December 4, 1951 (21st Parliament, 5th Session)


Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)


Mr. Garson:

Yes, quite, which form of submission, as I am sure my hon. friend will be the first to agree, is still available as a means of getting matters of that sort to the supreme court.
When he speaks of this one concrete case he was able to offer by way of objecting to provisions in an order in council dealing with uranium, I am sure that upon meditation he would agree there is really no invasion of any human rights and fundamental freedoms if the democratically elected representatives of the people in parliament assembled, for reasons which seem adequate to them, clothe the governor general in council with certain powers which he proceeds to exercise in a reasonable manner in order to meet very dangerous circumstances. In connection with the particular matter to which he referred, I am sure that after reflection he will not then say that the courts and the remedies therein are being made unavailable to citizens of the country.
I am sure my hon. friend is aware that it is not only in respect of these orders in council passed in the federal field, and which he will agree are passed within the limit of the powers granted by parliament, but also in the provincial sphere that examples of this sort of thing are to be found. I agree with him that provisions of that sort should not be inserted in an order in council or in a statute except for very strong reasons, but I should think .if the reason with respect to the matter

of uranium which he raised was the withholding of information from the mortal enemies of the country we might very properly consider putting a clause of that sort in a bill or order in council. If we did so I cannot see what connection could be drawn between it and the fundamental freedoms of which he speaks. While there may be differences of opinion between the administration and the opposition upon the matter, I think if any allowance is made for a conscientious approach to their duties on the part of the ministers it will be found upon analysis in all these cases that it is for the protection of the fundamental freedoms of the majority of the people that provisions of that sort are inserted in statutes.
In any event, I cannot see what advantage there would be in an amendment to the Supreme Court Act such as he suggests because these provisions in the statute or order in council are either constitutional or unconstitutional. If they are not constitutional I am sure my hon. friend will agree that at the present time the subject has full rights and a complete remedy in that he may take an appeal to the Supreme Court of Canada which will declare the order in council or statute, as the case may be, to be beyond the power of the legislative body or cabinet which passed it.
His third point was that he wanted the rights of the subject to sue the crown extended. Surely he will agree this has nothing to do with the Supreme Court Act. It might perhaps be better raised under the next bill to come up having to do with the exchequer court. However, in this connection I can only repeat what I said on an occasion when it was much more in order than at the present moment, that in abolishing fiats as we did at the last session in, those cases which are now covered in the form of substantive law in the Exchequer Court Act we were taking care of the enormous majority of cases which are likely to arise against the crown.
I am sure my hon. friend, who has had a wide practice in these matters, will agree that when one takes care of negligence actions against the crown one takes care, I should think, of at least 95 per cent of all cases likely to arise between the crown and the subject. Like the hon. member, I have not seen any reports than those contained in the newspapers, of the case that took place the other day concerning certain events in Hull. Like him I am not in the habit of forming my legal opinion in matters of that sort upon the basis of newspaper reports. Therefore I must say that I cannot comment upon that particular case. I appreciate the references which the

hon. gentleman made to myself. I appreciate his interest in this subject. I am very glad he raised these points, and I shall be pleased to take them under consideration, but I must enter the proviso that it seems to me that what is required, if anything be required at all, is not a procedural amendment to the Supreme Court Act but a matter of substantive law in a form which I had always thought my hon. friend had systematically advocated.

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