November 8, 1945 (20th Parliament, 1st Session)


Walter Frederick Kuhl

Social Credit


I continue:
Mr. Kuhl: I placed on Hansard on February 10 .a clear outline of the reasons for my statement. If the' hon. member wishes to refute any of the facts or arguments which I placed before the house, I shall be pleased to hear the refutation.
Mr. Thorson: Why battle against windmills?
I submit that the subject matter and the arguments which I presented on that occasion were worthy of more intelligent criticism than

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was exhibited by that hon. gentleman. I have long ago learned that when an individual has a weak argument, or no argument at all, he usually resorts to personal abuse of his opponent. If hon. members have not a better argument to make than Mr. Thorson made on that' occasion, I suggest that they hold their peace.
In submitting my argument, Mr. Speaker, I wish to assure you that I am actuated by the highest possible motives. We proudly proclaim our faith in democracy; we proclaim it from the housetops. I wish to urge that we practice what we preach. Let us demonstrate democracy instead of merely paying lip service to it.
It is my desire to see the people of Canada consulted where their fundamental rights are concerned. I wish to see government of the people by the people. These are the motives which actuate me in what I have to say on this resolution.
In presenting the special case I am about to discuss I am not necessarily speaking as a member of the Social Credit group; I am speaking as a native of Canada. The matters on which I am to speak are of fundamental concern to every citizen of Canada regardless of his or her political persuasion. They are among the most serious matters upon which a citizen can be called to think; they are the bed-rock considerations of human government.
In order to endeavour to account for the contradictions in Canada's constitutional position and to suggest a remedy therefor, I wish to lay down some fundamental premises on which I shall base my entire argument. Locke is credited with saying:
Men being by nature all free, equal, and independent, no one can be put out of this estate and subjected to the power of another without his consent. The only way whereby anyone divests himself of his natural liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community.
Jefferson, in the declaration of independence, states:
We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit ef happiness; that to secure these rights governments dre instituted among men, deriving their just powers from the consent of the governed.
In addition to that premise I wish to indicate the definition of a federal union. What is a federal union? Bouvier in his law dictionary defines "federal government" as:
-a union or confederation of sovereign states, created either by treaty, or by the mutual adoption of a federal constitution.
Doctor Ollivier, joint law clerk of the House of Commons, on page 85 of the report of the special committee on the British North America Act, said:
A confederation is a union of independent and sovereign states bound together by a pact or a treaty for the observance of certain conditions dependent upon the unanimous consent of the contracting parties, who are free to withdraw from the union.
A. P. Newton, in his book entitled "Federal and Unified Constitutions," at page 5 says:
A federal state is a perpetual union of several sovereign states based first upon a treaty between those states or upon some historical status common to them all, and secondly upon a federal constitution accepted by their citizens.
Two points stand out prominently in these definitions. The first is that the states which form the union must be sovereign, free and independent before they federate; the second, that the federal constitution which forms the basis of the union .must be accepted by the citizens of the federating states. I think it worth while in this connection to point out that when the states of Australia federated, the people of Australia were provided with two opportunities of voting on their constitution. I should like to quote a paragraph from a history of the Australian constitution by Quick and Garran. This paragraph is on the meaning of the words "have agreed" in the constitution, and it states:
These words make distinct and emphatic reference to the consensus of the people, arrived at through the procedure, in its various successive stages, prescribed by the substantially similar enabling acts adopted by the legislatures of the concurring colonies. In four of the colonies acts w'ere passed enabling the people to take part in the framing and the acceptance or rejection of a federal constitution for Australia. Through those acts the people agreed, first, to send representatives to a federal convention charged with duty of framing for Australia a federal constitution under the crown in the form of a bill for enactment by the imperial parliament, and, secondly, they agreed to pronounce their judgment upon the constitution at a referendum, which in each colony was arranged to follow the convention. In all the colonies, the constitution was eventually referred to the people. At this referendum each voter was enabled to vote by ballot "yes" or "no" on the question asked on the ballot paper, "Are you in favour of the proposed federal constitution?"
In this manner there was in four colonies, a popular initiative and finally in all the colonies a popular ratification of the constitution, which is thus legally the work, as it will be for all time the heritage, of the Australian people. This democratic method of establishing a new form of government may be contrasted with the circumstances and conditions under which other federal constitutions became law-.
Now I should like to ask a few questions concerning our position in Canada. Did the provinces of Canada desire federal union? ,
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The Quebec resolutions, the London resolutions and the draft of the bill by the London delegates all indicate that the provinces of Canada desired federal union. The preamble to the Quebec resolutions reads:
The best interests and1 present and future prosperity of British North America will be promoted by a federal union under the crown.
Clause 70 of the Quebec resolutions indicates that whatever agreement was arrived at by the delegates would be submitted to the provinces for their approval. It reads:
The sanction of the imperial and local parliaments shall be sought for the union of the provinces, on the principles adopted by the conference. .
Furthermore, a bill drafted in London by the Canadian delegates contains the same preamble that appears in the Quebec resolutions, and this draft bill also contains a repealing clause which hon. members can find on page 179 of Pope's "Confederation Documents". It reads:
From and after the union, all acts and parts of acts passed by the parliament of Great Britain, the parliament of the United Kingdom of Great Britain and Ireland, the legislature of Upper Canada, the legislature of Lower Canada, the legislature of Canada, the legislature of Nova Scotia, or the legislature of New Brunswick, which are repugnant to or inconsistent -with the provisions of this act shall be and the same are hereby repealed.
The next question is: Did Canada become a federal union under the British North America Act. I submit that the manner in which the bill was drafted and the manner in which it was enacted throw much light on the answer to this question. The act was drafted by the law officers of the crown attached to the colonial office. Lord Carnarvon, secretary of state for the colonies, was the chairman of the conference. Sir Frederick Rogers, under-secretary for the colonies, in Lord Blachford's Letters, is quoted as saying at page 301:
They held many meetings at which I was always present. Lord Carnarvon was in the chair, and I was rather disappointed in his power of presidency.
Id reading accounts of the times it is quite obvious that the bill which was drafted by the colonial office seems to have prevailed over that which was drafted by the delegates from Canada. The title and preamble of the bill drafted by the colonial office read:
The union of the British North American colonies, and for the government of the united colony.
Whereas the union of the British North American colonies for the purposes of government and legislation would be attended with great benefits to the colonies and be conducive to the interests of the United Kingdom;-
That is the preamble of the draft bill submitted by the colonial office, whereas the preamble of the bill drafted by the Canadian delegates reads:
Whereas the provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to form a federal union under the British crown for the purpose of government and legislation, based upon the principles of'the British constitution;-
I submit, Mr. Speaker, no evidence is to be found to show that the preamble which we find in the printed copies of the British North . America Act in Canada was either discussed or proven in the British parliament. This preamble reads:
Whereas the provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one dominion

Lord Carnarvon, who introduced the bill on February 19, 1867, used these words as reported at page 559 of the British Hansard:
The bill opens by reciting the desire of the several provinces to be federally united.
Furthermore Lord Campbell, speaking to the bill on February 26 of the same year, is reported at page 1012 of the British Hansard as having said:
The bill is founded, I believe, on what is termed the Quebec scheme of 1864. When the resolution, which alone engages the Nova Scotian parliament, was in debate, its whole tenor, as our papers show, were against that project. The leader of the government was understood distinctly to renounce it. Our lights, indeed, may be imperfect upon this part of the subject, and I will not dwell upon it. But one thing is clear, the preamble of the resolution comes before us in full and perfect authenticity. The preamble lays down the expediency of confederating British North America.
I submit it should be evident from these quotations that the preamble which was discussed was that to be found in the Quebec resolutions, not the one we find in the printed copies of the British North America Act in Canada.
A pertinent question to ask at this point would be-: when was the present preamble placed in the British North America Act? Why was it .not discussed in the British parliament, and, furthermore, what is the significance of an act bearing a preamble which was not even discussed, let alone proven? Another point of significance in connection with this, I believe, is the undue haste with which the bill was passed through the imperial parliament. When second reading was called for the bill was not even printed. At page 1090 of British Hansard for February 27, 1867, we find these words:
Mr. Hatfield said he rose to ask the government why it was the second reading of this bill had been fixed for to-raorrow. It was one

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Professor N. McL. Rogers, of Queen's university, at page 115 of the report states in reply to a question by Mr. Cowan:
Mr. Cowan: You do not subscribe to the
belief that this was a pact or contract?
Mr. Rogers: I am thoroughly convinced it
is not, either in the historical or the legal sense.
Then I would quote Doctor Beauchesne, Clerk of the House of Commons, who at page 125 states.
It is quite true that if we apply to the British North America Act the principles followed in the interpretation of statutes, it is not a compact between provinces; it is an act oi parliament which does not even embody all the resolutions passed in Canada and in London prior to its passage in the British parliament where certain clauses that had not been recommended by the Canadian provinces were added.
The evidence which I have submitted establishes to my satisfaction that there has been at no time in Canada any agreement, pact or treaty between the provinces creating a federal union and a federal government. The privilege to federate therefore was still a future privilege for the provinces of Canada.
Since the condition of sovereignty and independence must be enjoyed by the provinces before they can federate, it was necessary that the British government relinquish its authority over them. This was done through the enactment of the statute of Westminster on December 11, 1931. By section 7, paragraph 2. of this statute, the provinces of Canada were made sovereign, free and independent in order that they might consummate the federal union which they wished to create in 1S67, but were not permitted to do so.
Since December 11, 1931, the provinces of Canada have not acted on their newly acquired status; they have not signed any agreement, they have not adopted a constitution, and the people of Canada have not ratified a constitution. Such action should have been taken immediately upon the enactment of the statute of Westminster. It is by reason of the failure of the provinces and of the people of Canada to take this action that all the anomalies in our present position exist. We have been trying since 1931 to govern ourselves federally, under an instrument which was nothing more than an act of the imperial parliament for the purpose of governing a colonial possession.
Not only has this anomalous condition obtained since 1931, but it has done so without any reference whatsoever having been made to the Canadian people. They have not been consulted- on anything pertaining to constitutional matters. Before there can be a federal union in Canada and a federal government, the provinces of Canada must be free and independent to consummate such a
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union. They have been free to do so since December 11, 1931, but they have not done so.
I therefore pose this question: Whence does the dominion parliament derive its authority to govern this country? The imperial parliament cannot create a federal union in Canada or constitute a federal government for the people of Canada by virtue of the British North America Act or any other act. This can be done only by the people of Canada, and they have not yet done so.
Since December 11, 1931, as an individual citizen of this country I have had the right to be consulted on the matter of a constitution. I have had the right along with' my fellow citizens to ratify or to refuse to ratify a constitution, but I have not been consulted in any way whatsoever. I assert therefore that until I, along with a majority of Canadians, ratify a constitution in Canada, there can be no constitution, and I challenge successful contradiction of that proposition.

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