May 1, 1905


Rt. Hon. Sir WILFRID LAURIER (Prime Minister) moved that item No. 45 of Public Bills and Orders be now taken up. Motion agreed to. House in Committee on Bill (No. 66) to amend the Criminal Code, 1892, with respect to appeals from certain summary convictions.-Mr. Porter.


LIB

Henry Horton Miller

Liberal

Mr. MILLER.

I quite agree with the member who has just sat down (Mr. Stockton). I think that we have in this country enough betting, gambling and gaming without endeavouring to promote it by any Act of this parliament. We have now gambling in stocks on Wall street and in that we have plenty of room for excitement, and all the vent we require for the gambling spirit without adding to the facilities for betting on horse races. I am thoroughly opposed to the legislation and hope that it will not carry.

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LIB

Jacques Bureau

Liberal

Mr. BUREAU moved :

That section 197 of the Criminal Code, 1902, be amended by adding thereto the words follow-ins :

Provided that a race-course of an incorporated association shall not be deemed to be a common betting house merely by reason of any betting thereon during the actual progress of a race meeting, or by reason of recording or registering such bets, or of anything done thereon as incidental thereto or connected therewith ; and nothing contained in clause 1 of section 197 of this Act shall be deemed to apply to any such betting or the recording, registering, depositing or the becoming custodian of any such bet. I

I may say, Mr. Chairman, that the Criminal Code, section 204, in defining what a bet is, has a proviso excepting race tracks during actual race meetings. Section 197 defining what a betting house is, does not contain a similar exemption. The question has been raised in courts in Ontario, and it has been decided that, although the intention of the legislature was evidently to exempt betting going on at race-course meetings, that exemption does not actually appear in clause 197.

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CON

George Oscar Alcorn

Conservative (1867-1942)

Mr. ALCORN.

What the hon. member for Three Rivers (Mr. Bureau) says is no doubt correct. The courts of Ontario have had this point before them, and expressed the explicit opinion that a saving clause which the hon. member suggests should be added to section 197. No doubt that was the intention of the legislature in passing the 163

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Edward Frederick Clarke

Mr. CLARKE.

I think the passing of this amendment by the House would be a very retrograde step. There are two provisions in the law as it now stands. One of these forbids betting houses and the other is in regard to the registration on bets on horse races. I happen to reside in a city where we have horse races, where there is a great deal of betting, and I can say that there is no greater curse to the community than this race track. The horse races are incidental ; the gambling and betting is the main issue. I know nothing that has ruined more young men in that vicinity than this very race track. It has been my experience to have to prosecute several young men who were in trusted positions, but who had squandered the money of their employers, all traceable to this race track. The object of this Bill is to permit betting on a regular race track. There is nothing to prevent that at the present time ; there is nothing in the present law to prevent people betting if they choose to on the horse races. The decision in the Ontario case in which I happened to be interested, was that although you can bet all you like and register bets you are not to set up a betting stand or booth. In order to evade the law, they brought up a few old plugs to the race track, horses that could run perhaps ten miles an hour in order to show that this was a boua fide race track. The real attraction was the betting inside on the races at Latonia, Nashville and several other places. I see

no difference between betting on a race track and betting on races at Latonia, New ! Orleans Nashville or any other place. It seems to me that the House will be going far beyond proper limits in passing this amendment. Our law is the same as the English law according to the decisions in the Hanrahan and the Kempton Park cases. I say that there are enough means of fleecing the lambs of the Dominion without conferring any other facilities than what we have at the present time.

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LIB

Jacques Bureau

Liberal

Mr. BUREAU.

As far as the law in England in concerned, I have here a report in the London ' Times ' of April 5. 1905. of an Act recently passed in England, for the suppression of gambling on streets and other public places. The Act defines what gambling is and there is a special section of the law which says :

Nothing contained in this Act shall apply to any ground used for the purpose of a race course for racing with horses or adjacent thereto on the days on which races take place.

What we desire to exempt by this amendment are incorporated associations. There is a provision in the law. as the member for South Essex (Mr. Clarke) has said that betting can go on among individuals but all who have had to do with race tracks know that the betting on races is almost Invariably carried on by bookmakers. These two clauses are conflicting. Individuals may bet among themselves and are not guilty, of any offence, under 1h.i law, but still if they go to a certain place to bet, where the bookmaker carries on business, they are guilty. The object of the present amendment is uimply to mike the law uniform.

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Amendment agreed to. Yeas, 54; nays, 34. Bill as amended reported.


LIB

Louis-Philippe Brodeur (Minister of Inland Revenue)

Liberal

Hon. L. P. BRODEUR (Minister of Inland Revenue).

Mr. Speaker, there is objection I understand to the Bill being read a third time, and as there have been some amendments the third reading cannot go on except with the unanimous consent of the House.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

Of course there mist be m shmp practice, and if there is an - objection the Bill will have to stand.

Mr. SPEAKER When shall the Bill be read a third time ?

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

At the next sitting of the House.

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DEATH OF MR. L. J. DEMERS, M.P.

LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER (Prime Minister).

Before we resume the discussion upon the main queslion which lias been before the House for some time, it is my duty to inform the House that we have lost one Mr. CLARKE.

of oar confreres in the person of Mr. Demers, of Levis. Mr. Demers was a very quiet, unohtrusi.e member of this House, but he was at the same time a very intelligent and refined gentleman, and those who had (he pleasure of his acquaintance will deeply regret his loss. All the members of the House will unite in offering to his bereaved family their sympathies and condolences.

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Mr. I@

BORDEN (Carleton, Out.) Mr. Si eaker.. I am sure that on behalf of those who sit to your left, I can join most sincerely in the words of condolence which have just been uttered by the Prime Minister, and I can assure the family of the deceased gentleman that ail those on this side of the House who have enjoyed the acquaintance of the hon. member will extend to them their hearty sympathy in their bereavement.

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Mr. O. E.@

TALBOT (Bellechasse.) (Translation.) Mr. Speaker, it is with very profound emotion that I will add a few words of appreciation to those which have already fallen from the lips of the hon. Prime Minister (Sir Wilfrid Laurier), and the hon. leader of the opposition (Mr. Borden), with respect to the lamented Mr. Demers, member for Levis. Although his death was foreseen, it will none the less cause deep regret in this House.

The member for Levis was oue of my old friends. By his probity and high sense of honour, he had made his mark more distinct. He was esteemed and respected by every one. I think I voice the sentiments of all the members of the province of Quebec, nay, all the members of the House of Commons, who had the advantage of knowing him, in expressing here the profound regret that we feel on the occasion of his death.

Mr. Demers was a modest man ; but by his courtesy and urbanity, he had wou the respect and esteem of all his colleagues.

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PROVINCIAL AUTONOMY IN THE NORTHWEST.


House resumed adjourned debate on the proposed motion of Sir Wilfrid Laurier for the second reading of Bill (No. 69) to establish and provide for the government of the province of Alberta, and the amendment of Mr. R. L. Borden thereto.


CON

Edmund James Bristol

Conservative (1867-1942)

Mr. EDMUND BRISTOL (Centre Toronto).

Mr. Speaker, it is with a great deal of diffidence that I rise for the first time to address this House, the more so as I have the misfortune to come into this important debate after some of the most eloquent and able speeches connected with these Bills have already been made. I have not bad that opportunity for a full consideration of the remarks of hon. gentlemen in connection with the matter that I should like to have had, nor have I had the opportunity of either

hearing or reading all that has been said by hou. gentlemen. I have, however, read with a great deal of care the speeches whicn the right lion. First Minister (Sir Wilfrid Laurier) has made in support of this measure, as well as the speeches of the hon. Minister of Customs (Mr. Paterson), the hon. Minister of Finance (Mr. Fielding), the hon. ex-Minister of the Interior (Mr. Sifton) and the hon. member for Labelle (Mr. Bourassa), and I would very much indeed have desired to have read everything else that has been said on this very important subject, because, with the rest of the hon. members of this House and in common with them, I look upon it as the most important matter that has been before this House, as far as I know, since confederation. But, Sir, I am impressed by a further fact. This debate, in some measure, has drifted, I regret to say, into abuse. If there is one thing more than another that I admired in the speech of the right hon. First Minister in which he introduced this Bill, it was the suggestion that we should proceed to its consideration with calmness, with moderation and with some effort to conceive that others besides ourselves might have honest convictions in respect to this very important matter ; but I deeply regret that some of the followers of the right hon. gentleman have not seen fit to approach this important question with that feeling which the right hon. gentleman so well expressed. Why, Sir. how can it be fairly or reasonably said for one moment that the city of Toronto, in which I happen to live is bigoted and intolerant ? Were it a fact true, how disgraceful it would be to throw up to us that we were so ignorant, so far behind the rest of the people of this country in our knowledge of what is reasonable and just, how disgraceful that such language should be addresed to us rather than the language of kindness, consideration and conciliation ? I wish to say, Sir, that the constituency which I have the great honour to represent in this House, no later than the 25th of January last, gave a majority of 2,800 votes in favour of a Roman Catholic (Hon. J. J. Foy), and I want to say also that, bigoted as we are, or as we are said to be, we have the greatest affection and admiration for all our fellow- j countrymen, whether they are Catholics or I Protestants, whether they are of English. Irish, Scotch or French descent. We make and we endeavour to make no distinction, and I sincerely trust that no member of this House will in future feel constrained to use any such language as that to which I have referred towards any part of the province of Ontario. But, dealing for the moment with the constituency which I have the honour to represent, and for which I had the honour to be elected by acclamation, can it be said that this constituency, which, in 1896, sent a supporter of the right hon. gentleman to this House, and which at that time sent five opponents of the coercion of 163 o

Manitoba to this House, is a constituency which is guilty of bigotry and intolerance ? Of course as Orangemen and as Tories, people naturally expect abuse, but I did not think the Liberal party would be disposed to use any such epithets towards the leading Liberals of Ontario. Now, Sir, we have been told that there has been a-compromise in respect to this Bill. I will deal with that later ; but, Sir, if there is any compromise in respect to this Bill, what has been the lever that has brought about this compromise? Has it been the argument of my hon. friend the leader of the opposition (Mr. R. L. Borden) ? Not at all. If any compromise has taken place, it has taken place because of the vigorous, united and strong protests that have come to this House from nearly every7 Liberal constituency in Ontario. I venture to say that in 1896 no Liberal ever got a warmer, more enthusiastic, heartier or more cordial reception than that accorded to the right hon. First Minister, when he came to the city of Toronto. Mr. Speaker, if that was the feeling of the people in the city of Toronto, in 1S96, since when have they suddenly become bigoted and intolerant ? If their hearts and minds and feelings were stirred with admiration of the right hon. Prime Minister, then in a constituency which, in 1896, returned a Liberal candidate (the late Mr. Justice 'Lount), which, later on, returned a Liberal (Mr. Bertram), and which was barely wrested from the Liberal party in 1900, in a constituency which, in 1904, with the most popular candidate the Conservative party could put in the field, was barely won by such candidate (the late Mr. E. F. Clarke) by a majority of 200, how is it no Liberal candidate came forward in April last ? What was the change ? What facts had intervened ? The people were not bigoted in 1896. They objected to the coercion of Manitoba. What facts intervened between the election in November and the election by acclamation in April last ? Nothing assuredly but the introduction into parliament of these Bills. Now, Sir, I dare say it has been quoted to you, and I do not propose to dwell on this matter at length, but I do feel that some justice should be done to the people who honestly believe that this legislation is wrong, and that Liberal members of this House are misrepresenting the views and feelings of the Liberal party in this country. I wish to read a paragraph from what was once supposed to be the Liberal organ of this province, the ' Globe ' of April 19. It says :

But the point of capital importance, and which cannot be disproved by shutting one's eyes to its undesired existence or by shouting bravely that it does not exist, is the unmistake-ab'le fact that not in Toronto alone, but in scores of centres throughout this province the sanest and steadiest and most intelligent men cannot bring themselves to approve of the Dominion parliament, on any pretext whatsoever interfering in the educational affairs of the new

provinces. The men who make this objection are not Tories. They are not Orangemen. They are Liberals. They are, some of them, the men who give virility and prestige to Liberalism in their constituencies, and without whom there would be no Liberal party worthy of the name. To ignore the fact of their opposition, to minimize its significance, or to misunderstand its quality is to play the part of children in a situation which demands the wisdom and courage of men.

And wliat happened shortly before this editorial was written ? At a meeting in Massey Hall, which was addressed not by Conservatives, but by some of the ablest Liberals in tbe province of Ontario if not in Canada, the same spirit was evidenced. Let me quote to you remarks which I take as typical of the whole, and which were addressed to that great assembly by a gentleman who a short time before bad been offered the nomination of the Liberal party m North Toronto and who had refused it.

An hou. MEMBER. Who was that ?

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CON

Edmund James Bristol

Conservative (1867-1942)

Mr. BRISTOL.

It was Mr. Stapleton Caldecott. He said :

What Sir Wilfrid Laurier proposes is open to most serious objection, and for myself, with my previous admiration for this man, giving him my hearty service as a model statesman, for the moment I have lost my respect for his , judgment. (Hear, hear.) He has sought, almost in an indecent manner, to thrust upon this people a piece of legislation they will never submit to.

That statement was received by Liberal cheers at that meeting, and speeches in the same vein were made there by men of the type of D. E. Thompson, K.C., a Liberal lawyer known throughout the whole country, and by Rev. Dr. Milligan, a man most highly respected throughout this land. On behalf of such men, if I may be permitted to do so, I desire to repudiate tbe suggestion that they are either bigoted or intolerant, on the contrary, I could more truly describe them as patriots, as men who put principle above party, as men who were not quite so able as others were to cheerfully cast aside the political principles which during the last thirty years they had been educated in, by Mackenzie, by Blake, by Mowat, by Davies and by the right hon. the Prime Minister himself. And, Sir, if the Liberals in this parliament believe what they say, how unkind, how ungracious it was of them not to come to the great city of Toronto to talk with these brothers who were so misled, and to endeavour to convince them of their wrong. How much more courageous it would have been for the gentlemen opposite to have come openly to that city, and standing on the platform say, as the Prime Minister says in this House : 1 am standing where I stood in 1896. I can assure the Prime Minister that had he done so he would have addressed men who would have felt in the kindliest way towards him, Mr. BRISTOL.

and men whose minds and hearts were open to conviction. If the right hon. gentleman and those associated with him in the government of this country believe that they are standing where they stood in 1896,

I can assure them that the leaders of the liberal party who do not sit in this House have not been able to reach the same conclusion.

The subject under consideration seems to present itself in practically two ways ; first, bas tbe parliament of Canada tbe power to pass this legislation ? and, second, if it has the power, is it good policy to do so?

I would have thought, in view of tbe able, and so far as X have been able to read, unanswered argument of tbe leader of tbe opposition, that if it bad been at all possible to have saved this country the unfortunate discussion -which has taken place for the past two months, it would have been tbe part of wisdom, tbe part of good politics, and tbe part of good statesmanship to have endeavoured to do so. Assuredly, Sir, it the parliament of Canada bas no power to pass this legislation, then all these extraordinary appeals, able as many of them have been, in favour of separate schools or in favour of the Bill before us are idle and useless, and the country has been unnecessarily aroused and the time of parliament unnecessarily wasted. I wish for a few moments to direct tbe attention of this House to the important question as to whether the parliament of Canada has the power to puss this legislation. When the British North America Act was passed in 1S67, there was I venture to think, no power given to the parliament of Canada to carve out new provinces. The only section which deals with the admission of new provinces and with the admission of these new Territories-which by the way were then not part of Canada and are not possibly covered by tbe Act-tbe only section that deals with this at all is section 146, and I think the Minister of Justice will not endeavour to contend that under section 146 the parliament of Canada has the power to pass this legislation. I must confess that I would have considered it only fair to the members on this side of the House, if the Minister of Justice had been thoughtful enough at an early stage of this debate to have answered, if answer were possible tbe able argument of the hon. the leader of the opposition. His silence has placed us in the position that we are compelled in advance to criticise a proposition which should have been established beyond all doubt by the government. The onus does not lie on us to show that this parliament has not the power to pass this legislation ; the onus lies on the government to show parliament that we have that power. And, after such an able answer as the leader of the opposition made to the argument of the Prime Minister, it was due to the House-if there was any

further light to be thrown on this constitutional question-that we should have had an opportunity, as early as possible, of hearing a pronouncement from the Minister of [DOT]Justice. I say, Sir, that there is no power contained in the British North America Act to carve out new provinces, but, there was a power given in that Act to admit these new Territories which were not then part of the union. They were therefore, not covered by section 93 of the British North America Act at that time, because they were not in the Dominion of Canada at all, they being under the Hudson Bay Company under the imperial parliament. It takes some further enactment to bring them under that section. Having got those Territories into the Dominion under the Act of 1870, the province of Manitoba, in advance of legislation by the imperial parliament, was carved out of these Territories by the parliament of Canada, but, it does not at all follow that if this parliament assumed jurisdiction to carve out the provinces, therefore the legislation was iutra vires. The parliament of Canada evidently thought they had not the right to do so, and shortly afterwards there was legislation in this regard, passed by the imperial parliament, and the same imperial legislation which validated the Manitoba Act, for the first time gave the parliament of Canada the power to carve provinces, out of these new Territories. I call the attention of the House to section 2 of the Act of 1871, which gives this power, because if this power is not in the British North America Act, there is no inherent power in the parliament of Canada to create these provinces ; and for this reason, that any power the parliament of Canada has in respect to this legislation must of necessity come from the imperial parliament, and until the Act of 1871 was passed, the imperial parliament alone had the power to carve out these new provinces. So, Sir, if my argument is correct, the parliament of Canada as representing the imperial parliament, has just that power to carve out provinces, which the imperial parliament gave her. Let us look at what the power was that the imperial parliament gave to the parliament of Canada. Section 2 says :

The parliament of Canada may from time to time establish new provinces in any territories farming 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.

I call special attention to the clause:

The parliament of Canada may from time to time establish new provinces, and may at the time of such establishment make provision for the constitution of each province.

It does not say any constitution which the parliament of*Canada may think proper to establish; but It says that It may make provision for the constitution; and in 1886 was passed the Act which provided that this Act of 1871 and the Act of 1807 should be read together. Now, Sir, what happened ? Simply this, that if the Act of 1871 Is to be construed as part of the Act of 1867, then assuredly the parliament of Canada, in exercising the power to give a constitution, has only the right to give such a constitution as the earlier sections of the empowering Act permitted it to give. In other words, if the imperial parliament in the later section of the Act says, you may carve out a province and give it a constitution, in the earlier sections it says the constitution must be thus and so. Where, then, does the parliament of Canada get the power to vary that constitution ? The imperial parliament, in section 92 of the British North America Act, provides what shall be the exclusive powers of provincial legislatures, and in section 93, dealing with education, it says :

In and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions.

Then the subsections follow. What I desire to submit to the consideration of this House is that the power having been given by the imperial parliament to this parliament to make the constitution, the section which gives that power being part of the Act which provides the special constitution and powers of the province, the only power which this parliament has in tilts matter is to give these new provinces the constitution which the British North America Act has provided, and no other. Mr. Clement, in his work on the Canadian Constitution, confirms this opinion. The late Hon. David Mills expressed similar views. If this, then, is a correct interpretation of that Act, then I consider it a most unfortunate thing that we have had this unhappy discussion in this House and throughout the newspapers of the Dominion ; and, Sir, if I may be permitted to offer a criticism of the right hon. the Prime Minister, I must confess that I felt that it was most unfortunate, if he stood on the rock of the constitution, that he should have thought proper to have introduced this measure with a speech containing a eulogy of separate schools as against national schools, which he above any other man knew mus,t stir up the strongest feelings and prejudices of every Protestant in this country. If there was one method of proceeding with the consideration of this matter which could have caused anything but calmness and moderation, the speech of the right hon. the Prime Minister was that method.

Now, assuming for the moment that parliament has the power to pass legislation

of this character, the speakers on the other side of the House who followed the hon. leader of the opposition, seemed to base their argument upon the idea of compromise and policy. I would like for a moment to consider whether there has been any compromise; and the best way to see whether there has been or not is to examine the sections of the Bill under discussion. Section 16 of the Bill as originally presented read as follows :

The provisions of section 93 of the British North America Act, 1867, shall apply to the said province as if, at the date upon which this Act comes into force, the territory comprised therein were already a province, the expression ' the union ' in the said section being taken to mean the said date.

If section 93 is applied to one of the new provinces as if it were a sovereign province which had come into the union on the 1st of July, 1905, it is beyond question that subsection 1 of that section would apply to it, that subsection being as follows :

Nothing in any such law shall prejudieally affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.

Wliat follows ? It is quite plain that the laws that are given effect to by that subsection are the ordinances of 1901, chapters 29, 30 and 31, because these are precisely the laws relating to denominational school's which will be in existence in the new provinces on the 1st July, 1905. When I examine the amended clause, what do I find ? I find that that which is supposed to be a compromise reads as follows :

Nothing in any such law shall prejudieally affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapter 29 and 30 of the ordinances of the Northwest Territories, passed in the year 1901.

Precisely the same as the other in every particular. But there is another clause of section 16, subsection 2, which the hon. the ex-Minister of the Interior (Mr. Sifton) emphasized as introducing the law in relation to separate schools contained in the Act of 1875. If anybody should be acquainted with the provisions of the school law of the west, it is the hon. the ex-Minister of the Interior. But there is another authority whom we have had tile good fortune of hearing on this subject. although the right bon. the Prime Minister apparently considered him a man of no importance when this matter was under discussion; that is, the hon. the premier of the Territories; and he has been good enough to give us some light on this question. He has pointed out that section 41 of chapter 29 of the ordinances of 1901, which is now being brought into force, is a provision creating separate schools in the Mr. BRISTOL.

same words as those of subsection 2 of section 16 of this Bill. So, Sir, the introduction of this additional section was like putting up a straw man to knock him down, and then taking him out and saying, look what we have done ; because that statutory provision is not a mere regulation order in council which can be repealed, but is a statute law conferring the same right which the ex-Minister of the Interior said was conferred by the Act of 1875.

But that is not all. The third and final subsection of this much criticised section 16 provides as follows ;

In the appropriation of public moneys by the legislature in aid of education, and in the distribution of moneys paid to the government of the said province arising from the school fund established by the Dominion Lands Act, there shall-he no discrimination between the public schools and the separate schools, and such moneys shall be applied to the support of public and separate schools in equable shares or proportion.

What does the new section say :

In the appropriation by the legislature or distribution by the government of the province of any moneys for the support of schools organized and carried on in accordance with said chapter 29 or any Act passed in amendment thereof, or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.

What are the schools described in the ciauses of chapter 29 of the Northwest ordinances ? Why, they are the separate gehools provided by section 41 of the statute of 1875 which I have just read. And if I understand the question at all, I venture to say that there is no difference in principle or substance between the amended clauses now presented and the clause originally introduced. What then becomes of this extraordinary much vaunted compromise ? But let us assume that what is now provided is the law as it is at present in the Northwest Territories. I would like to ask if anybody in this House is able to say what that law is. We are told that if this Bill be passed, everything will be lovely, there will be no litigation, and everybody will be happy. Well, Mr. Speaker, in view of the statement made by the ex-Minister of the Interior (Mr. Sifton) that the amended section 16 is a great compromise and practically introduces and makes permanent national schools in the new provinces-separate schools existing in name only-and in view of the contrary statement which my hon. friend the leader of the opposition has made, namely, that there is no difference in substance or principle between the original and the amended clause 16, in view of the statement made by the First Minister of the Northwest Territories (Mr. Haultain) to the same effect, which statement I have just endeavoured to make plain by an examination and comparison of the original

and amended clause 16, and in view of other statements we have had to the very opposite effect from other authorities in tins House. I venture to say that no one can tell what this legislation we are asked to pass will eventually be found to mean, bet us consider for a moment what the effect of this measure is likely to be. The Act of 1875, which introduced separate schools into the Northwest, was very fully dealt with by the ex-Minister of the Interior. The hon. gentleman pointed out what, in his judgment, were the great defects of that system- what he calls the dual system of education. But if the ex-Minister of the Interior was correct in stating that this dual system and all the evil which he describes as following from it are embodied in the Apt of 1875, section 14, and if the very ' section of the Act of 1875 establishing separate schools is to be reenacted by this parliament, word for word, for all time to come, how can he escape the conclusion that by this measure we will be planting irrevocably in the west this inefficient and useless system, for the weeding out of which in Manitoba lie took so much credit ? But how has the change from the inefficient to the efficient system which the ex-minister describes to the one now existing in the Territories been brought about ? That there is at present in the Territories what many people consider a good system is proved by the testimony of men who ought to know. Well, the change has been brought about in this way. In the Territories we have a Commissioner of Education whose position is similar to that of the Minister of Education in the province of Ontario, and the Territorial government assumed the responsibility of choosing the text-books and administering educational matters generally. That they did by virtue of certain regulations which were adopted from time to time and not by amendment to the statute of 1875. It is by virtue of these regulations which have been adopted from time to time, and which may be repealed from time to time that the present school system in the Territories has been established. But if these regulations have gone beyond the statute of 1875, if they have taken away any rights to which the minority are entitled, they were ultra vires, they were beyond the power of any Commissioner of Education of the Northwest Territories to pass. If that be the case, what will happen ? This will no doubt ensue. Once the measure before us becomes law, the minority will have the right to declare that they propose to have the statute of 1875 applied to their claims and privileges in its integrity. They will protest that their rights have been shamefully taken from them by regulations which have not the power of the statute law and are in contravention of the statute law, that the essential section of the statute of 1875 dealing with the right to separate schools

has been re-enacted by this parliament, and they have the absolute right to have any regulations made in contravention of that statute declared null and void. They will be entitled to decline to obey these regulations or to permit their enforcement and to demand their abrogation. The ex-Minister of the Interior (Mr. Sifton) lias declared that in 1892 a law was passed which swept away separate schools in the Northwest. Well, we have the statement of the Premier of the Northwest Territories that whatever change was made in the Territories was made by these very repealable regulations which were passed by the Commissioner of Education with the consent of Catholics and Protestants alike and not by changes in the statute. It is not, therefore, in virtue of any statute that the educational system for the Northwest is what it is to-day. but because of certain regulations passed by the Commissioner of Education for the Northwest Territories and against which so far no appeal has been taken by the Catholics, but which the Catholics could have appealed against if they chose and can later on appeal against and have abrogated if they in any way contravene the statute law giving the right to separate schools which law, if this clause 16 goes through, will be the same as it was in 1875.

Let us deal for a moment with the question of policy. It has been stated by hon. gentlemen opposite that if we should adopt this measure, there will be no more trouble, no litigation, no unpleasantness, and that the duty and obligation rests on this parliament to deal with this matter and settle it for all time. But I submit first of all that if the Dominion parliament has not the power to pass this legislation, then the only result of our passing it will be to provoke litigation in order to determine our jurisdiction. In the second place should the courts hold that this parliament has power, the people of the Territories-who. if this legislation were not passed, would no doubt treat with fairness and justice every class of the community- considering themselves oppressed by a law, in the passing of which they had no voice, would resent its application and decline to obey it. And then, in all probability, we would have the parliament of Canada again called upon to exercise its remedial power. In that connection I wish to say that, so far as I am able to appreciate the jurisdiction of this parliament, it has no power to deal with the subject of education except by virtue of subsection 4 of section 93, and there it has only power to deal with it in certain circumstances. Nowhere else in the Act is this parliament given the power to deal with that subject generally, and I would ask hon. gentlemen opposite whether they would consider for one moment that the Dominion parliament can have general power to deal with the subject of education when by the Confederation Act that parliament is only given the jurisdiction to

liaps more in view of an utterance of the last speaker than for any other reason. The last hon. member who addressed the House (Mr. Bristol) took occasion to remark that when this Bill was originally introduced by the Prime Minister (Sir Wilfrid Laurier), he invoked moderation on the subject from all those who discussed the measure. The hon. member for Centre Toronto (Mr. Bristol) was inclined to praise the right lion, the leader of the House (Sir Wilfrid Laurier) for having asked for moderation, and having himself set an example of moderation in his speech. But a few moments later, the hon. member for Centre Toronto changed his tone in this respect and said that the eulogy pronounced by the Prime Minister on separate schools stirred up the resentment of every Protestant in this House. M hat then does he think of the eulogy or complimentary apostrophe that was 'pronounced in respect to the minority, in respect to the Roman Catholic electors of this country by his own leader, the leader of the opposition (Mr. It, L. Borden) ? Now that hon. gentleman, I think, went a little out of his way in the course of his speech to eulogize the Roman Catholic minority. It was not necessary for him to do so for the purposes of his argument. However, I have no doubt that the Roman Catholic electors of the Dominion of Canada will be very much gratified by that eulogy, although it came to them in a sort of backhanded, apologetic manner, for at the same moment the opposition leader said that he could not support their claims, that he rested his case solely on the rock of the constitution, as he understood it, but he gave them not one single hint of what he would do provided this were a constitutional measure and this parliament had power to deal with this question of education in the Bills now before us.

Before entering upon an examination of the case, as one might put it, I might say that I listened with great care to the speech of the hon. member for Centre Toronto (Mr. Bristol), who has preceded me. I congratulate the hon. member on his maiden effort in this House. He certainly has succeeded a great man, who formerly represented that riding in this House, a man who had the affection of every member in this House, a man whose good judgment and whose ability were well recognized. The hon. member is the follower in Centre Toronto of a great man, and I might express the hope that at some day in the future the hon. member who has just resumed his seat may be able to fill the place formerly occupied by Mr. E. F. Clarke, now deceased.

In taking the stand I do on this measure it becomes necessary to go into a somewhat critical analysis of the whole constitution or of the British North America Act, and the Acts which bear upon it. I do not desire, and I do not find it necessary, for my purpose, to make more than passing reference to conditions which existed prior to Mr. GUTHRIE.

confederation. There is no doubt that the British North America Act, 1867, was the outcome of a compact or agreement. It is not the outcome strictly speaking of imperial legislation or imperial will, but it is the result of agreement between representative men from Ontario, Quebec, New Brunswick and Nova Scotia, and in the Act of 1S67 we find their agreement consolidated and put into legal shape by the imperial government. As I read that Act, I find in only two places reference of any kind made to any other provinces or territories. In , the preamble of the Act it is true there is a slight reference to what might happen in the future. In the preamble we find this clause :

And whereas it is expedient that provision be made for the eventual admission to the union of other portions of British North America.

And in section 116 we find a direct reference to the provinces or colonies of British Columbia, Prince Edward Island and Newfoundland, and a direct reference to Rupert's Land and the Northwest Territories. Now, can it be argued for a minute that these colonies or provinces or territories, which had no part in the making of the British North America Act, were parties to the agreement or compact which it embodies ?

I submit the Act was framed solely and exclusively on the agreement of the delegates from the provinces which were interested as the original provinces coming into confederation. Now, I think that the statement of my hon. friend the leader of the opposition (Mr. R. L. Borden) in regard to the general purview of the British North America Act, 1867, contains a very fair analysis of what that Act was, and I think perhaps I might read that statement by the hon. leader of the opposition, found in his speech at page 3077 of ' Hansard.' He says there :

Analyse the British North America Act so far a.s analysis is necessary for the purpose of considering this question and what do you find? In the first place you find the establishment of a federal parliament and a federal executive ; in the next place you find the establishment of provincial legislatures and provincial executives ; in the next place you find the distribution of executive power between the federal executive and the provincial executive, and in the next place you find the distribution of executive power between the Dominion parliament and the provincial legislature. This analysis is not exhaustive, but it covers all that is necessary for the present purpose.

I submit that that is a very fair analysis of tbe Act, and I would point out that in section 91 of the Act we find the subjects ^ which are to be entirely dealt with by this parliament. In section 92 of the Act we find enumerated all the matters which are to form the subjects of provincial legislation. Now, Mr. Speaker, marking these two sections, examining them carefullv, we find that section 91 distinctly applies to

Dominion jurisdiction and that section 92 distinctly and exclusively applies to provincial jurisdiction, and we find in neither of these sections any mention of the question of education. That is a fact that may well be pointed to. Why is it so ? It is because education was not given exclusively either to the provinces or to the Dominion and it is wrong to say as many hon. members have said, that education is exclusively within the jurisdiction of the provincial legislature. It it were so it would form part of section 92, but it is put in a section of the Act which we in this House are all familiar with, section 93, but in order that my statement on this point may be a complete one, I am going to incorporate that section with my remarks. Section 93 reads as follows :

In and for each province the legislature may exolusively make laws in relation to education, subject and according to the following provisions : ...

1. Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.

Subsection 2. I need not read as it applies exclusively to Ontario and Quebec.

3. Where in any province a system of separate or dissentient schools exists by law at the union or is thereafter established by the legislature of the province, an appeal shall lie to the Governor General in Council from any Act or decision of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education.

Section 4 is tile remedial clause wbicb i need not read. Now it is argued that tbe subsections following section 93, only applied to the original provinces coming into this union. Subsection 2 certainly covered tlie case of Ontario and Quebec. It is argued that subsections 1, 3-and 4 only applied to Nova Scotia and New Brunswick. Mr. Speaker, I do not think such an argument is tenable for oue moment. The language of the section itself is clear enough upon that point. In the section aud in each subsection the language is :

In and for each province

Then in the subsection :

Nothing in any such law1 shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.

In subsection 3 again reference is made to rights and privileges held in the provinces at the union. I do not take that to refer merely to Nova Scotia and New Brunswick, but to any province or colony of the Dominion coming within the four corners of the British North America Act, 1867. Can there he any doubt that when section 93 was framed it was framed in reference to Ontario and Quebec probably more particularly, because, in the Quebec resolutions, Ontario and Quebec are the only provinces we find mentioned in regard to education and in regard to the right to have separate schools ? But, in section 146 other provinces or colonies are enumerated, and as each of these provinces or colonies would come into the union I submit that they would be entitled to all the benefit to be derived from subsections 1, 3 or 4 or section 93 of tbe British North America Act 1867.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

May I ask tbe bon. gentleman (Mr. Guthrie) a question ? He is dealing with the Act that was brought back from tbe imperial parliament and going back to the resolutions upon wbicb that Act was based. Tbe Act was to be in exact accordance with tlie resolutions. In these lesolutions there is assigned to tbe provinces the power to legislate upon education saving the rights and privileges that the Protestant or Catholic minority of both Canadas may possess as to their denominational schools at the time the union comes into operation. That saving clause had leference only to Canada east and Canada west. Then, before that, when a motion was made by one of the members that this Act should not be accepted until it was brought back and assented to by the Canadian parliament, Sir George Cartier gave a strong assurance in the following words :

Mr. Speaker, in reply t>o what the hon. member for Hoehelaga has jnst said, I shall merely tell hon. members of this House that they need not take alarm at the apprehensions and predictions of that hon. gentleman. I have already declared in my own name, and on behalf of the government, that 'the delegates who go to ring-land will accept from the Imperial government no Act but one based on the resolutions adopted by this House, and they will not bring back any other.

They accepted that assurance. They gave that as a reason why it was not necessary to have that Act submitted to the Canadian parliament when it came back. Does that not show the intention of the delegates in regard to education in framing the original rf solutions ?

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LIB

Hugh Guthrie

Liberal

Mr. GUTHRIE.

What the hon. member for East Grey (Mr. Sproule) says may be correct, but I have not to go back to preconfederation days. I have to examine the case from the Imperial Act that we have and from the clauses which are in the Act. I have understood from some reading I have done on the subject that the original Quebec resolutions were altered in London, England, before tbe British North America Act. 1867, was actually passed, but we have to deal with the statute as it stands to-day and we have to endeavour to interpret this statute just as we would interpret any other statute known to the law of this country or the mother country.

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May 1, 1905