October 20, 1949

PC

John George Diefenbaker

Progressive Conservative

Mr. J. G. Diefenbaker (Lake Centre):

It is

always difficult, Mr. Speaker, to resume a debate after an interval of days.

As I said the other evening, this debate has been singularly free from any manifestation of the national pride which permeated the hearts and minds of those in the United States who, from 1840 to 1866, both before and after the civil war, contributed to a discussion of the fundamental principles of the United States constitution. One thing has been pre-eminent in the outstanding addresses made in this debate by the four party leaders and other hon. members. There has been a realization on the part of all of us that we are not temporary tenants of freedom. We are actually making provision for the rebuilding of our constitution, discharging our responsibility as trustees for freedom of those who follow after us.

We can understand the reasons for the lack of national interest in a debate such as this; for all of us in this country accept the great heritage of our freedom. The British North America Act contains no charter of liberty as does the constitution of the United States. It is not couched in grandiloquent language. It is marked by simplicity. It advances no principles of government or of political philosophy. It makes no declaration of the rights of man, as our cousins south of the line do when from time to time they speak with eloquence and power of a constitution that is couched in magnificent language.

I think the precise draftsmanship of the British North America Act has in large measure denied to us the opportunity to express the pride which the people of the United States have in their constitution, and which in such large measure has given unity to the people of that country. All of us who read extensively on this subject must be impressed by the fact that our great leaders in parliament have not left personal

records of the history of their time as it came within the ambit of their public life and experience. One can go into the library and read the records of the steps in the development of our nationhood, but except for Pope's "Life of Macdonald" and Skelton's "Life of Laurier," which involve in part a reference to state papers, our national leaders other than Sir Robert Borden have failed to leave an intimate record of day-to-day experience as it has come to them during their period of office. I hope that the former prime minister of this country, Mr. Mackenzie King, will proceed with his memoirs and thereby give to posterity a record of one of the most challenging periods in our constitutional history. I hope, too, that Mr. Arthur Meighen, whose contribution to parliamentary government was, I believe, among the greatest in this country, will not only prepare a book containing his speeches, but will also give to posterity a record of the great developments that took place during his period of office, and particularly during the days of the first great war. These things animate peoples. The records of our great leaders become the history of this country. These are of the things of which the national spirit is built.

Our constitution contains no provision for amendment. All of us must have endeavoured to secure some information as to the reason why no provision for amendment was made. It suggests itself to me that the reason was this. There is only one way to amend a statute, namely, by act of parliament. One of the things that has held back the national development of our country which we might reasonably have expected has been the fact that our constitution, in its rigidity, has denied a development in Social spheres which would be in keeping with the advances made during the last thirty or forty years.

In his book, "The Governments of Europe," Dr. W. B. Munro gives the reasons why it is necessary to have provision for an amending process in relation to the constitution in these words-

The amending process may fairly be called a most important feature of any constitution. The purpose of a constitution is to preserve order, but it cannot preserve order unless it promotes progress- and it cannot promote progress unless it is capable of being amended either formally or by judicial interpretation to meet the new needs that arise. A constitution should not be too easy to amend; for in that case it will fail to secure order, stability and continuity in the nation's political life.

We should mark these words so far as constitutional freedoms are concerned. I continue:

Nor, on the other hand, should it be too difficult to amend, for it will then ciog the wheels of political progress and serve as an incentive to coups d'etat

British North America Act

or revolutions. The ideal amending process is one that assures stability without impeding the normal development of political and economic activities among the people. On this general principle all makers of constitutions have been substantially agreed.

Our constitution is amendable in three ways. One is by custom or convention. A reading of the British North America Act will indicate the extent to which, as a result of custom and convention throughout the years, many of the provisions of the act have become inoperative. In the British North America Act there is no provision for a cabinet. The right of the dominion to dismiss lieutenant governors of the provinces, or to a lesser extent to disallow provincial statutes, has fallen into disuse; yet it is part of our constitution. The power of reservation to the king of legislation passed by parliament is no longer effective. Custom has changed that. Indeed, in 1929 at a conference of the dominions it was agreed that the power of disallowance of Canadian legislation by the king no longer existed. The same process of constitutional change by custom has taken place in the United States; the electoral college was set up as a body to ensure that the best qualified in the United States and the greatest potential leader of that country would become the president. Within ten years that express provision was no longer in effect.

Having agreed that there is a need for constitutional amendment other than through custom and judiciary interpretation, one arrives at a point on which there is diversity of opinion among hon. members of this house and the people of this country. To amend the constitution, as has been pointed out over the years, is not a simple matter. The seductive simplicity of the plan now before the house will not spell the end of controversy in this country. As I see it, the problem is not one of urgency at this session of parliament, because the part of the constitution with which we are dealing belongs to all our people. Earlier I mentioned the doctrine of the compact theory. I care not what one's views may be, Mr. Speaker-whether one believes that the British North America Act was a pact, a compact, a treaty or a contract; above everything else, being the possession of all the people of Canada, the constitution, if unity is to be preserved, should be amended only in a spirit of co-operation on the part of the federal and provincial authorities.

I do not believe in the veto of any one province of portions of our constitution, other than those preserving constitutional freedoms; for to accept the principle of veto would be to deny the onward march of events. Having said this, I deny as well the

954 HOUSE OF

British North America Act propriety of an attempted coercion of the provinces to achieve amendments to the constitution.

The Prime Minister (Mr. St. Laurent) mentioned-and they have been referred to since-the precedents that have been established year by year since confederation. The precedents until 1946 were on matters regarding which there was little or no dispute. But in 1946, by a simple majority of parliament, a change was made in the British North America Act that did in effect concern the dominion and the provinces. Some ask me: What foundation have you for that? Well, Dr. Ollivier has been quoted on a number of occasions. In his evidence on the subject before the parliamentary committee he said that section 51 should be amended only with the consent of a majority of the provinces and the dominion.

The amendment of 1946 became a precedent, and that precedent is being applied in the present case. The necessity of amendments is generally agreed to in the house. The British North America Act endeavoured to reconcile the great and abiding principles that are our British tradition, with the experience in the United States that resulted in the civil war in the sixties, but could not be expected to meet all of the complex problems arising over eighty years.

The amendments that are necessary are those which will readjust the terms of our constitution-let me make it clear that in no case do I refer to the constitutional freedoms when I say that-to make it a charter of progress which will permit the realization of the yearnings of the people-not too flexible, not too rigid; flexible, but not too fluid; not too rigid, for if so it brings about the kind of stultifying limitations we have in respect of social services; and it should be sufficiently elastic to meet the needs of changing conditions. I remember hearing a former minister of justice in this country, a great constitutional lawyer, giving evidence in 1935 before a committee set up by parliament, say that what the constitution needs-and I use his own words-is "elastic rigidity".

I wish to refer for a moment to the question whether the pact theory is historically correct. Mention has been made of the stand taken by Mr. King in 1925, and by Mr. Meighen in 1925 and on other occasions, both of whom described the act as a pact, as a treaty or contract.

On February 18, 1925, a resolution was brought before the house by Mr. W. F. Maclean, seeking the amendment of our constitution. I shall not read it in detail, but it is of interest to note that Mr. Woodsworth, a former leader of the C.C.F., and a great

Canadian by any measurement, did not hold the view of hon. members who now sit to my left. Perhaps I should read the resolution, which stated:

We, Your Majesty's most dutiful and loyal subjects . . . pray that you may graciously be pleased to give your consent to submitting a measure to the parliament of the United Kingdom to amend the British North America Act, 1867-

To which Mr. Woodsworth moved in amendment, asking that these words be added-

Upon first obtaining the consent of all the provinces of Canada.

That was in 1925.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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CCF

Major James William Coldwell

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

Mr. Coldwell:

I know that is correct; but did not Mr. Woodsworth subsequently change his opinion?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

In 1925 Mr. Woodsworth moved that amendment. I have not followed up for any variations and changes of opinions. I do say, however, that in 1925 he said that the consent of all the provinces was necessary. Not satisfied with that, Mr. Irvine on February 19, 1925, as reported at page 323 of Hansard, moved a further amendment respecting minorities-

. . . that, before action be taken on the proposed resolution, the same be referred to the conference proposed in the speech from the throne for consideration and recommendation.

That, sir, is exactly the stand we take in the matter. We say it should be submitted to a conference. We say there is need of compromise between federal and provincial authorities if the aims and desires of our people are to be achieved. The spirit of tolerance which animated the fathers of confederation must animate us in all parts of Canada. We have two divergent groups in this country to consider, one of which is for ever speaking about our lack of sovereignty and our subservience.

Where is the lack of sovereignty? In 1925 Mr. Mackenzie King, speaking in the House of Commons, indicated that to ask for amendments to the British North America Act through the British parliament was no evidence of subservience. It was simply an indication of the failure of the Canadian people as a whole to agree as to the method to be adopted. He concluded, as reported at page 334 of Hansard-and I shall only summarize what he said-that Canada could have her constitution amended any time she asked for it. Yet there are still political Don Quixotes who, every year or so, are wresting from the imperial parliament imaginary powers long since obsolete. They are afflicted with what the Prime Minister calls an inferiority complex. They are for ever dilating on badges of colonialism-which have become out of date, by custom, and have

ceased to exist since the Statute of Westminster, following the Balfour declaration of 1926.

Had I time I would refer to quotations indicating that the Balfour declaration in fact represented the consensus for many years in all parts of the commonwealth. Then there are the strong and outspoken imperialists who believe that any advance in the process of self-government will lead to disruption of our relationship with the commonwealth and empire. No Canadian can but be proud that through the warp and woof of our constitution are the golden threads of our British heritage.

I believe in the British relationship-and I speak as one whose racial origin is not all British. My paternal ancestors came here for freedom under the British crown. I want to see that relationship continued and expanded in the closest concept of our commonwealth. Our problems will not be solved by extremists. There must be a spirit of compromise, lacking in the resolution before parliament. What we are in fact setting out to do is to delineate by a definition of parliament the responsibility and jurisdiction of the federal authority. The Prime Minister shakes his head to say no-in appearance, no; in actuality, yes.

I find it necessary often to quote Mr. Ernest Lapointe, for in the years that he occupied high positions in Canada he epitomized that statesmanship which brought together many of the adverse elements in our country. An experienced statesman, he knew the problems of this country. The Prime Minister has contended that the dominion will not secure the power under this amendment to interfere in any way with provincial jurisdiction. Is the line of demarcation clear? On May 11, 1931, the former minister of justice (Mr. Ernest Lapointe) said:

I have said that the system to amend the constitution is vague. We really do not know what are the amendments in respect to which the assent of the provinces should be first received and those in respect to which such consent is not necessary.

And he referred to the shadowy boundary between them. The right hon. gentleman said that the government does not intend to infringe upon the jurisdiction of the provinces. When did they develop that attitude? Since 1922, in the Fort Frances case, the government of which he has been a member has on more than one occasion infringed upon the jurisdiction of the provinces under the doctrine of emergency. Only ten years ago the doctrine of economic emergency was extended to the doctrine of defence emergency.

My right hon. friend avers that the courts will prevent invasions of the provincial jurisdiction. The United States supreme court

British North America Act is part and parcel of the constitution, and actually rewrites the constitution in the judgments it gives. I would point out that in the United States-I am not advocating that system-while the judges of the supreme court are nominated by the president the appointments must have the support and acquiescence of the United States senate, thereby assuring that under their constitution as far as possible no consideration other than judicial fitness will be a reason for appointment.

The question arises: What procedure should be followed? I shall not deal with the question of procedure, except to say that in the dominion-provincial conference of 1927, to which the Prime Minister made reference, the matter was discussed. What happened? Page 11 of the report sets out what actually took place when no agreement could be arrived at. It was not a case of truculence 'or lack of patriotism on the part of those in attendance, because I think almost all the representatives were of the Liberal party. They could not come to any agreement.

The matter continued to be referred to until 1935, when there was another dominion-provincial conference. If ever a dominion-provincial conference met under auspices which might lead one to expect the dove of peace to be present, it was that conference of 1935. There was only one dissenter in the group so far as politics were concerned, and that was Mr. Aberhart from Alberta. There were representatives from eight Liberal governments. Who was it that dissented? Mr. McNair, the present premier of New Brunswick, was the one who dissented from the recommendations.

In 1927 Mr. Lapointe suggested that the proper way to proceed was by joint resolution of both houses of parliament, with the approval of five of the provinces. In the case of sections 93 and 133, and subsections 12,

13 and 14 of section 92, the consent of all the provinces should be required. Much the same general viewpoint was expressed by Dr. Ollivier in the evidence which he gave before a parliamentary committee in 1935 that there are 53 sections where consent is not required, of which some are out of date. There are 40 sections where the consent of the provinces would not be required; there are 12 sections where the consent of one province would be sufficient, and there are 39 sections-including section 51, which was amended in 1946 by a simple majority of parliament-where the consent of a majority of the provinces would be required. Finally, the consent of all provinces would be required in connection with sections 5, 6, 7, 93, and 133, as well as subsections 12, 13 and

14 of section 92.

British North America Act

It is dangerous for this parliament in effect to say to the provinces: You could not agree during all these years, so we intend to go as far as we can and divide this constitutional amendment into two parts. Anything that can be interpreted as coercion would deny the desire of the Canadian people to achieve that confederation which we all desire. Coercion, or any suggestion of it, will spell disunity and is a denial of the faith of the fathers of this country. Our democratic system is a matter of compromise, not of counting. Under a dictatorship the individual is counted; under a democracy he counts.

There are those who say that the doctrine of compact has no application. I do not intend to argue that question for I cannot speak with the assurance of those who say definitely that the B.N.A. Act is a compact and those who say definitely that it is not. We want to preserve this federal union. There can never be a dictatorship in this country as long as our federal union is preserved. A dictatorship comes only under a unitary state.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Elie Beauregard (Speaker of the Senate)

Liberal

Mr. Speaker:

The hon. member's time has expired, but I am sure he has the unanimous consent of the house to continue.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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?

Some hon. Members:

Go ahead.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

I do not make it a practice to speak beyond the period allotted to me, but I shall complete what I have to say in a matter of a few minutes. I want to thank you, Mr. Speaker, and through you the hon. members of the house, for granting me this courtesy.

On October 13, 1943, the Prime Minister spoke to the Women's Canadian Club in Montreal on this subject, and the report in the Montreal Gazette reads as follows:

The only remaining restriction standing in the way of complete freedom from the British parliament was that which makes it necessary to apply to Westminster for an amendment to the British North America Act, which constituted Canadian confederation.

That restriction, said Mr. St. Laurent, was placed there "at our own request."

"We are all, I think, agreed that whenever it (the constitution) has to be amended, that operation should be performed by our own representatives right here within our dominion," he added.

"But we have not devised a scheme to make such amendments which will provide proper safeguards for the rights of the provincial authorities and of minorities, now secured under the terms of the British North America Act."

That is what the Prime Minister said in 1943. As we are not to have a committee of parliament on this subject, I now ask the Prime Minister what plan the government of Canada will submit to the dominion-provincial conference. What subjects of legislation is it intended shall be exchanged between the dominion and the provinces? What are the safeguards to be provided in respect of section

133 and the other fundamental sections which provide for freedoms? How is section 133, which deals with languages and other matters, to be preserved for the benefit of future generations? I ask the Prime Minister whether it is intended, when this address passes this parliament and finally becomes law at Westminster, to amend section 133, and if so, in what particulars? These are some questions which the people of this country would like to have answered. Why the inordinate haste, if the situation be as clear as the Prime Minister says it is, and only matters coming under federal jurisdiction will in fact be dealt with by legislation? What are the matters coming under federal jurisdiction that will shortly find their way into this parliament in the form of legislation introduced as a result of this amendment? The house as a whole has a right to full information.

Why not wait until a constitutional convention is called, such as was recommended by Mr. Bennett in 1937 and approved by Mr. King as the ideal way to go about it? That method was conceived many years ago in the mind of Sir Clifford Sifton, one of the great statesmen who came out of western Canada. It was his idea that such a conference should be convened, giving equality of representation to the provinces and to men of all political faiths. It was his hope that their deliberations would have the same result as the deliberations of those who formulated the constitution of the United States, and of those who on occasions since have made recommendations for the content and scope of constitutions in other states. It was his hope that those attending such a conference could join together, not as partisans but as Canadians, to recommend changes in the constitution to remedy provisions which constitute a detriment to the development of this country. Again 1 refer to Mr. Ernest Lapointe, who, on February 19, 1925, pointed to the dangers of arbitrary action. We are not here to fight over the internecine difficulties that exist as between the Prime Minister of Canada and the premier of Quebec. We are here as Canadians to try to work out a solution to a problem that has tested and challenged the statesmanship of Canadians through the years. Is there anything new in this partly bifurcated step? Mr. Meighen thought about this in 1925, but realized that it would create an anomalous situation in dividing the manner and means of amendment of the Canadian constitution without first having consultations with the provinces.

With the overwhelming majority the government enjoys, sometimes it seems futile to speak here. We cannot hold them back. We cannot determine their course. Warn we can

that to bring in this measure before convening either a dominion-provincial conference or a national assembly for the purpose of considering methods of amending the constitution augurs danger for the future. For it may well turn out that this address, instead of being a landmark in our forward march, will be the gateway to constitutional confusion. Cynicism, despair, fear that we cannot get Canadians together, should not prevent the convening of a conference before this address goes to the British parliament, and where there is unfairness or injustice on the part of anyone in the conference or a refusal to co-operate, the Canadian people will know the facts. We shall never secure what we all want, the kind of Canada pictured by Vincent Massey in his monumental work, by expressions of animosity or truculence as between dominion and provincial authorities.

So once more, Mr. Speaker, I ask, why the haste? Why not postpone this measure until the next session of parliament? Call a conference. If it proves abortive, if we have the power to do what the Prime Minister contends must be done, I will join with him, no matter what others may do, and support him. I shall make my contribution, humble though it may be, to the rebuilding of a foundation that will bring about a constitution in keeping with our responsibility as a nation.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Right Hon. L. S. St. Laurent (Prime Minister):

Mr. Speaker, I do not rise at this time to reply to the arguments which have been advanced against the course proposed by the government. It will be my privilege to do that at a later stage of the debate. But let me say at once to the hon. member for Lake Centre (Mr. Diefenbaker) that no matter what disposition may be made of this resolution, I hope we will have his support in our forward march toward the destiny that lies ahead for our country.

I would point out to the hon. member that there are some of us who, in the face of what has been going on, and with all the precedents that have been referred to and commented upon, prefer half a loaf to no bread at all. Though it may be said that this is doing things piecemeal, we would rather have this piece than not have anything.

Because of the amendment moved by the hon. member for Winnipeg North Centre (Mr. Knowles), I thought at this time I should say that, in spite of what the hon. member for Lake Centre said the other evening, many of us do see some merit in the principle embodied in that amendment. If no reservations were being made in this resolution, there would be no occasion for the amendment proposed by the hon. member;

British North America Act but I think we all recognize that there are no greater safeguards for the democratic institutions of our nation than the right of parliament to be assembled at least once a year and the right of the people periodically to express their satisfaction or dissatisfaction with those who represent them in parliament. I am as firmly attached as any Canadian could be to the other privileges mentioned- with respect to education; with respect to the use of the English and French languages in this country, and so on. They are rights which I do not think would ever be interfered with by any free parliament, but as to which there is a feeling that it would be more comfortable to have a safeguard expressed in formal terms. If that be so in connection with the rights of a part of the citizens of Canada, be they majorities or minorities, it does not seem illogical that there be some expressed formal guarantee of the right of the whole of the people of Canada to have their representatives called together at least once a year, and also their right to have their representatives come before them periodically to receive the verdict of the people as to whether they are satisfied or dissatisfied with the manner in which their representatives have been attempting to represent them in their parliament. After all, parliament is not the parliament of the government, nor the parliament of those who are elected to sit on these benches; it is the parliament of all the Canadian people.

Though I am convinced that neither this parliament nor any successive parliament would lightly attempt to interfere with any of those rights, I see no logical objection to having them expressed, when other rights are being entrenched by the proposal that is now before the house. It does seem to me, however, that there might be an occasion when a large majority of the members of parliament would feel it would be against the interests of the country to have an immediate election. It is conceivable that that could be the case, for instance, in times of war. It did happen once. It is conceivable that an overwhelming majority would feel it would be contrary to the best interests of the nation to have an election. It takes about three months to hold an election, and there are periods when it would be most embarrassing to a government charged with the responsibility for the security of the Canadian nation to be thrown into the midst of an election campaign.

During most of the last war I was charged with part of the responsibility of government. There were many, many months during that war when I think it would have been dangerous to the country to have held an election. I believe it would be wise, if we do

British North America Act entrench those provisions, to have a proviso that could not be lightly relied upon, but would be there in case an overwhelming majority did feel that, under war conditions, it would be dangerous to the safety of the state to have an election. That happened in the United Kingdom during the last war. I think it was the feeling of the overwhelming majority in the country that it was wise to avoid having an election.

I would, therefore, ask one of my colleagues to move an amendment to the amendment, which- would strike out some of the words that appear to be unnecessary in a constitutional amendment, such as the reference to section 20 and section 50 of the act. Certain words would be added at the end of the amendment. The amendment to the amendment which I would have proposed would strike out in the fourth and fifth lines the words, "requirement of section 20 of this act," and substitute therefor the word "requirements;" and strike out in the seventh and eighth lines thereof the words, "or as regards the requirement of section 50 of this act," and substituting therefor the word "and". Then, at the end of the proposed amendment there would be added, after the words "five years", the following words, "from the day of the return of the writs for choosing the house." Then, this proviso would follow:

Provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection-

I may point out that those are the words in the War Measures Act which describe that condition.

-be continued by the parliament of Canada, if such continuation is not opposed by the votes of more than one-third of the members of such house.

My experience has been that in times of stress, most if not all of the members of parliament sink their partisan feelings and do endeavour to act in a manner which they believe in their hearts and consciences is in the best interests of the country. I would think that if this proviso were worded in that fashion, then a continuation of parliament could be prevented by a third of the members of the house and the constitution would take its course. If there were an overwhelming majority, and I can conceive of a condition in which there might be no objection whatever from any quarter, it would be possible to postpone an election for a reasonable time. It would have to be a reasonable time, otherwise the members would not give it their support.

I do not propose this amendment because I apprehend there will be any circumstances during our lifetime when it would be apt to be used. If, however, the resolution is passed and implemented by the parliament at WesttMr. St. Laurent.]

minster it is something which will go into the constitution. In my view, it will not be wise to have a constitutional convention for a long time, and to disregard eighty-two years of our experience since confederation. We had a very interesting and sincere debate the other day upon the doctrine of stare decisis. A great deal has been decided under our constitutional act of 1867. I think it would be a mistake to throw all that aside and to start with new language and new texts. In such a case, the whole process might have to be gone through again. The decisions rendered might no longer be applicable to the kind of language that would be used.

After all, the very preamble of the British North America Act is an expression of the desire of the people of the colonies of that day to have a constitution modelled on the British constitution. The British constitution is the result of experience, the fumbling, if you will, the trial and error of centuries. It seems to me it would be the part of wisdom to retain the old structure and make such alterations or improvements from time to time as the living generation may feel it in order to do. We should retain the substance of that which has been the outgrowth of the language used in the original act. Because I foresee the continued existence of much of the language of the British North America Act, and because no one in these days can be sure what the future may bring, I think it would be wise, if we do entrench these essential rights of the Canadian citizen with respect to his parliament and his government, and to have a proviso that might some day be useful.

I would therefore ask my colleague, the Minister of Justice (Mr. Garson), if he would move, as an amendment to the amendment, the words I have cited. If that subamendment were adopted, it would mean that the amendment as amended would read as follows:

The amendment from time to time of the constitution of Canada, except as regards matters coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces, or as regards rights or privileges by this or any other constitutional act granted or secured to the legislature or the government of a province, or to any class of persons with respect to schools or as regards the use of the English or French language, or as regards the requirement of section twenty of this act that there shall be a session of the parliament of Canada at least once each year, or as regards the requirement of section fifty of this act that no House of Commons shall continue for more than five years from the day of the return of the writs for choosing the house, provided however that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such house.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

Arthur Leroy Smith

Progressive Conservative

Mr. Smith (Calgary West):

Before this motion is put, will the Prime Minister permit a question purely for clarification? When you speak of one-third of the members, I take it that you mean one-third of the members present and voting?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

No, Mr. Speaker; I thought that would then be a serious matter and that anyone who was not in agreement that an election should be postponed would come forward and say so. It could not be done except with an almost overwhelming majority. In drawing this amendment I felt that it would be a matter of such gravity that anyone who took the view contrary to that of the majority should come forward and register his vote against the proposed continuation.

I am not making this answer to the hon. member as an argument, but merely to clarify what I had intended in drafting the amendment to the amendment.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

Arthur Leroy Smith

Progressive Conservative

Mr. Smith (Calgary West):

You did consider the point?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

We considered it, and it was done purposely to accentuate the gravity of the matter with which it was supposed to deal.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Will the Prime Minister permit another question in order to elucidate the effect of the amendment? In the case indicated by the Prime Minister, suppose the two-thirds vote is not favourable; what is there then to prevent parliament, by a simple majority in both houses, proceeding to pass an address asking the parliament at Westminster to suspend those two sections of the constitution which require the holding of an election every five years and a session of parliament once a year?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

There would be nothing but the sense of responsibility that would have developed in the Canadian nation by exercising at home its control over its own affairs. There would be no other thing than that. But I would imagine that if and when this is done, and if and when, after a conference with the provinces, the other provisions are subjected to a process of amendment in Canada, it would then be rather distasteful to members of parliament to recognize the fact that they could not, under the machinery they themselves had set up, do what was required and that they had to ask a parliament responsible to other electors than their own to do it for them.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

Agar Rodney Adamson

Progressive Conservative

Mr. Adamson:

May I ask the Prime Minister this question? It would then take eighty-eight recorded votes in this house to postpone an election?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
Permalink
LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

Yes, provided there were no vacancies and there was a majority that

20. 1949

British North America Act felt it could take the unusual step of refusing to the electors an election at the given moment.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
Permalink
PC

Agar Rodney Adamson

Progressive Conservative

Mr. Adamson:

It is just a question of procedure.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
Permalink
LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

That is something which, during the whole of the last war, my predecessor always stated he would not take the responsibility of proposing. The hon. gentleman will remember that there can be diverging views in perfectly good faith about that, and even changing views. If my memory serves me correctly, the leader of the opposition in 1915 agreed to or did not oppose the extension of the life of parliament; then in the next year, when a further extension was proposed, he did oppose it. It is a matter which I think members try to deal with according to their own views of what is at the moment in the best interests of the nation.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

Howard Charles Green

Progressive Conservative

Mr. Green:

May I ask the Prime Minister a question, Mr. Speaker? As I understand it, this amendment would mean that the present government, which has over two-thirds of the members of the house, could, if it so wished, extend the life of parliament beyond the five years.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
Permalink
LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

That question is, I suppose, merely for clarification, Mr. Speaker; but a hypothesis like that would not arise except in the case of war, real or apprehended. I can give the hon. member the assurance that for the duration of this parliament there is no thought at the present time that there need be any fear about war, real or apprehended.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
Permalink
PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

May I ask the Prime Minister this question? Where does the Senate come in?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
Permalink

October 20, 1949