Mr. Stanley Knowles (Winnipeg North Centre):

Mr. Speaker, I should like to direct a question to the Minister of National Health and Welfare, based on a press item which I need not read. Is the government considering the setting up of a special committee, similar to last year's committee on old age security, to study and report upon a program of national health insurance?

Hon. Paul Martin (Minister of National Health and Welfare):

I answered that question earlier this session. The answer is no.

Hon. J. J. McCann (Minister of National Revenue) moved

the third reading of Bill No. 198, to amend the Customs Act.

Mr. Speaker:

Is it the pleasure of the

house to adopt the motion?

On division.

Motion agreed to on division and bill read the third time and passed.

Mr. Diefenbaker:

Last evening the

minister spoke of the subject being placed in a position of equality with the crown. Any action the individual may desire to take against the crown must be taken in the exchequer court. The crown, however, may take proceedings in any court of competent jurisdiction of any province. When the crown chooses to take proceedings in a court set up within a province-the court of king's bench, the supreme court, trial division, or the county court-the subject may raise matters in defence as against the crown but is denied the right to counter-claim. That places the subject in an impossible position,

and I suggest for the consideration of the minister that a change is due in that respect. Where the crown chooses to accept the jurisdiction of a court other than the exchequer court and commences its action there, the citizen should not be placed in such a position that a counter-claim may not be presented in that court. This is a matter which might well be considered by the law officers of the crown.

Mr. Garson:

I do not think my hon.

friend quoted my remarks accurately, so perhaps for the record I had better repeat what I said as reported at page 3479 of Hansard:

The purpose of this legislation is to place the crown in right of Canada in petition of right proceedings in the exchequer court in substantially the same position as an ordinary litigant.

That is what this bill does. My hon. friend raises a question which I think he will admit is quite different from that which is involved in this bill, namely, that in those infrequent cases in which the crown chooses another court in which to sue the subject, consideration should be given to enabling the litigant against whom such suit is taken in that other court to raise such defences or offsets as are available to him in the exchequer court. I have no hesitation in saying that we should be very glad to give my hon. friend's suggestion due consideration, but it is hardly relevant to the bill before the committee.

Mr. Diefenbaker:

On the narrow ground of relevancy to the matter in issue here, I am not in disagreement with the minister. But when so much ado is made about the position of a citizen in his relation in litigation-

Mr. Garson:

In the exchequer court.

Mr. Diefenbaker:

-in the exchequer court, yes; but most laymen would not get the distinction that lawyers would make in the use of the words "the exchequer court". I know of one or more cases in which the defendant has been unable properly to defend himself in the court chosen as the forum by the crown, by reason of the fact he was unable to make a counter-claim.

Let me refer again to the matter I mentioned last evening. Under this legislation, parliament is actually divesting the crown of one of its most ancient prerogatives without having secured the consent of the crown to the legislation. I mentioned that because, after all, the king is one of the three component parts of parliament. The king, it is true, acts upon the advice of his privy council; nevertheless there are certain cases in which the king is freed from acting on the advice of his council.

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Petition of Right Act

My reading of the constitutional development of kingship indicates that this prerogative is not a mere fiction or formality, but rather one of the most prized positions that kingship holds, not only by virtue of tradition, but also by reason of the fact that the king occupies so important a position in the constitutional development of the country. Last evening the member for Rosetown-Biggar said that, after all, we have not a king in Canada. That is scarcely in accordance with the constitutional development about which I have heard boasting in this house in recent years, particularly since the Statute of Westminster. To those who say that the king occupies an unimportant position and is merely a symbol, the answer is that so long as there is a king there can be no dictatorship within the British commonwealth. The king is above politics; he chooses his advisers following the decision made by the electors; in fact, he determines who shall be his prime minister and his first citizen.

That kingship is no mere symbol, and that the king has tremendous influence was indicated in England in 1922 or 1923, when everyone in the Conservative party believed that the king would call Earl Curzon to be prime minister, but the king chose to call Mr. Baldwin to that office. I repeat that the office of kingship is no mere formality. It is a symbol which binds us together. But in addition under our constitutional development, the kingship denies the possibility of there ever being a dictatorship so long as that kingship exists, and so long as the king carries out that responsibility which rests with him and no one else. Therefore I ask that nothing be done by this parliament which would in any way appear to detract or subtract from one of the prerogatives of kingship, namely, that the king can do no wrong. This principle antedates cabinet responsibility and all that cabinet responsibility means. The significance of it is that the king is above the law by reason of his prerogative right of not being subject to the king's courts.

The minister has had the opinion of the law officers of the crown, and I have done my duty. But certainly one can take Hansard after Hansard back to 1835, and wherever there has been any removal or subtraction of the right of kingship-indeed, even a change of title to be given to His Majesty-the announcement was made by the king's minister that His Majesty was willing to accept whatever decision was made by parliament. Even when Edward VIII abdicated in 1936 that formula was used, and he in fact con- 1 sented, as the constitutional monarch, to the ]

I Petition of Right Act

removal from him of all his prerogatives before parliament accepted his abdication.

Mr. Hosking:

Since this debate has been a legal member's paradise, as an engineer I should like to take this opportunity of asking the member for Lake Centre a question. Is he in favour of a citizen who has a judgment against him not satisfying that judgment because he is working for the crown? In my riding there is a man who has a judgment against him for approximately $3,000, but he refuses to pay it because he is working for the crown. I suggest to the Minister of Justice that this is a most unfair situation. If the member for Lake Centre is proposing to have that condition continued, I hope that the minister in his fairness will see that there is some legislation brought in which will compel a citizen of this country to pay his debts when employed by the crown.

Mr. Diefenbaker:

Mr. Chairman, I pass that question on to the Minister of Justice, whose responsibility it is to recommend whether or not that should be done.

Mr. Garson:

Mr. Chairman, the answer to the question of my hon. friend from Wellington South is that the federal crown' is not at the present time bound by a garnisheeing order. I believe that is what the hon. member has in mind. The gentleman against whom the judgment is obtained is, I take it, an employee of the federal government. In an effort to collect the judgment it is desired to take out an order garnishing his salary. One of the reasons for the fact that the federal crown is not bound by a garnisheeing order is the great administrative difficulty of acknowledging and taking care of those orders from all parts of Canada. But I think there is considerable merit in the point raised by the hon. member. It is a matter to which careful consideration will be given.

Mr. Fleming:

It is both interesting and refreshing, Mr. Chairman, to hear the Minister of Justice this afternoon drawing attention to certain limitations of the bill now before the committee. Last evening, if one is to judge from his remarks in certain places, one would have thought that in its effect this was a broad and sweeping measure. As is shown by the report of the proceedings in the committee, at page 3489 of Hansard, the minister complained that the hon. member for Lake Centre had put a rather narrow interpretation on the effect of the measure. At the bottom of the page the minister is reported as follows:

While I am on that subject, I believe that, in fairness to our own legislation, I should point out that the hon. member for Lake Centre rather

tended to leave the impression that the scope of our act was quite narrow. I believe I should point out what it does cover.

Then the minister went on to deal with some of the sections of the Exchequer Court Act, a statute which has such a direct bearing on the subject now under discussion. But this afternoon the minister has done a service in assisting the committee to realize that the measure, after all, is somewhat narrow in its terms and in its effect. He has drawn attention to certain narrowing words that he used in introducing the measure, as reported at page 3479 of Hansard, when he said:

The purpose of this legislation is to place the crown in right of Canada in petition of right proceedings in the exchequer court in substantially the same position as an ordinary litigant.

It is highly commendable that the minister this afternoon should have placed such great emphasis on those words "in petition of right proceedings in the exchequer court," because otherwise the effect of the statement made by the minister last night, it seems to me, was to exaggerate considerably the effect of the present measure. The minister has now helped the committee to see the bill in its proper perspective which, after all, is quite a narrow one.

In effect, this measure deals with a procedural question and eliminates a step in procedure. It does not affect the substantive law. If the principle upon which the government is proceeding is sound, and I believe it is, we should have had with this measure corresponding amendments to the substantive law of Canada, so that what we are doing here, in deference to a principle, should have real substance and not be simply a change in what is, after all, little more than procedure and form. While commending the present measure as far as it goes-and I regret that it does not go very far-I wish to record my regret that the government has not gone as far as it might well have gone, and ought to have gone, in view of the soundness of the principle supporting this type of legislation.

I could not help recalling a debate that occurred in the house on December 13, 1945. At that time the present Prime Minister was minister of justice, and I asked him this question on his estimates, as reported at page 3467 of Hansard of that session:

What progress, if any, is being made in the department with reference to the matter of petitions of right? It has been such a sore point for so long, and I think the courts and the bar are looking for some leadership in this matter. I know the Minister of Justice has had this matter brought actively before him for a long time. When may we look for some action in the direction of elimination of petitions of right in actions against the crown?

And the answer came back, very swift and very firm:

Mr. St. Laurent:

Not while I am Minister of

Justice.

It is evident that since the present Prime Minister ceased to be minister of justice there has been a change of heart on his part; and I think the committee will be glad to see such a change of heart on the part of the government, because the position taken by the then minister of justice, the present Prime Minister, is, I think, a position which the government, in introducing the present measure, has shown to have been entirely unsound. I am glad the government has made sufficient progress at least to have discarded the position taken in 1945 by the Prime Minister and to have introduced the present measure, limited though its effect may be.

A good deal has been said in this discussion about the historical background of the immunities of the crown, and about the way in which the procedure for petition of right has grown up and has been observed for centuries. An interesting description of those immunities was given by Chief Justice Duff in the case of the King v. Central Railway Signal Company, 1933 Supreme Court Reports, where, at page 564, after reviewing the immunities enjoyed by the crown in respect of torts and certain other forms of action, the chief justice says this:

It has sometimes been said that this immunity of the sovereign from processual coercion, "the grandest of his immunities," to use the words of Maitland . . . rests upon the principle that the king by his writ cannot command himself, and this was laid down in the Sadler's case; the immunity has also been ascribed to the fact that the courts are the king's own courts and to the same principle as that of the immunity of the feudal seigneur from process in his seigneurial court.

What the government is proposing in this measure is that there should be a measure designed to strip the crown of some of the procedural or formal aspects of what has here been called the crown's "immunity from processual coercion", "the grandest of the immunities of the crown". If the principle of this bill is sound, it is sound enough to be extended to the substantive law, where it should be given full recognition. It is not given full recognition today.

In his remarks last night the Minister of Justice dwelt at some length on some of the subsections of section 19 of the Exchequer Court Act; but I think the Minister of Justice will agree that there are still great areas of what would be liability in the case of an ordinary litigant, in which fields the crown is still immune, regardless of however tortious the acts of the crown or the crown's servants

Petition of Right Act

might have been, if those acts had been committed by a private litigant or by servants or employees of a private litigant.

There is much to be said in this day and generation for a discarding of this type of immunity of the crown. We recognized the same principle last year in the Statute Law Amendment Act, when so many emanations of the crown in the form of statutory corporations were brought, by enactment of parliament, under liability to action in the courts for breach of law. That was a sound type of legislation. It is a recognition not simply of the soundness of a principle but also of the fact that, as the power of government grows, expands, and is wielded, more and more of the area of what years ago had been regarded as fields closed to government and belonging exclusively to fields of operation on the part of private citizens is now enclosed within the scope of governmental operations. Therefore, old principles and old immunities which had a sound bearing in days when the activities of the crown, so far as the ordinary business of life was concerned, were on a very narrow scale indeed, do not fit the situation that obtains today, when governments are operating in so many fields of what were previously exclusively private endeavour. Last year's amendment was sound; this amendment is sound, but I still say that it does not go far enough in bringing about justice and fair play to litigants.

The hon. member for Lake Centre referred this afternoon to a situation where, in an action brought by the crown against a private litigant, the litigant is not free to make a counter-claim in the proceedings. That smacks of injustice and a lack of a sense of fair play in days such as these. I do not believe that the people of Canada have any patience in these days with immunities of the crown which have no sensible bearing upon the hard facts of governmental operations.

The Canadian Bar Association has1 for years been pressing the government on this subject.

Sir, there are good precedents for widening such provisions as we find in the present section of the bill under discussion. Some of the provinces have taken wholesome steps in this regard. One that I have had some experience with, and which the minister and his advisers may find interesting, is section 87 of the Ontario Highway Improvement Act, with respect to actions arising out of nonrepair of highways. It contains a simple provision, so far as the substantive law is concerned, that the crown shall be liable for damage suffered as a result of non-repair

Petition of Right Act

of the king's highways. It is a plain statement of substantive law; aJid then follow the procedural aspects of the matter dealt with in succeeding subsections, in which it is provided that any actions of that kind may be brought in the ordinary way in the courts and the defendant may be described as His Majesty in the right of the province of Ontario represented by the minister of highways. Therefore you have the complete code-