Sir Cecil Hurst, who has been legal adviser in the British Foreign Office for a great many years, and who was only a few years ago appointed one of the judges of the international court of justice, and than whom no one is better qualified to speak on this subject, used the following language, when lecturing at the Harris Foundation in the United States in 1927 ;
In the twentieth century Great Britain accepts, and accepts gladly, the new status of complete equality with herself to which the dominions have attained. The period of subordination has, so far as they are concerned, come to an end. Even if the position of primus inter pares is given to her by the dominions, she will enjoy it only because they give it to her and not because she has a prerogative claim to it as a right. What equality means among the autonomous communities of the empire is the absence of any form of control by one community over another, the idea which is expressed in the words "in no way subordinate one to another in any aspect of their domestic or external affairs" which figured on the formula adopted in the Imperial conference resolution of 1926.
The then Home Secretary who was a member of the conference of 1926, and who is now a member of the House of Lords with the new title of Viscount Brentford, speaking in the House of Commons on March 15, 1927, said:
The dominions of the crown, the great selfgoverning dominions, are certainly since the last Imperial conference co-equal with the United Kingdom. They do not belong to this parliament; they are not in any sense subject to the jurisdiction of this parliament.
All the dominions have accepted the principles which I have mentioned. True, in Canada, the question was the subject of a debate during the session of 1927, and the then leader of the opposition, the hon. member for South Wellington (Mr. Guthrie) moved a resolution reading in part as follows:
That it is not desirable that this house should be deemed tacitly to have acquiesced in the declarations and recommendations contained in the report of the proceedings of the Imperial conference of 1926.
The resolution was voted down by this parliament, and a large majority of the house clearly signified its approval of the report. At this time I shall not commend or discuss the principles enunciated in 1926; they have been accepted. Even those who opposed, ridiculed and criticized, have been moved forward by the wave of public opinion and are nowr occasionally heard basing arguments on the doctrine of equality of status, however timidly and half heartedly they may propound
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that doctrine. I will devote myself to a brief consideration of the work and the report of the conference on Dominion legislation which I had the honour to attend as the representative of Canada.
As the house is aware, that conference was set up for the purpose of examining the legal restrictions of dominion self-government which stili survive from an early period, and of suggesting the most appropriate means of bringing these legal forms and practices into harmony with the constitutional position of equality as laid down by the conference of 1926. In some instances these survivals constitute a serious restriction on the power of the dominion parliaments to enact legislation which they consider essential or desirable. In other cases their obsolescence makes them inoffensive in practice, but they afford ground for misunderstanding both at home and abroad. It is quite true that under a flexible constitution bid forms do not usually keep pace with actual developments; legal definitions instead of preceding the facts generally come later to sanction them. English public law has been built up in this manner and that is what makes it such a vigorous and adaptable instrument of government. The difference between the legal position and the facts brought about by new development however, is adjusted usually by constitutional fictions and conventions, but the time inevitably comes when certain fictions and practice have to be transformed into definite rules of law.
In that regard I cannot do better than quote the words of Professor W. P. M. Kennedy, of the university of Toronto, in an address which he read before the Canadian Bar Association last year, which was published and circulated by my hon. friend the leader of the opposition as president of the Canadian Bar Association. At page 14 he said:
The divorce between constitutional law and constitutional theory-reflecting the realities of national groupings-broke up the first empire, ire there dangers of the continuance of that divorce to-day? Who can tell? Of this much I feel certain, that no sane subject of the crown ought to impose legal changes when clear-cut and unequivocal demands require them. You know the doctrine of varied aspects of the indivisable crown. For myself I do not look on the terms of "Canadian" and "British subject" as the horns of a dilemma, as two exclusive categories, rather are they two aspects of an indivisible legal fact. I believe it is not impossible to combine that fullest and most complete dominion autonomy with the deepest and most profound imperial unity; and I want neither, if I cannot have both. But there is always a danger when the laws of empire do not square with the facts of empire. To-day the sky is unclouded; but some Grenville, some North, some Townshend may lie hidden in the womb of time. And we have got
to remember that no theory of law, no sub-stansive law, can per se hold the empire together. Unity is deeper, more elusive, more subtle, than the statute book of any parliament, than the conventions or laws of any constitution; and the "if's" and "but's" of legal objection fortunately have proved to be the stones, rejected by the narrow-minded, which statesmen have built into our imperial fabric. I have stated my faith. I am no legal doctrinaire. Nothing'is more irritating than speeches and editorials about limitations on our autonomy, except perhaps speeches and editorials emphasizing the legal situation at the expense of facts.
was held in order to recommend ways and means of adjusting inter-imperial relations from the legal point of view in order that the law might be brought as far as possible into harmony with the present political status of the dominions and to secure the foundation of the British commonwealth on a firm and stable basis. The conference derived its authority and mandate from the report of the Imperial conference of 1926, which after it approved of certain changes which it deemed necessary to effect in order that the doctrine of equality should be upheld, considered that in the application of principles to certain existing situations detailed examination would be required. The Imperial conference accordingly recommended that a committee should be set up, with terms of reference on the following lines:
To inquire into, report upon, and make recommendations concerning-
1. Existing statutory provisions requiring reservation on Dominion legislation for the assent of His Majesty or authorizing the disallowance of such legislation.
2. (a) The present position as to the competence of Dominion parliaments to give their legislation extra-territorial operation.
(b) The practicability and most convenient method of giving effect to the principle that each dominion parliament should have power to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order and good government of the dominion.
3. The principles embodied in or underlying the Colonial Laws Validity Act, 1865, and the extent to which any provisions of that act ought to be repealed, amended or modified in the light of existing relations between the various members of the British commonwealth of nations as described in this report.
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The question of merchant shipping was also considered by the Imperial conference of 1926, and it was also decided to submit this question to a special committee, the terms of reference reading as follows:
To consider and report on the principles which should govern, in the general interest, the practice and legislation relating to merchant shipping in the various parts of the empire, having regard to the change in constitutional status and general relations which has occurred since existing laws were enacted.
The members of the conference of 1929 were therefore bound by their mandate, and the nature of their work was limited by the terms of reference as expressed in the report of 1926. Our task did not consist of enunciating new principles but in applying and giving effect to the principles accepted in 1926.
Before taking in their order the various subjects mentioned in the terms of reference, may I call attention to the desirability of preserving the conventional element in our constitution. The conventions always have been an important and even a dominant factor in the constitutional system; indeed, it would not be desirable or wise to erect a legal framework of our constitutional relations so as to merge the flexible conventional elements into a single rigid and restricted legal form. The possibility of easy growth and cooperation should be preserved. The peculiar genius of the British constitutional system has been the adjustment of relations by understandings and usages. All that is required is that old formulae and antiquated legal fictions, inconsistent with and contrary to the present state of inter-imperial relations, should be modified or eliminated. As Professor Kennedy stated, the laws of empire must square with the facts of empire.
The first question submitted was that of the power of reservation of dominion legislation. This question falls into two categories, discretionary reservation and compulsory reservation. Under the British North America Act, sections 55 and 57, Canada possesses only discretionary reservation while in Australia, New Zealand and South Africa certain subjects may be compulsorily reserved. Under the old form of law in Canada the Governor General in assenting to legislation adopted by parliament may make certain reservations for the King's assent, and that legislation is reserved until that assent is signified to the Dominion by way of proclamation. There are provisions relating to compulsory reservations in the Merchant Shipping Act, which are applicable to Canada, but I will deal later with that phase of the question. The discretionary power reservation has been dealt with in a satisfactory manner by the declara-
tions of the Imperial conference of 1926 relating to the position of the governor general. The governor general is now the representative of the crown and is not in any sense a representative of the government of the United Kingdom, and any power of reservation which he possesses is no longer inconsistent with equality of status. However, that power can be exercised only in accordance with constitutional practice, that is, upon the advice of the Canadian ministers. It was agreed that a conventional statement by the Imperial conference is all that is required, stating also that His Majesty's government in the United Kingdom will not advise His Majesty the King to give the governor general any instructions to reserve bills presented to him for assent. It was decided also that it would not be in accordance with constitutional practice for advice to be tendered to His Majesty by the government in the United Kingdom which would conflict with the views of the government concerned. It was agreed further that those dominions which possessed the power of amending their constitutions could do so, and that those dominions which required the cooperation of the parliament of the United Kingdom for such amendment would have only to take the proper steps in order to have the necessary legislation passed.
Practically the same principles apply to disallowance, the second question. Section 56 of the British North America Act, which is embodied in other dominion constitutions, is a remnant of the earlier stages of responsible government. Disallowance has not been exercised in relation to Canadian legislation since 1873, or to New Zealand legislation since 1867; it has never been exercised in Australia or South Africa. It is customary to say that the power of disallowance is as dead as Queen Anne. It was the unanimous agreement that a conventional declaration should be made in accordance with the amendment of the constitution as desired by the dominion.
A difficulty arose in connection with disallowance regarding dominion securities appearing on the British trustees list. The Colonial Stock Act of 1900 empowers His Majesty's treasury in Great Britain to make regulations governing the admission of dominion stock to the list of trustee's securities in the United Kingdom. One of the conditions prescribed by the treasury under that act is a requirement that in order to have stocks admitted to the British treasury list, a formal agreement shall be made whereby the British government shall have the right to disallow any legislation which it thinks might affect the securities adversely. This is a matter of
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agreement, and the right of disallowance can be exercised when the dominion government has complied with the conditions. If this principle is adhered to by the treasury, it may have the effect of preventing borrowing by the dominion in the London market. However, as a matter of fact Canada has not borrowed in that market since 1913.
I come now to the question of extraterritoriality, as to whether or not the parliaments of the dominions have the power to enact legislation which would have extraterritorial effect. This question has been discussed in this country and in the other dominions with a marked difference of opinion. There is a conflict in the views expressed by the courts and in the writings of the authorities, both as to the existence of territorial limitations and as to their extent. The decisions of the Privy Council cannot be said to have solved the issue in any definite or unequivocal way. The case of McLeod which originated in New South Wales is usually quoted as the case w'hich established the limitations. That was a case of bigamy and the Privy Council decided that a citizen of New South Wales could not be prosecuted for bigamy when the second marriage occurred outside the territory of New South Wales because the offence had been committed outside the jurisdiction of the government.
By a majority. As the hon. leader of the opposition (Mr. Bennett) says, this question has been discussed in Canada. It was referred to the supreme court and two judges expressed the view that Canada had full extraterritorial power in the matter of bigamy, but three judges decided otherwise. It was in order to meet that difficulty that the Canadian parliament enacted an amendment to the criminal code to the effect that when a person leaves Canada with the intention of going to another place for the purpose of entering into a second marriage, he may be prosecuted, the offence being supposed to have been committed prior to his leaving the country.
Yes. I come now to the Colonial Laws Validity Act, to the principle of the legislative supremacy of the parliament of Great Britain which it embodies, and which creates the most important of all the constitutional anomalies with which the conference had to deal. From the historic point of view, having in mind the circumstances under which British rule was carried across the seas by settlement and conquest, one can easily understand this legislative supremacy and how necessary it was. Strange as it may appear, the act at the time it was passed, was rightly regarded as an enlargement of colonial legislative power rather than a restriction of it. It was enacted to remedy a situation created by the application of the common law rule, that legislation by colonial legislatures was void if repugnant to the law of England. Many decisions had been given by the Supreme Court of South Australia, invalidating several acts of the legislature of that colony under that rule, creating a condition of difficulty and chaos.
The Colonial Laws Validity Act of 1865 was enacted for the purpose of conferring upon colonial legislatures the power of making their laws, even though repugnant to the English common law, but it declared that a colonial law repugnant to the provisions of an act of the parliament of the United Kingdom extending to the colonies either by expressed word or by necessary intentment, should be void to the extent of such repugnancy. The act, of course, conferred validity upon the various laws of the legislature of South Australia which had been declared void by the courts.
As I stated, the aot extended the then existing power of colonial legislatures, but it was enacted two generations ago. In 1865, when the act was enacted, not a single dominion had come into existence and the colonies were small and scattered, being mere communities. The legal situation which was then appropriate, is now recognized to be wholly unsuited to the present day needs and wishes of the dominions. In important fields
of legislation the restrictions upon dominion legislative powers are causing serious inconvenience by preventing the enactment of legislation adapted to particular needs. All the members of the conference agreed that the Colonial Laws Validity Act was absolutely contrary to the doctrine adopted at the Imperial conference of 1926 and that it was necessary that the legal position should be brought into conformity with the changed facts. This is provided for by, first, a recommendation that the Colonial Laws Validity Act should be repealed in so far as it applies to a dominion; second, a recommendation that there should also be a substantive enactment affirming the power of the parliament of a dominion, lest a simple repeal of the act might be held to have restored the old common law doctrine. In the third place, in view of the existence of the legal power of the Imperial parliament under the common law, it was considered that the apropriate method of reconciling the existence of this power with the constitutional position, is to have the Imperial conference adopt a statement embodying the conventional usage, and that this convention should also appear in the proposed act to be adopted by the parliament of the United Kingdom.
I now come to certain remarks of the leader of the opposition (Mr. Bennett) in a speech which he made in the house on the address in the session of 1928. As reported on page 25 of Hansard of that year my hon. friend, referring to the conference of 1926, said:
So as long as the Colonial Laws Validity Act remains on the statute book of Great Britain we have no equality of status. We may as well face these things. Nothing could be worse for this country than to tell the young men of Canada that we have equality of status when we have not.
Then at page 26, he said:
Therefore until such time as the Colonial Laws Validity Act is repealed
and I have no doubt that members of this house would like to know precisely what that act provides-it follows that there can be no equality. It seems to me that nothing could be more fatal, nothing more injurious than to have the younger men of this country wake up some morning and find a decision of the Supreme Court of Canada to the effect that certain legislation passed by this parliament was invalid on the ground that it was repugnant to the provisions of a statute passed by the parliament at Westminster.
Further he said:
Until such time as the British parliament at Westminster repeals that statute to which I have been referring our inferior position must continue.
I have here the provisions of the Colonial Laws Validity Act, which I have no doubt will be of interest to some of our friends, and I will take the trouble to quote from it.
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Then I asked my hon. friend this question:
Mr. Lapointe: Do I rightly infer from my
hon. friend's remarks that he will join with me in asking to have the Colonial Laws Volidity Act repealed?
My hon. friend replied:
My hon. friend, confronted with the difficulty of his own situation, seeks to escape by asking someone else a question. He will find that I am too old to be caught in that way.
I resort to the language of Mr. Gladstone, "I will prescribe when I am called in." I will use every endeavour in my power, so long as I occupy this position to see to it that this country shall maintain a status of partnership within the British Empire and an equality with other partners in the commonwealth.
So that my hon. friend did not answer my question as to whether he would help me in 1920. Now that this thing has been achieved and we merely desire the approval of parliament, I have no doubt that he will gladly give his approval; at least I have less doubt in that respect owing to the fact that my hon. friend has recently given expression to a sound Canadianism and has even referred to equality of status. So I trust that we shall make it unanimous. My hon. friend this year, however, in his speech on the address, owing to the fact that this obstacle has been removed, found another one. He says on page 24:
That report makes certain recommendations, but, sir, can there be any such thing as equality of status in this Dominion and any subordination of one parliament to another if this parliament is deprived of the right to frame our own constitution? That is the test, the supreme test, of equality of status.
I do not agree with my hon. friend there. We do not possess that power at present as a result of the circumstances under which confederation was formed and because our people have not wished it otherwise. But that condition exists solely by will of the Canadian people, and not by reason of the control of a superior non-Canadian authority. Indeed the British authorities would gladly relinquish the exercise of such functions, and they do not hesitate to say so owing to possible amendments to the constitution that might be asked for and objected to by some of the provinces and the serious situation in which the Imperial parliament would thereby be placed. How can this be considered to be a condition of subordination? . All restrictions rest upon our own will. They are not imposed upon us, but we respect and keep them because we want to do so, and they cannot take away from us the character and the rank of a nation.
As pointed out in this report, the question of another mode of amending the constitution
is a matter for future consideration by the appropriate Canadian authorities, and by nobody else. How can this be deemed to be a subordinate situation? The question of adopting another method of amending the constitution has already been discussed on various occasions. It is an important question which requires careful consideration, but I repeat, it will be for the Canadian people, through the appropriate Canadian authorities, to decide as to any changes that may be desired in that respect. The views that I have expressed are I believe the views of the statesmen of Great Britain in that regard.
I shall quote the words of Mr. Amery, former Secretary of State for the Dominions, who was one of the leading members of the conference of 1926. He said:
What it does mean is that each partner in the empire is equally entitled to exercise every function of national life, and if any such function is carried on for the purpose by some other part of the empire, that is a matter of convenience or mutual arrangement, and not an evidence of subordination on the part of one partner in the matter to another.
The Dominion parliament would certainly be one of the main appropriate Canadian authorities, and certainly the parties to the pact of confederation have also the right to be consulted and the right to discuss any new methods proposed.
I shall be brief. In view of what the minister states, that we have equality of status, would he explain what was meant by the phrase of the late Lord Balfour that, although we had equality of status, it did not universally extend to functions. If it does not universally extend to functions, what is the good of it?