March 3, 1910 (11th Parliament, 2nd Session)


Gustave Adolphe Turcotte



members on the government side of the House, he finds the maze all the more difficult, because these speeches differ in themselves and differ very materially from the provisions set forth in the Bill. And, Sir, the fact that the position of one undertaking to discuss this Bill is difficult is not at all romarkable when we recall the fact that, when the measure was introduced by the flght hon. the Prime Minister (Sir Wilfrid Laurier), he felt compelled to admit that he knew very little about it himself. With the exception of the Prime Minister, the Minister of Militia (Sir Frederick Borden) is the only minister who has seen fit to deliver a speech in this House on the Bill. And, in regard to the speech delivered by the hon. the Minister of Militia it is noteworthy that, like the premier, he was not able to speak, as is said in sporting parlance, off his own bat, but was forced to admit that he too was speaking from details and memoranda furnished by somebody else. So, it is not to be wondered at that "one attempting to discuss this Bill finds himself in the difficulty to- which I have made reference. But, disguised as the Bill is in its language and arrangement, I think that a careful consideration of its provisions will enable one to discover sufficient of its scope and intent to determine that there is something behind the Bill more than is expressed in it. I do not suppose that I shall be able to convince hon. members on the government side that there is a sinister motive behind it or that the Bill is not what it really professes to be, because from the speeches that have been made by these hon. gentlemen I should have to class them with those who
-convinced against their will,
Are of the same opinion still.
I would direct your attention first to section 4 of the Bill which reads as follows:
The Command in Chief of the Naval Forces is vested in the King, and shall be exercised and administered by His Majesty, or by the Governor General as his representative.
It will be observed that in the first part of this section the command in chief of the forces to be established under this Bill is declared to be in His Majesty the King. To that part of the provision I have no objection and with it I have no quarrel. The second part declares that this command shall be 'exercised and administered by His Majesty'. With that clause also, I have no quarrel. But to the concluding words, I do offer objection -that this command shall be administered by His Majesty 'or by the Governor General as his representative'. In enacting that clause it occurs to me that the

government have made a disclosure, to a partial extent at least, of what the real [DOT]object and intent of this Bill is. It would not have done to stop with the words 'be administered by His Majesty or by the Governor General', because that would have made a joint command, so to speak, it would have contradicted the very best authority and understanding of the whole British people in regard to the command of the naval forces. But they saw fit to add, 'as his representative'. In other words, it is provided that in the administration of the naval forces of this country, the Governor would be acting, as it were, under power of attorney from the King. I object, I say, to the addition of these words, for the reason that has already been very well and ably stated by the hon. member for Vancouver city (Mr. Cowan). He took occasion to show, and I I think succeeded in showing, that the clause as it is drafted and presented in this Bill, is ultra vires of this parliament, and is unconstitutional, inasmuch as it seeks to detract or take from His Majesty the King a portion of his authority in connection with the naval forces. The hon. member for Vancouver (Mr. Cowan) was pleased to cite a section of the British North America Act which proved the contention he was making, that is section 15. And let me remark here that the British North America Act is the constitution of the Dominion of Canada, and within the limits of that Act the parliament of Canada must confine itself and confine its powers. Section 15 provides:
Tlie command in chief of the land and naval militia, and of all naval and military forces, of and in Canada, is hereby declared to continue to be vested in the Queen (or King).
Then the hon. gentleman cited the British statute of 13 Charles II, which provides that the sole command of the naval forces is vested in the King; and for that reason, by virtue of these two statutes, he concluded his argument that there was no power and no authority granted to this parliament or possessed by this parliament by which they could in any manner take from or detract from the King's authority over the naval forces. I think that not only is that the case, not only is no authority granted to this parliament, but I think the hon. gentleman could have carried his argument still further, and have shown that there is an absolute prohibition to this parliament from taking any such powers as they assume to take by this Bill. Had reference been made to section 18 of the British North America Act, where the powers of this parliament are defined, it would have been found to read as follows :
The privileges, immunities, and powers to be held, enjoyed and exercised by the Senate
and by the House of Commons and by the members thereof, respectively, shall be such as are from time to time defined by Act of the parliament of Canada

Now, these are the important words:
-but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
Now, Sir, having read that section, the inquiry must be continued further to determine what the powers and authorities of the House of Commons of Great Britain were over that subject at the time of the passing of the British North America Act. The statute to which my hon. friend from Vancouver referred, 13 Charles II, has been carried down from that time in the different revisions of the statute until the reign of her late Majesty, when the last revision was passed, and the exact wording of that statute, giving the sole command and direction of the naval forces of the empire to the King, was preserved, and to-day the power is the same as it was at that time. It is only a recognition by statute of what the prerogative of the King always was under the common law of England. That being the authority and power of the King at that time, the House of Commons of Great Britain had no power or authority to detract or take from that power in any way whatever. But you will see, that being the position at common law, and having recognized that common law' Dy statute, having declared by parliament that such should be the case, the only possible way in which the parliament of Great Britain could have any authority whatever over the matter would be by repealing that statute which recognized the King's prerogative, and passing a new Act of parliament which would have curtailed it or lessened it in some respect. But the parliament of Great Britain has never seen fit to do that; it remains to-day as it did at the time referred to by the hon. member for Vancouver.
But, Sir, the argument can be carried further. Admitting for the sake of argument that the parliament of Great Britain had, since the passing of the British North America Act, passed an Act of parliament giving them the right to curtail the powers of command of the King, granting that, I say that would not affect in any manner the position Canada occupies to-day upon that matter; because you will see that the statute I have already referred to, the British North America Act, declares that the pow'er of this parliament, so far as this subject is concerned, is limited to the powers that were possessed by the House of Commons of England at the time this Act was passed in 1867. So you see that even if the House of Commons of Great

Britain did pass an Act such as I have mentioned, it would not be an Act in force at the time the British North America Act was passed; and the only way in which this parliament could be possessed of the power to interfere with this command would be, either to repeal the British North America Act, or to amend that section I have referred to.
"But, Sir, that objection is not the only one to which I wish to make reference in discussing this Bill. I desire to call attention to sections 17, 18 and 19 of the Bill, sections showing what is the real intention of this Bill, although it has been attempted to disguise it. Section 17 declares :
The Governor in Council may

Mark you, not 'shall':
-may place the naval forces or any part thereof on active service during any time when it appears advisable so to do by reason of an emergency.
You will observe that in section 4 of the Act the command is declared to be in the King to be administered by him or by the Governor General. In this section 17 the power and authority of the King are left out altogether. Section 17 says- that:
The Governor in Council may place the naval forces

And so on. The King has no authority whatever in regard to that.
-at any time that it appears advisable so to do.
In connection with that clause the right lion, leader of the government, when introducing this Bill, was pleased to refer frequently to the Militia Act, and to declare that this Bill had been framed as far as possible upon the lines of that Act. But a very important omission has been made in this section of the Naval Bill, when compared with the Militia Act. The Militia Act declares that:
The militia of Canada may be put on active
service in Canada

The provision is the same as contained in this Bill so far.
-or elsewhere.
The omission in this Bill, when compared with the Militia Act, is that the naval force may be placed on active service in Canada, whereas, under the Militia Act, the militia may be placed on active service either in Canada or outside of Canada. The words actually used are:
Anywhere in Canada and also beyond Canada.
There is another mistake, or another misinterpretation, of the language used in the Militia Act. It is perfectly plain and evi-Mr. PORTER.
dent where, under the authority of that Act, the militia of Canada may be put into service, but this Bill is entirely different in regard to the navy.
The Governor in Council may place the naval forces, or any part thereof, on active service at any time.
It does not declare, as in the Militia Act, where. That is a very important omission and, I think, goes a long way to show the real object and intent of this Bill. Had these words in the Militia Act been inserted in this Bill, there would not have been any doubt about it. But, as the Bill is framed, it leaves it open to two constructions. First, it may be said by the government in one part of Canada that, according to the declaration of section 17 of this Bill, the naval force shall not be sent out of Canada. In another portion of Canada they may be able to declare that there is nothing in section 17 that limits the place or places to which the naval forces may be sent, and therefore, they may be sent on active service in Canada or anywhere else. It is left in such an uncertain position that it is possible for the government to argue in one portion of the Dominion that they may be only used in Canada, and to argue in another portion of the Dominion that they may be used anywhere the same as the militia forces. It might prove to be of very great advantage to the government, but it might likewise prove to be a very great detriment, and disadvantage to Canada and the empire. Some hon. gentlemen on this side of the House have taken occasion to remark upon the use of the word ' may ' in that section.
The Governor in Council may place

And they have seemed to question the good faith of the government in always placing the force at the disposal of the empire when they should. The only answer that has been offered to that criticism from the other side of the House is: Well, there is no danger of that. You can trust the right hon. premier and his government that they will do the right thing at- the right time. If that is so wily use the word ' may ' at all? Why not make it perfectly plain to every one? Why use a word that needs some particular construction or interpretation rather than a word that is perfectly plain, and can be understood by any one? Why not use the word ' shall ' instead of the word ' may ' ? It would appear that that word is used in that section by the government, because they have not sufficient faith in Hi.s Majesty to believe that he would only place the forces on active service, when they ought to be placed on active service, and that the government are more to be trusted to deal with that matter, than His Majesty himself. For my

part I can only say I have more confidence in His Majesty refusing to place the forces of Canada when and where they ought not to be on active service than in the government always placing the forces when and where they ought to be. I think the people of Canada would be more willing in that respect to trust His Majesty as having absolute command of the forces than to put their trust in the government of the right hon. gentleman. But, Sir, there is still another objection that I wish to take to this Bill. I have called attention to clause 18 where it is recited that
In case of an emergency the Governor in Council may place at the disposal of His Majesty, for general service in the Royal Navy, the naval service or any part thereof, any ships or vessels of the naval service, and the officers and seamen serving in such ships or vessels, or any officers or seamen belonging to the naval service.
That clause declares that they may, in case of emergency, place the forces at the disposal of His Majesty, and that must also necessarily carry with it the right to refuse. Therefore, two positions arise under that section. First, the Governor in Council may send them, and, by reservation, may refuse to place them at the disposal of His Majesty. If the Governor in Council sees fit to place the forces at the disposal of His Majesty what follows? Section 19 declares that if parliament is not then sitting or will not sit within ten days it shall be called together, and shall continue to sit, &c., as the section requires. That is all right. That provides for the case wherein the Governor in Council puts the force at the disposal of His Majesty. But, suppose the other position is taken, by the Governor in Council, and he refuses to place the force at the disposal of His Majesty?
What provision is made in this Bill for a case of that kind? Parliament will not meet, there is no power to assemble parliament and, therefore, the people of the country cannot speak through their representatives in parliament. The people cannot themselves put the force at the disposal of His Majesty. Absolutely no provision is made for a case of refusal by the Governor in Council to place the naval force established by this Bill at the disposal of His Majesty, and before the people of this country, or their representatives, could make their wishes known, or the naval force of Canada, no matter how efficient it might be, could, under such circumstances, be placed at the disposal of His Majesty, the crisis might have arrived, in fact the British empire might be ruined and destroyed before Canada could render aid. That, to my mind, is a most serious matter. The naval force is to be placed at the disposal of His Majesty only after parliament has so decided. If parliament should refuse to send the naval force to the assistance of Great Britain, there should be a provision just as strong to enable the people to pronounce upon the question as to whether that refusal was right or wrong, but we find absolutely nothing in this section in regard to it. Another equally strong objection to the Bill is that section 4 and section 18 are inconsistent. The government declare, by section 4, that in all their acts in connection with the command of the naval forces of Canada, they will be acting, and undertake to act, as the representatives ol His Majesty. The representatives of what? They must be the representatives of his authority, of his desire, of his instruction-in fact, willing at all times to carry out what the King would wish or desire, and if they are not so willing, they cannot be his representatives, they cannot act as his representatives. It is a well understood and unquestioned principle, that any person oi corporation acting as the representative of another, of a principal is bound to conform to the instructions and to the wishes of the principal by whom he is authorized. If a breach should be made by an attorney or representative so employed, what would be the natural consequence? He would merit instant dismissal. In what position do the government place themselves by assuming the powers conferred on them under this Bill? They say, in clause 4, that they are acting as the representatives of His Majesty, with all the obligations that that term carries with it; then, in section 18, they declare that in case of emergency ' they may place at the disposal of His Majesty for service,' and so on, which carries with it the right, as 1 have already aTgued, to refuse to place the navy at the service of His Majesty-and there we have the two contradictory positions. In section 4 they declare that they are acting as the representatives of the King, and so are bound to carry out his instructions, and under section 18, if His Majesty should request that the forces of Canada be placed at his disposal in any part of the empire, or engage in any contest that Great Britain might be engaged in, it is within the power of the Governor in Council, of this government, to say: No. That is what they declare: No, we shall not place the forces at your disposal. If an attorney, or a representative bound by the instruction of his principal, were to say that he would do or not do that which he was instructed to do, according to his own judgment, in direct opposition to his instructions, such action would be the grossest possible breach of faith and confidence. A man or a government committing such a breach of instructions, a breach of confidence, an attorney or representative acting in his own interests rather than in the interests of his

principal, as might well he done nnder this *section, would deserve instant dismissal.
It may be that all has been said that can be said for and against this Bill and the amendment proposed by the opposition. There has been, it is true, a great variety of expression in dealing with the principles and the policies of the two parties, but the principles and the doctrines to which the two respective parties adhere have been made perfectly plain. I shall not repeat any of those arguments. I have endeavoured to extract from the speeches delivered in this House what I deemed to be the important and essential points of difference between the two parties upon this important question. I am sorry to say that an element has been introduced into the discussion of this question which I think it would have been better to have avoided, but the offence began with the right hon. gentleman himself and it has been followed up by a number of his supporters. It could not be expected that the opposition would allow the observations made by these gentlemen to go unchallenged or unanswered, and I can only say that if the hon. gentlemen opposite have been paid off in their own coin and with interest on their investment, the government have only themselves to blame for being placed in that position. I think it is unfortunate that any question of party politics should have been introduced into the discussion of this important subject. However, it has been done and it cannot be undone.
I propose to offer to the House what I conceive to be the differences existing between the two parties upon this all-important question.
The first difference to which I would call attention is that the government, by the introduction of this Bill at the present time and the provisions contained in it, tacitly admit the existence of an emergency and of danger to the empire, and the duty of Canada to assist in meeting it; yet, the Prime Minister and others of his following declare that there is no emergency or danger, and, therefore, no necessity of providing for it, totally ignoring expert opinion, and occupying that wholly inconsistent position. Now, in answer to that the opposition take this position: They are prepared to accept the opinions of the best naval experts and of the ablest statesmen of Great Britain, and of independent men of the highest excellence, who have given the subject the most profound thought, that the emergency and real danger to the empire does exist. The opposition are willing to accede to the wishes of the people of Canada and furnish immediate and effective aid to the empire's navy in meeting such a danger. A great deal of discussion has taken place upon that branch of the question, and many references have been

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