The house resumed from April 12 consideration in committee of Bill No. 198, to amend the Customs Act-Mr. Euler-Mr. Johnston in the chair.
On section 1-Vessels found hovering in territorial waters may be boarded and brought into port.
Richard Bedford Bennett
(Leader of the Official Opposition)
We had some debate yesterdaj' as to the propriety of those words, which are intended to indicate that a vessel should come to a stop. Yesterday I was rather in agreement with the hon. member for Antigonish-Guysborough (Mr. Duff) with regard to the words "heave to" rather than the words "bring to", but I think we might settle the dispute if we adopt some different words which will be perfectly clear. For that reason I move, seconded by Mr. Lapointe, that the words "bring to" in line thirteen be struck out and that the words "proceed to come to a stop" be substituted therefor. I think that should meet all objections.
Before the amendment carries, I am afraid the minister does not realize what those words mean. You cannot bring a ship
at sea to a stop without great danger to the passengers, the crew and the cargo, whether it is a sailing ship or a steamer. In the case of a sailing ship the words "heave to" are correct; they mean that the vessel comes into the wind and proceeds gradually. In the case of a steamer the words "slow down" are proper, because if a steamer stopped and got into the trough of the sea, or if the wind were ahead and she went backwards, she might capsize and founder. Consequently I think the amendment is not in accordance with marine rules and usage.
I would have hesitated to venture an opinion with reference to language of this kind if I had not had the benefit of the views of an officer of my department with regard to the expression "bring to". I am told that the expression "bring to" is defined by Todd and Whall on Seamanship as an order from one ship to another to heave to. that it may be boarded or spoken. Evidently the distinction is that "bring to" is a special expression while "heave to" is a general expression. The Admiralty Manual of Seamanship defines "bring to" as an expression used in bending sails or when a ship is about to anchor, and I am also told that this expression has been used in Dominion legislation for some time past. Still, I have no objection to seconding the amendment of my hon. friend.
I took some trouble this morning to get advice with regard to this expression from those who should know. After all it is a small matter, and I do not think there should be any doubt as to what is intended. In answer to my hon. friend from Antigonish-Guysborough I would say that the words "proceed to come to a stop" does not indicate any sudden effort to stop; I think it will answer the requirements of sailing vessels as well as steamers.
"Come to a stop" means that eventually the ship will stop, but it is a dangerous thing for any preventive ship belonging to any government to order either a sailing vessel or a steamer to stop in the middle of the ocean. That is a dangerous proceeding, and it is not fair to the owners of ships, because it will endanger the lives of the crews and subject the ships themselves to great hazard.
much anyway. I was not here on Tuesday either, but I took the opportunity this morning to read Hansard in order to see what took place on the other two occasions. The view's of my hon. friend are about the same as those set forth in this house in 1923, when as Minister of Marine and Fisheries I introduced some legislation with regard to the north Pacific halibut fisheries. That legislation was designed to put into force the provisions of the treaty with the United States concerning the protection of the halibut fisheries in north Pacific waters. Both in the treaty and in the statute adopted by this house there was a provision which conferred extraterritorial jurisdiction upon the enactment of parliament. I mention the fact that this was in the treaty also because that treaty was ratified by His Majesty the King, and no one either in England or in Canada challenged the right of Canada in that respect, and that statute never has been challenged since. It has been enforced since, giving the right to our officers to seize vessels, even on the high seas, which are engaged in fishing halibut in the prohibited zone during the prohibited season. However, at that time the same objection was raised against that statute, and I am free to admit that my hon. friend can quote authority in support of his con-tent'on. It is a debatable question in some respects; it has been debated, but I believe that the trend of constitutional authority is now rather to the effect that t.he dominions have the same right within their sphere of legislation as the Imperial parliament has within its sphere. This view is specially supported in the case of the award re Cooks' and Stewards' Union. That was a New' Zealand case, in which the court decided that the award of a New Zealand court of arbitration as to wages to be paid on vessels trading between New Zealand and Australia was binding with reference to vessels registered in New' Zealand.
In the well known Canadian case of Cain versus Gilhula, where aliens had been deported under the Canadian legislation with regard to alien labour, for having come to this country
in contravention of our law, those men took proceedings by wray of habeas corpus, and the court of first instance decided that as there was a question of extraterritoriality involved our statute was not constitutional; but the Privy Council decided otherwise, and that Canada may exert extraterritorial powers for the purpose of exercising her sovereign powers as effectively as the Imperial authority.
There have been two cases decided by the Supreme Court of Canada, in re Frederick Gerring and re North, in which vessels had been captured outside the three-mile limit, taken in hot pursuit, and the seizure was declared valid by the supreme court.
I admit that the circumstances may be a little different, but still the extraterritoriality was admitted in that case. My hon. friend is right as to the point that there is a certain element of doubt attached to the matter, and it is for that reason that in 1920, I believe, the then government submitted to parliament the resolution for the purpose of amending the British North America Act, in order that it should be made clear that any enactment of this parliament within its jurisdiction had the same effect with regard to extraterritorial rights as an enactment of the Imperial parliament. The resolution was adopted by the parliament of Canada in 1920, but I see in the correspondence that there was some difficulty as to the drafting of the resolution or 'rather of the legislation to be introduced in the Imperial parliament. There was an exchange of views between the law officers of the crown in Great Britain and the Department of Justice; and as a result, in 1924. I myself, as Minister of Justice, introduced a new resolution to this parliament with somew'hat different language. It was to the effect that .
An enactment of the parliament of Canada, if expressed to operate extraterritorially, shall have, and be deemed to have had, that operation. if and in so far as it is a law for or ancillary to the peace, order and good government of Canada.
This resolution was voted by the parliament of Canada, but I may qualify this by saying that tlhe Senate amended it in some slight manner, so as to safeguard the rights of the provinces in that respect. The amendment came to the House of Commons on the last day of the session and was accepted then; but we found afterwards that the language was not exactly what it was intended to be, and that a new resolution would have to be passed by this house to amend it.
The whole question came before the Imperial conference of 1926, not brought there
Customs Act Amendment
by Canada but by other dominions, and it was then decided that this matter should be submitted as well as other matters to a committee of jurists which is to be appointed for the purpose of looking into all those questions. Meanwhile, as it is a very important matter concerning peace, order and good government in Canada, I think this parliament should take the same view as was taken in regard to the halibut fishery treaty, and that it should be made clear that as far as we are concerned we believe that for the peace, order and good government of Canada we should have in that respect the extraterritorial jurisdiction which the legislation of the Imperial parliament has provided with regard to their own affairs.
much indebted to the minister, as I am sure the house is, for his discussion of the matter, and I can assure him that we are as desirous as hon. gentlemen opposite are to make effective and enforcible the customs laws of this country. Unfortunately I am not familiar with the section in the north Pacific convention to which he refers, and it is impossible without it before me to say whether it is the same as the proposed subsection 7 with which we are now dealing.
A number of the cases cited by the minister are not in point. For instance, the case of the ship North. The infraction in that case was committed within the teritorial jurisdiction of Canada, and what was involved was the right of immediate pursuit, or hot pursuit as it is termed. It seems to me we ought to approach this question frankly. The fact that the fishery decision was not challenged is no answer; that simply means that it has never stood the tect. What I have suggested, and what I suggest again, is that we should be frank in the matter. The Minister of Justice admits that there is doubt, and knowing that there is doubt, knowing that this provision is almost certain to be challenged, that seizures will be made within the twelve-mile limit, and that the question will come before the court and result in expensive litigation, why not go before the Imperial parliament and get legislation which will make it certain?
noticed my statement in that respect. The Imperial government were quite willing to enact legislation to enforce the will of this parliament in that regard They asked, and we agreed, that the whole matter should come up with regard to the other dominions as well as to Canada. If Canada asks for that amendment, it will be made and agreed to by the Imperial parliament.
that really the proper procedure would be to ask for it immediately, so that the customs laws can be enforced. There is grave doubt whether this is constitutional. My hon. friend is no doubt aware that Lord Halsbury has expressed the opinion that the colonies, including in that the self-governing dominions, have a jurisdiction which is territorial. What is going to be done in this case is tc create what amounts to a new and distinct criminal offence on the high seas, that is perhaps ten or twelve miles from the shore. The anomaly that will occur will be that you are creating the offence for Canadian vessels at a time when United States or French vessels can come inside and trade with impunity. As the minister is probably aware, the method adopted by the people engaged in this business to-day is to go to the West India island?, load up with a cargo usually consisting of rum, come to some prearranged point off the coast and there sell the cargo in the open sea. The law leaves the onus or responsibility of getting the goods, as they are called, on shore on the little man, not on the man who makes the purchase in the West Indies. The result will be simply that the business will be carried on by vessels other than those of Canadian registry and the section will be of no value.