July 1, 1926

CON

Hugh Guthrie (Minister of Justice and Attorney General of Canada; Minister of National Defence)

Conservative (1867-1942)

Mr. GUTHRIE:

His Excellency could dismiss them as readily as he could appoint them.

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LAB
CON

Hugh Guthrie (Minister of Justice and Attorney General of Canada; Minister of National Defence)

Conservative (1867-1942)

Mr. GUTHRIE:

They are appointed for life, during pleasure.

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LAB

James Shaver Woodsworth

Labour

Mr. WOODSWORTH:

I am not thinking of them in their capacity as privy councillors, but rather as advisers to His Excellency with the right to perform executive acts. Does the hon. member say that there is nothing in the constitution to prevent privy councillors, called to undertake executive work, continuing indefinitely in such office?

[Mr. Guthrie. 1

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CON

Hugh Guthrie (Minister of Justice and Attorney General of Canada; Minister of National Defence)

Conservative (1867-1942)

Mr. GUTHRIE:

There are three safeguards: first, an adverse vote in the House; secondly, the will of the Prime Minister, who may ask lor their resignation; and, in the third place, the right of the crown to dismiss ministers.

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LIB
CON

Hugh Guthrie (Minister of Justice and Attorney General of Canada; Minister of National Defence)

Conservative (1867-1942)

Mr. GUTHRIE:

And ultimate appeal to the people. Now, I have tried to state the case as clearly as possible without indulging in such over-statements as those with which the House was entertained last night, and I think that any reasonable person will conclude that in everything we have done we have complied with statutory authority, with custom, and with the usages of government in this country. We stand here to-day fully accredited as acting ministers in the various departments to which we have been assigned.

I took occasion this morning to ask the Deputy Minister of Justice for an opinion regarding the right of members of the Privy Council to pass the orders in council which have been submitted, and the following is the reply I received as I entered the House.

July 1, 1926.

By section 11 of the British North America Act it is provided that:

"There shall be a council to aid and advise in the government of Canada, to be styled the Queen's Privy Council for Canada; and the persons who are to be members of that council shall be from time to time chosen and summoned by the Governor General and sworn in as privy councillors, and members thereof may be from time to time removed by the Governor General."

I understand that the Prime Minister and all the members of the present acting ministry have been at one tame or another chosen and summoned by the* Governor General and sworn in as iprivy councillors and have never ceased to be members of the Privy Council. In these circumstances I am of opinion that upon their being summoned to attend meetings of the Privy Council, no oath other than that already taken is required of them.

With regard to the question whether a meeting of members of the Privy Council, summoned upon the advice of the Prime Minister, has power to appoint anting ministers of departments, I am of opinion that this question should be answered in the affirmative. It is a well known principle of constitutional government in Canada that the Governor General may act upon the advice or with the advice and consent of or in conjunction with the Privy Council of Canada or any members thereof. I know of no provision which creates any limitation upon the exercise of this power in connection with the appointment of acting ministers, and I am of opinion that the orders in council in question appointing acting ministers of departments were validly passed and are as effective as if made upon the. recommendation of any committee of council.

This is signed by W. Stuart Edwards, Deputy Minister of Justice.

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LIB

Lucien Cannon

Liberal

Hon. LUCIEN CANNON (Dorchester):

My hon. friend who has just taken his seat has shown his usual ability, but I do not think he has answered the question put to the House by the former Minister of Justice, the hon. member for Quebec East (Mr. Lapointe). In discussing this question I will endeavour not only to speak as a lawyer, but to use such language that every man who is not a lawyer will understand what I mean.

The question before the House is not whether these gentlemen can be acting ministers; the question is whether they can be an acting government. The question is not whether, to meet certain exceptional cases of urgency or emergency, one or two ministers may be sworn in as acting ministers or ministers without portfolio, but whether a whole administration may be so formed, whether the control of the affairs of this country can be put in the hands of an acting government which is not a real government. In order that the minds of those who are kind enough to listen to me may not be confused, there are actually two questions before the House, and I will ask the members of this acting government who follow me to give an answer to both.

The first proposition is that laid down by the acting leader of this House (Sir Henry Drayton) when he said yesterday that they were nothing. Hon. members will remember exactly the words used by the hon. gentleman when he said "We are nothing". This government does not exist; this government is to be formed, and this is the first proposition. Is this a government which represents nothing; is this a government which is simply in the embryo form and is to be formed later? If so, I will follow that proposition by the answer that if you are nothing, if you have no authority, you certainly have not the power to deal with the public money of the Canadian people. I wish hon. gentlemen to listen carefully now. If on the other hand this proposition is not sound and the proposition laid down this afternoon by the Acting Minister of Justice (Mr. Guthrie) is true, that these gentlemen are real ministers exercising executive functions, then they have no right to remain in their seats in the 'House. Therefore, in order to be well understood before going into the merits of the case, I say that the dilemma before the acting government is this: If you have no authority you are not entitled to supply; you are not the government; you should not lead the House and you should not assume an authority which you do not possess. If you exist as a government; if you have authority to exercise ministerial functions, you have no right to remain in those seats.

My hon. friend who preceded me said that there had been a meeting of the Privy Council, and that as a consequence or result of that meeting a cabinet or a supposed cabinet was born. In order to understand what this means, with the indulgence of the House I will very briefly recite the history of the Privy Council. If hon. gentlemen who are interested in constitutional law will read the authors dealing with such matters they will discover that the Privy Council was born of the ordinary common sense of a king or head of a state who wanted to have advice on difficult matters, and in their origin the privy councillors were simply the friends or intimates of the king who were consulted on matters of importance. Under the Norman system; under the Tudors; under the Plant-agenets this system has evolved, and under George III the present system came into existence.

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PRO
LIB

Lucien Cannon

Liberal

Mr. CANNON:

Because I come from

Quebec I would rather leave that point to my hon. friend. The Privy Council was a general council, and after George III, when the constitutional theory under which we now exercise government was laid down, a distinction first arose, and this is where I differ with my hon. friend and where I challenge any constitutional student in this House to differ with me. The distinction was then laid down as between members of the Privy Council as a whole and the members of a committee of the Privy Council called the Cabinet. Every former minister in this House is a privy councillor who can be called, on matters of urgency, to give his advice to the head of the state. But will any man contend seriously that the Privy Council as a whole can administer this country? The body to administer this country is not the Privy Council but a committee of that council called the cabinet.

This is sound constitutional law. The reason why that distinction has been drawn, and the reason for the importance of that distinction, is the very safeguard of the liberty of the citizen which we enjoy; I mean responsible government. In England responsible government was first established under George III, and under Queen Victoria it came to its full bloom. We have the right in Canada to enjoy the same liberties and the same extent of freedom under our constitution as our fellow-citizens in England enjoy. We have to-day in Canada a Prime Minister. He is the one who is responsible for the present situation. He is responsible for everything which has been done since he has be-

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come the adviser of the crown. Putting aside political distinctions, are we as members of the House of Commons and representatives of the people of Canada, to stand in our places here and say that the present Prime Minister of Canada was perfectly justified m tearing up the constitution of this country in order to form a supposed government? That is the question. We are no longer in the swamps of New Brunswick; we are no longer in the filth of a customs inquiry. We are on the highest level of a constitutional struggle to decide whether the rights of the people, which have been won after so many difficulties, are to be safeguarded. That is the question. I do not care whether that principle is upheld by the Liberal party, by the Progressive party, or even by the Tory party. By whomsoever it is upheld, I will under any circumstances stand behind the public men in this country who will preserve and maintain the rights and liberties our forefathers won for us, and I do not think that any member in this House will be willing to renounce the birthright which he has received, simply in order to please the Right Hon. Arthur Meighen.

What are the circumstances which brought about this crisis? The Right Hon. Mr. Meighen advised the crown- in this country that he could carry on the business of the House. He advised the supreme authority in this country that he was in a position to carry on a government. The right hon. gentleman either was sincere or he was not. If he was sincere, what could have been the meaning of his advice? It could have had only one meaning, that he could carry on constitutional government and nothing else. Will any hon. gentleman contend for one moment that the crown could have been advised by the right hon. gentleman that we were to have in this country a revolution in constitutional methods? My hon. friend laughs.

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CON

Henry Lumley Drayton (Minister of Finance and Receiver General; Minister of Railways and Canals)

Conservative (1867-1942)

Sir HENRY DRAYTON:

I should think so.

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LIB

Lucien Cannon

Liberal

Mr. CANNON:

His only answer up to

now has been laughter. I hope he will get something else, because this is a serious question. The only meaning of the advice given by the right hon. gentleman, when he told the supreme authority in this country that he could carry on, must have been that he could carry on in a constitutional way. Is he doing it? If he is not doing it, he has deceived the crown. Is he doing it?

-Some hon. MEMBERS: Yes.

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?

Some hon. MEMBERS:

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LIB

Lucien Cannon

Liberal

Mr. CANNON:

He is doing it, is he? My right hon. friend wrho is leading the House, and who was formerly a Minister of Finance, a man who has held high office in this country says that he is doing it-my hon. friend, who gets up in this House and without any hesitation says that he is nothing, and yet nevertheless wants to lead this House. If on the other hand, the advice given >by the Prime Minister was that he could conduct the affairs of this country in an unconstitutional way, I do not believe that any hon. member of this House will stand behind him. We have been reproached and told, certainly with some amount of truth at tim-es, that too often the House of Commons is simply the witness of political warfare. Mr. Speaker, we -must not make any mistake as to- what politics are. Politics is the greatest science that any human being can become familiar with.

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PRO
LIB

Lucien Cannon

Liberal

Mr. CANNON:

The object of politics is

the improvement of the conditions under which human beings live, and if any man can do any good to his fellow-citizens through his political influence or his political knowledge, I do not think he need be ashamed of saying that he is a politician. But there is a distinction between politics and partisanship. There is a distinction between high politics and petty party matters. We have now reached the point in the affairs of our country where we need politicians in the highest sense of the word, and not petty partisans, like some of our friends on the other side have shown themselves to be in this debate. So I say, Mr. Speaker, that the Prime Minister of to-day is Prime Minister only on account of the very solemn declaration that he must have given, and that he did give, that he could carry on public affairs in Canada through constitutional means. Let us see now if he has done that.

My hon. friend the ex-Minister of Justice (Mr. Lapointe) -has quoted the law, and I shall not go back over that ground and quote more law, because -my hon. friend has done it in his usual perfect way. The law concerning governments is very simple. Any hon. member -can understand it; he need not be a lawyer for that. As I said yesterday afternoon in the course of another debate, the great underlying principle of the British constitution is that the king can do no wrong. In England, so long as ministerial responsibility was not fully established, a king could be called to account for his conduct. Charles I was beheaded; others were disposed of by

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the estates of the realm, 'because then the king was considered as being personally responsible for the administration of public affairs. But a change took place in the minds of the statesmen of England, and they said: The king, in order to exercise his full authority as it should be exercised, should cease to be an individual and 'be maintained only as an institution. The king is not an individual under our constitution, Mr. Speaker; he is an institution. But hon. gentlemen will ask me, if the king is not to be held responsible for the conduct of public affairs who shall be held responsible, because somebody has to be responsible to parliament. The answer to that is that the government which advises the crown is always responsible for the actions of the crown.

Therefore, unless we have ministers who are responsible to the House, where is the responsibility for the present conduct of public affairs? The Prime Minister is not in the House. He is not responsible to us; he is not a member of the House. And the other ministers in the one breath tell us that they are not ministers, and in the other breath they say that being ministers without portfolio they are in no way responsible to the ordinary constitutional usage. If we have not got the Prime Minister in this House to assume the responsibilities for the acts of the crown, if we have no other minister substituted for the Prime Minister to assume responsibility for those acts, then, constitutionally speaking, this result follows-the crown becomes directbr responsible. Is that what my hon. friends wish? We stand for the constitution as it is to-day, and we tell the members of the Tory party, who always have been so eager and so desirous to protect the royal prerogative-we tell them: Give the crown the protection to which it is entitled through ministerial responsibility. If there is one institution which is respected in Canada if there is one institution for which we will fight to the very last moment in this parliament, it is the institution of the crown. But we tell hon. gentlemen opposite this: Regularize your position in order not to project the crown into our party warfare.

Now, Mr. Speaker, my hon. friend who preceded me said: "My situation is exactly the same as the situation of the former Minister of National Defence, the present member for Antigonish-Guysborough (Mr. Macdonald)." Let us examine this contention very briefly. When the former Minister of National Defence was sworn in as an acting minister for a while, we had at that time in Canada a regularly constituted government

under sworn ministers. What is the oath that a minister has to swear to? What is it? This is the oath that a minister has to take:

I-do solemnly and sincerely promise and swear that I will duly and faithfully, and to the best of my skill and knowledge execute the powers and trusts reposed in me as minister.

When an acting minister in a properly constituted government acts for a short time, if he does not take the oath there are other ministers who have taken it and who are responsible to parliament and have to be in parliament to defend his acts. That is the distinction. When Senator Dandurand was acting minister, when Mr. Macdonald was acting minister, if these gentlemen had done anything that they should not have done- anything against their powers or against the trust reposed in them-their colleagues in the then government were in the House of Commons to answer for their acts. Have we got this situation here?

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?

Some hon. MEMBERS:

No.

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LIB

Lucien Cannon

Liberal

Mr. CANNON:

The only sworn minister

in this government is the Prime Minister. The Prime Minister is not in the House, lie is not answerable to us for any of his acts. And what actually are his tactics? His tactics are to get rid of us as soon as possible in order that the House of Commons or parliament shall not take control over the administration of public affairs at this critical juncture in our history. No man can administer a department, unless under exceptional circumstances such as I explained a minute ago, without taking an oath. Could, for instance, the leader of the opposition go into the Department of Finance and give orders? He could not; he could not undertake to administer that department-although a privy councillor-without taking an oath to perform his duties properly. We have in this House officers who perform their duties, as we all know, with absolute perfection. Our Clerk could not sit here for a minute unless he had taken previously an oath to perform his duties as he should. We as members of the House of Commons were not permitted to take our seats at the opening of this parliament, noi, one of us, before declaring on the Bible that we would fulfil our duties as we should. If we are not allowed to sit as private members without taking the oath, are hon. gentlemen opposite going to run the country without taking it? The acting minister who preceded me said "Show me the law that forces a minister to take an oath?" The law is common decency. Law? If the clerk of the city where my hon. friend the Acting Minister of Finance

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(Sir Henry Drayton) lives, wishes to collect five cents, he has to take the oath of office. That being so, is my friend who is going to spend hundreds of millions of dollars to be freed from taking the oath?

I have spoken, I think, long enough, but this is an important question. The Tory party, Mr. Speaker, have one great quality, and that quality is to pretend to safeguard the constitution while they are tearing it, Bead the history of England and you will see that encroachments upon the constitution have often been committed by the Tory party while pretending at the same time to protect that constitution. But coming nearer our shores read the history of Canada, read the annals of our constitutional evolution, and you will see that the Tory party invariably while pretending to protect the rights of the crown have had absolutely no hesitation in trampling on those rights if the interests of their party incited them to do so. Let us come to more recent years. We are deciding to-day the momentous question as to whether a man can be given the right to be Prime Minister of this country without following any of the constitutional processes. I am not speaking as a_ member of the Liberal party but 1 am speaking on behalf of and in the name of the citizens of my province-nay in the name of the citizens of the whole of my country-and I say to hon. gentlemen opposite: You are coming to this House and through the mouth of the acting leader of the House asking us to give you a mandate to run the affairs of Canada. Before we give you that mandate and' before we resign one ounce of the authority of parliament we ask you "What is your record? What have you done in the past? Your past is the only guarantee we have of your future conduct." Before we reach a decision let us look back into the history of the Prime Minister of Canada to-day and ask ourselves if we can give him the least bit of authority that the law does not allow him to have- the man who for party purposes stole the elections of 1917, the man who deprived regularly elected members of this House of their seats, in order that his party might be in power, the man who deprived thousands of electors of this country of the opportunity to express their views, because he was afraid their verdict would not be favourable to his party politics, the man who transformed this country into an armed camp, where races facing other races were asking if a civil war would not be necessary in order to protect the liberties that we had won. This is the man who comes to this parliament and asks

I Mr. Cannon.]

the members of parliament to give him a blank cheque, in order that he can repeat this year the unfortunate happenings that we witnessed in farmer years. I am not interested in systems of co-operation any more. I am not interested in the petty local provincial problems. It is a question now for every man who wishes to safeguard Canadian liberty to stand behind those in this House who wish to vote for the triumph of constitutional government in Canada.

In concluding, Mr. Speaker, I remind the House that to-day the sun rose on this Canadian land to light the first of July, the anniversary of confederation. In 1867 our present form of government was bom, and under that government we have striven to make our country great, prosperous and united. Will it be said1 that on that same day over fifty years later those who inherit the duties and obligations of the Fathers of Confederation have forgotten, for local or petty interests, the great charge, the momentous charge, to conserve and maintain the charter of our freedom on Canadian soil?

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CON

Henry Lumley Drayton (Minister of Finance and Receiver General; Minister of Railways and Canals)

Conservative (1867-1942)

Sir HENRY DRAYTON (Leader of the House):

May I congratulate my hon. friend who has just spoken (Mr. Cannon) upon the calm and logical manner in which he has discussed a constitutional question! He has been discussing it however in the only way the question can be logically discussed by him and by his friends; that is in the way it was discussed last night by the right hon. former Prime Minister (Mr. Mackenzie King). What have we to-day from this hon. member on the constitutional question? We have to-day from him a wild torrent of abuse, an attack, Mr. Speaker upon my right hon. leader which is as everybody knows utterly unjustifiable.

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?

Some hon. MEMBERS:

No, no.

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July 1, 1926