March 23, 1905

CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

It is my duty to deal with a government measure and with the government behind that measure, and with Mr SPROULE.

the principles of constitutional government, one of which is that a cabinet shall not be divided in presenting a measure to the House. Yet these hon. gentlemen are divided to-day. I need not ask the Minister of Finance how long he has taken to analyze this Bill and reach the conclusion he has reached? We were told he did not see in the light in which he now sees it until a short time ago. He may claim to be excused on that ground for not having a very definite knowledge of the measure. But the father of the Bill says, that the constitution compels him to do what he now proposes. Now, to satisfy myself I thought I would apply to an authority whose opinion would be respected in this House, one who I have heard the right hon. Prime Minister and other hon. members on the other side quote approvingly more than once. I say this because the contention was set up that on account of separate schools being there today, we were not free, in giving the provinces provincial autonomy, to ignore those schools and allow the provinces to legislate according to their own judgment. I submitted the question to Mr. Christopher Robinson, K.C., who is well known I think, as high a constitutional lawyer as can be found in this country. I submitted several questions which were embraced in the speech of the First Minister, and I wish to read his opinion, because it is in my judgment in accord with the opinion announced by the leader of the opposition yesterday, and buttressed by many citations of constitutional authorities. Mr. Robinson says :

The right of the Dominion parliament to impose restrictions upon the provinces about to be formed in dealing with the subject of education and separate schools, is, I think, not beyond question.

They have the right to do it.

This would require more consideration than I have been able yet to give to it, and must ultimately be settled by judicial decision.

Remember, it is not the question whether we have any power to interfere with the province at all, it is a question of whether this parliament must do it, not whether we have power to do it.

I am asked, however, whether parliament is constitutionally bound

The First Minister says : I am constitutionally bound.

I am asked whether parliament is constitutionally bound to impose any such restriction, or whether it exists otherwise, and I am of opinion in the negative.

Now I am not directing this to the Minister of Finance, because he does not hold that opinion, but I am directing it to his premier who does hold it, with a view to getting the different' members of the cabinet in accord.

It must be borne in mind that I am concerned only with the question of legal obligation. What the parliament ought to do or should do in the exercise of any power which they possess, is not within the province of counsel.

He does not pretend to give advice on that point. [DOT]

Such a restriction, I apprehend, must exist or may be imposed, if at all, under the provisions of section 93 of the British North America Act. 1867, and on the ground of their application to the provinces now to be formed. If that section applies

He seems to be in doubt.

If that section applies, it would seem to require no enactment of .our parliament to give it effect

Now is that not the contention of the leader of the opposition ? If that power exists it does not require any enactment to give it effect.

and if not, no such enactment, so far as I

am aware, is otherwise made necessary. Upon the whole I am of opinion that section 93 does appear to me to be intended for, and confined to, the then province, and to the union formed in 3867.

Then 'if it does not apply, the responsibility rests with the right hon. gentleman and his friends forcing an educational system on the people out there that they think should not be forced upon them. If its provisions are confined to the then provinces and to the union formed in 1867, the authority given them in the Act of 1875, and under which by their ordinances they have established separate schools, could not apply at all, because that was not the date of the union. The date of the union was antecedent, in 1867, according to Mr. Robinson's judgment; therefore there was no power in the land to give separate schools, and they had no separate schools then.

There is not in any part of the Northwest Territories as a province any right or privihe be good enough to lay on the table the questions that he put to Mr. Robinson along with the answer ? Because we have had a running comment on the answer.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

I have just read the answer. I may say that I had already foreseen this very reasonable request. I I*ad the questions drawn out and submitted to Mr. Robinson, and 1 have been urging for a reply, and it was only to-day at two o'clock that I was able to get it. I have only the telegram that was sent to me without the question. Unfortunately I did not keep a copy of them, otherwise I would be able to hand them to the hon. gentleman. As soon as they are available, I will present them to the minister.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I would suggest that the hon. gentleman read the telegram through without comment.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE (reading) :

The right of the Dominion parliament to impose restrictions upon the provinces about to be formed in dealing with the subject of education and separate schools, is, I think, not beyond question. This would require more consideration than I have been able to give to it, and must ultimately be settled by judicial decision. I am asked, however, whether parliament is constitutionally bound to impose any such restriction, or whether it exists otherwise, and I am of opinion in the negative. It must be borne in mind that I am concerned only with the question of legal obligation. What the parliament ought to do or should do in the exercise of any power which they may possess, is not within the province of counsel.

Such a restriction, I apprehend, must exist or may be imposed, if at all, under the provisions of section 93 of the British North America Act, 1867. and on the ground of their application to the provinces now to be formed. If that section applies, it would seem to require no enactment of our parliament to give it effect, and if not, no such enactment, so far as I am aware, is otherwise made necessary. Upon the whole I am of opinion that section 93 does not apply to the provinces now about to be established. .Its provisions would appear to me to be intended for, and confined to, the then province, and to the union formed in 1867. There is not in any part of the Northwest Territories as a province any right or privilege with respect to denominational schools possessed by any class of persons, created by the province, or existing at such union ; and a right subsequently established by the Dominion in the part now about to be made a province, does not appear to me to come within the enactment.

I may say that it is signed ' W. D. Mae-pherson ' who is acting for Mr. Christopher Robinson.

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LIB

William Stevens Fielding (Minister of Finance and Receiver General)

Liberal

Mr. FIELDING.

Is that the opinion of Mr. Robinson or Mr. Macpherson ?

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

It is the opinion of Mr. Robinson, communicated by Mr. Macpher-son.

lege with respect to denominational schools possessed by any class of persons, created by the province, or existing at such Union ; and a right subsequently established by the Dominion in the part now about to be made a province, does not appear to me to come within the enactment.

Is that straight enough ? ' It does not come within the enactment. But the whole argument of the First Minister was : I am doing something because I am compelled to do it, if he had said : I am doing it because there is some kind of moral obligation resting upon me,-he might have been justified by his conscience. But he says : I am doing it because constitutionally I must do it, there is no other alternative, it is forced upon me to act along that line, and therefore 1 am justified in acting as I have done.

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LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRIU.C.

Before my hon. friend passes away from that point, will

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LIB

William Stevens Fielding (Minister of Finance and Receiver General)

Liberal

Mr. FIELDING.

It is so stated ?

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

Yes, in a letter to me and which I have in my possession. I do not wish to take up the time of the House longer on this subject, but I want to refer to one or two quotations which may have been used before but which I now want to give for the benefit of my right hon. friend the leader of the government. The present Prime Minister, as will be found in ' Hansard ' of March 3, 1896, said :

In a community with a free government, in a free country like this, upon any question involving different conceptions of what is right or wrong, different standards of what is just or unjust, it is the part of statesmanship not to force the views of any section, hut to endeavour to bring them all to a uniform standard and a uniform conception of what is right.

Not to force the views of any section! I ask him if he is doing that to-day in connection with this Bill. Is he not forcing the views of one section of the community up there who do not think that it is right to compel them to accept what they do not believe to be suitable to the conditions there? Then, speaking on the same day of the different agitations which have from time to time arisen in Canada over provincial rights and defending himself for having stood up in support of provincial rights, he said :

Sir, If the hon. gentleman, while he was tracing the history of confederation, had recalled that page

Referring to the various disputes that had taken place in Canada

it might, perhaps, have Struck him and

those around him that coercive methods never yet led any people to good and wise action.

Will he apply the coercive methods he is adopting to-day to these new provinces ? If he does to what wise action or good purpose will it lead ?

But I would recall the history to the hon. gentleman, not only of his own province, but of the Dominion of Canada at large;

Later on he said :

These frequent recurrences of agitations and commotion are a severe strain, and a very severe strain upon the tie which binds these provinces together ; and the danger is all the more to be apprehended, if, searching further on for the causes which have brought about this commotion, you find that on every occasion there was only one cause, always the same, and that was the feature of our constitution which abridges the independence, the sovereignty of the provincial legislatures. In one form or the other, such was the cause of these agitations.

What is the cause of the agitation to-day? Is it not exactly that very same thing, that you are endeavouring to interfere with and abridge the rights of these legislatures ? The right hon. gentleman is to-day doing Mr. SPROULE.

what he then declared it hnwise to do when he said that all these agitations were traceable to one source and to one cause, and when he advised parliament that it would be wise to avoid such a danger. It is wise therefore to avoid interference with provincial rights. Then, speaking of the right of the provinces to legislate in regard to education he said ;

This division of legislative powers is absolutely essential to the federal form of government.

He was referring to the British North America Act where it divides the powers of the provincial legislatures from the powers of the federal parliament and lie said that this division of legislative powers is absolutely essential to the federal form of government. We gave the power to legislate in regard to education to the provincial legislatures. Then, speaking as to the question: Who should rule?-he made a further statement. We heard it stated last night that the Roman Catholics numbered about 41 per eent of the population and the Protestants 60 per cent and the question was asked : Are we going to disregard the rights of this large minority ? I say no, we never intended to disregard them, nor infringe upon them, nor do any injustice to them, but I do hold that the principle which I have stated before that the majority must govern applies as much to the electors of a province as it does to the electors in Canada in an election to this parliament. Then, in reply to the question : Who should rule?- he said :

Indeed, It must be accepted, and accepted as a truism, that under popular government the majority must rule.

The majority of the people of Manitoba desired a certain thing and the Remedial Bill proposed to compel them to do something that they did not desire to do, and therefore the right hon. gentleman held that the majority must rule. It would be a doubly improper thing, I think, to adopt a measure which would not only interfere with provincial rights, but which would prevent the majority from ruling in a country in which the right hon. gentleman declared it to be a truism that the majority must rule. He continued :

I do not mean to say, Sir, that the majority will always he right. No, Sir, the majority may err, the majority may prevaricate. But I am not prepared to say that the majority will always do wrong, will always prevaricate and will always wantonly and wickedly do injustice to the minority.

I think you can safely trust to the intention of the majority to do what is right, and the rule of the majority is the only principle that we can apply to the government of the country. Then, ho asks :

What is the remedy of the minority under these circumstances ?

There was a very troublesome question to be settled. There was a majority and there was a minority. The majority wanted one thing and the minority another. He declared that the principle must obtain that the majority must rule. Let him apply that to the new provinces he is creating as he applied it to the province of Manitoba in 1896 and if he does we will not have this provision in the Bill which is creating so much excitement and agitation in the country to-day.

What is the remedy of the minority under these circumstances ? The remedy of the minority under a free government is to agitate and endeavour to bring over the majority to their way of thinking.

That is proper, that is correct; I agree with every word of it. Sir John Macdonald said the same thing in almost exactly the same words in reference to the New Brunswick case. The right hon. gentleman says that the majority must rule and he says that in case of difference the remedy of the minority is to agitate and endeavour to bring over the majority to their way of thinking. That is the rule under a free government and ours is a free government. Why does he depart from that safe and correct rule, that truism that he laid down in 1896 ? Has he received new light on the subject, have the scales fallen from his eyes that he has propounded another doctrine to-day which is diametrically opposed to the doctrine that he propounded then ? As to the power under the constitution, under section 93 of the British North America Act to supervise and control the legislation of the provinces he says :

The lesson we should deduce is that if it was a wise provision to establish this power in the constitution for the supervision of the local legislatures, perhaps it was not dictated by unmixed wisdom. [DOT]

I agree with him that it was not dictated by unmixed wisdom. Our experience of the working out of our government since confederation has demonstrated over and over again that it Is unfortunate that the provision is there.

For. Sir. experience has taught us that this remedy of interference with local legislation has never been applied and probably never can be applied without friction, disturbance and discontent ; that you cannot apply that remedy without causing as much dissatisfaction as satisfaction.

And yet he is endeavouring to do it today. He is applying it in the face of the fact that he himself admits that it never can be applied without friction, disturbance and discontent, and to-day he adversely criticises the press of the country because there is friction and discontent.

It must be evident that while you redress the grievance of the minority by such an act of interference, you run great risk of creating a grievance on the part of the majority.

Therefore, by a parity of reasoning it ought to he avoided. Why does he not follow that good advice to-day 1 Speaking with regard to the power of the government to grant remedial legislation, the right hon. gentleman said:

Sir, the power is there, and being there, the aid of the Dominion government will be sought by the minority. What is the rule that ought to be followed ? I shall be told by the hon. gentleman (Sir Charles Tupper), in fact, he has already told us, that the rule works mechanically, and that no judgment is to be exercised by this parliament in such matters. Sir, that cannot be the rule. It cannot be that this remedy is to apply mechanically. This remedy must be granted or denied according as the circumstances of. each case require. And that, Sir, is the very language of the statute that the hon. gentleman cited a few moments ago. The remedy is to be sought and applied as the circumstances of the case require.

That was tbe contention in 1896-that the federal parliament was not compelled to legislate. He was advocating non-interference with provincial rights; be was questioning tbe wisdom of a Remedial Bill on tbe ground that it might create a grievance for the majority that was quite equal to the grievance under which the minority laboured.

Now, I want to say one word with regard to the British North America Act as a layman. I suppose it will have not much weight with the lawyers of this House, and it may not have much weight with the laymen; but I hope it will at least have some weight with the common sense intelligence of the people of this country. My understanding of the respective rights and duties of the federal parliament and the provincial parliament is something like the following: At confederation each was assigned its rights; each was given the class of subjects upon wbicb it bad an exclusive right to legislate. There were subjects on which each had an exclusive right; there were other subjects on which they had a joint right, and there were other subjects not included in either on which both might properly legislate. The British North America Act puts the rights belonging to the provinces in one schedule, and the rights belonging to the federal parliament in another. Everything concerning local government is given to the provincial parliament, and everything concerning trade and commerce and national undertakings is given to the federal parliament. But it was never intended that the federal parliament should infringe on any of the subjects which were assigned exclusively to the provincial parliament, and education was one of these subjects. I have before me a little work

which I have read sometimes with interest. It is entitled 'The Powers of Canadian Parliaments,' by S. J. Watson, of Toronto, who has evidently given a good deal of attention to the subject. He first states the reserved rights that were given to the federal parliament: regulation of trade and commerce, postal service, military and naval service and defence, navigation and shipping, currency and coinage, banking and the issue of paper money, insolvency. Then he deals with those rights reserved exclusively to the provincial legislatures: amendments from time to time in their constitutions, municipal institutions in the province, local works and undertakings other than such as are excepted in subsection 10, the incorporation of companies with provincial objects, property and civil rights, education. Education is, therefore, one of the exclusive rights of the provinces ; it is only the province which has the right to legislate [DOT]with regard to education. I hold that to be the correct principle, and whenever this parliament is legislating in regard to education it is infringing on the rights of the provinces.

But I am told there is a provision in section 93 of the British North America Act that gives us power to legislate. In what regard? In one regard and one regard only, that is, by remedial legislation. The Governor in Council, acting as a court, has appellate jurisdiction in cases of the infringement of the rights that belong to minorities. It may be appealed to by the minority for the restoration of those rights. Then the Privy Council becomes a court of appeal, not a legislative body, and if they think those rights have been taken away, and they fail to persuade the provincial authority to restore those rights, then, and not till then, their power as a court ceases, and the federal parliament steps in with its legislative right. That is the only time we can interfere as a federal parliament. We can then pass a Remedial Bill, but we can only do that, as the first minister said, if in our judgment it is good public policy to do it, or we can leave it alone. That is the only provision in the British North America Act, in my judgment, giving us any rights to legislate with regard to education.

With regard to this measure, I want to say that the government have at last undertaken to do what they should have done long ago, and they are confronted with a great many difficulties which they have brought upon themselves. These difficulties might have been very much minimized had they taken the advice of this side of the House, and erected the Territories into a province or provinces long ago: Had they

given provincial autonomy to the Northwest Territories years ago, before vested rights grew up to the extent to which they exist to-day, and before the population had increased to the numbers it has reached today, they would have had much less difficulty then they have at the present time. Their difficulties have multiplied in proportion to the delay that has occurred. The disproportion in size between the province of Manitoba and the two provinces which they contemplate creating now is very great. The one is very small and the others are very large. What excuse can they give for being unable to extend the boundaries of Manitoba? The existence of vested rights in the Northwest Territories, the growth of settlement, and certain other things which did not exist years ago. There would have been very little difficulty in extending the boundaries of Manitoba if the government had undertaken this question at an earlier date.

Because settlement has gone on there since, and owing to that settlement, and owing to those vested rights, they find it difficult to act to-day. The principle upon which the financial arrangements are based is almost sure, in my judgment, to create dissatisfaction in the other provinces. I feel quite satisfied that that will be the case. When the other provinces come to know and analyze the arrangement which this Bill contains for financial assistance to these two provinces, I hoy will recognize at once that it is much more liberal than the terms which they enjoy to-day, or which they have had in the past, and this will create discontent, and will bring them knocking at the doors of parliament for a rearrangement of provincial subsidies. It is very liberal, I admit ; I am not complaining of that, so much as of the fact that it will give us trouble in the future, perhaps in the very near future. In undertaking to do our duty as a federal parliament and to create provinces in the Territories already in the union, we are told that we must treat those Territories as though they were provinces in existence, having provincial autonomy, having a legislative assembly of their own ; to treat them as though they were provinces which are entering the union to-day. I need not refer to that again fully, because I have already done so. We may properly erect provinces, and in giving them provincial autonomy, we are bound to give them all the rights which the British North America Act says they should have, and one of these is the right to legislate upon education. Now, I say that, as a matter of policy, as a matter of duty, according to my understanding of the constitution, when we erect these Territories into provinces, we are bound to give them all the rights of legislation, all the provincial rights, that our constitution provides they should have and enjoy ; and if we give less, we are likely to cause friction and trouble. If we go beyond that, we are encroaching upon provincial rights. I say we are now going beyond that, and therefore I object to that encroachment on provincial rights. Have we. as a federal parliament, the right to go beyond that ?

I have given my reasons for thinking that

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

we have not. It is for this House and for the country to determine according to their judgment whether these reasons are sound or not.

The British North America Act, in assigning the rights and power to the parliament of Canada and the provincial powers, distinctly provides how far we may go, but nowhere does it contain a provision that we may legislate with regard to what educational system a new province must have, and when we do that we are doing what, in my judgment, is improper. The right lion, the premier seems to assume that the federal parliament is a supreme body which is over and above the provincial parliaments, and which can, of its own will, exercise a patronizing or paternal control to the extent of compelling the provincial parliaments to do what they do not desire to do. Talk about being a supreme body ! What does Watson say in regard to it ? The federal parliament is not a supreme body at all, it has no over-towering powers, It has no powers that are so much above' or beyond a provincial parliament that it can exercise them over that provincial parliament. He goes into the history of how we got our federal parliament, and says :

It must be borne in mind as regards the internal and material interests of each of the provinces, their municipal self-government, their systems of education, their public lands and their development, and the administration of justice, the local legislatures are of much greater importance than the federal parliament.

Much greater importance.

Over these vital and complex functions of a free commonwealth which are known as dlvil rights and which are the life and marrow of local self-government and constitutional citizenship, the provincial parliament rules supreme.

And the federal parliament cannot interfere. He says :

It must be borne in mind that the federal parliament is the offspring of the provincial legislatures ;-[DOT]

Not the provincial parliament the offspring of the federal parliament.

that it is not their progenitor ; and that

in confiding to it such of their povrers as were necessary to establish it as a greater institution than themselves there were yet certain powers which they reserved for their own behoof.

He argued that we had a federal parliament, why ? Because the provincial parliaments gave up part of their powers to make it, but that the provincial powers were supreme, and must always be so within their rights. AVe established the federal parliament and the provinces gave it certain powers, and the federal parliament can only exercise these powers ; when it attempts to go beyond that and interfere with provincial rights, then it is doing what a higher authority than it. that is the provincial parliament, says it cannot do. The rights of the provincial parliament within its sphere are supreme and brook no interference. I believe that is as true as the truism given by the premier with regard to the rights of majorities. It was not the federal parliament, as I said, which condescended to give rights to provincial parliaments ; the condescension was on the part of the provincial parliaments, and they established the federal parliament The rights of the provincial parliaments were an inheritance belonging to them : they had inherited their rights and enjoyed their rights, and any rights or powers which the federal parliament has to-day are mere hereditary rights given to it by the provincial parliaments ; therefore, the provincial parliaments ought to be supreme and are supreme within their own jurisdiction.

The educational clauses in this Bill are purely an interference, in my judgment, with provincial rights, and on this ground I am opposed to them. I do not mean that I am opposed to the whole Bill, but I am opposed to the educational clauses. The struggles which have taken place in the past with regard to provincial rights, and the contention of the Reform party that provincial rights must be maintained at all hazards, ought to be as strongly impressed upon the minds of the Liberals as it was in the past, and they ought to endeavour to carry out that principle. They should not neglect that principle. AVe have had many fights of this nature. AVe had the struggle over the Streams Bill, and very strong feelings were created ; we had it over the Boundary Award : we had it over the Hotel Licenses Bill, which was known as the McCarthy Act ; we had it over the timber and mineral rights of the[DOT]provinces ; we had it over the Manitoba Remeflial Bill, the New Brunswick School Bill ; and in every one of these cases the Reform party stood on the same ground, that is, in defence of provincial rights. AVhere are thev to-day ?

Some lion. MEMBERS. We are there. On the same spot.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

The Reform party carried Ontario for the provincial government over and over again on provincial rights, and because they stood up in defence of provincial rights. Where are they to-day ? I say they have drifted away from" their moorings.

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?

An hon. MEMBER.

Where were vou at that time ?

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Air. SPROULE.

Where was I ? I was in this House at that time, and on many of these measures I agreed with the hon. gentlemen. because l thought they were right.

I am opposed to them to-day, because I think they are wrong. I am where I was then, but they are not where they were then. They remind me very much of the story of the Indian who was hunt-

ing his wigwam and met a traveller in the forest. " He asked the traveller if he could tell him where he was. ' Why,' the traveller said, 'you are an Indian. Are you lost ? ' ' No,' said he, ' but the wigwam is

lost.' In like manner, while the principle remains, these hon. gentlemen opposite have drifted away from their wigwam. They have taken another track, and are advocating principles the very opposite of those they formerly contended for. I would ask the Reformers of Ontario how they will justify their conduct of to-day before the people of that province ? I remember when a motion was made in this House calling on the British authorities to grant home rule to Ireland. Every Reformer, without a single exception, voted for it.

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LIB

William Mulock (Minister of Labour; Postmaster General)

Liberal

Sir WILLIAM MULOCK.

How did the hon. gentleman vote ?

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

I can tell him very well if he would like to know.

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LIB
LIB

Rodolphe Lemieux (Solicitor General of Canada)

Liberal

Hr. LEMIEUX.

A very bad system. I stand for the British system.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Hr. SPROULE.

They have a system of national schools. France is a great country and I admire it. How long is it since they have taken the schools out of the hands of the church ? Only a short time.

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LIB

Rodolphe Lemieux (Solicitor General of Canada)

Liberal

Hr. LEMIEUX.

Do you approve of that?

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CON

March 23, 1905