Mr. J. A. CLARK (Vancouver-Burrard):

On March 6 I drew the attention of the government to a situation which exists with regard to the importation of eggs, and at 1hat time Your Honour was good enough to say that that might serve as a notice. I may say that no notice has been taken of it, but since that time I have received notice of the importation of eggs from the United States during the month of February, the importation having mounted from 22,673 dozen in February, 1929, to 1,060,922 dozen in February, 1930. I consider, Mr. Speaker, that this is a matter of urgent public importance, and I request that the government do take some notice of it, and give the house some assurance that it is being dealt with, because throughout the year 1929 the importation of eggs amounted to 658,164 dozen.

Mr. SPEAKER:

It is only in matters of

public importance, matters of great urgency that the hon. member would be justified in proceeding. There is a standing order to that effect.

Mr. CLARK:

Mr. Speaker, I do not wish

to move the adjournment of the house to discuss this matter, but I will, if necessary. I think under the rules, however, it is quite proper, on the orders of the day, for any member to draw to the attention of the government any matter of urgent public importance. In view of the fact that notice has been given, the house is entitled to some answer as to what the government is doing in regard to this very urgent matter.

Mr .STEVENS: The government is waiting until they hatch out.

Mr. A. W. NEILL (Comox-Alberni):

I think I had the floor last night, Mr. Speaker, when the house adjourned. I was talking on the amendment to the motion moved by the hon. member for Macleod (Mr. Coote). I do not intend to say anything more at this time, but will reserve my right, if the amendment is disposed of, to speak on the main motion later.

Mr. SPEAKER:

The reply of the hon.

member for Camrose (Mr. Lucas) will close the debate. If any other hon. member wishes to speak the time is now.

Mr. W. T. LUCAS (Camrose):

Mr. Speaker, I wish to say that I was greatly pleased with the attitude taken by the Prime Minister (Mr. Mackenzie King) with regard to this resolution, and I willingly accept the amendment moved by the hon. member for Macleod, which embodies the suggestions made by the right hon. gentleman. The amended resolution will, therefore, read as follows:

That, in the opinion of this house, certain estimates should be referred to 6elect standing committees, or a special committee, before being referred to the committee of the whole.

I recognize the amended resolution, Mr. Speaker, as an improvement, and it will now rest with the house to decide what estimates are to be sent to select standing committees, or a special committee, which ever in its judgment seems best.

Mr. BOURASSA:

The house or the government?

Mr. LUCAS:

The house. That is really

what I had in mind. I am pleased with the reception which the resolution has received'

Criminal Code-Firearms

It has received fair discussion from all sides, and I believe its adoption will be an improvement over our present system. I believe that we will be able to secure much more information, and with that information we will be able to vote more intelligently on those estimates when they come before the house for our consideration. As the resolution has received a fair measure of discussion, I do not think it necessary for me to take up the time of the house repeating what has already been so well said. Therefore, Mr. Speaker, I commend the amended resolution to the good judgment of the house.

Amendment (Mr. Coote) agreed to on division.

Motion (Mr. Lucas) as amended agreed to on division.

Mr. LAPOINTE:

Will my hon. friend explain?

Mr. CHURCH:

There are just one or two matters in connection with this bill which I should like to point out to the minister. If he cares to do so he might then have the bill stand in order to consider these amendments.

There have been many complaints with regard to the carrying of firearms in this country; we are gradually getting like Chicago, where it is very popular for people to carry pistols in their hip pockets. The Chief Justice of the Common Pleas of Ontario has referred to this question on more than one occasion. The present law of Ontario with regard to dangerous weapons is as follows:

Upon sufficient cause being shown, any officer of the Royal Canadian Mounted Police or of a provincial police or detective force, or any stipendiary or district magistrate or police magistrate or acting police magistrate or sheriff or chief constable of any city, incorporated town or district municipality, or any person authorized under the law of any province to issue licences or permits to carry firearms, or to hunt or shoot, or any officer or class of officers or persons thereto authorized by the governor in council, may grant any applicant therefor as to whose discretion and good character he is satisfied a permit in form 76, for such period not exceeding twelve months as he deems fit.

In this bill that section is repealed and the following substituted therefor:

No person except a judge or stipendiary, district or police magistrate, may grant, or shall be authorized to grant, a permit in form 76, and it shall be granted to such persons only as in the opinion of the judge or magistrate

show sufficient and reasonable cause for the application, and of whose discretion and good character he is satisfied.

I think the time has come when some such provision as this should be placed in our statutes, in view of what is taking place on the border to-day. Last year there was a sham battle on the Lewiston highway, and shots fired on the American side struck in Canada.

The second section of this bill is as follows:

2. Subsection two of section two hundred and fifty-two of the said act is repealed, and the following is subeti.tued therefor:-

(2) Homicide is culpable -when it consists in the killing of any person, either by an unlawful act, or by negligence, or by both combined, or by causing a person, by threats or fear of violence, or by deception, to do an act which causes that person's death, or by wilfully frightening a child or sick person.

There is no definite expression in the criminal code as to what constitutes criminal negligence, and the object of this amendment is to add the words " or by negligence " to the sections dealing with culpable homicide.

Then the last section of this bill covers the release from proceedings for the same offence. We all remember the case of the directors of the Home bank; they were charged with a minor offence, and the crown saw fit to exempt them from all other charges, although they got away with millions of dollars belonging to the bank. Whose money was it? When anyone borrows money from a bank he simply borrows money belonging to the depositors, and as a result of that practice the Home bank failed. This section provides that no person shall be acquitted of or absolved from a greater offence by being prosecuted, convicted or acquitted of a lesser offence. A greater offence shall include every offence for which a greater penalty may be imposed, and the object of this amendment is to prevent the abuse of the law in cases where persons are convicted or acquitted of a minor offence and absolved in many cases from greater offences even though they may be guilty of them. For instance, if acquitted or convicted of common assault, a person cannot be convicted of causing grievous bodily harm, or of manslaughter in some cases, even if he admits having committed the graver crime. A friendly prosecutor may thus clear a criminal of very grave crimes. The amendment is designed also to prevent crown officials from charging criminals with minor offences when they should be charged with graver offences. The purpose of the amendment is to prevent such officials from being unduly influenced by fear, favour or friendliness or by enmity, and to leave questions of absolution and amelioration solely to the clemency of the crown, which always can be sought.

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I hope that the minister, when he brings down amendments to the code, will consider the amendments suggested by this bill.

Hon. ERNEST LAPOINTE (Minister of Justice):

Mr. Speaker, I am pleased that my hon. friend has given us some explanation of his bill which will help in our consideration of it. I am going to follow his suggestion and move the adjournment, so that the bill may stand.

Before doing that, however, may I give some of my views about the bill. The first section has for its purpose the restriction of permits to carry firearms. As the law is at present, the permits are issued, upon sufficient cause being shown, by any officer of the Royal Canadian Mounted Police or of a provincial police or detective force, or by any stipendiary or district magistrate. The subsection gives the names of other officials in addition to those I have mentioned. The amendment of my hon. friend would take away this power from police authorities, but if he will allow me to say so, the explanation he gives hardly justifies the bill. I read his explanatory note:

One example should be sufficient; a man was held up on a highway by three robbers all fully armed. If the man had obeyed the law, he would have been robbed and probably wounded, possibly killed. He disobeyed the law, he carried a dangerous weapon, and so made himself liable to arrest and imprisonment; but his crime enabled him to defend himself and punish his attackers, eventually having them arrested and punished.

My hon. friend, in his explanation, would justify the practice of issuing permits. He shows how important it is at certain times to carry firearms, but the effect of his bill would be to restrict the issue of permits,

The second section of the bill deals with culpable homicide. The law as it stands defines homicide in the following terms:

Homicide is culpable when it consists in the killing of any person either by an unlawful act or by an omission, without lawful excuse, to perform or observe any legal duty.

The hon. member desires to strike out the words "by an omission, without lawful excuse, to perform or observe any legal duty" and replace them with "by negligence." I submit that there would be confusion if that amendment carried, because the general term "negligence" would be much more difficult to interpret than the words "by omission without lawful excuse, to perform or observe any legal duty." I had hoped that the hon. member would cite some case or some faiets which would justify the change, and unless he does so at a later stage I must say that I cannot see my way clear to admit that this amendment would be better than is the present

statute. Section 3 proposes to add to section 1079, the following:

No person shall be acquitted of, or absolved from, a greater offence by being prosecuted, convicted or acquitted of a lesser offence.

There is no principle in criminal law more generally known or more universally upheld than that a person who has been once convicted or acquitted shall not be in peril of being convicted again of the same offence.

The criminal code provides that when an offence is punishable under more than one act or under both an act and the common law, the offender shall not be punished twice for the same offence. I would direct my hon. friend's attention to two or three sections of the criminal code which embody that principle so that he will realize the tremendous confusion which would exist if his amendment were carried. Section 950 of the criminal code recognizes the principle I have just mentioned, in stating:

When an attempt to commit an offence is charged hut the evidence establishes the commission of tlie full offence, the accused shall not be entitled to be acquitted, but the jury may convict him of the attempt, unless the court before which such trial is had thinks fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for the complete offence.

Section 951 provides for the conviction of an accused of any offence which is included in the one charge where the whole offence is not proved. That section relates to conviction on an offence lesser than the one charged. Section 907 provides:

On the trial of an issue on a plea of autrefois acquit or autrefois convict to any count or counts, if it appear that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made which might then have been made, have been convicted of all the offences of which he may be convicted on the count or counts to which such plea is pleaded, the court shall give judgment that he be discharged from such count or counts.

Those three sections treat with the very matter which my hon. friend is dealing with, except that they treat it in an opposite way; they uphold the well known principle of criminal law which I have mentioned.

I will be very pleased to consider this trill, and the remarks of my hon. friend, who will have an opportuity of discussing my views when this bill is up again or when the government measure is brought down. For these reasons I beg to move that the debate be now adj ourned.

Motion agreed to and debate adjourned.

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Marriage and Divorce-Mr. Bourassa

Mr. ADSHEAD:

For the first time?

Mr. BOURASSA:

Yes. Previous to 1925

the federal statutes contained no divorce law. We had the Marriage Act, but in 1925 certain amendments were brought in, which now are contained in sections 4, 5 and 6 of chapter 127 of the Revised Statutes of Canada, 1927; and the title was changed from an Act respecting Marriage, to an Act respecting Marriage and Divorce. My primary object, therefore, is to wipe out the word "divorce" from our laws; but this is only the first step, not only in the removal of what I consider to be a social evil, but in the readjustment of legislative powers as exercised by the federal and provincial parliaments.

Our constitution provides that everything relating to civil rights, to religious organizations, to education, and all such matters, shall be left in the hands of the provinces. A study of the constitutions of the various federated countries of the world will show that this principle has been generally respected elsewhere. If there is any matter intimately connected with civil rights, with social life, with religion, with religious prejudices, if you like, it is the institution of marriage. VTiether you look upon it from the Catholic or the Protestant point of view, or from the purely civil viewpoint which prevails to-day in most countries, you have to admit that the power which has to deal with the subject of marriage, has necessarily to deal with many subjects connected with civil law. Evidently that was the idea of the fathers of confederation since, in the Quebec resolution No. 29, paragraph 31, they proposed to hand over to the general parliament of Canada "marriage and divorce," without any reservation. Under resolution 43, paragraph 15, they reserved to the provinces: "Property and civil rights, excepting those portions thereof assigned to the general parliament." In this, I submit, the fathers of confederation made a grave mistake, from a purely constitutional point of view. I have looked up some of the original constitutions of the various federated countries, such as the

United States, Germany, Switzerland and our younger sister, Australia; and I find that wherever you have the dual principle of federal government for the general interest of the country, and provincial or state autonomy to look after the local interests of the various communities composing the nation, the subject of marriage has been reserved absolutely and entirely for the exercise of provincial or state jurisdiction.

Evidently the framers of the federal pact found out their mistake and they endeavoured to correct it by committing what I consider a still worse mistake: they went to London, and there, in spite of the solemn pledge that had been taken in the parliament of United Canada that no change whatever would be made in the pact, they had those resolutions changed. Now under paragraph 26, of section 91, which defines the exclusive powers of this parliament, marriage and divorce remain within the jurisdiction of the federal parliament; but under section 92, which defines the exclusive powers of all provinces- powers, let us remember, equal, I was going to say in dignity, equal in authority to those that we exercise within our jurisdiction- subsection 12 places the solemnization of marriage under the jurisdiction of the provinces, and subsection 13 places "Property and civil rights" also under the exclusive jurisdiction of the provinces, without the exception that had been placed in the resolution adopted at Quebec, that is, reserving the right of this parliament to deal with such matters of civil rights as could be attributed to it.

What has resulted from that abnormal and extraordinary disposition of our constitution? Everyone familiar with the jurisprudence of the various provinces knows that time and again the question was brought up before the tribunals of this country, and eventually before the judicial committee of the Privy Council, to decide where began and where ended the powers of either authority. Parliament under all governments felt so much the anomaly of that disposition, that although in the clearest and shortest clause of our constitution, the federal parliament has absolute and exclusive jurisdiction over marriage and divorce, years and years passed before parliament endeavoured to enact a single statute, a single text of law, on either marriage or divorce. It took advantage of section 129 of the British North America Act to let stand the laws which had been adopted by the provinces which formed confederation, and the jurisdictions also created by the provincial governments prior to confederation. In other words, New Brunswick, Nova Scotia, Upper Canada,

Marriage and Divorce-Mr. Bourassa

now Ontario, and Lower Canada, now Quebec, went on, Lower Canda with its civil code, Ontario and the two maritime provinces with their marriage laws largely based on the common law of England, New Brunswick and Nova Scotia with their jurisdiction with regard to divorce as it had been established a long time before confederation.

May I interject that in those acts, so-called divorce acts, of the maritime provinces, it was not mainly what we call divorce that was provided for, it was what the old country jurists called divorce a mensa et thoro, what we call in our French legal parlance " separation de corps et de biens". The courts likewise had jurisdiction in both matters.

When British Columbia, and later, Prince Edward Island entered confederation, the same situation arose. Prince Edward Island in 1835 had passed an act on marriage and divorce which has remained in its statutes. It had created a jurisdiction similar to that of Nova Scotia and New Brunswick, but let me say to the honour of the little island by the sea, it has never exercised those functions although they still exist on paper.

The case of the prairie provinces is somewhat different. As everyone knows, the provinces now called Manitoba, Saskatchewan and Alberta were annexed to Canada under the Rupert's Land Act, and committed to the legislative authority of this parliament, first of all under the British North America Act of 1867, and under its further amendment of 1871, confirming the Manitoba Act and defining still more clearly the legislative powers to be exercised by the federal parliament over those territories. In 1886, the federal parliament passed a statute, 49 Victoria, chapter 25, from which I quote the following:

The laws of England relating to civil and criminal matters, as the same existed on the fifteenth day of July, in the year of Our Lord 1870, shall be in force in the Territories, in so far as the same are applicable to the Territoriesand so on.

As you may notice, sir, no mention was made there of marriage and divorce law; but when, several years later, in 1919 to be exact, the matter was brought before the privy council in the case of Board vs Board,-a case that had arisen in the province of Alberta-the Privy Council decided that this general act from which I have just quoted had, as one of its effects, introduced the Divorce and Matrimonial Causes Act of England, as adopted by the Imperial parliament in 1857- further evidence supported by the highest tribunal in the British empire of my contention, a moment ago, that marriage is

essentially related to civil rights; because I do not suppose that the lords of the privy council meant to say that marriage and divorce law was introduced into the North West Territories under the statutes relating to criminal law.

In Manitoba exactly the same position was created. In 1888, the federal parliament passed another statute, 51 Victoria, chapter 33, .n practically the same wording as the one which I have just quoted; and in the case of Walker vs Walker, the privy council decided, as they had done in the Alberta case, that the Matrimonial Causes Act of 1857 had been automatically introduced into the province of Manitoba and was in force in that province in virtue of the federal statute.

So the situation as regards seven out of the nine provinces is that there is a law of marriage and also a law of divorce, largely the same but different in some respects, in Nova Scotia, New Brunswick, Prince Edward Island, British Columbia, Saskatchewan, Alberta and Manitoba. What should not be lost sight of is, that those laws continue to exist by the standing will of this parliament; that those jurisdictions continue to operate under the authority of this parliament; and that none of the legislatures of those provinces could amend either their marriage or their divorce laws, whether they have been adopted originally by themselves, previous to confederation, or whether they have been enacted by the will of this parliament under the statutes to which I have referred.

Likewise, the supreme court of one province, or the court of king's bench of another, as the case may be, in applying either the statutory law of the maritime provinces or the English law as introduced in Manitoba, Saskatchewan and Alberta, exercise their jurisdiction under authority from this parliament; and to this parliament alone belongs the supreme responsibility for the creation and maintenance of those courts. Therefore, those who, in the province of Quebec, claim that this parliament could not suppress divorce in the seven provinces are entirely mistaken. This parliament has the same absolute and exclusive jurisdiction on the whole question of marriage and divorce in the three maritime provinces, in British Columbia, and in the three prairie provinces, as it has with respect to the same subjects in Quebec and Ontario. Nevertheless, I repeat, parliament felt, instinctively I suppose, so far as most of its members were concerned, and decisively, as regards the various ministers of justice and leading jurists who have played such a distinguished part in the public life of this country, that it was

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Marriage and Divorce-Mr. Bourassa

against the spirit and the whole economy of our constitution that this parliament should deal with such matters; and that explains why, from 1867 to 1882, not only was there no federal divorce law, but likewise no federal marriage law. As far back as 1873 or 1875,-I am not sure as to the date-Mr. Desire Girouard, later on a member of this parliament, then a judge of the supreme court of Canada, and one of the leading jurists of Quebec most versed in these matters, called the attention of the population of Quebec to certain anomalies existing in our civil code; but, as he pointed out, it was no longer to Quebec but to Ottawa that we had to go to remedy such evils in our civil code as ought to be corrected. This gentleman, Mr. Girouard, was elected to sit in parliament, and what did he do? For years and years, he had to put up a fight-as my hon. friend from Winnipeg North Centre (Mr. Woodsworth) is now doing in another aspect of the same question-before he secured, in 1882, the first marriage act passed by this parliament, under which the marriage of a widower with the sister of his deceased wife was made legal. It took eight years more before this parliament decided to pass a second marriage act, making legal the marriage of a widower with the daughter of his deceased wife's sister. Then it took thirty-three y Mrs more before this parliament decided that "a marriage is not invalid merely because the man is a brother of a deceased husband of the woman or is a son of such brother." So that in sixty-three years of the exercise of its functions, the federal parliament of Canada has passed only these three acts- although it has absolute and exclusive jurisdiction in the whole matter of marriage-with respect to these three points which are contained in sections 2 and 3 of the Marriage and Divorce Act as it stands to-day, under chapter 127 of our revised statutes.

This shows conclusively, Mr. Speaker, that this parliament realizes how unfit it is to deal with these matters, and that the various provincial legislatures, which know the needs of their population, their turn of mind and their social life, are the most fit bodies to exercise their authority in these matters. En passant, I might say the very same thing about education; and if this house were prepared to rectify that disposition of our constitution which separates in such a ridiculous manner jurisdiction over marriage, and would turn the whole matter over to the provinces,

I for my part would be prepared to wipe out that equally absurd clause 93 of the British North America Act, which has given rise to so much trouble, political turmoil, and pr-eju-

dice as between province and province, as between race and race, and creed and creed. This parliament has enough to do in performing its normal functions of administering the general affairs of the country and looking after the external relations of Canada with the rest of the world, -without going into the intimacy of the home, into the inner aspects of the affairs of the community, into the internal economy of the province. I repeat, it is against the spirit of the constitution; and therefore the measure which I propose to-day is only the first step to be taken to bring matters back to their normal position.

During the famous debates over the Manitoba school question- which took place in the old House -of Commons between 1891 and 1896-before your time, Mr. Speaker, and my time'

may I say that I listened from the old press gallery to a speech which, to my mind, went to the crux of the situation? The most illuminating study of the subject was by the late Doctor Weldon, one of the most distinguished men. of the maritime provinces, who- then represented the county of Albert- a staunch Conservative, but a broadminded man, who opposed the remedial bill, not on account of the claims of the Catholics or the counter claims of the Orangemen, but as he said, because he did not believe in. the efficacy of legislation passed against the spirit of the constitution upon which rested the very power which enacted a law which that same body was incapable of putting into force. That was, I thought, the strongest argument in the issue. And may I say that, in my bumble way, although a staunch Roman Catholic and convinced that my fellow believers in the Catholic faith were put under duress and suffered an injustice at the hands of the Manitoba government, the position I took in my constituency when I ran for parliament for the first time was this: I want to do all I can to help our people in Manitoba, but within the four corners of the constitution- not of the letter, ibut of the spirit of the constitution-and I would rather appeal to the sense of fair play of the people in the west than ask for a law voted in Ottawa which will be inoperative in Winnipeg.

Similarly, I hold that this parliament has no moral jurisdiction to legislate on matters of divorce, that iwe should realize it, and that al-1 the fair and broadminded men in this house, irrespective of creed or party, should prepare themselves and prepare public opinion for an amendment of the constitution which will place back those matters where they should have been left sixty years ago.

Marriage and Divorce-Mr. Bourassa

Again, I was struck very much by the argument presented before the supreme court when this parliament referred to that august body, the highest tribunal in the land, the so-called Lancaster bill. Those members of the house who have forgotten the facts may wish to have their memory refreshed. A member of this house, Mr. Lancaster, had introduced a bill to declare that certain .marriages, possibly held invalid under the civil code of Quebec, should be declared valid by this parliament.

I pass over all the issues that were brought before the court. The book which contains the pleas offered on both sides, as well as the opinions expressed by the judges, constitute to my mind one of the monuments not only of Canadian jurisprudence but of modern jurisprudence. I know nothing in the annals of the judicial committee of the privy council, nor of the court of Cassation in Paris, that surpasses those pleas and those opinions in legal learning and in breadth of mind. Naturally my sympathies were and remain on the side which was so aibly presented by Mr. Migneault, later on a member of that tribunal. But I must say, that, from the purely judicial point of view, the strength of argument was on the other side; and the case as presented by Mr. Eugene Lafleur and by Mr. Wallace Nesbitit-wrong as they were, I think, in endeavouring to sustain the validity of the Lancaster bill-were absolutely sound and were held good, both in Ottawa and in London, when they proved conclusively that it was impossible to make that dual jurisdiction work harmoniously. Mr. Nesbitt made one of the strongest points when he demonstrated that any provincial legislature, in the exercise of its undoubted powers of legislation, could pass laws relating to property, to civil rights, to the care of children-all things that we cannot touch in this parliament-the effect of which would be to render impossible communal life between two parties married undeT the authority of this parliament. Nothing in my humble judgment could better demonstrate the basic absurdity of this system.

Now, with the exception of those three little bits of law relating to marriage, I repeat, this parliament has been sensible enough not to exercise its powers. But are we going to leave it at that? Are we going still to hamper the various provinces in the exercise of what I consider to be undoubtedly their moral right to legislate on marriage? Are we going to prevent the province of Quebec, the province of Ontario, or the province of New Brunswick, or the province of Saskatchewan from passing laws which they think necessary for the governing of matrimonial rights?