June 20, 1936

CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I beg pardon, no. They say if Brussels does not agree they will make a reservation-

Topic:   COPYRIGHT AMENDMENT ACT
Subtopic:   AMENDMENT WITH RESPECT TO FEES, CHARGES AND ROYALTIES, AND TO CONSTITUTE A COPYRIGHT APPEAL BOARD
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LIB

Lionel Chevrier

Liberal

Mr. CHEVRIER (Ottawa):

But we have not done that yet.

Topic:   COPYRIGHT AMENDMENT ACT
Subtopic:   AMENDMENT WITH RESPECT TO FEES, CHARGES AND ROYALTIES, AND TO CONSTITUTE A COPYRIGHT APPEAL BOARD
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

That is not necessary. They make the clear, clean-cut statement that their delegates shall be instructed to make a reservation or declaration to the effect that His Majesty's government consider that their country is free to enact such legislation as may be considered necessary. The British government desired that there should be no confusion in regard to the matter.

One thing further. I do not intend to descend to the sort of platform argument that my hon. friend suggested is applicable to this case. He made the suggestion that a producer of musical copyright has the same right to ownership of his product and the sale of his product as the farmer who produces potatoes. Granted. We have done nothing in this country to interfere with Canadian authors of music or composers, and not one of them while I was Secretary of State made any such suggestion to that department. Furthermore, there are other societies, foreign societies, which conformed to the requirements of the law. The French society has so conformed and not a complaint has been received from them, and until I left office not a complaint had been received from the public of Canada with regard to their operations in this country.

But let me refer to the case of a grower of potatoes. If I grow potatoes I have a perfect right to keep my potatoes in my cellar and not sell them for a price. But if some company is organized in this country which purchases the entire product of over 2,000,000 producers of potatoes and then fixes a price for the product which is beyond the capacity of consumers to pay-

Topic:   COPYRIGHT AMENDMENT ACT
Subtopic:   AMENDMENT WITH RESPECT TO FEES, CHARGES AND ROYALTIES, AND TO CONSTITUTE A COPYRIGHT APPEAL BOARD
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?

Some hon. MEMBERS:

Hear, hear.

Topic:   COPYRIGHT AMENDMENT ACT
Subtopic:   AMENDMENT WITH RESPECT TO FEES, CHARGES AND ROYALTIES, AND TO CONSTITUTE A COPYRIGHT APPEAL BOARD
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

-how long do you think the parliament of Canada would allow the operation of such a super-monopoly as that to continue? That is similar to the case we are now dealing with. We are dealing with a

quasi-criminal attempt to exact excessive fees and charges from hotels, from broadcasting companies, and from every cafe or restaurant which uses music. We are not abolishing the right to receive compensation. This bill, which the government has introduced simply places it in the power of and imposes the duty and responsibility upon an independent body now to be created to ascertain in each case whether the price asked is equitable and just or whether it constitutes an undue exaction.

I am glad to know that at last there have been found four or five or six Canadian authors who since this last investigation was made have been induced to join the Canadian society. I assume that the literature which has come to me, some of it most extravagantly abusive, so that I regard it as a breach of the privileges of this house that it should be sent to a member of parliament, emanates from the three or four Canadians who by some means have been induced to become identified with this society. I can only hope that they enjoy the pleasure of sending this anonymous correspondence to members of parliament and to former ministers. I simply say to them that as far as I am concerned it does not affect my temper in the slightest. This Canadian Performing Right Society, which, despite all that is stated by the hon. member for Ottawa East, is the only society at present in Canada that is prejudicially affected, and it has for four or five years been defying the parliament of Canada, by stating that neither the government nor parliament dare regulate its proceedings. They are not acting on behalf of the authors of this country or on behalf of the authors of any other country. They are not mere agents to receive fees for the authors. Ninety per cent of these musical compositions are owned by publishers, and have been so owned since they were first published. It was only when the objection was made that they did not really represent the authors that they undertook as a subterfuge to grant a certain portion of their receipts to the authors of the musical works concerned. This society stated in the evidence which came before the committee of which I was chairman that the rights of these authors and publishers had been transferred to it, and this legislation deals only with a society which has acquired musical works and deals in the acquisition of musical works and in the licensing or granting of licences for the performance of such works in Canada. As the law now stands and as reenacted in this bill it applies to:

10. (1) Each society, association or company which carries on in Canada the business of acquiring copyrights or dramatico-musical or

Copyright Amendment Act

musical works or of performing rights therein, and which deals with or in the issue or grant of licences for the performance in Canada of dramatico-musical or musical works in which copyright subsists, shall, from time to time

Two facts must concur before this statute applies. First, the society must acquire the copyright of the musical works, and then it must proceed to deal with the licensing of such works. I suggest that this company, incorporated under the laws of this country, incorporated here in order to obviate certain obligations which would apply in case it was not incorporated here, has to submit to such legislation as the parliament of Canada enacts within its legislative jurisdiction.

I do not intend to pursue the matter further, no matter what objection may be taken, except to say that in the course of the examination of Mr. Jamieson, the president of the Canadian Performing Right Society, before the committee of which I was chairman, he had proceeded to cite a decision of the English court to the effect that copyright is a privilege or monopoly right conferred by statute, and in regard to that I questioned him as follows:

Q. It is a monopoly or privilege conferred by statute upon an individual owner or author?

A. Right.

Q. But you-your company is a supermonopoly. In your company-thirty thousand men have joined together and vested in your company the right to deal for the whole thirty thousand, so that when, in the ordinary course, a broadcasting company approaches you, you say, "Our terms for the use of the works to the number of two and a half million or three million of these thirty thousand authors are granted to you wholesale, for a certain price which we fix." Now, that is new. That super-monopoly, or combination, which you represent is a combination of two million five hundred thousand little monopolies which are created by statute. We do not want to interfere with the author, we do not want to prejudice the author; but we do desire to arrive at some mode, or method, by which we can regulate this super-monopoly of performing rights, which, by virtue of an international combination, is not found in any other trade?

A. We appreciate, sir, all that you have said; but let me make one point: We must associate in order to protect.

I wish to add to that observation the fact that even under the international convention of Berne, revised at Rome and now about to be again revised at Brussels, the author who is a national of one country has only the rights which are specifically granted by the convention, and the rights which are accorded him by the domestic legislation of any other country which is a member of the union. There is not one line in the Rome convention which authorizes either a combination of authors or the fixing of prices by such a com-

bination or, in fact, the fixing of prices by an individual author in violation of domestic legislation.

Topic:   COPYRIGHT AMENDMENT ACT
Subtopic:   AMENDMENT WITH RESPECT TO FEES, CHARGES AND ROYALTIES, AND TO CONSTITUTE A COPYRIGHT APPEAL BOARD
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Amendment agreed to. Section 1 as amended agreed to. Section 2 agreed to. Bill reported, read the third time and passed.


WAR VETERANS' ALLOWANCE ACT

CONCURRENCE IN SENATE AMENDMENTS


Hon. IAN MACKENZIE (Minister of National Defence) moved the second reading of and concurrence in amendments made by the senate to Bill No. 27, to amend the War Veterans' Allowance Act. He said: The amendments will be found at page 525 of votes and proceedings for Friday, June 19. They are not contentious. Motion agreed to; amendments read the second time and concurred in.


CANADIAN NATIONAL RAILWAYS

PROVISION FOR BOARD OF DIRECTORS-CONCURRENCE IN SENATE AMENDMENTS


Hon. C. D. HOWE (Minister of Railways and Canals) moved the second reading of and concurrence in amendments made by the senate to Bill No. 21, to amend the Canadian National-Canadian Pacific Act, 1933. He said: These amendments are of only minor importance. There are eight of them. The first is a technical correction; the second is a substitution of words; the third, fourth, fifth and sixth make it perfectly clear that no officer or director of the company can obtain more than one salary from the railway, which agrees with the views of the government, and the seventh and eighth provide that the appointment of auditors shall be by resolution of the senate


CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Joint resolution.

Topic:   CANADIAN NATIONAL RAILWAYS
Subtopic:   PROVISION FOR BOARD OF DIRECTORS-CONCURRENCE IN SENATE AMENDMENTS
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LIB

Clarence Decatur Howe (Minister of Marine; Minister of Railways and Canals)

Liberal

Mr. HOWE:

Yes, joint resolution of the

Senate and the House of Commons, instead of by resolution of the House of Commons, as previously.

Motion agreed to; amendments read the second time and concurred in.

Topic:   CANADIAN NATIONAL RAILWAYS
Subtopic:   PROVISION FOR BOARD OF DIRECTORS-CONCURRENCE IN SENATE AMENDMENTS
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COMBINES INVESTIGATION ACT

NON-CONCURRENCE IN SENATE AMENDMENTS


The house proceeded to the consideration of a message from the Senate insisting upon its amendment to Bill No. 97 to amend the Combines Investigation Act,-Mr. Mackenzie King. Combines Investigation Act


LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Right Hon. W. L. MACKENZIE KING (Prime Minister):

Mr. Speaker, the amendments made by the senate to the bill to amend the Combines Investigation Act are set forth at page 528 of the votes and proceedings of this house for yesterday. The purpose of the clause which has been deleted by the senate is merely to place the investigating commission, under the Combines Investigation Act, in the same position in respect to documents produced during an, investigation as that of a royal commission investigating under the Inquiries Act. So far as I know no one has suggested that a person who is required by a royal commission to produce documents is being subjected to proceedings which are contrary to the traditions of British law. Yet the purpose of such royal commission may be, and frequently is, to seek out wrong doing of a type punishable by fine and imprisonment.

Until amendments of last year prevented the effective use of this power equal to that exercised under the Inquiries Act, the Combines Investigation Act contained no provision limiting the use of documents produced in an inquiry at any subsequent trial. To-day documents obtained under the Inquiries Act can be used in a subsequent trial of the person who produced them, but under the Combines Act they cannot be so used.

Section 4 of the Inquiries Act reads as follows:

The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters intt>

which they are appointed to examine.

Under section 11 of the Inquiries Act the commissioners may be authorized to appoint and depute any qualified person to exercise these same powers and otherwise conduct any portion of the inquiry.

There appears to be no good reason why investigations under the Combines Act should be hindered and the act itself rendered practically valueless by this obstacle in its provisions which was placed in the act last year, an obstacle which does not impede investigations under such statute as the Inquiries Act.

In the Natural Products Marketing Act, passed in 1934, Part II gave to the minister, his authorized representatives, and to committees appointed to investigate matters of excessive price spreads, all the powers of a commissioner appointed under the Inquiries Act. Under the marketing act persons receiving or attempting to receive excessive spreads in natural products to the detriment of the public are guilty of an indictable offence.

Yet the marketing act does not provide that a document required, to foe produced in an inquiry shall not be admissible in any subsequent trial of the person who so produced it. Neither do the security frauds prevention acts which are in force in various provinces of the dominion. The Ontario Security Frauds Prevention Act of 1930, section 10, contains provisions on this point as follows with regard to investigations by the attorney general or his authorized representatives "to ascertain whether any fraudulent act, or any offence against this act or the regulations has been, is being, or is about to be committed." I quote:

No person shall be entitled to claim any privilege in respect of any document, record or thing asked for, given or produced on the ground that he might be incriminated or exposed to a penalty or to civil litigation thereby, and no evidence given shall be privileged except under the Evidence Act or the Canada Evidence Act.

Nova Scotia, Quebec, Alberta and British Columbia have passed acts for the prevention of security frauds, which contain identical or similar provisions. Various other acts which inolude provisions authorizing investigations, such as the Ontario Milk Control Act of 1934 and the Quebec Electricity Commission Act of 1935, provide that witnesses may be required to produce documents, but do not limit the use of such documents in any trial.

Under the Tariff Board Act of 1931, the governor in council was authorized, by section 4, subsection 4, to empower the tariff board to hold any inquiry authorized by the Combines Investigation Act and in so doing to exercise all the powers vested in the registrar or commissioners appointed under the combines act. These powers included that of requiring production of documents which could nevertheless be later used at the trial of the person producing them, the same power which remained in the act until it was removed last year.

One reason for this unlimited requirement for the production of documents under these various accounts, including the combines act as it was, is that the person giving evidence and producing documents is doing so in an investigation and not in a court. He is not accused of a crime and is not on trial. If as a result of such investigations any person is later charged with an indictable offence, he is not obliged to give evidence at his trial, and no statement he made in an inquiry under the combines act is admissible against him. His proof of a document produced in an inquiry cannot be used as proof

Combines Investigation Act

of the document in the trial; it would have to be proven by someone other than the accused.

It has been suggested in another place that the commission can issue a search warrant and compel production, that it has all the power that the crown has in any court of law. That is incorrect; the combines act does not give such wide powers to the investigating commission.

Section 24 of the combines act as it was prior to the 1935 amendment did not take away from a defendant in a criminal proceeding any right which he would otherwise have had. What it did do was to guarantee to the member of an alleged combine that any oral evidence which he might be required to give during an investigation could not be. used against him in any subsequent prosecution. It gave to him the same protection as the Canada Evidence Act makes available to a witness in a trial. Under section 5 of the Canada Evidence Act a witness at one trial! may be compelled to answer a question, but the same section provides that his answer cannot be used against him in that or any other criminal trial except for perjury. The exemption is clearly restricted, however, to answers to questions, in other words to oral evidence. In no section of the Canada Evidence Act is it provided that the documents which a witness is required to produce are inadmissible against him in any subsequent proceeding.

In speaking on the amendment to this act a few days ago I read to the house a communication which I had received from Mr. Sedgewiek, chief commissioner of the Dominion Trade and Industry Commission, setting forth the need for the amendment to the act. Mr. Sedgewiek has since read the debate which has taken place on this measure in the other house and has given me his opinion with respect to some of the impressions he gathered from it.

He entirely disagrees with the argument that a person charged with a criminal offence is entitled to protection from documents which he has previously been called upon to produce. He points out, as the court pointed out in a British Columbia fruit combine case, that such a provision would keep from the court documentary evidence which, but for the act, would be admissible.

Mr. Sedgewiek says it has been alleged that if a corporation were involved the secretary or manager of the company could be required to produce the documentary evidence and then, while it would be inadmissible against these individuals, it could be used against the company.

Mr. Sedgewiek says that in his opinion it would be inadmissible against the company, too, if the act remains as it is.

The opinion of the law officers is the same as that of Mr. Sedgwick. I have been given the following opinion by the Justice department with respect to the amendment which is at the moment before us for consideration:

With respect it is suggested that there is a misapprehension on the part of the members of the senate as to the effect and purpose of the amendment to section 24. As the section now stands if a person investigated is required to produce the agreement which is objected to as offending against the act, section 24 renders this agreement thereafter inadmissible in a prosecution of such person. Surely such a document should be admissible against him if properly proved, i.e., by oral evidence other than his own.

The purpose of the amendment is not to render admissible documents otherwise inadmissible, but to provide that admissible documents are not inadmissible.

If the section stands, the best thing that could happen to a person guilty of combining in restraint of trade is to be required on investigation to produce the documents proving the offence. Thereafter he will be immune from conviction by means of the agreement.

I should like to add that if the amendment made ,by the senate is not withdrawn and the clause retained in the bill as introduced in this house, it will be necessary for the government with respect to certain inquiries which it was hoped it might be possible to conduct under the Combines Investigation Act, to proceed by royal commission under the Inquiries Act, and until the clause deleted by the senate is restored, a number of royal commissions may have to issue to conduct the investigations which it was intended should be made as provided for by investigation under the combines act. I therefore move, Mr. Speaker:

That a message he sent to the senate to acquaint their honours that this house disagrees with their amendment to Bill No. 97, an act to amend the Combines Investigation Act, for the following reason:

Because the amendment of their honours would have the effect of exempting documents which are ordered to be produced during an investigation from use in any subsequent criminal proceedings against the person producing them, thereby rendering impossible effective enforcement of the Combines Investigation Act.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   NON-CONCURRENCE IN SENATE AMENDMENTS
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Mr. Speaker, it will be recalled that last year I asked the house, under protest, to accept the amendment made by the senate. It was in the closing days of the session and I disagreed with the view taken by the senate, but in order to close parliament the general sense of an amendment similar to this from the senate was adopted. I disagree with the action taken

National Parks-Mr. Bennett

by the senate now, and I think a conference is highly desirable. I have thought a good deal about the matter and the only explanation I can give-and I say it with deference -is that there is a confusion in terms, and that they have used the word "admissible" in a wrong sense. Suppose I am engaged in an investigation .and during its progress so many documents are produced. The mere production of these documents does not render them admissible when they are tendered in evidence before judge and jury in the trial of a criminal action. I fear that the senate concluded that we were trying to make documents admissible without the reservation of the right to object before a criminal court to the admissibility and the proof of the documents.

I think the language we have used to clear up the difficulty might be that the documents shall not be rendered inadmissible upon proper proof in any trial of a criminal action. Isay that only for those who may have todeal with the matter. I feel quite certain that there is a confusion between "proof" and "admissibility." To prove a document means that you must establish its authenticity to the court that has to deal with its admissibility. The admissibility depends not only upon its proof but upon its relevance. Itdoes not follow in a criminal case that you

can ask the court to accept as admissible every document you produce merely because it was before an investigation, but it is equally true that it should not be precluded from being admitted because it was produced before a commission. The admissibility depends upon proper proof being given before the criminal court. In view of what the Prime Minister (Mr. Mackenzie King) has said, I cannot help thinking there is some slight confusion between the questions of admissibility and proof. What the Minister of Labour (Mr. Rogers) tried to do and what the commons has now done is to say that documents produced on an investigation shall not, by reason of being so produced, be admissible in a criminal case; that is all, and I think if that is made clear there should not be any difficulty in another place in providing appropriate words to make it clear. Upon its being properly established that documents constitute real evidence, they shall be admissible when offered in court.

For instance, to produce a copy of a letter might be quite satisfactory before an investigation, but it would not be competent to use it in a criminal trial unless proof were given as to the loss of the original or other matters of that kind. Documents that are frequently

used on investigations are, in cases where the liberty of the subject is at stake, not admissible because there has not been adequate proof of their authenticity or as to the competence of the documents as real evidence in the inquiry. I support the view taken by the government in this matter. I think I mentioned the matter to the Prime Minister last year. I walked across the floor of the house and spoke to the right hon. gentleman about it. It was close to the end of the session and we accepted the amendment rather than delay matters. However I see no reason why between now and Monday there should not be sufficient time to consider the matter in its legal implications. I feel quite confident that upon investigation and discussion it will be found that the mere fact that a document was produced and used in an investigation has never prevented its being accepted as evidence in a criminal case, provided appropriate proof was given.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   NON-CONCURRENCE IN SENATE AMENDMENTS
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CCF

James Shaver Woodsworth

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

Mr. J. S. WOODSWORTH (Winnipeg North Centre):

We are very glad to support the motion of the Prime Minister. I am heartily in favour of the amendment and if by any chance a conference will facilitate the passage of this measure at this session, I think a conference should be held.

Topic:   COMBINES INVESTIGATION ACT
Subtopic:   NON-CONCURRENCE IN SENATE AMENDMENTS
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June 20, 1936