Mr. S. W. JACOBS (Cartier) moved:

That the petition of Rosalie Annie Arathoon Webster presented on the 11th instant, praying for a bill of divorce from Harold Leslie Webster, together with the report of the clerk of petitions thereon, be referred to the standing committee on standing orders for the purpose of considering the suspension of standing orders 92 and 93(3) (a), (b) and (c) in relation thereto.

Hon. C. H. CAHAN (St. Lawrence-St. George):

Mr. Speaker, the Minister of Justice (Mr. Lapointe) has said that the principle of this 'bill has been accepted by Canada. I think that principle was imposed upon Canada by imperial statute without any reference whatever to the will or opinion of Canada.

Mr. LAPOINTE (Quebec East):

But it applies to Canada.

Mr. CAHAN:

Yes, it applies to Canada, but it was imposed rather than accepted. Although the British North America Act of 1867 purported to declare that the exclusive legislative authority of the parliament of Canada extends to all matters coming within certain classes of subjects mentioned in section 91 of that act, it was nevertheless soon ascertained that the Colonial Laws Validity Act, enacted two years previously by the parliament of the United Kingdom without any reference to the legislatures of Canada or of the maritime provinces, effectively restricted the field of Canadian legislation. Section 2 of that act of 1865-leaving out the unimportant words-* reads:

Any colonial law which is or shall be in any respect repugnant to the provisions of any act of parliament extending to the colony to which such law may relate . . . shall be read subject to such act . . . and shall to the extent of such repugnancy but not otherwise be and remain absolutely void and inoperative.

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Foreign Enlistment-Mr. Cahan

A few years ago I asked for a return from the Department of External Affairs showing the existing statutes of the parliament of the United Kingdom which extend to this dominion. This return was only partly prepared and for that reason was not laid upon the table of the house. From personal research I tabulated scores of such statutes which then and still apply to Canada, although under the act of 1867 they are now within the legislative jurisdiction of the parliament of Canada. The Statute of Westminster, 1931, provides as follows in section 2:

(1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this act by the parliament of a dominion.

That is after 1931.

(2) No law and no provision of any law made after the commencement of this act by the parliament of a dominion shall be void or inoperative on the ground that it i9 repugnant to the law of England, or to the provisions of any existing or future act of parliament of the United Kingdom, or to any order, rule or regulation made under any such act, and the powers of the parliament of a dominion shall include the power to repeal or amend any such act, order, rule or regulation in so far as the same is part of the law of the dominion.

After the enactment in 1931 of the Statute of Westminster this parliament proceeded to revise the Canada Shipping Act. This monumental work was the first step by way of amending or revising imperial statutes which had hitherto restricted the operation of statutes passed by this parliament, and which had also restricted the effective expression in legislation of the will of this parliament. There are certain of these imperial acts which are and always have been assumed to be within the sphere of the parliament of the United Kingdom and with respect to which the parliament of the United Kingdom has assumed exclusive jurisdiction up to the present year. The parliament of the United Kingdom has assumed exclusive jurisdiction to regulate the succession to the throne, the titles of the crown, the royal declarations on accession and the regency in certain cases, as shown by the Demise of the Crown Act, 1901, the Regency Act of 1910 and the Royal and Parliamentary Titles Act, 1927, which concern the whole empire.

I do not intend to refer particularly to these statutes at the present time. I wish only to express for myself and on behalf of the leader of the opposition (Mr. Bennett), who is unavoidably absent, approval of the action of the government in revising the Foreign Enlistment Act, 1870. That English act extends to all the dominions and hitherto

CMr. Cahan. 1

has regulated the conduct of all of His Majesty's subjects during the existence of hostilities between foreign states with which His Majesty has been at peace. Therefore we commend this action, not with particular reference to the special clauses of this bill, but with reference to the purpose and intent of the bill to take additional measures to exercise the rights of nationality and sovereignty which we believe are now inherent in the parliament of Canada. Times have changed and are changing and I think it is necessary that this parliament should

endeavour to express itself with regard to all these matters as an assertion of its sovereignty in all matters which are normally within its jurisdiction.

There are other acts of a like character. There is the Army Act and the Naval Discipline Act of the United Kingdom, both of which extend to the whole empire. All dominion forces serving outside of the dominion are subject to the provisions of the Army Act and the regulations issued thereunder. The parliament of the United Kingdom has also provided for the extradition of accused persons from one part of the empire to another for trial. There is, for instance, the Fugitive Offenders Act, 1881, which provides for the arrest in any dominion of any person who is accused of the commission of an offence in any other of the dominions. We have dealt partially with this matter in the Canadian act, which is chapter 81 of the revised statutes of Canada. I suggest that that act should be extended still further by the assertion by this parliament of its legislative competence to deal with these matters.

Then there is the Admiralty Offences (Colonial) Act, 1849, which conferred on dominion or colonial courts the power to deal with crimes committed in the territorial waters of the dominion or colony. The Territorial Waters Jurisdiction Act of 1878 makes provision with respect to offences committed by foreigners on foreign ships within the territorial waters of any dominion. The Naval Prize Act, 1864, and the Prize Court Act, 1894, provide for the constitution of prize courts in British dominions, colonies and possessions. The Slave Trade Act, 1873, for the suppression of the slave trade, extends to the whole empire and confers jurisdiction upon the vice-admiralty courts of the dominion.

There are other classes of cases which have the same special application to Canada and which restrict to a certain extent the legislative jurisdiction of the parliament of Canada. Such are the International Copyright Act, 1886, and the Geneva Convention Act,

Foreign Enlistment-Mr. Cahan

1911. A large number of these acts, which were passed by the parliament of the United Kingdom and with respect to which Canada has had up to the present no legislative jurisdiction by way of repeal or amendment, are not generally known. In the course of my professional practice I have had on one or two occasions to quote one or more of these acts of the parliament of the United Kingdom which are in force in this country, and I was astonished to find that the judges presiding in the courts had no idea that any such acts were in existence extending to and applicable to Canada.

Now that parliament has commenced the consideration of acts of the parliament of the United Kingdom which extend to and are applicable to Canada, I suggest that the Department of External Affairs or the Department of Justice or both should proceed at once to make a complete survey of all such acts and determine which should be retained either in their present or in an amended form. If they are not amended and thereby included in the statutes of Canada they should be repealed by act of the parliament of Canada. Those not repealed should then be compiled and published in a special volume for ready reference, so that all concerned with the administration of the law may be fully informed as to what the law is. I suggest with deference that in a number of our courts, both in Quebec and other provinces, the judges are not fully aware of the extent to which the laws of the parliament of the United Kingdom apply to Canada and are to be enforced by our courts, both in civil and in criminal matters. I suggest also that if this work is too onerous and too extensive for the Department of External Affairs- which has one or two officials whom I know to be thoroughly competent for work of this kind-and if the Department of Justice has so much work in hand that its officials cannot devote the time necessary to a compilation of these enactments and to the preparation of amending statutes, it would be proper for the Department of Justice to employ some competent lawyer-I would not object if he were of the Liberal faith and persuasion so long as he is capable-to make a compilation of these laws and place them before parliament in a way in which they can be effectively dealt with. In an address I made to this house some time about 1928, dealing with this matter, I stated, if I remember correctly, that I had found over a hundred statutes of the United Kingdom which dealt with matters of this kind.

Mr. LAPOINTE (Quebec East):

I have a list of about one hundred and fifty.

Mr. CAHAN:

Well, I remember that in the former discussion I said one hundred and fifteen, and my leader at the time remarked that on the previous occasion I had referred to the number as being about one hundred and fifty; but on this occasion, not having had the opportunity of reviewing the list, I referred to the smaller figure. I have no doubt that the number is over a hundred.

Mr. LAPOINTE (Quebec East):

Of course many of them are the same measures, revised. For instance, there are many laws on the slave trade.

Mr. CAHAN:

Quite so. The original act as amended is still in force. I suggest, therefore, very earnestly, that this matter be taken up. In expressing this opinion I think I may say that the leader of the opposition (Mr. Bennett)-

Mr. LAPOINTE (Quebec East):

It is a good suggestion.

Mr. CAHAN:

-is entirely in favour of the suggestion which I have made. In my opinion this parliament should again and again, at every opportunity, assert its sovereignty in regard to matters affecting the peace, order and good government of Canada which are within its legislative jurisdiction. We have emerged from the colonial status, whether the judicial committee of the privy council recognize the fact or not; and, when they decline to recognize it, it is absolutely necessary in the present temper of this country that they be brought to a condition of mind in which they cannot avoid cognizance of certain fundamental facts. One way of doing that is to proceed as I have suggested, although there are cumulative remedies which on an appropriate occasion I shall take pleasure in expounding in this house from my point of view. I have simply to say that I approve the principle of this bill.

There is one matter which I might mention now, and which I think will require further consideration. This bill is a criminal statute. It provides penalties for certain crimes. It also proceeds to deal with nationals of Canada who commit these breaches of the law. To mention that fact is to revert to a consideration which I have very much at heart, and that is the necessity and the advisability of an amendment and consolidation of the laws of Canada relating to Canadian nationality. In the consideration of the provisions of the treaty of peace at Versailles dealing with reparations and other matters I was brought face to face, week after week and month after month, with the fact that this parliament has never clearly expressed tne meaning of Canadian nationality nor decided

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Foreign Enlistment

Mr. Cahan

the qualities which apply to a Canadian national. Following up some work which had been done under the present prime minister before I came into office in 1930-he procured a professor of the law department of the university of Toronto to prepare a report in connection therewith-I attempted the preparation of a bill on Canadian nationality and submitted it to this house. But I was unable to proceed with the matter, for the reason that, while the permanent officials of the various departments of government are intelligent and of ripe experience in the administration of their departments, their minds are very obtuse indeed to the reception of new ideas which concern general public policy in matters only incidentally affecting their departments. I ran up against barriers which I could not overcome, and I was unable to accomplish what I had sought, the enactment of a comprehensive measure setting forth the qualifications of a Canadian national and the definition in express terms of Canadian nationality. I repeat that sometimes I fear we have more of the colonial spirit of inferiority than even our fathers and grandfathers had, and certainly the time has come in the history of this dominion when, if we seek to ascertain who are Canadians and who are Canadian nationals, we should be able to find it in some substantive enactment outside of the immigration act, the real purpose and intent of which is to exclude certain classes of people from obtaining domicile in Canada. Why we should be compelled to look to that act for a definition of who are Canadians, who are Canadian nationals, I cannot understand. I think it is a discreditable condition in which we find ourselves to-day. Canada has taken an important part in international affairs. Under -the imperial conference resolutions of 1923 and 1926, and again at the imperial conference of 1930, we assumed a large part in the administration of external affairs relating to Canada. But we are now met by that same old imperial spirit, as expressed by certain members of His Majesty's Privy Council of England, who cannot understand that men of English descent and men of French descent whose forbears have been living in Canada for a century and more, and who are Canadians to the backbone, are not of the same inferior mental complex as all colonials were deemed to be a century and a half ago. The sooner we assert the sovereignty of Canada in all matters with which this parliament is competent to deal, the better I think it will be for this country -far better for the development of that national sentiment in Canada, which is absolutely necessary if we are to maintain cohesion

among the various races and creeds and all sections of the dominion.

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

With respect to a bill of this importance there seems to be no good reason why there should not be a full discussion on second reading. I regret that the government has introduced the measure at this time. At least in its present form, it may easily involve us in those European entanglements which ostensibly it seeks to avoid. Personally I am in favour of neutrality, but that neutrality must be thoroughgoing.

It seems to me that this bill has not been drawn with any great care. I do not know whether the Minister of Justice (Mr. Lapointe) is responsible for it: I am not reflecting upon him.

Mr. LAPOINTE (Quebec East):

We cannot please the hon. gentleman.

Mr. WOODSWORTH:

We are told that the Foreign Enlistment Act passed by the parliament of the United Kingdom in 1870 extends to Canada. I submit that the government might have done one of three things. They might simply have repealed that act as far as it extends to Canada; or they might have reenacted it just as it stood, as applying to Canada; or they might have improved upon it. In my opinion the bill as drawn is no improvement upon the British act; rather in addition to the principle underlying the British act it introduces one or two other principles that make it quite involved.

We are in favour of what I think is the principle of the bill, at least the principle of the British act, that is, to prohibit military assistance to the enemies of a friendly state. The explanatory note to section 3, which I take it indicates the principle of the bill, reads:

This section makes it unlawful for a Canadian national to enlist anywhere, or for any person within Canada to induce any other person to enlist in the case of a foreign war, for service against a friendly state.

This undoubtedly involves control over our own nationals, and though we have not had many occasions on which to assert that control, I suggest that on the whole we must concede that at any rate, when the actions of Canadian nationals may involve us in international complications, the state must take control, or assume some power over their actions. The bill provides-I am inclined to think this is the original bill

for certain permits. Let me read section 3:

If any person, without a permit, being a Canadian national, within or without Canada, accepts or agrees to accept any commission or

Foreign Enlistment-Mr. Woodsworth

engagement in the armed forces of any foreign state at war with any friendly foreign state, or, whether a Canadian national or not, within Canada, induces any other person to accept or agree to accept any commission or engagement in any such armed forces, such persons shall be guilty of an offence under this act.

This idea of permits is carried into the other sections as well. By this provision for permits I suggest that the government is given power virtually to nullify the purpose of the bill by allowing the very things which it is intended to prohibit. It must be noted that the bill itself makes no reference whatever to the conditions under which such permits may be issued.

Mr. LAPOINTE (Quebec East):

Does not my hon. friend think that that question should be discussed in committee? To show him how much better it would be to leave to the committee stage the discussion of such points I may tell him that certain things will be omitted from the bill.

Mr. WOODSWORTH:

I want to discuss

the principle of the bill as briefly as possible.

Mr. LAPOINTE (Quebec East):

That is

not the principle.