Mr. J. G. Diefenbaker (Lake Centre):
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
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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.
Subtopic: AMENDMENTS TO THE CONSTITUTION
Sub-subtopic: ADDRESS TO HIS MAJESTY THE KING