April 13, 1928

LIB

William Daum Euler (Minister of National Revenue)

Liberal

Mr. EULER:

If that be true, will it not be equally true, if we ask for the remedy that the hon. gentleman suggests, namely, that we secure an amendment to the British North America Act? Would that preclude United States vessels or vessels of any other country, from operating within the twelve-mile limit?

Topic:   CUSTOMS ACT AMENDMENT
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CON

William Gordon Ernst

Conservative (1867-1942)

Mr. ERNST:

There are two points I want to make. I am suggesting first that this section is not constitutional and, second, even if it is enacted in this form, before you make treaty arrangements with other nations, you will not make any real headway in the suppression of smuggling. The result will be that vessels of Canadian registry will go to foreign ports, become registered there and carry on the business.

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LIB

William Daum Euler (Minister of National Revenue)

Liberal

Mr. EULER:

Is it not true that vessels

of Canadian ownership cannot obtain foreign registry?

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CON

William Gordon Ernst

Conservative (1867-1942)

Mr. ERNST:

It is very easy to make a

transfer which is only a transfer on paper. That is done every day.

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LIB

William Daum Euler (Minister of National Revenue)

Liberal

Mr. EULER:

This will at least make it

more difficult for them to do that.

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CON

William Gordon Ernst

Conservative (1867-1942)

Mr. ERNST:

It may. But I suggest that the difficulty will really amount to nothing in the final analysis. I started however on the

Customs Act Amendment

constitutional aspect of this sub-clause. I am suggesting that, as there is this grave doubt, and because, as the Minister of Justice has very frankly admitted, in face of all we have heard about the recent Imperial conference and Canada being a sovereign country, we are not really a sovereign country, we should go to the Imperial parliament and secure the necessary legislation.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

My hon. friend goes too far when he says that I admit that. I said that he was justified in expressing his views in that regard and he is not alone in holding that opinion, but I do not agree with him that this would be unconstitutional. I said that the bulk of authority is on the other side. May I quote one of our constitutional writers on the constitution of Canada, namely, Mr. Lefroy, who says:

Moreover, bearing in mind the fact that, as we shall see, the powers of the Dominion parliament, as also all the provincial legislatures are as plenary and ample within the limits prescribed by the British North America Act as the Imperial parliament in the plenitude of its power possessed and could bestow, and that the expressed intention was to confer upon the Dominion a constitution similar in principle to that of the United Kingdom, it seems beyond question that they must have the same power to bind their own subjects everywhere as the Imperial parliament has to bind British subjects everywhere.

A very distinguished legal gentleman, Sir John W. Salmond, who was Solicitor General of New Zealand, in an article in the Law Quarterly Review for 1917, writes as follows:

There is no rule of substantive constitutional law which prevents a colonial legislature from enacting such extraterritorial prohibitions or authorizations as may be required for the peace, order and good government of the colony.

Even the law officers of the crown in England, when this parliament adopted in 1920 the resolution to which I refer, make this statement in their correspondence with regard to air regulations, because it was on the matter of aviation that parliament was incited to ask that the whole matter should be cleared up because, as the committee will realize, it is very easy for an aviator to cross the boundary line and if parliament has no extraterritorial jurisdiction attached to its legislation, our law could be broken very easily. The law officers felt that the power actually possessed by the Dominion parliament entitled them to make their regulations applicable to Canadian aviators even for offences committed while they were outside of the boundaries of Canada. This question is being discussed in all the dominions. I remember that after the peace treaty, when the territory of Samoa was put under the mandate of New Zealand, New

Zealand thought that as there was doubt as to her power of extraterritorial jurisdiction, she could not have her laws apply in that territory, and an imperial order in council was adopted for the purpose of giving that right to New Zealand. But General Smuts, who was then premier of South Africa, to which West Africa which had been taken from German}' was given as a mandatory territory, claimed that South Africa as a self-governing dominion had the right of extraterritoriality and no order in council or legislation was passed in order to give that additional right. So I think we are in pretty good company in asserting this right in this case and I am sure there will be no difficulty because the whole matter will be made clear when the judicial committee make a decision in this connection.

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LIB

William Daum Euler (Minister of National Revenue)

Liberal

Mr. EULER:

I cannot pretend to make

any legal argument and I have no intention of doing so, but I should like to set forth what I regard as a reasonable view to take of the situation. The department has been very much troubled by the practice of these rumsmuggling vessels loitering just beyond the three-mile limit and demoralizing the whole coast line in many instances.

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CON
LIB

William Daum Euler (Minister of National Revenue)

Liberal

Mr. EULER:

We want the power to cope with them just as quickly as possible. We might go to the British parliament and ask for an amendment to the British North America Act as the hon. member has suggested, but that would take time. There is, as the Minister of Justice has conceded, a reasonable doubt as to the constitutionality of what we propose to do, but there is a pretty strong presumption that we are right. If the clause goes through as it stands, we are certainly going to exercise our rights under it. Then we are in a practical position to have the constitutionality or legality of it tested out. The case will be fought out in the courts. If we win, the matter is settled. If we lose, we still have the remedy of going to the British parliament for an amendment to the British North America Act. We should like to have a remedy now. We are dealing with a difficult situation and if we postpone much longer dealing with it, it becomes all the more difficult to apply the remedy. I should also like to say in reply to my hon. friend when he spoke of the danger of our Canadian boats securing United States registry and becoming owned by Americans, that does not seem to me to be so serious a danger because of the fact-and I think I am right in this-that an American-owned vessel cannot legally carry liquor at all.

Customs Act Amendment

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LIB
CON
LIB

William Daum Euler (Minister of National Revenue)

Liberal

Mr. EULER:

I hope the committee will

consent to leave the clause as it stands.

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CON

Thomas Cantley

Conservative (1867-1942)

Mr. CANTLEY:

I am opposed to this

legislation for half a dozen reasons. In the first place, it is autocratic. In the next place, it will be inefficient, and I should think the minister by this time would have realized that. My hon. friend from Queens-Lunen-burg (Mr. Ernst) referred a moment ago to vessels going under American registry. I do not think they will go under American registry, but under Newfoundland or French registry, and what can the minister do then?

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LIB
CON

Thomas Cantley

Conservative (1867-1942)

Mr. CANTLEY:

It would take about fifteen minutes, just time enough for them to go down to St. Pierre, which is where the great bulk of this traffic originates, where it all originates so far as spirits are concerned. So far as ram is concerned, the traffic originates in the West Indies. The ships could also register in South America or British Honduras. There is no end of places where they could register.

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LIB
CON

Thomas Cantley

Conservative (1867-1942)

Mr. CANTLEY:

I can tell the minister

that they do not have to change ownership, and we have had abundant proof of that in the last two years in this house. That will not get you anywhere.

Then look at the provisions of this bill. Look at subsection 4, for instance. What is the effect of that? It is almost an inducement for his officers to commit murder and be held free of all consequences in doing so. That is a provision entirely uncalled for, and his proposals will be entirely ineffective. I think the minister himself is convinced of that fact, and if he is not, he ought to be. If he lived in the maritime provinces or in any maritime country he would realize what the difficulties are. You cannot stop rum running in that way. There is one simple method of stopping it to which I have referred before in this house several times, and that is by lowering the duty.

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LIB
CON

April 13, 1928