Mr. F. D. SHAW (Red Deer):

Mr. Speaker, I should like to ask a question of the Minister of Finance. In view of the fact that the budget is in course of preparation, would the minister kindly accept and give consideration to twenty-two telegrams directed to him by

farmers in my area having to do with the adverse effects of the present taxation policy upon farm production?

Right Hon. J. L. ILSLEY (Minister of Finance):

Mr. Speaker, I am receiving about four hundred suggestions each day with regard to the budget. I shall be very glad to add those to the list.

Mr. R. W. MAYHEW (Parliamentary Assistant to the Minister of Finance):

Mr. Speaker, if I may now proceed with the answer I began somewhat earlier, I would say that yesterday the hon. member for Dufferin-Simcoe (Mr. Rowe) asked the minister if it was true that the recent order removing the price ceiling from red and blue brand beef applies only to government-inspected beef shipped from abattoirs. Then he asked, whether if it was true that the order applied only to government-inspected beef, whether the government would take into consideration making the same provision in respect of prime carcasses of beef produced from other sources. The answer to the first question is yes, at wholesale levels only. The second question is answered by the first.

I think it would be well at this time to place on Hansard the press release of May 26, 1946, from the wartime prices and trade board, which states:

In an effort to facilitate the movement _ of cattle and provide a better beef supply during the present seasonal shortage, price ceilings at wholesale on beef carcasses grading "red" brand or "blue" brand according to government standards will be temporarily suspended from May 27 until July 20, wartime prices and trade board announced to-day.

The retail price ceiling on both these grades and on all other qualifies will remain at the present level and no higher prices will be paid by the consumer. Present pricing regulations governing retail prices of commercial quality beef will apply to all sales at retail of blue brand beef. Ceiling prices at both wholesale and retail of all grades and qualities other than the two mentioned above will remain unchanged.

Mr. J. G. DIEFENBAKER (Lake Centre):

Mr. Speaker, I shall not read the resolution, because it is before you. There are great and vital issues facing this country to-day which require solution by parliament. There are questions having to do with the burden of taxation, with food, with housing, and with labour which may very well not be considered at this session of parliament because of numerous other matters that are being brought before parliament at this time.

In 1943 the Minister of Justice (Mr. St. Laurent) said that the debate might very well give rise to differences of opinion that might cause serious divisions in this country. If that is so, the debate will be a long one. Many Canadians believe there is no reason for adding to the membership of the House of Commons at a time when expenditures should be decreasing rather than increasing. Opinion is widespread in this country that since we have now waited for several years for redistribution the matter might well be postponed until 1952, because it will have to be considered again in that year. I do not intend this afternoon to deal with these phases of the matter.

May I at the outset say a word on behalf of the prairie provinces. In 1943 when the Minister of Justice brought before the house a resolution for an address to amend the British North America Act, he pointed out, as reported on page 4337 of Hansard of July 5 of that year:

It is argued on behalf of Manitoba and Saskatchewan that some of their population has been drained away as an effect of enlistments in the armed forces and of a drift from certain portions of those provinces to war plants in Ontario and Quebec or British Columbia. As to the men who enlisted, though efforts were made in taking the census to credit all these men to their own respective provinces, it undoubtedly did happen that some of them had changed their homes since enlistment, and there is no doubt that a great many had changed their homes to go to war plants in other centres. It can be argued that these provinces should not be penalized be-these facts, but to make a redistribution at this time and not to make it along the lines above indicated would require an amendment to the constitution.

The Minister of Justice stated also in 1943 that-

The effect of employment in the production of munitions of war was to remove large numbers of the population from their homes. to reside temporarily in other parts of Canada. If it was unfair in 1943, as it was, is it not equally unfair to-day? A census is now

being taken, in the western provinces, and it may show a return to those provinces of residents who left for war services in other parts of Canada; yet the redistribution is to be based upon the census of 1941, which the Minister of Justice said in 1943 would be an unfair basis.

Let me point out that between 1931 and 1941, having regard to the natural increases in population, Manitoba lost 48,478 persons; Saskatchewan, 157,545 and Alberta, 41,841. If the 1946 census establishes that that population has returned, those provinces would be entitled to the representation they would have had had the people not left. They would therefore be penalized by this measure.

It is not with this phase' of the matter, however, that I intend to deal particularly on this occasion; it is rather with the broader aspects of the constitutional issue involved in the amendment to the British North America Act as contemplated by the resolution now before the house. It has a much broader significance then the mere matter of redistribution. But I wish to deal this afternoon not with the fairness or unfairness of the provisions of the resolution or the desirability of achieving a greater measure of representation by population, but rather with the method employed by the government to secure an amendment to the British North America Act.

One of the most consequential provisions of this resolution is the proposal to amend section 51 without consultation with the provinces which will be affected.

Oh, oh.

Duplessis.

Mr. DIEFENBAKER:

I appreciate the attitude of my hon. friends. When they speak I am courteous enough not to interrupt, and I ask them for the same consideration unless there are questions that they wish to ask.

The material subsections of section 51 of the British North America Act are as follows:

(1) Quebec shall have the fixed number of sixty-five members;

(2) There shall be assigned to each of the other provinces such a number of members as will bear the same proportion to the number of its population (ascertained at such census) as the number sixty-five bears to the number of the population of Quebec (so ascertained).

(4) On any such readjustment the number of members for a province shall not be reduced unless the proportion which the number of the population of the province bore to the number of the aggregate population of Canada at the then last preceding readjustment of the number of members for the province is ascertained at the then latest census to be diminished by one-twentieth-

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Those subsections were the essence of the basis upon which the provinces entered confederation. If they are to be repealed-and they will be, because the imperial parliament will accept the recommendation of this parliament-then a different basis of representation will be established than was contemplated either by the Canadian delegates in London in 1866, or earlier at Quebec. I read the pertinent sections of the resolutions passed at' the city of Quebec on the 10th of October, 1864, as the basis-as the report itself says-of a proposed confederation.

Section 20 says:

For the purpose of such readjustments-

That is, readjustments after succeeding censuses:

-Lower Canada shall always be assigned sixty-five members.

That was the basis upon which the provinces of Canada, Nova Scotia and New Brunswick entered confederation.

For the purpose of such readjustment, Lower Canada shall always be assigned sixty-five members, and each of the other sections shall at each readjustment receive, for the ten years then next succeeding, the number of members to which it will be entitled on the same ratio of representation to population as Lower Canada will enjoy according to the census last taken by having sixty-five members.

Then of the essence of confederation was this section, No. 21:

No reduction shall be made in the number of members returned by any section, unless its population shall have decreased relatively to the population of the whole union, to the extent of five per centum.

That five per centum was changed in the British North America Act to one-twentieth. Later, on the 4th of December, 1866, there was a conference in London of delegates from the provinces of Upper and Lower Canada and Nova Scotia and New Brunswick. They made some changes in the resolutions passed at the city of Quebec, but while they made certain alterations they stood firm on those two sections, renumbered 21 and 22, which read as follows:

20. For the purpose of such readjustments, Lower Canada shall always be assigned sixty-five members, and each of the other sections shall at each readjustment receive, for the ten years then next succeeding, the number of members to which it will be entitled on the same ratio of representation to population as Lower Canada will enjoy according to the census last taken by having sixty-five, members.

21. No reduction shall be made in the number of members returned by any section, unless its population shall have decreased relatively to the population of the whole union, to the extent of five per centum.

It is significant to note that it was on the basis of the Quebec resolutions and on the basis of the resolutions passed in the city of London that the foundation stones were laid and the requisites for confederation established.

I am not going to enter into a discussion to-day, interesting though it might be, of the question whether the British North America Act is a pact, a treaty, a statute or a contract. There is a division of opinion on that. Professor Kennedy, of the university of Toronto, and others, take the stand that we should get away from the idea that it is a contract or treaty. They say it is not so, either in history or in law. Doctor Maurice Ollivier, a law officer of the crown, in an outstanding book entitled "Problems of Canadian Sovereignty" refers to the evidence of the Clerk of this house, Doctor Beauchesne, who before a committee of this house strenuously denied that the British North America Act was a contract. He pointed out, at page 360, after referring to a discussion that took place in the committee set up by parliament in 1935 to discuss the question of amendments to the British North America Act:

From the preceding dialogue it is easy to understand the danger in which the province of Quebec stands if it lacks the right to take part in deliberations on the subject of our constitution. If the British North America Act ought to be amended, it is better that this be done with the consent of the province and that it take its part of the responsibility rather than that it should see the changes made without its knowledge.

That statement, I respectfully suggest, applies to all the other original parties to confederation, and to the provinces that have entered since. Other outstanding leaders have taken the point that the British North America Act is a contract. The Hon. G. Howard Ferguson, when premier of Ontario, wrote a letter to Mr. Bennett on September 20, 1930-I am not going to quote the whole of it; it is set out in detail in Dawson's "Constitutional Issues in Canada"-in which he said in part:

The province of Ontario holds strongly to the view that the agreement should not be altered without the consent of the parties to it.

And he attached a memorandum in which it was submitted that the rights of the various provinces to equal voice concerning any contemplated changes in the law or the convention of the constitution of the dominion rest upon fundamental considerations and historic facts which are as binding to-day as ever they were upon all the parties to confederation.

There are others who maintained that the British North America Act is in the nature of a treaty. Sir John A. Macdonald took that

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view, Sir George Etienne Cartier took that view, and Sir Robert Borden took that view; for on February 10, 1014, when the question of redistribution was before the House of Commons, he used these words, at page 612 of Hansard:

The terms which were then fixed between the four original provinces undoubtedly constituted a compact between those provinces, and up to the present time they have, of course, been carried out according to the true intent and meaning of the statute.

Let me give some references to the statements regarding amendments to the constitution made by outstanding leaders right down to 1935. I might refer to Cartier, Blake, Laur-ier, Borden, Meighen; and what the Right Hon. Ernest Lapointe, who was a constitutional authority, said on more than one accasion in this house about the dangers of serious amendments to the British North America Act without consultation with the provinces.

I refer first to what Sir Robert Borden said in 1914 as to the desirability of an address being submitted to the parliament of Great Britain to assure that the maritime provinces-should at no time in the future have a lower representation in the House of Commons than in the Senate. This is what he says:

Speaking for myself, I do not see how it would be possible for this parliament to attempt any alteration in the representation of the provinces without the consent of the provinces themselves. It was in that connection that the question was taken up before the Interprovincial Conference held last autumn in the city of Ottawa, and the result of the proceedings of that conference amounted to this, that the conference declined to take any action on the subject, saying that the matter was one for consideration of parliament.

Apparently the provinces agreed on the fairness of the terms of the amendment in 1915, because there'was no objection taken. I repeat that Sir Robert Borden contended that there can be no alteration of the basis of confederation as to representation unless it is made with the consent of the provinces.

I pass on to what Mr. Meighen said on February 19, 1925. I quote from Hansard, page 335 of the debates of that year:

Undoubtedly, the pact of confederation is a contract and there are rights involved therein not represented by the parliament of Canada. We could not put ourselves in the position of asking that rights so secured should be disturbed on our motion alone. The speech of the Minister of Justice determines, I think, without power of dispute, that there should never be suggestion of amendment affecting other parties to the contract save after conference and consent of those other parties.

I will now read, for the benefit of hon. members who interrupted a moment ago, what was said by Sir Wilfrid Laurier. Throughout the years he stood in the House of Commons

fMr. Diefenbaker.]

as the representative of the rights of the people, as the champion of the constitutional privileges of minorities in this country, and as one who raised the standard of public life as few others have done. What did he, say in 1906-7? He was followed by Sir Robert Borden, whose words, as quoted in Hansard of that session, page 2199, are these:

I agree with what has been said by the right hon. gentleman regarding the undesirability of lightly amending the terms of our constitution and am inclined to agree with him on the necessity of some consultation with the provinces, although of course all the provinces are represented here.

I pause to refer to what the Minister of Justice (Mr. St. Laurent) said the other day, because Sir Robert Borden answered him in the succeeding words. The Minister of Justice said on May 28 last, as reported in Hansard, page 1936:

The provinces, that is to say the people of the provinces, are all represented in this parliament, and for the purposes of such matters as are confided to the jurisdiction of this parliament it is by those representatives here that the people of the provinces speak.

Well, I give you not my opinion but that of a great constitutional lawyer, one time prime minister of Canada, Sir Robert Borden.. He said this-Hansard, 1907, volume 2, page 2200:

But inasmuch as this is a federal compact which we are asked to vary, it is only right that each province should be consulted and its decision given, in the right of its separate entity.

This answers the argument that because in the House of Commons there are representatives from the different provinces, the provinces who entered into the pact, and their successors, should not be consulted in regard to any constitutional change in the basis of confederation.

No one can say that Right Hon. Ernest Lapointe would be a prejudiced witness. I quote from what he said in the House of Commons on February 18, 1925-Hansard, page 297:

If confederation was a pact, an agreement, is it possible for one of the parties to the agreement, or rather for the body which resulted from the agreement, to amend, to alter the conditions of that pact without consulting and without securing the consent of the parties to the original agreement?

He does not restrict the consent of the provinces to matters coming within sections 91 and 92 and possibly 93, but covers the entire ambit of the act. Further on he says:

As regards the United States as well as Australia, New Zealand and South Africa, they all agreed at the time of the enactment of the statute creating their constitution that they would have the right to alter it. They possess

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that right because it was made one of the conditions of the statute constituting them a state. Not so with Canada, because there were special conditions and difficulties in the way. I ask my hon. friend this question. Confederation was achieved and the new parliament was opened in 1867. Does he believe that two years afterwards, in 1869, for instance, this parliament could have fairly and reasonably amended the British North America Act or have asked the Imperial parliament to amend it without the consent of the four original provinces?

I ask the Minister of Justice, when he speaks, to answer that question. Does he answer it in the affirmative? Mr. Lapointe goes on:

Could he fairly say that that Could have been done two years after the opening of this parliament? If it could not be done at that time, could it be done twenty-five years afterwards, or even fifty years afterwards, without the consent of the contracting parties in the pact of confederation?

Then he comes to the conclusion that we cannot ask power to alter, without the consent of the provinces, a constitution which is theirs as well as ours. That was the stand which he consistently took. Later, on March 20, 1924, as reported in Hansard of that year, page 520-I do not want to tire the house, but I want to trace this matter through because it shows the attitude taken by the great leaders since confederation-he said this:

It is a treaty between various colonies which entered into an agreement. They fixed what the powers of the central parliament should be, and they also fixed what the powers of the various provinces which succeeded the colonies of that time would be, and this was ratified and accepted by the Imperial parliament of the time. Everything we have or have not is because we wanted it so. Now this treaty cannot be changed, it has been the contention of many constitutional authorities, and I think it is only fair that no change should be accepted, without the consent of all those who were parties to it. It is a sacred treaty just as is any other treaty; it is no "scrap of paper".

All through Mr. Lapointe's life his view was that if the rights of minorities were to be protected against an overwhelming majority in this house and in the senate, there could be no change of the pact of confederation without consultation with and the consent of the provinces. In that view he was not alone. I am not going to read the next quotation I have here, but I shall give the page. Mr. Lapointe said the same thing on February 18, 1925, and he was supported by a minister who a few short months ago sat where the Minister of Justice now sits. He was supported by a statesman, wise in experience and in years of public service, Mr. Crerar, who on February 19, 1925, said, as reported at page 318 of Hansard:

63260-141 j

My hon. friend the Minister of Justice yesterday argued that confederation was in the nature of a treaty, and I agree with him in that assertion. That being the case, his suggestion that the matter be approached through the avenue of a conference with all the provinces is the first step that should be taken in dealing with it.

Further on he said:

I can quite appreciate the anxiety, or, shall I say even the fear, that my hon. friends from the province of Quebec may entertain as to the position which that province would be in in respect of the peculiar rights it enjoys under the constitution to-day, were we placed in the situation in this country where the constitution could be amended by the ordinary means of majority rule.

Sir, how times do change! In 1920 the Prime Minister of Canada brought up the question of the amendment of the British North America Act, and on March 16 he said, as reported at page 469 of Hansard:

The government should consider the advisability of an address being presented to His Majesty to have powers given to the parliament of Canada, subject to the concurrence of the several provinces of the dominion, to amend the constitution of Canada . . .

I point out that the Prime Minister, who was then leader of the opposition, said this:

. . . in such particulars as may be agreed upon as a result of conference between the-provincial and federal authorities and approved by this parliament and the lgislatures of the different

provinces.

In that, sir, the Prime Minister went somewhat farther than any other leader has gone. A while ago there was an interruption to the effect that I was taking a sectional stand, one which was unfair, or unjustified, ingenious, or something of the kind. But this is not the first time a question has arisen with regard to section 51, subsection 4, and the desirability or otherwise of changing the basis of representation by virtue of which Quebec receives sixty-five members. It has been discussed on a number of occasions. Again I must refer to the views expressed by Right Hon. Mr. Lapointe, in 1932, in which he gave a better answer than I can give to the resolution now before the house. He recognized that the provinces should be consulted. He condemned any other method, which would have the effect of changing the basis of confederation. Right Hon. Mr. Bennett, now Viscount Bennett, accepted the view expressed by Mr. Lapointe against amending section 51 before the calling of an interprovincial conference. Mr. Bennett said that the conference was being called in view of labour conditions in the dominion and that the time then was not opportune. The very stand we take to-day was the stand taken by Mr. Lapointe in 1932, at pages 1592 and 1593 of Hansard. This is

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what Mr. Lapointe said in reply to the suggestions now made by the Minister of Justice, in this resolution:

I have tried to find in the debates on confederation and elsewhere the reason for the exception in subsection 4 of section 51, but have been unable to do so.

As a matter of fact no one seems to know why that section was placed in either the Quebec conference articles or the London conference articles. During one of the debates Mr. Bennett said that he had tried to ascertain the reason for it, and the only conclusion to which he could come was that it was meant to protect the representation of some of the maritime provinces, although there was no evidence to support that view. After reading the subsection he said:

Why this provision? I cannot find why it appears; I should be pleased if some one could give me a reason. Perhaps it was inserted to help some of the smaller provinces, but when it works the way we see it will work this year, certainly it is an anomaly which works unfairly. I am sure hon. members from Ontario want only representation by population.

Hear, hear.

Mr. DIEFENBAKER:

Yes; that is what Mr. Lapointe said, but he gave warning of the dangers which would follow the course which is being followed here. He knew - the difficulties, he knew the unfairness, and he pointed them out. I shall quote his words, in order to place the record fairly before the house. He said:

Before confederation they fought for it, and that should be the principle governing that province. What amazes me is that this same principle is not working the other way. Why should not the representation decrease when its proportion of population with regard to the whole of Canada has not decreased by one-twentieth? Why should it increase if the number is increased by less than one-twentieth? As it is, any other province which would come under the same conditions keeps its representation, not on account of its own increase, but because of decreases in other parts of Canada,-and not of Quebec, which is taken as the pivot.

He mentions the same difficulties as were referred to by the Minister of Justice the other day in what I think was a masterful address. Mr. Lapointe saw the difficulties in 1938, but he also saw something else, the dangers. I continue with what he said:

A suggestion was made that in order to equalize with Ontario, the number of representatives from Quebec should be increased. I do not think that would be a fair way of settling it. I believe the representation of Quebec should remain at sixty-five, as fixed by the British North America Act, but that subsection 4 of section 51 should disapper. Then we would have a real representation by population.

With that point of view is there disagreement? How, then, are we to change it? This is where Mr. Lapointe, with his farseeing vision, portrayed the situation, realizing as he did that representation by population was not being achieved under that section.

Mr. MAYBANK:

Will the hon. member permit a question?

Mr. DIEFENBAKER:

Yes.

Mr. MAYBANK:

Suppose the method

which has just been suggested were followed, with which the hon. gentleman says he is in agreement, what would be the effect of it? Has the hon. gentleman worked out those figures?

Mr. DIEFENBAKER:

These figures were given by the Minister of Justice. A perusal of Hansard by my hon. friend will give him the information he is asking for.