Mr. Fleming:

Bloody, you mean; bloody remarks.

Mr. Deputy Speaker:

Order.

Mr. Garson:

They were bloody after my hon. friend got through with them.

Mr. Fleming:

Your remarks were.

Mr. Deputy Speaker:

Order.

Mr. Knowles:

Be gentlemen, now.

Mr. Garson:

The context of my remarks was this. I said that the sponsor of a bill coming before this house, whether a government or a private meiflber, had a respon-

1988 HOUSE OF

Agricultural Products Act sibility to see that the procedure which was being followed and the material which was being submitted was in accordance with the decisions of the courts of law, which means, to see that the bill being submitted is constitutional before it comes in here, in so far as the law officers of the government or the private member sponsoring it can discover; and having thus submitted the bill to the house, I said that he could be taken to have discharged his responsibility for sponsoring that bill. Then I went on to say that if the members of the house-that is, the ones to whom the bill is presented for consideration -acting in good faith and on the basis of their legal ideas-and I cited as an example the hon. member for Eglinton (Mr. Fleming) and the hon. member for Lake Centre (Mr. Diefenbaker) in, as I believe, their incorrect legal ideas-want to oppose it upon constitutional grounds or support it upon constitutional grounds, that is their proper function as members of the house. In other words,

I said that the man or the government who introduces the bill should, before the bill is introduced, see that it is in accordance with the decisions of the courts, and that the members of the house who receive it and consider it should address themselves also to that point. But after such consideration and after such sponsoring, once the bill has become law, then it is only the courts and no other body but the courts that can have the last word as to whether that law is constitutional or not.

Now, the real point to this matter is this: It is perfectly apparent that my hon. friends for political reasons, which no doubt seem to them to be quite well warranted, would like to tag this government with invasion of provincial rights, in order to support their political campaigns in certain' provinces of this country. That being so, it suits their purpose also to attribute to this government under our constitution powers which only courts of law in this country possess. Because it is the courts of law in Canada which determine whether any law that we pass here in the last analysis is within our powers, or beyond our powers. And under our constitution, as the hon. member for Eglinton (Mr. Fleming) and the leader of the opposition (Mr. Drew) well know, no government upon matters of large issues like this, where the question of an impecunious litigant does not come into the picture at all-no government, no legislature can usurp powers; for the good reason that, if it attempts to do so, its action which results will be declared unconstitutional by the courts.

And my hon. friend from Eglinton, in one of the few accurate statements in his last effort tonight, is correct when he says that it

TMr. Gars on.]

is for the courts to protect the rights of Canadian citizens. I agree entirely with him in that. But what I object to is that he will not recognize any of the implications of that statement.

If it be correct that we do have courts to declare whether a law is constitutional or unconstitutional, then the immediate implication of that remark is that it is impossible for a provincial legislature, or for this parliament, or for a provincial executive, or for the governor in council acting pursuant to an act of this parliament, in any way to exceed its power. Because either the law of the legislature or the act of the executive will be declared by the courts to be unconstitutional; and it is only by the courts that it can be so declared.

Mr. Hackett:

Would the minister permit a question?

Mr. Garson:

Yes.

Mr. Hackett:

Does the hon. gentleman argue that the jurisdiction of the courts limits or restricts the duties of an official opposition?

Mr. Garson:

Not at all. And, Mr. Speaker, I am very glad the hon. member raised that point-very glad indeed. Of course it is the function, as I made very clear in my remarks today-and I leave it to any member at this time to say whether I did or did not do so- I made it very clear that the man or the government who brought a bill into parliament was under the obligation to examine the law, as the law officers of this government have done before any of these bills we have introduced were brought in.

It was his duty to examine the law. I also said-indeed I spelled it out so there would be no possibility of my hon. friend from Eglinton (Mr. Fleming) misunderstanding it -that it was the duty of the members of this House of Commons to vote according to their views upon any of the constitutional issues that were involved. I agree entirely with the implications of the interjections made by the hon. member for Stanstead (Mr. Hackett), that certainly it is the duty of the official opposition, or of any other opposition, to raise questions as to the constitutionality of these laws.

But all that I say is that, agreeing with all these points-and in many respects paying my meed of respect to the argument put forward by the official opposition, I do not believe that they should associate with these arguments the suggestion that the government can in any official or binding way formulate any emergent theory which will hold water. Because the truth is that no matter what theory the government has with regard to the emergency theory, or any other basis

for constitutionality, it is not the government under our constitution, it is the courts that have the ultimate disposition of the question.

Mr. George A. Drew (Leader of the Opposition):

Mr. Speaker, the Minister of Justice (Mr. Garson) has completely missed the point. It is not the government that has the responsibility; it is not the courts that determine the rights of the government; it is parliament. And what the Minister of Justice is doing now is to indicate a point of view of this government, and to display an attitude of the government which is that it is the government which deals with the matter, without letting parliament accept its responsibility.

All the way through the speech of the Minister of Justice the reference was to what the government can do. What was being put forward in this house by men with quite as much experience in constitutional matters, and a great deal more than the Minister of Justice has, was the proposition-

Mr. Garson:

Mr. Speaker-

Mr. Drew:

I am on my feet-was the proposition that parliament is making a finding of fact whenever it brings about a vote in regard to the existence of an emergency. And the Minister of Justice is aware that the leading cases on this subject, particularly the case of Fort Frances Pulp and Paper Co. versus Manitoba Free Press, make it clear that parliament does accept a responsibility; and that decision is regarded by the courts as a finding of fact which they will disturb only upon the very strongest possible evidence of a complete disregard of every other consideration. That is a declaration that was followed in the case decided only three weeks ago in Manitoba, by unanimous decision of the supreme court of that province, on appeal.

The Minister of Justice is trying to create the impression that the courts have the whole responsibility. The courts have the responsibility of seeing whether or not there has been a complete disregard of all the considerations that should guide parliament in making its decision, or the government in acting by order in council under any law that has been passed.

But the cases leave no parliament the responsibility of determining whether there is in fact an emergency, or whether there is not an emergency. And when the Minister of Justice seeks to convey the impression that the arguments that are being put forward are being put forward for political purposes, he invites comment upon the statements he has been making outside of this house for some time in regard to dominion-provincial relations, and the statements he has been making for political purposes com-28087-1261

Agricultural Products Act pletely misrepresenting the nature of the discussions which did take place at the time the governments of this country met to try to find a solution of their constitutional difficulties.

According to him, anyone who seeks to stand by the constitution as it has been clearly defined for years is trying to prevent advantages being gained by a particular province. And if any man in this house has sought to misinterpret and has sought to convey impressions as to the actions of particular provinces, that man is the Minister of Justice himself, in his interpretations of what has already taken place.

We are discussing this upon the straight basis of the constitution itself, and the kind of emergency which permits parliament- not the government-to make a decision under the broad reference to peace, order and good government.

Throughout all the years since confederation it has been perfectly clear-and the judgments are clear in this respect-that only an emergency in the nature of war, or a major national threat of that kind, is an emergency which justifies the abandonment of the ordinary division of power and authority as between the dominion and provincial governments, and permits the dominion government to go into what is strictly a provincial field, through resort to the broad provision in the general clause of section 91 of the British North America Act.

Today the Minister of Agriculture (Mr. Gardiner), in a perfectly fair interpretation of the problems that are before him in relation to certain contracts, indicated what he conceived to be the kind of emergency which would justify the government acting in this case. He pictured the difficulties with which the people of Britain are confronted at this time and the need for this country, through its government and parliament, to take such steps as might be necessary to meet their requirements under the contracts which have been made under this act.

But the point which was made and the point which should be borne in mind is that an emergency outside of Canada, no matter how much every hon. member of this house may feel that such an emergency should be dealt with by us in every way that we can, is not an emergency such as permits the parliament of Canada to declare that it abandons its ordinary constitutional position. There are ways of dealing with that problem. The way to deal with that problem is by joint action of the different governments who between them have the full authority.

No one here seeks to put anything in the way of a fulfilment of the contracts which will supply the necessary food to the people

Agricultural Products Act of Britain. It is not only Britain that is benefiting. As far as this country is concerned, our farmers are benefiting under the sale of these commodities to Britain at this time. It is something that affects both those who are selling and those who are buying. But no matter how desirable we may think any particular object is, that is no excuse for this house or for the parliament of Canada at any time taking shortcuts which evade the proper division of authority within the constitution itself.

Mr. Gardiner:

May I suggest that the leader of the opposition is really missing the point of my argument, I presume inadvertently. The point of my argument was that the emergency had its beginnings in the conditions that existed during the war, that there is a continuing emergency in which at least the greater part of the population of Canada is concerned. On the one side, they are concerned because we assumed obligations toward them and, on the other side, they are concerned because certain sections of the population, through the government, assumed obligations on behalf of other sections. We think that in order to carry out those obligations we must have these powers.

Mr. Drew:

I recognize that the Minister of Agriculture is greatly concerned about the need of fulfilling these contracts, and their importance to the farmers of this country. But the importance of these contracts to the farmers of this country and the importance of the fulfilment of these contracts to the people of Britain is not an emergency of the kind that is interpreted by the courts as justifying the declaration of a general emergency such as is indicated in the preamble of the act itself.

After all, the point that has been put forward in the discussions that have taken place is that, no matter how desirable the object may be, the members of this house cannot disregard the preamble of the act and the basis which the act puts forward as the reason for the adoption of these extremely wide powers, which go far beyond the contracts with Britain that are now in operation. As has already been pointed out by another hon. member, if the desirability of finding a means of carrying out the contracts is in itself a justification for the abandonment of the ordinary constitutional division of authority, there would hardly be a year in the life

of this country when it would not have been possible to say for the same reason that the constitution could be disregarded and that this house could pass an appropriate measure to deal with the subject.

The reason that this is a strange argument coming from the government is that the strongest arguments that have been made against the theory being advocated today by the government in support of this measure were put forward by the right hon. member for Glengarry (Mr. Mackenzie King) as early as 1932 when the house was dealing with another measure which sought to base its validity upon a reference to peace, order and good government.

On that occasion there was certainly something that appeared in itself to be much more of an emergency than the matter now before the house. It is not necessary to recall that the measures then being put forward were related to the disastrous situation that existed in the country. As a result of the economic crisis that had come at that time, scores of thousands of men across the country were in desperate plight. On the basis of that emergency the government of that day attempted to introduce measures which would deal with the situation. The right hon. member for Glengarry pointed out that, serious though the situation might be in itself, the House of Commons and parliament must not claim that an emergency of that kind was one which permitted the abandonment of the divisions of authority as laid down in our constitution.

On motion of Mr. Drew the debate was adjourned.

Mr. Maclnnis:

May we have the business for tomorrow?

Mr. Fournier (Hull):

We hope to conclude this debate tomorrow afternoon. The house will have to sit tomorrow night for the sanction of these bills after they go to the Senate. We would then take up items Nos. 6, 7, 8 and 9 on the order paper, which are four noncontentious bills.

At ten-thirty the house adjourned, without question put, pursuant to the order of the house passed on March 14, 1949.

Friday, March 25, 1949