Hon. GEO. E. FOSTER (North Toronto).

Before the Orders of the Day are called, I wish to ask the Prime Minister whether he has any information for the House in reference to the filling of the vacant portfolio of the Minister of the Interior ? It is a question of a great deal of moment, and we have not yet had a really thorough answer from the Prime Minister.

I have no information to give to my hon. friend to-day.

Mr. FOSTER.

Then I suppose I will be equally successful when I make a plea for that return with reference to the transport of hay to the lower provinces, which was ordered by the House on January 25. A second order in reference to the matter was passed a fortnight later, and the return to that has been brought down, but it is absolutely useless without the other.

Sir WILFRID LAURIER.

I shall inquire about that.

Mr. L. P. DEMERS (St. Johns and Iberville).

(Translation.) Mr. Speaker, the hon. member for Lincoln and Niagara reminded us, last evening, several times in the course of his speech that he comes from that part of Canada surnamed the Garden of Ontario. It was necessary that he should do so, as his violent delivery and forcible language might have led us to believe that he was not a resident of that rich and beautiful country surrounding St. Catharines, but rather that his mind had been impressed by the sight of Niagara's surging waters and his ears filled with the

Kimberley be moved to submit to the Imperial Parliament, at its next session a measure:

1. Confirming the Act of the Canadian Parliament, 33 Vic., cap. 3, above referred to, as if it had been an imperial statute, and legalizing whatever may have been done under it, according to its true interests.

2. Empowering the Dominion Parliament from

time to time to establish other provinces, in the Northwestern Territory, with such local government, legislature and constitution as it may think proper, provided that no such local government or legislature shall have greater power than those conferred on the local government and legislatures by ' The British North America Act, 1867,' and also empowering it to grant such provinces representation in the parliament of the Dominion : the Acts so

constituting such provinces to have the same effect as if passed by the imperial parliament at the time of the union.

It is subsequent to this that the Imperial Act of 1871 was passed. Sir John Macdonald had not only applied for authority to lay down the terms and conditions on whirh the Territories might be admitted, but also for authority to frame their constitution ; and that constitution was to be such as the Dominion parliament would deem proper to grant them, provided it did not give them greater powers than the other provinces enjoyed. Under these circumstances, the imperial parliament enacted for us section 2 of the Act of 1871 :

The parliament of Canada may from time to time establish new provinces in any of the territories then forming part of the Dominion of Canada, but not comprised in any province of that Dominion ; and may, at the time of said establishment, enact provisions for the constitution and administration of any such province and for the passing of laws concerning the peace, order and good government of such province and for its representation in said parliament.

Well, that clause providing for the creation of new provinces, enacted at the request of Sir John Macdonald, in the words just quoted, and contained in the very Act which confirms that of 1870 to restrict the powers of Manitoba, that provision, as all will see, is very broad in its wording. The imperial parliament was aware of what had occurred in the case of Manitoba. It was stated at the same time in section 5 of the same Act, that the Manitoba Act ' would be and was considered as having been in force ' ; that it was not void, as had' been contended ; and with a knowledge of these facts, parliament, in the broadest terms, authorizes parliament to establish new provinces. If the Dominion parliament desired that we should not have the right to restrict the powers of the new provinces, that was evidently the time to say so.

The hon. member for Lincoln and Niagara spoke last evening of mandator and mandatory. I am glad he has suggested such an example. Let us suppose that in the ordinary course of things a proxy informed his principal that he has possibly Mr. L. P. DEMERS.

exceeded his powers and requests him to endorse his action. Suppose also that by the same deed the mandator authorizes his proxy to make similar agreements ; would there be any court of justice to decide that the proxy had exceeded his powers in acting as formerly ?

But some object-and I regret that the hon. member for Jacques Cartier (Mr. Monk), a distinguished lawyer, professor of constitutional law, who made an eminently patriotic speech the other evening, has thought fit to uphold the first contention of the hon. leader of the opposition. He claimed that parliament had not the power to restrict provincial rights. He said [DOT] When I consider the wording of the Act of 1871, I am forced to the conclusion that, in accordance with the construction generally put on it, this clause would give parliament unrestricted powers : however, on closer consideration, I come to a different conclusion. He takes up, to begin with, the words : ' To constitute and establish.' These are not the words used in the Act ; in the French as well as in the English own- the word 'constitution' is used. Accoiding to the hon. member for Jacques Cartier, constitute ' would mean to fix the boundaries of the provinces and to decide on the date o'* their admission into the Dominion, and also to manage their affairs up to the date of the coming in force of the constitution.

Mr. Speaker, such a construction is in contradiction with the meaning given to the word ' constitution ' in chapter 5 of the British North America Act. It is seen there that provincial constitution applies to the executive and the legislative power. Should there be any doubt on this point, we might consider the other terms used in section 2 . of the Act of 1871, which enables us not only to enact provisions for the constitution and government of the provinces, but also ' for the passing of laws concerning peace, order and good government ' ; which evidently apply to the legislative power. If we were merely to admit these new provinces into confederation under the provisions contained in the British North America Act for Ontai'io and Quebec, they would be without a constitution, since they have not any as was the case with the province which came into confederation in 1867. New Brunswick, Nova Scotia, British Columbia and Prince Edward Island had their constitution just the same as Ontario and Quebec. But in this case it is necessary to decide on the terms of the constitution of these new provinces. since they are without a constitution at the time we are granting them provincial autonomy.

Other objections are made : If you are entitled. they say, to interfere with some of their rights, why not with all ? Has not the Dominion parliament enacted laws concerning property in connection with railways, although that is a matter which comes within the purview of the provinces. Why should we have all these Dominion laws

relative to property ? Because they were needed in order to ensure the successful working of the laws enacted by the Dominion parliament. 1 might quote other examples. Courts have decided in many instances that we could legislate incidentally on the matters enumerated in section 92 although these matters are left exclusively to the provinces.

There is another argument, and I am glad that the hon. member for Jacques Cartier (Mr. Monk) has brought it up. He claims that there should have been no inequality between the various provinces. But do we not find in the constitution provisions made for the protection of minorities ? Does not section 80 enact that twelve counties in the province of Quebec are in a way set apart for the English-speaking minority, and that the limits of these counties shall not be changed without the consent of the majority of the representatives of these counties? That is a restriction on behalf of the English-speaking and Protestant minority of the province of Quebec, a restriction which is not found in the case of any other province.

In the provinces other than Quebec, the use of the French language is not official, nevertheless we find here a provision stating that in the province of Quebec, the English language shall be on the same footing as the French.

The imperial parliament having made all these various restrictions, without thinking that they .were interfering with provincial rights, are we not thereby justified in following the same rule as regards the protection to the minority in the new provinces.

But that has not been sufficient to allay the fears of some of our hon. friends on the other side, and the member for East Grey (Mr. Sproule) sent in haste a telegram to a high legal authority in Toronto ; he asked the opinion of a leading lawyer. Mr. Christopher Robinson, as to the meaning of section 93 of our constitution. Mr. Robinson made his opinion known, and if the member for East Grey had been a lawyer, and not a doctor, he would have soon realized that Mr. Robinson was making fun of him when he answered that the power of parliament was not beyond question. Now, is there anything on earth that is beyond question, or which a lawyer may question ? Have not books been written denying the existence of God : have not even some philosophers turned out volumes expressing doubt as to their very existence ?

Mr. Speaker, the power of parliament having thus been vindicated, the stand taken by the hon. leader of the opposition appears in a new light. While he states that section 93 has no application, his colleague from the province of Quebec asserts that it has. Under these circumstances, the country faces a conflict of opinions, a difficulty which should be solved by parliament in order to avoid all trouble. So that, if the hon. leader of the opposition is not in a position to satisfy the House that his first proposition is well founded, we have to come to the conclusion that he is not desirous of seeing the question settled.

So much has been said about this section 93 that I need not quote it, every one of us knows it by heart. However, I shall venture to say one word as to its construction. There are two ways of interpreting a statute : liberally, and literally. If I give it its liberal interpretation there can be no doubt that the first clause of section 93 applies under the circumstances. Mr. Robinson, in giving the aforementioned opinion claimed that no part of section 93 applied. If that section has no application, then it will be contended that section 92 settles the point. Notwithstanding my deep respect for Mr. Robinson, I have no hesitation in saying that his view of the case is evidently wrong. The Privy Council have decided so in the case of Brophy versus the Attorney General of Manitoba. The Manitoba Act contains a clause corresponding to clause 2 of the Bill now before us, in regard to which the Privv Council made the following comment, page 212 L. R.. 1895 :

The second section of the Manitoba Act enacts that after the prescribed day of the British North America Act 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 if the province of Manitoba had been one of the provinces originally united by the said Act.' It cannot be questioned therefore that section 93 of the British North America Act (some such parts of it as are specially applicable to some only of the provinces of which the Dominion was in 1870 composed) is made applicable to the province of Manitoba, except in so far as it is varied by the Manitoba Act.

So that should section 10 of the Bill disappear, section 93 of the British North America Act would still be applicable, in virtue of section 2 of the Bill, to which no exception is taken. What the learned lawyer, Mr. Robinson, must have meant was that subsection 1 and 3 of section 93 were not applicable.

We should put a liberal construction on that statute. Maxwell, in bis work 'on statutes,' lays down the following rule :

Except in some lew cases where a statute has fallen under the principle of excessively strict construction, the language of a statute is generally extended to new things which were not known and could not have been contemplated by the legislature when it was passed. This occurs when the Act deals with a genus, and the thing which afterwards comes into existence is a species of it. Thus, the provisions of Magna Charta which exempts lords from the liability of having their carts taken for carriage w7as held to extend to

degrees of nobility not known when it was made, as dukes, marquises and viscounts.

If we apply that rule of interpretation, taking into account the fact that no provision has been made specially for the Territories, then we reach the conclusion that the word ' province ' is applicable also to the Territories which we acquired in 1870. Now, that power granted by section 93 is not unlimited ; it is restricted by subsection 1 and 3. Such is the meaning of that section when liberally interpreted ; and even if we should interpret it literally, it is still open to the same construction. Words should here engross our attention. *Warfare is being carried on about the words ' province,' ' legislature,' and ' date of union.'

It is contended that the word province does not include territory. The definition of that word is not given in the English statutes, but it is given in ours. The Canadian legislature has stated what is the meaning of the word 'province.' We read in our statutedoook what should be understood by the word ' province.' Subsection 13 of section 7 of our interpretation Act says :

The expression 'province' includes the Northwest Territories and the district of Keewatin.

It is thus seen that the word ' territory ' is synonomous to ' province ; ' even the word ' district ' is covered by its meaning, as in the case of Keewatin, for instance. Hon. gentlemen on the other side contend that the schools of the Northwest cannot be considered as actual statutory enactment, that they are mere ordinances voted by a mere council. Let us see what is the meaning of the word ' legislature ' according to the Interpretation Act.

I shall read subsection 14 of that same section 7 :

The expression ' Legislature,' ' Legislative Council ' or ' Legislative Assembly,' includes the Lieutenant Governor in Council and also the Legislative Assembly of the Northwest Territories, and the Lieutenant Governor in Council of the district of Keewatin.

Therefore, Sir, ' province,' ' territory,' legislature ' and ' assembly ' have the same meaning for us inhabitants of Canada. In fact, the definition which I have just given is in accord with the principles laid down by the Interpretation Act of 1889 in England, as regards the word legislature. It is as follows : Any authority other than

the imperial government empowered to pass laws within the British possessions. So tliat, according to the imperial interpretation Act itself, the Northwest Territories were governed by a legislature and the laws passed by that body are the laws of a legislature. Let us now pass on to the word * union.' That word may mean Canada or the Confederation. It is the latter meaning which should be given to the word.

Mr. L. P. DEMERS.

1 read the following in the American and English Encyclopaedia of Language :

' The teritories are as much a part of the United States as are the states. The ultimate purpose is that they shall, as soon as practicable be organized into states, which shall take equal place or part in the union.'

As to the term ' date of union', its meaning for the four provinces is the first of July. 1867. For the others, it means the date of their admission into the Dominion.

*Section 109 shows this. Although that section mentions the three provinces of *Canada, Nova Scotia, and New* Brunswick, the Privy Council has decided that it applies to all the provinces. It will not be contended by any one after this that the words ' at the date of union ' mean in this ease the first of July, 1867.

*ilr. Speaker, in voting for the Bill which is now* submitted by the government, we' are not, as I am aware, granting very much to the minority in the provinces of the Northwest. We are only confirming the present state of things. That state of things may not be very satisfactory ; but legislators are often obliged to take circumstances into account. To those who may taunt him for not granting any more, the Prime Minister may say, like Solon : I have not given them the best taws, but I, have given them the best laws they were capable of standing. Mr. Speaker, since the outset of this debate, we have had surprise after surprise. Hon. _ gentlemen on the other side are not generally very well disposed towards the provinces. w*hile the-Liberal party has always upheld their authority and sought to vindicate their- rights. The other day, the hon. member for South York, (Mr. Maclean) assailed the right lion. Prime Minister, called him a tyrant and what not. It is not many years since I entered this House, but I have in the meantime became acquainted with the true inwardness of the feeling of hon. members on tlie other side as regards provincial rights. In 1902, in the course of a debate, the hon. member for South York spoke as follows :

I say that the interpretation of th-e law that has been given by the English Privy Council in regard to the distribution of rights as between the provinces, and the federal power, has been against the interest of the country as a whole. That I regret, I agree with the honourable member for Lanark (Hon. Mr. Hag-gart) that some day we will have the whole jurisdiction in this parliament and in some way we will work it out, and In some way we will increase the federal power and wipe out gradually the provincial power. I take issue directly with the honourable gentlemen who oppose that view, I say that provincial government and the enlargement of provincial rights has not been in the interest of this country, and I say that Sir John A. Macdonald was right, and was a most far-seeing statesman if he believed in a * legislative union and desired it carried out in this country.

Such are the feelings expressed by the lion.

member oil behalf of jirovincial autonomy ; such are his tender mercies towards the provinces.

There is also the question of vested rights. In 1875, parliament passed a law granting a temporary constitution to the Northwest Territories, and by that constitution parliament declared that certain rights granted to the minority would be for ever assured to them. The rights of the Catholic minority were recognized by representatives of a different religious belief, and it was Mr. Blake himself who brought up the question. That same policy was confirmed, in 1880, by the Conservative government of the time. It was enacted once more that the Catholic population would have their separate schools, and parliament is to-day bound in honour to continue that system. The government itself through its officers has declared that the Dominion of Canada had guaranteed that right to the minority. I find the proof of this in a pamphlet published by the Department of Agriculture for the information of those who wish to settle in the west. The following is au extract :

Mr. J. G. H. BERGERON (Beauharnois).

Mr. Speaker, I have listened with pleasure to the argument of my hon. friend (Mr. COMMONS

D P. Demers) who has just taken his seat; and although I would be very happy to address the House in the beautiful language in which he has done, I crave the indulgence of my colleagues if I speak the language of the majority. In listening to tny hon. friend I have been astonished to observe the conclusions at which he has arrived. My hon. friend has discussed only one phase of the measure now before the House, which indicates, I suppose, the great interest that is taken in the clause respecting the schools, while as a matter of fact there are other things to be considered. My hon. friend commenced his remarks by casting reflections upon those who preceded him. He endeavoured to make political party capital of the question which is now being debated in parliament. It is true, it is a political question ; but we were toid, at the commencement of the discussion o! this measure, that we had to stand upon very high ground, because it was a very important and very dangerous question to discuss. My hon. friend, in the beginning of his remarks referred to the educational system in the republic to the south of us ; he then spoke about the Educational Act of Manitoba ; he went on to say that this was a question of justice ; and, after speaking on the interpretation of our constitution, he concluded by saying that he would not be able, by the vote which he intends to give, to render to those who are interested in this measure, ail that he would like to give them, but that he would do the best he could. My hon. friend, in speaking about the constitution, reminded me of an old saying of an American politician, that patriotism is the refuge of scoundrels. Here I am afraid we have been playing a great deal with the British North America Act. Although my right hon. friend the leader of the government stood upon the rock of the constitution when he spoke on the 21st of February, and although my hon. friend the leader of the opposition also stands on the rock of the constitution, to my mind that rock is not very solid ; and since 1896, the Jess \ve speak about the British North America Act the better. To show how little we can depend upon the rules which were laid down at the time the British North America Act was passed, my hon. friend from St. John and Iberville (Mr. Demers) said a few moments ago that you would find in that Act that In the province of Quebec there must for ever be twelve counties represented by Protestants.

Mr. L. P. DEMERS.

I beg pardon. I did not say that. I said that so long as the majority of those twelve counties did not want to change the boundaries of those counties the majority of the province could r.ot change them.

Mr. BERGERON.

troduced that Bill. I go further. Being *convinced that the Minister of Justice (Mr. Fitzpatrick) had had a great deal to do with the framing of this clause 16, and recognizing in the manner in which that clause was drafted the high qualifications which we all know that hon. gentleman to possess, I thought that I recognized in it a kind of vindication of the position taken by the Liberal party in 1896 upon a similar question. To my mind it was the only thing the right hon. gentleman could do, and I shall say why. In the discussion which is taking place, I was not here one evening when my hon. friend the Minister of Justice (Mr. Fitzpatrick) took some part in it and made some remarks, which of course do not give any idea of what he will say when he speaks at length on the measure. But some hon. members have said that clause 93 of the British North America Act settles the case. I think that is pretty well the opinion expressed by my hon. friend from St. John and Iberville (Mr. Demers). The moment a territory becomes a province, they argue, it comes in with whatever system of education it enjoys at the time of the union. Others take the opposite view and say that clause 93 does not go so far. And I imagine that it was in order to dispel any doubt on that point, that the Minister of Justice drafted this clause 16 as it appears in the original Bill.

There is undoubtedly a law concerning education in the Northwest Territories to-day. They certainly have not got an educational system by tolerance. They have it by right. There is to-day in the Northwest Territories a law governing education which was enacted and granted them by the parliament of Canada in 1875. . Clause 11 of that Act of 1875. and 14 of Revised Statutes of 1S86. reads as follows :-

The Lieutenant Governor in Council shall pass all necessary ordinances in respect to education. But it shall therein always be provided that a majority of the ratepayers of any district or portion of the Territories or of any less portion or subdivision thereof, by whatever name the same is known, may establish such schools therein as they think fit, and make the necessary assessment and collection of rates therefor and also that the minority of the ratepayers therein, whether Protestant or Roman Catho"c. :rav es'abi'sh senarate schools therein. and in such case the ratepayers establishing such Protestant or Roman Catholic schools shall be liable only to assessment of such rates as they impose upon themselves in respect thereof.

The other subsection does not amount to a great deal, but I will read it also :

The power to pass ordinances, conferred upon the Lieutenant Governor by this section is hereby declared to have been vested in him from the seventh day of May, one thousand "'ight hundred and eighty.

There is the law. Now, I contend that this law has never been repealed. It could [DOT]only be repealed by an Act of this parlia-Mr. BERGERON.

ment. It is the law which everybody throughout the world, going to the Northwest Territories, was supposed to know. Everybody was supposed to know' that there wmre separate schools in the Northwest carried on upon the same lines as those in the province of Quebec or those in the province of Ontario. Now, I take section 16 of the Bill-

Mr. BRODEUR.

Before my hon. friend (Mr. Bergeron) leaves the part of the subject he is discussing, I desire, with his permission, to ask a question. Does he contend that clause 11 gives to the minority the same rights as were given by the British North America Act to the minority in Ontario and Quebec ?

Mr. BERGERON.

As a matter of law ?

Mr. BRODEUR.

Yes.