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:

My hon. friend is mistaken. It would have been competent for us when we passed the statute increasing the boundaries of those provinces to have

provided for an increase of the representation of those provinces in the Senate; but after the Act has once been passed it would not be possible for us to do it.

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LIB
CON

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

Conservative (1867-1942)

Mr. BORDEN:

When I speak of increasing, I of course allude to a provision for increase. I do not mean to say that it has to be done by legislation at the time. Just as in the case of a new province, so in the case of a province whose boundaries are extended, provision in the statute constituting the province, or provision in the statute adding to the boundaries of .a province, may of course be implemented by the Parliament of Canada according to the conditions therein laid down, and to my mind there is no distinction between the case of creating a province and the case of adding to a province so far as that particular feature is considered.

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LIB

William Manley German

Liberal

Mr. GERMAN:

I think the right hon.

leader of the Government settled the law himself when he said that when the number of senators was fixed by the additioa of a territory to the Dominion of Canada that number of senators could not be increase! by the Parliament of Canada; but he says: If you add to the territory, you can increase the number of Senators. Is that the suggestion of my right hon. friend?

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CON

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

Conservative (1867-1942)

Mr. BORDEN:

Provide for the increase.

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LIB

William Manley German

Liberal

Mr. GERMAN:

For its increased representation in the Senate according to its increased territorial area. If that is the proposition of the right hon. gentleman it seems to me a very singular one. The light hon. gentleman must know that when Manitoba was made a part of the Dominion of Canada its representation in the Senate was fixed by Act of Parliament, and that representation cannot be changed, assuming that its territorial area is not changed. Does the right hon. gentleman say that Manitoba's representation in the Senate can be changed by any Act of this Parliament?

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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 irrelevant to my argument to say any such thing, and I have not said any such thing.

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LIB

William Manley German

Liberal

Mr. GERMAN:

I understood my right

horn friend to say that. I myself cannot imagine why there should be any dispute about the interpretation of the British North America Act and its amendments. The Act of 1867 provides that Ontario and Quebec and the Maritime provinces shall have certain representation, which is fixed, and I apprehend that my right hon. friend will not say that that representation could be changed excepting by an amendment to the British North America Act. And further, (reading):

If at any time on the recommendation of the Governor General the Queen thinks fit to direct that three or six members be added to the Senate,-

That may be done. But that does not arise in this particular case. Again:

The number of members of the House of Commons may be from time to time increased by the Parliament of Canada, provided the proportionate representation of the provinces prescribed by this Act is not thereby disturbed.

The number of members of .the House of Commons-that is expressly stipulated; and the numbers of senators is also expressly stipulated; but I submit, with all deference to superior opinion, that this Parliament cannot increase the number of senators provided for by an Act which brings a territory into the Dominion as a province. That is fixed. Your authority is settled by section 52 of the British North America Act:

The number of members of the House of Commons may be from time to time increased by the Parliament-

And the leader of the Government and the Minister of Justice will agree with me that the number of senators cannot be increased except by amendment to the British North America Act. By the Act of 1867, the number of senators from New Brunswick and Nova Scotia were to be reduced by the number of senators which Prince Edward Island was to have. They were only to nave the same number as Ontario and Quebec bad. (Reading):

British Columbia shall be entitled to be represented in the Senate by three members and by six members in the House of Commons.

I would like to ask my right hon. friend the leader of the Government, if he thinks that the representation in the Senate of British Columbia could be increased without imperial legislation. The Order in

Council under wmch British Columbia was admitted into the Dominion of Canada, says that:

British Columbia shall be entitled to be represented in the Senate by three members and by six members in the House of Commons.

The British North America Act provides that the representation in the House of Commons can ' be changed by this Parliament, but it does not provide that the number of senators can be changed. I would ask my right hon. friend if he thinks the representation of British Columbia in the Senate can be changed without an amendment to the British North America Act.

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CON

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

Conservative (1867-1942)

Mr. BORDEN:

When the case of British Columbia comes up I will give my hon. friend the answer.

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LIB

William Manley German

Liberal

Mr. GERMAN:

Very well. Then, we will go on to the case of Manitoba which is under immediate consideration. My right hon. friend will have to have a much larger amount of law than I believe he will be able to find, to establish the fact that he can increase the representation of British Columbia in the Senate without an amendment to the British North America Act. He may be able to do it; his ingenuity is considerable, I will admit that. The Act passed in 1871 provides:

Whereas doubts have been entertained respecting- the powers of the Parliament of Canada to establish provinces in territories admitted, or which may hereafter be admitted into the Dominion of Canada, and to provide for the representation of such provinces in the said Parliament, and it is expedient to remove such doubts, and to vest such powers in the said Parliament:

Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lord Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

2. The Parliament of Canada may from time to time establish new provinces-

3. The Parliament of Canada may from time to time, with the consent of the legislature of any province of the said Dominion, increase, diminish or otherwise alter the limits of such province.

There is nothing in the Act to provide for representation. Representation is provided for absolutely by the other Act.

4. The Parliament of Canada may from time to time, make provision for the administration, peace, order and good government of any territory not for the time being included in any province.

Section 5 of the Act of 1871 has nothing to do with this matter. That is conferring upon Parliament the right to establish new

provinces and to increase the boundaries of those provinces. What_ does the Act of 1886 say? The British North America Act, 1886, says:

The Parliament of Canada may, from time to time, make provision for the representation in the Senate and House of Commons of Canada, or in either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any province thereof.

The Parliament of Canada may, from time to time, make provision for the representation in the Senate of any territories and I agree absolutely with the leader of the Government when he says-perhaps in a moment of weakness-that they exhausted their powers when they fixed the representation in the Senate. 1 agree with him absolutely because you fix the number of senators upon taking in a province, you can fix the number as you choose and, when you do so, you exhaust your powers under the Act and you cannot increase the representation. Section 2 of the Imperial Act of 1886 says:

Any Act passed by the Parliament of Canada before the passing of this Act for the purpose mentioned in this Act, shall, if not disallowed by the Queen, be, and shall be deemed to have been, valid and effectual from the date at which it received the assent in Her Majesty's name, of the Governor General of Canada.

It is hereby 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 the House of Commons specified in the last-mentioned Act is increased by the number of senators and 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.

The number of senators or the number of members of the House of Commons specified in the last-mentioned Act-the Act of 1867-is increased by the number of senators or the number of members, as the case may be, provided by any such Act of the Parliament of Canada for the representation of any such provinces or territories. That is the Act which introduced the territories into the Dominion, of Canada. The British North America Act specifies what the representation shall be. It gives to Parliament the right to fix the number of representatives in the Senate by the Act which brings the territory into the province, but the Parliament of Canada having fixed the number, cannot

change that number except you amend the British North America Act.

Manitoba is exactly in the same position as British Columbia. Alberta and Saskatchewan are each entitled to two senators now. My right hon. friend could increase the number of his Tory friends in the Senate by appointing two more from each of these provinces, but I submit that he cannot legally increase the number from Manitoba or British Columbia. I am borne out in that view by the opinion of Sir Allen Aylesworth, whose opinion I asked in the matter, and, without any desire to be controversial but simply to give that opinion, he said that in his mind there was no doubt about it. I will venture to say that if my right hon. friend will seek to force through this Parliament an Act to establish senators beyond the legal right of this Parliament to do so, his action will be reversed by a decision of the Judicial Committee of the Privy Council.

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN (South York):

After the exhibition of juridical sophistication which we have had upon this question, would it not be a good idea to present here the views of the plain people of Canada in regard to the Senate? We have in the Senate an absolutely irresponsible body and the people of Canada recognize that fact. In the mother country they had an absolutely irresponsible, hereditary second Chamber and they found it necessary, by the aid of the Parliament Act and of the King, to>

greatly alter .and diminish the powers of that irresponsible body. To my mind, the people of Canada are to-day disposed to think that until the Senate is made more amenable to public opinion there should be no further increases in the membership of that body. They believe that we should cease to appoint additional members to that body until there is a substantial reform of the Senate and until it is brought more or less under the influence of public opinion.

There is not another such irresponsible chamber in the world to-day like the one we have in 'Canada. In the United States they have a Senate, but it is elected by the states. In other countries they have senates or second chambers which are elective by the popular vote in larger constituencies than are allowed for the popular chamber. My contention is-and I think I reflect the views of the people of Canada- that the question of more concern to us is the reform of the Senate, the bringing of 95J

that body more within the purview of public opinion, and in some way the making of senators not appointive for life, but elective for comparatively short periods, either by the vote of the provinces or by the vote of the people in larger constituencies. That is the question which confronts the people of Canada to-day. It is a question that has been under discussion for a great many years, and we trifle with it and pass it over. Following my argument of yesterday, in which I had not much success, I think that it is coming home more and more to the people of this country that some kind of constitutional revision is necessary, .and that necessity applies more to the irresponsible Senate that we have to-day than to anything else.

Why should we have in a democratic country like Canada an irresponsible Senate as an essential part of the parliamentary machine? It may be that a venerable age makes a man a wiser legislator. I do not agree with that. I believe in democratic government in this country, in the parliamentary machine being responsible to the people, and most of all in the views of all the people of Canada being crystallized in law by means of legislatures that are responsible to the people.

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Wilfrid Laurier (Leader of the Official Opposition)

Liberal

Sir WILFRID LAURIER:

Does my hon. friend believe all that he says?

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J496 COMMONS

IND

William Findlay Maclean

Independent Conservative

Mr. MACLEAN:

Will the hon. gentleman support me if I move? I am looking for recruits now.

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LIB

Wilfrid Laurier (Leader of the Official Opposition)

Liberal

Sir WILFRID LAURIER:

I will support you in anything democratic. I am a democrat to the hilt.

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IND

William Findlay Maclean

Independent Conservative

Mr. MACLEAN:

I hope my right hon. friend is a wool-sock democrat and not a silk-stocking one. If 'he will undertake to support me in that proposition, or if he witll support me in a broader proposition and say that the time has come for the revision of the Constitution of Canada-* and I think it has come

that will be one of the prominent matters to be taken up.

I do not want to proceed in a hasty manner in regard to it. Such revision would 'have to commence with calling a conference' of the provinces, and it is high time that we called that conference and put in a protest, on behalf of the people of this democratic country, and in this democratic age, against the continued existence of an irresponsible body as part of the parliamentary machine of Canada.

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March 10, 1914