The Deputy Chairman:

At the adjournment the committee was considering an amendment by the hon. member for Kamloops to section 3.

Mr. Fleming:

Mr. Chairman, I have only one or two observations to make, and I make them in reply to the observations uttered this afternoon by the Minister of Justice.

I wish to take up first of all his assertion that those who had any part in supporting this amendment were prompted by a lack of confidence in the Supreme Court of Canada. I reject his assertion in its entirety. I would tell him, if I may, that by introducing red herrings of that kind I do not think he contributes anything constructive to the debate.

I should think he would appreciate that what is involved here is a point so important as to have commanded not only the attention of but also a resolution from the Canadian Bar Association. If the minister is correct in his statement, that those who introduced and supported the amendment now before the committee were prompted in doing so by a lack of confidence in the Supreme Court of Canada, then he must say the same thing about every member of the Canadian Bar Association, from the president down, including judges who in large numbers are members of that body, and who took precisely the same position as that embodied in the amendment before the committee tonight.

If he is consistent in making a pathetic assertion of that kind, it means also that every time a body such as parliament undertakes to change a law, as it has been interpreted by the courts, parliament is expressing a want of confidence in the courts. It is utter nonsense to make an assertion of that kind in the House of Commons-utter nonsense.

It means, too, that legislatures of the provinces are expressing a want of confidence in the courts when they introduce measures which are to be found in every province throughout Canada in the form of declaratory acts. Every time a new court is set up there has to be some definition of the law to be applied, and we know perfectly well that when the superior courts of all the provinces were set up declaratory acts were passed to define the body of law which those provincial courts should apply.

If the minister is right, then every time a provincial legislature enacted a law of that

kind it was expressing want of confidence in the courts of the province. To state a proposition in that form is to expose its utter absurdity. All I have to say, in conclusion, concerning that example of empty demagoguery which was offered to the House of Commons this afternoon by the Minister of Justice, is to say that it is utterly absurd.

I want to deal with something that has some substance because I gather from the questions that have been asked by some hon. members that there is some difficulty about it. I refer to how far we may go in assuming that the principle of stare decisis will be acknowledged by the Supreme Court of Canada with respect to past decisions of the privy council unless some such legislation as is proposed by the present amendment is introduced into this bill. The hon. member for Yorkton asked a question this afternoon somewhat to this effect: If the Supreme Court of Canada gave effect to the principle of stare decisis with respect to past decisions of the privy council, what would be the need of this amendment? I point out to the hon. member that if we proceed on that basis we are assuming that the Supreme Court of Canada will apply the principle of stare decisis to past decisions of the privy council. I do not think we are entitled in a matter of such vast importance, not only for the established jurisprudence of this country but for the preservation of the rights of the provinces, to make that assumption.

When we are taking the far-reaching step involved in section 3 of this bill of giving the Supreme Court of Canada final and exclusive jurisdiction in connection with all litigation in Canada, we are not entitled to leave a matter of such importance in the realm of uncertainty. That is why it is incumbent upon this parliament in enacting this measure to see that safeguards which are absolutely vital and which may yet prove to be highly essential are provided.

The minister treated the matter as being rather a simple one in this regard. Having in mind the long course of litigation in the courts of this country and in the privy council on constitutional questions which seemed to many people at one time or another to have presented simple issues, I think any man would be displaying a great deal of temerity to say that any question concerning the respective fields of jurisdiction in this country and the method of determining such disputes can be regarded as a simple one. It certainly never has been in the past.

Finally, as to whether this amendment is necessary: This parliament has frequently enacted legislation when it was thought that the law was established in the same way as the measure before the house is being

enacted to settle the law, but parliament at times was not prepared to take any chance as to the interpretation that the courts would put upon a situation. The legislatures of the provinces have done the same thing times without number. We have in mind instances where enactments have been passed, either by this parliament or by the legislatures, out of what we call in the courts an abundance of caution, just to be perfectly sure that nothing is being left to the doubtful outcome of litigation in the courts. Whatever may be the view of the majority in this chamber today, we have no right to assume in a matter of such vast and momentous importance to this country that this principle will be applied by the Supreme Court of Canada with respect to past decisions of the privy council after this measure has been enacted. Let us not leave it in the realm of doubt. We have it in our power to dispel any doubt, to put this matter beyond all possibility of challenge in the courts. Let us do so.

There is one subject that the minister has raised by way of challenge of the point that I have just made. He questions whether it is within the legislative competence of parliament to enact a measure of this kind because he says it is going to create substantive law and the power of parliament with respect to the Supreme Court of Canada does not extend to substantive law. That is an extraordinary proposition for anyone wearing the mantle of the Minister of Justice to offer in this chamber. Parliament is enacting substantive law all the time, law which is bound to come before the Supreme Court of Canada.

My submission is that this amendment does not go beyond the legislative competence of parliament. If there is any field where parliament might say to the Supreme Court of Canada that it shall be bound by the decisions of the privy council hitherto rendered, then certainly parliament within its own field of legislative competence is entitled to say that. If there is anything at all in the argument of the Minister of Justice in that respect it would mean that parliament in connection with those matters concerning which it possesses legislative competence is entitled to say what is said in this amendment to the Supreme Court of Canada. It would mean also that the legislatures of the provinces could say the same thing to the Supreme Court of Canada in connection with questions with regard to those subject matters that are confided by the British North America Act to the legislative jurisdiction of the provinces.

With respect to that point my submission to this house, and I think it is a fair one, is that so far as the legislative competence of this parliament extends, that is to say

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with regard to all those subject matters that are confided by the constitution of this country to parliament, as distinct from the legislatures of the provinces on the other hand, this measure is clearly within the legislative competence of this parliament.

I ask the house to consider the importance of this subject. If it is within our power to enact this measure, then surely it is within our power to say what the Supreme Court of Canada shall do with respect to applying the principle of stare decisis to that body of law laid down by the privy council.

Do not take my word for it. Apparently there is a difference of opinion among hon. members as to the necessity for it. In a situation of this kind, should we not have regard for the opinion expressed on this subject by the Canadian Bar Association? Should we not have regard for the statement by the president of the Canadian Bar Association which I read in the chamber this afternoon? That statement deals specifically with this very subject and was issued by him after the bill had been given second reading and this question had been raised in the house. There you have a clear expression of feeling by the Canadian Bar Association, which as I have said embraces judges as well as lawyers, that an amendment of this kind is needful and necessary and is within the legislative competence of parliament.

Mr. St. Laurent:

Mr. Chairman, I should like to associate myself with the Minister of Justice in the opinion that the adoption of this amendment would be an expression of lack of confidence in the supreme court and share the opprobrium that flows from the strong language used by the hon. member for Eglinton. My reason for saying so may appear to him to be demagogic, but I shall submit it as briefly as I can for the consideration of hon. members.

I think he and I agree that the rule of stare decisis would make it the duty of the supreme court to follow the decisions that have hitherto been rendered and have become the law of this country. The judges of the supreme court have pledged their oaths to apply the law. If we are to express doubt that they will do so, we express a lack of confidence in their respect for their oaths. That seems to me to be elementary. If it deserves the strong language the hon. member for Eglinton used a few moments ago, I wish to share the opprobrium with the Minister of Justice.

The second point I should like to make is with respect to this resolution of the Canadian Bar Association. The hon. member has stated and repeated, in spite of the fact that I read the terms of the resolution, that it

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does mean a request by the Canadian Bar Association to have that kind of amendment written into the bill. If that is so, then why did they pass a resolution-

Mr. Fulton:

In the light of the later statement.

Mr. St. Laurent:

In the light of the later statement by the president of the Canadian Bar Association? I submit with all respect that no one man, whatever be the position he occupies in the Canadian Bar Association, and I have occupied the office of president of that association-in my day-has the right to enlarge or modify the terms of the resolution adopted by that association. The argument of the hon. member is that because the resolution can have no other effect it must mean that the Canadian Bar Association wished it to be written into the bill. That is the best reason in the world for not putting this kind of amendment in the bill, because it is quite unnecessary, and there might be some honourable judges who, like the hon. member for Eglinton, would say: Parliament cannot have put that provision in there for no purpose whatever; let us find some use to which it can be put. That is what the hon. member does with the resolution of the Canadian Bar Association, and I think that is a most conclusive reason for not writing unnecessary provisions into statutes.

Mr. Pouliot:

Listen to that.

Mr. St. Laurent:

The third point has to do with the constitutional rights of this parliament to enact, on matters which normally are not within its jurisdiction, what would amount to substantive law. If this parliament has the right to say, otherwise than because it is the existing law, that the court shall do such and so, it would have a similar right to say that the court shall not do such and so; and to lay down a rule that the court would not be bound by the application of the stare decisis principle would be, I submit, something beyond the powers of this parliament.

If we have the right to deal with a subject matter we have the jurisdiction to deal with it as we see fit. If we see fit to say that stare decisis should apply, then it would be within our jurisdiction to say that it shall not apply, and in doing so we would certainly be attempting to enact substantive legislation in fields that might well be outside the jurisdiction of this parliament. I know that is not the position taken by the hon. member. He says that the rule of stare decisis is already a part of the law, and that by putting it in the bill we do not enact anything new. If we do not enact anything new then I submit it has no place in the bill, and that we should not

write provisions into the bill, along the lines of the resolution of the Canadian Bar Association, that will have no effect whatsoever but be merely an empty affirmation of something which is quite as valid without it.

Mr. Browne (St. John's West):

Mr. Chairman, I rise with great hesitation because what I am going to say is somewhat in opposition to what has been said by the Prime Minister. I have before me the eloquent speech which he made on the 23rd of September, and in which he was dealing with the question of stare decisis, I think in terms a little less careful than those in which he dealt with it this evening. May I be permitted to read what he said. He quoted the decision of the Canadian Bar Association that the rule of stare decisis ought to continue to be applied with respect to past decisions of the court, as well as with respect to past decisions of the judicial committee. I should now like to quote what the Prime Minister said, which is to be found at page 197 of Hansard of September 23, 1949, and reads as follows:

That is something with which I entirely agree.

Mr. Si. Laurent:

Yes.

Mr. Browne (Si. John's West):

He went on to elaborate and to say:

I think it is a part of the system of the administration of justice in British countries that the decisions are regarded as binding upon themselves and upon all courts of lower jurisdiction, until they are modified or set aside by legislative action. I think that forms part of the duties which a lawyer promoted to the bench promises on his oath to carry out.

Then he went on to say, as he said this evening, that he would not reflect upon the men who were appointed to the supreme court bench by suggesting for a moment that they would not carry out the duties of their oath of office. No one here is reflecting upon the ability and the integrity of the judges appointed to the Supreme Court of Canada, but what really incited us to put forward the amendment was the statement, which was quoted in the Ottawa Journal of June 2, of no less a person than the Chief Justice of the Supreme Court of Canada.

Will the hon. member permit a question? Was he here when I explained that situation this afternoon?

Mr. Browne (Si. John's Wesi):

Yes, I was present and I listened very carefully to what the Prime Minister said. I studied as much as I could about the decision because I greatly regretted, when I heard of the case in which the chief justice was reported as having made that extraordinary statement, that I could not find the case. I hunted through the library of parliament and it is not available. There is a report of the

Quebec case in the constituency of Beauce, the Independent member for which is present, and I found a picture of the Prime Minister eating ice cream at that place.

Mr. St. Laurent:

In the law books? I should like to have the reference to that interesting volume of the law reports.

Mr. Browne (St. John's West):

It is not in

the law books, but it happened that on the 2nd of June, when this pronouncement was made by the chief justice of the supreme court, the Prime Minister was campaigning in the place where the defendant, who was appealing to the Supreme Court of Canada, had been originally arrested and tried. It was in the course of my investigation that I came across interesting things that were said during the campaign in Quebec, some of which would not bear repetition in the house.

This afternoon, when the Prime Minister was giving an explanation of the statement of the chief justice he said that he had had an interview with the chief justice. Of course nobody can question what the chief justice said because there is no report except a newspaper report. There is no official report at the present time, and I doubt if there is any official report to come. The Prime Minister referred to the case in re Storgoff. I took the trouble to go and look it up. I am sure that the Prime Minister did not have the time to read it because it takes about 75 pages of the Supreme Court Reports. I have not had time to read it all, but I have looked up page 538 where, as the Prime Minister said, the chief justice gave a pronouncement four years previously in similar language to that which he used in the more recent case. Incidentally, I might say the Storgoff case was that of a person who was arrested for appearing nude in public in British Columbia. He was convicted on summary conviction and sentenced to three years' imprisonment. Somebody applied to Judge Coady for habeas corpus, and the prisoner was released from jail. The attorney general appealed against that decision to the Supreme Court of British Columbia and the prisoner was rearrested. Then an appeal was taken to the Supreme Court of Canada, and I believe the decision was that he could not be rearrested. That is what it was about.

Before I read the extract from the judgment to which the Prime Minister referred I should like to say for the benefit of those who are not lawyers, and who may be listening to me, that the privy council at the present time is the highest court of appeal in the British commonwealth, and its decisions are binding upon judges of Canada in civil matters but not in criminal matters,

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because that was removed from its jurisdiction some years ago, as this judgment says. That is the point; they are not binding in criminal matters. Here is what Chief Justice Rinfret said in this case in re Storgoff, in 1945:

Moreover, the question now before our court may not be discussed from the viewpoint of the English constitutional law. In this country we have to apply the British North America Act and the Criminal Code, two statutes which, of course, do not apply in England and do not call for interpretation and application in the English courts. In addition to that, the Supreme Court of Canada is now the court of last resort in criminal matters; and although, of course, former decisions of the privy council-

This is what the right hon. gentleman read this afternoon.

-or decisions of the House of Lords, in criminal causes or matters, are entitled to the greatest weight, it can no longer be said, as was affirmed by Viscount Dunedin, delivering the judgment of their lordships in Robins v. National Trust Company Limited at page 519, that the House of Lords, being-*

"the supreme tribunal to settle English law . . .

the colonial court, which is bound by English law,

is bound to follow it."

It can no longer be said that the Supreme Court of Canada is bound to follow a decision of the House of Lords.

Mr. Lesage:

It never has been.

Mr. Browne (St. John's West):

If therefore it could be said in 1945 that after the abolition of criminal appeals to the privy council the Supreme Court of Canada was not bound to follow decisions of the House of Lords, it may still be said that it is not bound to follow decisions of the privy council.

Mr. Cannon:

If I may ask my hon. friend a question, has he looked up the difference between the House of Lords and the privy council?