Mr. MAYBANK:

Thank you.

Mr. DIEFENBAKER:

I continue with Mr. Lapointe's remarks:

The right hon. gentleman opposite has stated that before parliament meets again at the end of January there will be an interprovincial conference. There are certain changes in our constitution, and with regard to taxation, which seem desirable. I submit the Prime Minister should place this matter before the premiers from the various provinces. If that were done I believe they would come to the conclusion that subsection 4, which certainly works unfairly, ought to be repealed.

Mr. BRIDGES:

Will the hon. member permit a question? I do not interrupt often, and I assure him I will not do it again. Is it the hon. member's contention that no amendment to any section of the British North America Act can or should be made without the unanimous consent of all the nine provinces?

Mr. DIEFENBAKER:

Apparently the

minister has not been following the argument I have been advancing. I have been quoting the views expressed by his hon. friends, and after I establish that a departure in constitutional practice is being made in the resolution now before this house I will come to the situation he has in mind. Looking ahead a few years, this may well be a measure as a result of which the rights of minorities subjected to a majority in parliament will be destroyed. What did Mr. Lapointe say? He said the matter should be submitted to the provinces. He took that stand in 1932, and gave his successor in 1946 the answer as to the method to be adopted in order to secure fairness in representation. Not only did Hon. Mr. Crerar take that view, but Hon. J. L. Ralston took the same stand-and possibly this will

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answer the Minister of Fisheries. Speaking in, this house on November 25, 1932, at page 1594, Mr. Ralston said:

I submit, Mr. Speaker, although it cannot be done in connection with this bill, that the suggestion of my hon. friend from Quebec East (Mr. Lapointe)-[DOT]

That suggestion, was a submission, to the conference of provincial premiers.

-might well be accepted by the right hon. Prime Minister, the matter might be made a subject of discussion at the interprovincial conference, and in view of the fact that constantly during the last two or three sessions there has been forecast the possibility of amendments to the British North America Act, it seems to me this subject is one which might well engage the attention of those framing these amendments and discussing the subjects to be dealt with thereby.

Mr. Lapointe's view was the view of Mr. Ralston. It was the view of Mr. Crerar too.

Now, I have cleared away the situation as I see it by bringing before the house the views expressed by outstanding statesmen, and I could multiply those expressions almost without number. I have not referred to similar statements made by Sir John A. Mac-dlonald, Cartier, Blake, Sir Allen Aylesworth, Mr. McCarthy, former ambassador to the United States. All the way down the line minister of justice after minister has taken this view.

I suggest that a mere reading of Hansard will show that whether you regard the British North America Act as a contract, a statute, a treaty, or a pact, without exception-I repeat, without exception-outstanding leaders since confederation have agreed that no material alteration may be made without consultation with the provinces. I submit that what is proposed is a material alteration of a provision which was founded on the Quebec conference, reiterated at the London conference, and made part and parcel of the British North America Act. It was so viewed by Mr. Lapointe and by all the other leaders up to that time. As I have already said, section 51 was born in the deliberations of the Quebec conference, and it was confirmed at the London conference, which did not adopt all the recommendations of the Quebec conference. One of the recommendations of the Quebec conference was that the provinces should look after the redistribution and the determination of the boundaries of the constituencies. Section 51, by the very circumstances connected with it, ratified as it was by all our leaders since confederation, is of the essence of the contract, pact, treaty, or call it what you will, of confederation. I warn this house and the country that if parliament passes a resolution for an address changing a

basic section of the British North America Act without consultation with the provinces, it is doing what the leaders of the past up to and including Mr. Lapointe said could not be done without consultation with the provinces, namely, changing the basis of representation of any province.

For the moment the membership from the maritime provinces will not be decreased; but if that pouplation, in relation to the whole population, decreases what is to prevent some future parliament, without consulting Prince Edward Island, Nova Scotia or New Brunswick, from passing an amendment removing the present limitation that the membership of a province may not fall below its representation in the senate? As a matter of fact Mr. Woodsworth, the distinguished predecessor of the present leader of the C.C.F. party, stated at page 1592 of Hansard for November 25, 1932:

There cannot be two or three different classes of Canadians in this country, with certain classes having superior rights to others. If a mistake was made in giving a fixed number of representatives to Prince Edward Island there is no reason why we should follow a bad precedent. The way to get away from that is to amend the British North America Act so that Prince Edward Island would have only its due number and not a number out of proportion to the rest of the country.

In. this extraordinary resolution, Mr. Speaker, a precedent is being asked for the amendment of the confederation agreement and its basis. Parliament is being asked to change one of the sections-not a section thirty-one years old, but one going back to confederation itself -upon which confederation was based. The Conservative party, and the Progressive Conservative party, since confederation has believed in change based upon experience; but it believes that the constitution is the bedrock of the rights of minorities and will resist changes in that constitution, without consultation with the provinces, under which the rights of the provinces will be affected or under which minorities may be affected. Parliament is being asked to pass an address which to-morrow will become a precedent which may be used to destroy the rights of minorities if in this house there should be a majority desiring to do so. This is an example of the dangers inherent in not requiring consultation with the provinces about amendments not directly concerned with the division of powers between the dominion and the provinces, which by the way are the only ones the Minister of Justice says cannot be amended without the consent of or consultation with the provinces. Under the procedure of amendment in the address section 133 and many

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others might be repealed or altered by means of an address passed by a majority in parliament. This, sir, indicates the dangers inherent in this haphazard manner, this novel scheme which is now before the house, of amending the constitution.

The Minister of Justice has argued that the representation of the various provinces in the House of Commons is a matter exclusively for the federal authority, in that the provinces are represented here. Earlier I answered that argument with a quotation. He indicates, too, that the rights of the provinces are not interfered with. I answer that simply by saying that by increasing the membership of the house the relative influence of the provinces is altered. This resolution seems to comprehend merely an innocuous change in representation, but closer examination of its terms reveals the dangers with which the method to achieve it is fraught.

The minister endeavoured to make answer because, like all resourceful counsel, he anticipated the arguments which have been made. The resolution contains all the artifices of a political dodge. It dangles a bait designed to catch political favour, but destined if accepted to achieve a drastic change in and a dangerous departure from the very basis of confederation.

The change advocated may be designed with a view to securing equality of provinces, the foundation stone of confederation, and to achieve a greater measure of representation by population; but however desirable the objectives may be, the means taken to that end are in my opinion dangerous in the extreme.

Let ius take one example. Suppose the communist party were to attain power in this country; parliament would be setting a precedent, under which every section of the British North America Act but sections 91 and 92, and possibly 93, according to the interpretation placed thereon by the Minister of Justice could be changed by a simple majority vote. Some will say that that is an extreme case, but it is illustrative of how cautiously and carefully amendment should be considered.

I do not hold out against constitutional changes, but I am unalterably opposed to constitutional changes being effected in the haphazard manner of this resolution.

No one can contend-I know some will say that we are opposed to amendments to the constitution-that the British North America Act should' not be subject to amendment. Events and changes since confederation have shown the necessity for amendment. The . dead hand of the past must not control the living present. But having, regard to the

events which culminated in confederation, and the arguments which were advanced-I have read and reread them-and having regard to the divisions of our country racially and geographically, the British North America Act should not be amended by any means in the nature of a subterfuge that will open the door * to a denial of the rights of minorities by the decision of a majority in parliament.

I have referred to the historical background. I have referred to the dangers inherent in the resolution. Do I believe in *change? Do I believe in necessity for reform? Has the government any monopoly on that? When the government convened a dominion-provincial conference, only financial matters were brought before it, and that at a time when the people of Canada were demanding national action, and when other amendments were asked for. Yet there was no consultation when consultation was available.

I could do no better than to quote the words of Mr. Lapointe when he said on February 18, 1925:

Mr. Lapointe: . . . As I have said, I would not like to leave the impression that my own view is that no changes should be made at any time, or that no changes are possible. I agree that we are living in 1925, and not in 1865. The problems of Canada must be settled in the light of the present situation.

Mr. MacLean (York): By the men of to-day.

Mr. Lapointe: By the men of to-day, yes.

I am not one of those who are riveted to the past and who are prepared to deny to our children the liberty of the future, but those changes the necessity for which may be seen as a result of our experience of sixty years cannot be made unless you proceed in a legal and constitutional way; they cannot be made arbitrarily.

I repeat those words in this year of grace 1946. Changes should be made in a legal way; changes should be made in a constitutional way; changes should not be made arbitrarily. Then Mr. Lapointe said:

They cannot be made only at the will and at the request of the dominion parliament; but those who are just as much interested as the dominion parliament in this matter must have their say, must be consulted, and must give their assent.

In this he went as far as the Prime Minister went in 1920, in the quotation I placed before the house earlier.

The stream of freedom must be preserved. Our constitution is the custodian of freedom. Widespread invasions of that freedom have taken place, and we have seen this happen in recent years. This address, if passed by parliament, will undermine constitutional safeguards, and in doing so will drive the first wedge that may well lead to the destruction of the liberties of the minorities among our people.

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Admitting that this section of the British North America Act may be amended by a majority of parliament, all that remain outside the sphere of this parliament, according to the Minister of Justice are those sections dealing with the division of power between the dominion and the provinces. I quote the words of Junius as to the operation of precedent:

One precedent creates another. They soon accumulate and constitute law. What yesterday was fact, to-day is doctrine.

I say to the house and to the country: look at this measure not for what it immediately achieves, but for the dangerous potentialities of any such precedent as this. The Prime Minister of Canada once said, as reported in Hansard of January 21, 1935:

We have looked upon the constitution of our country as the safeguard of its liberties and as the home of its freedom.

That is the test, I respectfully submit, parliament should apply to the resolution now before the house-the test of looking not at the advantages of the present to be achieved by this short-cut method of amendment of our constitution, but rather at the grave potentialities inherent in making a precedent for amendment of our constitution by a majority of parliament. The great danger of attractive measures such as this is that of the people and the people's representatives, by reason of the very attractiveness, giving up the substance for the shadow.

This party subscribes to the view expressed by Edmund Burke, in a speech on the reform of representation, when he said:

Our constitution is like our island, which uses and restrains its subject sea; in vain the waves roar. In that constitution, I know, and exultingly feel, both that I am free, and that I am not free dangerously to myself or to others.

Believing as I do in proper safeguards against tyrannical acts of majorities who would deny tolerance, and believing that these basic rights in the constitution should not be interfered with without consultation with the provinces, I move, seconded by the hon. member for Calgary West (Mr. Smith):

That the motion be amended by deleting the *words: "A humble address be presented to His Majesty the King in the following words:" and substituting therefor:-

And whereas it is desirable that the government should consult with the several provinces -in-*,respect of the said matter.

-^jbfow (jjlrefore be it resolved that the govern-*a^tttint b^^jquired to consult at once the several pjlivinces and upon satisfactory conclusion of '^such consultations be authorized to present an humble address to His Majesty in the following terms.

Mr. Speaker, I rise to discuss this resolution, and the amendment thereto, not as a lawyer but simply as a layman and a member of parliament who seeks to do what is best for the country in which he lives.

I was interested to hear the hon. member for Lake Centre (Mr. Diefenbaker) quote Edmund Burke's reference to the British constitution. The glory of the British constitution is that it does not exist in the form in which we know constitutions, and that it is ever amenable to the will of the majority of the representatives of the people. Therefore I suggest to the hon. member that if this parliament decides that something should be done in the interests of all the people of Canada, and it is within its constitutional right to do so, the will of this parliament should prevail. From my reading of Canadian history, from all that I have read of former debates in the House of Commons, and in spite of all the quotations that have been placed before us this afternoon, I am of the opinion that this address to His Majesty is within the rights of this parliament.

Actions speak louder than words. Sometimes politicians shift their position according to the side of the house on which they happen to sit at a given moment. If we look back over the history of our country since confederation we find that important amendments have been made to the constitution. One in particular which upset the whole basis of representation was made in 1915. At that time a resolution was placed before the house by the Right Honourable Sir Robert Borden, Conservative prime minister of that day, which was much more explicit in its references to the British North America Act than anything contained in this proposal. That resolution was moved by Sir Robert Borden on June 11, 1914, one year before the house adopted it. Let us look at its terms. It read:

Resolved, that a humble address be presented to His Majesty praying that he may graciously be pleased to give his consent to submitting a measure to the parliament of the United Kingdom to amend certain provisions of the British North America Act, 1867, in the manner set forth in the draft bill hereto attached.

An act to amend the British North America Act, 1867.

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

I would draw attention to what followed:

1. Notwithstanding anything in the British North America Act, 1867, or in any act amending the same, or in any order in council or terms or conditions of union made or approved under the said acts, or in any act of the parliament of Canada;

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Then it went on to alter the whole basis of representation in the Senate. That was a much more fundamental change, because the Senate has always been regarded by the minority-I think they lean upon a broken reed- as having been established to protect the rights of minorities. The resolution proposed also to alter the proportionate representation of Quebec in the upper chamber. A new and fourth division of the dominion was agreed upon, and the western provinces were to be represented by twenty-four Senators instead of the number by which they were previously represented. This was done in 1915 under the leadership of a Conservative prime minister and may I pay tribute to Sir Robert Borden by saying that he was possibly one of the greatest constitutional lawyers who has ever sat in this house. This was done by and with the consent of all the parties in this house. Therefore I a-m amazed to see in 1946, thirty-one years later, an amendment moved in this house which would bring a new basis into confederation. We who represent the western parts of this country are extremely anxious to see that the representation in this parliament of the western provinces shall be adequate. I believe it is the intention of the government to try to give that representation at this time. On the basis of representation by population according to provinces I shall support the resolution.

My hon. friend spent a great deal of time trying to frighten the house with what might happen in the future if the communist party came to power. Let me tell my hon. friend that if the communist party comes to power- I do not believe it ever will-it will come to power, with the approval of the majority of the people of Canada. If it comes to power, this parliament will disappear; there will be no constitution, and there will be no parliament. My hon. friend is setting up a straw man to knock down and to frighten old ladies of both sexes. I apologize to the hon. member for Qu'Appelle (Mrs. Strum), who does not fall within the category either of being old or of being frightened.

My hon. friend brought forward some arguments other than from the constitutional point of view. He said that we were making an increase when economy demands perhaps even a decrease in the membership of this house. Perhaps it would be stating more nearly what he said to say that there are some people in the country who advocate a decrease in the membership of this house. The most important institution in this country is parliament. To my mind representation in this parliament is the most important privilege that the people of Canada have. If representation is to be

adequate and real, then the members of this house must keep in close touch with their constituents. A decrease in the membership of the house would mean an enlarging of the size of the constituencies in some parts of Canada, which would militate against the democratic procedures of which we approve. So that argument surely was unworthy of the speech, fine in many respects, which my hon. friend has just made. Certainly it is not in accord with the desires and the wishes of the people of the part of Canada from which we both come. Delay until the next census? My hon. friend has argued to-day that we have to stand by the constitution. The constitution requires that a redistribution shall be made after every ten-year period. Then he rises in this house and urges the government to delay in carrying out the provisions of the constitution for another few years.

Mr. DIEFENBAKER:

On a question of privilege, Mr. Speaker, I never advocated such a thing. I said that there were those who said these things, but I was dealing with one particular thing. My hon. friend has placed words in my mouth that I never used.

I am sorry if I misinterpreted my hon. friend but I think a good many members of this house must have found the same difficulty as I had in listening to him. I coufd not tell when he was reading quotations and when he was reading prepared parts of his speech. But if I have done him an injustice I regret it.

Mr. DIEFENBAKER:

Speaking of reading speeches, you are doing it right now.

I am not reading my speech. I was just referring to notes I made while my hon. friend was speaking.

Mr. SPEAKER:

Order. I would remind all hon. members that they must address the chair.

Mr. Speaker, I was referring to notes I made when my hon. friend was speaking.

It is true that there has been a serious loss of population in the western provinces and particularly in the provinces of Manitoba and Saskatchewan. In 1941 this house gave approval to deferring redistribution in the hope that when the war ended and people had returned from the armed services and from industry to their home constituencies our population might have been recovered. I do not know wln^her it has or not. There is a quinquennial census in the west this year and the question whether our population has decreased or increased may be settled by that enumeration. But in fairness to other mem-

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bers of the house who agreed to deferring redistribution in 1943 I am not at this moment asking that another privilege of that kind be granted to western Canada. I believe that the proposal placed before the house by the government at the present time is fair, just, sound and constitutional.

The hon. member for Lake Centre has preached this afternoon what is in effect a new doctrine. In 1915 only one province, according to Doctor Skelton, took advantage of the privilege of appearing before the special parliamentary committee on amending the British North America Act, and his comments in the case of that amendment are as follows:

Object: To increase the number of senators

and alter the main senatorial divisions.

Procedure: The procedure adopted was that

the act was passed by the United Kingdom parliament following an address by the Senate and House of Commons of Canada. Prince Edward Island made representations before a House of Commons committee, which were not accepted. Other provinces were not consulted and made no representations. The suggestion was made in the House of Commons by Mr. O. Turgeon, now Senator Turgeon, that the provinces should be consulted, but it was not acted upon.

That is the position regarding the fundamental change which was made at that time.

I shall not attempt to answer the legal arguments of hy hon. friend. I am not a lawyer and I leave it to the Minister of Justice (Mr. St. Laurent) and other lawyers in the house to deal with the legal aspects of this question. But the thing that presents itself to me is this. Is Canada a nation? Or is Canada merely a collection of individual provinces, each one willing to go its own way? That is the question which occurs to me. Is Canada to be another Balkan peninsula of warring states, or are we to build this great country into a nation? I say that arguments, constitutional or otherwise, such as we have heard this afternoon serve no useful purpose in promoting national unity in this country. Of course they undoubtedly reflect the point of view of certain sectional interests. It is not an unknown phenomenon for my ultraimperialist friends of the Progressive Conservative party to be in secret alliance with sectional interests in one of the great provinces.

Mr. FULTON:

Where are the frightened old women now?

I am not frightened. I say the same thing in Ontario and Quebec and all over.

Mr. DIEFENBAKER:

That will be a new experience.

My hon. friend says, "That will be a new experience." I say the same thing in all parts of Canada. Perhaps

my hon. friend does not know that I have been followed by the same newspaper men right across Canada who found that I said the same things everywhere. I do not refuse to call this country Canada in this house and then, within a week, speak of the kingdom of Canada in the province of Quebec. So I say it is not a strange phenomenon because the same thing has been observed in the past.

If my hon. friend's argument of this afternoon were accepted it would result in the two provinces of Manitoba and Saskatchewan losing seven seats after the next election.

Mr. DIEFENBAKER:

Not at all.

Seven seats after the next election, because I am convinced of this, that it would be difficult indeed to get certain provincial premiers to agree to this proposal. Premier Drew of Ontario sees that Ontario now has-what is it?-seven or eight seats more than she is entitled to according to population. I give that just as an example. There might be other premiers who feel the same way about the matter. But in my opinion, to do justice to the western provinces, representation by population is the only basis upon which justice can be done.

We are told that we run the danger of the rights of minorities being lost. Is there a right of any minority involved in the resolution that is before the house? I would say there is, and that is the right of the minority to have adequate representation in this house as against the majority and against overrepresentation by one province.

My hon, friend quoted from a former leader of this movement, the late Mr. J. S. Woods-worth. I took down the page number he gave, but I am afraid he made an error in the number, or maybe I did not hear him correctly. The page which I think he gave was 1692 of Hansard for 1935. Mr. Woods-worth is not reported on that page, but that is immaterial. I will take it for granted that Mr. Woodsworth said that. But what I will add is that Mr. Woodsworth may have said that, and in logic he was sound, but in the matter of representation in parliament regional representation may be as important as population representation. For example, I believe that the northwest territories are entitled as well as the Yukon to a member in this house, because of the mining, trapping and other interests which are unrepresented here in the sense in which they should be represented. On the same basis, I believe the maritime provinces have a right to regional representation; and in spite of what Mr. Woodsworth said in 1935 my opinion would be that the

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provision in the act is not unfair and does not seriously impair the argument that we should have representation by papulation.

What are the minority rights guaranteed in the act? Is one of these rights that the basis of representation shall be along the present lines? I think not. The minority rights written into the British North America Act are surely the religious, educational and certain other rights of a minority. We are in no way interfering with those rights. Let us bear in mind that there were three provinces which entered confederation: Canada-united Upper and Lower, subsequently called Quebec and Ontario-Nova Scotia, and New Brunswick. In the long agitation, from 1840 np to 1858 and beyond, while confederation was being discussed1, the argument was that there should be adopted a basis of representation by population. That was the incentive in the minds of many of the fathers of confederation, especially George Brown. We are now endeavouring to carry out the principle of representation by population. Why was sixty-five adopted by the province of Quebec as the basis of representation? Surely merely as a convenient yardstick. That was all.

Mr. REID:

It has worked out fairly well, though.

It has worked out fairly well, but we find in these days, owing to the evolution of our constitution, it is not working out as well as it might have worked out. Consequently it is now suggested to do what the fathers of confederation intended we should do, have a parliament based more nearly on representation by population. The maritime provinces-and I am not complaining about this-are safeguarding their representation. But the present redistribution, if carried out on the old basis, would be, as I have said, unfair to the western provinces, and as we see from the resolution and its preamble, it is now designed to rectify that wrong.

There is something else I should like to say. There were three conferences which led up to confederation: Charlottetown, Quebec and London. When the fathers of confederation or a delegation of them went to London, did they go there bound by all that was laid down at Charlottetown and Quebec? They did not. In London a number of changes and adjustments were made to the resolutions which had been adapted with the approval of the various provinces, indicating clearly that, having come to a basis of agreement, that agreement in detail might be varied outside Canada' and apart from consultation with

the home provinces. That was the situation in London, and adjustments were made there. So I say that the contention that the provinces should be consulted in matters which lie within the competence of Parliament is a new contention. As I indicated earlier, the House of Commons committee which was set up in 1915 received representations from only one province; no other province thought it worth while even to appeal against what was a fundamental change in the basis of representation in the senate.

My hon. friend quoted to-day from Sir Robert Borden. As a matter of fact I happened to run across the same speech, but if I read it aright it confirms the position I am taking and does not confirm the position which my hon. friend takes. I may quote a little more extensively from it. This is what Sir Robert Borden had to say in introducing the resolution, the preamble of which I read in part: Hansard, 1914, page 5278:

So far as the provinces of Alberta and Saskatchewan are concerned, we are agreed on both sides of the house that the parliament of Canada has the constitutional power to increase the representation of the senate of each of those provinces from four to six as is proposed.

"We are agreed on both sides of the house" -and no one demurred-that the parliament of Canada had the right to vary the representation in the senate; in other words, that this parliament had a right to change the constitution in the very particulars which we are discussing to-day. That is what Sir Robert Borden said.

Mr. BROOKS:

But not as far as the British North America Act is concerned.