June 18, 1946

PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

We might bring them a bit of Vancouver, as the minister suggested. However, there are other things in Vancouver which we would not have at any price. The minister is not one of them. But, as I was saying, Acadia is a poor place. The roads are not good. It has railways going in two directions; but they are many, many miles apart, and the north and south railway, running between Calgary and Edmonton, is not in the constituency at all, so that if 3'ou wish to travel from one point in the hon. member's riding to another by railroad,

which you must do when it rains because you cannot drive motorcars then-they know something about mud-you must come clear around into Lacombe, to Calgavy, and from there by the Goose Lake or the Hanna line. So that in a case like that I agree with the application of what the parliamentary assistant to the minister has said. In this country, with so small a population spread over such tremendously wide areas, we must give some consideration to regional difficulties.

A few moments ago somebody sent me statistics of the population of greater Montreal and greater Toronto. I believe that, according to the last census, the population of the dominion is 11,500,007. The population of the two cities I have mentioned is over two million. So that I think the point made by the hon. member for Rosthern (Mr. Tucker) was well made. If you want to tie in Vancouver, with 338,000, and Winnipeg, with 287,000, it is even more evident that to follow rigidly the principle of representation by population would necessarily increase the size of many rural areas, and the people who have been struggling along in those places would not have proper representation.

I now turn to the constitutional side. Modest as I am, like the Minister of Fisheries, I am far from being a constitutional lawyer. Frankly, I have learned more about the British North America Act in the last couple of weeks in this house than I knew in the last thirty or forty years. But certain things in that act are apparent, and here is where I commend and compliment the Minister of Fisheries.. The great defect of the act is that it has no provision for its amendment. That was done in the other commonwealth countries, and that, it seems to me, is the major difficulty which is confronting us now.

I come to the direct question asked by the hon. member for Rosthern. He said this: granted that you consult your provinces-and he wanted to know the meaning of certain words-and then you do not have unanimity, where do you on that side of the house go from there? I think that is, as accurately as I can put it, the question which the parliamentary assistant to the minister asked. I am not going to reply to that directly at the moment, because I say that it all comes back to what the Minister of Fisheries said: there

is no method of doing it. As a lawyer with some regard for the constitution, even without perhaps very much knowledge of it, I am not going to accept the hon. member's view that because there is no regular means we should adopt this means of bulling the thing through. The fact that there may be a majority one way,

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and of course a minority the other way, does not mean that we shall accept the majority view. I am sure that no one on the other side of the house, will give it as his legal opinion that if there is but one dissenter, there is power in the act to accept the view of the other eight. We come squarely back to the fact that we have no method of amendment. So it seems to me of great importance, that we should have a conference, after this bit of a measure has been dealt with, whereby we shall arrive at some scheme for amending our constitution. If we had that now we would not be in this long debate and the various difficulties which we are in.

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LIB

Walter Adam Tucker (Parliamentary Assistant to the Minister of Veterans Affairs)

Liberal

Mr. TUCKER:

Will the hon. member, then, permit a question? I permitted one from him.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

Yes.

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LIB

Walter Adam Tucker (Parliamentary Assistant to the Minister of Veterans Affairs)

Liberal

Mr. TUCKER:

Is he saying that until we can get the power to amend our own constitution we should leave this the way it is, without doing anything about it; that we should leave Ontario with eight members she is not entitled to, and cut down Saskatchewan by four and Alberta by three?

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

May I first say this. Quebec is entitled to increased representation. I have no doubt about that at all. I know there are some people who think that I do not mean what I say and that I am suggesting these things by way of delay. But I tell the parliamentary assistant to the minister that if there is no legal method of amendment we have no right to construct one of our own unless it be based on legal and solid grounds. I hope I make myself clear.

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LIB

Walter Adam Tucker (Parliamentary Assistant to the Minister of Veterans Affairs)

Liberal

Mr. TUCKER:

We have acted to amend the constitution seven times in the past. Does my hon. friend say that that was illegal?

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

If the hon. member is asking my view, I will say that confederation is a pact. It was a pact among equals. The Dominion of Canada was born of four mothers, or perhaps two mothers and two fathers.

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LIB

Hedley Francis Gregory Bridges (Minister of Fisheries)

Liberal

Mr. BRIDGES:

Three.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

Well, make it as many as you like. I am getting into trouble now with these legitimacies.

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LIB

Hedley Francis Gregory Bridges (Minister of Fisheries)

Liberal

Mr. BRIDGES:

What were the four?

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

I am wrong.

I can remember New Brunswick and Nova Scotia, Upper and Lower Canada. I thought that was four.

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LIB

Hedley Francis Gregory Bridges (Minister of Fisheries)

Liberal

Mr. BRIDGES:

No. There was only the one province of Canada at that time.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

The act of 1841 did come in, so let us make it three. You are getting me on the 1841 act. To show you I am a great constitutional lawyer, I even remembered that there was an act of 1841, so that I will go to the head of the class now.

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LIB

Hedley Francis Gregory Bridges (Minister of Fisheries)

Liberal

Mr. BRIDGES:

Does the hon. member recall that the act of 1S67 was a statute and not a pact? It was a statute of Westminster and, in my opinion, it is a statute and not a pact.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

I admit

frankly that the statute of 1867 is a statute- doing what? Confirming a contract. That is exactly what it is. It is a statutory contract, an agreement made between these three people. That is what it is. Let me go farther. Someone may say that I am quite wrong, and I greatly respect the opinions of other people, certainly on any subject with respect to which they know perhaps a great deal more than I do. However, for what it is worth, that is my humble view. But leaving aside all legalizing, all legalities and everything else, what is confederation but the joining together of a number of people to create a whole for the common good? And be the act of 1867 the confirmation of a pact by statute, or a statute standing alone, it is equally the constitution for those who joined it and for the dominion, and there can be no doubt about that. That being so, it seems to me only reasonable and logical that at least consultation should take place.

Goin'g a step farther, I will ask the Minister of Justice (Mr. St. Laurent), when he replies, if he can tell us in his judgment whether or not the earlier part of section 133 can be dealt with by a majority in this parliament; that is, the section of the act which provides for the French language in this house and in the province of Quebec. It also provides for the French language in dominion courts and in the courts of the province of Quebec. I am now the questioner and the great constitutional lawyers over there will perhaps answer me on that point. If I am right, my view is this. It is a severable section. If this parliament by a majority can change the proportion of membership in this House of Commons, that is the proportion by provinces, and if it is held that that is entirely within our jurisdiction, then I assert, with, I hope, some force and with, I hope, some reason, that on the same basis this same body can change section 133. Let us hope that is not so, because those rights granted at that time should never be left to the whim or sometimes, in heat, even to the anger of majorities.

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We who are over here say to our friends of French extraction: We want that maintained and it will never go without your consent. That is our attitude with respect to that. But becoming lawyers once more, my view, and my considered view, is that if we can do constitutionally what we are now doing, we can certainly do that one thing.

At six o'clock the house took recess.

After Recess

The house resumed at nine o'clock.

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LIB

George Alexander Cruickshank

Liberal

Mr. CRUICKSHANK:

Through the courtesy of the hon. member for Calgary West (Mr. Smith) and with your permission, Mr. Speaker, since unfortunately I was not able to be here this afternoon when the Minister of Labour (Mr. Mitchell) made his announcement, I wish, on behalf of the province of British Columbia, to express my appreciation of the action he took and to assure him of all possible cooperation on the part of the farmers, I think on the part of the union, and, I hope, on the part of all other parties interested.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

Before concluding my remarks, Mr. Speaker, may I join with the hon. member for Fraser Valley (Mr. Cruiekshank) in complimenting the Minister of Labour as he has done. This is no time to say it might have been done earlier. We on this side join with the hon. member in his appreciation of the stand the Minister of Labour is taking. We express the hope that those people in British Columbia within whose power it lies to save food for Canada and for Europe will act under Gordon Bell, who incidentally is a friend of mine and who has been named to take charge of this operation.

I am going to try to conclude my remarks with a summation of what I have been trying to say. It seems to be agreed throughout this house that we are all anxious to relieve the province of Quebec of the handicaps under which it labours at the present time. I appreciate that in making this statement there may be some in this house, though I hope not, who will answer it with school-boy, smart-aleck expressions and wisecracks of one kind or another. If that sort of thing is attributed to myself I shall treat it with the silence and contempt it deserves, because in opening my remarks I put on record, lest there be any doubt about it anywhere or at any time, that this was my view, my hope and my conviction.

I should like to join with the Minister of Fisheries (Mr. Bridges) ill complimenting this house on the high plane and high quality of this debate. May I just add that my difference with the resolution is solely a matter of method. I am firmly convinced that we should not lightly contemplate-and I do not use that expression lightly, if I may repeat the word-changes in our constitution. To me, and I think to all who have grown up under it, the constitution is almost a sacred thing. It is that by which we have lived. It is that by which we have known our individual positions, our party positions and afl other positions in the government of this country; and, more than the government, in the economic life of this country. My criticism is as to the matter of method. I may be wrong, but my legal view is that it was a contract made between three people, in which six people later joined. The dominion government was a creature of their making, and it could come into existence only by their agreeing that it should be so made. I do not like poetry much, but a few moments ago I was sitting in my room and the only thing I could think of was something said by Aytoun in one of his poems. Hon. members may laugh; they may not think it apropos, but these words occurred to me:

Sirs! I charge you. keep it holy;

Keep it as a sacred thing,

For the stain ye see upon it

Was the life-blood of your king!

I hope no one will doubt my sincerity, though I may 'have gone far afield ; I hope no one will laugh at my idea that irrespective of what we have done in the past, when the interest may not have been taken in these matters, we are told that now we are a nation. But let us be a nation within the law. Let this parliament not concern itself for the moment with how many members there should be in this House of Commons, though repeating that Quebec still suffers. Is not the task which now commands our attention that of joining parties to find a proper method for the amendment of our constitution?

Let me say this word in closing. May we not all join in saying this. We are all seeking the same thing; we differ only as to method. We on this side fear that if this method is adopted it may open the door to certain things which many of my hon. friends on the other side would not care to see happen. I am not suggesting that the matter be deferred for any length of time, but I am suggesting that perhaps a reference as to our legal position might be worth while. In saying that-and I speak for my party-I am suggesting only a reference to the Supreme Court

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of Canada as to what is our position. I am bound to take issue with the parliamentary assistant to the Minister of Veterans Affairs (Mr. Tucker) in this. The hon. gentleman had a good deal to say about some other country amending our constitution, and he did not want any other person as an arbiter between the dominion and the provinces. I asked him this simple question: are not the

privy council the arbiter now, as they have been for a long time? I am going to say this to the hon. gentleman, because he and I bplong to the same profession, though I suggest he adorns it infinitely more than I do. I am in complete agreement with the abandonment of appeals to the privy council except in matters between the provinces and the dominion. I say with the greatest respect to every individual who belongs to the Supreme Court of Canada that they live here, and nowhere else; they associate here even with humble people like myself, back-benchers in an opposition party, and there is no doubt but that those intangible things do affect people. I am only saying to my hon. friend-and I think if he gives some thought to it he will agree with me-let us be through with appeals to the privy council. But in constitutional matters only, as between provinces and the dominion, let it continue. We want an outside referee.

The Minister of Labour has been seeking an independent chairman for a long, long time. So I say this: I disagree with him only in that little particular

and I know what I am saying is unpopular with my profession. But for the good of this country, and for the preservation of provincial and dominion rights I insist that that be carried on.

I close with this one word, that I trust the Minister of Justice will answer frankly the question I put to him a minute ago. I trust that no infinitely smarter lawyer than I am- and there are many on the other side-will grasp at some phrase, word or sentence which I have used, but that this House of Commons will treat it with consideration, particularly my French compatriots'when I mention section 133. Even though you defeat the amendment, what is more important still is that you will believe that those of us over here, as we believe with respect to you over there, have only one high purpose and one high principle at heart, and that is the good of this Dominion of Canada.

Right Hon. L. S. ST. LAURENT (Minister of Justice): Mr. Speaker, I had not intended

to speak at this stage in the debate. But in view of the earnest question put to me by

the hon. member for Calgary West (Mr. Smith) I think I should make an immediate reply.

However, before making that reply, I believe there are a few observations I should make upon the amendment moved by the hon. member for Lake Centre (Mr. Diefen-baker). I do not propose to discuss any more than he did the abstract question as to whether or not confederation is to be regarded as a compact, a treaty, or a contract. I think that discussion turns upon the meaning one gives to those words. There was no doubt a solemn agreement reached on some definite principles by those individuals who, in fact, purported to represent and to act for the two major groups of the population then inhabiting the lands which are now the territory of Canada, and that agreement is one we, their descendants, are in honour bound to respect; but there was no operative contract or treaty between free and autonomous states capable of making the kind of contract or treaty which would, by its own operative force, bring into effect a new federal state, as a creature of their joint agreement. That is where I differ sharply from the hon. member for Calgary West.

There was only one government at that time for Lower Canada and Upper Canada which comprised by far the larger portion of the two contending elements of the population, and that was a colonial government exercising delegated power to make laws, with the advice and consent of the legislative council and the legislative assembly, which laws, when assented to by Her Majesty or in her name, were to be valid and binding by virtue of the express enactment of the imperial parliament.

The original constitution of 1791, which was only partly repealed by the Act of Union of 1840, expressly stated that there would be set up legislative councils and legislative assemblies for Upper Canada and for Lower Canada, and that in each of the said provinces respectively-

. . . His Majesty, his heirs and successors, shall have power during the continuance of this act, by and with the advice and consent of the legislative council and. assembly of such provinces respectively, to make laws for the peace, welfare and good government thereof, such laws not being repugnant to this act; and that all such laws, being passed by the legislative council and assembly of either of the said provinces respectively, and assented to by His Majesty, his heirs or successors, or assented to in His Majesty's name . . .

And so on.

. . . shall be, and the same are hereby declared to be, by virtue of, and under this act, valid

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and binding, to all intents and purposes whatever, within the province in which the same shall have been so passed.

The Act of Union of 1840 provided:

. . . that all such laws being passed by the said legislative council and assembly and assented by Her Majesty, or assented to in Her Majesty's name by the governor of the province of Canada, shall be valid and binding to all intents and purposes within the province of Canada.

That was the nature of the colonial legislature which had this delegated jurisdiction over Upper Canada and Lower Canada, and the two major elements of population were under that one legislature. Those who represented them respectively in the conference of Prince Edward Island, in the conference of Quebec and in the conference at London were the members of the executive council enjoying the confidence of that assembly.

The constitution of Nova Scotia, the constitution of New Brunswick and the constitution of Prince Edward Island were not even in statutory form but resulted merely from the commissions of their respective governors and the instructions to them from the sovereign.

There was an address voted in this house in 1882 requiring copies of the charters and the constitutions granted by the crown to the provinces of Prince Edward Island, New Brunswick and Nova Scotia; and the Secretary of State communicated with the lieutenant governors of these provinces and received under date of December 20, 1882, from the lieutenant governor of Nova Scotia, that province to which reference has been made in this debate as a sovereign state, a letter in which the lieutenant governor said, among other things, as it is found in the sessional papers of 1883,No. 70 at page 7 of the volume:

The constitution of Nova Scotia has always been considered as derived from the terms of the royal commissions to the governors and lieutenant governors, and from the instructions which accompanied the same, moulded from time to time by dispatches from secretaries of state, conveying the will of the sovereign, and by acts of the local legislature, assented to by the crown; the whole to some extent interprete'd by uniform usage and custom in the colony.

Tire situation was the same with respect to New Brunswick' and Prince Edward Island.

I suggest, therefore, with great respect that it would be a mistake to try to transfer back to the years which preceded the British North America Act the concepts we have to-day of dominions within the British commonwealth. At that time this concept which has been expressed, in the language of Lord Balfour, as free dominions equal in status with the United Kingdom itself, and master of every aspect of their own affairs, is something which just did not exist. These were colonies exercising 63260-166J

delegated powers under the full control of the imperial parliament or the crown advised by its ministers. There is no doubt that the members of those provincial colonial governments rose above the stature of the institutions which could no longer contain them, and they succeeded in founding a Canadian nation. But they had no power to do so by contract or treaty or agreement of their own.

I should like to cite a short passage from an essay on that subject by Professor W. P. M. Kennedy of Toronto university, as follows:

It is impossible to reconstruct those days without emotion: the sordidness of domestic

colonial life; the harrowing tragedy of civil war among a kindred people; the thinly veiled neutrality of political opponents; the scarcely restrained clash of religious and racial animosities. They were brave men, those fathers of our country, of the stuff of which nation-builders are made, who in this city, where Wolfe and Montcalm fell as foes, achieved, as Frenchmen, and Anglo-Saxons, a deeper and more fruitful victory. There is a note I fain would sound: "We are fast ceasing to be dependencies" . . .

It will be noted that that ends with the words of Sir John A. Macdonald that we would soon in fact cease to be dependencies. In spite of the vision and statesmanlike attitude of those brave men, legally they still were dependencies, but as a result of their labours the British North America Act was passed. Dependencies they were in fact, and the legal theory appears to be that stated by Lord Haldane in an Australian case in 1913 reported in 1914 Appeal Cases at page 237. Speaking of the Canadian constitution, he said:

Of the Canadian constitution the true view appears, therefore, to be that, although it was founded on the Quebec resolutions and so must be accepted as treaty of union among these provinces, yet when once enacted by the imperial parliament it constituted a fresh departure, and established anew dominion and provincial governments with defined powers and duties both derived from the act of the imperial parliament which was their legal source.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgaiy West):

Would the minister permit a question which I am asking only that I may understand? Is his argument that because the authority of the colonies was delegated from the master source, therefore it could not mean anything without affirmation of the master source of that power? Do I get him correctly?

Mr. ST. LAURENT: No. The argument I am trying to make is that it would be entirely wrong to believe that in 1867 there was set up by a voluntary act of autonomous preexisting states a union which derived its existence and its powers from those who made the agreement.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

Your criticism is that because they did not have power of

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their own, they all had delegated powers and therefore were not able to unite without the higher powers agreeing?

Mr. ST. LAURENT: No, my argument is that at that time there were not in existence autonomous states and they did not have powers which they could transfer to the central power. The central power does not derive its existence and its authority from the provinces and it does not need to go back to the provinces in order to say what Canada shall be in the future.

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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

Surely the only limitation was that they were acting under delegated power.

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June 18, 1946