March 31, 1927 (16th Parliament, 1st Session)


Joseph Thorarinn Thorson


Mr. J. T. THORSON (Winnipeg South Centre):

Mr. Speaker, I do not intend to take as much of the time of the House on this debate as previous speakers have taken. The essence of the report made by the committee on inter-imperial relations to the Imperial conference, which was unanimously adopted by the conference, is found on page 12 of the
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report. I refer to the definition of the relationship which exists or is alleged to exist between Great Britain and the dominions:
They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the crown, and freely associated as members of the British commonwealth of nations.
I propose to confine mysellf to a discussion of this definition in so far as it deals with the autonomy of Canada in her domestic affairs. Within that sphere I feel that a great forward step has been taken, that this declaration of equality is perhaps the most important constitutional pronouncement made since confederation, and that it is pregnant with great possibilities for Canadian national development.
There has been much criticism of this definition, much debate as to its meaning and much misunderstanding of its implications. There are those who say on the one hand that it marks the end of the British Empire as we have known it, or at any rate the commencement of a new British Empire essentially and fundamentally different from the old. On the other hand there are those who say that no change whatever has resulted, that the definition is merely a statement of the constitutional status which has already been acquired in practice although not hitherto universally recognized. Possibly there is a great deal of truth in both these statements, yet in my opinion neither is strictly accurate. With all due respect to those who have expressed these various views as to the work of the Imperial conference and the results achieved, I prefer to regard this definition not so much a statement of existing fact as a declaration of what ought to be; not so much a declaration of equality as a promise of equality. Everyone must remember that until legal effect is given to that declaration we do not legally possess 'that equality.
In order that we may arrive at an appreciation of this definition I think it essential that we attempt to analyse the actual status of Canada both from the strictly legal point of view and from the point of view of constitutional development and practice. By so doing we may perhaps be able to view the definition in the light of existing facts and so better understand its implications and the consequences resulting therefrom. I shall endeavour to be as brief as possible. If I should present for the consideration of this House a point of view which is to a large extent that of a lawyer, I crave the indulgence

of the House. I shall attempt to put the legal position as baldly and as briefly as possible.
The Dominion of Canada owes its existence as a legal entity to the British North America Act, a statute passed by the parliament of Great Britain. That statute is the charter of Canada, beyond which Canadian legislatures, whether they be federal or provincial, cannot validly go. In law the parliament of Canada is subordinate and inferior to the parliament of Great Britain; as a legal proposition that is not open to dispute and we must remember that in law that inferiority exists. This legislative inferiority of the parliament of Canada is of two kinds; first, that which results naturally from the fact that the parliament of Canada was created by the parliament of Great Britain, is bound by the terms of the charter which created it and is therefore inherently dependent. In the second place there is that inferiority which results from the fact that the parliament of Canada is still in law subject to the paramount legislative authority of the parliament of Great Britain which alone has power to change the terms of the British North America Act and, either by an amendment to that act or by the enactment of some other act, to enlarge or abridge the measure of self-government which we now enjoy.
As to the first heading of inferiority, that which is inherent in the parliament of Canada and in the Dominion of Canada as a dependency of the parliament of Great Britain which created it, it has been held, for example, by the Privy Council that it does not lie within the legislative competence of a self-governing dominion such as Canada to pass legislation affixing penal consequences in Canada to acts committed outside of Canada. In that view of the law it would not be possible for Canada to punish persons for offences such as murder, arson, theft or bigamy committed outside of Canada. It has been argued that the powers of self-government possessed by Canada must be confined to matters or things within the territorial limits of Canada; in other words, that Canada has no power to pass legislation having an extra-territorial operation or effect. No such limitation exists on the powers of the parliament of Great Britain, because the British parliament is sovereign, and the Canadian parliament is not. On two occasions the parliament of Canada has passed resolutions on this subject for an address to the British parliament asking for an amendment to the British North America Act to remove this anomaly, once in 1920 and again in 1924,

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but although both houses of parliament passed these resolutions unanimously on both occasions, no action has yet been taken by the British parliament.
The second aspect of subordination lies in the fact that Canada is still subject, notwithstanding the terms of the British North America Act, to the legislative authority of the parliament of Great Britain, the only sovereign legislature in the British Empire. It is quite true that a very large measure of autonomy and self-government was conferred upon Canada by the British North America Act, but that self-government is subject to limitation and supervision by the British North America Act itself, and by other acts of the parliament of Great Britain extending to Canada.
The British North America Act set up an elaborate system of checks and balances. Certain spheres of jurisdiction were assigned to the provinces, and in order that there should be a check upon the powers of the provinces the Dominion government was given the right to disallow provincial legislation if it thought it necessary to do so in the interests of Canada. The remainder of the legislative field was assigned to the Dominion parliament, and similar checks on Dominion legislation were provided by sections 55, 56 and 57 of the British North America Act. These sections have already been discussed, and I shall therefore deal with them very briefly.
Section 56 deals with the right of the government of Great Britain,-not the parliament of Great Britain,-to disallow legislation even although it has passed both houses of parliament, has received the royal assent and has actually gone into operation. Every act passed by this parliament must be sent to one of the secretaries of state in Great Britain, and remain subject to disallowance for a period of two years from the time the act was received by the Secretary of State. If this right of disallowance had been regularly or frequently exercised it would no doubt have given rise to great irritation and great annoyance, but the right has not been exercised. As far as I am aware the right of disallowance given by the British North America Act to the British government has been exercised only once, namely, in 1873, some fifty-four years ago. Section 56 still remains intact in the British North America Act, and the present practice in regard to that section is that all acts passed by this parliament are sent every year to London, and it is intimated through the Secretary for Dominion Affairs that "His Majesty will not be advised to exercise his powers of disallowance" in regard thereto.
Sections 55 and 57 deal with another right of supervision, niamely, the right of the Governor General to withhold the royal assent from a bill even although it has passed both houses of parliament, or to reserve the bill for the signification of His Majesty's pleasure. I am not greatly concerned with the exercise of the veto power which is conferred upon the Governor General by section 55, for I am convinced that constitutional practice will provide for its proper use. I do not believe it is any more likely that the Canadian Governor General would exercise his right of veto in Canada in respect of Canadian legislation, than that His Majesty the King would exercise that right in Great Britain in respect of British legislation. I think that that is particularly true since the recent declaration, which merely crystallizes the idea already developed with regard to the position of the Governor General in Canada. I believe that this definition of the Governor General's position in Canada as the representative of the crown marks a great step in the direction of equality of status, and I would suggest that steps be taken to change the title of His Majesty's representative in Canada from that of "Governor General" to that of "Viceroy", in order to indicate more truly the actual position which His Majesty's representative now occupies.
With regard to the right of reservation of bills for the signification of His Majesty's pleasure, I wish to point out that this right was fairly frequently exercised at the time of confederation and for some time subsequent thereto. The royal instructions to the Canadian Governor General at that time expressly required the Governor General to reserve in all cases for Her Majesty's pleasure, certain well defined classes of bills. This right of reservation was exercised prior to 1890 on some fifteen occasions, although as a matter of fact the royal assent was refused only in one case. In 1876 Mr. Edward Blake, then Minister of Justice, protested against the regular exercise of this right of reservation. He contended that the proper practice to follow should be to allow the bills to become acts of parliament, and go effectively into operation, and rely solely upon the right of disallowance if it were the opinion of the British government that such legislation was objectionable. He realized of course that the British government would hesitate very much more to exercise its right of disallowance in respect of an act that had already gone into operation, than to exercise its right of reservation. As a result of Mr. Edward Blake's protest the royal instructions were changed
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in order to omit any mention of special classes of bills. It was intimated, however, very clearly at that time that the right of reservation was not given tip, but that its exercise as a regular practice was abandoned, and the maintenance of the right is expressly referred to in the report of the Imperial conference. I agree with most of the hon. members who have spoken on this subject that these statutory rights of supervision and disallowance, in view of the constitutional practice that is followed, do not constitute any serious limitation of Canadian autonomy. It has been said that these rights are, in practice, constitutionally dead. Since these rights are constitutionally obsolete no useful purpose is served by the retention of sections 55, 56 and 57 in the British North America Act, and in my opinion they should be repealed. It is inconsistent with the declaration of equality of status which we are discussing that they should be retained. If our legislation is ultra vires, the courts which are constituted for that purpose will so find. If our legislation is within the legislative competence of our parliament then we are the best judges of the wisdom and the expediency of such legislation, and it should not be subject even to nominal review.
The Dominion power of self-government is further restricted by virtue of the Colonial Laws Validity Act of 1865, and that is a very serious limitation. Section 2 of that important act provides as follows:
Any colonial law which is or shall be in any respect repugnant to the provisions of any act of parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such act of parliament, or having in the colony the force and effect of such act, shall be read subject to such act, order or regulation, and shall, to the extent of such repugnancy but not otherwise, be and remain absolutely void and inoperative.
This statute affirms the right of the parliament of Great Britain to legislate for the colonies, and in law Canada comes within that category for the purposes of this act. Just as the parliament of Great Britain by the British North America Act conferred powers upon the Dominion of Canada, so it can increase or diminish those powers as it sees fit, and it has done so. In law two propositions are perfectly clear. First, the Dominion parliament has no power to pass legislation which runs counter to any act of the parliament of Great Britain extending to Canada, and with all due deference to the hon. leader of the opposition, I say that it cannot even now amend the British North America Act or pass legislation that is repugnant to it. Second, the parliament of Great Britain is under no legal
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restriction whatever. It may pass any legislation it sees fit and no court will declare that legislation ultra vires. It may make such legislation applicable to the Dominion of Canada if it chooses to do so, and so legislate for the people of Canada without obtaining their approval. In practice the British parliament does not generally do so, but since confederation it has done so in several cases, for example; the Extradition Act, 1870; the Foreign Enlistment Act. 1870; the Fugitive Offenders' Act, 1881; and the Merchant Shipping Act, 1894, regarding which we heard this afternoon. This power of the British parliament is not constitutionally dead, and as long as this distinction exists, it is absurd to speak of absolute equality of status.
I have endeavoured to set out the inequalities of legislative power between the parliament of Canada on the one hand and that of Great Britain on the other. It is obvious and undisputed in spite of constitutional development and practice. The Imperial conference itself recognized the existence of the inequalities to which I have referred and thereby admitted that the definition of equality which they arrive at must not be taken literally. The conference recommended that steps should be taken by Great Britain and the dominions to set up a committee :
To inquire into, report upon, and make recommendations concerning-
(i) Existing statutory provisions requiring reservation of Dominion legislation for the assent of His Majesty or authorizing the disallowance of such legislation.
(ii) (a) The present position as to the competence of dominion parliaments to give their legislation extra-territorial operation.
(b) The practicability and most convenient method of giving effect to the principle that each dominion parliament should have power to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order, and good government of the Dominion.
(iii) The principles embodied in or underlying the Colonial Laws Validity Act, 1865, and the extent to which any provisions of that act ought to be repealed, amended, or modified in the light of the existing relations between the various members of the British commonwealth of nations as described in this report.
With that recommendation of the conference I heartily concur.
There is one other aspect in which inferiority exists, and the Minister of Justice (Mr. Lapointe) referred to it in the brilliant and masterly address which he delivered yesterday in this House. While it is within the power of Great Britain to decide for herself how her laws shall be administered, no similar right is given to Canada. Even if Canada should

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desire to prohibit appeals to the Privy Council, she has no power to do so. Her lack of rights in that respect has been settled on two occasions. In 1875 when a bill was introduced in this parliament to create a supreme court for the Dominion, it was the expressed intention of the ministers to prohibit appeals to Her Majesty's Privy Council. They were however notified by the government of Great Britain that the bill could not be sanctioned unless the royal prerogative to hear appeals was preserved. Accordingly a saving clause was inserted in the bill and the bill received the royal assent. In 1888, some thirteen years afterwards, an attempt was again made, this time in criminal 'cases, to prohibit appeals to the Privy Council. Section 1025 of the Canadian Criminal Code seeks to accomplish that purpose. Since 1888 many applications for leave to appeal in criminal cases have been made to the Privy Council; but in every case the application for leave to appeal has been refused, thus showing that the Privy Council believes that we administer our criminal laws in a just manner. Year after year the Privy Council has refrained from discussing the validity of the section which I have mentioned, but in 1926 it settled the question in- the famous case of Rex versus Nadan, a liquor conviction case from Alberta. There was no greater reason inherent in the case itself for deciding the constitutional question in that case than in the other cases which had come before that body, and in fact there was less. It was widely suggested at the time in London that there were special reasons why the point should now be settled, namely that it was desirable to have a precedent established in case the Irish Free State should desire to prohibit appeals to the Privy Council. The constitution of the Irish Free State is declared to be similar to that of Canada. If Canada cannot prohibit appeals to the Privy Council, then neither can the Irish Free State. The leader of the opposition in the course of his address on Tuesday last stated that we now have the right to abolish appeals to the Privy Council. The Privy Council disagrees with him. In the Nadan case it held that section 1025 of the Canadian Criminal Code was ultra vires and that Canada could not effectively prohibit the appeals to the Privy Council, because of the British statutes of 1833 and 1844 relating to appeals and because of section 2 of the Colonial Laws Validity Act. I am not concerned with the reason for the decision, but I am concerned with the decision itself that Canada has no right to decide for herself whether her judicial system shall be self-contained or not.
This then is the legal and constitutional relation of Canada and Great Britain in regard to legislative power-Great Britain free and unrestricted in all her legislative functions- Canada limited in power and subject to supervision and control in such power as she possesses. How can there literally be equality of status under such circumstances? In my opinion Canada does not possess -complete autonomy; she is not equal in status, to Great Britain and this parliament is still, as it always has -been, subordinate to that of Great Britain. I am not complaining of that inequality, for whether Canada is equal to Great Britain or not, I would rather live in Canada than in any other land under the sun. I am not contending that Canada is suffering any great hardship from that inequality, and I am not desirous of stirring up any agitation whatsoever, but I see no useful purpose in attempting to conceal from ourselves the true, actual state of affairs. The Imperial [DOT] conference attempted to reconcile in one definition equality of status and the maintenance of the empire. The phrase, "equality of status, within the empire", is, in my opinion, in law a contradiction of terms.
What then does this declaration of equality mean, since it does not accurately set out the true state of affairs and is manifestly contradictory in its terms? Why should we be so pleased with it in Canada? It has been hailed as a great charter of liberty, and, in my opinion, rightly so. Notwithstanding its inaccuracies, notwithstanding its contradictions, it marks a new era in empire development and promises new life to the Canadian nation. What is the effect of such a declaration of equality made between Great Britain on the one hand, and Canada on the other, between a superior and an inferior? The declaration does not imply independence. It is not tantamount to a declaration of independence, for the very terms of the definition hold the various constituent parts of the empire within the empire and presuppose the continued existence of the empire. The declaration in my opinion, if any meaning can be given to it, involves and implies two things: first, an implied agreement by Great Britain that she will not exercise the sovereign powers which she legally possesses except at the request and with the concurrence of the dominions; it is simply a -crystallization of the constitutional practice that has gradually developed; and secondly, and this is very important, there is an implied -promise by Great Britain that she will place the dominions in a position as near to equality as is consistent with the maintenance of the
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empire. In this view the declaration, involves, on the one hand, a renunciation of powers by Great Britain, the superior, and on the other hand, a granting of powers to the dominions, the inferiors, in order that their status may approximate to equality as closely as possible. May I interpret the declaration also, not as a statement of existing facts, but rather as an ideal to be aimed at, and may I repeat the statement which I made at the outset, that the declaration is a promise of equality? In my opinion the declaration is tantamount to a statement by Great Britain, which was a party to it, that Canada and the other self-governing dominions are now entitled to the maximum amount of autonomy and the maximum amount of self-government that is consistent with the maintenance of the empire.

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