June 18, 1946


On the orders of the day:


BPC

Maxime Raymond

Bloc populaire canadien

Mr. MAXIME RAYMOND (Beauharnois-Laprairie):

Mr. Speaker, I should like to ask a question of the Minister of Labour respecting the strike in the textile industry, which affects the employees of Montreal Cottons at Valleyfield. Does the minister intend to intervene in some way in order to bring about a satisfactory settlement for the workers?

Topic:   LABOUR CONDITIONS
Subtopic:   STRIKE IN TEXTILE INDUSTRY-FEDERAL INTERVENTION
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LIB

Humphrey Mitchell (Minister of Labour)

Liberal

Hon. HUMPHREY MITCHELL (Minister of Labour):

All disputes affecting the textile industry in the province of Quebec come under the labour relations laws of that province. My department has not been asked by the Quebec government for assistance. If they should require assistance, we shall be only too glad to render it, as we always do.

Topic:   LABOUR CONDITIONS
Subtopic:   STRIKE IN TEXTILE INDUSTRY-FEDERAL INTERVENTION
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STRIKE IN BRITISH COLUMBIA LUMBER INDUSTRY


On the orders of the day:


PC

Grote Stirling

Progressive Conservative

Hon. GROTE STIRLING (Yale):

May I ask the Minister of Labour whether he has any statement to make respecting Mr. Justice Sloan's meeting yesterday with the union?

R edistnbution

Topic:   STRIKE IN BRITISH COLUMBIA LUMBER INDUSTRY
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LIB

Humphrey Mitchell (Minister of Labour)

Liberal

Hon. HUMPHREY MITCHELL (Minister of Labour):

I believe I shall have something to say later in the afternoon.

Topic:   STRIKE IN BRITISH COLUMBIA LUMBER INDUSTRY
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PRIVILEGE

MR. LENNARD PURCHASE OP PROPERTY IN WENTWORTH COUNTY


On the orders of the day:


PC

Frank Exton Lennard

Progressive Conservative

Mr. F. E. LENNARD (Wentworth):

Mr. Speaker, I rise to a question of privilege. In Votes and Proceedings No. 51, page 1, for June 3, a question appears in my name which was partly answered yesterday. The question referred to properties bought or sold by the government in the township of West Flam-borough, Wentworth county, Ontario, during the past several years. Further to this question I asked what prices were paid for these properties by the government, and at what prices they were sold. This question was not fully answered, as these amounts were not given. I would ask that it be returned to the order paper until fully answered.

Topic:   PRIVILEGE
Subtopic:   MR. LENNARD PURCHASE OP PROPERTY IN WENTWORTH COUNTY
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ATOMIC ENERGY

PUBLIC CONTROL AND SUPERVISION OP DEVELOPMENT, APPLICATION AND USE


Right Hon. C. D. HOWE (Minister of Reconstruction and Supply) moved the third reading of bill No. 165, relating to the development and control of atomic energy. Motion agreed to and bill read the third time and passed.


REDISTRIBUTION

AMENDMENT TO BRITISH NORTH AMERICA ACT AS TO RULES FOR READJUSTMENT OF REPRESENTATION


The house resumed from Thursday, June 13, consideration of the motion of Mr. St. Laurent for an address to His Majesty the King praying that a measure be laid before the parliament of the United Kingdom to effect an amendment to the British North America Act with respect to readjustment of the representation in the House of Commons, and the amendment thereto of Mr. Diefenbaker.


CCF

Frank Eric Jaenicke

Co-operative Commonwealth Federation (C.C.F.)

Mr. F. E. JAENICKE (Kindersley):

Mr. Speaker, I rise to support the motion of the right hon. the Minister of Justice (Mr. St. Laurent) because I believe it corrects an injustice, and I believe further that it comes the nearest to representation by population, when one considers our peculiar historical, geographical and economic position in Canada.

I shall oppose the amendment offered by the official opposition, because I believe its adoption would create a precedent which would put this parliament into a position inferior to that of provincial legislatures. The provincial legislatures have the right and power under our constitution to change their representation. Why should not the federal parliament have the same right? I believe the adoption of the amendment would be contraiy to the spirit of the British North America Act, our constitution.

I should like briefly to deal with the legal and constitutional aspects of the resolution and the amendment before us. Before proceeding to do that, however, may I commend the Minister of Justice upon the clear and lucid exposition he gave of the historical and constitutional background of the resolution. I am also forced to congratulate the hon. member for Lake Centre (Mr. Diefenbaker), who made a convincing address. He is one of those few persons with the gift of making an eloquent argument on a weak case. After listening to the hon. member for Stanstead (Mr. Hackett) I feel I must also include him in my commendation, because I was keenly interested in his argument and, at first blush, deeply impressed. However, I cannot now see the position of the official opposition on the resolution Their official position seems to be, as enunciated by the hon. member for Lake Centre, and as disclosed in the amendment, that they are in favour of the principle of the resolution but first want the provinces consulted.

While in the closing paragraph of his address the hon. member for Stanstead said he was going to support the amendment, still he told us we did not need any amendment at all; that all we needed to do was to change the interpretation of section 51(4) of the British North America Act, so as to have representation by population.

The hon. member for Royal (Mr. Brooks) took another view, that there should be some amendment to provide that the representation in any province could not be reduced below the number such province had at the time of joining confederation. So in the light of these observations, I am at a loss to know just what the official opposition wants.

Since the argument of the hon. member for Stanstead is fresh in our memories, I shall deal first with what he said. He told us that for the last seventy-nine years we have been in error in our interpretation of section 51 (4) of the British North America Act. I disagree with the hon. member on that point, and it is with great respect that I express my dis-

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agreement. Section 51 says that we are supposed to have a census every ten years, and that after each census we shall have readjustments. We have had such readjustments after every census since confederation. The argument of the hon. member for Stanstead is that if a province does not lose any representation, or if its standing is not changed after such readjustment, then there has been no readjustment for such province. On close study of the act I must disagree with that interpretation.

Besides that, we have the judicial interpretation of section 51 (4) of the British North America Act. Both the Minister of Justice and the hon. member for Stanstead quoted the closing paragraph of that decision, and it is unnecessary for me to place it on Hansard * again. This was a decision of the privy council as the result of an appeal following a dispute between the attorney general for Prince Edward Island and the attorney general for Canada. As indicated, the decision is found in 1905 Appeal Cases, 37.

The hon. member for Stanstead said, by way of a second argument-and it sounded plausible at the time-that the decision of the privy council with respect to subsection 4 of section 51 was only an obiter dictum.

I disagree with him on that point; I think it is a decision of the highest court of the empire.

I quote the hon. member, as reported on page 2425 of Hansard, as follows:

-so the statement of the bench is purely an obiter dictum which was never argued and is not a binding authority.

The hon. member then went on to quote the last paragraph of the judgment of the privy council, and then continued:

That is an obiter dictum. It has no bearing on the case then at issue. It was not argued.

Reading the case I would say that it certainly was argued before the privy council. The province of Prince Edward Island objected to a reduction in its membership, and according to the judgment of the privy council it advanced two reasons; first, that they should not be reduced below the number they were entitled to when they entered confederation, and second, that on the interpretation of subsection 4 of section 51 their representation could not be reduced. I should like to put on record the two preceding paragraphs of the judgment of the privy council, as follows:

The case put forward on behalf of Prince Edward Island was somewhat wider in its scope.

It was suggested that section 51 applies only to the distribution of representatives between the four original provinces. But the terms on which Prince Edward Island was incorporated expressly declared that its representation wras "to be readjusted from time to time under the provisions of the British North America Act, 1867."

[Mr. Jaenicke.l

The hon. member for Stanstead said that it was not argued, but this is what the learned law lords said:

It was further argued that, supposing section 51 to apply to Prince Edward Island, still it *was not liable to have the number of its representatives reduced in 1903 for the following reasons: that by the terms of subsection 4 there could be no reduction on any decennial readjustment unless there was a previous readjustment to afford a comparison, so that for any province the first readjustment could not entail a reduction though it might permit of an increase, that there wrns no readjustment for any province unless its representation was altered, and that therefore, by the combined operation of section 51 and of the terms on which Prince Edward Island entered the confederation, its representation could not be reduced unless it had been previously increased.

I submit that the same argument was put forward by counsel for Prince Edward Island before the privy council as is put forward by my hon. friend. I should like to compare a sentence in that judgment with what my hon. friend said, and I quote from page 2423 of Hansard. The hon. member for Stanstead made this argument:

I submit that you must go back to the last time the members were reallocated to the province; not to the last census but to the time the twenty members were allocated-

Counsel argued that there could be "no readjustment for any province unless its representation was altered." I submit the argument in the one statement is almost the same as it is in the other. With great respect I submit that the decision of the privy council was not an obiter dictum. I submit that that is a decision which is binding upon us and it is as we have correctly interpreted subsection 4 of section 51 of the British North America Act for the last seventy years.

I think I shall concern myself only with the legal aspects of the amendment proposed by the official opposition. The hon. member for Lake Centre quoted in support of his argument a number of opinions of statesmen and others which had been offered during the course of years. He argued that the British North America Act should be amended only with the consent of the provinces, but he did not tell us whether he meant unanimous consent or majority consent; in fact he was very vague. If it were to be unanimous consent, I would venture to say it would be practically impossible to amend the British North America Act even if the amendment concerned only the business of this parliament. If the official opposition wanted to establish a precedent, one would have thought they would have put forward some concrete proposition to show just how many provinces should consent or how many should be in favour or against a proposal of this nature.

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As I said, the hon. member for Lake Centre quoted a number of opinions offered in parliament and outside of parliament by statesmen, politicians and other legal authorities. I have done quite a bit of reading myself on this constitutional question, and I could quote some eminent statesmen, politicians and others who took the opposite view. However, I am not concerned so much with opinions as I am with the law. Opinions are of little value so far as the law is concerned. I would point out to my hon. friends to my right that the actions of Sir John A. Macdonald and of Sir Robert Borden under like circumstances would indicate that those two former prime ministers would have used the same methods for amending the British North America Act that the government are using at this particular time.

My hon. friend stated, and I quote from page 2229 of Hansard:

I am not going to enter into a discussion today, interesting though it might be, of the question whether the British North America Act is a pact, a treaty, a statute or a contract.

It would have been illuminating if he had told us at that stage of his argument just what he thought it was. I would conclude from his remarks later on that he thought it was a pact, or a contract, or a treaty. Knowing him to be a very able lawyer I was surprised at his attitude. Looking at the British North America Act, looking at all the amendments since 1867 and how those amendments came about, I would say that our constitution is a statute and nothing else. As such, it is amendable only by the British parliament through an address presented by the parliament of Canada.

The hon. member for Lake Centre laid particular stress upon the importance of precedents. Lawyers appreciate the value of precedents which become part of our law, and it is upon the precedents of the previous amendments to the British North America Act that I am basing my argument. As reported on page 2234 of Hansard the hon. member for Lake Centre called the resolution a novel scheme. With great respect I submit that there is nothing novel about it. We have established precedents which give us the undoubted right to pass this resolution without any reference to the provinces. I endorse the statement of the hon. member for Char-levoix-Saguenay (Mr. Dorion) who said:

It is an indisputable fact that our constitution is founded not only upon the British North America Act, but also upon precedents which have become, so to speak, a part of the constitution.

The hon. member then gave a short resume of the amendments since 1867. I would have refrained from referring again to those amendments if he had given the house a little more information as to just how they came about and why they offered such excellent precedents for the resolution now before us. I will turn first to the amendment of 1871. At that time we asked the British parliament to amend the British North America Act in order to dissipate any doubts which had arisen as to the powers of the Canadian parliament to establish provinces in territory added or to be added to the dominion. They proceeded rather peculiarly in connection with that first amendment. The government, not parliament, requested the British government to submit a bill to the British parliament for the passing of the amendment. The British parliament accordingly drafted a bill and sent it back to Canada, and for some reason or other which I have not been able to find in the records, this bill found its way into parliament, where a resolution was passed and carried unanimously in these words:

The executive government ought not to ask for amendments to the British North America Act without the assent previously obtained of the parliament.

At the time, one Mr. Mills, a member of parliament, made a further suggestion. I cannot find from the record whether he offered a separate resolution or an amendment to the resolution I have just quoted, but he said that when it came down to the representation in parliament of the provinces, the provinces ought first to be consulted. This resolution or amendment or suggestion was negatived without ever being debated, and the resolution which I have just read, that "the executive government ought not to ask for amendments to the British North America Act without the assent previously obtained of the parliament", was passed unanimously, 137 to 0, or something like that. That was the first precedent, and I think the most important precedent. I would ask the house to consider this. This was an amendment passed in 1871. At that time the Quebec conference, the Charlottetown conference, the London conference, and the British North America Act itself were fresh in the memory of the Canadian people. As a matter of fact most of our statesmen of the time whom we are pleased to call the fathers of confederation were members of parliament, sitting either in the House of Commons or in the Senate, and yet none of them except Mr. Mills rose at that time to argue that the provinces ought to be consulted on an amendment to the British North America Act. I think that that precedent established in 1871 was a most im-

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portant and distinguished one, and I suggest to you, Mr. Speaker, that that precedent has been followed ever since under similar circumstances.

Then we have the amendment of 1875, and it is curious to note that although parliament in 1871 had passed a resolution that "the executive government ought not to ask for amendments to the British North America Act without the assent previously obtained of the parliament," the 1875 amendment seems to have been passed simply upon the request of the then dominion government, although that was the first and only time this was done. That amendment concerned the privileges, powers and immunities of parliament. The provinces were not consulted.

Then we have the amendment of 1886, the third amendment to our constitution. Its object was to empower parliament to provide representation of the territories in the Senate and House of Commons. The procedure adopted was that the act was passed by the British parliament in accordance with the terms of an address of the Senate and House of Commons. The provinces were not consulted, and according to the authority of Doctor Ollivier, whose book "Problems of Canadian Sovereignty" has been quoted on different occasions in this debate, the provinces did not ask to be consulted about this amendment to the British North America Act.

In 1907 the British North America Act was further amended. The house adopted a joint resolution asking the British parliament to pass an amendment to permit the increase and regulation of federal subsidies to the provinces. It seems that this amendment was discussed by the provinces, but we have nothing on record as to any consultation by the government with the provinces. In any event we know that British Columbia objected to it. But just the same the resolution was passed and an amendment was made by the British parliament to the British North America Act as requested by this parliament. In reality there was no form of consent or consultation with the provinces.

Now I come to the most important amend-nent of 1915, which was mentioned at length ay my hon. leader when he first spoke on behalf of this group in this debate. This was a very important amendment, as was pointed out by him and by the hon. member for Stanstead. It not only fixed the representation of the senate, but led to the enactment of section 51(A) of the British North America Act by virtue of which the membership of this house is affected, because that is the section which puts a floor underneath the representation of the provinces in this parliament. The hon. member for Stanstead in his address said

that there was a consultation with the provinces in connection with this amendment. I have been looking that up, and the only authority I can find is the book of Doctor Ollivier, which I mentioned before. Doctor Ollivier states emphatically, at page 367 of his book, that there was no consultation with the provinces with respect to the 1915 amendment.

Then we have the amendment of 1916, which extended the life of parliament by one year. Parliament had been elected in 1911, and shortly afterwards we found ourselves at war and the British North America Act was amended in 1916 to extend the life of parliament for one year. There was no consultation with the provinces at that time.

In 1930 an amendment to the British North America Act was passed to give back the natural resources to the western provinces. Of course the western provinces were consulted about that. As a matter of fact they had pressed for this amendment so that they could control their own natural resources. But there was no consultation with any of the other provinces, so far as I have been able to find out.

Another amendment was made to the act in 1940, for the purpose of including the subject of unemployment insurance among the classes of subjects enumerated in section 91 of the British North America Act. In other words this amendment took away the power of the provinces to legislate on unemployment insurance and transferred that power to the dominion. This amendment clearly invaded provincial rights, and in this case I understand that the dominion first consulted with the provinces and they all consented to this amendment. It is very easy to see, of course, why they did consent. But I think it established a precedent, and, speaking for myself, I agree with the principle of this precedent, namely, that if there is to be any interference with the powers of the provinces under section 92 of the act, they ought to be consulted. But I make the statement with a certain amount of reservation, because in the course of time a certain matter assigned by section 92 to the provinces might easily become of such national importance that it would be imperative for this parliament to legislate upon it.

The next amendment was that of 1943, which extended the time for redistribution. It does not appear that the provinces were consulted, the precedent having been the same as had been established on like occasions previously. I know that a protest was made by the legislature of the province of Quebec against the adoption of this amendment, but apparently it was ignored for good and sufficient reason.

Redistribution

So far as the law is concerned I maintain, Mr. Speaker, both as to the act itself and as to the precedents which have been set, that there is no doubt that this resolution can be passed by this parliament without any reference to or consultation with the provinces.

Much has been made by opponents of the resolution that the British North America Act may be a pact, a treaty, or a contract. While these opinions have been expressed ever since the act was passed, the final opinion always seems to have been that such assumption is founded upon a false basis. In order to make a contract or a pact or a treaty, the parties thereto must have the capacity to contract, and I doubt very much whether the four provinces-or three provinces, if you will-in 1867 had the capacity to contract. They were colonies, and as such, I submit, Mr. Speaker, they lacked the capacity to enter into a valid contract. The last resolution of the Quebec conference has this to say:

That an humble address be presented to Her Majesty praying that she may be graciously pleased to cause a measure to be submitted to the imperial parliament for the purpose of uniting the colonies of Canada, Nova Scotia. New Brunswick, Newfoundland and Prince Edward Island in one government.

The resolution itself proves to me that they were colonies at the time and that therefore they had no capacity to contract.

If the British North America Act were a contract or a pact as my hon. friends to my right contend, I should think that the parties thereto would have provided for some amendment or for the preservation of their rights in the pact itself, and that there would have been a provision in the British North America Act to provide for the amendment and to provide for consultation with or consent by the provinces. If it was in the minds of the framers of our constitution that it was a contract, surely some provision would have been made for the consent of the contracting parties to alter the contract; and that by the way, I believe, is the expressed opinion of the late Professor Stephen Leacock, who at one time wrote or talked about this subject matter.

Furthermore, if our constitution were such a contract at the time of confederation, 1867, the provinces would have objected long before this. I know there have been objections, objections which I mentioned when I discussed different amendments to the act, and I know there was a conference some time in the eighties, when Sir John A. Macdonald was still prime minister. This conference was called by one or two of the provinces, and concerned itself solely, or at least principally, with amendments to the British North America

Act. I understand that two of the provinces refused to attend. The dominion government was invited, but Sir John A. Macdonald declined the invitation and wrote in reply what I regard as a fairly sarcastic letter indicating that the dominion was not in the slightest degree interested in this conference.

Apart from this, Mr. Speaker, I think we must consider the effect of the statute of Westminster. According to that statute the British parliament would have no right to pass any laws affecting this country, including any amendment of the British North America Act, unless it was first requested by this parliament. The statute of Westminster does not say anything about the provinces; and on the authority of that statute, also, I maintain that an amendment to the British North America Act can be enacted only by the British parliament on an address from the parliament of Canada.

The hon. member for Royal, whom I mentioned a few moments ago, and who claimed that the representation of the provinces should never be lower than the representation they had at the time of confederation, was very much concerned about the maritime provinces. He said something which I am sorry he said. He remarked that he was not afraid of the province of Quebec, they had got along well for years. He was speaking at the time for all the maritimes. He said he was not afraid of the province of Ontario; but he said that with the western provinces it is a different proposition. He did not say that he was afraid of them, but I think by implication he meant as much. He also mentioned that a great many maritimers had gone to the west and had made their contribution to the colonization and upbuilding of the west. I think he was right in that. Speaking for the province of Saskatchewan, I think we are grateful for the migration we have received from the maritime provinces, not only with regard to agriculture and business but, especially in my province, for the contribution they have made to our law and our education; and I can assure the hon. member for Royal that the foundations so well laid by those migrants from the maritimes and Ontario have made true and good Canadians of all of us. He mentioned also that the C.C.F. have in their platform either the abolition or the reform of the senate and suggested that if this was carried out the maritimes would lose their representation. Undoubtedly the policy of the group is as he stated, but that does not mean that we are opposed to a. floor underneath the representation of any of the provinces, and I do not see why the representation in the senate should form a floor for the repre-

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sentation of the provinces in this House of Commons. We can easily make an amendment to put a proper floor under the representation of each province in this parliament.

Before I conclude there is one appeal I should like to make to the Minister of Justice. It concerns a matter which has been mentioned in this debate by my leader, the hon. member for Rosetown-Biggar (Mr. Coldwell) and also by the hon. member for North Battleford (Mr. Townley-Smith). It concerns the representation of the northwest territories in this parliament. I do not think I need to make any further argument. The hon. member for North Battleford especially confined his remarks solely to this aspect of the debate, and I think he made out a case. The Yukon territory has a population of four thousand; the northwest territories, in round figures, more than twelve thousand. I think their conditions are entirely different. The northwest territories are vaster, and I think the minister should consider amending his resolution by adding one more member to the number he proposes in his resolution so as to provide for a member for the northwest territories.

Topic:   REDISTRIBUTION
Subtopic:   AMENDMENT TO BRITISH NORTH AMERICA ACT AS TO RULES FOR READJUSTMENT OF REPRESENTATION
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LIB

John Watson MacNaught

Liberal

Mr. J. W. MacNAUGHT (Prince):

Mr. Speaker, at the commencement of this debate I had not intended to take any part in it, because I am reasonably sure that the people of my province are perfectly satisfied with the terms of the resolution; but certain statements have been made which render it desirable that I should put upon the record a brief history of the causes leading up to the senate rule amendment. That amendment is contained in paragraph 3 of the present resolution.

Also requiring some comment is an editorial appearing in the May 18 issue of Toronto Saturday Night, under the caption "Equality in the Commons". The parts of it to which I take exception are the following:

The drawing of a sharp line of demarcation between the specially protected areas (Prince Edward Island and Yukon) which can never have their representation reduced, and the rest of the country where rep. by pop. is the unvarying rule, should act to put an end to the business of establishing such favourite areas. The case of Yukon is special because of its isolation, but there was never any justification for the four-member privilege for Prince Edward Island, and it would be most unfortunate if the habit of granting such privileges became general whenever political expediency should suggest.

And further down:

Adjustments during the next few decades will, it seems likely, be to the advantage of the western half of the country and perhaps at the expense mainly of the two maritime provinces which are not protected by special privilege. The special privilege of Prince Edward Island

[Mr. Jaenicked

will become more outrageous with each succeeding decade, if there is any substantial influx of population into the rest of Canada, as from henceforth it will be the size of the electoral unit that will increase and not the size of the House of Commons.

I have always had the highest regard for editorials appearing in that publication. I have usually found them fair, well-written and accurate. I am therefore forced to the conclusion that the editor is unaware of the history leading up to the adoption of the senate rule amendment. All hon. members are aware, I am sure, that the first meeting leading up to confederation was held in Charlottetown in 1864. Any hon. member who has visited the colonial building in Charlottetown must have been shown through the confederation chamber and have looked upon the very tables and the very chairs occupied by the fathers of confederation at that time. That conference was originally called for the purpose of discussing maritime union, but to the conference came delegates from Canada to discuss a broader union. The records of that conference can be found in Sir Joseph Pope's "Confederation Documents". The principle of the broader union was accepted, and the conference adjourned to meet in Quebec. On looking up the records I find that the delegates from Prince Edward Island were willing to discuss any question with regard to confederation except the question of representation. They pointed out that, unless they got six representatives, so far as they were concerned, confederation would not be considered.

The delegates from the other colonies did not see their way clear to granting this privilege, and so when confederation was consummated some three years later Prince Edward Island did not enter. The records of that conference showed that Mr. Brown moved that Upper Canada should have 82 members, Lower Canada 65, Nova Scotia, 19, New Brunswick, 15, Newfoundland 7, and Prince Edward Island, 5. That motion carried, but Prince Edward Island voted nay. Mr. Haviland, one of the delegates from Prince Edward Island, who was strongly in favour of confederation, said:

Prince Edward Island would rather be out of the confederation than consent to this motion.

Further, the suggestion was then made that the delegates from Prince Edward Island should withdraw to reconsider their decision. They accordingly withdrew from the meeting and returned the next morning to give their answer. Colonel Grey, speaking for the others, said:

I am instructed by my co-delegates to say that the provision of five members is entirely unsatisfactory.

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When the delegates returned to Prince Edward Island they were upheld by the legislature, by the people and by the press. The people of Prince Edward Island were willing to discuss any other feature of confederation, but on the question of representation there was no compromise. Negotiations were continued by the parliament of Canada, but the delegation from Prince Edward Island were determined to obtain, and they finally did obtain, six members, although their population at that time entitled them to only five.

I think it must be clear to all hon. members of this house that the point that kept Prince Edward Island out of confederation for six years was the determination to secure six representatives. I am sure that the delegates of the day felt that the representation of six was to be a representation in perpetuity. No other conclusion is logical; no other conclusion is consistent with the long delays. Unfortunately, through some oversight or mistake, call it what you will, this safeguard was not written into the letter of the act, and in 1893 the representation of Prince Edward Island was reduced. From that time the legislature and the government of Prince Edward Island, as well as the representatives of Prince Edward Island in this House of Commons, have kept up a continuous agitation to have the representation of the province fixed at six. This continuous agitation was the cause of the senate rule amendment in 1915.

In this connection I should like to quote from Sir Wilfrid Laurier as reported in the debates of the House of Commons for the session of 1915, volume 1, page 330:

. . . henceforth no province shall have less representation in the House of Commons than it has in the Senate. That was a departure from the principle but it was after all what seemed to me to be a fair compromise. The larger western provinces-Quebec, Ontario and the young giants of the west-are too strong to have reason to begrudge the slight increase in representation which this would give to the eastern provinces. We accepted that compromise-for my part, I was glad to support the committee in that respect-and it seems to me that our friends in the maritime provinces ought to be satisfied that in so doing we endeavoured to dispose of this irritating question in a fair and just manner.

It is therefore apparent that this senate rule amendment was not a mistake but was a sincere desire of the parliament of Canada to dispose of an irritating question in a fair and just manner.

I wish now to refer to a statement made by the late J. S. Woodsworth, as reported in the debates of the House of Commons, session of 1932-33, volume 2, at page 1592:

If a mistake was made in giving a fixed number of representatives to Prince Edward Island, there is no reason why we should follow a bad precedent. The way to get away from that is to amend the British North America Act so that Prince Edward Island would have only its due number and not a number out of proportion to the rest of the country.

I am very glad that the hon. member for Rosetown-Biggar (Mr. Coldwell) does not share these views. I think that is a fair deduction from his remarks as reported at page 2237 of Hansard. This is what he said:

I will take it for granted that Mr. Woodsworth said that. But what I will add is that Mr. Woodsworth may have said that, and in logic he was sound, but in the matter of representation in parliament regional representation may be as important as population representation.

In connection with the statement made by the late Mr. Woodsworth I wish to quote the answer given by the Hon. James Layton Ralston, at that time. It will be found in the debates of the House of Commons, session 1932-33, volume 2, page 1593:

The hon. member for Winnipeg North Centre (Mr. Woodsworth) has been rather strong in his intimation that we must stick to the letter of the pact and that the calculations must be made directly in accordance with the terms of the British North America Act.

Let me remind him-and I do not do it in any spirit of criticism

that when Manitoba entered the confederation she had a representation amounting to less than the required unit for one member. Yet Manitoba was given a representation of four members. In 1881, I believe it was, a readjustment was made as had been provided in the act admitting Manitoba. At that time it was found that, under the strict arithmetical basis to which the hon. member lias referred, Manitoba was entitled to only three members. The fact is, however, that when readjustment took place she was given five.

Let me remind the house further that when British Columbia entered confederation the strict principle was not applied. I need not be tender in my remarks because hon. members must realize that I am making these statements to the house simply to show that the arithmetical basis has not been the only principle upon which we have acted when fixing representations. When British Columbia entered confederation it had a total population of about 40,000 and was given representation of six members, and an irreducible minimum of six. Ten years after British Columbia entered she had only two units of representation, that is to say, her population entitled her to only two members. Ten years later, in 1891, she had a population which entitled her to only four members, if the unit of representation applicable to the maritime and other provinces which came into confederation originally had been applied. Prince Edward Island had only five units of representation %vhen she entered confederation, but was given six members. At the present time the representation of Prince Edward Island is four, the irreducible minimum.

It is abundantly clear, therefore, I submit that representation by population has not

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always been the rule; but that regional representation or adequate representation has been the goal always strived for.

Topic:   REDISTRIBUTION
Subtopic:   AMENDMENT TO BRITISH NORTH AMERICA ACT AS TO RULES FOR READJUSTMENT OF REPRESENTATION
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LIB

Loran Ellis Baker

Liberal

Mr. L. E. BAKER (Shelburne-Yarmouth-Clare):

Mr. Speaker, I wish to say a few

words on this redistribution measure as it alfects Nova' Scotia. I am a bluenose from away back, in spite of the somewhat reddish hue of my countenance. Being a bluenose I am also a maritimer, and being a maritimer I consider that I am a very good Canadian. I have listened with great interest to the able addresses which have been delivered on this most important matter by the Minister of Justice (Mr. St. Laurent), by the Minister of Agriculture (Mr. Gardiner), by the hon. member for Royal (Mr. Brooks), by the hon. member for Cumberland (Mr. Black), by my hon. friend from Prince (Mr. MacNaught) and the masterly address delivered this afternoon by the hon. member for Kindersley (Mr. Jaenicke), who saved me a great many words because he thinks very much as I do.

I agree with a great deal of what was said by the hon. member for Royal and the hon. member for Cumberland, up to a certain point; that is, that the maritimes were discriminated against in years gone by, and possibly to a certain extent up to the present time. But I have noticed a great betterment in recent years, and I think if we deal with each item as it comes up, as far as it affects the maritime provinces, and take care of that item, w'e shall fare far better than if we just keep talking about maritime rights and blue ruin. I have great faith in the maritimes; I think we have a future ahead of us. We have young men of courage there. They say it takes three generations to go from shirt sleeves to shirt sleeves. Many of the wealthy families of the maritimes made their money in shipping; then for a while there was a lag. Now the third and fourth generations are coming along and they have had to get right down to work. I really think they intend to stay within their provinces and make those provinces prosperous.

Last year I was pleased when I learned that the dominion-provincial conference was to be held, and I was much disappointed in its results. It was obvious to me that the dominion was trying to help the maritimes and those less fortunate financially in Canada at that time, and I hope this conference may resume in the near future. I am not digressing, Mr. Speaker; I am merely stating that the maritimes and maritime rights are being recognized now and that they will be recognized in the future if we go about the thing in the right way.

As far as this resolution is concerned, I cannot see that we are hurting the maritimes at all. As a matter of fact it will add one seat to my province of Nova Scotia; that is, we will gain one seat of the ten. Figure that out. I would be very foolish if I did not support this redistribution resolution, even if I were to take it from a purely provincial standpoint. But I. do not believe we should think just provincially; we should think as a country. In this house we must recognize certain things. One of them is that the provinces must deal with provincial matters and the federal parliament must deal with federal matters. We talk so much about passing the buck, and so on, but here is a case where we are endeavouring not to pass the buck. Obviously redistribution, since it affects the federal parliament, should be a matter to be dealt with by the federal parliament. I cannot see it in any other way. I may be asked, Well how about the original contract or pact or treaty or whatever you may call it, that was made at the time the four provinces entered into confederation in 1867? All right. Those four provinces were signatories to the contract, if you want to call it that; but how about the other five provinces and the Yukon? Are they not to be considered? If originally it was a contract, you might say that to a certain extent it is now null and void, inasmuch as others have been taken in since it was originally consummated. I think we must recognize that from time to time we must have changes. I can see nothing unconstitutional in the dominion parliament taking this up with the imperial parliament and having the British North America Act amended. It has been pointed out quite clearly that this has been done previously, so we are not establishing any precedent. I remember a few lines from when I went, to school; I hope I have them right:

The old order changeth, yielding place to new,

And God fulfils himself in many ways . . .

In a young country like Canada, Mr. Speaker, we have to recognize the truth of such statements. I say let the dominion parliament look after its business and let the provincial parliaments look after their business, and have a clear delineation between the duties of the two. In other words let us render unto Caesar that which is Caesar's.

As far as the maritimes are concerned I feel that minority rights are protected. I would object to this resolution if I felt that the maritimes were being unfairly discriminated against. Surely we must have representation by population, provided that minority rights are recognized. While I agree with most of

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what was said by the hon. member for Kinders! ey, I do not think the other place should be abolished. I believe it is most important that we have the other place. If it is desired to establish a retiring age limit there, or something of the sort, that would be a different matter, but it serves a very useful purpose- increasingly so, as I think has been obvious during the last two sessions.

I am not going to deal with this matter at length, but I did want the people of my constituency to know how I felt about it. I am sure they feel the same way. They realize that if this resolution goes through and the amendment is passed by the imperial parliament, Nova Scotia will gain one seat and the membership of this house will be increased, and certainly we need that increased membership. I do not know about other hon. members, but it takes me some weeks to get around my constituency. To do it properly I have to cover a part of it by boat, and it takes a long time to get around. I feel that I am here as a representative of my people, and that I should go and see those people. I did my best last year, but I was not able to get around; and this year it looks as though I will not be getting home until September. However, if things are speeded up I may be able to get around this year, with some luck. I do not believe we should cut down our membership at all, if the poeple are to be properly represented. It is of no use to compare our membership with that of the parliament of the United Kingdom. The areas which have to be covered are small. This is a vast territory, and we should not reduce our membership; if anything we should increase it.

I have been watching the press from the maritime provinces, but in the editorials I have read I have not seen evidence of any great objection to the principle of the redistribution bill. They say chiefly that there should be some alteration in the process of voting, some having a preference for the alternative vote. But they have not objected on constitutional grounds, so far as this resolution is concerned. Therefore I do not believe they are opposed to it; on the contrary they recognize it is a proper procedure.

In the light of what I have said, and what has been said by the Minister of Agriculture and other hon. members who have spoken with reference to the maritime provinces, I hope all hon. members from that part of Canada will back the resolution. It is not only in their interests but in the interests of Canada as a whole that they do so.

Mr. W. CHESTER S. McLURE (Queens): Mr. Speaker, in rising to take part in the debate after so many lawyers have expressed their opinions and read their speeches respecting the law in the matter, an ordinary layman must speak with extreme care. Let me say at once that I am not a lawyer or the son of a lawyer, lest, before I conclude what I have to say, some hon. members may say about me what I have heard said about some lawyers-"God forbid that that fellow should defend me in a serious case".

I take part in the debate, fully conscious of the fact, as indeed have been most hon. members, that this is one of the most important debates we shall have this session. On most occasions we deal with matters of local concern, while on this we deal with one which dates back to the birth of our nation. It is a matter of vital importance to national unity and to the future of our dominion. It is important therefore that vVe understand clearly what it means, and that we should not allow politics to warp our judgment. It is my intention to deal with the matter briefly, from the Canadian point of view; but, like most other hon. members, I shall deal particularly with my province.

Time does not permit my discussing the speeches of hon. members who have preceded me, but I feel I must refer briefly to the remarks of one able debater who spoke a few nights ago. I refer to the Minister of Agriculture (Mr. Gardiner), who in his observations made specific reference to the maritime provinces. I am sorry the minister is not in his seat, because he told a story of having travelled around the maritime provinces, and that all he found being manufactured was coffins. I do not know whether he told it as a joke or as a slur against the maritimes. However, I shall accept it as a joke and in reply tell a story about his province. It is told-no doubt the Minister of Agriculture has heard it-that there were two Scotsmen. Donald and Sandy, who met on a street in Chicago. Donald said to Sandy, "Guid morning, Sandy; why are you so depressed and sad looking?" "Ah weel," replied Sandy, "I've had great sorrow. My brother died in Lemberg"-or Limburger, or Limbo, or whatever it was-"Saskatchewan." The other Scotsman said, "That's nae worry tae what I have. My brother is still living there."

I am not going to attempt to depreciate any province of this great dominion; but if I have any bouquets to throw, I shall throw them to my own province. Introducing the resolution on Mav 28 the Minister of Justice (Mr. St.

Redistribution

Laurent) made several references to Prince Edward Island. As a representative from that province, the cradle of confederation in Canada, I believe I am right when I say that our people in general are most apprehensive of any move whatsoever which would affect, their representation in the parliament of Canada. In regard to our present representation, or even our present representatives, be they good or otherwise, the people from Prince Edward Island will say to the government, to parliament and to the Minister of Justice who introduced the resolution. Ne touchez pas.

Just because we are the smallest of the provinces in geographical area and in population, why should we be discredited, discriminated against and neglected? Since 1867 we have gained little from the confederation agreement that the four provinces of Ontario, Quebec, New Brunswick and Nova Scotia made. Indeed, since we have not prospered in proportion to the larger and newer provinces in Canada, it is fair to say that we have lost much through joining this union. However we were coaxed into it. I am free to say that had the different governments of Canada since 1873 implemented the terms under which we entered the union, we would have to-day a population of more than 300,000 rather than a population which has declined since the time we entered confederation.

Why do I say we would have a population of 300,000? I say it because we have the best possible agricultural conditions of any province in Canada. Ours is the one province which has tried to hold its own without even the semblance of a square deal from the dominion. Admitting that my province is a small one, let me say that my constituents, and those of the whole province, did a splendid job during the war years through which we have just passed. We led the entire dominion in voluntary enlistments in the different armed forces, and supplied a type of soldier that had few equals, much less any superiors. Our farmers made a real contribution in the production of foodstuffs, working under great difficulties, and our fishermen likewise did their share in the work of producing food. We did not share, as did the other provinces, in the wealth brought to the working men because of war industry. We had no war-time houses, and we had no loans under the National Housing Act. Our average income was lower than that in other sections of the country.

A moment ago I said that our farmers produced foodstuffs for war; but what did our farmers and our labourers receive from this government? They did not receive even a thank you. On April 13 last they were handed a plaster of a twelve and a half per cent raise

[Mr McLure.]

in the price of farm machinery and they need to buy a good deal at this time. Furthermore, although the government said that they were going to increase the price of farm machinery they would not permit the farmers to raise the prices of their farm products and voted down a resolution to take the controls off those prices.

We in our province see in this redistribution bill a threat to our representation in parliament. The minister has given the assurance that at no time will the members in the Commons from Prince Edward Island be less than the number of senators from that province. Be that as it may be, the fact is that the minister cannot bind future governments or future parliaments any more than I can if this resolution goes through as it is. When the Minister of Justice was introducing this resolution, in the able speech he is so capable of making as one learned in the law he made this statement, as reported on page 1932 of Hansard of May 28:

The government has come to the conclusion to recommend to parliament the adoption of a petition to His Majesty to cause a bill to be laid before the parliament of the United Kingdom to provide for the repeal of section 51 of the British North America Act as it now stands

The minister said, "The government has come to the conclusion." The cabinet, without the Prime Minister, must have arrived at that conclusion. Is it any wonder that a SOS call went out for the speedy return of the Prime Minister? During the war, one amendment- possibly two-was made to the British North America Act. That amendment was put through so swiftly that it opened the eyes of many people. They realized how precarious were the guarantees that the act provided, and it suggested also to the people the need for further consideration of this act, not as something that was rigid or unalterable but as something the alteration of which should require a greater measure of consultation with the provinces whose whole position depends upon the British North America Act.

It is true that there has been a prolonged and involved legal controversy as to just what constitutes Canadian federation. One group of lawyers hold the opinion that at confederation the original provinces of Ontario, Quebec, New Brunswick and Nova Scotia actually surrendered their independence in order to create a body greater than themselves. Another group of lawyers contend that the essential basis of the confederation agreement was an intimate alliance rather than a submergence of local autonomies. I am not going to enter into the details of that legal controversy, except to say that for practical political pur-

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poses it does seem to me that the provinces cannot be expected to regard themselves simply as creatures of the federal authority, to be made or unmade as the federal authority may decide.

If the claim of the dominion government that it can alter the British North America Act at its own discretion without consultation with the provinces is allowed, then there is established a very dangerous precedent. The present government or some subsequent government may increase its powers and decrease those of the provinces just as it wishes by a majority vote of the house. During the debate on this claim of the government most of the great political leaders from the Right Hon. Sir John A. Macdonald down to the present day were quoted. It was shown that most of them were in favour of consultation with the provinces.

If this power of no consultation be given to the federal government, the provinces of Prince Edward Island and Quebec have the most to fear. In the case of Prince Edward Island we could have our representation reduced to one, or probably to nothing; we could be kicked out altogether and the terms of our agreement of 1875 entirely obliterated. The province of Quebec with its essentially distinct religious and racial character, must regard the integrity of the British North America Act as the only ground and protection of its position.

If the claim of the government that it may alter the British North America Act at its own discretion without consultation with the provinces is carried into practice, it will undermine the confidence and unity of the whole dominion. Putting it in the words of the hon. member for Lake Centre (Mr. Diefen-baker), who so ably debated this resolution, it might open the door to a denial of the rights of minorities by the action of a majority in parliament.

To my mind the point is not whether any proposed amendment is drastic or slight, desirable or undesirable; the point is that the procedure in every case of change should be such as to prevent any federal government from so acting as to impair the position and rights which the provinces possess. The only connection with the British North America Act, 1867, is found in section 2 of the interprovincial agreement of 1866:

Provision being made for the admission into the confederation, on equitable terms, of Newfoundland. Prince Edward Island, the Northwest Territory and British Columbia.

Again, section 146 of the British North America Act grants the federal parliament the power to make an agreement with respect to the admission of Prince Edward

Island. In other words, it grants the federal parliament the power to carry out that portion of section 2 of the interprovincial agreement of 1866, but does not give it power or authority to violate that agreement. Well-known legal authorities who have studied the agreement have stated that- the government of Prince Edward Island, by constitutional force or court action, can compel the carrying out of the dominion-provincial agreement in letter and spirit. If this could be done and were done, it would remedy many of the disadvantages and discriminations under which our province has endeavoured to exist, and which have so greatly retarded its progress.

The greatest objection to this resolution is the arbitrary and undemocratic course that parliament is taking of entirely ignoring the provincial governments. It is for this reason that Premier Duplessis of Quebec is protesting to the federal government even to-day. It is important to note that the point of Premier Duplessis' protest is not the redistribution of seats itself, by which Quebec is certain- to gain the most. It is a protest against the right of the federal authority to alter the British North America Act when and how it sees fit', without consultation with the provinces, whose position may be greatly changed by the amendments in question. The fact that in this particular case Quebec would be the gainer by the amendment is of less importance than the possibility that on another occasion it might find its position seriously impaired.

The Minister of Justice claims he has the consent of the provinces through their federal representatives. Here is one, Mr. Speaker, whose consent he has not. Whether it amounts to anything or not in a house of this size, I will make a minority of one at least. In his reference to provincial consent the Minister of Justice stated on May 28 last, at page 1936 of Hansard:

The provinces, that is to say the people of the provinces, are all represented in this parliament, and for the purposes of such matters as are confided to the jurisdiction of this parliament, it is by those representatives here that the people of the provinces speak.

While the Minister of Justice is supposed to be the highest legal government authority in parliament, I would take the liberty, even as a layman, of disagreeing with that statement. It seems absurd to claim that the agreement arranged between the parliament of Canada and the legislature of Prince Edward Island can be changed in any manner that the majority of the commons and senate may decide upon, at any time, and without consultation with the government of Prince

Redistribution

Edward Island. In 1873 we entered into the agreement with the federal parliament, and we thought that it could not be changed at will by a vote of either or both houses at Ottawa. For instance, at the present time the feeling is that there should be reduced representation in certain of the provinces. On the other hand there is the feeling that there should be increased representation. A very good argument was brought forward to-day by the hon. member for Prince (Mr. Mac-Naught) with reference to our entering into confederation in 1873 with six members. We did not go into the agreement in 1867 because they would not grant us six members; we came in under a separate agreement in 1873 granting Prince Edward Island six representatives in the House of Commons and four in the Senate, and three supreme court judges. None of these things, according to our agreement, can be taken away from us. They can be added to, but they cannot be taken away from. Let any attempt be made to change that provision for three supreme court judges or to reduce our representation in the senate. The same kind of agreement was made with regard to our representation in this house. But we lost out. Whether it was our own fault or not I do not know. Around the corridors Dame Rumour might turn the argument of the Minister of Justice to read: No province shall have a smaller number of members of the House of Commons than it has senators, and the western members then might make a drive to increase their numbers of senators in the west. That may or may not come.

The ground we take in objecting to this resolution is simply that the provinces are being ignored in not being given the right of consultation with the federal government. If a move of this kind is made easy by adopting this resolution, it might be followed by a move to upset the balance in the senate, which would be a very dangerous thing. It would really be a deliberate assault on the very ramparts of confederation. We remember well that while Prince Edward Island entered confederation with six members, that number was whittled down to five in 1891, cut to four in 1901, and was about to be reduced to three after the redistribution bill which followed the 1911 census. But in 1915 our province was consulted with regard to this, and we had our representation restored in that year from three to four members. But we should not have had it cut down from six. However, there will be an opportunity later on for us to urge that matter in this parliament, to bring in a new amendment to go back to the terms of the agreement of 1873 and give us

rMr. McLure.]

the fulfilment of the agreement in every respect and the representation of six under which we entered confederation.

I cannot see that this measure gives us any sense of security. We of the island have too often witnessed our arguments rejected, our claims dismissed, and our views snowed under by the sheer weight of overwhelming majorities.

It is my feeling that this resolution offers little protection to us. I am apprehensive of a move which might reduce Prince Edward Island's representation in the other place; this would be followed by a reduction of membership in this chamber.

The amendment seems to me to offer a substantial measure of protection to minorities. Consultation with the provinces in an established practice in our Canadian democracy. I feel that by consultation with the provinces protection can be given against the power of numbers. In measures of this kind that is the course which the government should take, and not assume to itself arbitrarily the right to dictate to the provinces.

In closing, let me say that it is not solely the matter of representation which concerns Prince Edward Island. If the claim made by the Minister of Justice and embodied in this resolution is established by the defeating of the amendment and the passage of the resolution, Prince Edward Island's agreement of 1873, by which she entered the dominion, is not worth the paper it is written on.

Topic:   REDISTRIBUTION
Subtopic:   AMENDMENT TO BRITISH NORTH AMERICA ACT AS TO RULES FOR READJUSTMENT OF REPRESENTATION
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June 18, 1946