March 10, 1914

CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Mr. BORDEN:

Possibly the observation of my hon. friend is not very relevant to what I was about to say. I was merely pointing out that the so-called basis of representation in the Senate, which I have never considered as very reasonable or satisfactory- .

Topic:   I486 COMMONS
Permalink
LIB
CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Mr. BORDEN:

It was absolutely arbitrary. Without exceeding any power which is given to us in connection, with Alberta and Saskatchewan, this Parliament, if it had seen fit to do .so, could have given Alberta and Saskatchewan each a hundred members in the Senate. That would have disturbed any supposed basis of representation in the Senate but I suppose that those who passed the Imperial legislation, to which allusion has been .made, thought that they might safely entrust so extensive a power to a great deliberative assembly such as this in the firm expectation that the power would not be abused. It was not abused in connection with Alberta and Saskatchewan. I do not think that any abuse arises in this proposal respecting the province of Manitoba, because that province has a larger population than Alberta and practically the same population as Saskatchewan.

As far as the representation of Ontario, Quebec and the Maritime provinces is concerned, there does not seem to be any definite principle upon which it was fixed, as my right hon. friend has observed. Ontario was given 24, Quebec was given 24, and the Maritime provinces were given 24 members of the Senate. Nova Scotia and New Brunswick originally had 24 altogether, but it was provided by the British North America Act that upon the admission of Prince Edward Island, Nova Scotia and New Brunswick should be decreased by two each and Prince Edward Island should be given four. Then a further provision was made with regard to an extraordinary increase in the

Senate under certain conditions and upon certain formalities; and it was provided that each of these three districts-Ontario, Quebec and the Maritime provinces-should be regarded as a distinct district for the purpose of any such increase, and that an equal number should be allotted to each of these three districts. Apart from that, it is very difficult to discover any principle upon which the constitution of the Senate was originally fixed. It was not fixed, as in the United States, upon equal representation from all the provinces. It was not fixed upon the basis of representation by population. It was, as my right hon. friend says, absolutely arbitary. I observe the arguments which he has made to which I shall give my best consideration, and which I shall bring to the attention of the Deputy Minister of Justice and to the attention of the Minister of Justice as well, and I shall be prepared to go more fully into the question upon the second reading, if that will meet with the approval of my right hon. friend.

Topic:   I486 COMMONS
Permalink
LIB
CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Mr. BORDEN:

I shall be very happy to place the memorandum, perhaps in a more elaborate form, on the table of the House, and I will send .a copy to my right hon. friend before the Bill comes up again.

The point of difference between us is a pretty narrow one. My right bon. friend considers that we could have given to that territory two additional members if it had not been -added to the province of Manitoba, but he thinks that when that territory is added to the province, we cannot increase -the representation in the Senate of the extended province, which consists of the former area of Manitoba and the area added in 1912. It simply comes down to that point, and I will give my best con-

sideratiom to my right hom. friend's opinion on the subject, and to the arguments which he has put forward in support of that opinion.

Topic:   I486 COMMONS
Permalink
LIB

Alexander Kenneth Maclean

Liberal

Mr. A. K. MACLEAN:

There was no

territory added for which this Parliament had jurisdiction to increase the senatorial representation.

Topic:   I486 COMMONS
Permalink
CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Mr. BORDEN:

It depends altogether on that addition.

Topic:   I486 COMMONS
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

I could not exactly follow the right hon. gentleman (Sir Wilfrid Laurier) in the distinction he made between the power given in regard to senatorial representation for a province newly [DOT]created and the power to give additional senatorial representation to a province when territory is added to it. I understand from the right hon. gentleman that he considers that the power to give senatorial representation to a newly created province results from the provision he has read of the Act of 1886.

Topic:   I486 COMMONS
Permalink
LIB

Wilfrid Laurier (Leader of the Official Opposition)

Liberal

Sir WILFRID LAURIER:

No, the Act of 1871. That is the Act that gives power to make new provinces.

Topic:   I486 COMMONS
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

It does not say anything specifically about senatorial representation.

Topic:   I486 COMMONS
Permalink
LIB

Wilfrid Laurier (Leader of the Official Opposition)

Liberal

Sir WILFRID LAURIER:

But that is

corollary to the making of new provinces.

Topic:   I486 COMMONS
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

At all events, the Parliament of the United Kingdom, when it passed the: Act of 1886, seemed to consider that it was just as necessary in one oase as in the other for it to pass this ratifying clause. That Act provides that Acts theretofore or subsequently passed for two different purposes should be effective, and that:

The number of senators or the number of members of the House of Commons specified in the last-mentioned Act is increased by the number of senators or of members, as the case may be, provided by any such Act of the Parliament of Canada for the representation of any provinces or territories of Canada.

This, I say, applies both to the purpose mentioned in this Act and in the British North America Act, 1871, and the purpose of the Act of 1871 was to permit, not merely of the creation of new provinces, but of the addition of territory to existing provinces. Now, it seems to me that if that Act ratifies previous and future legislation fox tile purpose mentioned in the Act of 1871 and also ratifies legislation for the pur-

pose of this particular Act of 1886, it must be because both equally require such ratification and are equally ratified. It seems clear, and the only question possible would be that of the wisdom or unwisdom of confiding the power to us. It does seem to me that it applies as clearly to the Act of 1871 as to the Act of 1886.

Topic:   I486 COMMONS
Permalink
LIB

Wilfrid Laurier (Leader of the Official Opposition)

Liberal

Sir WILFRID LAURIER:

I regret to say I cannot agree with that interpretation at all. I have only to refer my hon. friend to the very Act of 1871 to show him that the power to create a province is plenary, that is, does not require confirmation by anybody. It provides:

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.

It could hardly be made more clear that the powers granted are plenary: the British Parliament gives absolute authority to create provinces and to provide for their representation. Therefore, when, in the Act of 1905, we enacted that the province of Alberta and Saskatchewan should be represented on the floor of this House in a certain way, we had full authority to do so. On the other hand, we cannot increase the boundaries of a province except with the consent of the local legislature. Therefore, it seems to me, our powers there are limited. The whole question rests upon the interpretation of the Act of 1886. The terms of that Act are ambiguous, but I do not think they go so far as is claimed by the hon. minister, as I understand him.

Topic:   I486 COMMONS
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

One of the purposes oi the Act of 1871 is to provide for increasing the territory of a province. The Act of 1886 says that any legislation enacted for the purposes mentioned in that Act or in the Act of 1871, shall have effect, and an increase of or alteration of the limits of a province is one of those purposes and that an increase of senators by any such Act shall take effect. According to the right hon. gentleman, so far as the exercise of powers conferred by section 2 of the Act of 1871 is concerned, there was absolutely no need for any ratification. But the fact that the Imperial Parliament by the Act of 1886 ratifies legislation enacted for the purpose of the Act of 1871 must mean that

such legislation was of a nature to require ratification. It seems to me that if we take the power conferred by section 2 as absolute, then the ratification of the legislation enacted for the purpose of the Act of 1871 by the Act of 1886 could only have been intended to apply to that kind of legislation enacted for the purpose of the Act of 1871 which was enacted under the power conferred. by section 3, and that is the kind of legislation under consideration.

Topic:   I486 COMMONS
Permalink
LIB

Alexander Kenneth Maclean

Liberal

Mr. A. K. MACLEAN:

Would the Minister of Justice tell the committee what interpretation he puts on section 6 of the Act of 1871, which relates particularly to the province of Manitoba?

Topic:   I486 COMMONS
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

I do not precisely see

how that bears upon the question with which we are now dealing. Section 6 of the Act of 1871 seems to have declared that Parliament should not have the power to alter the provisions of the last mentioned Act in so far as it relates to the province of Manitoba or to any other Act hereafter establishing new provinces in this Dominion, except in the exercise of the power confined in section 3 to increase or diminish the territory of provinces, etc.

Topic:   I486 COMMONS
Permalink
LIB

Alexander Kenneth Maclean

Liberal

Mr. A. K. MACLEAN:

I think the position taken by the leader of the Opposition is a very substantial one. I am inclined very much to doubt the authority of Parliament to increase the territorial representation of Manitoba or British Columbia, upon the theory that as the Act establishing these provinces and providing for their representation in the Senate becomes a part of the British North America Act, any amendment to it is beyond the jurisdiction of Parliament. The idea i.s set forth in Clement's Canadian Constitution, in this way:

Upon the passage of an Act forming a new province, such Act at once passes heyond the competence of the Dominion Parliament, ancl the representation allowed such new province in the Senate is therefore incapable of increase or decrease except by Imperial legislation.

The Imperial Parliament alone is seized of the jurisdiction to increase the territorial representation of Manitoba or British Columbia. So far as the provinces of Alberta and Saskatchewan are concerned, I think the jurisdiction of Parliament to make the increase is clear, because under the Act establishing these provinces provision was made for senatorial representation and for a further increase of that representation. That power, therefore, is

clearly within the jurisdiction of this Parliament under the provisions of section 2 of the Act of 1871, which are as follows:

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.

That was the authority for this Parliament to establish the provinces of Alberta and Saskatchewan and to give them representation in the Senate and in the House of Commons. When this authority is once exercised, our power and jurisdiction is exhausted and we cannot grant further representation. In the case of the province of Manitoba, which was established under the Act of 1870, provision was made for that province's representation both in the Senate and in the House of Commons. Section 3 of that Act provided for further representation of that province in the Senate when the population reached a certain figure. But I submit that when that Act was passed, providing for the representation of that province and for a later addition to that representation contingent on an increase of population, our jurisdiction became exhausted and we have not now the power to deal with it; that power rests entirely with the Imperial Parliament. Section 6 of the Act of 1871 particularly prohibits further legislation by this Parliament in relation to Manitoba. It 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 Parliament in so far as it related to the province of Manitoba.

The last mentioned Act referred to is the Act establishing the province of Manitoba. That section continues:

Or of any other Act hereafter establishing new provinces in the said Dominion, subject always to the right of the legislature of the province of Manitoba to alter from time to time the provisions of any law respecting the qualifications of electors and members of the legislative assembly, and to make laws respecting elections in the said province.

This section specifically prohibits this Parliament from further dealing with the senatorial representation of the province of Manitoba. As I have already said, I think the reason is that once an Act is passed establishing a province, under which Act we exercise the powers granted us by

the constitution, those powers are thereafter limited and such Act becomes a part of the British North America Act. It is conceded that we have not the power to amend the British North America Act, and therefore in this case we must resort to the Imperial Parliament if any further representation is desired for any province.

I agree with the right hon. leader of the Opposition that the section of the Act of 1886 which the Minister of Justice invokes in support of his position, was intended merely to refer to the representation of territories in the Senate and in the House of Commons, and not to anything else. The representation of any province in the Senate would be insecure if the power rested with this Parliament to change arbitrarily from time to time the representation in the Senate merely because of an increase or diminution of territory. Therefore, this Parliament, once having exercised its jurisdiction in providing representation for the province of Manitoba, has exhausted that jurisdiction; such Acts are part of the British North America Act, and it is beyond our power bo amend them.

Topic:   I486 COMMONS
Permalink
CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Mr. BORDEN:

I do not think my hon. friend has appreciated the argument of the hon. Minister of Justice. If he refers to the second part of section 2 of the Act of 1886, he will see that it is declared that:

Any Act passed by the Parliament of Canada, whether before or after the passing of this Act, for the purpose mentioned in this Act or in the British North America Act, 1871, has effect, notwithstanding anything in the British North America Act, 1867, and the number of senators or the number of members of 4 p.m. the House of Commons specified in the last-mentioned Act is increased by the number of senators or of members, as the case may be, provided by any such Act of Parliament of Canada for the representation of any provinces or territories of Canada.

Therefore, in order to ascertain whether or not the Act of 1912 was within the competence of this Parliament, it is necessary to look at the Act of 1871 and what its purpose was. If you look at the Act of 1871 you see that it has a two-fold purpose.

Topic:   I486 COMMONS
Permalink
LIB

Alexander Kenneth Maclean

Liberal

Mr. A. K. MACLEAN:

From recollection, could the right hon. gentleman tell me if the Act of 1912, providing for the increase of the boundaries of Manitoba, was made part of the British North America Act?

Topic:   I486 COMMONS
Permalink
CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Mr. BORDEN:

No, it is not part of the British North America Act. It is an Act passed by virtue of the British North America Acts, 1867 to 1886. The purpose of

the Act of 1871 was twofold: first, to enable this Parliament to establish new provinces out of the territories; and, secondly, to enable this Parliament to add to the boundaries of any province or to take away from the boundaries of any province. But it could not add to or take away from the boundaries of any province without the consent of that province. Therefore, as I have said, the purpose was twofold. But any Act passed for the purposes mentioned and set forth in the Act of 1871 is distinctly declared by the Act of 1886 to be valid and within the competence of this Parliament, with special reference to representation in the Senate and the House of Commons.

Topic:   I486 COMMONS
Permalink

March 10, 1914