July 3, 1944


Gordon Graydon (Leader of the Official Opposition)

National Government


There are more modern precedents than that.

Subtopic:   THE BUDGET

Walter Frederick Kuhl

New Democracy


No doubt there are, but I would point out that this is a matter which cannot be treated lightly. Sir John A. Macdonald did not approve this. When the draft bills were being considered at the London conference, as I pointed out in this house once before-and I have a copy of the draft bill at the London conference which Sir John Macdonald had and which we find quite disfigured-he indicated his disapproval of the words that referred to making Canada a united colony, and he substitutes the words, "federal union". I could elaborate on that much more extensively, but time will not permit my doing so. I conclude that aspect by saying that although the fathers of confederation did intend to create a federal union in Canada, for reasons which I have not the time this evening to discuss, they were not able to consummate the federal union they desired. All they accomplished or were permitted to set up in Canada at that time was a united colony, and to substantiate that statement I will quote from Sir John Bourinot in the book "In Canada Under British Rule" at page 215:

It is interesting to know that in the original draft of the bill the united provinces were called the Kingdom of Canada, tout when it came eventually before parliament, they were designated as "the Dominion of Canada", and the writer had it from Sir John A. Macdonald himself that this amendment did not emanate from the colonial delegates but from the imperial minister.

Another point which substantiates that is the clause in the Interpretations Act, section 18, paragraph 3, which defines the term "dominion". We use the terms "dominion" and "federal" interchangeably, but they are not one and the same thing. The Interpretations Act was passed expressly to define the term "dominion", because we find this:

The expression "colony" shall mean any of Her Majesty's dominions exclusive of the British islands and of British India; and where parts

of such dominions are under both a central legislature and local legislatures, all parts under the central legislature shall, for the purpose of this definition, be deemed to be one colony.

It is therefore clear from this that Canada's position after the enactment of the British North America Act was that of a colony under the term "dominion". I had intended to point out the differences constitutionally that existed before the British North America Act and immediately after, but my time will not permit. The fact is that through the British North America Act Canada was demoted from a self-governing country to a colony. All the powers of self-government in Canada were removed and most of the power was personally in the governor general as agent of the imperial parliament. Section 11 gives him power to summon, appoint and remove from time to time members of the privy council for Canada. Section 14 gives him the power to appoint a commission to the Yukon accountable only to himself, and under section 24 he appoints the senate, while under sections 55, 56 and 57 the power of disallowance over dominion legislation is reposed in the governor general and under section 90 the power of disallowance over provincial legislation, and above all, prior to the British North America Act, the Colonial Laws Validity Act of June 29, 1865, gave the governor general the right to disallow any legislation by simply publishing the fact in a newspaper. Section 6 of the Colonial Laws Validity Act, the effect of which incidentally was removed by the Statute of Westminster, declares:

Any proclamation purported to be published by the authority of the governor, circulating in any newspaper in the colonies, signifying Her Majesty's assent to any such colonial law, or Her Majesty's disallowance of any such reserved bill as aforesaid, shall be prima facie evidence of such disallowance or assent.

I see it is eleven o'clock, Mr. Speaker, and I have five minutes left. If it is agreeable to hon. members I do not mind concluding, but I should like to have my five minutes. I take it that the house is agreeable. I was attempting to establish that Canada did not become a federal union in 1867 but rather was demoted to the position of a united colony with the supreme control of power still residing in the imperial parliament through their agent the governor general in Canada.

Just a quotation or two from the special committee on the British North America Act of 1935 in Canada. A federal union is defined by Beauvier in his law dictionary as follows:

It consists of a union or confederation of sovereign states, created either by treaty or by mutual adoption of a federal constitution.

The Budget-Mr. Kuhl

That implies that a treaty or agreement must be signed by the appropriate authorities and ratified. As to whether the British North America Act was an agreement or a treaty, here is some evidence. Doctor Ollivier at page 54 of the special committee, says:

_ To revert to the statement that confederation is a contract, this proposition contains a number of fallacies: First, confederation so-called is not a confederation; and second, it is not a contract.

Again, Doctor W. P. M. Kennedy, at page 69, says:

I approach this problem as a practical problem and I think we 'have got to get away from the idea that the British North America Act is a contract or a treaty. I do not want to go into that, but it is true neither in history nor in law.

At page 115 we find Mr. Norman Rogers giving evidence and he is questioned by Mr. Cowan:

You do not subscribe to the belief that this was a pact or contract?

. Mr. Rogers: I am thoroughly convinced it

is not either in the historical or the legal sense.

Our own Clerk, Doctor Beauchesne, at page 125, said:

It is quite true that if we applied to the British North America Act the principles followed in the interpretation of statutes, it is not a compact between provinces; it is an act of parliament, which does not even embody all the resolutions passed in Canada and in London prior to its_ passage in the British parliament where certain clauses that had not been recommended by the Canadian provinces were added.

_ I think that is sufficient evidence to substantiate my claim.

I was going to draw a comparison between the federal constitution of Australia and what we have in Canada, but time does not permit me to do so. Therefore I wish to conclude by asserting that we continued from 1867 to December 11, 1931, as a united colony. That situation was changed on December 11, 1931, by the statute of Westminster; whereas we were not self-governing we became selfgoverning. But what was the position? The provinces were not able to federate in 1867. They were not permitted. They would have to draft their own agreement, draft their own constitution and submit it to the people for ratification. They did not do that in 1867. The privilege to federate was therefore a future privilege and therefore, before the provinces could federate, they must become free, independent and sovereign. By section 7, paragraph 2, of the statute of Westminster the provinces of Canada were made sovereign, free and independent in order that they might consummate a federal union which they had wished to consummate in 1867 but were not

permitted to do so. Since December 11, 1931, the provinces have not acted on their newly acquired status. There has been no agreement signed between the provinces since 1931. There has been no constitution adopted; the people have not been consulted on anything. There is not a scratch of a pen in Canada showing where there is any agreement between any of the provinces constituting anything.

I think the most important aspect of this whole situation is the sovereignty of the individual citizens of Canada which is involved. John Locke has this to say on the question of individual sovereignty:

_ Men being by nature all free, equal and independent, no one can be put out of this estate and subjected to the power of another without his own consent. The only way whereby anyone divests himself of his natural liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community.

I wish to assert, Mr. Speaker, on that basis that the people of Canada did not have the privilege in 1S67 to agree to anything and they have not done so since 1931. I contend as a citizen of this country that I have been put out of my state of independence without my consent, and that applies to every citizen of Canada. I demand, therefore, that proper steps be taken in the Dominion of Canada to establish a constitutional position which is in harmony with our status.

If the house will bear with me these are my last words. What is the starting point? This brings me back to some more evidence given to the special committee on the British North America Act in 1935. At page 116 Mr. Cowan was questioning Mr. Norman Rogers and he said this:

Mr. Cowan: You get back to this: your start is another interprovineial conference?

Mr. Rogers: I am afraid it is. I see no

feasible alternative.

Hon. Mr. Lapointe: There is no doubt

[DOT]about it.

Then we have the evidence of Doctor Skelton at page 42 which is as follows:

No other country in the world looks to the parliament of another country for the shaping of its constitution. This solution would only be supported if we believe that Canadians are the only people so incompetent that they cannot work out a solution of their constitutional problem, and so biased that they alone among the peoples of the world cannot be trusted to deal fairly with the various domestic interests concerned.

On a previous occasion in this house I quoted Doctor Beauchesne's suggestions as to how to overcome the situation which exists in Canada, and if the house will permit me I should like to give the quotation at this time. Doctor Beauchesne had this to say, and with this I shall close:

General de Gaulle

The Statute of Westminster has altered our status. . . . What we want is a new constitution. .

The new constitution must leave nobody with a grievance. A spirit of conciliation should predominate. For these reasons, the task must be entrusted to an independent body in which all the elements of the country will be represented. I want the assembly to sit in a city in the west. It would not be necessary for a delegate to be a member of parliament or of a provincial legislature. I would suggest that the assembly do not sit in Ottawa, in order that it may not have the appearance of being dominated or even influenced by the dominion power; and, as the western provinces are of such paramount importance in the country, I suggest the best city for the representatives to gather in would be in Winnipeg.

Whether our country should be changed from a dominion to a kingdom is also a subject which might be discussed. I would suggest that the country could be called "The Federated States of Canada." There have been many disputes about provincial rights since 1867 and it seems certain that when a new constitution is drawn up the distribution of federal and provincial powers will have to be modified.

I have presented what I consider is a reasoned and logical argument. It is a subject which cannot be discussed properly in the short period1 of forty minutes. I take this thing very seriously. I think the time is long past due when we the people of Canada should do something about this serious situation. I believe the statements I have made warrant a reply on the part of some one of the government, either the Prime Minister (Mr. Mackenzie King), the Minister of Justice (Mr. St. Laurent) or some other spokesman for the government. I think they also warrant a statement on the part of the provincial premiers of this country and I shall await their remarks and observe what attitude they take.

On motion of Mr. Homuth the debate was adjourned.

Subtopic:   THE BUDGET

It being eight minutes after eleven o'clock the house adjourned, without question put, pursuant to standing order. Tuesday, July 4, 1944

July 3, 1944