March 30, 1905 (10th Parliament, 1st Session)


Louis Philippe Demers


Mr. L. P. DEMERS (St. Johns and Iberville).

(Translation.) Mr. Speaker, the hon. member for Lincoln and Niagara reminded us, last evening, several times in the course of his speech that he comes from that part of Canada surnamed the Garden of Ontario. It was necessary that he should do so, as his violent delivery and forcible language might have led us to believe that he was not a resident of that rich and beautiful country surrounding St. Catharines, but rather that his mind had been impressed by the sight of Niagara's surging waters and his ears filled with the

Kimberley be moved to submit to the Imperial Parliament, at its next session a measure:
1. Confirming the Act of the Canadian Parliament, 33 Vic., cap. 3, above referred to, as if it had been an imperial statute, and legalizing whatever may have been done under it, according to its true interests.
2. Empowering the Dominion Parliament from
time to time to establish other provinces, in the Northwestern Territory, with such local government, legislature and constitution as it may think proper, provided that no such local government or legislature shall have greater power than those conferred on the local government and legislatures by ' The British North America Act, 1867,' and also empowering it to grant such provinces representation in the parliament of the Dominion : the Acts so
constituting such provinces to have the same effect as if passed by the imperial parliament at the time of the union.
It is subsequent to this that the Imperial Act of 1871 was passed. Sir John Macdonald had not only applied for authority to lay down the terms and conditions on whirh the Territories might be admitted, but also for authority to frame their constitution ; and that constitution was to be such as the Dominion parliament would deem proper to grant them, provided it did not give them greater powers than the other provinces enjoyed. Under these circumstances, the imperial parliament enacted for us section 2 of the Act of 1871 :
The parliament of Canada may from time to time establish new provinces in any of the territories then forming part of the Dominion of Canada, but not comprised in any province of that Dominion ; and may, at the time of said establishment, enact provisions for the constitution and administration of any such province and for the passing of laws concerning the peace, order and good government of such province and for its representation in said parliament.
Well, that clause providing for the creation of new provinces, enacted at the request of Sir John Macdonald, in the words just quoted, and contained in the very Act which confirms that of 1870 to restrict the powers of Manitoba, that provision, as all will see, is very broad in its wording. The imperial parliament was aware of what had occurred in the case of Manitoba. It was stated at the same time in section 5 of the same Act, that the Manitoba Act ' would be and was considered as having been in force ' ; that it was not void, as had' been contended ; and with a knowledge of these facts, parliament, in the broadest terms, authorizes parliament to establish new provinces. If the Dominion parliament desired that we should not have the right to restrict the powers of the new provinces, that was evidently the time to say so.
The hon. member for Lincoln and Niagara spoke last evening of mandator and mandatory. I am glad he has suggested such an example. Let us suppose that in the ordinary course of things a proxy informed his principal that he has possibly Mr. L. P. DEMERS.
exceeded his powers and requests him to endorse his action. Suppose also that by the same deed the mandator authorizes his proxy to make similar agreements ; would there be any court of justice to decide that the proxy had exceeded his powers in acting as formerly ?
But some object-and I regret that the hon. member for Jacques Cartier (Mr. Monk), a distinguished lawyer, professor of constitutional law, who made an eminently patriotic speech the other evening, has thought fit to uphold the first contention of the hon. leader of the opposition. He claimed that parliament had not the power to restrict provincial rights. He said [DOT] When I consider the wording of the Act of 1871, I am forced to the conclusion that, in accordance with the construction generally put on it, this clause would give parliament unrestricted powers : however, on closer consideration, I come to a different conclusion. He takes up, to begin with, the words : ' To constitute and establish.' These are not the words used in the Act ; in the French as well as in the English own- the word 'constitution' is used. Accoiding to the hon. member for Jacques Cartier, constitute ' would mean to fix the boundaries of the provinces and to decide on the date o'* their admission into the Dominion, and also to manage their affairs up to the date of the coming in force of the constitution.
Mr. Speaker, such a construction is in contradiction with the meaning given to the word ' constitution ' in chapter 5 of the British North America Act. It is seen there that provincial constitution applies to the executive and the legislative power. Should there be any doubt on this point, we might consider the other terms used in section 2 . of the Act of 1871, which enables us not only to enact provisions for the constitution and government of the provinces, but also ' for the passing of laws concerning peace, order and good government ' ; which evidently apply to the legislative power. If we were merely to admit these new provinces into confederation under the provisions contained in the British North America Act for Ontai'io and Quebec, they would be without a constitution, since they have not any as was the case with the province which came into confederation in 1867. New Brunswick, Nova Scotia, British Columbia and Prince Edward Island had their constitution just the same as Ontario and Quebec. But in this case it is necessary to decide on the terms of the constitution of these new provinces. since they are without a constitution at the time we are granting them provincial autonomy.
Other objections are made : If you are entitled. they say, to interfere with some of their rights, why not with all ? Has not the Dominion parliament enacted laws concerning property in connection with railways, although that is a matter which comes within the purview of the provinces. Why should we have all these Dominion laws

relative to property ? Because they were needed in order to ensure the successful working of the laws enacted by the Dominion parliament. 1 might quote other examples. Courts have decided in many instances that we could legislate incidentally on the matters enumerated in section 92 although these matters are left exclusively to the provinces.
There is another argument, and I am glad that the hon. member for Jacques Cartier (Mr. Monk) has brought it up. He claims that there should have been no inequality between the various provinces. But do we not find in the constitution provisions made for the protection of minorities ? Does not section 80 enact that twelve counties in the province of Quebec are in a way set apart for the English-speaking minority, and that the limits of these counties shall not be changed without the consent of the majority of the representatives of these counties? That is a restriction on behalf of the English-speaking and Protestant minority of the province of Quebec, a restriction which is not found in the case of any other province.
In the provinces other than Quebec, the use of the French language is not official, nevertheless we find here a provision stating that in the province of Quebec, the English language shall be on the same footing as the French.
The imperial parliament having made all these various restrictions, without thinking that they .were interfering with provincial rights, are we not thereby justified in following the same rule as regards the protection to the minority in the new provinces.
But that has not been sufficient to allay the fears of some of our hon. friends on the other side, and the member for East Grey (Mr. Sproule) sent in haste a telegram to a high legal authority in Toronto ; he asked the opinion of a leading lawyer. Mr. Christopher Robinson, as to the meaning of section 93 of our constitution. Mr. Robinson made his opinion known, and if the member for East Grey had been a lawyer, and not a doctor, he would have soon realized that Mr. Robinson was making fun of him when he answered that the power of parliament was not beyond question. Now, is there anything on earth that is beyond question, or which a lawyer may question ? Have not books been written denying the existence of God : have not even some philosophers turned out volumes expressing doubt as to their very existence ?
Mr. Speaker, the power of parliament having thus been vindicated, the stand taken by the hon. leader of the opposition appears in a new light. While he states that section 93 has no application, his colleague from the province of Quebec asserts that it has. Under these circumstances, the country faces a conflict of opinions, a difficulty which should be solved by parliament in order to avoid all trouble. So that, if the hon. leader of the opposition is not in a position to satisfy the House that his first proposition is well founded, we have to come to the conclusion that he is not desirous of seeing the question settled.
So much has been said about this section 93 that I need not quote it, every one of us knows it by heart. However, I shall venture to say one word as to its construction. There are two ways of interpreting a statute : liberally, and literally. If I give it its liberal interpretation there can be no doubt that the first clause of section 93 applies under the circumstances. Mr. Robinson, in giving the aforementioned opinion claimed that no part of section 93 applied. If that section has no application, then it will be contended that section 92 settles the point. Notwithstanding my deep respect for Mr. Robinson, I have no hesitation in saying that his view of the case is evidently wrong. The Privy Council have decided so in the case of Brophy versus the Attorney General of Manitoba. The Manitoba Act contains a clause corresponding to clause 2 of the Bill now before us, in regard to which the Privv Council made the following comment, page 212 L. R.. 1895 :
The second section of the Manitoba Act enacts that after the prescribed day of the British North America Act shall, ' except those parts thereof which are in terms made or by reasonable intendment may be held to be specially applicable to or only to affect one or more but not the whole of the provinces now composing the Dominion, and except so far as the same may be varied by this Act, be applicable to the province of Manitoba in the same way and to the like extent as they apply to the several provinces of Canada, and as if the province of Manitoba had been one of the provinces originally united by the said Act.' It cannot be questioned therefore that section 93 of the British North America Act (some such parts of it as are specially applicable to some only of the provinces of which the Dominion was in 1870 composed) is made applicable to the province of Manitoba, except in so far as it is varied by the Manitoba Act.
So that should section 10 of the Bill disappear, section 93 of the British North America Act would still be applicable, in virtue of section 2 of the Bill, to which no exception is taken. What the learned lawyer, Mr. Robinson, must have meant was that subsection 1 and 3 of section 93 were not applicable.
We should put a liberal construction on that statute. Maxwell, in bis work 'on statutes,' lays down the following rule :
Except in some lew cases where a statute has fallen under the principle of excessively strict construction, the language of a statute is generally extended to new things which were not known and could not have been contemplated by the legislature when it was passed. This occurs when the Act deals with a genus, and the thing which afterwards comes into existence is a species of it. Thus, the provisions of Magna Charta which exempts lords from the liability of having their carts taken for carriage w7as held to extend to

degrees of nobility not known when it was made, as dukes, marquises and viscounts.
If we apply that rule of interpretation, taking into account the fact that no provision has been made specially for the Territories, then we reach the conclusion that the word ' province ' is applicable also to the Territories which we acquired in 1870. Now, that power granted by section 93 is not unlimited ; it is restricted by subsection 1 and 3. Such is the meaning of that section when liberally interpreted ; and even if we should interpret it literally, it is still open to the same construction. Words should here engross our attention. *Warfare is being carried on about the words ' province,' ' legislature,' and ' date of union.'
It is contended that the word province does not include territory. The definition of that word is not given in the English statutes, but it is given in ours. The Canadian legislature has stated what is the meaning of the word 'province.' We read in our statutedoook what should be understood by the word ' province.' Subsection 13 of section 7 of our interpretation Act says :
The expression 'province' includes the Northwest Territories and the district of Keewatin.
It is thus seen that the word ' territory ' is synonomous to ' province ; ' even the word ' district ' is covered by its meaning, as in the case of Keewatin, for instance. Hon. gentlemen on the other side contend that the schools of the Northwest cannot be considered as actual statutory enactment, that they are mere ordinances voted by a mere council. Let us see what is the meaning of the word ' legislature ' according to the Interpretation Act.
I shall read subsection 14 of that same section 7 :
The expression ' Legislature,' ' Legislative Council ' or ' Legislative Assembly,' includes the Lieutenant Governor in Council and also the Legislative Assembly of the Northwest Territories, and the Lieutenant Governor in Council of the district of Keewatin.
Therefore, Sir, ' province,' ' territory,' legislature ' and ' assembly ' have the same meaning for us inhabitants of Canada. In fact, the definition which I have just given is in accord with the principles laid down by the Interpretation Act of 1889 in England, as regards the word legislature. It is as follows : Any authority other than
the imperial government empowered to pass laws within the British possessions. So tliat, according to the imperial interpretation Act itself, the Northwest Territories were governed by a legislature and the laws passed by that body are the laws of a legislature. Let us now pass on to the word * union.' That word may mean Canada or the Confederation. It is the latter meaning which should be given to the word.

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