1207
COMMONS 1208
REPRESENTATION IN THE HOUSE OF
COMMONS.
The PRIME MINISTER (Rt. Hon. Sir
Wilfrid Laurier) moved the second reading
of Bill (No. 66) to readjust the representation in the House of Commons.
Mr. R. L. BORDEN (Halifax). I think
it well, before this motion carries, to call
to the attention of my right hon. friend
(Rt. Hon. Sir Wilfrid Laurier) one or two
points respecting the character of this Bill
concerning which, it seems to me, there is
some misapprehension in the country, and,
possibly, in the mind of my right hon. friend.
The exact meaning of the Bill may not be
quite understood.
We were told by the Prime Minister on
the first reading of the Bill, that this proposal
is the same as that which was made in
Great Britain in 1884. I wish to point out
to the House that what was proposed in
Great Britain in 1884, was something entirely
different. In saying so I do not put it by
way of criticism on the present action of the
government nor do I say now that what the
government has proposed is lacking in fairness. I simply want to have in the mind
of
the House and of the country a clear idea of
what the position of the government is at
the present time. In 1884, in the British
House, there was a conference between the
political parties before the Bill was introduced at all. The conference was not a
formal one; the members were not appointed by the House and had no duty of
reporting to the House. Their work was
altogether of an informal character. It was,
in fact, a conference between the two
political parties. Mr. Mills, now Mr. Justice Mills, who was in this House in 1892
made that very clear in his remarks. He
said, referring to the British measure:
The measure was submitted to parliament after the leaders of the two parties had agreed
upon it. . . . The English government entered
into a conference with their political opponents
on the character of a measure which they were
to submit to parliament, and to assume the
responsibility for, and that was done prior to
the submission of the Bill to parliament for
discussion.
In the Annual Register which was referred
to at that time there is a history of the introduction of the English measure which
makes
this abundantly clear. This history can be
found at pages 252 and 253 of the Annual
Register of 1884—at page 252 we find:
During the next fortnight—
—that is while the conference was going
on—
—the process of arrangement was steadily pursued. Lord Salisbury and Sir S. Northcote
attended the meetings of the cabinet, and conducted the negotiations with the specially
selected delegates of that body. Naturally there
were rumours of misunderstandings more or
less serious, but as time wore on, it was clear,
from the public utterances of those in a position to know the real facts, that the
basis of the
compromise was never in jeopardy, and that the
ultimate decision on all questions of detail
would have to be left to parliament.
And then, at page 253 it is said:
At length after a week's adjournment, both
Houses reassembled, and Mr. Gladstone, in a
very brief speech altogether without rhetorical
display and sympathetic enthusiasm, presented
to the House of Commons the results of the
negotiations, and moved for leave to bring in a
Bill dealing with the most crucial party rights
and susceptibilities which had been settled outside the arena of parliamentary conflict.
There is another fact which I would like
to point out to my right hon. friend, and
it is this—the conference of 1884 in Great
Britain simply settled the principles to be
applied in the work of redistribution, and
left those principles to be carried out in the
delimitation of the constituencies by a boun
1209 APRIL 14, 1903 1210
dary commission. A boundary commission
was appointed, composed of eminent men,
including among its members several officers of the Royal Engineers whose technical
knowledge was supposed to be valuable
in such work. It is true that the Bill provided that in Yorkshire, Glasgow, Birmingham
and other large boroughs, a certain
number of members should be allowed, just
as our constitution allows a certain proportion of members for Ontario, Nova Scotia
and the other provinces. But, except for
this, the entire work of the delimitation of
the constitutencies was left to the commission. Moreover, the present proposition
does not seem in line with the position taken
by my right hon. friend (Rt. Hon. Sir Wilfrid Laurier) in 1882. His motion on that
occasion, to which he has drawn attention
is as follows:
That Bill (No. 76) an Act to readjust the representation in the House of Commons be
referred to a conference or committee to be composed of both political parties, to
agree upon
the lines or principles on which a Redistribution Bill should be drawn.
My right hon. friend was more in line with
the English precedent at that time than he is
at the present time, became his proposal
then was that a committee should be appointed composed of both political parties to
agree upon the lines or principles upon
which a redistribution Bill should be drawn.
I may say that that motion as interpreted
by a prominent member of his own party,
now Mr. Justice Davies, of the Supreme
Court, was understood to be a motion that
the committee should merely settle the lines
or principles, and should leave it to the
House to settle the boundaries of the constituencies themselves; because Mr. Davies,
in speaking on the second reading of the
Bill, and speaking after my right hon.
friend, used the following language:
My hon. friend's motion is based exactly upon that section of the constitution.
I may say in passing, that Mr. Davies:
was arguing very strenuously that parliament itself had no right to delimit the constituencies,
but that that duty should be
imposed by parliament upon some independent body. So Mr. Davies continued:
That is referring to my right hon. friend,
then the leader of the opposition.
He says let us come together now and
agree upon these lines, and when we are agreed
upon the lines and upon the manner, then let
us legislate and enact a law, and when we
have carried the principle into law, let us appoint the authorities who are to apply
the
principles to the condition of the country and
carry them out. I say that in principle, and
from historic precedents, and by the legal construction of the British North America
Act,
this proposition of the leader of the opposition
is one which I think must commend itself to the
minds, at any rate, of the legal members of
the House. I cannot see, based as it is upon
justice and equality, how it can fail to commend
itself not only to the sense of fair play, but to
the common sense of all the members of this
House.
Then I would like to point out to my
right hon. friend that his present proposition is not in line with the view which
he
took in 1899, for he then said:
Whenever a county has to be divided into
ridings, whenever a county which up to that
time is entitled to one member, becomes entitled to two or three members, the division
should take place by judicial decision and authority.
That is the second principle upon which
he based the Bill that he then introduced to
the House.
Therefore I submit with all deference
to the Prime Minister that the proposal which is now before the House is
not the same as the English proposal of
1884, it is not the same as the proposal of
the right hon. gentleman in 1892, and it is
not the same as the proposal of the right
hon. gentleman in 1899. However, it must
be admitted, Mr. Speaker, that it does not
at all follow that this is not a perfectly
fair proposition. All I am desirous of pointing out at the present time is that it
is not
any one of the proposals which have been
made on the three occasions to which I have
referred.
Well, what have we to say about the
Bill which is before us? In the first place,
I may say a word to those who have
thought it remarkable that the members of
the Conservative party have not burst out
into a chorus of congratulation to the government upon the introduction of this Bill.
I want to point out to my right hon. friend
that one very good reason why we should
restrain our congratulations at the present
time is that we have not the real Bill before us. As was well said by Mr. McCarthy
in 1892, the whole force, the whole vitality
of a Bill of this character is to be found
in the details. Now we have the mere
skeleton of a Bill at the present time, we
have nothing except the bare formal parts
of the Bill, and we are not prepared to pronounce any opinion at all upon that which
we have not yet seen. I admit that a government desiring to introduce a perfectly
fair Redistribution Bill—and I accept in the
fullest sense my right hon. friend's assurance of that desire—I say that a government
desirous of introducing the fairest possible
Redistribution Bill, might adopt this course:
and I say also that a government which desired to introduce a Bill that was not fair
in the ordinary sense of the term, might
adopt exactly the same course, and place
before the proposed committee schedules
which might just as well have been attached
to the Bill itself. I am not suggesting that
that is the intention of the government, but
I am pointing out that at the present time
we have not in the Bill anything but a mere
skeleton, and we do not know whether the
proposal of the government will be a fair
1211
COMMONS 1212
one or an unfair one until their proposal has
been placed before the committee, and we
have had an opportunity of judging.
Now, I think what I have said was emphasized in a very striking manner by Mr.
McCarthy in 1892. In referring to the proposal made at that time by my right hon.
friend he said:
Even if there had been a conference in that
way I do not see what particular benefit could
have resulted because the conference, representing as it was suggested it should,
the majority and the minority according to numbers
in this House, would, unless they agreed, have
merely reproduced the scheme of the majority.
It would merely have reproduced the scheme
which the government have now presented and
which this House, representing in the same way
the same proportion of numbers, will ultimately adopt.
That is the criticism which I would make
upon this proposal in so far as it contemplates
a conference or committee. If it is intended
to produce an agreement such as was
arrived at in 1884, if it is proposed to adopt
the same principle which was acted on by the
English government at that time, it seems to
me that the proposal of my right hon. friend
should have been a proposal for a committee composed of an equal number of
members from each side, a proposal which
would not reflect the numerical strength of
either party in this House, instead of the
present one which in the end must merely
result, or might merely result in reproducing
to the House the scheme of the majority,
as Mr. McCarthy remarked in 1892. Now
my right hon. friend has assured me that
no schedules or maps have been prepared,
or at least that they have not been finally
prepared. Of course we have heard a great
many rumours to the contrary, some of these
rumours appear to be well founded; but
again I say I accept, as far as my right
hon. friend is concerned, in the fullest sense
his assurance, nor am I making any reservation in a parliamentary sense.
Now there is another observation I would
make, which is that no principle whatever
has been announced by my right hon. friend
in introducing this Bill, beyond this. He
says:
The guiding principle in this redistribution
should be that county boundaries should be preserved, that the municipal representation
of
the county ought to he the basis of the parliamentary representation.
My right hon. friend has not made any
reference whatever to equality of population,
although he laid a good deal of stress upon
that in his speech of 1892. I would like
to point out to him that in Great Britain
in 1884 very full rules were laid down, and
among them were these: in the first place
equality of population; in the next place
retaining in the divisions any particular
portion of the population which was of an
urban character, that, is in the divisions of
boroughs; in the third place, compactness
of divisions with respect to geographical
position; in the fourth place, community
of interests. I think some of those, at least,
require to be regarded to a considerable
extent in the work of the committee, and
perhaps it would have been better if my
right hon. friend had introduced some of
these principles into this Bill or into his
speech.
There is another principle which was laid
down by my right hon. friend in 1892, and
to which I would invite his attention now.
In speaking upon the second reading of the
Bill at that time, he said:
What I propose to the sense of justice and
every man in this House is that this application of the law should be made in such
a manner that both parties shall remain with the
same advantage they now possess.
I am not at all clear how it would be
possible to work out a principle of that kind
in framing schedules for a Bill of this character, but at all events it is a principle
upon which my right hon. friend very
strongly relied in 1892, and it is one which
it is proper for me now to bring to his
attention.
Now, I have one more remark, and it is in
respect of the criticism which my right hon.
friend made of the Act of 1892. In speaking
on the first reading of this Bill, he named
forty-two constituencies in the province of
Ontario which, he said, had elected twenty- five Conservatives and only seventeen
Liberals, and notwithstanding that fact, the
vote for the seventeen Liberals was greater
in number than the vote for the twenty-five
Conservatives. My right hon. friend seems
to regard that as a complete argument to
show that the Bill of 1892 was unfair to the
Liberal party. Well, now, I have been furnished with a list of certain constituencies
in the province of Ontario which produce an
exactly opposite result. Take the constituencies of West Bruce, South Brant, South
Essex, Glengarry, Haldimand, East Huron,
West Huron, South Huron, Kingston, West
Lambton, West Middlesex, South Middle- sex, West Northumberland, South Ontario,
West Ontario, Ottawa, South Oxford, South
Perth, East Peterborough, Prescott, North
Renfrew, South Renfrew, North Simcoe,
Wentworth and Brant, North York—Here
you have twenty-five constituencies with a
popular vote for the Liberal party of 52,098
which returned twenty-five Liberal members
at the last general election. Now, take
seventeen Conservative constituencies which
returned Conservatives at the last general
election. Cornwall and Stormont, East Elgin,
East Grey, Hamilton, Hamilton, Middle- sex East, East Toronto, West Toronto,
Centre Toronto, East York, West York, East
Lambton, Lincoln and Niagara, Muskoka and
Parry Sound, North Perth, East Simcoe,
South "Waterloo—Here you have constituencies which returned seventeen Conservatives
by a popular vote of 53,962, or some
1,900 more than the total number of
votes cast for twenty-five Liberal members.
1213 APRIL 14, 1903 1214
Where I have dealt with constituencies like
Ottawa, or, like West Toronto which returned two members I have taken half the
vote for the successful Conservative candidates which I think is a very fair way to
do. Let me also point out to my right hon.
friend the result in his own province. He
was very strong in the position he took that
the Bill of 1892 was unfair to the province
of Quebec. He dwelt on that to the extent
of two or three columns of ' Hansard.' I do
not think that my right hon. friend, looking
at the result in his own province to-day, can
fairly regard it as a gerrymander in the interest of the Conservative party at least.
I have been looking at the figures and I
find that in the province of Quebec at the
last general election the popular Liberal
vote was 133,121 and that fifty-eight Liberal
members were returned while the popular
Conservative vote was 104,522 and that
seven Conservative members were returned.
Each Liberal member represents on an ever- age 2,300 Liberal electors while each Conservative
member represents on an average
15,000 Conservative electors. I think my
right hon. friend will not be inclined to rely
upon the position he took in 1892 when he
regarded the province of Quebec as having
been gerrymandered in the Conservative interest.
There is another matter I would like to
bring to the attention of the House and it
is this. My right hon. friend has not said
a word about the very important legal point
which was raised by two of his colleagues
in 1892—Mr. Davies and Mr. Mills. These
were very eminent men in their profession,
so eminent that they have since been appointed by this government to positions on
the bench of the highest court of appeal in
this country and both of these gentlemen,
in 1892, laid down the position unequivocally, stating that they had no doubt upon
it,
that parliament was not competent to do
this work at all, that it must appoint an
independent authority to deal with the subject. I shall not weary the House by reading
from their speeches but any hon. gentleman who has paid any attention to the debate
of 1892 knows that what I say is
absolutely correct. Mr. Davies as well as
Mr. Mills professed himself to be without
any doubt whatever on the subject, and on
the Conservative side of the House, the late
Mr. Dalton McCarthy, a gentleman very eminent in his profession, none more eminent
in Canada at that time, professed himself
to be in agreement with Mr. Mills and Mr.
Davies. Now, under these circumstances,
would it not be worth the attention of the
government to consider whether or not that
point should be referred to the Supreme
Court for their decision. That is not a point
that can be laughed out of court when
we have in support of it Mr. Davies, now a
judge of the Supreme Court, the highest
court of the country, Mr. Mills an eminent
constitutional lawyer, now occupying a seat
on the bench and when we have also in
support of it the opinion of the late Mr.
Dalton McCarthy. It is something that you
will not dismiss with a smile, I imagine, it
is something that you will not dismiss with a
shrug or a laugh, it is something that you
will regard as serious when gentlemen of
the standing and ability of the three gentlemen I have named have taken the position
which these gentlemen did take in the
House of Commons.
Now, Mr. Speaker, there is one other matter about which I would like to say a word
and it is in regard to the legal question which
I drew to the attention of the House on the
first reading of this Bill. I have been very
kindly favoured by the hon. Minister of Justice (Hon. Mr. Fitzpatrick) with a copy
of the
memo. which he presented to council and I
am bound to say that I think he has with
his usual ability made the very best possible
case that he could for the position of those
who think that there is no ground for the
contention which has been raised by the
law officers of the Crown for the province of
New Brunswick. I have had a great deal
of doubt in my own mind as to what the true
answer to the question is. At one time when
I first examined the question, I was very
strongly impressed with the opinion which
has been given by the hon. Minister of
Justice although I reached the conclusion by
a somewhat different mode of reasoning. It
seemed to me, looking at the provisions
of sections three and four of the British
North America Act that you might say that
Canada was as much constituted under the
British North America Act when it had
seven provinces as when it had four. That
at first blush seemed to be the true solution
of the case for the reason that the Dominion
of Canada was not formally constituted by
the British North America Act, but it was
constituted under the British North America
Act by the Queen's proclamation, and inasmuch as section three gave power to the
Queen to proclaim the four provinces to be
one union and as section 146 gave power to
the Queen, upon certain conditions precedent
having been complied with, to make a similar proclamation in regard to other of Her
Majesty's colonies in North America I was
inclined to think at first that the words 'as
constituted under this Act' in section four
would be just as much applicable to Canada
at the present time as they were in 1867. I
do not say that there is not some force in
that answer to the argument which has been
put forward by the law officers of the province of New Brunswick. But, let us look
at the preamble of the British North America Act, which is as follows:—
Whereas, the provinces of Canada, Nova Scotia and New Brunswick have expressed their
desire to be federally united into one Dominion
under the Crown of the United Kingdom of
Great Britain and Ireland, with a constitution
similar in principle to that of the United Kingdom:
1215
COMMONS 1216
And whereas such a union would conduce to
the welfare of the provinces and promote the
interests of the British empire;
And whereas on the establishment of the
union by authority of parliament it is expedient,
not only that the constitution of the legislative
authority in the Dominion be provided for, but
also that the nature of the executive government therein be declared;
And whereas it is expedient that provision
be made for the eventual admission into the
union of other parts of British North America.
Then follows the enacting part. Then, in
section four provides:
The subsequent provisions of this Act shall,
unless it is otherwise expressed or implied,
commence and have effect on and after the
union, that is to say, on and after the day appointed for the union taking effect
in the
Queen's proclamation; and in the same provisions, unless it is otherwise expressed
or implied, the name Canada shall be taken to mean
Canada as constituted under this Act.
That is rather an important provision it
seems to me which is contained in the first
part of section four. The subsequent provisions of this Act are to 'commence and
have effect on and after the union' and it
seems to me that the expression gives a
certain key as to whether or not you are to
regard the words 'Canada as constituted
under this Act' as having the meaning
which I have already indicated. Now, another important section is section eight to
which I think attention was not drawn
upon the first reading of the Bill.
In the general census of the population of
Canada which is hereby required to be taken in
the year one thousand eight hundred and seventy-one, and in every tenth year thereafter,
the
respective populations of the four provinces
shall be distinguished.
I would rather be inclined to think that
there is ground for the contention taken by
the law officers of the province of New
Brunswick—I understand this to be their
argument—that Canada as constituted under
this Act meant in the first place the four
original provinces, or rather the three original provinces of Canada, Nova Scotia
and
New Brunswick and not Canada as it might
be constituted from time to time. If you
once grant that, it seems to me that
a very serious question arises. I am not
insensible of the force of the argument which might be and which has
been made by the hon. Minister of Justice,
and it seems that he has overlooked one
point to which he might have drawn attention and that is that the words 'parliament
of Canada ' at the commencement of section
fifty-one must obviously mean Canada as
constituted from time to time, because it is
the parliament of Canada as constituted
from time to time that must make these provisions. My hon. friend the Minister of
Justice has in his memo gone very fully into
the question of the statutes and the addresses, and in particular he has referred
to the imperial legislation following the admission of Manitoba into the union. The
hon. gentleman places very great stress indeed upon the statute which deals with the
province of Manitoba. He says:
The terms of union and the Manitoba Act
are to be looked upon and construed as in
effect imperial Acts amending the British
North America Act, 1867. It will be observed
that in each of them it is provided that the
provisions of the British North America Act,
1867, except these answering a certain description which section 61 does not answer,
shall
be applicable to the new province in the same
way and to the same extent as they apply to
the other provinces of the Dominion, and as if
the new provinces had been one of the provinces
originally united by the said Act.
Of course, one can see at once the force of
that argument, but it does not seem to me
to be as conclusive as the Minister of Justice supposes, because it might possibly
be
that the new provinces must be compared
with the total population of Canada for the
purpose of regulating their representation,
and yet it would not necessarily follow that
the very distinct language contained in section 51 must be so modified so far as the
other four provinces are concerned. That
seems to me to be the whole crux of the
argument of the Minister of Justice. If
you once concede that 'Canada' in section
51 means ' Canada ' as it was originally constituted, then that section being regarded
in
the light of a treaty between the four provinces—in fact the whole Act must be regarded
in the light of a treaty between the
four provinces—you must have something
very distinct indeed in any subsequent statutes or addresses if you are to modify
the
language of that section. I do not know
that I would be inclined to go so far as
my hon. friend the Minister of Justice. in
holding that you do find what is sufficient for that purpose in the addresses and
the statutes to which he has called attention. Indeed, I do not observe anything
in the memo. of the Minister of Justice
which indicates his reasons for supposing
that the population of the Territories must
be taken into consideration—I do not know
whether the Minister of Justice goes so far
as to hold that the population of the Territories ought be taken into consideration.
Mr. BORDEN (Halifax). My hon. friend
thinks that it ought not to be.
Mr. BORDEN (Halifax). I did not know
whether it affected the result or not.
Mr. BORDEN (Halifax). I agree that it
is a question which ought be considered
some time; not only so far as the Territories
are concerned, but I think so far as Canada
is concerned. Even if the argument of the
1217 APRIL 14, 1903 1218
Minister of Justice were more convincing
to me than it is—and I am bound to say
that I appreciate its weight—nevertheless
we have on the other hand the opinion of the
law officers of the province of New Brunswick, and all who are acquainted with the
Attorney General of New Brunswick (Hon.
Wm. Pugsley), and all who have met him
at the bar, realize and recognize his eminence in the legal profession. Therefore,
so
long as there is a question with regard to
it, I think it would be right that it should
be submitted to the Supreme Court. It
ought to be submitted not only to the Supreme Court. but it seems to me necessary
or at least desirable that provision should
also be made for having the opinion of the
Privy Council upon the question. I
say that for this reason: Suppose the
parliament of Canada should pass this Act
in its present form, and a question
should afterwards he raised—and it may
be raised before the courts—as to whether this parliament had jurisdiction, and
the case so raised should go not only to the
Supreme Court of Canada, but to the Privy
Council, a very awkward condition of affairs
may come to pass. It seems to me that it
would be impossible to separate in such an
Act as this, that portion which upon the
assumption that I have made, would be
good, and that portion which would be bad.
May I make my meaning a little plainer- I am trying to address myself more particularly
to my hon. friend the Minister of
Justice. Here is a statute which undoubtedly contains provisions which this parliament
may pass—there can be no doubt that we
can deal with the revision of constituencies
throughout Canada. While that revision or
redistribution of constituencies throughout
Canada is part of the statute, it contains,
let us say, a provision which is absolutely
ultra vires of this parliament; namely, the
reduction of the representation of Ontario
to eighty-six and the reduction of the representation of the other provinces by one
or two members. In construing a statute
of that kind it may be held by the court
eventually: That not only that portion
which deals with the representation of the
province of Ontario is bad, but the whole is
bad, because the two things are so much
dependent on each other and so absolutely
joined together in the Act, that you cannot
separate in it that portion which is good
from that portion which is bad. Therefore,
it seems to me that we should have an adjudication upon this question and we should
not only have the adjudication of the Supreme Court of Canada upon it, but we
should also have the adjudication of the
Privy Council by way of appeal as well.
I do not desire, Mr. Speaker, to detain the
House further. There is, however, one matter which I forgot to mention and which I
know has impressed itself upon the mind
of my hon. friend the Minister of Justice:
That is the fact which seems to have been
taken for granted in 1892: That British Col
umbia came into the union under such conditions that her representation although it
may be increased cannot be decreased. It
would seem to me that this is quite as incongruous as to the point to which the Minister
of Justice has referred; namely, that
under the contention which he controverts
certain provinces in Canada are to have their
representation increased or diminished according to the population of four provinces
and not the population of the whole of Canada, while so far as the rest of Canada
is
concerned the representation of the different
provinces is dependent, not upon the population of the four provinces, but upon the
population of all the provinces of Canada.
Therefore, Mr. Speaker. I think it would
be a wise course for the government to have
that question, which has been raised by the
province of New Brunswick, submitted to
the courts; and not only to have it submitted
to the Supreme Court but to have the question determined by the highest court of appeal
to which any judicial matter can he
carried in this country.
The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier). I am happy that my hon.
friend the leader of the opposition and I
have been able to agree on so many things,
even if we cannot agree on everything. It
was not to be expected that we should have
an absolute love feast and that we should
see eye to eye on every question, but on the
whole I am glad that the Bill has received
the approval of my hon. friend, and that we
shall have his concurrence in making it as
perfect as possible and as fair between
party and party as it is possible to make
it. I have a brief reference to make to one
or two observations of my hon. friend (Mr.
Borden). He has referred to the view held
at one time in this House by two eminent
friends and subsequent colleagues of mine,
then Mr. Louis H. Davies and Mr. David
Mills, both of whom are new members of
the Supreme Court. I remember very well
the occasion upon which these two gentlemen strongly expressed the view that the
parliament of Canada was not competent to
deal with the Redistribution Act, but that
the parliament of Canada could create—not
only that it could create but that it should
create—a power to make the redistribution
although it could not do the work itself.
This view was held by these two gentlemen
and it was strongly supported, but as my
hon. friend knows this view was not generally accepted. I do not notice that my hon.
friend (Mr. Borden) himself expresses an
opinion, and he no doubt has one, upon this
question. Whatever may be his view I shall
not press to know it at the moment, but I
will point out that the government thought
that upon this question, though perhaps the
question may not be free from doubt—I
would not go so far as that probably—though
the contrary view is held by eminent authorities, we thought the safest course was
to
follow the practice which has hitherto
1219 COMMONS 1220
been accepted and have the redistribution
made by parliament itself. I have no doubt
that parliament can create a power to do
the redistribution, but the power is also
vested in parliament, and all governments
up to the present time have interpreted it
in that way. I believe it was more in accordance with the public interpretation of
popular government to have that supreme
power carried into effect by parliament itself. The other question to which the hon.
gentleman (Mr. Borden) has referred is a
far more serious one; namely, the method
of counting the votes and distributing them.
My hon. friend has stated, and rightly
stated, that upon this point we are absolutely bound by the British North America
Act; we are not at liberty to assign so much
to this province or so much to the other
province; we must follow the results of the
census, according to the terms laid down
in the British North America Act. But there
can be a way of counting the votes and ascertaining that proportion. We have received
a very strong appeal from some of
the provinces, particularly from the province
of New Brunswick, and my hon. friend the
Minister of Justice has taken the precaution
to have this matter referred to the Supreme
Court and to have as speedy a decision as
possible. Whether or not it would be advisable to carry it to the Judicial Committee
of the Privy Council is a matter on which
it is premature to pronounce. I suppose
that in this we will be guided very much
by the judgment of the Supreme Court. If
that judgment be of such a character as to
leave no doubt, either one way or the other,
there would be no necessity to push the
matter further. Perhaps it may be advisable to do so, but the government are not
prepared to decide that point definitely at
present. My hon. colleague the Minister
of Justice, has taken steps to have the matter referred to the Supreme Court and have
a decision as speedily as possible, and I
hope that in a few weeks we will be able to
announce that decision.
Mr. W. B. NORTHRUP (East Hastings).
In rising to make a few comments on the
Bill, Mr. Speaker, I wish to express my entire accord in the remarks of my hon. leader,
when he said that he accepted the statements
of the right hon. gentleman, the First Minister, as unreservedly as they were made.
I sincerely believe that the right hon. gentleman intends by the Bill before the House
to give the people a fair redistribution
measure, and speaking for myself, I say
in all sincerity, that when the right hon.
gentleman's biography comes to be written
—and I am sure it is gratifying to every
hon. member on both sides to realize that
that day is apparently growing daily more
remote—the brightest page in that biography
will be that one on which is recorded the promise of the right hon. gentleman to give
this
House and country a fair measure of redistribution. But while expressing my appre
ciation of the intentions of the right hon.
the leader of this House, it seems to me that
the time is inopportune for the passing of
such a measure as that submitted to us.
The right hon. gentleman has pointed out
that the government has decided to submit to the Supreme Court a reference on
the question raised as to our right to reduce
the representation of any of the provinces.
But practically what difference can there
be in submitting the case to the Supreme
Court, and submitting it to a board composed of county court judges, other than the
intrinsic merits and abilities of the members
of the respective courts? We know that
if legislation be based on the decision of the
Supreme Court and if the constitutionality
of that legislation be disputed before the
Judicial Committee of the Privy Council,
that body would be in no way bound by
the decision of the Supreme Court. In a
matter of such importance, not only as affecting the present, but as laying down a
precedent and doctrine for future redistributions, it seems to me that the least the
government should do would be to obtain the
best opinion possible in order that in whatever we may do, we may be acting on no
uncertain ground, and have every assurance
that our legislation will be unassallable. I
do not intend to argue that the construction
of the British North America Act given
by the government is wrong, although
my own opinion would lead me to
that conclusion. But I do not take
this ground because, in the first place, it is
not necessary for the argument I intend
making. What I wish to point out is that
if it be doubtful that this House has a
right to reduce the representation of any
of the provinces, if nobody can say with
certainty that we have the power to pass
such legislation, we ought certainly to obtain the most authoritative opinion we can
before proceeding to pass any enactment.
In the second place, I do not propose to
argue that the government is wrong in its
contention, for if I were to do so, I would
be submitting to this House an argument
which would be more properly made in a
court of law, as this House is not so constituted as to be the proper forum before
which to argue an intricate question of
law. I would prefer that such a question
should be argued before the Judicial Committee of the Privy Council.
On looking through the written opinion
of the hon. Minister of Justice, and speaking
with all deference to his high legal attainments, if I can find statements of fact
in
that opinion which are inaccurate quotations
of law that are erroneous if I can find
arguments which are fallacious and other
arguments which followed to their logical conclusion would bear out the contentions
of the provinces, I think I will be
justified in concluding that an opinion based
on such data cannot be so clear and free
from doubt as to warrant our passing an
Act which later on might be declared invalid.
1221 APRIL 14, 1903 1222
Looking at the opinion of the hon. Minister
of Justice, and without pretending to dissect it thoroughly, let me call attention
to
a few facts which may throw some light on
the conclusion he has come to. On page 4
I find this sentence:
The province of Manitoba has been carved
out of Rupert's Land by legislation of the parliament of Canada, which also, by virtue
of
provision of the British North America Act,
1867, has practicallly the force and effect of an
imperial statute.
That is a statement with regard to an
important fact. But is it a fact that the
province of Manitoba was carved out of
Rupert's Land by legislation of the Dominion of Canada? I find in Hodgins on Dominion
and Provincial Legislation, page 9,
that a predecessor of the hon. gentleman,
the Rt. Hon. Sir John Macdonald, Minister
pointing out that so doubtful was the power
of Justice of that day, in a report approved
by His Excellency the Governor General
of Canada in Council, on the 2nd of January, 1871, thus speaks of the question raised
as to the power of parliament to pass an
Act giving the new province the right to
representation in the Senate and the House
of Commons of the Dominion:
The general purview of the British North
America Act, 1867, seems to be confined to the
three provinces of Canada, Nova Scotia. New
Brunswick, originally forming the Dominion.
And on the strength of that and the
other statements in this state paper, the
Minister of Justice of that day came to
the conclusion that inasmuch as it was
doubtful whether the parliament of Canada
had the power to carve out a province
from Prince Rupert's Land, it was wise to
have imperial legislation to legalize what the
parliament of Canada had done.
Mr. NORTHRUP. It is this, that the imperial parliament, a year or two later, passed an Act to
legalize what the parliament of
Canada had done, and what the hon. gentleman says the parliament of Canada had a
right to do without any imperial Act. If
the statement be true that the parliament
of Canada had the power to carve out the
province of Manitoba from Rupert's Land,
the Rt. Hon. Sir John Macdonald and the
officers of the Crown of that day were wrong
in applying for an imperial Act, and the
imperial parliament and the law lords were
wrong when they passed an Act of the
statute to legalize what the Dominion had
a right, of its own accord, to do without
any imperial legislation.
The MINISTER OF JUSTICE. But we
are speaking of the present time. What
was done at that time was legalized subsequently.
Mr. NORTHRUP. I am speaking of the
statement in the report of the hon. gentleman that the province of Manitoba had been
carved out of Rupert's Land by legislation
of the parliament of Canada. But on referring to the record, I find that while
the parliament of Canada had attempted to
do so, the Minister of Justice of that day
doubted its power, and the imperial parliament passed a piece of legislation, which
was not at all necessary except on the
ground that the parliament of Canada had
not the power to do what it professed to do.
I am justified, therefore, in my contention
that in an important statement of fact the
hon. gentleman is not accurate, and that
when he says that the province of Manitoba
has been carved out of Rupert's Land by
legislation of the parliament of Canada, he
should have qualified that statement by
pointing out that so doubtful was the power
of parliament to do this considered, that an
Act was passed by the imperial parliament
to legalize what the Dominion parliament
had done. Therefore, I submit that is not a
fact on which the conclusion arrived at by
the Minister of Justice can be based. Further in this report of the hon. Minister
of
Justice, he says, that British Columbia and
Prince Edward Island came into the union
under the same section 146 of the British
North America Act, and that they were admitted into the union with practically equal
rights. On page 6, these are the words he
uses:
Where new partners are admitted into the
union with practically equal rights, one would
expect to find the relation of the population of
each province to that of the whole Dominion
to govern this representation in the popular
Chamber.
But as a matter of law is it the case that
British Columbia and Prince Edward Island were admitted into the Dominion with
practically equal rights? In this very state
paper of the hon. Minister of Justice I find
on page 5:
British Columbia is entitled to be represented
in the Senate by three and by six in the House
of Commons, the representation to be increased
under the provisions of the British North
America Act, 1867.
And I find that, according to the same
paper, page 5:
The terms of union with Prince Edward Island contain a provision to precisely the
same
effect as clause 10 of the terms of union with
British Columbia and the following provisions
as to representation:—
That the population of Prince Edward Island
having increased by 15, 000 or upwards since the
year 1861, the island shalll be represented in
the House of Commons by six members; the
representation to be readjusted from time to
time under the provisions of the British North
America Act, 1867.
But in the case or British Columbia, the
representation was to be, not readjusted,
as in the case of Prince Edward Island, but
increased. It will hardly lie in the mouth
1223
COMMONS 1224
of the hon. gentleman to say that the two
expressions 'readjusted' and 'increased'
are synonymous terms, because in 1892,
when the last Redistribution Act was before
the House, hon. members opposite, including the present leader of the government,
admitted that under the terms of union,
the representation of British Columbia
could not be decreased below six. It was
not contended then that the representation
of Prince Edward Island could not be increased or decreased according to this
method of readjustment. And therefore, Sir,
we find that, as a matter of fact, as a
matter of law, of the two provinces, both
of which came in under orders in council,
in the case of one it is guaranteed that the
number of its members can never be less
than six, while the other may be reduced
to one or none. And yet, the Minister of
Justice, in this report on so important a
question, a report which if followed, may
lead to a state of affairs never contemplated,
and which never could be desired, says that
these new provinces were admitted to the
union with practically equal rights. I submit to this House could anybody on either
side contend for a moment that when one
province comes in with six members which
number cannot be decreased, and another
comes in with six members which can be
decreased, it is not a mere abuse of language
to say that the two provinces came in with
equal rights?
And I would refer to another part of the
report of the Minister of Justice. At the
beginning of his report he refers to the
contention on the part of the parliament
of New Brunswick that Canada under the
51st section, is Canada as originally constituted by the British North America Act,
and he shows, on the other side, the contention which the government supports,
that Canada means Canada as it exists today. We know what Canada means under
the British North America Act—the original
four provinces. And we know what Canada means as it exists to-day, stretching
from the Atlantic to the Pacific. And the
difference between the province of New
Brunswick on the one side and the Dominion of Canada on the other is which of
these interpretations is correct. The fourth
subsection of section 51 is the clause which
is under discussion and concerning which
the question arises whether it means Canada as it was constituted under the British
North America Act, or Canada as it exists
to-day. I find, in this statement of the Minister of Justice the clause which bears
on
this point and gives the information on it.
He said:
The terms of union and the Manitoba. Act
are to be looked upon and construed as in
effect imperial Acts amending the British North
America Act, 1867. It will be observed that, in
each of them it is provided that the provisions of the British North America Act,
1867,
except those answering a certain description
which section 51 does not answer shall be applicable to the new province—
And the words following are underlined:
—in the same way and to the same extent as
they apply to the other provinces of the Dominion, and as it the new province had
been
one of the provinces originally united by the
said Act.
And it goes on:
Section 51 is also in each case specially declared to be applicable. subject to the
exceptions which for the present purpose are immaterial.
The words underlined—
Those to which I have just referred.
—seem to dispose of the suggested view as to
the construction of the Act as untenable. Suppose one of the colonies had been one
of the
provinces originally united, how must section
51 have then been read and construed. In the
opening paragraph ' four provinces' would have
been 'five provinces': the Word 'province'
throughout the section would be applied to the
supposed additional province as well as the
other, and can it be doubted that the word
' can' in paragraph 4 would have included all
five provinces.
So the hon. gentleman's argument is that
as these provinces came in from time to
time they became part of the Dominion on
the same terms as did the original provinces,
and therefore the British North America
Act should be read, as each came in, as
though it had been part of the Dominion
when the British North America Act was
passed. Then, let us see, this being admitted, how clause 5 of the British North
America Act will read. Making the amendments necessary for the hon. gentleman's
argument it would read as follows:
Canada shall be divided into seven provinces,
named Ontario, Quebec, Nova Scotia, New
Brunswick, Prince Edward Island, Manitoba and
British Columbia.
I think the hon. gentleman (Hon. Mr.
Fitzpatrick) will admit that that is a fair
reading of clause 5 of the British North
America Act as amended by his argument,
that as each new province came into the
Dominion it acquired all the powers of the
original provinces, and that the clauses of
the Act were to be read as if it had been
admitted as part of the Dominion originally.
But this would make Canada consist only
of the seven provinces enumerated. If I
had not had the pleasure of meeting the
hon. gentleman in the North-west Territories
last fall, I would have thought that he was
under the impression that a person stepped
from Manitoba directly in to British Columbia. Under his argument, the Northwest Territories
form no part of the Dominion of Canada, for Canada consists only
of the seven provinces. Under that argument, when we seek to find what each province
should be arrayed against in order
to calculate its representations, we find that
it would be Ontario, or whatever other pro
1225 APRIL 14, 1903 1226
vince may be considered, against seven provinces, not against the Dominion of Canada.
So, admitting for the purpose of argument—which I do not as a matter of fact—
that the hon. gentleman's argument is correct, he has simply proved himself out of
court, because he begins in the first page of
his report to prove that Canada means Canada as it exists from the Atlantic to the
Pacific, and he has proved that it means only the
seven provinces, the territories not being
included. So, when we seek to find against
what part the representation of Ontario
should be calculated, we find that it is only
against seven provinces and not against the
Dominion of Canada including the territories. What the practical effect of that
would be I am not prepared to say. I do
not know that it is material, for, in dealing
with the law it is a question of right and
wrong. However, I have had two calculations made showing the effect under each
contention. Not being a mathematician, I
cannot say whether they are right. But
one calculation made by a competent person shows that, it the territories were excluded
and Ontario were calculated against
seven provinces, we should not have any
reduction. The other made by a department in the city shows that, by a paltry
decimal of twelve, Ontario would lose six
seats, if the territories were brought into
the calculation. While I believe the first
figures to be correct, I am not going to
commit myself to them. It is a question of
the construction of the statute, and, if it
does not affect us to-day it might affect us
at some other time. We are entitled to a
fair rendering of the statutes, and we are
entitled to know whether the minister bases
his argument on the ground that seven provinces constitute the whole of Canada before
we are called upon to accept a calculation based upon such data.
I notice, also, that on page 6 of the hon.
gentleman's report, it appears that the provinces came in with equal rights as compared
with the others. Let us see how that
would work out with regard to the other
provinces. I have spoken of the fact that
it is clear that British Columbia has greater
rights than Prince Edward Island. See how
section 51 would work out from the standpoint of the old provinces in the light of
the hon. gentleman's contention. Section 51
provides what is to be done on the completion of the census—that Quebec shall
have a fixed number of sixty-five representatives, and we understand how the
other provinces have proportionate representation. If the contention of the hon. gentleman is right, when we come to read section
51, it applies not only to the four provinces,
but to the seven.
Mr. NORTHRUP, And the hon. minister
has shown by the argument I have referred
to it means the seven provinces. I am
taking the hon. gentleman's report, and not
at present giving my own views. He has
proved to his own satisfaction that Canada consists of the seven provinces. How
then would you work out this 5lst clause?
If he wishes to change his opinion and make
the section mean the whole of Canada, how
would he work out the 51st clause according
to his contention? Whatever portions compose Canada this clause provides for equal
treatment. But what would you do when
you come to British Columbia? Can you
apply section 51 to that province? In view
of the fact that its representations is never
to be decreased below six members, how
is it possible to apply this section to that
province? Then, how about the territories,
if, as the hon. minister contends, Canada consists of the whole country from ocean
to
ocean? It is settled law that we have the
power, under the imperial statutes, to give
the territories as large representations as
we see fit. We can give them ten or fifty
or an hundred members, as we please. So
section 51 clearly does not apply to the territories. According to the hon. gentleman
though, section 51 applies to the whole of
Canada, it does not apply to the North-west
Territories, the largest division of Canada,
or to British Columbia, which is the largest
province. I do not pretend to be very familiar with the geographical facts, but, if
you
subtract from the whole area of Canada
the area of the North-west Territories and
British Columbia, I am inclined to think
that you will find that the greater part of
Canadian territory is outside the operation
of section 51, and we know that the time
is not far distant when the North-west
Territories and British Columbia will be,
in population, the greatest part of the Dominion. So, the hon. gentleman has led himself
into a difficulty there.
I only wished to call attention to a few
points in the report of the Minister of Justice to argue that, when a gentleman of
his
attainments at the bar, and with his talents
—talents which we all admire—looking into this matter and preparing a state paper,
commits the inaccuracies I have pointed
out, and comes to such conclusions as I
have shown, the ordinary humble member
of this House, such as myself and those
who sit about me, may well say that this
question is not so beyond doubt that we
should be justified in proposing legislation
until the best opinions that we can obtain
have been obtained.
Now referring for a moment to the contention on the other side, is there nothing
to be said for the contention of New Brunswick? I see New Brunswick's contention
submitted to the Dominion government is
very brief. It does not descend to argument, it merely states the case of New
Brunswick. But is there anything to be
said on behalf of the contention of New
Brunswick? I think a great deal can be
1227
COMMONS 1228
said. It has been laid down by one of the
Supreme Court judges, Mr. Justice Strong,
quoted in Lefroy on the Constitution,
page 42:
We are not only entitled, but bound to apply
that well-established rule, which requires us,
in placing a meaning upon descriptive terms
and definitions contained in statutes, to have
recourse to external aids derived from the surrounding circumstances and the history
of the
subject-matter dealt with, and to consider the
enactment by the light derived from such
source, and so to put ourselves as far as possible in the position of the legislature
whose
language we have to expound. If this rule were
rejected and the language of the statute were
considered without such assistance from 'extrinsic facts, it is manifest that the
task or interpretation would degenerate into mere speculation and guess work.
So we have the authority of one of the
judges of the Supreme Court to say that we
have a right to look at all the surrounding
circumstances, and to consider what light
can be shed by them on the legislation that
has been passed. In the debates before the
imperial parliament, when Lord Carnarvon
was introducing the British North America
Act, he spoke very clearly as to the language of the enactment, and laid down that
the British North America Act was the result of a treaty made between the various
powers every clause of which was a compromise; and because every clause of that
treaty was a compromise he refused to
allow the House of Lords to amend any
clause of it in any respect. Now then if
every clause of that treaty was a compromise, perhaps it would not be out of place
to inquire into the circumstances under
which this particular clause 51, in which
we are so deeply interested, came to be put
in the statute. On reference to Pope's Confederation Documents, page 67, we find the
debate on the clause giving the number of
representatives that the various provinces
should be given. We find Mr. Galt saying:
We have supposed that the population of
Lower Canada being tolerably equable in its
character, would afford the best basis. But having respect to the rapid increase of
Upper
Canada, we think the lower provinces should
not be reduced if they do not increase in the
same ratio. Therefore, the lower provinces
would have the same as they have now unless
in the very improbable case of any one falling
off five per cent or more,—that is a decrease
relatively to the whole federation.
Which then began with four provinces.
The Hon. Geo. Brown whose name is greatly
revered by hon. gentlemen opposite, speaking on the same subject, says on page 67:
The practical result will be that while Lower
Canada certainly will not be less and the lower
provinces may increase in population, they cannot decrease in the number of representatives.
It keeps the House within a reasonable limit.
It is now to start with one in 17,000. It will
afterwards vary.
Then on page 68 the debate goes on, and
it is stated that the number of representa
tives then given was not accidental, but was
given because one member for each county
and one for each city would give exactly
the number agreed upon. The delegates
found that they could so divide up the representation of the Dominion that the figures
agreed on in the British North America Act Â
would afford what they considered a fair
basis for the representation of each province, and it was evidently understood by
the representatives at that time when they
so provided that unless there was a falling
off of one-twentieth in the population of a
province there should be no decrease, that
practically they were insured against any
decrease. Now the provinces have gone into the Dominion on that basis, and the British
North America Act being an imperial
Act, I submit it is beyond question that the
terms of the British North America Act,
every clause of it being, as Lord Carnarvon said, a compromise, must stand precisely
to-day as they were then, except
insofar as those clauses have been modified
by imperial legislation. We must not forget
that no matter what legislation this parliament might profess to pass or attempt to
pass in derogation of imperial legislation,
we would be exceeding our powers and our
legislation would be utterly void. Now, I
would ask the Minister of Justice what legislation has ever passed the imperial parliament
that in any way affects clause 51.
Probably the answer will be: The other
provinces came in under Orders in Council.
True, they did come in under Orders in
Council, and if the Minister of Justice will
read the imperial Orders in Council under
which Prince Edward Island, British Columbia and other provinces came in, he will
find that in each case the Order in Council
provided that in pursuance of the 146th
section of the British North America Act
they came in subject to the provisions of
this Act, for in fact an Order in Council
would have no power to vary the British
North America Act, it would be as invalid
as an Act of this House, except for clause
146 which provided that on an address from
a province, with a similar address and on
similar terms, from this House, the Queen
in Council might approve of their addresses
and allow that province to come in on the
terms agreed upon, but in every case subject to the provisions of that Act. So that
when British Columbia or Prince Edward
Island came into the union, they came in
subject to the provisions of the British
North America Act. The imperial Order in
Council has no power to vary that, and
whatever its provisions were, they had to
accept them.
Now the Minister of Justice seemed to
think that if there were four partners, and
two or three others came in, they must
come in on equal terms. Surely no wilder
statement of law than that could be imagined. One can understand four gentlemen
owning a business each holding a one-quar
1229 APRIL 14, 1903 1230
ter interest; and they decide to take in, we
will say, their head clerk. There is nothing
to prevent them giving each one his share
of one-eighth, or one-sixteenth or one-thirty
second, or any interest they like, to that
clerk. It is wholly a matter of contract
between them, and even if that clerk had
ten times the brains of the original tour,
and contributed ten times as much to the
success or the business as the original partners, when he came to claim his share
of
the profits, he would have to abide by the
terms on which he came in. If the Minister
of Justice will look at the terms on which
these provinces came into the union he will
find that there was a provision that they
should have the benefit of certain terms from
the old provinces, they were given a benefit
here and there, but there is not a single word
to show that the old provinces lost the
rights they had already acquired by imperial
legislation. It would be easy for any one
to infer that the provinces should have equal
rights, but they did not get equal rights,
as is shown by the exceptional representation given to British Columbia. Therefore
we find that the provinces have come in
with different rights between themselves.
Now, if they have come in with different
rights between themselves, why should it
be argued that they would necessarily come
in with equal rights as against the old partners? I venture to submit that the true
view of the British North America Act is
that laid down by Sir John A. Macdonald
in his state paper of 1870, when he said that
the purview of the British North America
Act was evidently confined to the original
four provinces. That Act was framed by
the ablest statesmen of Canada. They were
building wisely and well, and they knew the
country was liable to have an unlimited expansion; they knew it was impossible to
foresee the possibilities of this country, and
therefore, in providing for the present, as
far as possible they provided for the future
in general but not in details. They provided that other provinces might come in,
but the details they left to be arranged
while the original partners of the British
North America Act secured imperial legislation, a charter which they hold to-day.
I will not say anything further on this
point than to claim that in view of the
circumstances under which this clause was
inserted in the British North America Act,
in view of the guarantee of the charter that
the provinces have under the British North
America Act, in view of the fact that not
one word is to be found in any Order of
Council or in any address on which an Order
in Council is issued, leading to the conclusion that the original provinces were
divested of any powers they had, whereas
on the contrary they have been given new
powers, certain specified powers, it seems
to me that the case is not free from doubt,
and this is as far as it is necessary to go
for the purposes of my argument. But if
the question be not free from doubt, admitting that the right hon. gentleman wishes
to do what is fair, is it the part of a practical man of business to obtain an opinion
from an inferior court when he could obtain
one from a superior court? Is it wise to
obtain an opinion that has no intrinsic value
beyond the value that may be given to it
from the personal standing of the judges
when, if the case be referred to the Privy
Council, we shall then have an authoritative
decision which will be beyond question.
Therefore I hope that the right hon. leader
of the government, considering that this is
only the third session of this parliament,
that the parliament is still in its infancy,
that there is ample time to secure the decision of the Privy Council and pass this
legislation long before this parliament comes
to its natural end, will not cause the money
of this country to be expended and the time
of hon. members perhaps, to be wasted in
fruitlessly discussing legislation which the
decision of the Privy Council, a few months
later on, may show to be utterly abortive.
The MINISTER OF JUSTICE (Hon.
Charles Fitzpatrick). Mr. Speaker, of course
my hon. friend (Mr. Northrup) is not unaware of the fact that there is no provision
for any reference to the Privy Council and
that the only provision which we have in
our statutes is that which provides for a reference to the Supreme Court of Canada.
Hon. Mr. HAGGART. Is there not a provision for an appeal from the Supreme
Court?
The MINISTER OF JUSTICE. We are
not dealing with appeals; we are dealing
with references. I assume that when hon.
gentlemen argue legal questions, they mean
what they say. As I understand it, the
obligation is imposed upon the government
after each decennial census to provide for
the redistribution of the representation of
the different provinces of the Dominion.
That is an obligation which is imposed on
parliament. There is no discretion that can
be exercised by the government in respect
to that redistribution. The charter under
which we live, under which we are governed, the British North America Act, provides
for the manner in which that redistribution is to be made, and section 51 of
the British North America Act operates automatically without reference to the government
in any manner or form. Now, in
respect to the apportionment of representation in each province, there parliament
is
supreme. When you have determined that
in respect to the province of Quebec sixty- five members are to be allotted. or rather
when the British North America Act has
decided that sixty-five members are to be
allotted to the province of Quebec. then,
within the limits of the province, parliament
is absolutely supreme. Parliament can determine how these members are to be al'
lotted, to which portion of the province they
1231
COMMONS 1232
are to be allotted, or generally in any manner that parliament chooses. The principle
upon which we proceed in this Bill in respect to the redistribution of the constituencies
in the provinces, a principle which
was laid down by the right hon. leader of the
government (Rt. Hon. Sir Wilfrid Laurier),
as I understood him when he presented this
Bill, is that we should maintain county boundaries, and that after having settled
the
principle that in so far as it is possible
county boundaries should be maintained the
subdivision of any county is a matter that
parliament should deal with and that subdivision is to be made by a committee of the
House, as stated by him when he introduced
the Bill. In respect to the principle that
was laid down by the right hon. the leader of
the government that we would adhere to
municipal or county boundaries, I would
like to say to the House that that principle was laid down by the late Sir John
Macdonald in 1871 at the time of the first
redistribution, and that it was acquiesced
in by the then leaders of the opposition,
Hon. Mr. Mackenzie and Hon. Mr. Blake,
and was concurred in by Sir Charles Tupper,
who also spoke upon that question. Therefore, the question of adhering to county
boundaries may be considered as a question
that was determined by the leaders of both
political parties in 1871. It is true that
for purposes to which it is not necessary
to refer now that principle was departed
from in 1882, but it was not departed from
by the Liberal party, and in so far as we
are concerned our position to-day is the
position we occupied in 1871, that we should
maintain county boundaries. Having stated
that much, I now proceed to submit to the
House the method of reasoning adopted by
me in support of the proposed redistribution
of seats. This matter is to be referred to the
Supreme Court of Canada; it will be argued
there, and in so far as I am concerned I will
be content to state now the position I
take without adding any argument in support of it. It seems to me the time to argue
this abstract legal question will be when
we come to submit the matter to the Supreme Court, because it would be to some
extent forestalling the judgment of the Supreme Court if we were to argue it here
to-day. I will be content at present to leave
it to the House to appreciate how far my
conclusions flow from the position I lay
down. My hon. friend who spoke last said
the fathers of confederation provided for
the then present. So far as I am concerned,
as I read the Confederation Act, the intention was to provide for the then present
and
to provide for the future, and it is because
I maintain that the British North America
Act provided for the future that I have
reached the conclusion to which I will have
occasion to refer by and by. Am I right
when I say that the British North America
Act provided for the future, and that when
the British North America Act was passed
it was then in contemplation that we should
have a Canada as we have it to-day? Let
me read the preamble. The preamble of
the British North America Act says:
And whereas, it is expedient that provision
be made for the eventual admission into the
union of other parts of British North America.
There we find that at the time the British
North America Act was passed provision
was made for the condition of things we
have to-day. But, we have more than that.
We find that section 146 enacts:
It shall be lawful for the Queen, byand with
the advice of Her Majesty's Most Honourable
Privy Council, on addresses from the Houses of
parliament of Canada, and from the Houses of
the respective legislatures of the colonies or
provinces of Newfoundland, Prince Edward Island and British Columbia, to admit those
colonies or provinces, or any of them, into the
union, and on addresses from the Houses of the
parliament of Canada to admit Rupert's
Land—
That is the province of Manitoba.
—and the North-western territory, or either of
them, into the union, on such terms and conditions in each case as are in the addresses
expressed.
That is to say, that provision is made
under this section for the admission of those
provinces that existed at that time and also
for the admission of the North-west Territories and Rupert's Land on conditions to
be expressed in the addresses. I will have
occasion in a few moments to refer to the
conditions upon which these provinces were
admitted. Take for instance the case of
Manitoba—
Mr. BORDEN (Halifax). There are other
words which will have to be taken into consideration in connection with this section.
Subject to the provisions of this Act.
On such terms and conditions in each case as
are in the addresses expressed and as the Queen
thinks fit to approve, subject to the provisions
of this Act; and the provisions of any Order in
Council in that behalf shall have effect as if
they had been enacted by the parliament of the
United Kingdom of Great Britain and Ireland.
The first province that came in was the
province of Manitoba. In 1870 an Order in
Council was passed in respect to Rupert's
Land, in which I find the following:
It is hereby ordered and declared by Her
Majesty, by and with the advice of the Privy
Council, in pursuance and exercise of the
powers vested in Her Majesty by the said Acts
of parliament, that from and after the fifteenth
day of July, one thousand eight hundred and
seventy, the said North-western territory shall
be admitted into and become part of the Dominion of Canada upon the terms and conditions
set forth in the first hereinbefore recited
address, and that the parliament of Canada
shalll from the day aforesaid have full power
and authority to legislate for the future welfare and good government of the said
territory.
And it is further ordered that, without prejudice to any obligations arising from
the
1233 APRIL 14, 1903 1234
aforesaid approved reports, Rupert's Land shall
from and after the said date be admitted into
and become part of the Dominion of Canada
upon the following terms and conditions. being
the terms and conditions still remaining to be
performed of those embodied in the said second
address of the parliament of Canada.
Rupert's Land came in under the name of
Manitoba, and when it came in certain
doubts were expressed in respect to the
power of the Dominion of Canada to carve
out—I use the expression again which I
used in the opinion which I gave—to carve
out of Rupert's Land the province of Manitoba. Certain doubts were expressed by
the late Sir John Macdonald and other members of his government, and as a result the
Order in Council, to which my hon. friend
referred, was passed. Then, what happened? We find that we have what is
known as the Doubt Removing Act; that is
to say, the British North America Amendment Act of 1871, in which it is provided
that:
The parliament of. Canada may from time to
time establish new provinces in any territories
forming for the time being part of the Dominion of Canada, but not included in any
province thereof, and may, at the time of such
establishment, make provision for the constitution and administration of any such
province,
and for the passing of laws for the peace, order, and good government of such province,
and
for its representation in the said parliament.
The Dominion parliament shall have the
right to pass such laws as it deems proper
for the representation in parliament of the
provinces of Canada. Then, we have, in
addition to that, section 5:
The following Acts passed by the said parliament of Canada, and entitled respectively:
' An Act for the temporary government of Rupert's Land and the North-western Territory
when united with Canada,' and 'An Act to
amend and continue the Act thirty-two and
thirty-three Victoria, chapter three, and to
establish and provide for the 'Government of
the province of Manitoba' shall be and be
deemed to have. been valid and effectual for all
purposes whatsoever from the date at which
they respectively received the assent, in the
Queen's name, of the Governor General of the
said Dominion of Canada.
That is to say, the Act passed by the Dominion carving Manitoba out of Rupert's,
Land in 1870, is declared by this Imperial
Act as having been properly passed, and the
Act of 1870 is now to be construed as if it
had been an Act of the imperial parliament.
Acting on this theory, that this Act here confirms the first Act and made it imperial
legislation, I ventured to make the statement
that the Dominion of Canada did carve Manitoba out of Rupert's Land. My hon. friend
(Mr. Northrup) cavils with that statement. I
say that the Imperial Act of 1871 says that
what we did in 1870 was good, and that it
gave to the Act of 1870 absolutely the same
effect as if it were done by the imperial parliament, and my hon. friend says it is
an incorrect statement in law to assert that Can
ada had carved out of Rupert's land the
province of Manitoba. I am willing to accept his criticism.
Mr. BORDEN (Halifax). Would the Minister of Justice permit me to ask a question
now—if it would interrupt his argument I
shall do so later.
Mr. BORDEN (Halifax). I merely ask for
information. Under what statute is it that
we get power to provide for the representation of the North-west Territories. Is it
not under section four of the Act to which
the hon. gentleman has just referred.
Mr. BORDEN (Halifax). Does the hon.
gentleman not observe a marked difference
between section four and section two. Section two dealing with provinces (therefore
not applying to the territories) provides
specially for representation in addition to
providing for laws for the peace, order and
good government; whereas section four provides for the making of laws for the peace,
order and good government of the territories
but not for representation.
Mr. BORDEN (Halifax). The distinction
is that in one case there is express provision
for representation and in the other there is
not.
Mr. BORDEN (Halifax). I do not see it
just in that way.
The MINISTER OF JUSTICE. The Manitoba Act of 1870, thirty-three Vic. Cap.
three, section two, which is now, mark you,
imperial legislation, provides:—
On 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, or only to affect 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 it the province of
Manitoba had been one of the provinces originally united by the said Act.
That is to say, in 1870, as a result of
imperial legislation, it is provided that Manitoba comes into confederation, and is-
to be dealt with in so far as the British
North America Act is concerned, as if it had
been originally one of the provinces that
came into the union in 1867. Not only is
1235
COMMONS 1236
that to be the case but section four goes on
to say:
The said province shall be represented, in
the first instance, in the House of Commons, by
four members, and for that purpose, shall be
divided by proclamation of the Governor General, into four electoral districts, each
of which
shall be represented by one member: provided
that on the completion of the census in the year
1881, and of each decennial census afterwards,
the representation of the said province shall
be readjusted according to the provisions of
the fifty-first section of the British North America Act, 1867.
That is to say, that we have this Act
which provides for the admission of Manitoba into confederation; we have this Act
making all the conditions and all the terms
of the British North America Act applicable
to Manitoba; and we have moreover special
provision made that there shall be a readjustment of the representation of Manitoba
after each decennial census subsequent to
the year 1871, and that with respect to that
redistribution or readjustment, section fifty- one of the British North America Act
shall
be made applicable, section flfty-one being
the section which applies to the other provinces.
Now, so far as Manitoba is concerned,
after the Act was passed, what is the condition of affairs? Is the Act of 1867 not
to
be read and construed by the light of the
subsequent amendment of 1870, and are you
not bound to give effect to all the terms and
conditions of the British North America Act
with respect to Manitoba; and are you not
bound in so far as the redistribution of
Manitoba is concerned by the terms of section fifty-one? My hon. friend (Mr. Borden)
says that you have got to be careful, and you
have to watch scrupulously the effect of each
word contained in the British North America
Act; that the British North America Act is
a treaty between the different provinces. I
agree with that. It was so stated at the time
the British North America Act was introduced by Lord Carnarvon in the House of Lords,
and it has been since stated on two different cases by the Supreme Court of Canada.
But what is the effect? The British North
America Act is a treaty as between the four
provinces which were parties to it at its inception; but it is also a treaty with
respect
to the provinces which came in afterwards,
and if the four provinces which were parties
to the British North America Act originally,
accept other partners in the concern, they
are bound by the terms and conditions upon
which the other partners come in. They
were free to modify the treaty. A treaty
could not be modified by outside parties, but
by those who were parties to it, and these
parties can agree to modify the terms as
they choose. Therefore, when the four original provinces say to Manitoba: We agree
to your coming into confederation, and you
are to be governed by the same stipulations
that apply to us, and with respect to your re
presentation you are to be governed by section fifty-one of the British North America
Act, what is the conclusion? The conclusion is: After that Act was passed section
fifty-one of the British North America
Act must be read in the light of the amending Act, and so is thereafter to read instead
of 'four provinces' ' five provinces;' and instead of ' Quebec, Ontario, New Brunswick
and Nova Scotia;' 'Quebec, Ontario, New
Brunswick, Nova Scotia and Manitoba.'
Now, we are free so far as Manitoba is
concerned. And what do we find after that?
We then find British Columbia coming in.
British Columbia comes in on an address
from the Legislative Council of the province
of British Columbia to the parliament of
Canada. The parliament of Canada, the
House of Commons and the Senate, also
passed addresses. The addresses of the
House of Commons and of the Senate are
in terms identical with the address presented on behalf of the Legislative Council
of British Columbia. These addresses from
the House of Commons of Canada and from
the Senate of Canada and from the Legislative Council of British Columbia are sent
over to England. There an Order in Council
is passed and the Order in Council takes in
the terms of the addresses that were presented, and says in effect: That the province
of British Columbia is admitted into
confederation on the terms and stipulations
provided in the addresses. Let us see what
these addresses are. You find for instance
with reference to British Columbia, that in
the Order in Council of the 16th May. 1871,
it is represented:—
And whereas by addresses from the Houses
of the parliament of Canada and from the legislative council of British Columbia respectively,
of which addresses copies are contained in the
schedule to this order annexed, Her Majesty
was prayed, by and with the advice of Her Most
Honourable Privy Council, under the one hundred and forty-sixth section of the hereinbefore
recited Act, to admit British Columbia into the,
Dominion of Canada, on the terms and conditions set forth in the said addresses.
What are the terms and conditions?
British Columbia shall be entitled to be represented in the Senate by three members,
and
by six members in the House of Commons. The
representation to be increased under the provisions of the British North America Act,
1867 .....
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 affect one and not the whole
of the provinces now 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.
There you have British Columbia coming
in subject to all the terms and conditions of
1237 APRIL 14, 1903 1238
the British North America Act, and with a
special stipulation that with respect to the
representation of British Columbia, that shall
be governed by section fifty-one of the British North America Act.
Now, let us take the province of Prince
Edward Island. The same formality was
complied with there. You had your addresses from both Houses of parliament
here, and you also had an address from the
parliament of Prince Edward Island. What
do we find in the addresses? We find the
same terms as in the case of British Columbia.
That the population of Prince Edward Island
having been increased by fifteen thousand and
upwards since the year 1861, the island shall be
represented in the House of Commons of Canada by six members; the representation to
be
readjusted, from time to time, under the provisions of the British North America Act,
1867.
There is further provision:
That the provisions in 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 especially
applicable to, and only to affect one and not the
whole of the provinces now composing the Dominion, and, except so far as the same
may be
varied by these resolutions, be applicable to
Prince Edward Island in the same way and to
the same extent as they apply to the other provinces of the Dominion, and as if the
colony of
Prince Edward Island had been one of the provinces originally united by the said Act.
Now, we have reached the last one of the
provinces, and what is the position? You
have the British North America Act in the
pleamble providing for the admission of
these provinces into confederation; you have
section 145 of the British North America Act
which makes provision for the way in which
they are to be brought in; you have got the
arrangement which contains specifically the
words; that they stipulate that their representation is to be readjusted under the
British North America Act, and that they
specially provide that they are to be dealt
with in all respects as if they had been part
and parcel of the original provinces when
the Confederation Act was first passed.
They say you shall deal with us absolutely
on the same terms and subject to the same
conditions as those in which we came in.
What was the result of that? How was
their representation to be readjusted? The
British North America Act provides for readjustment by section fifty-one.
On the completion of the census in the year
1871, and of each subsequent decennial census,
the representation of the four provinces shall
be readjusted by such authority, in such manner, and from such time, as the parliament
of
Canada, from time to time provides subject and
according to the following rules.
Where are they? If my construction of
the Act be not correct, if we are to be held
to the words of the British North America
Act, without any regard to subsequent legislation, there is provision made here for
a
readjustment of the representation of the
four provinces and nothing else. If that
Act has not been amended, you have simply
four provinces, the representation of which
you can readjust. What an absurd conclusion that would be. The only sensible
logical view is that what you are called on
to readjust is the representation of the provinces of Canada existing at the time
such
readjustment must be made. That is to say,
that the British North America Act, like every
other Act, has always to be construed as if
it were passed at the time you are seeking
to put it into operation. It is consequently
necessary, under section 51, to make to-day
provision for the readjustment, not of the
four provinces, as they stood when the Act
passed, but of the seven provinces composing
confederation to-day. This has never hitherto been questioned. In 1871 provision was
made for readjustment in more than four
provinces, also in 1881, and in 1891 a readjustment was made of the representation
of all the seven provinces. Where did the
parliament of Canada get authority to readjust the seven provinces in 1891, if not
in
section 51? Have) all those eminent men,
who took part in the legislation of those
years, been entirely at fault? Is it possible that they were so blinded, so ignorant,
so absolutely incapable as not to understand
where they got their authority to pass the
legislation they did?
Mr. BORDEN (Halifax). It is contended
that if you take the four provinces, as they
originally stood, there would be, under present circumstances, no decrease in the
representation of Nova Scotia, New Brunswick
and Ontario. Does my hon. friend say that
any change has been accomplished with regard to that?
Mr. BORDEN (Halifax). I thought that
my hon. friend had come to that.
Mr. BORDEN (Halifax). My hon. friend
says that it has been amended by these addresses and the Queen's proclamation. I am
not criticising his argument, but wish merely
to understand it. Would he be prepared
to go this far? If in each of these cases,
it had been provided that hereafter the representation of the province of Quebec
should be 64 instead of 65, would the hon.
gentleman say that the British North America Act had been amended by means of these
addresses and proclamations? And if it
could not be amended in this way, how
could it be amended as he has suggested it
has been?
The MINISTER OF JUSTICE. I entertain absolutely no doubt whatever that if
1239
COMMONS 1240
addresses had been presented in the form
suggested by my hon. friend and if. an
Order in Council, which has the effect of
an imperial Act, had sanctioned these addresses and given the effect of law to them,
it would follow that the British North
America Act was amended. The Imperial
parliament can amend at any time any Act
which it has passed.
Mr. BORDEN (Halifax). That is a perfectly fair answer. Would not the words
' subject to the provisions of this Act' have
a controlling influence in that regard?
The MINISTER OF JUSTICE. Not if,
as my hon. friend said a moment ago, it
was in the address stated specifically that
the representation was reduced to 64.
Mr. FRASER. Would that be true also,
without any reference at all to Quebec?
The MINISTER OF JUSTICE. The British parliament can undoubtedly amend the
Act at any time. As to whether they would
or could constitutionally exercise the
right is another question; it is extremely
doubtful. I am replying simply to an
abstract legal question. If the parliament
that has power to pass an Act continues to exist, it must necessarily have
power to amend or repeal it. That is an elementary principle in constitutional law.
And
as the result of the subsequent action of the
imperial parliament, section 51 was amended
so as to make the first clause read 'seven '
provinces instead of four. That, I submit
respectfully, concludes the matter, because
if the representation of the seven provinces
is to be readjusted, it must be readjusted by
the parliament of Canada. What is the
parliament of Canada? It is the parliament which has control over the seven provinces
to be readjusted, and in which those
provinces are represented? Canada must
of necessity mean the whole of the provinces
as they exist at the time. What is the result? The result is that, section 51 being
applicable, you have, when you proceed
to readjust your provices, to be governed
by it. The province of Quebec shall have
a fixed number of 65 members. That province is of course out of court, but it is
the pivotal province. It is by the population of Quebec that the whole redistribution
of the country is to be settled.
Subsection 2 of section 51 provides:
There shall be assigned to each of the other
provinces such a. number of members as will
bear the same proportion to the number of its
population (ascertained at such census) as the
number 65 bears to the number of the population of Quebec (so ascertained).
What is the result? The unit of representation is 25,367 and a fraction, Ontario having
a population of 1,648,898, the population
of the Dominion being 2,182,947, the representation of Quebec being 65. The Act
works automatically. It is a mere question
of proportion—as 1,648,898, the population,
of Ontario, is to 2,182,947, so is 65 to x.
The result is 86-05, and we find that readjusted, the represention would be in this
House:
| Ontario.. .. .. .. .. .. .. .. .. .. .. |
86 |
| Quebec.. .. .. .. .. .. .. .. .. . |
65 |
| Nova Scotia .. .. .. .. .. .. .. .. .. |
18 |
| New Brunswick.. .. .. .. .. .. .. .. |
13 |
| Manitoba .. .. .. .. .. .. .. .. .. .. |
10 |
| British Columbia .. .. .. .. .. .. .. |
7 |
| Prince Edward Island.. .. .. .. .. .. |
4 |
The question naturally arises, how do you
justify the decrease in the representation of
the provinces of Ontario, Nova Scotia, New
Brunswick and Prince Edward Island. I
may say at once that with respect to Prince
Edward Island, there is no necessity for any
argument, because whatever view you take,
whether or not you construe the term ' Canada' in subsection 4 of section 51 to include
only the four original provinces or to
mean Canada as it is to-day, the island is,
in either case, out of court. But with respect to the provinces of Ontario, Nova
Scotia and New Brunswick, if you construe
the term 'Canada' to mean only the four
original provinces, then their representation
would not be reduced, but if you take it to
cover all the provinces then their representation will be reduced to the figures I
have
given. The only question to be determined
therefore is What is the meaning of the
word 'Canada ' in that subsection 4. I say
it must of necessity mean Canada as it is
at present and not merely the four original
provinces. I shall not attempt to argue that
question out now, because it seems to me
that it would be to some extent unseemly
that I should present here a legal argument
which should be more properly submitted to
the Supreme Court. I wish merely to state
the position I take. But I should state to
the House that this question is, of course, one
that the House is free to discuss—I am not
arguing that the House is not free; it is
a matter of taste. But I say that this question is one to which I have given considerable
thought. At the same time, as I had occasion to say once or twice before, I am
not absolutely infallible; and I thought it
was proper for me to get the opinion of some
outside counsel on the question, and I did
do so. I thought I could not do better than
get the opinion of so eminent an authority
as Mr. Christopher Robinson, who entirely
agrees with the views I take. He says:
In my opinion, ' Canada.' in section 51, subsection 4: means Canada as now constituted.
And he goes on to say:
I do not agree with what I understand to be
the contention of Nova Scotia. and New Brunswick that for the purposes of readjustment
it
means only the four original provinces.
Now, that is the case as I want to put it;
that is the case as I understand it; and that
is the case as I am prepared to argue it in
the Supreme Court. I hope the matter will
1241 APRIL 14, 1903 1242
be disposed of there. I think it is a case
that ought to be argued, not because I have
any doubt whatever of the soundness of
the view I take, but for the simple reason
that, when you are taking from a province
a political right, when you are depriving a
province of a certain number of representatives, it is proper that every possible
facility should be given to make it clear that,
if they have rights that are being interfered
with by parliament, those rights will be
construed by a proper tribunal. We want
to have a fair redistribution; we do not
want to take from any province what it has.
On the contrary, we are of those who believe that every constitutional right vested
in a province is to be construed as sacred
and is not to be lightly interfered with, is.
not to be interfered with unless it is absolutely certain that, under the operation
of:
the Act, it is necessary that we should do
so. For that reason, and not that I have
any doubt, the matter is to be referred to
the Supreme Court.
Mr. S. BARKER (Hamilton). I do not
propose to occupy the time of the House in
following the legal arguments that have been
advanced by hon. gentlemen on this side
of the House or by the Minister of Justice
(Hon. Mr. Fitzpatrick). But I do propose
to adopt the words of Sir Henry Strong,
quoted by my hon. friend from East Hastings (Mr. Northrup), in which he said we
were entitled, in such a case as this, to refer
to the history of the matter, to look at the
circumstances of the time and see what was
intended by those who, as delegates from
the various provinces, sought to frame confederation. I may say a word or two as to
the Minister of Justice, not for the purpose
of following legal argument, but to show
the House wherein our position differs from
the argument he has advanced. The hon.
minister says that it is the duty of parliament to redistribute after each census.
I
do not know that that is questioned. I take
it that it is as the hon. minister says. But
the hon. Minister of Justice will not dispute—I am sure he will admit-that where
the readjustment of representation comes in
question that readjustment must take place
before you can redistribute; and it is a question of the law as to the readjustment
of
the numerical representation of the provinces that we are really now discussing, not
the redistribution of the constituencies. Now,
with regard to that, the Minister of Justice
has referred to the Manitoba Act as if that
was inconsistent with the position taken by
the leader of the opposition (Mr. Borden,
Halifax), and by my hon. friend from East
Hastings. I think that, perhaps, the Minister of Justice has overlooked the exception
in the Manitoba Act which brings the
Manitoba legislation into practically the
same position with the introduction of provinces under Orders in Council. The second
section, which has already been referred
to says that:
On and from such a day aforesaid—
—That is the day on which the Order in
Council shall introduce Manitoba as a province—
—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 clearly applicable
to or only to affect one or more but not the
whole of the provinces.
Now, there is an exception preserving, according to our contention, the very provision
we are talking about. The fifty-first section
and the eighth section, according to our contention, provides for readjustment of
the
four provinces originally united, and these
two provisions especially relate to one or
more provinces and are therefore expressly
excepted from the provisions of the Manitoba Act.
Mr. BARKER. There were other provinces brought in. I am going to deal with
that in a moment. That is another point
rather in favour of our contention. The
other provinces brought in by Orders in
Council, after addresses sent to England by
the provinces and the Dominion, come under
clause 146 of the British North America Act,
and that section of the Act expressly provides that when addresses are sent by the
incoming provinces and by the Dominion
stating the terms and conditions on which
the incoming provinces propose to enter,
they shall, upon the Order in Council being
passed in Great Britain, become members of
the union, subject to the provisions of the
British North America Act—subject, that is,
to the very same condition put into the Manitoba Act that the special provision relating
to one or more provinces shall not be affected
by what appears in the addresses. So that
no matter what province you take that may
have become part of the Dominion, whether
under the Manitoba Act or under Orders in
Council, you find that the addresses pursuant to section 146 in the one case and the
Manitoba Act in the other, are expressly
subject to the special provisions of the British North America Act, as to the relative
representation of. the original four provinces.
In other words, the addresses are subject to
the conditions of the British North America
Act. Provinces may enter the Dominion on
any terms and conditions that they and the
Dominion may agree upon, no matter what
they are; but, whatever these terms and
conditions may be they shall be all subject
to the special provisions of the British North
America Act as to any one or more provinces; and, as we contend, no matter what
their agreement may be as to representation
or anything else, they are admitted according
to the bargain they have made; subject,
however, to this: that that bargain or agreement shall not interfere with the special
provision made in the original Act respecting
1243
COMMONS 1244
the readjustment of the four original provinces. That, Mr. Speaker, is our contention.
Now, I do not propose to go on and take up
the time of the House in arguing that question, because, as the Minister of Justice
says,
it is more properly a question for the court.
But I wish to point out that the Minister
of Justice has dealt with clause 8 and clause
51 as if these clauses read not the four provinces but each of the provinces of the
Dominion. He treats the four provinces for
this purpose as if at the time the words
' each of the provinces ' were inserted. Now,
I propose to show, by taking the resolutions
of the conference which framed the Act,
that the delegates deliberately avoided using the words ' each province,' that they,
on
occasion, used those words and then struck
them out and substituted the words which
appear in the Act to-day. For some reason
which they well considered, no doubt, seeking to provide for the readjustment of
the representation of the four original provinces - they did not want to use words
which might leave any doubt. I would refer to the original resolutions prepared
by the conference and presented in London, as found at page 101 of Pope's Confederation
documents. Caluse 20 of that
document, with some change, has became section 51 of the Act; and it reads thus:
Immediately after the completion of the census of one thousand eight hundred and seventy-
one, and immediately after every decennial census thereafter, the representation from
each
province in the House of Commons shall be readjusted on the basis of population, such
readjustment to take effect upon the termination
of the then existing parliament.
Then follow as separate sections the other
provisions that now form the subsections
of section 51. Now, we go on, and at page
126 we find What is called the rough draft
of the Act that was to be submitted to the
British House of Commons. We find in that
rough draft the same words are followed,
' from each province,' instead of ' the four
provinces,' as they now appear in the Act.
The clause in these words:
18. The House of Commons shall be constituted upon the basis of representation by
population. and shall consist of 181 members distributed as follows: To Upper Canada,
82; Lower
Canada, 65: Nova Scotia, 19; and to New Brunswick, 15; and after the decennial census
of
1871, and every decennial census thereafter,
upon the determination, by dissolution or otherwise of the parliament then existing,
the representation from each province shall be readjusted, and for that purpose Lower
Canada
shall always be assigned 65 members, and to
each of the other provinces at such readjustment shall be assigned the number of members
to which it will be entitled in the same ratio
of representation as Lower Canada will have.
Then on page 147 we have What is called
the first draft. It is marked 'Confidentlal,
23rd January, 1867. Draft of a Bill.' There
we find the same clause in section 25.
On the completion of the official census of
the population of the united colony in the year
1871, and of each subsequent decennial census.
the representation ' of the four provinces ' shall
be readjusted by such authority and in such
manner, and from such time, as any Act of the
parliament of the united colony from time to
time directs. according to the following rules:
There for the first time we find the words
'of the four provinces,' after twice using the
words 'each province,' which would follow
the construction the Minister of Justice is
seeking to put upon the present Act. Now
it is singular that in the third draft of the
Bill they come back to the words ' from each
province. That clause is number 34, and
evidently during the hammering away at this
Bill and trying to meet all the difficulties
that existed in confederating these provinces,
they first in the resolutions, and then in the
other draft of the Bill, use the words each
province'; next, in what is called 'first
draft,' they use the words 'four provinces ';
then in another draft of the Bill they go
back to the words ' from each province,' and
finally in the last draft and in the Act itself
use the significant words, 'of the four provinces.' I do not dispute for a moment
that
if they had adhered to ' each province,' both
in the 8th clause and in the 51st clause, there
would be a great deal in the argument of
the Minister of Justice. But they deliberately abandoned it. In the final draft and
in
the Act which was passed they come back
to the words that we are now discussing.
'the four provinces,' the four original provinces.
Now, Mr. Speaker, what is the meaning
of all these changes? These changes were
being discussed by statesmen who were
"sent from Canada as the delegates of four
provinces to arrange the terms of confederation. The delegates were settling these
provisions with regard to existing difficulties between the provinces. They were
negotiating the conditions of confederation.
We all know the difficulties that existed at
that time between Lower Canada and Upper
Canada. There was the burning question
of representation by population, and there
were difficulties between the provinces down
by the sea and ourselves. There was a
divergence of interests. At the first meeting
two years before, there were six provinces
represented; Newfoundland and Prince
Edward Island were represented and took
part in the first discussion. Newfoundland
dropped out, and then the five provinces
attempted to settle the difficulties. The
first difliculty arose because Prince Edward
Island wanted more than its share of representation, and the other provinces would
not agree. Prince Edward Island candidly
admitted that they could not argue that
they were entitled to six members, but they
said: There is no use talking to us about
coming into confederation if you insist upon
our having only our proportion according
to population: you must give us six or we
1245 April 14, 1903 1246
cannot come in. The four would not agree
to it, and Prince Edward Island dropped
out. Then the four got together at Westminster, and having discussed all the difficulties
that existed between them, the
statesmen who had lived all their lives
amidst political difficulties, set to work, and
the thing that seems to have received the
most consideration from them was the wording of this very 51st clause. They started
with the very words that would suit my
hon friend, 'from each province'; they put
them in twice or three times, then abandoned them. They were dealing with the troubles
and divergent interests of four provinces, Upper and Lower Canada, Nova Scotia
and New Brunswick; those are the provinces they were dealing with in that 51st
section; and it is rather singular that you
find, when they use the words ' the four provinces,' they for the first time make
the
other provisions relating to readjustment of
the numerical representation a mere subsection of 51. When they come to deal with
this whole subject, confining the subject- matter to the four original provinces,
they
make the connected provisions subsections
of 51 so that there might be no difliculty
with the details, and that that word 'Canada,' that comes in subsection (4), should
be
understood as limited to the subject of the
main part of the section, the four provinces.
Now I refer for a moment to clause 8 of the
Act. This is not the clause that I read from
the resolutions, it is a clause that does not
seem to have come in until they were framing the Act.
8. In the general census of the population of
Canada which is hereby required to be taken
in the year 1871 d in every tenth year thereafter, the respective populations of the
four
provinces shall be distinguished—
Why distinguished? Why did they want
the respective populations of the four provinces to be distinguished when, as the
Minister of Justice says, they were contemplating a Dominion consisting of many provinces?
If they were looking to a general
provision in that section, why did they not
say ' of each province of the Dominion' or
'of each province'? But they deliberately
use the words "four provinces', just as in
51 'each province,' was struck out and the
particular words 'four provinces ' substituted. Section 51 reads:
On the completion of the census in 1871 and
of each subsequent decennial census, the representation of the four provinces shall
be readjusted by such authority and in such manner and at such time as the parliament
of Canada from time to time provides, subject and
according to the following rules:—
The following rules are the five subsections that were in the old resolutions as independent
sections.
Now allusion has been made to the words
'parliament of Canada.' Well, that phrase
has a clear and distinct meaning. Clearly
it implies here something more than a parliament of the four provinces, because there
can be no parliament of Canada except the
parliament of the whole Dominion. There
can be no difficulty about the construction
of that phrase.
Here I may refer to another matter. Whether the parliament of Canada has power itself
to distribute or readjust as has been considered settled, because it has been argued
that the parliament can itself do what, under
this section, it was empowered to authorize
others to do. But I would call the attention
of the Minister of Justice to the fact that if
the construction that we are now putting
forward is to have effect, it may be necessary to reconsider whether that view of
its
authority is correct. It might be that if the
minister's view that section 51 applies to the
whole Dominion, was correct, the parliament
of Canada might possibly be argued to have
power to do what it could authorize somebody else to do. But a different construction
might be reasonable and proper
if the parliament of Canada is only to
authorize somebody to adjust the representation of these particular four provinces.
It does not at all follow that the parliament of Canada would be a proper
body to adjust the representation of a particular province. I should doubt very much
whether, if we took the view that I am now
putting forward, parliament has authority
at all to distribute, or whether it is not
bound to depute that authority to somebody
else, as the section reasonably seems to have
intended.
Mr. BARKER. Possibly, but the hon. gentleman must not forget that this is the first
time since 1871 that this question has arisen.
Mr. BARKER. There has been no time,
as I understand it, when such a readjustment of the population was necessary as
would raise this contention. This is the
first time that it has ever come before parliament, so that nothing turns upon the
statement that the hon. gentleman makes.
The MINISTER OF JUSTICE. I understand my hon. friend to say that we have
no power to do ourselves that which we
have authority to confer upon another to do,
that we have no power to readjust ourselves,
but that we might authorize some one else
to do it.Â
Mr. BARKER. I think a great deal might
be said in favour of the view taken on that
point in the past provided parliament was
dealing with the readjustment of the whole
of Canada, but when it is dealing with only
a section of Canada I think there may be a
grave doubt as to whether other authority
has been given to it than to depute some
1247
COMMONS 1248
body else to do that particular work. I
think the question is worthy of consideration, but it is not up at the present time.
The
important section is subsection 4, of section
51, in which the word 'population of Canada ' occurs:
On any such readjustment the number of
members for a province shall not be reduced
unless the proportion which the number of the
population of the province bore to the number
of the aggregate population of Canada at the
then last preceding readjustment of the number of members for the province is ascertained
at the then latest census to be diminished by
one twentieth part or upwards.
The contention of the hon. gentleman, I
know, is very plausible. I think there is very
grave doubt as to whether it is correct, and
nobody can positively say at the present
time that the other contention is absolutely
wrong. But we find in the 4th and 5th
sections of the British North America Act
what the word 'Canada' means where
there is no expression to the contrary
and no implication to the contrary, and we
have the word 'Canada' here without any
expression to the contrary, and I contend
that the only implication of the meaning of
'Canada' here is the four provinces, because it is used in the subsection of the
main section, which refers only to the original four provinces called 'Canada.' I
would like to point out that the consideration we are urging is a reasonable one.
The
four provinces had peculiar reasons for
maintaining a certain ratio of representation
as between themselves. The men who were
settling the terms of confederation were
not able within human foresight to see
what might be necessary for other provinces. They had had before them the case of
Prince Edward Island, and they were unable to agree upon the terms upon which
that province should come in. Were they
likely to settle for one hundred years to
come upon what terms the balance of the
provinces would come in? Surely it was a
reasonable thing for them to agree upon
terms and conditions as to representation,
readjustment, and otherwise, of the four
provinces, the circumstances of which they
were fully aware of and to leave the terms
and conditions upon which the other
provinces should come in to be settled under
section 146 at the time when these provinces might wish to come in. They
could, under section 146, make any terms
they pleased. It was competent for
the Dominion, when a new province came
in, to agree that the incoming province
should have a fixed representation, not merely for ten years, but for twenty years
or
fifty years. It was competent for them to
agree that they should have a representation which would increase and not decrease.
to agree to any terms they saw fit, subject
always to one condition expressed in section
146, that its admission should be ' subject
to the provisions' of the British North
America Act. Among these were special
provisions that were made between the four
provinces in relation to each other and which
therefore cannot be affected by any terms
that the incoming provinces obtain under
the addresses or Orders in Council. The
matter strikes me as a reasonable one. A
number of delegates met to try and settle
the differences between the four provinces
existing and which they represented. They
had in view the admission of other provinces and territories. They knew that we
had a vast territory in which at that time,
I believe, there were only 12,000 inhabitants.
How could they foresee the terms upon
which it would be reasonable for provinces
as yet unborn to come in? Would it
have been sensible for men in their position to attempt to do more than they did,
which was to settle the terms and conditions
between the existing provinces that were
confederating and to leave the incoming
provinces in the future to make Whatever
conditions they saw fit to make at the time
and which the Dominion should see fit
to grant to them? That is our contention, and it seems to be a perfectly
reasonable one. It seems to me to be what
any business men would agree upon who
sat down to meet the difficulties that presented themselves when these provinces attempted
to confederate. There is another
feature, and I would like to point it out, because it shows further why it was reasonable
that the word 'Canada' in the 4th
subsection should not include the population
outside of the four provinces. Suppose that
in 1901, before this census was taken, that
there had been a proposition for Newfoundland to be brought in, What would have
been the effect of it? Ontario, New Brunswick and Nova Scotia would immediately
begin to calculate what the probable populations were, and what effect the incoming
provinces would have upon the proportion
of representation, and if Ontario, for example, saw that the addition of the proposed
new province to the aggregate population
of the Dominion might have the effect of'
placing her outside the one-twentieth limit
and subject her to a loss of six members,
the natural consequence would be that Ontario would say: We will vote against
Newfoundland coming in. That will be the
result of the contention of the hon. Minister
of Justice as to subsection 4. But if the
calculation is confined simply to the aggregate population of the four provinces which
constituted Canada as defined in the Act,
no trouble can arise. What had the population of British Columbia, what had the
population of Manitoba or the North-west
Territories to do with the question of the
readjustment of the representation of the
four provinces? Those populations were factors quite outside the subject matter. The
four provinces endeavouring to readjust, as
between themselves, their relative representation would naturally want to know what
1249 APRIL 14, 1903 1250
was the population of each province and
what was the aggregate of the four provinces. That gave them all they wanted to
know, and if you interpret the word "Canada' to mean more than it is defined to
mean by sections 3, 4, and 5 of the British
North America Act you make it impossible
to foresee what the future relative representation of the four provinces may be. In
the next twenty-five years we may have a
million people in the far west. No man can
see what effect that will have upon the representation, and the fact that one-twentieth
was put as the margin of stability shows
that the framers of confederation were
not considering so wide a field. They
were confining themselves to the four old
provinces whose population was fairly well
settled, and the whole of the provisions
show that they were framing these words
in reference to it. If you take section 51
you will see that it clearly refers in explicit
terms to the four provinces, not to the provinces of the Dominion, but explicitly
to the
four provinces. When we take subsection
4 of that very section we can have no doubt
that the word 'Canada' means the four
provinces there referred to. Why should
you go beyond it? It seems to me a
clear and reasonable reading of the
words in the main section to use the
word ' Canada ' as defined by the Act itself.
If you go outside of these four provinces,
you introduce a disturbing element. What
had these people, dealing with the readjustment of their own representation, to do
with the people that might come into Manitoba or British Columbia? How did that
concern the question between themselves?
If Ontario and Quebec were jealous of each
other, were nervous about the effect of the
future upon their relative representation,
what had they to do with the number of
people that might come into British Columbia, the North-west Territories or the Yukon?
These were elements quite outside
of the calculation. The definition of the
word ' Canada ' by the Act is consistent and
reasonable with What they were driving at;
that is keeping their relative positions, in so
far as they could be provided for by Act of
parliament. I repeat what other hon. gentlemen have said, that nobody would, especially
in the face of the opinion which the
hon. Minister of Justice has read, say that
there was no doubt upon this question.
There certainly is such a doubt that it
would be extremely unsafe to go on and
provide for a parliament upon a new basis
of representation, perhaps elect a parliament, and leave the question in such
a condition that hereafter—when Acts
have been passed and corporations created
and all sorts of interests dealt with—that
we might find that under an appeal of private parties to the Privy Council, that,
the
highest court, decided that all our procedure
was irregular? Where does the need for haste
arise? This Act cannot have force until
the end of this parliament. This parliament has two or three years to run yet.
What is the difficulty about getting the opinion of the highest court in the empire
to
definitely determine this question so that
we shall know where we are. We are
asked now to discuss this Bill before we
get the opinion of the Supreme Court as if
there was some urgency that we must deal
with it at this moment or not at all. It
seems to me that we are putting the cart
before the horse. It would be far better for
us to first find what the law is. I presume
the Minister of Justice would not refer the
question to the Supreme Court unless he
thought there might be some doubt about
it. After we know the law, let us pass an
Act in accordance with our authority. But
to go on discussing this Bill, before we
know what the decision of the court will
be, seems to me to be farcical.
At six o'clock, House took recess.
After Recess.
House resumed at eight o'clock.
Mr. E. A. LANCASTER (Lincoln and
Niagara). I desire, Mr. Speaker, to say a
few words on this very important measure,
and to give the reasons why I feel constrained to oppose the second reading of
this Bill. It must be conceded that if
this Bill is read a second time, then every
principle contained in it is endorsed by
this House. If it were not that I have
other reasons, I might well content myself
with the reasons given by the Minister of
Justice this afternoon as a justification for
opposing the second reading of this Bill
under the existing circumstances. The
Minister of Justice told us to-day as clearly
as he could state it in language, that the
measure is not ripe for second reading, for
he declared that there may be some doubt
concerning the rights of the parties as
declared by this Bill. In view of that statement made by the chief legal adviser of
the
government, I was somewhat surprised
that the right hen. the Prime Minister did
not withdraw his motion, and acting upon
the advice of his Minister of Justice postpone the second reading of the measure
until the rights of the parties were defined
by the courts. We are in this position now.
We have a very serious constitutional question brought before us. This parliament
is
asked to legislate in regard to a serious interference with what has been up to this
moment the right of four provinces to a
certain representation in this House. We
are asked by this Bill to say. without any
more ado about it, that a change in the representation of these provinces shall be
made to their detriment and made at once,
and we are asked to declare that, in face
of the declaration of the Minister of Justice on the floor of the House: That it is
a question which should be decided by the
1251
COMMONS 1252
highest court in the land before it is concluded by this parliament as to whether
that principle is right or wrong. As has
been said by the hon. member for Hamilton
(Mr. Barker): This is putting the cart before the horse. But that is not the worst
of
it. While the Minister of Justice says that
he does not think we ought go far in discussing what the decision of the Supreme
Court may be; we are at the same time
told by him that we should go ahead and
by giving this Bill a second reading anticipate the decision of the Supreme Court
in
favour of the Minister's contention. It
seems to me that it that were done the
Supreme Court would be in a proper position to say to us: Parliament has already
decided on the principle of the Bill and why
appear idly before us now and ask us
whether you did right or wrong. But Mr.
Speaker apart from that I have a stronger
opinion on this question than even the Minister of Justice has. It is not to be wondered
at that two lawyers should not agree;
it is perhaps customary that lawyers, when
they are engaged on the opposite side of a
case, should not agree; it is also probable
that a Conservative lawyer may not agree
with the Minister of Justice in a so called
Liberal government. However I do agree
with the Minister of Justice that there is
not much doubt about this question, but
I disagree with him as to where this doubt
is. I have given considerable attention to
this Bill and I have gone into the Acts and
into the history of this matter, and 1 have
been obliged to come to the conclusion that
this Bill provides for a wrong principle, and
that a reduction in the representation in
this parliament of the provinces of Ontario
and New Brunswick and Nova Scotia is
not warranted by the law as it stands today. I therefore believe that this Bill ought
not be read a second time upon its
merits, and I believe that, apart altogether
from the doubt which the Minister of
Justice has said he is going to get
the Supreme Court to decide upon, I
shall have to ask the indulgence of the
House if I again call attention to the provisions of the British North America Act.
The
first part of the Act to which I shall refer
is the one headed ' Union ' and bearing the
figures 11 in Roman numerals, being a subdivision of the Act. The heading 'Union'
applies from section 3 to section 8 both sections inclusive. Now this heading ' Union
'
and this subdivision of the Act under that
heading, is of considerable importance. The
first part provides:
On and after a. day therein appointed, not
being more than six months after the passing
of this Act, the provinces of Canada, Nova
Scotia and New Brunswick shall form and be
one Dominion under the name of Canada; and
on and after that day those three provinces
shall form and be one Dominion under that
name accordingly.
It goes on to say:
The subsequent provisions of this Act shall,
unless it is otherwise expressed or implied,
commence and have effect on and after the
union, that is to say, on and after the day
appointed for the union taking effect in the
Queen's proclamation; and in the same provisions, unless it is otherwise expressed
or implied, the name Canada shall be taken to mean
Canada as constituted under this Act.
It seems to me with all due deference to
the Minister of Justice, that under this
British North America Act there is for the
purposes of this Act no other constitution of
Canada than the province of Ontario, Quebec, New Brunswick and Nova Scotia—the
two provinces Ontario and Quebec being
known as Canada at that date. It seems to
me to be begging very hard for some argument to say that these positive and distinct
words 'Canada as constituted under this
Act ' can mean anything else than what is
stated in subsection 3, which says that
Canada consists of the four provinces.
We have to ask ourselves what is the
next step to take in determining whether
this term Canada is to apply to the whole
of Canada or to the four provinces for
arriving at the number of members for
each province. There is one thing which
strikes me very forcibly, and which has
not yet been referred to. Why does
this Act at all say what shall constitute Canada? What would constitute Canada if
this section were not in the Act?
Why, it would simply be, as the hon. Minister of Justice says, whatever Canada may
be at the time. But the difference between
the Minister of Justice and myself is that
I contend that when these words were put
in the Act, they were inserted for some
purpose. The efiect would be altogether
different had they been omitted. No
lawyer of any experience will say that the
putting in of these words was a mere
surplusage or meant nothing. If they
do not mean what we say they do. they
would not be in this Act at all, and then
Canada would mean exactly what the hon.
Minister of Justice says it does. Canada
might mean four provinces or five or six or
seven, according to the changing circumstances. But what I submit is that the very
fact that these words are put in show a
special attention to give a special meaning to
the word ' Canada.' It shows that the parliament which passed this Act did not intend
that the term 'Canada' should bear the
ordinary meaning, but that it should apply
for the purpose of readjustment to the four
original provinces. Has that been changed
or repealed by any proper authority? There
are other provisions in this Act which show
that the term Canada is only intended to
cover the four original provinces. Take for
instance section thirty-seven:
The House of Commons shall, subject to the
provisions of this Act, consist of 181 members,
of whom 82 shall be elected for Ontario, 65 for
Quebec, 19 for Nova Scotia and 15 for New
Brunswick.
1253 APRIL 14, 1903 1254
And section forty provides:
Until the parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia and
New
Brunswick shall, for the purposes of the election of members to serve in the House
of Commons, be divided into electoral districts as follows.
The Act does not say that until parliament otherwise provides, the number shall
be so and so, but only that the electoral
districts shall be so and so. Special power
is given to provide for the rearranging of
those districts, but no power is given to interfere with the number that shall be
elected from each province. Section fifty- one provides that:
On the completion of each decennial census
the representation of the four provinces shall
be readjusted by such authority in such manner and in such time as the parliament
of Canada from time to time provides, subject and
according to the following rules.
No language could be stronger. And one
of these rules, subsection four, is:
On any such readjustment the number of
members for a province shall not be reduced
unless the proportion which the number of the
population of a province bore to the number of
the aggregate population of Canada at the then
last preceding readjustment ot the number of
members for the province is ascertained at the
then latest census to be diminished by one- twentieth part or upward.
It is conceded on both sides that if that
be applied to Canada, as originally constituted, three of these provinces are entitled
to
a different representation than is provided
for in this Bill. According to section fifty- two:—
The number of members of the House of Commons may be from time to time increased by
the parliament of Canada, provided the proportionate, representation of the provinces
prescribed by this Act is not thereby disturbed.
Thus there is provision for increasing the
number of the members. But if a reduction
were contemplated, why did not the Act provide that the number should be ' increased
or
reduced.' There is not a word about any reduction, so that we find on all hands corroboration
of the contention put forward by
this side of the House, that subsection four
of section fifty-one applies only to the four
original provinces, and not a word to warrant a different construction being put upon
the Act than is to be found in the wording
of the Act itself. What has happened since
that Act has passed? Has anything been
done by the imperial parliament to disturb
the effect of the British North America Act
as it applies to those four provinces? It is
contended that addresses have been presented and Orders in Council passed in some
cases, and Acts of parliament in others,
bringing new partners into the concern. But
there was not a word in any of these to
show that subsection four of section fifty- one has been amended. Yet if these ad
dresses and Orders in Council were to have
the effect claimed for them, subsection four
of section fifty-one would have to be amended, and there is no way of amending it
except by saying so in the usual and ordinary way. And if the imperial parliament
do not see fit to amend section four or to say
anything more than that an agreement
is made as regards new provinces coming
in, how can these addresses and Orders
in Council be construed to mean that
the original arrangement between the original provinces was to be disturbed in the
least?
The last part of section 146 must be borne
in mind in order to keep us right in this matter. It says:
It shall be lawful for the Queen, by and with
the advice of Her Majesty's Most Honourable
Privy Council, on addresses from the Houses of
the parliament of Canada, and from the Houses
of the respective legislatures of the colonies or
provinces of Newfoundland, Prince Edward Island and British Columbia, to admit those
colonies, or provinces, or any of them, into the
union, and on address from the Houses of the
parliament of Canada to admit either of them,
into the union, on such terms and conditions
in each case, as are in the addresses expressed
and as the Queen thinks fit to approve, subject
to the provisions of this Act.
Again 'subject to the provisions of this
Act?' The Act says you can make a bargain with these new provinces and let them
in on such terms as you may provide, but
always subject to the provisions of this Act,
and the provision standing out before everybody is that you shall not reduce the representation
of these four provinces except it
falls under the condition regarding the one- twentieth part, provided in subsection
4
before quoted.
The hon. Minister of Justice argued that
chapter twenty-eight of thirty-four and five
Victoria was a doubt removing Act.
That is probably not an inapt expression.
But what doubt did it remove? It did not remove any doubt upon the question we are
debating. I did not pretend to say, for instance, that this subsection 4 would no
longer apply. It removed a doubt as to the
particular matter being dealt with in the
Act. The very fact that it had removed
that doubt showed that there was a doubt
even then with the authorities in Great
Britain as to whether the parliament of
Canada had power to do that which compared to what we are being asked to-day to
do was a very small matter. I do not
think that Act does anything but indirectly
strengthen the case made here for the non- reduction of the number to be elected from
the three provinces of Ontario, New Brunswick and Nova Scotia. The last section of
what the minister calls the doubt-removing
Act, says:
Except as provided by the third section of
this Act, it shall not be competent for the parliament of Canada. to alter the provisions
of the
last mentioned Act of the said parlliament inso
1255
COMMONS 1256
far as it relates to the province of Manitoba,
or any other Act hereafter established in new
provinces in the said Dominion.
Will it be contended that when this says:
You shall not, except as provided in the
Act and in respect of the small matter with
which it deals, interfere With any rights
heretofore existing in regard to the province
of Manitoba or the new provinces, it impliedly allows you to make ducks and drakes
of the legislation bringing into confederation the four provinces of the Dominion
of
Canada as it at first existed? It could not,
even by the utmost stretch of imagination,
be made to accomplish such a result. The
parliament of Canada has never asked the
imperial parliament to repeal or amend
section 4, therefore, we are not in a position
to say whether they would or would not
repeal it if we asked them. But we know
that nothing else that they have been asked
to do in regard to the other provinces have
they ever done except upon the address of
the legislature of the province affected.
I understood the Minister of Justice to
say, in answer to a question by the leader
of the opposition (Mr. Borden) that, under
the Order in Council that had been passed
it would be competent for the representation
of the province of Quebec to be reduced to
any number. If that is so, if he can, by
an Act of parliament approved by Order
in Council by the imperial government, reduce the representation in the province of
Quebec, why cannot he do the same thing
under the statute which gives power for the
entry into confederation of the territory known at that time as Prince
Rupert's Land? The only difference
is in the heading, and that cannot
affect the case—let it be called Prince
Rupert's Land or Quebec, the effect is the
same. There is another thing which, I say
with all due deference, the Minister of
Justice forgot when giving the opinion which
was spoken of in the House this afternoon.
He forgot the well-known rule of law
with regard to the repeal of statutes. Every
lawyer who has studied the matter knows,
when the question rises whether a subsequent statute repeals a former one you must
'lean against repugnancy'— you must assume that there is no repeal, unless it is
expressly so stated or unless there is no
construction which can be found consistent
with the belief that there has been no
repeal. Let me quote, for the benefit of the
Minister of Justice and also for the benefit
of the laymen as well as the lawyers of the
House, the words of Sir Peter Benson Maxwell, who is acknowledged to be one of the
greatest authorities on the constutrction of
statutes. In his latest work, this great
writer says - I quote from page 134:
To impute repugnancy is to iuipute ignorance
or cariessness of expression or confusion of
thought; and not only therefore is repeal by
implication not favoured, but any construction
involving it is to be rejected in favour of any
other which the language will rationally bear.
And he gives several decided cases as
authority for this view. At page 136, he
says:
When the latter enactment is worded in
affirmative terms only without any negative it
does not take away the earlier law. The governing principle in all these cases is
to construe the Act if possible as reconcilable, and
capable of co-existence.
Now, with the indulgence of the House
let us apply this principle to the case before
us. Here we have an Act showing how the
calculation of representation is to be made
as between these four provinces. The Minister of Justice says that this is by implication
repealed. He does not contend that
there has been an express repeal, nor does
the right hon. mover (Rt. Hon. Sir Wilfrid
Laurier) of the second reading of the Bill.
But, because certain Orders in Council,
which have the effect of statutes as provided
for in the Act, have, or are said to have a
certain effect, therefore, you must, by implication read into section 4 'seven' instead
of 'four,' and apply it to seven provinces
instead of four, or you are not giving the
smooth and easy construction required for
the purposes of this Bill. But the authority
I have quoted makes it clear that if we can
find a construction of the two which is consistent with the non-repeal of the earlier
statute, we must accept that interpretation.
That is why we say that the Act must have
the meaning that we give it. We preserve
intact the provision with regard to the one- twentieth, and we give full force and
effect
to the Orders in Council which the minister
refers to. The fact is, there was a business
going on with these four provinces as
partners. The other provinces wanted to
come in, and were asked to come in. An
arrangement mutually satisfactory was
made for them to enter the partnership. it
is contended, therefore, that there should not
be the same construction of the bargain
among the four as between themselves that
there would have been if the others had not
entered. The better interpretation of the
law is that the new provinces should be
held to the bargain that they made, leaving
the other bargain intact, and so there was
no repeal.
Now, with regard to what the Minister
of Justice has said as to reducing the representation of the province of Quebec.
When the hon. gentleman was speaking I
thought: Oh! shades of provincial rights,
where are you. When we hear a minister
in the Liberal government contending that
the province of Quebec could have its representation reduced by a mere Act of this
parliament, and this with the statutes before
him showing that the British parliament has
refused to make any changes affecting a
province without an address from the legislature of that province-
The MINISTER OF JUSTICE. I suppose
the hon. gentleman (Mr. Lancaster) does not
mean the House to take him seriously when
Ihe attributes such a statement to me.
1257 APRIL 14, 1903 1258
Mr. LANCASTER. I am replying to what
I think the result of the hon. gentleman's
argument.
Mr. LANCASTER. The argument of the
Minister of Justice, as I understand it, was
that this could be done. I may point out
that these new provinces were not allowed
by the imperial government to come into
confederation except on address from the
legislature of the province as well as of the
Dominion. But the logical result of the
Minister of Justice's argument is that you
could interfere with the existing arrangement of the four provinces without an address
from the legislature of those four
provinces or consulting them in any way.
I think the conclusion that we must
come to with regard to the whole matter is that, interpreting the British North
America Act as we must interpret it. it is
not only doubtful, but I am constrained to
say that it is clear to me that you have no
right to interfere with the arrangement under section 4, you must apply that proportion
of one-twentieth to the four provinces.
That being so, then, on the merits, this Bill
should not be read a second time. but the
order should be discharged. the existing arrangement should be left undisturbed and,
applying properly this proportion of one- twentieth to the four original provinces,
Ontario, Quebec, Nova Scotia and New Brunswick, none of them should be reduced in
the
number of representatives they send to this
House.
Mr. L. P. DEMERS (St. John and Iberville). (Translation.) I desire, Mr. Speaker,
to say a few words, in reply to some remarks
fallen from the hon. gentleman (Mr. Lancaster) who has just taken his seat. Clearly,
my hon. friend has not caught the exact
meaning of the statement made by the hon.
Minister of Justice (Hon. Mr. Fitzpatrick). I
think the question as to whether the
representation of the province of Quebec
could be reduced by an Act of this parliament has never seriously been raised by
any member of this House.
I agree with the hon. gentleman that the
Liberal party has always championed provincial rights. I wish also to express my
entire accord in his remarks, when he said
that the provinces having entered into partnership, the British North America Act
is a treaty which ought to be fairly carried
out by all those who were parties to it.
The province of Quebec agreed that she
should have a fixed representation of sixty- five members, provided that the representation
of the other provinces should be reduced
in the event of their population becoming
proportionally less considerable than the
population of Quebec. In 1872, as also in
1882 and in 1892, the province of Quebec
has cheerfully concurred in the enforcement
of the compact it had been a party to in
1867. It is most regrettable that the hon.
gentlemen opposite should seek to put a
different construction on that Act, now that
it becomes incumbent upon parliament to
reduce the representation of a sister province. As the hon. Minister of Justice
explained this afternoon, the soundness of
the view taken by the government cannot be
questioned. Section 4, upon which hon.
gentlemen opposite have dwelt at length
with such evident relish, is not so obscure
as they pretend. The last part of that
section provides:
And in the same provisions, unless it is otherwise expressed or implied, the name
Canada
shall be taken to mean Canada as constituted
under this Act.
Now, I appeal to any hon. gentleman who
has read the British North America Act
whether, in any part of this Act, the Word
'Canada' does not cover all the provinces
that may join confederation? But let us
look at the preamble of the Act, which is
as follows:
Whereas the provinces of Canada, Nova Scotia
and New Brunswick have expressed their desire
to be federally united into one Dominion under
the Crown of the United Kingdom of Great
Britain and Ireland, with a constitution similar
in principle to that of the United Kingdom.
Clearly, sir, in this peamble of the Act,
Canada means only the province of Ontario
and the province of Quebec which were
then known, in virtue of the Union Act,
under the name of the province of Canada.
Prior to confederation, the term Canada
applied only to Ontario and Quebec. But
under section 4, the word Canada has a
much wider meaning as shown by the concluding words of that section:
Unless it is otherwise expressed or implied,
the name Canada shall be taken to mean Canada as constituted under this Act.
That is to say, the union formed under the
new constitution. When the word Canada
does not cover that union, it means Canada
such as is understood in the preamble of the
Act.
Then, in section four, it says:
The subsequent provisions of this Act shall,
unless it is otherwise expressed or implied,
commence and have effect on and after the
union, that is to say, on and after the day
appointed for the union taking effect ......
Section 146 enacts that the provinces,
which have later on joined confederation,
may be admitted into the union, subject to
the provisions of this Act. Now, from the
very moment those provinces were let in,
it was under section 4 that they came in.
True, there was a special treaty entered into
between those provinces, but apart altogether
from such treaty, supposing, for instance,
that the entry of Manitoba only had been
provided for. section 4 says that that province may be admitted into confederation
subject to the provisions of the British North
America Act; and therefore it came in under
1259
COMMONS 1260
section 4. Sections 4 and 146 should be
construed as forming a whole.
Now, with the indulgence of the House,
I shall urge but one objection to the arguments advanced by the opposition. They
pretend that a contract or partnership has
been entered into, but the province of Quebec
was also one of the contracting parties. It
should be borne in mind that the province
of Quebec agreed to having a fixed representation of sixty-five members, but it is
but fair that it should be given a compensation, and that the other provinces should
have their representation reduced. It is
a policy of give and take. That was a
well understood principle from the very
outset, as shown by subsection 2 of section
51 which says:
There shall be assigned to each of the other
provinces such a number of members as will
bear the same proportion to the number of its
population (ascertained at such census) as
the number 65 bears to the number of the
population of Quebec—(so ascertained).
So, if there was anything in the minds of
the fathers of confederation it was that
representation was to be based on population. Such was the principle adopted at the
time. Quebec was to have sixty-five members
and the other provinces were to be given a
proportionate number. Such was the system
adhered to by the framers of confederation.
The hon. member of Lincoln (Mr. Lancaster) has also referred to the interpretation
of treaties. But he should not forget
that treaties must be interpreted as against
the stipulating party. Now, it is agreed that
as the province of New Brunswick has not
the required population, it cannot rightly
claim more members than the number which
the government contemplate allotting to the
province. Were the matter open to doubt
the province should not be given, the
benefit of the doubt; but, on the contrary,
the treaty should be construed conformably
to common law, that is to say, in favour of
the main clause of the contract, instead of
the exception.
Hon. JOHN HAGGART (South Lanark).
It is with a good deal of diffidence that I
approach the discussion of this question.
The right hon. gentleman stated in introducing this Bill that it was his intention
to
bring in a measure which would be submitted to both parties in this House to
agree upon. He stated that he was following
English precedent, and especially the doctrine laid down by him and his followers
when they were in opposition, when they
declared that if they had an opportunity of
introducing a Redistribution Bill it would
be drawn on those lines and would be
perfectly fair, a Bill which ought to be
acceptable to all parties in the House. The
Bill introduced by the right hon. gentleman
and his statement in introducing it led me
to believe that the Bill would be submitted
to a committee, a majority of which would
have an opportunity of framing and report
ing the Bill to the House. The principle
adopted in England has been set forth by
my hon. friend the leader of the opposition.
He has shown that the English Bill was the
result of a conference, which consisted on
behalf of the opposition of Lord Salisbury
and Sir Stafford Northcote. They met time
and again in the Privy Council. The
question that arose was as to the number of
members which should be assigned to England, the number to Scotland and the number
to Ireland. They also had to decide the
principle as to whether a suburban population should be attached to a rural population,
and they decided the principle that a
suburban population should be attached to
the cities and an urban population should
remain with the counties. The conference
decided upon all the leading principles of
the Bill, they fixed the unit of representation for England, for Scotland and for
Ireland, the unit for the counties and the unit
for the cities; all the leading principles of
the Bill were agreed upon by the conference,
and then it was referred to the committee
for the purpose of delimiting the various
ridings. As my hon. friend the leader of
the opposition stated, that committee consisted of gentlemen from different sections
of the country. They had as asistants officers of the Royal Engineers, and they made
a delimitation to which no objection could
possibly be taken. If I understand the
right hon. gentleman, he intends that a conference, composed of members whom he
may select and whom the opposition may
select, should settle the principles which
should be adopted in the delimitation of the
different constituencies. That is perfectly
fair, we were perfectly willing to accept that
proposition. Viewing the conference as representing the principles laid down by the
opposition in 1892, as interpreted by the
Hon. Mr. Davies, by the Hon. Mr. Mills
and by Mr. Dalton McCarthy, it was to be
a conference designed to come to a mutual
agreement, the same as the English conference in 1884, which settled the principles
upon which the delimitation was to take
place. The right hon. gentleman in introducing this Bill is fixing the number of representatives
for the different provinces. I
suppose he does not intend on the second
reading to include that principle. As I understood him, the question as to whether
we
are to have a reduced representation in
Ontario is to be left with the Supreme
Court to decide.
Mr. BORDEN (Halifax). Ontario and the
maritime provinces.
Hon. Mr. HAGGART. I understood that
the question as to whether Ontario, New
Brunswick and Prince Edward Island were
to be affected in their present representation was to be left to the Supreme Court
to
decide; that is, the interpretation of clause
51 and the correlative clauses was to be left
to the Supreme Court. If that is the case,
1261 APRIL 14, 1903 1262
he cannot expect us to approve of the principle of the Bill, and to say that Ontario
should have a certain number of representatives, and the same with the other provinces
except Quebec. He cannot expect us to
vote for the second reading of the Bill
aflirming the principles which the Minister
of Justice says are the governing principles
in the Redistribution Act, on which we take
issue, and which we understand from the
right hon. gentleman are the questions that
are to be submitted to the court. But if
these clauses fixing the number of members
are eliminated from the Bill, I do not see
that we can have any objection on this side
of the House to a second reading, providing
that the Bill does not become law until the
Supreme Court has decided whether Ontario, New Brunswick and Prince Edward
Island must submit to a decreased representation.
The British North America Act is the
charter and constitution of this Dominion.
We have no power to decide whether any
Act of ours infringes upon it. The parties
who are the custodians of that Act are the
imperial authorities and their representative here, the Governor General. He has
exercised that authority already on the
Oaths Bill. When any question arises as to
whether the legislation of this parliament
is ultra vires of the British North America
Act, I consider that it is the duty of the
Governor General to consult the law officers
of the Crown in England. For these reasons, I feel a double security. I feel a security
in the promise which the right hon.
gentleman has made to us that the question
will be submitted to the Supreme Court; I
also feel a security in the fact that the imperial authorities and the Governor General
of Canada are the custodians of the British
North America Act, who are to decide as to
whether any legislation of ours is outside
the corners of that Act.
Now let me refer to the question which is
particularly before the House as to whether
there is the right to deprive Ontario or New
Brunswick of the number of members which
they at present send as representatives to
this House. I do so with a good deal of
diffidence. I am of the opinion of the hon.
Minister of Justice that when the British
North America Act was passed it contemplated the present and it contemplated the
future, but I will ask the hon. Minister of
Justice what is the meaning of clause 8 in
that British North America Act in which it
states that the four provinces of Canada
shall have a separate census taken and then
I shall deal with clause 51 of the Act. My
contention is that clause 51 of the British
North America Act has no application to
any of the provinces which might be in future added to the Dominion, that its application
is solely and only to the four provinces and that if an Act of parliament is
passed by the imperial authorities on addresses from this House and addresses from
the different provinces asking that the provisions of the Act shall apply to the different
provinces coming into confederation
clause 51 would not apply at all. I doubt
very much if the Supreme Court, or any
lawyer throughout the country, would give
the opinion that unless clause 51 is especially
mentioned it would apply in connection with
the redistribution after any decennial census
to any province or territory added to the
Dominion of Canada. Let us read the wording of the Act. Clause 51 says:
On the completion of the census in the year
one thousand eight hundred and seventy-one,
and of each subsequent decennial census, the
representation of the four provinces shall be
readjusted by such authority, in such manner,
and from such time as the parliament of Canada from time to time provides.
What is the meaning of ' Canada ' in that
Act? I will admit the correctness of the
opinion of the hon. Minister of Justice that
it is Canada as constituted at the time of
the passage of the Act. There is no doubt
whatever about it that the parliament of
Canada could not mean the members of this
House representing the four provinces of
the Dominion, but that it must apply to the
whole 'Dominion of Canada.' Then, we
have this governing clause:
On any such readjustment the number of
members for a province shall not be reduced
unless the proportion which the number of the
population of the province bore to the number
of the aggregate population of Canada at the
then last preceding readjustment of the number
of members for the province is ascertained at
the then latest census to be diminished by one
twentieth part or upwards.
The hon. Minister of Justice says that
'Canada ' within the meaning of that clause
refers to Canada whatever it is at the time
the readjustment is made and to back up
his opinion he reads the opinion of Mr.
Christopher Robinson, of Toronto. On that
point I would remind the hon. Minister of
Justice of the delicacy that he had in arguing the question when he said that he did
not like to discuss the question in full because he did not like to lead the Supreme
Court upon the question. But, he has no
delicacy in reading the opinion of Mr. Christopher Robinson in support of his contention
and it never struck him that he might
possibly lead the Supreme Court into forming an opinion in reference to the matter.
Hon. Mr. HAGGART. On that point. the
whole argument of the hon. Minister of
Justice is that 'Canada' comprises the Dominion as at present existing between the
Atlantic and the Pacific. Unfortunately for
his argument he admitted that the Northwest Territories did not come Within the
meaning of the word 'Canada.' Why does
not ' Canada ' comprise the North-west Territories? The application of this clause
was
intended to the four provinces of Canada
1263
COMMONS 1264
and 'Canada' under the meaning of the
clause could not mean anything else than
the four provinces at that time. The parliament of Canada may redistribute the representation
of the four provinces and if my
argument is correct unless clause 51 of the
British North America Act is specifically
mentioned as applicable to the provinces or
territories coming in it would have no, application at all. The application is solely
and only to the four provinces mentioned
and the strongest support of my contention is the statement of the hon. Minister of
Justice that the North-west Territories did
not form part of Canada as at present constituted. The hon. gentleman risks his reputation;
he says that he has no doubt as
to the opinion of the Supreme Court in the.
matter. He fortifies his position with the
opinion of Mr. Christopher Robinson. I, a
layman, perhaps, should not speak particularly of the interpretation of an Act of
parliament or statute, but I am clearly of a
different way of thinking. I understand
the meaning of the English language, 1 understand the meaning of the surroundings
of the British North America Act. This
was a bargain between the four provinces
entering into confederation and the representation either increased or decreased,
was
to be governed by a proportion between
them. The hon. Minister of Justice says
that on addresses from this House and on
addresses from the provinces or territories
coming into confederation, the governing
power in England, the King, can, by Order
in Council, Within the four corners of the
British North America Act, or if nothing is
contradictory or against the tenor of the
British North America Act, admit these provinces into the Dominion. That is true,
and it becomes as solemn as an Act of parliament can be but when he was faced by
the question of my hon. friend the leader
of the opposition (Mr. Borden, Halifax):
Supposing there was a bargain with Newfoundland for the purpose of securing her
admission to the confederation by which
Newfoundland would have an abnormal representation could he make it a part of the
bargain that the representation ')f Ontario
and of Quebec and of New Brunswick should
be decreased?—the hon. Minister of Justice
said 'yes.' It becomes, he said, in fact, an
imperial Act of parliament and if upon an
address from us an imperial Order in Council is passed and receives the sanction of
the King we can reduce even the representation of Quebec three or four members. I
contend there is no such power vested in the
imperial authorities.
Hon. Mr. HAGGART. The hon. gentleman gives a power to the imperial parliament which would never be
submitted if the
imperial parliament had that power. He
says that as a matter of law the British
North America Act could be altered from
time to time by the imperial parliament. It
may be so but when a constitution is once
given to a country the imperial parliament
will not interfere. I doubt very much if
they have the power of doing it unless when
a rebellion, or a revolution or a reconquest
of the country occurs. I heard that doctrine laid down long ago by as able a lawyer
as the hon. Minister of Justice, the Hon. Ed.
Blake in this House and he held that once
a constitution is given to a country there is
no power, even under the imperial authority,
to diminish or lessen that constitution without the consent of the country to which
the
authority is given.
Hon. Mr. HAGGART. And the power to
limit such a constitution is only exercised in
the most extreme cases such as for instance
in the case of a revolution. 1 am glad to
say, although possibly the reports in the
newspapers may have been wrong, that
when there was a question in the old country in regard to doing away with the conlb
break="no"/>stitution of Cape Colony all
the representatives at the colonial conference protested
against anything of the kind being done for
the reason that they did not know when it
would perhaps occur to themselves. The
principle I lay down is that although the
power may be there I doubt very much if
it can be exercised except under extraordinary circumstances, that once they grant
a
constitution to a country they have no power
to revoke it without cause. I contend that
the clause in regard to representation has no
effect upon or no application to any province
or territory which is admitted into Canada
unless it is specially asked for. The imperial authorities on an address from this
House, admitted Rupert's Land into the Dominion. They passed an imperial Act of
parliament giving it representation in the
Dominion parliament. Does the Minister of
Justice contend that they could pass an Act
of parliament limiting the representation of
Canada under the British North America
Act, or increasing the representation or
Rupert's Land, without the consent of Canada. If he admits that principle, then if
ever we think that Quebec has too much influence in the Dominion, all we have to do
is to pass an address to the imperial authorities asking for an Act of parliament
to reduce the representation of Quebec. The
Minister of Justice seems to have set aside
the legal opinions in his department altogether. In support of my view in reference
to clause 51 having no application to provinces or territories afterward: admitted
into the Dominion I wish to read a couple of
clauses from an Order in Council passed by
Sir John Macdonald and on which the Imperial Act of 1871 was passed. It says:
The general purview of the British North
America Act of 1867 seems to be confined to the
three provinces of Canada, Nova Scotia and
New Brunswick originally forming the Domin
1265 APRIL 14, 1903 1266
ion. In the constitution of the Senate, the Dominion was divided into three divisions.
each
division having equal representation in that
body. In like manner the clauses of this Act
relating to the constitution of the House of
Commons give a certain proportional representation to the provinces originally constituting
the Dominion, and make no reference to the
increase in numbers or any addition to the territorial domain. There is in the Act
no provision whatever for the representation in the
House of Commons of Rupert's Land or the
North-west Territories or British Columbia.
The MINISTER OF JUSTICE argues that because we pass an address to the imperial
authorities, with respect to a new body
coming into the Dominion, be it a province
"or be it a territory; the conditions of the
address being approved by His Majesty the
King, it becomes part of the British North
America Act, and so they may reduce the
representation set forth in the agreement
between the original four provinces. Do
I understand the Minister of Justice rightly
in that?
The MINISTER OF JUSTICE. I do
not quite understand my hon. friend (Hon.
Mr. Haggart). Of course he realizes that
there is a difference between the case of a
territory which has no representative institutions, and the case of a province. In
the case of a territory the Dominion parliament has jurisdiction to bring the territory
in. With respect to a province having representative institutions, it is entirely
different. In that case there must be
an address from the province that seeks
entrance into the Dominion and there
must be an address from the Dominion
parliament. Both these addresses from the
province coming in and from the Dominion
parliament must go to the imperial authorities, and there by Order in Council sanctioning
the address the province is allowed in
upon the terms fixed in the address. The
address of course must be in the same
terms from the province and from the Dominion. In these terms the imperial order is
passed, and has the effect of imperial legislation. My hon. friend (Hon. Mr. Haggart)
was good enough to give us his opinion a
moment ago with respect to imperial legislation, and perhaps he will allow me to read
from Jenkins, who is something of an authority on this point:
The legislative supremacy of. parliament over
the whole of the British domain is complete
and undoubted in law.
And there is no lawyer in parliament who
would say to the contrary.
Mr. BORDEN (Halifax). There is no
doubt at all as to the technical power of
the imperial parliament; there is no
doubt as to the technical power of
the King of Great Britain and Ireland to
disallow a Bill, but the Minister of Justice
knows that constitutional writers distinguish
between the technical power and the constitutional right. Therefore, it is said that
although the King of Great Britain has the
technical power to disallow Acts of parliament he has not the constitutional right;
and his doing so after the lapse of 200
years might provoke a revolution in a great
emergency. Therefore, while the imperial
parliament might exercise its power to
make a tariff for us to-morrow, because it
has the technical power to do so, that is a
different thing altogether from the constitutional right; and it was on the question
of constitutional right that my hon. friend
from Lanark (Hon. Mr. Haggart) was addressing himself. While I am on my feet,
I might with the indulgence of the House
mention to the Minister of Justice a consideration which has been addressed from
this side and which he has perhaps not
fully appreciated. He has said that it would
be quite possible, by means of addresses
passed by the provinces and by this parliament upon the admission of these provinces,
to so far alter the effect of the British
North America Act as to reduce the representation of the province of Quebec which
is definitely fixed and stated in that Act.
Now, I submit to the Minister of Justice
that that would lead to a very extraordinary
condition of affairs, if his argument is pursued to its logical conclusion, and for
this
reason: So far as Rupert's Land is concerned there is to be no address from Rupert's
Land because Rupert's Land possesses
no representative institutions. Rupert's
Land was to be admitted on an address from
no other body than from the House of parliament of Canada. The statute says:
And on address from the Houses of parliament of Canada to admit Rupert's Land and
the North-west Territory.
Then the British North America Act of
1886 was passed giving power to this parliament to deal with the representation of
Rupert's Land; and the point to which I
invite the attention of the minister is this—
he says that by means of this address,
coupled with the Queen's proclamation you
can cut down the representation of the province of Quebec. I do not agree with the
Minister of Justice at present; I may
change my mind upon further consideration; but if his argument is correct, does
it not lead to this inevitable conclusion:
You have so far as Rupert's Land is concerned the address of the Houses of the parliament
of Canada plus the Imperial Act
of 1886 giving power to deal with the representation of that territory. Therefore,
the address of the Houses of the parliament of Canada, which made no provision
for representation of the Territories and
Rupert's Land, plus the Imperial Act of
1886, should place this parliament in the
same position as that which the Minister
of Justice has already indicated. In other
words, it seems to me it would logically
follow from his argument that this parliament, under the imperial statute of
1886 in providing from time to time for
1267
COMMONS 1268
the representation of the North-west Territories, could deal with the representation
of Ontario or Quebec or the maritime provinces. It seems to be that
that would logically result from the argument of the Minister of Justice with which,
however, I do not agree. I say this, because the addresses with respect to Rupert's
Land, plus the Imperial Act of 1886,
are exactly equivalent to the address from
the Dominion and from the province of
Prince Edward Island for example, plus the
Queen's proclamation. I would think that
possibly the argument which the Minister
of Justice made in that regard may lead
to a very awkward result if carried as far
as I suggest.
The MINISTER OF JUSTICE. I do not
think that we can debate the question quite
fully at the present time. We will have
occasion to debate it before the Supreme
Court, and I will have to discuss it in the
House of Commons again, but I do not wish
to be misrepresented on any statement of
law.
Mr. BORDEN (Halifax). I certainly have
no desire to misrepresent the hon. gentleman.
The MINISTER OF JUSTICE. What I
said was that the legislative supremacy of
parliament was undoubted. That is what
I said, and when my hon. friends come to
look up ' Hansard ' they will see I guarded
myself by saying that it was extremely
doubtful if any attempt to legislate in that
direction would be made. The right to
legislate is undoubted. That is the statement I made, and that is the statement I
repeat, and that is the statement that no
lawyer will venture to doubt.
Mr. BORDEN (Halifax). I do not know
whether I am a lawyer or not, but I would
venture to doubt it.
Hon. Mr. HAGGART. My argument was
from the constitutional point of view, that
the imperial authorities had no right at all
to interfere with our constitution. The Minister of Justice said they had, and the
application of his argument was that when the
addresses and Order in Council received the
sanction of the Queen, they became part of
the British North America Act or the imperial law and affected our position to that
extent. I pointed out that addresses from
the different provinces coming into the Dominion and the addresses from the Dominion
to the imperial authorities, if approved by
the Sovereign, might alter the representation of the four provinces under the bargain
which we make with a new province coming into the union. I state here, and it
cannot be contradicted, that if it were not
for the admission of the North-west Territories and Manitoba into this Dominion, the
number of representatives in this parliament from the province of Ontario would
not be diminished at all. Therefore our
representation is affected by the bargain
which we make with the different provinces
entering into the Dominion. I say that
there was no such intention in the British
North America Act. That Act bears no
such meaning. Section 51 applies solely to
the four provinces which originally constituted confederation and it is solely to
the readjustment of the representation of
these provinces to which that section applies. Then what can be the meaning of the
term 'Canada' so far as this clause 51 is
concerned? As regards the readjustment
of the representation of these four original
provinces, the term can be held to cover
but them alone. Notwithstanding the argument of the hon. Minister of Justice and
the opinion of the eminent lawyer, Mr.
Christopher Robinson, of Toronto, I am still
convinced, following the opinion of my old
leader, the late Sir John Macdonald, that
this clause 51 in the British North America
Act has no reference at all to the future
new provinces of Canada, and that unless
it is specially provided in the Acts authorizing the admission of new provinces into
the Dominion, that this section 51 shall
apply to them, it must be held to be restricted to the four original provinces.
The right hon. gentleman the First Minister in introducing his Bill the other day,
said, in reply to my hon. friend (Mr. Borden),
who drew his attention to a telegram from
the hon. Minister of Railways to the legislature of New Brunswick, that he intended
to press the Bill, that he had no doubt as to
the law on the question, and that he was
only following the principles laid down in
1882 and 1892. But there was no such principle at issue in 1882 or in 1892 as we are
contending for now. The question then was
not raised. It did not enter as an issue at
all. It could not have any application at all,
and the right hon. gentleman cannot take
any authority from anything that was done
in 1882 or in 1892, inasmuch as the one- twentieth provision in subsection four of
section fifty-one did not affect the position
of any of the provinces at that time.
I have looked very carefully into the provisions of the British North America Act.
I
was at first impressed by the opinion of the
Minister of Justice that subsection four of
section fifty-one referred to Canada as it is
constituted at present, but looking at all the
surroundings of the Act and having regard
especially for the opinion cited by my hon.
friend from Hamilton (Mr. Barker) of Sir
Henry Strong on the subject. I am convinced that section fifty-one was not at all
intended to apply to the provinces or territories to be subsequently admitted. The
principles which are laid down by Sir Henry
Strong, I think, apply particularly to that
clause:—
In construing this enactment, the British
North America Act, we are not only entitled
but bound to apply that well established rule
which requires us, in passing upon the descrip
1269 APRIL 14, 1903 1270
tive terms or definitions contained in a statute,
to have recourse to the external aid derived
from the surrounding circumstances and the
history of the subject.
The history of the subject and the surrounding circumstances. Mr. Speaker—
that opinion of Sir John Macdonald and his
memo. to council upon the subject-point
clearly to the conclusion that section fifty- one of the British North America Act
was
intended to apply only to the four provinces
which originally constituted confederation.
It is true that by special arrangement with
the new provinces entering confederation and
forming now part of the Dominion, section
fifty-one is made specially to apply to them,
but in every address, enactment and Act
of parliament governing their admission, it
is specially provided that the rule laid down
in section fifty-one shall apply to their representation, except in the case of British
Columbia, one of the conditions of whose
entrance into the Dominion was that in no
event was its representation to be reduced.
But what I protest against most of all is
that by an address of this House, or of
this House and any of the provinces combined, to the imperial authority, power should
be given to the British parliament to reduce
the representation granted by the solemn
compact, under which they formed confederation, to the provinces of Quebec, New
Brunswick, Nova Scotia and Prince Edward
Island.
Mr. A. A. LEFURGEY (East Prince,
P. E. I.) The hon. Minister of Justice has
said that viewing Prince Edward Island
from the contentions put forward this afternoon regarding Nova Scotia, New Brunswick
and Ontario, she was out of court. But,
Mr. Speaker, we contend that Prince Edward Island's case is a special one and a
much stronger and entirely different case
from that put forward by the other provinces.
Mr. Speaker, we object to the principles of
this Bill insofar as it does not remedy the
wrong done to the province of Prince Edward Island in violating the special compact
under which she entered the union and
taking away, contrary to the special terms,
the status of representation of six members
given at that time and treating her as coming
in under the general terms of representation
as applies to provinces entering under the
British North America Act of 1867.
At the time of redistribution of 1891 a
false interpretation was put upon the clause
re our representation, and we object against
that being recognized in this Bill and still
further wronging her in again reducing her
representation in giving her four instead
of the original six with which she entered
and perpetuating an erroneous and unjust
principle which will eventually take away
the entire political entity of a province that
before confederation enjoyed to the full the
principles of a self-governed colony.
The objection to the principles of representation by population as regards Prince
Edward Island, except as I shall hereafter
point out, is general throughout the Island
and maritime provinces by parties of both
political leanings.
At the opening of the provincial legislature
on March 19. 1903, the Lieutenant Governor
referred to this matter of representation as
follows:—
The claims of this province that its representation under British North America Act,
in the
Dominion House of Commons should not be reduced below the number of members conceded
to it at the time of our entry into confederation, have been pressed upon the federal
government by my premier and representatives of
my administration, and I feel confident that the
province will be given an opportunity to establish its rights in this respect.
And the mover of the address in reply to
the speech from the Throne spoke strongly
on this matter. His opening remarks were:-
We now come to the question of representation, this is to-day a most important question.
In the very near future the Dominion parliament will be called on to discuss a redistribution
Bill, and the House would be derelict in
its duty if it should allow the central government to perpetrate another such error
as inflicted on this province in 1891 without the
strongest protests.
A false interpretation was put upon our terms
of union by the Dominion government, the
words: 'the representation to be re-adjusted
from time to time, under the provisions of the
British North America Act 1867 ' were torn from
their context and made to do duty as law. Mr.
Speaker, these words do not apply, and never
have applied to this province by right—it was
an iniquity and we should deny it and defy it.
What, Sir, are the principles laid down in the
various Acts of confederation; is there one
essential principle or are there two distinct
standards of representation, let us see. In 1864
a basis of confederation was adopted by the
Quebec conference, in which the principle of
representation was laid down, that principle
was accepted after a time by the provinces of
Ontario, Quebec, New Brunswick and Nova Scotia, but it was not accepted by us. We
stood
out for another standard and after a long fight
we succeeded in securing a representation of
six members for 95,000 of a population; this, Sir,
is quite another rule, and it is a rule or principle that has been acknowledged, accepted
and
applied to other provinces before and since that
time, notably to Manitoba and British Columbia.
One of the greatest obstacles to the scheme of
confederation with this Island was the insistence of the Canadian statesmen that representation
by population should be part of the terms,
while our people were quite as isistent on having not less than six members regardless
of
population.
In the first place, I do not believe that the
principle of representation by population is
found within the four corners of the confederation document. And, so far as regards
the reduction of the representation of
Prince Edward Island, this was not intended
if Prince Edward Island maintained the
population with which she entered confederation—95,857. And I think this clause
1271 COMMONS 1272
giving her representation of six members
and the interpreting clause fully carry out
this idea. To follow the unit of representation as in Quebec with 65 members would
render the whole scheme with regard to
Prince Edward Island absurd. Because, if
Quebec were as thickly populated as Prince
Edward Island, we should have 65-152 of a
unit of representation, because Quebec is 152
times as large as Prince Edward Island.
We would not have half the population to
make up one unit of representation, and so
we should be deprived of representation altogether. It is absurd to suppose that such
a
thing could have been intended when Prince
Edward Island entered confederation. Then,
there are the reports of the Quebec Conference and the speeches in the local legislature
repudiating representation by population; and, finally, we have a telegram, just
before the close of the conference, admitting Prince Edward Island to the union and
confirming a representation of six members
as its representatives had been asking for. It
was five years after the formation of the
union of the provinces of Upper and Lower
Canada, New Brunswick and Nova Scotia,
that Prince Edward Island joined the union,
having remained out up to that time for
causes to which I shall refer later. Prince
Edward Island came in under section 146 of
the British North America Act. which provides the terms under which Prince Edward
Island, Newfoundland and other provinces
might enter—that is, on addresses by the
province and the Dominion, and the passing of an imperial Order in Council which
would have the effect of law.
The clause of the British North America
Act reads as follows:
It shall be lawful for the Queen, by and with
the advice of Her Majesty's Most Honourable
Privy Council, on addresses from the Houses of
the Parliament of Canada, and from the Houses
of the respective legislatures of the colonies or
provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those
colonies or provinces, or any of them into the
union, and on address from the Houses of Parliament of Canada to admit Rupert's Land
and
the North Western Territory, or either of them,
into the union, on such terms and conditions
in each case as are in the addresses expressed
and as the Queen thinks fit to approve, subject
to the provisions of this Act; and the provisions of any Order in Council in that
behalf
shall have effect as if they had been enacted
by the parliament of the United Kingdom of
Great Britain and Ireland.
The Order in Council admitting Prince
Edward Island was passed on the 26th of
June, 1873, declaring that Prince Edward
Island be admitted and become part of the
Dominion of Canada upon the terms and
conditions set forth in the addresses. The
clauses in these addresses of the different
Houses to the Sovereign regarding representation is as follows:
That the population of Prince Edward Island
having been increased by 15,000 or upwards
since the year 1861, the island shall be represented in the House of Commons by six
members; the representation to be readjusted from
time to time under the provision of the British
North America Act, 1867.
This plea is made on the belief that, under
this clause Prince Edward Island is justly
entitled to retain the six members with
which it came into the union, and given
under this clause, and that the reduction in
1892, and the further contemplated reduction now, are contrary to the direct terms
under which the island came into the union.
I think this will be very clearly seen upon
an intelligent interpretation of the Act, and
from the manifest intention of the parties
negotiating the terms, which intention, to
my mind, should weigh greatly with
this House, particularly when it comes
to unjust interference with such paramount
rights as the representation of a province in
the House of Commons in Canada which
will create and I know is creating, a great
deal of dissatisfaction among the people of
Prince Edward Island.
Now, to go back to the Quebec conference
of 1864, where the different representatives
of different provinces met to discuss the
terms of confederation we find that the insurmountable difficulty in the way of Prince
Edward Island entering the union was the
matter of representation. The position
which our delegates took at that convention
was firm and decided. They realized what
that union might mean in the matter of representation to a small province and one
very thickly populated in proportion to the
rest of the Dominion, as Prince Edward Island was at that time. They insisted that
the system of representation by population
should not be applied to so small a province
with no territory to enlarge her borders, no
mines, and cut off from the mainland by a
barrier of ice which would interfere with
the development of manufacturing industries on the island. They insisted on six
members as a status before Prince Edward
Island should enter the union. They further contended that Prince Edward Island,
having three counties should have two
members for each county. These counties
had been established for many years, and
each had its own institutions and should have
equal representation in the House, two
members for each. In proof of what I
am saying I shall take the liberty of reading
from Joseph Pope's Confederation Documents, extracts from the speeches of our
representatives to the Quebec conference.
At page 68 of the documents, I find the following:
Mr. HAVILAND. Prince Edward Island would
rather be out of confederation than consent to
this motion. We should have no status. Only
5 members out of 194 would give the island no
position.
Mr. TILLEY. That is rather a singular
ground of objection,'for they have objected to
the basis of representation by population. Now
1273 APRIL 14., 1903 1274
it was fully understood at Charlottetown that
those who came to the conference expected representation by population. Some difficulty
might have arisen on those points, but not on
this.
Mr. PALMER. Representation by population
is not applicable when a certain number of provinces are throwing their resources
into one
confederation and giving up their own self- government and individuality. When a colony
surrenders that right she should have something commensurate in the confederation.
The
debt of Prince Edward island is nothing. Our
taxation is vastly below that of other provinces. Our trade and revenue are rapidly
increasing. Why give up so great a certainty for
an uncertain benefit where we have only a feeble
voice? Looking first at the larger provinces,
Canada has secured for herself a greater number of representatives than she had before.
. . .
Not even two or three more members could induce me to give my consent to the scheme.
I
never understood that any proposition at Charlottetown was to be binding by representation
by population. It was there made by those
from Canada and I do not think it necessary to
remark on it as it was a mere suggestion then
thrown out by Canada for consideration.
Mr. WHELAN. I do not think, however. I
could say that I was satisfied with the representation of five in the federal House
of Commons. We are in an isolated condition. Our
resources are large and our people would not
be content to give up their present benefits for
their representation of five members. It may
be said that the confederation will go on without Prince Edward Island and that we
shall be
eventually forced in. Better, however, that,
than that we should willingly go into the confederation with that representation.
COLONEL GRAY. I am instructed by my co- delegates to say that the provision of five
members is unsatisfactory. Prince Edward Island
is divided longitudinally into three counties,
each returning ten members. But they are always opposed to change of representation.
We
cannot divide the three counties into five members.
Mr. COLES. Mr. Gait had proposed six members for Prince Edward Island. I approved
that
rather than Mr. Brown's motion, because it allows us to give to our three counties
two members each.
Mr. POPE. I agree in all that has been said
by Colonel Gray and Mr. Coles. But the circumstances of Prince Edward Island are such
that I hope the conference will agree to give
us such a number as we can divide amongst our
three constituencies. Nature as well as the
original settlement of the island has made three
counties and would give rise to much difficulties
and if we had to adjust five members to the
three counties. I cannot ask it as a matter of
right but one of expediency and one without
which it is impossible for us to carry the measure in Prince Edward Island.
Mr. HAVILAND. I fully agree with Mr.
Pope. It would be an insuperable difficulty
with us if we had not six members.
Now, will any hon. member of this House
deny that the plain intent of these delegates
was that the island should be represented by
six members as a condition precedent to
entering the union? And is it not perfectly
apparent that their intention was to safeguard the interests of the province by a
representation in the House of Commons that
would not fall below six members so long
as we retained the status of 95,000 population? The asking for two for each county
was not intended as a temporary arrangement until the next census, but that they
should always be represented by two. The
arguments used then have greater force at
this time as regards giving us a respectable
status in the House. A small province with
a stationary population in a large and growing confederacy, our voting power becomes
less; and I contend that the principles for
which our people fought so long, standing
out from 1864 to 1873, should not be so
easily filched from us to-day. These terms
of union were discussed in the local legislature in several sessions following. To
show the members of this House that the
delegates at the conference had the full approval of the local legislature, I shall
again
take the opportunity of quoting from some
of the discussions. I apologize to the House
for taking up its time, but this is a matter
of paramount importance to Prince Edward
Island, and I think it necessary that the
intention of the parties 'to confederation
should be well known in order that the
government may be guided thereby before
they finally adopt such a principle as that
laid down in the Bill. Speaking on a resolution introduced by the Colonial Secretary
in
favour of the Quebec terms, and which was
overwhelmingly lost on division, the Hon.
J. C. Pope said:
It is proper to notice some of the objectionable features of the report. Without admitting
the principle of representation according
to population under all circumstances to be
sound, it is, in the opinion of this House, particularly objectionable as applied
to this island
in connection with Canada, taking into consideration that the number of our inhabitants
is,
and must continue comparatively small, owing
to the fact that we have no Crown lands, mines,
minerals or other resources sufficient to induce
immigrants to settle here, and that we never
can expect to become to any extent a manufacturing people, in consequence of our navigation
being closed for nearly half the year, and all
trade and communication with other countries
stopped. Under this principle, the city of
Montreal alone would at the present time, have
a representation greater than the whole province of Prince Edward Island, and under
the
provisions of the convention which regulate the
mode of readjusting the relative representation
of the various provinces at each decennial census, looking at the rapid increase of
the population of Upper and Lower Canada heretofore—
particularly the former— and the certainty of a
still greater increase therein in the future.
over that of the population of this island, it
follows as a certain and inevitable consequence, if a federation of the provinces
were
consummated upon the basis of the said convention, that the number of our representatives
would. in the course of a comparatively short
number of years, be diminished to a still
smaller number than that allotted at the outset to us.
1275
COMMONS 1276
It seems to me that it is a perfectly plain
statement from the leader of the government
and shows that the concession of six members was a condition precedent, and could
only have been six in perpetuity, for Mr.
Pope fully realized that at the next census
our representation according to population
would be reduced, as has been actually the
case. Mr. Pope further said:
Among these objections I may mention the
principle of representation by population.
Speaking of Quebec he says:
Its statistics warrant the belief that in a few
years the population will be so increased by
the influx of the tide of immigration that the
island would lose in the halls of legislation
even the small voice which she might raise at
her entrance into the union.
The Hon. Mr. Howland, speaking on the
same subject, said:
In the seventeenth paragraph of the report
we are told, ' The basis of representation in the
House of Commons shall be population, as determined by the official census every ten
years;
and the number of members at first shall be
194. Of this number Upper Canada is to have
82, and Lower Canada 65—in all for Canada 147.
The remainder of the 194 is distributed as follows: Nova Scotia, 19; New Brunswick,
15;
Newfoundland, 8; Prince Edward Island, 5—in
all for the lower provinces, 47. By this arrangement it will be seen that Canada will
have 100 representatives in the House of Commons more than the aggregate of all the
other
colonies. Representation by population might
be very well for Canada herself, but in a general union of the colonies it would operate
injuriously for the maritime provinces, as they
could not expect to protect their interests when
they would have to contend with 100 of a clear
majority over their own representation. This
principle would give the city of Montreal with
its 101,000 inhabitants one representative more
than this island. Quite different is the representation of Great Britain, for while
London
has about the same population as Scotland, that
city has only 16 members in the House of Commons, while Scotland has 53. But it may
be
argued that as our population increases our
representation will increase. This is very
doubtful. Indeed under the operation of the
twentieth and twenty-first clauses of the report
it seems probable that we might lose our representation altogether. Lower Canada is
always to have 65 members, and the representation of the other colonies is to be arranged
every ten years so as to give each the same
ratio to population as she will then possess.
Now, should the population of Lower Canada
increase more rapidly than that of this island,
which is almost certain to be the case, our representation would decrease, and we
would be
left perhaps without a member at all. To show
at least that it is much more likely that our
representation will decrease than increase, I
will read the Hon. George Brown's opinions on
the subject, as given in the Toronto 'Globe.'
In treating of the probable effect of these two
clauses of the report to which I have been
alluding, on the representation of the maritime
provinces. that journal says:
'The fact is best shown by illustration.
Prince Edward Island with a population say of
85,000 is, it is said, to have five representatives
at starting. Suppose she increase at the rate
of twenty per cent each ten years, at the end
of twenty years her population will be 126,000.
But at the same rate of progress the population of Lower Canada would be 1,596,000.
Divided by 65, this would give one representative
to every 24,550 of her people; so that the island
would not be able to claim an increase of
membership.
Mr. Duncan, speaking on the same question, said:
The five representatives allotted to us in the
lower House would not give this colony much
influence there; but as our population will not
increase so rapidly as that of Canada, there
is a prospect, through the operation of one
clause in the report, that our five representatives would dwindle down to three. Taking
all
those points into consideration, therefore, it
is clear to me that we have nothing to gain
but much to lose by adopting the Quebec
scheme.
Those speeches were made in 1865. In
1866 the debate upon these resolutions was
resumed. Speaking on a resolution introduced by the leader of the government, the
Hon. J. C. Pope, against confederation on
the terms submitted, Mr. Duncan said
Nothing could be more unjust to Prince Edward Island than representation on the basis
of population, as laid down by that scheme, according to which the Canadas would have
100
representatives in the House of Commons, more
than the aggregate of all the colonies, the number assigned to us being only 5. Representation
on this basis might do very well for Canada; but as respects Prince Edward Island,
it
would be nothing but mere mockery.
The Hon. Mr. Longworth said:
Another objection which I had to the union
was that according to the scheme laid down in
the report, representation in the House of Commons is to be based upon population.
Representation on that basis is as objectionable as
applied to those other two provinces, does not
render less so to Prince Edward Island. Upper
Canada is a growing country and her population
will rapidly increase; and as that increases,
so, according to the Quebec scheme of representation, her representation in the federal
House of Commons would increase, whilst that
of Prince Edward Island would decrease. And,
in fact, if the increase in the population of Nova
Scotia and New Brunswick does not, in the
future, grow more rapidly than it has in the
past, they will also, if the plan be strictly carried out, be losers instead of gainers
as respects legislative representation. Thus, as respects representation on the basis
of population,
the scheme appeared to me to be unjust to us,
and I was therefore prepared to go against it;
and the result of our deliberations upon it in
this House was its rejection by a large majority. I, for one, am not changed. I entertain
the same objections to the scheme which
I entertained then, and I am therefore glad to
presume that the resolutions just submitted by
the hon. the leader of the government harmonize with the views on that question of
a
majority on both sides.
The Hon. J. C. Pope said:
Representation by population is not fair as
regards this country. Where there are large
towns there are not so many different interests
as there are in a country like this. Therefore,
I do not believe in it as a principle. It is not
favourably looked upon by reformers of the
1277 APRIL 14, 1903 1278
present day. Even Earl Russell does not believe in representation by population. As
was
said here last year, by that rule London would
have more representatives than Scotland. If I
had acted as a delegate when the delegates
from Canada were here, and when they laid it
down that they would not entertain the question at all, unless representation by population
were acceded to. I would have stopped there
and said, no, I will not agree to it, and I
blame the leader of the opposition and those
other delegates who agreed to it; they should
not have done so, for it is one of the strongest
objections to that scheme.
The Hon. Mr. Coles said:
The hon. the leader of the government said
that the delegates should not have consented
to the principle of representation by population. They did not consent to it; for,
after the
Canadian delegates came here and stated their
case, the first delegation ceased, and another
was appointed. Therefore it was for the government to consider the matter.
Now, Mr. Speaker, it seems to me that
these speeches in the House of Representatives of Prince Edward Island show very
clearly that the principle of representation
by population was not accepted by the legislature of that island. She contended that
special terms should be conceded to her,
that she should enter with six members,
and as a matter of fact, I have pointed out
that Prince Edward Island remained out of
confederation until 1873, and then only consented to come into the union when this
final point of six members was conceded,
notwithstanding anything in the British
North America Act as to representation by
population. When the final arrangements
were being completed, in reply to an inquir!
from Governor Robinson, Mr. Haviland, one
of our delegates wired in reply. ' Six members conceded.' The clause again reads:
That the population of Prince Edward Island having been increased by 15,000 or upwards
since the year 1861, the island should be represented in the House at Commons of Canada
by
six members.
Now, let us look at the facts, taking the
first part of the clause. This would give
us an alleged population of 95,857. On the
basis of population at that time, under the;
general terms, got by dividing sixty-five into
the population of Quebec, we get the unit
18,330, and by dividing this into the population of Prince Edward Island we get five
and a fraction, 4,207. Thus, on the basis
of population, we were only entitled to five
members. But there is no sense or reason
in the clause for giving us six unless six
as a status. For any other construction
would be ridiculous, after stopping out ten
years, and knowing that the next census
would deprive us of one, if the representation was to be by population under the
general terms.
Our contention simply was this: We
have a population of 931,857. and we
want six members regardless of any unit
of representation for other provinces. I consider, Mr. Speaker, that this ground is
per
fectly tenable, that we were given six members on a status of entering union with
95,857 population and that we were to have
six in perpetuity. I repeat again that the
reasons advanced then are more potent today in the history of events, and what a
representation by population under the general terms would mean as regards Prince
Edward Island, as I shall illustrate to the
House later. Now as to the balance of the
clause:
The representation to be readjusted from
time to time under the provisions of the British
North America Act.
This, in my opinion, can only refer to
an increase of population in the event of
our population increasing more rapidly than
Quebec, and from the foregoing no other
construction seems applicable, or in the
case of a reduction of our population below
the population we had on entering the union.
This construction is also strengthened by the
cases of British Columbia and Manitoba,
both coming in after confederation and
upon special terms. British Columbia came
in in 1879, having a population of 10,586,
which would give her under the general
terms one member, yet she was given six.
The clause reads as follows:
British Columbia is entitled to be represented
by six members, the representation to be increased under the provisions of the British
North America Act.
In 1881 she was entitled by population to
two, yet she retained six; in 1891 her population would entitle her to four, yet she
kept six. The rights under the Prince Edward Island clause are certainly the same
as the British Columbia clause, except that
the language in the latter is possibly clearer.
British Columbia has a right to enforce her
special terms, and in fact it was never
seriously questioned, and in the event of her
population not having increased as it has,
could any hon. member of this House question her right to retain six members?
I can turn to the ' debates ' of 1892, when
we had the right hon. leader of the government speaking of this matter of the representation
of British Columbia. He says:
But, at the same time, I am myself taken by
surprise at the objection raised, for it has always been understood that British Columbia
was entitled to six members.
Again he says:
We have always understood that British Columbia was entitled to six members until
such
time that she was entitled to a larger number,
but that she should not be represented by a
less number than six. For my part I would
be sorry to come to any conclusion which would
deprive British Columbia of that which the
people suppose themselves to be their right.
I consider that Prince Edward Island is
in exactly the same position as British Columbia; the language of the clauses are
practically the same. In the one case it
says 'readjusted' and in the other case
1279
COMMONS 1280
'increased,' but, as to the intention of the
framers of these clauses and of the contracting parties at the time of the union,
it cannot be successfully contradicted
that the meaning and purpose was the same.
There was the status under which these
provinces should come in, there was a special provision under which small provinces
should enter the union, and both of these
provinces came in under this special provision. Mr. Davies, of Prince Edward Island,
speaking at that time, said:
I beg to assure my hon. friend that so far as
the individual members coming from British
Columbia. are concerned. we entertain nothing
but kindly feelings towards them personally.
I am in thorough accord with my leader that
this is a matter of good faith. I think it would
be a breach of faith on the part of parliament
to alter those terms it they could do it, but the
point before the House is a purely legal question.
Sir John Thompson contended at that
time that there was no need of an appeal
to the Privy Council. I think the present
right hon. leader of the government (Hon.
Sir Wilfrid Laurier) suggested at that time
that as it was a legal point and that it
should be handed over to the Privy Council
or to some other authority to give effect to the intent of the contracting
parties. Sir John Thompson considered that
even that was not necessary, that the plain
intent of the Act was sufliciently expressed
that British Columbia should have her six
representatives until such time as the number might be increased by an inflow of
population. I consider that Prince Edward
Island is in the same position as British
Columbia was at that day, and I think her
rights should be safeguarded by this government.
Manitoba came in under an imperial Act
and upon special terms. Her population
in 1879 was 10,586, and under general terms
would entitle her to one member, yet she
came in with four. In 1881 her population
would give her three, yet she still kept four.
The section referring to representation in
her case reads as follows:
Provided that on the completion of the census of 1891, and of each decennial census
after,
the representation of the province shall be readjusted according to the provisions
of section
51 of the British North America Act.
Why should Prince Edward Island be
treated any differently from other provinces.
Their special terms were manifested better
than those of Prince Edward Island and
yet they were not disturbed.
There is another section of the Prince
Edward Island terms to which I wish to
draw attention. It reads as follows:
That 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 to affect one and not the whole
of the provinces now comprising the Dominion,
and except so far as the same may be varied
by these resolutions, be applicable to Prince Edward Island in the same way and to
the same
extent as they apply to the other provinces of
the Dominion, and as if the colony of Prince
Edward Island had been one of the provinces
united by the said Act.
The qualifying words, 'except so far as
the same may be varied by these resolutions,' are important. Clearly the 51st section
of the British North America Act, which
provides for representation by population
was so 'varied' when with a special reference to our population, it was declared
that the island shall be represented by six
members, such six members being in excess
of what we would then be entitled to by
our population.
Let us point out the position this province
would be in taking the general terms of the
British North America Act to apply. We
will take the figures of the census of 1871
and compare the growth with the recent
census of 1901, thirty years later, and for
convenience let us make four groups to get
the relative growth of the east, centre and
west. For the purpose of this study we
shall group the three maritime provinces
together, take Quebec and Ontario each
singly, forming the fourth and last group
of Manitoba, British Columbia and the territories, organized and unorganized, that
are
outside the provincial boundaries. The comparison will show very unequal growth as
we shall see. The western group, including Manitoba, British Columbia and the
territories had in 1871 a population of 109,475. In 1901 the population of the group
was 624,970, showing a gain of 515,495 in
the thirty years, or 470 per cent. Ontario
in 1871, had a population of 1,620,851, and
in 1901 this had increased to 2,182,847, showing a gain of 562,096 or 34 1/4 per cent.
Quebec, with 1,191,516 in 1871, and 1,684,898 in
1901, gained 457,382 in the thirty years, or
38 1/4 per cent. The maritime group of three
provinces had a population of 767,415 thirty
years ago, and 893,953, according to the last
census, showing a gain of 126,538 or 16 1/2
per cent.
Here then we have four different rates of
growth, 16 1/2 per cent in the maritime section, 38 1/4 per cent in Quebec, 34 1/2
per cent
in Ontario and 470 per cent in the great
west. This comparison covers not a year
or a ten year period merely, but the period
of a generation. It indicates conditions that
may operate for a generation to come. The
rapid growth of the great west was a thing
to be expected. What was not expected
was that neither Ontario nor the maritime
provinces have kept place with Quebec.
And what is especially disappointing is that
the increase in the population of the maritime provinces in the thirty years has been
less than one third of the increase that has
taken place in Quebec, the pivot province
on which our representation in parliament
turns.
To see whither we are drifting let us project these ratios of increase forward thirty
1281 APRIL 14, 1903 1282
years into the future, and note the results.
We add 38 1/4 per cent—the past rate of increase—to the present population of Quebec
and we find that province may have in
thirty years from now 2,279,601 people. We
add 16 1/2 per cent to the present population
of the maritime provinces and we find they
may then have 1,041,455 people. Assuming
that Quebec has a population of 2,279,601 in
the year 1931 the unit of representation in
the Commons will be found, if we divide
that number by 65—the number of members
permanently allotted to Quebec—to be 35,070. Dividing the unit of population into
the prospective population of the maritime
provinces in 1931—that is 1,040,455— and we
find the maritime provinces would then be
entitled to but 30 members at the most instead of the 43 we had when Prince Edward
Island entered the union. And where
will Prince Edward Island be in the matter
of representation after 1931, if our ratio of
increase should be no better in the thirty
years to come than it has been in the thirty
years past? This is a simple matter of
calculation. Our increase has been less
than 10 per cent in the thirty years since
1871. Add a full 10 per cent of gain in the
thirty years forward and in 1931 we may
count at most on a population of 113,585.
Divide this by the unit of representation as
it will then be, that is by 35,170 and it
will be seen that we shall then be entitled
to but three members—that is, if the terms
of the British North America Act are applied to us as is at present proposed by
those in authority at Ottawa. Half our representation as it was in 1873 would thus
be swept away. It may be seen in the fact
that just as soon as the province of Quebec
becomes as densely populated as Prince Edward Island, we would not be entitled to
any representation at all, which would be an
absurdity, for the 22nd clause of the report
of the Quebec conference declares that 'no
fractional part of the unit of representation
shall be considered, unless when exceeding
one—half the number entitling to a member.'
Quebec being 152 times our area, and the
number of representatives limited to 65, we
must need be more than twice as thickly
populated as that province in order to have
even one member. But Prince Edward Island has not during the last decade nor is it
likely to increase to the same extent as in
the thirty years past. We came in with a
population of 47 to the square mile and now
have 51. Where will the representation of
Prince Edward Island be when Quebec population is even 40 to the square mile. Our
province will be politically obliterated.
Now, Mr. Speaker, these are well defined
reasons why our representation should be
the same as when we entered confederation.
1. The very wording of the terms and the
qualifying clause that the British North
America Act shall apply 'except were altered by these resolutions.'
2. To take any other interpretation would
render us in time entitled to no representation which would be an absurd and invalid
contract.
3. There are the demands of our delegates
at the Quebec conference, the speeches on
the Quebec terms in our local legislature,
and the telegram announcing the granting
of six members, the admission of a status
of representation for a small self-governed
province and varying the general terms—
and the admission of British Columbia and
Manitoba on the same principles and the
stronger wording of British Columbia clause,
is a good proof of our claim.
If the government should persist in holding that the representation of our province
shall be reduced it will put in a very false
position the men who made the confederation bargain, and who may be accused of not
safe-guarding the interests of the people of
Prince Edward Island whom they represented. All these things make a strong case
why this government should not take from a
small province the rights and privileges to
which it is justly entitled. Speaking of the
province of British Columbia in 1892 the
right hon. the leader of the House said:
That the intention of the parties should be
considered, and British Columbia was in no
different position than Prince Edward Island is to-day. If the right hon. gentleman
is still of that opinion I would ask him that
the intention of the contracting parties be
given effect to and that our province should
be given its six representatives in this
parliament. I ask the right hon. gentleman
to see that the rights of our small province
down by the sea are not lightly cast aside.
Mr. T. S. SPROULE (East Grey). The
representatives of the province of Ontario in
this House are confronted with the serious
question as to whether the representation
of their province in the Dominion House of
Commons shall in future be reduced by six
members. I regret that the government of
the province of Ontario seems to have taken
no steps to insure proper representation in
this parliament for that province, as the
governments of the provinces of New Brunswick and Nova Scotia have done.
Mr. SPROULE. I presume they are, but
they have exhibited a careless indifference
in this matter sadly in contrast with the
energy of the governments of New Brunswick and Nova Scotia, who are endeavouring
to secure justice for their provinces in this
respect. And not only is the provincial
government of Ontario negligent in its duty,
but we see here ministers of the Crown
from Ontario and Ontario members supporting the government sublimely indifferent,
and making no effort to safeguard the
rights of their province. Ontario has been
1283
COMMONS 1284
growing during the last few years; we are
told by the local government that New
Ontario is increasing in wealth and population, and in view of this, is it to be said
that
the premier province of the Dominion shall
lose six of its representatives Where are
the Ontario ministers and where are the
Ontario members supporting the government? Why do they not protest? Why is
it left to New Brunswick and to Nova Scotia
to secure that the question as to provincial
1ights1 should be submitted to the Supreme
Court?
Mr. SPROULE. It is the first time I
ever heard that Ontario has taken any part
in this matter.
Mr. SPROULE. It is the first time we
have ever heard it mentioned here that the
province of Ontario has taken any such
action as that taken by New Brunswick
and Nova Scotia to have her rights defined
under subsection 4 of section 51 of the British North America Act. With this question
pending before the Supreme Court it does
seem to me that it is not the part of wisdom
for the government to force this Bill through
the House. This parliament has yet a long
lease of life if it expires by eflux of time,
and there is plenty of time left to us yet
to legislate on the matter. In view of the
dissatisfaction created in the provinces
whose representation it is proposed to reduce, it does seem to me that it is of the
highest importance that the question should
be first settled as to the constitutionality
of reducing the representation of the provinces. From the point of view of a layman
it would seem that very serious question may arise. Suppose we should illegally reduce
the representation of any of
the provinces, and suppose the legality of
one of our enactments is brought before the
Judicial Committee of the Privy Council,
and it should be decided that we were not
a properly constituted parliament, what
would be the condition of affairs then?
Mr. SPROULE. It am told the same
question has arisen in the United States, and
it seems to have a very important bearing
on legislation there. I take it that if an
analogous condition of affairs arose here
some very troublesome question might re- suit. In view of this it occurs to me that
it would be a wise thing to delay this measure until such time as the government has
obtained the opinion of the Supreme Court
of Canada and of the Judicial Committee
of the Privy Council as well, if that be possible. Did I correctly understand the
Minister of Justice to say there was no provision
whereby this question could be carried
from the Supreme Court to the Privy Council?
The MINISTER OF JUSTICE. I did
not say that. There must be a reference to
the Supreme Court and then the judgment of
the Supreme Court is final unless there is
a special application made to grant leave
to appeal from the Supreme Court to the
Judicial Committee of the Privy Council.
Mr. SPROULE. I thought that the contention was that they could not appeal except
a suit at law was actually brought, and that
we were only applying to the Supreme
Court for its advice. There is then all the
stronger reason why we should ask delay.
It seems to me that as the Judicial Committee of the Privy Council is the highest
court
of the empire, we should if possible submit
the case to it before going any further. That,
I think would satisfy the provinces which
are going to be deprived of part of their
representation, and would satisfy the other
provinces as well. We would then be sure
of our ground and we would be going a
long way towards destroying that feeling
which is growing up to-day against the
contention that the province of Ontario
should have its representation reduced in
this House by six members. Holding these
views, and in view of the facts that there
is no urgency, inasmuch as we are not near
the end of the present parliament. I am disposed to move for delay. I therefore beg
to
move in amendment:
That the Bill be not now read the second time
but that the second reading thereof be deferred
until after a judicial determination has been
had with respect to the numbers of members
to which the respective provinces are entitled
under the census of 1901.
I do not think that any harm can result
from the delay as we are not near the end
of the present parliament, unless the government see fit to recommend to His
Excellency the Governor General to dissolve
the House much earlier than we anticipate.
The PRIME MINISTER. I have to say
to my hon. friend that the government cannot accept this amendment, and I think
that, on reflection, he will agree with me
it is not advisable we should. I would call
his attention to the fact that we are bound
by law to pass a Redistribution Bill immediately following the taking of the census.
Parliament can be dissolved under our system at any time. Circumstances may arise
at any moment which may make it advisable
for His Excellency the Governor General
to grant a dissolution, and the law makes
it imperative that there should be a redistribution immediately, after the census,
because, in the event of a general election,
that general election must take place according to the representation to which every
province is entitled. Let me cite section
51 of the British North America Act once
more merely in order to illustrate the point
I now make, that we are imperatively called
1285 APRIL 14, 1903 1286
on to pass a new Redistribution Bill.
Section 51 provides:
On the completion of the census in the year
1871, and of each subsequent decennial census.
the representation of the four provinces shall
be readjusted.
It does not say ' may,' but ' shall.'
The PRIME MINISTER. The number of
our population has been ascertained, so that
all the information required for the purposes of redistribution is before us. If there
were a very serious doubt as to whether or
not the proposition advanced to-day is one
which can be seriously entertained, I think
it would be well perhaps to stay our hands.
We have agreed to refer the question to
the Supreme Court, not because we have
any doubt, but simply in deference to the
views held by some people in the different
provinces, and in order to have their minds
set at rest. But we think it is better to proceed at once with the Bill and have the
committee, which the House will appoint, get
to work at once. We propose to have the
decision of the Supreme Court at a very
early day. Should that decision be adverse
to our pretention, we might fairly consider
the proposition to stay our hands, but in
the meantime I see no reason why the committee should not go ahead with the measure
while the Supreme Court is considering
the point we have submitted to it. If we
find our views affirmed, I see no reason
why the Bill should not become law. But
if the Supreme Court should hold the view
advanced by some hon. gentlemen opposite,
then its decision would be a matter for
consideration at the proper time. I submit
that all the arguments advanced this afternoon against the proposed measure do not
lead to the conclusion sought to be derived
from them. It is admitted on all sides that
when confederation was organized, it was
not intended to be restricted to the four provinces originally constituting it, but
it was
intended that other provinces should be allowed to come in later. It was contemplated
that other provinces should be carved out
in the west and also that other provinces
might come in from the east. It was contemplated that Prince Edward Island should
come in, and British Columbia and Manitoba. as they have done, and also that we
would be prepared to admit Newfoundland,
and that in the course of time other territories would be admitted as provinces into
the full citizenship of the Canadian confederation. No one will contend that when
this
view was in the minds of those who framed
confederation, of which we are all proud,
it could have been intended that the law
which was then enacted was to apply only
to the four original provinces and not to all
the provinces which were to come in later
and form the Canadian family. It would
not be reasonable to suppose that a certain
law was framed to apply only to the original constituent members of the confederation
and another law was to apply to those
provinces which might come in later. At
present we have not four but seven provinces, next year we will have eight, and in
a few years we shall have more, and the
proposition, I believe, will be accepted by
everybody, even by the hon. members for
Lanark (Hon. Mr. Haggart), Hamilton (Mr.
Barker), and Lincoln (Mr. Lancaster), that
the same law should apply to all these provinces, and that there should not be one
law for four of them and another law for
the rest. If there was anything in the minds
of the framers of the constitution, it was
that representation was to be based on population. That principle certainly was in
the
minds of the people at that time. It had
been the subject of a long and very ardent
controversy in two of the provinces. The
province of Upper Canada had been insisting for a long time that there should be representation
by population. The province
of Quebec did not object but insisted that
there should not be representation by population unless there were substantial guarantees
in favour of the minority in the confederation. Representation by population
was therefore certainly strong in the minds
of the fathers of confederation, and
in expecting that other provinces would
come in later, it was certainly understood
that when they did enter the same rule of
representation and the same readjustment
at every census should apply to them. But
what do we hear to-day? We hear hon.
members argue that we should have one
rule for the four original provinces and another rule for the others; We are told
that
while it has been enacted that the province
of Quebec should be the pivot around which
the representation of all the other provinces
should revolve, still this enactment is not
to apply to the provinces of Ontario, Nova
Scotia, New Brunswick and Prince Edward
Island.
 Mr. SPROULE. That the saving clause
should apply to them.
The PRIME MINISTER. I shall show
that there is no saving clause. My hon.
friend does not dispute that Quebec is to
be the pivotal province. What is the population of the province to-day? It is little
less than two million souls. My hon. friend
does not dispute that the unit of representation in province of Quebec is 25,367.
Now.
the contention which we hold on this side
of the House is that this 25,367 is to be the
unit for all the provinces, not for the province
of Quebec alone, but for the province of Ontario, the province of Nova Scotia, the
province of British Columbia and the others.
And, if that rule is to be applied and 25,367
souls is to be the unit of representation for
the province of Quebec, does my hon. friend
from East Grey (Mr. Sproule) contend that
1287
COMMONS 1288
the same rule should not apply to the province of Ontario? Would he contend that
there should be for that province a difierent
unit of representation? If the unit for the
province of Ontario is to be the same as the
province of Quebec then the province of
Ontario is not entitled to ninety-two members, but only to eighty-six members. Will
my hon. friend, considering this aspect of
the case deliberately say that the same unit
of representation is not to prevail in the
one case as in the other?
Mr. SPROULE. But it does not apply
to all the provinces.
The PRIME MINISTER. Not at all; the
same rule will apply to Prince Edward Island, and under the application of the rule,
Prince Edward Island must lose one member.
But what is the view expressed by the hon.
member for South Lanark (Hon. Mr. Haggart) and the hon. member for Hamilton
(Mr. Barker)? It is that the unit of population for Ontario should not be the same
as for Quebec, but that the province of Ontario should be entitled to ninety-two representatives,
that while it will require 25,367
to send one member to this House from Quebec, it will require only 23,777 to send
one
from the province of Ontario. Was that
ever contemplated at confederation? Will
any one contend that that is a fair rule to
apply? The compact at confederation stipulated that there should be a way open for
other provinces to come in. The province
of Manitoba comes in. The population of
that province has increased according to the
last census, so that it gains three members.
British Columbia will gain one. The province of Quebec will remain the same. This
is the only basis upon which the operation
could be carried on. Does any one suppose
that the provinces of the west increasing
their representation and the provinces of the
east not decreasing proportionately to their
population, the province of Quebec, which is
the pivotal province would submit to such
a state of things? I do not pretend that the
province of Quebec would not submit to it
if it were the law—it would undoubtedly.
But if representation is to be based on population it must be that there is a balance
swinging upwards and downwards—this
province will lose, not having kept pace
with the province of Quebec, and the other
will gain having gone on more rapidly than
Quebec. Therefore, it cannot be stated that
the position we take is unreasonable. That
is the reason why we thought it would not
be advisable. under present circumstances,
to wait until we have a judicial interpretation of the law on this question. We proceed
on this occasion as has been done on
former occasions, and the argument in court
is to allow no room for misunderstanding.
In deference to the provinces that lose, we
have agreed to follow them into court and
argue the matter there. I would like to say
a word in answer to my hon. friend from
Prince Edward Island (Mr. Lefurgey) whom
I regret not to see in his place. That hon.
gentleman has appealed to me. But the
government is not a free agent in this
matter, we have not a will of our own. It
is not through caprice or whim or any other
motive of that kind that we introduce this
Bill; it is in deference to the imperative mandate of the law. But if the hon. gentleman
(Mr. Lefurgey) believes that the province
that he represents should be kept in the
position, as to representation, that it now
has, I can only say to him that we have told
the representatives of the province that we
are ready to follow them into court—not
that we have any doubt on the subject, but
because they have doubt, and as good comrades and fellow citizens we should be glad
to have the matter authoritatively adjudicated. On the 6th March I received a letter
from the premier of Prince Edward Island,
which I will read:—
Charlottetown, P.E.I.,
March 6, 1903.
Dear Sir,—When the delegation from our province, consisting of Mr. D. A. MacKinnon,
M.P.,
Hon. Benjamin Rogers, Hon. Mr. Whear and
myself waited upon your government in Ottawa
a short time ago, with regard to the question of
the representation of this province being maintained as it was at the time of confederation,
namely, six members, the matter, as you know
was discussed by myself and Messrs. Whear,
Rogers and MacKinnon, and your honourable
board seemed to take a contrary view to the one
which I and my colleagues held; that is, that
at the time of confederation there was a contract expressed or implied, that this
province
should never have a less representation than
six, as long, at any rate, as the population did
not decrease below 95,000, which was the population we had when we entered confederation,
and, upon which population we were granted
six representatives. Â
The reasons given at the time for granting
those six representatives were not on the
ground of the population or the question of the
unit of population, but, on account, as was expressed in the correspondence, of the
peculiar
situation of the island, and it being divided into three counties, rendered it almost
impossible or very inconvenient to divide the province
into districts for less than six. Upon this and
other grounds, we contended and still contend
that we were and are entitled to six representatives. However, as I have stated, your
honourable board took a contrary view to the one
taken by us on this point.
The delegation then requested your board. if
you were fully convinced that we were not entitled to six representatives, to permit
the province of Prince Edward Island, under the provisions of the statute to state
a case to the
Supreme Court, if they thought proper, setting
out all the correspondence and such other matters as might be deemed advisable for
the decision or the Supreme Court" as to whether or
1289 APRIL 14, 1903 1290
not, under the terms of union, Prince Edward
Island was and is entitled to six members; and
if you recollect, which I have no doubt you do,
your answer to me was that you had no objection to a case being stated and I thought
your attorney-general, Mr. Fitzpatrick, concurred in the matter and raised no objection.
Now, our legislature meets on the 19th of
this month, and I would like to be in a position
to have some written statement from you or
your government bearing out these facts, and
that you are willing that this province, if it
thinks proper, should state a case to the Supreme Court. I do not think that you can
have
any objection to giving this assurance in writing, that your government is willing
that this
province shall take this course, if it deems advisable.
This application by our government to have a
case stated to the Supreme Court will of course
be understood by your government to be without prejudice to any right that we may
have
to any other course which may now be open to
us to insist upon this right.
Yours faithfully,
(Signed) ARTHUR PETERS.
The Honourable
Sir Wilfrid Laurier,
Ottawa.
To this I replied:—
Privy Council, Canada,
Ottawa, March 10, 1903.
My dear Peters,—I beg to acknowledge the receipt of your favour of the 6th instant.
At the
interview to which you refer I stated, with the
concurrence of my colleagues then present, that
we would have no objection to a case being
submitted to the Supreme Court upon the question which you brought to our attention.
I am sorry to have to inform you that the
consideration, which we have since given to
the arguments which you presented to us, has
not changed our opinion in any way, as to the
merits of the representations which you made
to us. But we are still of the same mind as to
your desire of having the matter referred to the
Supreme Court, and whenever you take the initial steps in that direction, we will
be happy
to facilitate the proceedings.
At the same time, I have again to confirm
what I stated at our interview, that our Bill
of redistribution has to he proceeded with
without any delay.
Believe me,
Yours very sincerely,
WILFRID LAURIER.
(Signed)
The Hon. A. Peters,
Charlottetown, P.E.I.
Mr. SPROULE. Would the right hon.
gentleman kindly give us the objection raised by the province of Ontario if he has
the
correspondence?
The PRIME MINISTER. I think it will
be raised by the Supreme Court, if it is
raised at all. But I may say to my hon.
friend (Mr. Sproule) that I believe that the
province of Ontario, now represented by the
Liberal government there, will not agree—
I shall be surprised it it does agree—to have
the province of Ontario entitled to representation on the basis of a unit of population
of
23,000 when Quebec is represented on the
basis of a unit of 25,000. Ontario, which
has been the champion of representation by
population, will insist upon that principle
even when the principle works to its own
disadvantage.
The PRIME MINISTER. I believe it has
agreed to follow the other provinces into
court; but it has not taken the initial step, for
it has, perhaps, the most proper ideas on the
subject of representation by population of
any of the provinces. But, I suppose, the hon.
gentleman (Mr. Sproule) would insist upon
this demand even to the detriment of the
other provinces of the Dominion. He is of
those who, opposed representation by population before, and he is true to his record.
But I appeal to every Liberal member and
also to many Conservative members, that
the unit of representation should be the
same for all provinces whether they lose or
gain; and this is the principle upon which we
proceed at the present time.
Mr. BORDEN (Halifax). On behalf of
the Liberal government in Nova Scotia, I
must resent the imputation which is cast
upon it by the right hon. gentleman (Rt.
Hon. Sir Wilfrid Laurier), and I do the same
on behalf of the Liberal government of New
Brunswick—for I believe it calls itself Liberal at the present time. I resent on behalf
of my own province the invidious comparison the right hon. gentleman has made between
the Liberal government of that province and the Liberal government of the
province of Ontario. The right hon. gentleman seems to have very peculiar ideas
about this legislation. He says the unit of
population in Nova Scotia, or Ontario, as
the case may be, would be smaller if you
applied section 4. Well, is not the statute
before us? Does the right hon. gentleman
deny that the statute would have that operation if no other provinces had come in,
and
would not what he claims to be an evil
have existed in that case by the very terms
of the statute? Assuming that no other
province had joined Canada up to the present time, nnd assuming that the four provinces
had increased as they have during
the past ten years, then the very thing
which the right hon. gentleman says is a
scandal would have happened under the
terms of the statute. Well, is it wrong
to ask that the constitution should be observed? In the case I have suggested,
surely it should not be attributed as blame
to those provinces that they have asked
that the constitution should be observed.
There is no necessity for heat on the part
of my right hon. friend, when these provinces are asking for the opinion of the
court as to whether this provision still remains intact in the constitution, although
other provinces have come in. That is
all they are asking, and is any blame
1291
COMMONS 1292
to be cast upon them, is any insinuation
to be made against thém, for simply
wanting to have the court determine
whether or not that which admittedly was
constitutional before the other provinces
came in, is still constitutional notwithstanding that these other provinces have been
added? Why then should my right hon.
friend seek to raise with regard to this
question the matters which he has seen fit
to bring to the attention of the House tonight? I am sure there is no harm in
adhering to the constitution. My right hon.
friend has always been a great admirer
of the constitution. Then if we desire to
adhere to the constitution, surely there is no
harm in asking the courts to have that
question determined. That is all that any
one has asked up to the present time, so
far as I am aware.
My right hon. friend points to the unit
of population. Well, the unit of Prince
Edward Island, British Columbia and
Manitoba, when those provinces came
in, was not at all the same unit
as prevailed in the other provinces.
The right hon. gentleman knows that as
well as I do, every member of the House
knows it. Under this very Bill the unit of
population in the North-west Territories is
not the same. I am not finding any fault
with the Bill in that regard, because I do
not think that too great a representation is
being given to the North-west Territories.
But still the unit of population there is
smaller than it is in the other provinces.
The unit of population for the North-west
Territories under the last census would be
less than 16,000, whereas in the other provinces it is between 25,000 and 20,000.
Now what is to be gained by going on
while this matter is sub judice? It is practically sub judice at the present time,
because
the Minister of Justice is taking steps, as I
understand, to have ths matter referred to
the Supreme Court, under a provision in
the Supreme Court Act. Suppose that we
go on in the meantime and delimit the constituencies in the provinces where changes
have to be made, the work of our committee will be all for naught in case the
decision should be against the view which
has been expressed by the Minister of Justice. I have every possible respect for the
opinion of my hon. friend the Minister of
Justice, as I said before; but although he
is strong on this point, he very candidly
admits to the House that he is not infallible.
None of us claim to be infallible, and it
may happen that he is mistaken. I have
not a very pronounced opinion myself, I
have not a pronounced opinion against that
of the Minister of Justice; but I can see
that a strong argument can be made on the
other side. I can also see that the argument of the Minister of Justice leads to some
extraordinary conclusions. For example, he
based his argument almost entirely upon
the opinion that under the provisions of
section 146, the addition of other provinces
to Canada had resulted in amending the provisions of section 51. He was Willing to
make the admission that in section 51 the
word Canada originally meant only the four
provinces, as the right hon. gentleman himself has stated. Well, suppose you had had
in the addresses under which those different
provinces were admitted, a provision that
their representation should be such as the
parliament of Canada might afterwards determine, it would logically follow from the
argument of the Minister of Justice to-day
that the parliament of Canada would have,
by reason of the power so given in the addresses, the right to alter the representation
of Ontario, and Quebec, and the maritime provinces. I submit to the Minister
of Justice, that this would be the logical
result. It seems to me, with all deference to
the opinion of the Minister of Justice, that
if the argument cannot be based upon a
higher ground than that, there is good cause
for referring this matter to the Supreme
Court. As I said before, we might simply
be wasting our time by going on now and
dealing with this matter while the question
is sub judice. Therefore, I think the right
hon. gentleman who leads the government
might well consent to the amendement of
my hon. friend from Grey, and allow the
second reading of this Bill to stand until
the court shall have given a judicial determination with regard to this question,
which
has been discussed at such great length in
the House to-day.
House divided on amendment (Mr.
Sproule).
YEAS:
Messieurs
Alcorn, Johnston (Cardwell).
Bali, Kaulbach,
Barker, Kemp.
Bennett. Lancaster
Blain. Lavell,
Borden (Halifax), Lefurgey,
Brock, McGowan,
Bruce, McIntosh,
Calvin, Northrup,
Cargill, Pringle,
Carscallen, Reid (Grenville),
Clancy, Richardson,
Clarke, Roche (Marquette),
Cochrane, Sherritt,
Earle, Sproule.
Haggart, Taylor,
Halliday, Vrooman.
Henderson, Wilson.—37.
NAYS:
Messieurs
Angers, Lemieux,
Bazinet, Logan,
Bernier, Macdonald,
Bickerdike, Mackie,
Bourassa, MacLaren (Huntingdon),
Brown, Macpherson,
Calvert, McCarthy,
Campbell, McCreary,
Carroll, McEwen,
1293 APRIL 15, 1903 1204
Champagne, McLennan,
Christle, Marell (Bagot),
Copp, Marell (Bonadventure),
Costigan, Martineau.
Cowan, Matheson,
Davis, Mayrand,
Delisle, Meigs,
Dembers (LĂ©vis), Monet,
Demers (St. John), Morrison,
Dugas, Mulock (Sir William),
Erb, Oliver,
Fielding, Paterson,
Fitzpatrick, Power,
Galliher, Préfontaine,
Gauvreau, Proulx,
Geoffrion, Puttee,
Gibson. Ross (Ontario),
Gould. Rousseau,
Harty, Schell,
Harwood, Smith (Vancouver),
Heyd, Stephens,
Holmes, Sutherland (Essex),
Lang, Tobin,
Laurier (Sir Wilfrid), Tucker,
Laurier (L'Assomption), Turcot,
Lavergne, Turgeon,
Law, Wright,—72.
PAIRS:
Ministerial. Opposition.
Thompson (Haldimand), Ingram,
Cartwright, Tupper,
Hyman, Gilmour,
Dyment, McCormick,
Johnston (Lambton), Simmons,
Emmerson, Fowler,
Parmelee, Hale,
Borden (Sir F. W.), Rosamond,
Fraser, Bell,
Charlton, Tisdale,
Guthrie, Porter,
Blair, Hughes (Victoria),
McColl, Ward,
Beith, Avery,
Douglas, Boyd,
Ethier, Culbert,
Farquharson, Broder,
Fisher, Ganong,
Fortier, Gourley,
Gallery, Hackett,
German, Kendry,
Grant, Kidd,
Hughes (P.E.I.), LaRivière,
Johnston (Cape Breton), Morin,
Kendall, Maclaren (Perth),
Lewis, LĂ©onard,
MacKinnon, Maclean,
McCool, Robinson
(Northumberland),
McGugan, Clare,
McIsaac, Pope,
Ross (Victoria), Osler,
Ross (Yukon), Lennox,
Russell, Smith (Wentworth),
Scott, Robinson (Elgin),
Sifton, Monk,
Stewart, Birkett,
Sutherland (Hon. J.), Roddick,
Talbot, Thompson (Grey),
Tarte, Seagram,
Tolmie, Tolton,
Wade, Wilmott,
Bureau, Cangrain,
Amendment (Mr. Sproule) negatived;
motion agreed to, and Bill read the second
time.
That the said Bill be raferred to a special
committee composed of Measrs. Fitzpatrick,
Sutherland (Oxford), Hyman, Davis, Borden
(Halifax), Haggart and Monk, with instruction
to prepare schedules to contain and describe
the several electoral divisions entitled to return members to this House.
Mr. R. L. BORDEN (Halifax). Mr.
Speaker, for reasons which I have already
stated and which I shall not repeat now, I
think, if this proposed tribunal is to be of
the nature of a conference, such as has been
described, it should be composed of an equal
number of members on each side of the
House. My right hon. friend (Rt. Hon. Sir
Wilfrid Laurier) in introducing this Bill laid
down the principle that it was to be a conference, as I understood it, although I
think
he also used the word ' committee '—a
conference designed for the purpose of agreement. A committee such as is now suggested
is simply an ordinary committee representing as far as may be the numerical
strength of each side of the House, and
therefore it cannot be in the nature in the
nature of a committee to represent the views
of the majority of the House. However, I
do not want to take up the time of the
House at this stage in repeating what I have
already said this afternoon. I again renew
the suggestion I made to my right hon.
friend at that time that if it is really intended to be a conference it should be
composed
of an equal number of members on each
side of the House.
There is one further suggestion I have to
make in regard to the motion and that is
that the committee shall be given power
to examine witnesses on oath and to send
for persons and papers. I have already
mentioned that matter privately to my right
hon. friend, and he thinks it is not necessary that that provision should be made
now. I desire to reserve my right to make
a motion to that effect if it should afterwards become necessary. I mention this,
because, otherwise, it might be taken as an
admission on my part that I considered the
motion in its present form as absolutely
sufficient for all contingencies which might
hereafter arise.
Motion agreed to.
On motion of the Prime Minister, House
adjourned at 11.15 p.m.
This individual participated in:
