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


Thomas Barnard Flint


Mr. T. B. FLINT (Yarmouth).

It was originally expected that the hon. member for New Westminister (Mr. Morrison) would second the resolution of the hon. member for Hants (Mr. Russell) and bring forward a few observations probably from the standpoint of British Columbia. That hon. gentleman, not being well this afternoon, asked me if I would take his place as the seconder of this resolution. I do not profess to be so thoroughly enthusiastic over the prospect of the uniformity of the legislation of the Dominion and the various provinces as the hon. mover of the resolution, but I think it will be admitted by every one who has heard the admirable and well chosen observations of that hon. gentleman that he is entitled to the thanks and congratulations of this House for the able manner in which he has represented a case, perhaps not of overwhelming importance, but one of great general interest and one which may become important from time to time. If any steps are taken in this legislature for promoting uniformity in any branch of legislation appertaining to property or civil rights, or to the procedure of the courts, no doubt that hon. gentleman will receive a great deal of credit for his early advocacy of, in some respects, so dlsirable a consummation. It is easy to see, when you read between the lines of the debates and conferences on the British North America Act and the proceedings which led up to the adoption of that Act, Mr. RUSSELL. .
that clauses 94 and 97 are largely the results of compromise upon some important questions. The statesmen who came forward to promote the union of the provinces might be described as consisting of two classes, one favourable to legislative union with one parliament for the whole Dominion, legislating upon all the subjects which are now divided between the various parliaments, and another favouring the present constitution. But it was early seen and admitted by the most sagacious of these statesmen that the difficulties were enormous in the way of such a consummation not only because of the peculiar history and juridicsal system of the province of Quebec but owing to the difference in the early trend of affairs in the various provinces which form the union as well as to the new circumstances arising from the introduction of new provinces into the union. Therefore, I think it will be generally admitted that the clauses in question were inserted rather as saving clauses, or as suggestions of what was hoped for at some future time than as a serious attempt at constitutional legislation. The late Sir John A. Macdonald, who has been alluded to, and whose remarks in part, have been quoted, practically describes the situation as I have laid it down in some of his observations when the resolutions were being adopted by the parliament of old Canada. I will only quote a few words in order to show the view which that statesman took of this question and the reason's which animated him in supporting the placing of these clauses in the British North America Act. After describing the movement which led up to confederation and the difficulties in the way of a uniform system of laws for the whole of the provinces, he says
So that those who were like myself In favour of a legislative union, were obliged to modify their views and accept the project of a federal
union because, although the law
of those provinces is founded on the common law of England, yet every one of them has a large amount of law of its own. Colonial law framed by itself and affecting every relation of
life We found in short that the
statutory'law of the different provinces was so varied and diversified that it was almost impossible to weld them into a legislative union
at once And when we consider that
every one of the colonies has a body of law of this kind and that it will take years before these laws can be assimilated, it was felt that at first, at all events any united legislation would he almost impossible. . . I am happy to state-and indeed it appears on the face of the resolutions themselves-that as regards the lower provinces, a great desire was evinced for the final assimilation of our laws. One of the resolutions provides that an attempt shall he made to assimilate the laws of the maritime provinces and those of Upper Canada, for the purpose of eventually establishing one body of statutory law, founded on the common law of England, the parent of the laws of all those provinces.
The clauses have been referred to in the resolution of the hon. member for Hants

are the clauses which in new form were subsequently placed in the Act. Clause 94 is peculiar in one aspect, to which I will call the attention of the House, one well worthy of the consideration of those who anticipate legislating upon any of the subjects mentioned by my hon. friend or upon any other subjects of a cognate character. Section 94 is as follows :-
Notwithstanding anything in this Act, the parliament of Canada may make provision lor the uniformity of all or any of the laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick, and of the procedure of all or any of the courts in those three provinces, and from and after the passing of any Act in that behalf, the power of the parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the parliament of Canada making provision for such uniformity shall not have effect in any province unless and until it is adopted and enacted as law by the legislature thereof.
Later, when the conference came to consider the appointment of judges, looking back to section 94, they adopted section 97 along the same lines. It provided that:-
Until the laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick, and the procedure of the courts in those provinces, are made uniform, the judges of the courts of those provinces appointed by the Governor General shall be selected from the respective bars of those provinces.
I quote this section to show that the time may possibly come, with the enactment of laws under the programme laid down by my hon. friend, when the judges will be selected indifferently from any of these provinces for the Bench of either of the three provinces. But, the point to which I wish to call the attention of the House at this juncture is that the powers, with their wide and far reaching effects which were laid down by my hon. friend might not possibly affect other provinces. I speak with diffidence, but it appears to me that no legislation that this parliament has power to pass without an amendment to the British North America Act can affect other than the three provinces named, Nova Scotia, New Brunswick and Ontario. Therefore, I think when the time comes the new provinces in the west, and Prince Edward Island as well as British Columbia, would be outside of the pale of the legislation suggested by the hon. mover of the resolution. How, either of these provinces in which it would be desirable and advisable to apply such legislation

because they inherit the same system of laws and present none of the difficulties which meets us in the province of Quebec-how, they ever can be made amenable to that constitutional system, I do not see. I do not think that the provisions of the Act by which these provinces were admitted into the union would redeem the case at all, because of the peculiar wording of the clause which
provides that in all other Acts which by necessary intendment would apply to these provinces, this parliament would have power to legislate. In the Manitoba Act, the wording of that clause which is well known to most of us, is somewhat different from the wording of what is intended to be the same clause in the British Columbia Act. The provisions as regards British Columbia is a general clause of this kind:
10. The provisions of the * British North America Act, 1867,' shall (except those parts thereof which are in terms made, or by reasonable intendment may be held to be specially applicable to and only effect one and not the whole of the provinces comprising the Dominion, and, except so far as the same may be varied by this minute) be applicable to British Columbia in the same way and to the like extent as they apply to the other provinces of the Dominion, and as if the colony of British Columbia had been one of the provinces originally united by the said Act.
The Manitoba Act of union contains a clause the wording of which is slightly different from that, and what the effect of that difference would be, might perhaps require a great deal of consideration. I call attention to it, and it will probably strike our minds as being a little odd. In the Manitoba Act the clause reads 2. Od, from and after the said day on which the order of the Queen in Council _ shall take effect as aforesaid, the provisions of the British North America Act, 1867, shall, except those parts thereof which are in terms made, or by reasonable intendment, may be held to be specially applicable to, only to effect 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.
The only point I wish to make at this juncture is, that as I conceive the application of the bearings of the British North America Act on this point, uniform legislation would not be possible without further legislation, except as affecting Nova Scotia, New Brunswick and Ontario, and based upon that presumption my few further remarks shall be made.
While no doubt it would be eminently desirable that a uniformity of laws should characterize our legislation upon many of the more important subjects comprised under property and civil rights, and even in the procedure of the courts in these provinces ; yet let us look at the extraordinary and peculiar character of the tribunal which is set to create or adopt this legislation. I venture to say that in no constitution upon the face of the earth, is there a legislature so extensive and peculiar as the legislature brought into force to enact such a law. In the first place the parliament of Canada must select one or more of the subjects upon which it deems a uniformity of legislation

eminently desirable. In the second place, after having in its own opinion adopted such a law as would be desirable to affect operations in the territory comprising those three provinces, the promotor of this legislation-the government or the private individual-must proceed to deal with three separate legislative bodies and induce them to accept the view of the desirability of the legislation as it has been accepted by the Dominion parliament. The legislatures could not be deprived of the fullest and amplest right of discussion, and one can easily see that the slightest variation upon any detail or technicality of the proposed law would be sufficient to destroy it. However, after the legislation has been adopted by the legislatures of the provinces-and I assume it must be adopted by all of the three legislatures to be effective-then the power of amendment or change is completely taken away from the local legislature and vested in the Dominion parliament. Thus, the constitution of the country as regards that special feature of property and civil rights, or procedure in the courts becomes henceforth one of the fundamental items of jurisdiction in the parliament of the Dominion of Canada. It in fact creates a complete ehange in the constitution. The only scheme of legislation at all similar to it is that in the neighbouring republic, where any amendment of the constitution of the United States must be first passed by congress and subsequently adopted by a certain proportion of the various state legislatures. Now, Sir, I need not call attention to the anomaly, and to the difficulty of obtaining legislation under these circumstances. If this Federal parliament were vested with power of legislation without conference with any other independent or sovereign powers, the difficulties in the way would still be very great. Many illustrations of this are in the minds of hon. members. Let us take the subject of bankruptcy ; a subject with reference to which in its general scope and aspect, nine men out of ten are convinced there ought to be some kind of legislation by the Dominion parliament, and that it would be eminently advisable that either complete bankruptcy legislation as respects the status of the bankrupt or as affects the distribution of the property of the bankrupt, would be highly desirable in the interests of the trade and commerce of the Dominion. That is so much the case that several of the provinces, notably, Nova Scotia and Ontario, have adopted legislation dealing with the assets and the distribution of the affects of the insolvent. Yet, Sir, we know of the cold reception, the almost impossible reception which any proposal for that sort of legislation has received in this parliament. I simply point out these, and circumstances of a similar character to show the vast difficulties which would attend any attempt at legislating along the lines sketched by clause 94 and the succeeding clause.

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