April 17, 1905 (10th Parliament, 1st Session)


Edward Guss Porter

Conservative (1867-1942)


Such a denial of the will of the people as that of the Prime Minister expressed in the manner in which it has been expressed is, to my mind, subversive of the very first principle of freedom and tys a direct blow at the constitution of our country. I have hoped since the introduction of these Bills, that, observing the strong feeling of disapproval throughout the country in regard to them, the government would see fit to withdraw or alter these clauses in the Bill, to modify them so as to enable every hon. gentleman in this House to support the measure granting provincial rights to these two provinces so that on the first day of July next, when these Bills are intended to come into force and effect, there would be genuine cause for universal rejoicing at the birth of these two new provinces. But, Sir, if we make the mistake now of inflicting upon these provinces the system of separate schools intended by these Bills, we shall be doing an Act-and it is important for each of us to consider this- which is irrevocable, we shall inflict a burden upon these provinces which cannot be removed for all time to come. If we recognize in these Bills the right of the church to interfere in matters of state, especially in so important a matter as the education of the youth, if we set up the principle of separating or isolating different portions of the youth and preventing them from growing up together which is so necessary to the growth of a common interest and a common sentiment which alone can build up a young country like Canada, we shall be doing an injustice, which, I think, every member of this House will sooner or later regret. Let us, if possible, avoid that condition of affairs. If these new provinces, if any part of these Territories, see fit to inflict upon themselves a system of separate schools, that is their own business-it is their own misfortune.
Sir, I have been surprised at some of the arguments addressed by hon. members on the government side of the House as a reason why these Bills in their present form should be supported by this House. Some hon. members have gone so far as to say that the passage of these Bills in one form or their defeat in another might mean the defeat of this government, that it might mean the driving from power of the right hon. gentleman himself. For my part, I think it would be a thousand times better that this government should go down to defeat, if thousand times better that the right hon. gentleman should be driven from power, than that this parliament should inflict an injustice, however small, upon these new
provinces upon this the day of their birth. The sentiment expressed in regard to the defeat of the government or the driving of the right hon. gentleman from power is a fallacious sentiment. It is cowardly, it is unpatriotic, and I hope that no hon. gentleman in this House will hide himself upon the vote on this question behind any such subterfuge as this. Since the introduction of these Bills a great change has come over some of the government supporters. It is pretty evident that the right hon. gentleman, with the cat-o'-nine tails in his hand, has been able to whip his followers into line upon this question, but I venture to think the right hon. gentleman will waken up one of these days to the fact that he cannot, with the whip in his hand, whip the Dominion of Canada into line, and I believe the people of this country will wrest that power from the right hon. gentleman and will administer such a castigation as the insincerity displayed by the right hon. gentleman in this matter so richly deserves, and as the dominating powers have brought upon him. It is a well-recognized principle of legislation in all civilized communities, and one that I have never heard questioned, that all legislation should be so directed as to do the greatest good for the greatest number, and liberty is the boasted bulwark of the British constitution. I do not believe that by such legislation as that now before us the principle I have enunciated can be maintained, nor can liberty be upheld if we are legislating for a class as against the mass, or asserting the principle of coercion as against the principle of liberty. I have taken some pains to read the constitution and the constitutional history of this country, and while I acknowledge the fact that lawyers will differ, perhaps the view of this matter that has appealed to me will be such that some hon. members or the public will be able to gain some knowledge from it. I have searched the constitution in vain to find one word, clause or paragraph that makes it incumbent upon this parliament to legislate in regard to education in these new provinces. Especially is this so in the initiatory stages of this legislation. But, Sir, I find that there is a prohibition contained in the words in the 93rd section of the British North America Act, where it says that :
The legislatures may exclusively make laws In .regard to education subject to the qualifications therein set forth.
I want to point out that while we may differ in regard to the right of this parliament to legislate upon this subject, there is no obligation upon this parliament to do so. What is the position in regard to the local legislatures ? While the constitution, so far fs this parliament is concerned, leaves it in the position of a doubtful right and imposes no obligation ; in regard to the local legislatures, there is not only an undoubted right, but an obligation, too. What would

be the duty of this parliament under those conditions ? Here is one parliament completely clothed with an authority to legislate in regard to this subject. On the other hand, this parliament, which is attempting to deal with this matter, has at most only a doubtful right, and it has uo obligation at all. It appears to me that the wise, just and fair course would be for this parliament not to interfere, but to leave it to that other legislature which has complete jurisdiction in the matter. Why is this parliament to assume a doubtful right and to impose unnecessary obligations upon itself simply for the purpose of depriving the legislatures of their undoubted right and their obligation ? I must say that I have implicit confidence in the people of these two new provinces, I have perfect confidence that they will, when the time comes elect to their local legislatures men of integrity, men of wisdom, who, when the time arrives for legislation upon this subject, will be wanting neither in courage nor in toleration to pass such legislation and enact such measures as will ensure to the whole people of those two new provinces equal rights of civil and religious liberty. Another point to which I desire to call the attention of the House is the right of appeal that is provided by the British North America Act and which is retained by this parliament. A consideration of that right of appeal will lead to the conclusion that initiative legislation in regard to educational matters was intended to begin, and should begin with the local legislatures. The constitution provides that there should be a right of appeal for the minority. What does that right of appeal mean ? Is it limited in any way ? It is not limited, because it assumes that there shall be that right of appeal where there is legislation against any right or privilege of the minority. Here we have legislation affecting a right or privilege of a minority. The right of appeal could never be intended to mean an appeal from this parliament back to this parliament again. As I understand the right of appeal, and as I think every hon. gentleman in this House will understand it, it means the right to take any matter in controversy from an inferior to a superior tribunal Now, we are enacting legislation here in these Bills affecting a right or privilege and the constitution says there shall be an appeal in regard to that right or privilege. How are the minority in the Northwest Territories going to employ the right of appeal ? Is /there any right of appeal after we pass this legislation ? There is not, because when the minority of these two provinces apply to the legislature to remedy what has been passed here and to set right what has been made wrong against their rights and privileges, they find that the local legislature has no power to deal with the question. Then they turn to this parliament. Is there a right to appeal here? This Mr. PORTER.
parliament have initiated this legislation, can they come here with any hope of having that legislation disturbed ? I think they will be coining here upon a fool's errand, so to speak, and therefore that being the case I conclude that by this legislation the greatest safeguard we have secured by the British North America Act, namely, the right to appeal against legislation concerning a right or privilege in regard to education, is entirely taken away from the minority of these provinces. For that reason I again say that an injustice will be done to the minority if this legislation is passed. In regard to that matter it has been argued here that under the ordinances of the Northwest Territories the people there have acquired certain rights which have been referred to here by hon. gentlemen dismissing the question as vested rights. I want to look at that for a few moments. Just at the outset I would ask any hon. gentleman who entertains the idea that unless these Bills are passed in the form in which they are presented to the House these vested rights are going to be swept awray to strike out of this Bill every word and every clause relating to education, then read the Bill and see if there is one wrord or sentence that prohibits the establishment of separate schools in these two provinces. He will look in vain for such. There is not a single enactment, or word, or phrase that would prohibit the establishment of separate schools. It is not so in regard to the majority. These Acts are prohibitive as far as they concern the majority these Acts say to the majority of the people in those new provinces : Thou shalt not, to use a scriptural phrase, but you shall establish a certain system of schools in spite of yourselves, no matter what your wishes or desires may be in the matter. It appears to me that it is no more necessary to have this provision in these Bills to protect the rights of the minority in these new provinces than it is to have a clause in these Bills protecting the rights of the majority- and I cannot see, in view of what I have already said as to my view of the constitution in regard to that matter, that there is any necessity for it one way or the other.
Now, let me go a step farther in regard to that. What are these rights ? Is the maintenance of separate schools in these provinces a right that has been acquired or is it a right that is to be acquired permanently ? It is an acknowledged principle of law that I think no lawyer will contradict or dispute that a right cannot be acquired against a superior right so long as there is notice and there has been no abrogation of that superior right. Now, in this particular case under discussion, we have both the notice, we have the superior rights and we have no abrogation of those rights. What are those superior rights ? First the right to erect or to create portions of the North-

west Territories into provinces, and secondly, when they are erected or created into provinces these provinces shall have the exclusive right to legislate in regard to education. These are the superior rights granted under the constitution to the people who went into those Territories. Both of these superior rights are guaranteed by the constitution. That constitution is actual notice not only to the people of Canada, but it is actual notice to the people of all the world. Any person going into the Northwest Territories with that provision of the law staring him in the face must be taken to have gone into that country consenting to the conditions therein laid down. He has full notice of what his rights are, he has full notice of what his rights will be when those Territories are created into provinces, but he has no notice as to what will take place in the interval. But when these Territories are erected into provinces he has actual notice, he has notice that the people of those provinces shall enjoy these superior rights and he knows too that unless there is an abrogation of these rights, a giving of them up. these rights shall continue. Now, having that notice and knowing what the conditions are when they are erected into provinces, what right have a portion of the people of those Territories to say that in the interval they will acquire certain vested rights which will cut out the superior rights of some of their fellow-citizens there ? The position, it appears to me, is not tenable ; it is not one that can be fairly argued. Both parties, Roman Catholics and Protestants, start in there upon a fair footing, upon an even footing, knowing exactly what the conditions are and what the conditions will be. But, there is this to be said about it, and it bears upon the discussion which has taken place upon this particular point that in the interval between the time at which these people go into the Territories and the time when they are created into provinces some provision must be made for their government and that provision that has to be made in the interval must be made by the Dominion parliament. It has sole jurisdiction as to the subject, but limited jurisdiction as to the time. These people have notice that the parliament of Canada can only legislate during the interval. This parliament, by the constitution which has been adopted, agree with these people that they will only legislate during that interval.
Now then, that being the position, this parliament starts out to legislate, to provide for the government of these Territories in the interval and what do they do ? They establish a system of administration of justice, they establish a system in regard to public works, they establish a system in regard to immigration and they establish a system in regard to education. Neither can it be argued that this government intended, or that the people of these Territories understood, that any one of these provisions should be permanent. If any one is permanent why not all ? Why does the government not make provision in these Bills for the immigration policy of these new provinces, or for the administration of justice. If the people, under this legislation which was only of a tentative character, could acquire rights in regard to any one thing, they would have acquired vested rights in regard to all, and that being so, why single out this one particular department and declare what the law shall be in regard to it, and disregard the others altogether*. Carrying, the argument that length and applying it to every department of the government that this parliament has provided for in these two new provinces, it shows the utter absurdity of the position the government has taken in regard to that one department of education. No injustice will be done to the people of these new provinces by the government taking the position that the legislation passed prior to their becoming provinces was only tentative. It appears to me that where no injustice will be done them, and where they have complete legislative powers themselves to pass legislation such as is suitable to the condition of the people of the country, it is far more fair to these people to allow them to enjoy that position than for this parliament to impose any obligation upon them. Take the Protestant denominations going into these new Territories. They knew perfectly well, and they had the constitution of Canada as security for it, that separate schools would not and could not be imposed upon that portion of the country after it was erected into a province unless the legislature of that province said so. Catholics going into that country knew, and they had the constitution as security for it, that separate schools could be and would be established in these new provinces just as soon as the local legislatures of these provinces saw fit to so enact. There was no uncertainty as to the power of this parliament; there was no uncertainty as to the power of the local legislature ; there was no uncertainty as to the rights of the people ; the only uncertainty there was, was as to what the legislatures of these new provinces would do when they had the authority placed in their hands. And to guard against any injustice being done by that uncertainty, a clause was put into the constitution providing for this right of appeal in case any rights or privilege of the minority should be violated. But by these measures now before the House, that right of appeal has been taken away and the promise made by the constitution of this country to encourage these people to go into the Northwest Territories until such time as they should be erected into provinces ; that guarantee of good faith will be entirely taken away, and these people will have such an injustice

perpetrated upon them that I firmly believe this government will In future regret it. I say that no portion of the people of these two new provinces have any right to ask this parliament, in framing a constitution for the provinces, to provide that there shall be only public or national schools ; nor have the Roman Catholics the right to ask that this parliament shall enact that they shall have the right to separate schools. And Why ? Because the constitution does not give that right to either class of people. And while the people have no right to make that demand on this parliament, this parliament is bound by the very same principle, and what the people have no right to demand from parliament, this parliament has no right to inflict upon them. I argue from that, that this legislation is not only an infraction of the constitutional rights secured to the people of these provinces, but it is placing an obligation upon this parliament which it ought not to assume. Another reason why this government should not be asked to initiate legislation on this subject is, that it would be perfectly just and competent for them to say : we may have to sit in appeal upon whatever legislation may be enacted in these new provinces, and therefore it would not be fair for us to express our opinion in legislation beforehand. If these Bills are passed the government cannot take that position, and that shows again that the right of appeal has been taken away or interfered with by this legislation. After all, the question is not whether these provinces shall or shall not have separate schools; the question is: shall this parliament interfere with the educational rights of the provinces. I concur in the opinion expressed by my honoured leader ; I venture to think that the subsequent legislation has in no manner changed the position which I have argued prevails under the British North America Act. Take the Manitoba Act of 1870 or the confirmatory Act of 1871. It may be observed that that legislation was passed under very exceptional circumstances. It was passed owing to conditions prevailing in that province at that time, and I might say passed by agreement between the people of Manitoba and this government.
Now, no such conditions as existed in that province exist in regard to these two new provinces. The right hon. leader of the government, when introducing these Bills, did not see fit to shelter himself behind the legislation of 1870 or 1871 ; and perhaps I need not trouble jvith that more than to say that the Imperial Act of 1871 appears to give unlimited power to this parliament to frame a constitution for a new province ; but while that appears to be the effect of that Act, the British North America Act was in full force at that time. Now, that confirmatory Act of 1871 makes no reference whatever to the British North America Act and it cannot be contended that there was any Mr. PORTER.
intention on the part of parliament in passing that Act that the British North America Act should be interfered with. Had there been such intention, some reference would have been made in that Act of 1871 to the British North America Act. That being so what is the position ? Here we have the constitution under the British North America Act declaring that the provinces shall have the exclusive right to legislate in regard to education ; and we have the Imperial Act of 1871, passed under these exceptional circumstances, and to meet the condition of affairs to which I have already referred, and when it could not have been intended to affect the British North America Act. Granting that these Acts are both of equal force, we have the British North America Act which says you shall give the exclusive right to legislate to these provinces and the Act of 1871 saying you may give these rights or not as you please. Granted that they are both of equal force, what is the fair position that this parliament should take ? To carry out the guarantee which these people had under the constitution, or to take advantage of the permissive right which the statute of 1871 gives them ? In the constitution it is obligatory ; in the Act of 1871 it is only permissive; and for this reason I argue that the fair course to be taken by this parliament would be to say we will observe the obligation which we have entered into with you and will not take advantage of the right we have of denying you your full right of provincial government. Now, when the Act of 1875 was passed, the Act of 1871 was in full force ; but we do not find in that Act of 1875 any reference whatever to the Act of 1871; so that that Act of 1875 could not have been based upon the right that was conferred by the Imperial Act of 1871. Such being the ease, I conclude that the statute of 1875 offers no warrant whatever for legislation such as the government is pressing through the House now.
Considerable has been said in regard to the provisions of this Bill as it was originally introduced into this House, and the amendments now under discussion, nnd I want as briefly as possible to treat that subject as it appears to me. At the time of the introduction of this Bill it must have been apparent to any person who gave attention to the matter that whoever had charge of the drafting of the original Bill must have entertained a doubt as to whether the ordinances preserved all the rights and powers that were conferred on the minority by the Territories Act of 1875, under which Act, as the late Minister of the Interior said, there grew up, and was maintained a complete system of separate schools with the dual language, or what may be known as clerical schools, or that the ordinances superseded the provisions of that Act and deprived the minority of their rights to a complete system of separate schools with the two languages. This doubt must have

resisted in the mind of the person who drafted the original clauses of this Bill, because, if we look at the Bill as originally drawn, we shall find that the objectionable clause in regard to education has identically the same language as the Act of 1875. So that it is perfectly apparent, no matter what declarations as to intention have been made in this House upon the discussion of this matter, that whoever prepared that Bill intended that all the rights and privileges accorded by the Act of 1875 should be preserved to the minority in these two new provinces ; and those rights and privileges, as the late Minister of the Interior says, included a complete system of clerical schools. Now, when dissatisfaction was expressed, and it became so great as I have already pointed out, the right hon. gentleman, no doubt seeing the impossibility of defending such a course as that, either in this parliament or before the country, introduced the amendments now under discussion. The question now arises, do these amendments improve the situation in any respect, or do they preserve to the minority in those two new provinces exactly what was aimed at by the original Bill as drafted and brought down? I have given this question a good deal of consideration, and my firm conviction is that the amendments as they stand to-day will confer upon the minority in those two new provinces just as great and as wide rights as they would have obtained under the clauses of the statute of 1875, and I will tell you why. The amendment now introduced provides, in effect, that nothing in this Act shall prejudicially affect any right or privilege conferred upon the minority by the ordinances 29, 30 and 31. Now, what does that mean? I have looked over the ordinances very carefully and can only find one section that confers any right or privilege, and that is section 41, and section 41 confers that right without any limitation .whatever. Let me refer to this section in order to be perfectly accurate :
The minority of the ratepayers in any district. whether Protestant or Roman Catholic, may establish a separate school therein, and In such case the ratepayers establishing such Protestant or Roman Catholic separate school shall be liable only to assessments of such rates as they impose upon themselves In respect thereof.
Compare tbe wording of that section with the wording of the Act of 1875 :
Protestants and Roman Catholics may establish separate schools therein, and in such latter case the ratepayers establishing such Protestant or Roman Catholic schools shall he liable only to such assessments of such rates as they may impose upon themselves.
That is identically the language of the ordinance I have quoted. Then comes in this amendment which says :
Nothing in the provincial law shall prejudicially affect any right or privilege conferred by such ordinance.
Now the right conferred is to establish separate schools without any limitation of any kind or description, just as the statute of 1875 contained no limit or restriction, and the same rights and privileges will grow up under section 41 as grew up under the latter part of section 14 of the statute of 1875. Hon. gentlemen opposite have argued that section 41 is controlled by the subsequent sections of this ordinance. That contention, I do not think, will bear investigation. They point to section 45 as controlling, but note carefully the wording of section 45 :
After the establishment of a separate school district under the provisions of this ordinance, such separate school district and the boards thereof shall possess and exercise all rights, powers, privileges and be subject to tbe same liabilities

Not the same limitations. '

as are herein provided in respect of public
school districts.

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