellow men, not intentionally but none the less actually.

What shall we do with regard to the War Measures Act? The Leader of the Opposition has mentioned that Canadians were subject to deportation. He said that those orders in council were passed under the War Measures Act. I think the original ones were and I speak subject to correction when I state that I believe the subsequent orders were passed under the Emergency Powers Act or under the Transitional Powers Act, whichever was the successor to the War Measures Act following the war. The effect was to go further than deportation. I have a copy of the original order in council in my hand dated December 15, 1945, P.C. 7356. It reads, in part, as follows:

Whereas by order in council P.C. 7355 of 15th December, 1945, provision is made for the deportation of persons who, during the course of the war, have requested to be removed or sent to an enemy country or otherwise manifested their sympathy with or support of the enemy powers and have by such actions shown themselves to be unfit for permanent residence in Canada;

Therefore, His Excellency the Governor General in Council is pleased to order and doth hereby order as follows:

1. Any person who, being a British subject by naturalization under the Naturalization Act, chapter 138. R.S.C. 1927, is deported from Canada under the provisions of order in council P.C. 7355 of 15th December, 1945, shall, as and from the date upon which he leaves Canada in the course of such deportation, cease to be either a British subject or a Canadian national.

I am not going to go back over those days but certainly the only offence that many of these people committed was their colour. There was no evidence against them of wrongdoing that would have stood up for a moment in any court of law had they had the opportunity to appear in a court of law.

The War Measures Act either in its present form or, better still, in an amended form must remain in effect under the trying and dangerous times in which we live. We have behind us the experience of two world wars. I believe that this measure deserves the fullest study on the part of hon. members of parliament and at the earliest possible date. I suggest that while it has been in effect since 1914 the experience of two world wars justifies amendments being made which will not sacrifice security but will to the highest degree possible maintain the fundamental rights of the individual in Canada.

How to bring about that condition of affairs has tried the minds of thinkers throughout the years. I believe that if the house is agreeable we should at the next session set up a special committee representative of all parts of the house, not on a party basis whatever, for the purpose of giving the fullest consideration to this whole question

Human Rights

of maintaining security while at the same time assuring a maximum of freedom for the rights of the individual. If a committee is set up and, of course, I am in the hands of the house as always-

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LIB
PC

John George Diefenbaker (Prime Minister)

Progressive Conservative

Mr. Diefenbaker:

I thank my hon. friend for those kind words. His geniality has brought about the recognition of a fact that he often denies.

This would be a most important contribution to the Canada of today and to the Canada of the future. At that time we would not deal as we are asked to now on a piecemeal basis with the rights under the War Measures Act. If there is a degree of unanimity, and I think there will be, that Canadian citizens should not be deported the committee might make that recommendation along with such other recommendations as will bring about a War Measures Act which on the one hand will maintain the solidarity and security of the state and on the other hand will have before it the paramount necessity of not needlessly sacrificing the rights of Canadians. I suggest, therefore, that particularizing one incident in the bill of rights would not be beneficial or helpful.

Many other things were done under the War Measures Act with which I will not deal in detail. It was sometimes used as a means whereby the executive could circumvent parliament and do those things that were unjustified, unreasonable and unconscionable. In short, I suggest this. We have by the amendment to clause 6, as suggested, assured parliamentary control which has not previously existed under the War Measures Act. We have provided that the particular clauses I referred to in general shall come into force only upon the issue of a proclamation; that this proclamation shall be laid before parliament forthwith after its issue or, if parliament is then not sitting, within the first 15 days next thereafter when parliament is sitting; and that where a proclamation has been laid before parliament a notice of motion in either house signed by 10 members thereof and made in accordance with the rules of that house within 10 days of the day the proclamation was laid before parliament, praying that the proclamation be revoked, shall be debated in that house at the first convenient opportunity.

In other words we do not intend to ask in this country again to be endowed with absolute power, power above the courts in most cases, without having the authority of parliament. That is of the essence of the parliamentary system. If the cabinet can proceed to bring into effect a system of absolute

IMr. Diefenbaker.]

power for itself, that of itself constitutes a dangerous probability for the rights of the individual. We suggest immediately that we shall reduce forthwith the power to make ourselves absolute as a cabinet if we are in power when war comes, which I hope will never come about. Whatever other government is in power then will have to come to parliament and ask the representatives of the people whether they will confirm the grant to the cabinet of absolute power.

Then as to the War Measures Act and the particulars as to the removal of needless powers, that is a question, as I see it, for consideration by itself. Personally I have felt, and I am unchanged in that view, that the War Measures Act deserves the most careful analysis to the end that any powers contained therein which, in the light of experience, ought not to be possessed, should be deleted from the act. Therefore, I believe that simply to take one of the absolute powers which all of us look back at today, which brought about the exile of Canadians without trial, without offence proved, not even suspicion as a basis for proof, and it could never be accepted as such, is not what we should do. We should not in a bill of rights specifically take one of the absolute powers away without having given the fullest consideration to all of the powers in the War Measures Act. After that has been done, then it will be early enough to single out one of the absolute powers to the exclusion of all others.

Under these circumstances, with feelings of antagonism against the operation of the War Measures Act as it is capable of being exercised and was exercised, I believe that our action should be taken on the whole act and therefore it would be unfortunate if we should now start to single out one of the items which we regard to have been a tyrannical exercise of power. We should rather cover the whole field and make an amendment to that act in consequence of the recommendations made by a representative committee at the next session.

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CCF

Harold Edward Winch

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

Mr. Winch:

Mr. Chairman, we have all listened with a great deal of interest to the remarks just made by the Prime Minister. As far as I am concerned, I can say that I listened with a great deal of appreciation of some of the aspects upon which he touched. Naturally, I am most interested in all phases and policies of this bill of rights, but I do have a particular interest in this clause, and I have not yet heard anything to make me change my opinion that the Leader of the Opposition has moved a most worth-while amendment. The new clause 6A(1) says:

(1) Subject to subsection 2, any act or thing done or authorized or any order or regulation

made under the authority of this act, shall be deemed not to be an abrogation, abridgement, or infringement of any right or freedom recognized by the Canadian bill of rights.

(2) No Canadian citizen may be deported from Canada under this act.

We in this group cannot help but remember the situation when Japan entered world war II. In Canada we had thousands of Canadian citizens of Japanese origin. Thousands of them were born in Canada; they did not know any other country but Canada and the principles espoused by Canada. And yet, under the act which was mentioned here, those who were citizens of Canada but not of our colour or racial origin were within 24 hours cut from their homes, from their houses, their businesses, their property and put in camps and then dispersed across Canada. At that time I had the honour of being the leader of the opposition in the province of British Columbia and I can still remember not one, but dozens of people representing hundreds of Japanese Canadians, citizens, coming to my office and pleading for the right to fight on behalf of Canada in any way that Canada wanted, in a combatant force, a labour battalion on any front, and yet they were denied.

Following the cessation of hostilities I was interested in checking as far as I could under security measures on what happened, and the answer was that there was not one solitary incident or instance of insubordination or of any act of sabotage by those Canadian citizens. At the same time we were the only voice that was raised on behalf of Canadian citizens, irrespective of their land of origin or of their colour. We were the only voice raised at that time which said that every Canadian citizen was entitled to a vote. How we were condemned and damned because we believed in Canadian citizenship and only one kind of citizenship. Today everyone has the vote. I noticed in the press only last week that the Conservative party has named a Japanese Canadian as a candidate in the next provincial election in British Columbia. How times do change.

In view of that episode, unfortunate as it was, we think and I have listened to the Prime Minister and I think he agrees with those views also-that there should be something in the bill of rights in time of peace or war which says that a Canadian citizen is a loyal Canadian citizen unless he is found guilty of betrayal or sabotage aginst the Dominion of Canada. I am not going to say any more. It is now six o'clock and I do not want to carry on afterward. It is for that reason that I find myself very sympathetic toward many of the words that the

Human Rights

Prime Minister has used and also most sympathetic toward the amendment moved by the Leader of the Opposition.

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Some hon. Members:

Six o'clock.

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LIB

August 3, 1960