March 12, 1902 (9th Parliament, 2nd Session)


Benjamin Russell


Mr. B. RUSSELL (Hants) moved :

That in the opinion of this House, the time has arrived when steps should be taken to carry out the provisions of section 94 of the British North America Act, for securing the uniformity of the laws relating to property and civil rights in Ontario, Nova Scotia and New Brunswick, and in such other provinces as have been brought within the scope of the section since the passing of the British North America Act.
He said : The motion that I desire to
commend to the favourable consideration of the House, was placed on thei Order paper at the last session of parliament, but no favourable opportunity was presented for its discussion. I regard it as one of the most interesting and important subjects that could be brought to the attention of this Chamber, although I am well aware that it is not in the smallest degree of an exciting or sensational character, and I do not venture to hope that it will make so strong an appeal to the consideration of the general public as many others with which this House is called upon to deal. It relates to a provision of the British North America Act for securing such a degree of uniformity in the laws of the various provinces of the Dominion as may be found acceptable and advantageous to the legislatures and people of those provinces. This provision in substantially similar terms to those appearing in the British North America Act, was embodied in the resolutions of the Quebec Conference on which our Constitutional Act is founded, and I think it may be fairly presented as a compromise between the views of those members of the Conference wffio favoured a legislative union of the provinces, and those who opposed such a union. Or perhaps I shall speak with greater accuracy if I say that it was adopted as a solution of the difficulty that presented itself to those members of the Conference who, while they leaned towards the project of a legislative union, realized that under the conditions that surrounded them it would be undesirable and in fact impossible for the various provinces to make such a sacrifice of their autonomy as the consummation of a legislative union would involve.
It is well known to those of us who are old enough to recall the proceedings of that historic assembly, or who have had occasion to peruse the debates to which its proceedings gave rise, that some of the most renowned and able political leaders and publicists who took part in the discussions of that period looked with great favour upon the project of a legislative union. Sir John Hon. Mr. FISHER.
A. Macdonald made no secret of his preference for such a union, assuming that there had been no practical difficulties in the way of the consummation. But there were difficulties which the practical wisdom of the Conference was obliged to frankly recognize. I think it is very widely and generally assumed that such difficulties had reference solely to the peculiar conditions of language, laws and institutions prevailing in what is now the province of Quebec. No doubt the institutions of Lower Canada^ guarded and guaranteed by an inviolable treaty, had much to do with the ultimate decision of the Conference, but Quebec did not stand alone in its preference for a federal union. A perusal of the debates that occurred in the legislative assembly of United Canada on the adoption of the resolutions of the Quebec Conference, and still more a knowledge of the discussions that took place throughout New Brunswick and Nova Scotia would, I am sure, convince any impartial man that even if there had been no province of Quebec to be incorporated in the proposed union, had the objections to a legislative union presented by the conditions in Lower Canada been wholly eliminated, it would nevertheless have been impossible to secure the assent of the remaining provinces to a surrender of their provincial autonomy. You will find in those discussions references to the enormous extent of the territory to be administered and the immense variety of subjects with which its legislature, under such a union, would be called upon to deal, you will find arguments against a legislative union drawn from the experience of the parliament of the United Kingdom, where an assembly wielding the sovereignty and dealing with the interests of a worldwide empire is absurdly called upon from time to time to pass laws for the regulation of gas works or a tram service in some obscure town in a remote corner of the island. You will find, moreover, in those discussions evidence of the sensitiveness of some of the smaller provinces to an apprehension lest under a legislative union they would forfeit the right of immediate and direct control over matters that they regarded as of vital importance to their happiness and welfare. These considerations, let me repeat, even apart from any special desire on the part of Lower Canada would have made it impossible to adopt a legislative union. But in addition to all these arguments which in themselves would have been conclusive, the Conference had to take into its account the deep and fond attachment naturally and properly felt by the people of Lower Canada for the laws and institutions inherited from their forefathers and guaranteed to them by treaty which will be forever held sacred, so long as truth and justice and national good faith remain the stable foundations of British sovereignty. We may differ upon many questions of public policy in this House, and we may differ

in our judgments as to many of the great questions that have arisen from time to time during the period that has passed since the Act of Confederation was adopted, but I take it that there are no two opinions in this House as to the wisdom of the conclusion that was arrived at by the Conference at Quebec when the project of a legislative union in so far as it had ever been mooted at all, was definitively set aside as impracticable and the federal principle was frankly and unreservedly adopted as the basis of our union. I should ask for no support and expect no support for this resolution if I supposed that it could be justly objected to as menacing in the faintest degree the fundamental principle of federalism upon which this confederation stands. It contains no such menace. It is open to no such objection.
What is the essence of the federal principle in so far as it relates to the question in hand ? The essence of that principle is that in regard to all matters upon which it may be conceived that the several provinces composing the union may have different views and cherish different ideals as to what is just and expedient in their legislation, the exclusive authority to legislate shall be vested in the provincial legislature. That is one proposition and one that is ef the utmost importance to the well-being of the Dominion. But that proposition connotes another which is equally important and equally necessary to the adequate statement of the principle, namely, that in all matters upon which it is for the general good that a uniform system of legislation should prevail throughout the Dominion, the legislative authority should be committed to a central parliament having power to make its edicts binding upon all. It would not be pardonable in me to occupy the time of the House with proofs or illustrations of such an obvious and palpable truism. A comparison of the subjects of legislation assigned to the central parliament and to the provincial legislatures respectively would be simply a pretentious, presentation of that with which every hon. gentleman is already familiar. But one single illustration may perhaps be permitted for the reason that it lies so directly in the path that this discussion is bound to follow. The subject of property and civil rights has been assigned to the provincial legislatures. Why ? Because in one at least of the provinces that compose the union and perhaps to a certain degree in more than one province different views prevail from those that find acceptance in other provinces as to what is just and expedient in the laws that govern the ownership, the enjoyment, the transfer and the devolution of property, either real or personal. The law of contract has been held to come within the definition that covers the general subject of property and civil rights, and there were at the time the Confederation Act was adopted variant provisions in the
several provinces as to the validity and authentication of contracts and variant provisions as to the evidence by which they should be proved in courts of justice. And yet one most important class of contracts, one most important species of property was committed to the exclusive legislative jurisdiction of this Dominion parliament. Why? Because bills of exchange and promissory notes are of such a cosmopolitan character, they travel so freely and so widely from province to province, drawn in one province, payable in another, indorsed in still another and perhaps in others more than one, that it was above all things desirable that the rights arising out of their creation or resulting from their dishonour, should be determined by a uniform body of principles, no matter in which of the various provinces the contract happened to be made, or in which of them it should happen to be broken. Furthermore, the laws of the various provinces in regard to bills and notes were substantially uniform already and no possible reason could be suggested for withholding from the central parliament the authority to legislate upon the subject. On other species of property and as to other descriptions of contract, the case was entirely different. Had they been assigned to the parliament of the Dominion the apprehension was a perfectly reasonable one that legislation might be adopted that would revolutionize in one of the provinces the system with which the people of that province were familiar, to which they were greatly attached and which they regard as being founded on more equitable principles and developed according to more logical and scientific methods than the laws prevailing in other parts of the Dominion. It is no part of my undertaking to-day to pass judgment upon this preference. I am not sure that any claim of superiority is made on the part of our friends from Quebec for the system of law that they have inherited and developed. It is sufficient for all purposes to know that they prefer it and that they have an absolute and undisputed right to be the sole and final judges in the matter. If a claim of superiority is made we may for the purposes of this argument without hesitation concede it. Possibly a fuller knowledge of the matter and a greater freedom from prepossessiops than is possible to those of us who have been trained in a different system would dispose us to make the concession for all purposes whatever. But whether such a claim is made or not, whether we concede the claim or not, it must still remain true, that as to the other provinces of the Dominion, or most of them, there are many subjects, and that more especially among those falling within the definition of property and civil rights, upon which a uniform body of legislation would be as great a blessing as the uniformity of our legislation on bills of exchange and promissory notes has been found to be to the

Dominion as a whole. The law that regulates the sale of personal property presents as favourable a field for assimilation throughout the provinces in which the common law prevails as the law of bills and notes presented for assimilation throughout the Dominion at large. The principles applicable to the formation, operation and discharge of contracts generally present precisely the same conditions. Of the provisions of the statutes of Elizabeth against fraudulent conveyances and voluntary conveyances to the prejudice of bona fide purchasers, the same thing is to be said. So as to the principles that govern the validity and authentication of the contracts of incorporated bodies, so as to the rules of evidence In civil cases. So for the most part of the laws that govern the mutual rights and obligations arising out of family relationship, including the rights of the husband and the wife in the property of each other. So as to the devolution of real estate and the succession to personalty. There is even now in respect to all these and many other subjects that might be named, a large degree of uniformity in the legislation that has been adopted by the various provinces of the Dominion, so great a degree In fact that it is a matter of wonderment that it has not long ago been deemed advisable to consider whether an actual and absolute uniformity should not prevail in all the provinces whose system is founded upon the common law.
I have referred to these subjects only in the most cursory manner and I have done so merely by way of preface to the observations that I propose to quote from the speech of Sir John A. Macdonald in moving the ratification of the Quebec resolutions in the parliament of United Canada. All that I have been saying was obvious to the clearheaded and far-seeing statesmen who constituted that Conference at Quebec, and with a view of providing for such a uniformity as was desirable in the legal systems of the provinces governed by the common law they had embodied among the powers to be exercised by the Federal parliament the following, which was numbered 33 :
Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or any of the courts in these provinces; but any statute for this purpose shall have no force or authority in any province until sanctioned by the legislature thereof.
Referring to this resolution, Sir John A. Macdonald said :
The 33rd provision is of very great importance to the future well-being of these colonies. It commits to the general parliament the rendering uniform all or any of the laws relating to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or any of the courts of these provinces. The great principles that

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