June 11, 1946

LIB

Clarence Decatur Howe (Minister of Reconstruction and Supply)

Liberal

Mr. HOWE:

Oh, no.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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PC

Arthur Leroy Smith

Progressive Conservative

Mr. SMITH (Calgary West):

I am so happy to hear that.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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LIB

Clarence Decatur Howe (Minister of Reconstruction and Supply)

Liberal

Mr. HOWE:

The science of atomic energy has been made known to the world to the extent that the story can be told at this time. A publication called the Smyth report was brought out shortly after atomic bombs were dropped. That report received careful study from the policy committee in charge of the development of atomic energy, and contained all the information as to the science of atomic energy which it was felt could be made public. I may say that, regardless of secrecy, it is a complete report on the subject.

As far as methods of production are concerned, those are still matters of secrecy. I assume that if a committee of the house were appointed the first move would be to ask to visit Chalk River. I would have to tell the committee that such a visit was quite impossible, because Chalk River was built under an agreement that all three partner countries would approve any visitor to that enterprise. The process continues to be a secret process,

Atomic Energy Control

and it would not be possible to bring scientists from Chalk River to explain to a committee of the house, and to the people of Canada, just how we produce atomic energy at Chalk River. I think my hon. friend will appreciate that fact. What could be done usefully wrould be to bring men who have a comprehensive knowledge of the subject before the committee, and ask them w'hether the bill now before parliament is a satisfactory bill, and to ask for their suggestions for its improvement. That has already been done by the government. The government has consulted the eight or ten men in Canada who are best entitled to give an opinion on that subject. This bill has been under study for at least six months. The first draft was made as long ago as that. It has been revised to conform with Canadian opinion; it has been studied in connection writh decisions taken in the United Kingdom and in the United States, and to-day it represents the best opinion of men who are most thoroughly familiar with the subject matter of the bill. Therefore I think there is little probability that the bill could be greatly improved by being submitted to a committee.

There is the further fact that the men best able to advise a committee would be greatly embarrassed by being brought before the committee and subjected to cross-examination by its members. I have been associated with this problem since its inception in North America. I have been in at the top-level discussions. I have heard a good deal which to-day is public knowledge, and I have heard a good deal which to-day is not public knowledge. I would be hesitant about appearing before a committee and being subject to cross-examination, for fear that I would disclose knowledge which I have undertaken not to disclose. The top scientists who would come 'before the committee would be in the same position. If they were asked a question about the science of atomic energy they would need to have a consultant to tell them whether the question fell within the ambit of the Smyth report. If it did they could answer the question; if it did not they could not. They would not be able to answer questions about the method of producing atomic energy; they would be barred absolutely by the agreement which has been entered into between the countries that have pooled their knowledge. Therefore the committee could make no progress through questions along that line.

For these reasons I suggest that the bill should not be sent to a committee. It is a bill that is in parallel with bills being passed in the United Kingdom and in the United States. It is as good a measure as can be drafted at

this time. I daresay that two years hence it will be desirable to amend the bill. At that time the secrecy provisions may be altogether different, and it may then be quite in order to have the bill studied by a committee of the house.

A further objection to sending the bill to a committee at this time is that the subject is being discussed by an international commission; therefore it would be embarrassing to Canada's member on that commission if newspaper reports emanated from this capital giving the opinion of the parliament of Canada on a question being discussed on an international level. For that reason I cannot agree with the suggestion, much as I should like to adopt it. I know it was made in good faith' and it is one that would ordinarily commend itself to me.

I believe that the study of a bill by a small committee is usually helpful, but in this case the circumstances are such that I must ask hon. members not to insist that the bill be referred to a committee for public hearings, but instead that it be studied clause by clause in committee of the whole. I can assure hon. members that I shall take a reasonable view of any suggestions that are proposed in committee of the whole for the improvement of the bill. I hope that the bill will receive early consideration and become law as soon as hon. members can arrange.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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PC

Douglas Gooderham Ross

Progressive Conservative

Mr. ROSS (St. Paul's):

May I ask the minister a question?

Motion agreed to and bill read the second time.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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LIB

Clarence Decatur Howe (Minister of Reconstruction and Supply)

Liberal

Mr. HOWE:

Moved that the house go into committee on the bill.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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PC

Howard Charles Green

Progressive Conservative

Mr. GREEN:

May I suggest that we do not go into committee to-night but that we have the British bill and the McMahon bill printed in Votes and Proceedings for to-day, so that hon. members may have them available for study to-morrow. We could then go into committee on our bill to-morrow afternoon or on Thursday.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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LIB

Clarence Decatur Howe (Minister of Reconstruction and Supply)

Liberal

Mr. HOWE:

The difficulty is to know what precisely the etiquette of the matter is, whether it is proper to publish in the Canadian parliament a bill that is being discussed in the United States congress. The United States bill has not been enacted into law, and I doubt the propriety of acceding to my hon. friend's request, much as I should like to do so.

Mr. GREEN; Could not the British bill be published and the United States bill be printed and distributed to members instead of being included in any of our formal publications?

Redistribution

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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LIB

Clarence Decatur Howe (Minister of Reconstruction and Supply)

Liberal

Mr. HOWE:

If it will meet the wishes of the hon. member I shall have the two bills mimeographed and distributed to the members.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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PC

Howard Charles Green

Progressive Conservative

Mr. GREEN:

That is sufficient, and would help a great deal.

Motion agreed to and the house went into committee, on the bill, Mr. Macdonald (Brantford City) in the chair.

On Section 1-Short title.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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LIB

William Ross Macdonald (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The CHAIRMAN:

Shall section 1 carry?

Progress reported.

Topic:   ATOMIC ENERGY
Subtopic:   PUBLIC CONTROL AND SUPERVISION OF DEVELOPMENT, APPLICATION AND USE
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REDISTRIBUTION

AMENDMENT TO BRITISH NORTH AMERICA ACT AS TO RULES FOR READJUSTMENT OF REPRESENTATION


The house resumed from Thursday, June 6, consideration of the motion of Mr. St. Laurent for an address to His Majesty the King praying that a measure be laid before the parliament of the United Kingdom to effect an amendment to the British North America Act with respect to readjustment of the representation in the House of Commons.


BPC

Maxime Raymond

Bloc populaire canadien

Mr. MAXIME RAYMOND (Beauharnois-Laprairie) (Translation):

Representation in the House of Commons is a matter which, for many years, has given rise to numerous comments, and occasioned rather sharp protests, owing to the fact that some provinces did not have a number of representatives in keeping with their population. The resulting injustice becomes more obvious whenever the redistribution of electoral districts is contemplated, and the government is to be commended for proposing to redress that wrong.

The resolution that is now before us involves our requesting the United Kingdom parliament to amend the provisions of the British North America Act with a view to the establishment, in a clear and precise manner, of the basis of representation in the House of Commons, according to population, and the elimination of the injustice resulting from a legal interpretation opposed to the spirit of the covenant entered into by the provinces at the time of confederation.

Let us first examine this measure on its merits.

No one will deny that in a democracy the principle of parliamentary representation based on population is the fairest and the most equitable.

Now, if we take the figures of the last census and apply that principle, Ontario would have 83 members and Quebec 73, each member representing an average population of 45,578 while through the application of section 51 of the British North America Act,

according to the legal interpretation given thereof by the London courts, Ontario would have 82 members with an average population of 46,190 for each constituency, Quebec having 65 members with an average population of 51,213. Is that fair and equitable?

Yet, the spirit of the federal covenant entered into by the provinces was that the citizens of all provinces were to be placed on an equal footing. Reference to the parliamentary debates that were held on the resolutions which constitute the true covenant shows that such was unmistakably the intention. I shall deal again with this point later.

Can we indefinitely tolerate that the Quebec citizens should be considered as inferior beings, and that they should not be entitled to a representation equal to that enjoyed by the Ontario citizens? That is the question which comes up at this time. If we are to keep on living in the same house, it is time that such a situation be clarified, for otherwise we shall have to consider getting out of it.

It is perhaps proper that I should recall the slogan originated by George Brown, the founder of the Toronto Globe, "Representation by population". That was under the Act of Union which had granted an equal number of representatives to Upper Canada (Ontario) and Lower Canada (Quebec), at a time when the population of Lower Canada was much greater than that of Upper Canada. Indeed, in 1841, Lower Canada, a French province which is to-day called Quebec, had a population of 650,000, as compared with

456,000 in Upper Canada, an English-speaking province which is to-day Ontario. But in time the population of Upper Canada increased to such an extent that it exceeded the population of Lower Canada; and it was at that time that George Brown thought it unfair that Lower Canada with a smaller population than Upper Canada should retain an equal representation. Hence his slogan which has become famous in our political history, "Rep. by pop."-representation by population.

That is the principle which the fathers of confederation w'anted to embody in the pact of 1887, a principle which a legal interpretation by the London court has changed or in some way distorted.

All that is asked in this resolution is that this principle of representation by population should be applied, with the formal exceptions provided in the amendment to the constitution which was agreed to in 1915

The question of national unity is being put forward. We are in favour of national unity, but under fair and reasonable conditions, and not always at the expense of Quebec.

Redistribution

What are the reasons given for opposing this measure? There are a variety of them. I shall discuss a few.

First, the increase in expenditures is mentioned.

The hon. member for Lake Centre has raised that point, and the hon. member for Nanaimo has devoted his whole speech to it. The latter hon. member feels some concern about the ratepayers.

Let us think seriously. Granting to the province of Quebec the representation to which she is entitled would involve an additional expenditure of $60,000. What a huge sum for people who are used to being treated as poor relations. Is that not enough to disturb the conscience of those same hon. members who, hardly one month ago, enthusiastically voted for a gift of $425,000,000 to England, apart from the numerous gratuities we extend to her under various forms: interest-free loan, subsidy to offset the difference between the on-credit sale price of the goods we ship her and the price paid to the producer, all that making up an additional sum of a few hundred million dollars, apart from the gifts of billions of dollars which have already been made.

Indeed, Mr. Speaker, the least that can be said about such an argument is that it is not serious.

The hon. member for Lake Centre and the hon. member for Davenport have, besides, expressed their concern about the rights of minorities for the future, should the resolution be agreed to. I hope I am not reflecting on them when I say that we had not been used to so much solicitude on their part. At least, they have never evidenced in this house any particular sympathy for minorities. Moreover, we have not forgotten the legislation passed under the Anderson government in Saskatchewan, the province where the hon. member for Lake Centre lives. No legislation has ever so brutally spoliated the rights of the French and Catholic minority. And the hon. member belonged to the party of Mr. Anderson, whom he later replaced as leader.

Nor have we forgotten that it was the party with which the hon. member for Davenport is connected that put through in Ontario the famous Rule 17, of woeful memory.

No, this passing regard for minority rights leaves us quite skeptical.

I now come to the more momentous argument of a constitutional character.

It cannot be gainsaid that the province of Quebec has long been subjected to an evergrowing unfairness. Must this unfairness be allowed to subsist or should we attempt to

redress it? Such is the question at issue, and we, of the province of Quebec, are interested in knowing the attitude of this house, as well as that of the other provinces, in order to chart our future course.

The problem, however, is to determine how we should go about it?

In view of the legal construction placed by the Privy Council upon subsection 4 of section 51, it may be wondered if the government could not have attained a similar purpose by using section 52 in connection with subsection 2 of section 51, without tampering with subsection 4 of section 54, nor resorting to some amendment to the constitution.

Under section 37 of the British North America Act, representation at the time of confederation was established in proportion to the population, allowing 81 constituencies to Ontario, 65 to Quebec, 19 to Nova Scotia and 15 to New Brunswick.

Sections 51 and 52 then provide for a revision of representation following each decennial census.

Section 52 states:

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.

This section therefore enables parliament to increase the number of members of the house without any amendment to the constitution, provided the representation proportionate to the number of population of the provinces be not disturbed, with Quebec serving as a basis in establishing the quotient. Subsection 2 of section 51 states that representation should be proportionate to the number of population in each province.

Of course, subsection 1 of section 51 states that "Quebec shall have 'the fixed number of sixty-five members." But no one will claim that when Parliament was granted the power to increase the number of. members, it was the intention to increase solely the number of members of other provinces, at the prejudice of Quebec, despite its growth of population. It w!ould have been an unspeakable injustice. Besides, this is a point which has already been clarified. Reference to the debates on Confederation, at the 1865 session of the Parliament of the United Province of Canada, will show that the question was brought up as to whether the number of 65 members allotted to Quebec was subject to increase with the growth of population. Now here is the answer, given by Sir Hector Langevin, solicitor

Redistribution

general, on behalf of the government, as reported on page 391 of the Debates for the year 1865:

The hon. member for Lotbiniere, getting over his fears and predictions and speaking of the sixty-five members from Lower Canada, put the following question-"Suppose the population in Lower Canada should in ten years increase thirty-four per cent, while that of the other provinces increases only thirty per cent, would it not be unjust to Lower Canada that the number of its representatives should remain the same, should still be sity-five, while that of the other provinces will be increased; w'hile in any ease the number of representatives from the other provinces is not to be diminished unless their pouplation should diminish five per cent?" The resolutions do not prevent Lower Canada from having more than sixty-five representatives, if its population should increase faster than that of the other provinces. _ The French translation of these resolutions is erroneous, for it says that "for the purpose of determining the number of representatives from each province at the end of every decennial census. Lower Canada shall never have either more or less than sixty-five representatives," whereas the English version of the resolutions, which is the official version, says: "Lower Canada shall always be assigned sixty-five members." This does not mean that Lower Canada can never have more than sixty-five members, but that it can not have less than sixty-five members. That is, I think, a categorical answer to the hon. member's objection.

It is true that the British North America Act which came back to us from London said under section 51-1: "Quebec shall have the fixed number of sixty-five members" whereas the resolution passed by the various provinces mentioned: "Lower Canada (Quebec) shall always be assigned sixty-five members."

But if this difference in phrasing gave rise to any misunderstanding, we should refer to the official interpretation of the resolution, which really constitutes the pact entered into by the provinces, and which I quoted a minute ago.

It follows from these provisions of the British North America Act, therefore, that parliament has the power to increase representation at the House of Commons, according to the population of the various provinces, without infringing upon section 54-4, which is effective only in the case of a decrease in the representation of a province. Moreover, section 51-1 does not prevent Quebec from having a greater number of members.

Why did the government not raise the number of members to which Quebec is entitled, in view of its population, under these provisions? I do not know, this procedure might have given rise to legal interpretations, such as we have had before, endangering the principle of representation according to population or at least delaying its application.

In any case, since the government wish to resort to a constitutional amendment, I revert to the resolution as introduced.

The resolution, as I have pointed out, calls for an amendment to the British North America Act.

According to the hon. member for Lake Centre (Mr. Diefenbaker), the bill calls for the most radical change to our constitution since the passing of the confederation act in 1867.

If the change is as fundamental as he contends, we must conclude that the idea of the agreement was to give Quebec an inferior status to that of the other provinces, and that the party which he represents is resolved to perpetuate that subordinate position. In that case, it is high time to take action and to put an end to this situation.

But such is not, to my mind, the aim of this measure, which, far from violating the spirit of the agreement, tends to restore its proper meaning.

I have shown that the pact was designed to allot the number of representatives from the various provinces to the House of Commons proportionately to their population. This is the principle embodied in the resolution.

How should we proceed to amend the constitution? The British North America Act does not indicate any solution. We should fill in this gap.

The custom followed has been to petition the imperial parliament. Here is another remnant of colonialism which must disappear. It seems illogical that we should be required to amend our own constitution through a foreign country, after our rights as a sovereign nation have been recognized by the Statute of Westminster.

Up till now, in spite of various attempts to put an end to this anomaly, the dominion and the provinces have not yet succeeded in finding a method of procedure acceptable to all parties. Let us hope that this will not be too long delayed. For the time being, I will merely observe that the constitution should not be left simply to the mercy of a parliamentary majority which might alter its spirit.

It has been claimed that the provinces should have been consulted.

In the first place, I must say that I cannot accept the argument propounded by the Minister of Justice to the effect that this matter of representation in the House of Commons concerns the dominion exclusively and affects the provinces in no way whatsoever. To my mind, this problem takes on a dual aspect and has a bearing on both the dominion parliament and the provinces since it is in the interest of the latter to have in the federal sphere

Redistribution

a fair and equitable representation. I believe the Minister of Justice would have been well advised if he had consulted their delegates at the recent interprovincial conference held at Ottawa or otherwise. The fact that the provinces were not approached, however, should not prevent a member of the dominion parliament from voicing his opinion on the merits of the resolution now before the house.

What is the object of this resolution? It seeks to right the injustice inflicted on the province of Quebec to an increasingly marked degree in violation of an agreement entered into by the provinces relating to representation on the basis of population. We are not concerned with passing legislation to amend the British North America Act; we have neither the right nor the power to do so, nor have the provinces, for that matter, since the B.N.A. Act is an imperial statute which the Imperial Parliament alone may alter. We are concerned only with expressing a recommendation with a view to righting an injustice which springs from the legal interpretation given a clause of the B.N.A. Act and distorting its spirit. This recommendation, according to the practice observed due to the lack of some other recognized procedure, is presented to the United Kingdom Parliament which is alone authorized to amend our constitution and grant our request.

As member for a Quebec riding affected by this situation, I deem it my right and duty to support this resolution. In expressing this attitude, I feel that I am carrying out the spirit set forth in the resolutions passed by the provinces which subscribed to the agreement; these resolutions, of which the B.N.A. Act is but the legal embodiment, intended the provinces to be represented in the Dominion Parliament in proportion to their population. We were to be on an equal footing, but we are not. Let us put things right.

As far as the provinces are concerned, nothing prevents them from voicing their opinion on the merits of this bill.

Those wishing to see this obvious unfairness rectified could express a recommendation identical with the one set forth in the resolution; they might even have done so earlier, since the injustice has been manifest for some thirty years at least. On the other hand, those wishing to perpetuate the injustice inflicted on Quebec could protest against the step taken in this instance by the dominion parliament and express their grievances to the only authority at present entitled to hear them, that is, the imperial parliament which is empowered to amend the text of our constitution and to render a final decree. I hope

all the provinces will voice their opinion so that the people of Quebec may know what guarantee of fairness confederation holds in store for them in the future.

The hon. member for Lake Centre moved his amendment obviously with the intention of defeating the resolution.

The resolution would correct an injustice while the proposed amendment would perpetuate that same injustice. Such, in brief, is the situation.

According to the terms of the amendment, the government would be required to consult with the different provinces and could only proceed with the resolution upon satisfactory conclusion of such consultations. Who shall . decide whether the consultations gave satisfactory results and who would such results have to be satisfactory to? From the stand taken by the Progressive Conservative group, only one solution would be satisfactory to them and that would be to deprive Quebec forever of her right to a fair representation.

In fact, the amendment leads but to the maintenance of a status quo perpetuating an injustice.

Before closing my remarks, I wish to underline certain contradictions in the attitude of hon. members who have put forward the constitutional argument.

In 1943 the government moved an amendment to our constitution which seriously affected Quebec's right to a fair representation. Not only were the provinces not consulted, but the Quebec legislature protested unanimously.

Here is what Bernard K. Sandwell, editor of the Toronto weekly Saturday Night, wrote on August 7] 1943, regarding the consequences of such an amendment. I quote:

The present amendment does very gravely affect the right of the people of Quebec, not as electors of the Quebec legislature, but as electors of the dominion parliament. It considerably curtails the proportion which their representation, as provided by the B.N.A. Aet, bears to the representation of certain other provinces and therefore of the rest of Canada taken as a whole.

Neither the hon. member for Lake Centre nor the hon. member for Davenport tried to uphold the constitution; on the contrary, they both supported the amendment. Quebec was to be treated unfairly, so there was no question of consulting the provinces or of respecting their views; there seemed to be no principle involved and there was no need then to quote so extensively from the utterances of former statesmen.

To-day, three years later, we have before us a bill which would correct an injustice with regard to the representation from the province of Quebec, in accordance with the

Redistribution

spirit of the confederation pact, and immediately there arises the question of principle. The text of the constitution must not be tampered with, even to give it its true meaning. I find with amazement that those same hon. members are also asking for a postponement of the redistribution until 1952, thus renewing the injustice of 1943-which would necessitate our amending the constitution- without consulting the provinces. Rarely have I witnessed a more glaring example of inconsistency.

As a parting remark, I submit to the consideration of those who so often speak of national unity, the following extract from an article on Quebec's representation, which appeared in the 15th of March edition of Maclean's Magazine. I quote:

Redistribution of parliamentary seats likely will be one task of parliament's new session. It will perhaps do a service to national unity if English-speaking Canadians realize that Quebec is underrepresented in parliament as we stand now, and some of the English-speaking provinces are overrepresented.

Topic:   REDISTRIBUTION
Subtopic:   AMENDMENT TO BRITISH NORTH AMERICA ACT AS TO RULES FOR READJUSTMENT OF REPRESENTATION
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LIB

Louis-Philippe Picard

Liberal

Mr. L. PHILIPPE PICARD (Bellechasse) (Text):

Mr. Speaker, there are two principles involved in the resolution before us. First, there is that of the representation in the House of Commons from each province, and then that of the amending of the British North America Act, which latter question leads us to the broader aspect of our whole constitutional set-up. Let us admit at once that the government had no alternative but to bring forward a measure providing for the redistribution of seats at this session or at least before the next general election. It was strange to hear some speakers urging us to follow strictly the provisions of the British North America Act and then immediately afterward suggesting that we should postpone redistribution until after the next census. If it was wise, and in my opinion it was, to postpone such a measure during the war, it is imperative that such a measure be introduced now.

When considering whether or not we approve the new basis of representation, we are faced with a principle that has been the subject of long deliberations since the advent of democratic parliamentary institutions, that is, representation by population. It is not by far the only method in countries where there are minorities, but there, as in more homogenous countries it has been recognized as the most equitable.

Representation by population was not provided in the Union Act of 1840. Article IV provided for the appointment of the legislative council and fixed the number of councillors at twenty or more, to be appointed by

the governor, but did not provide that they should represent any district or section of the united province. Article XII provides:

And be it enacted that in the legislative assembly of the province of Canada, to be constituted as aforesaid, the parts of the said province which now constitute the provinces of Upper and Lower Canada respectively, shall, subject to the provisions hereinafter contained, be represented by an equal number of representatives to be elected for the places and in tne manner hereinafter mentioned.

In 1840 the population of Lower Canada was 716,670 and the papulation of Upper Canada was 432,159. It is to be noted that opinion on this question of representation has varied considerably. You see those who at one moment would have lost seats or proportionate influence by its application objecting strenuously to it, and the same people a few years later claiming loudly that they should get it when the position is reversed and they would benefit by it. As I stated a moment ago, in 1840 the population of Upper Canada was substantially less than that of Lower Canada, so that representation by population was opposed by Upper Canada and, despite the protests of Lower Canada, the representation of each section of the united province was set at an equal number; it was forty-two for each section from 1840 to 1854, when it was raised to sixty-five members for each. That arrangement lasted until confederation.

The census of 1851 showed that Upper Canada had gained considerably and had reached 952,000, while Lower Canada had at that time only 890.000. In 1855 a movement was started in Upper Canada claiming representation by population, and when the census of 1861 revealed that Lower Canada had only 1.100,000, while Upper Canada had 1,400,000, the movement gained momentum and the situation became acute as to the respective representation of the two sections of the united province. By that time Lower Canada also had reversed its stand. It was of the opinion that if equal representation has been considered good by Upper Canada when that section was less populous, it was equally good when the relation between the population- of the two provinces had changed. When Sir John A. Macdonald reviewed the unsatisfactory conditions that marked the last years of the Union he had this to say:

The next mode suggested-

He was speaking of the difficulty of settling conditions as between the two provinces.

The next mode suggested was the granting of representation by population. Now we all know the manner in which that question was and is regarded by Lower Canada; that while in Upper Canada

Redistribution

Mark these words:

-the desire and cry for it was daily augmenting, the resistance to it in Lower Canada was proportionately increasing in strength. Still, if some such means of relieving us from the sectional jealousies which existed between the two Canadas, if some such solution of the difficulties as confederation had not been found-*

Mark again these words:

-the representation by population must eventually have been carried; no matter though it might have been felt in Lower Canada as being a breach of the Treaty of Union, no matter how much it might have been felt by the Lower Canadians that it would sacrifice their local interests, it is certain that in the progress of events representation by population would have been carried.

The fathers of confederation provided for it in article 17 of the resolutions of Quebec and in article 18 of the London resolutions in the following words:

The basis of representation in the House of Commons shall be population.

This principle was implemented by article 40 of the British North America Act which determined the respective number of members from the four provinces at the first election.

Article 51. as we all know, provides for readjustment and sets the rules that should govern it.

Previous speakers have wondered why Quebec was taken for the pivot province, and some nationalists in my province appear to have seen in that fact some sort of protection or guarantee for them. I would say this, that nowhere can be found in the documents or speeches or letters available on the question anything that would warrant ascribing that motive to those who drafted the resolutions. The idea that Quebec gained by being the pivot province is a myth. The interpretation of article 51(4) has even worked against the pivot province by doing away with true representation by population. The moment that true representation by population exists, every province is in the same relation to the others whether there is a pivot, province or whatever is the device used to determine the representation. The method of amending the act constitutes the only way to prevent any dangers to the rights of any province. I will treat that later in the second part of my remarks.

As to the choice of Quebec as the pivot province, vre have the declaration of Sir John A. Macdonald, made in February, 1865, when he explained to parliament the project of confederation. He said, during the course of his monumental address:

(We chose Quebec) that province being the best suited for the purpose, on account of the comparatively permanent character of its population, and from its having neither the largest nor least number of inhabitants.

That satisfies me as being as good a reason as any I know for choosing Quebec at that time as the pivot province. The method had been chosen to ensure representation by population and yet to avoid what Sir John A. Macdonald called "the danger of an inconvenient increase in the number of representatives on the recurrence of each decennial period." The method, as we know, was to divide the population of the province that had neither the largest nor the lowest number of inhabitants and whose population had a comparatively permanent character, and according to her population determine the representation of the other provinces.

Why the number 65, is another question that has been asked. Of course, as we see in article 40 of the British North America Act, Lower Canada in 1867 was divided into 65 electoral districts. One reason for selecting Quebec might be thus related to the method provided in the present resolution before the house in this respect, that both methods devised to ensure true representation by population had also the added aim of not reducing the existing number of members at the moment of the change. As we have seen Lower and Upper Canada has respectively 65 members. Representation by population would have been just as well ensured by keeping Ontario's members at 65, but then Quebec would have lost 14 members. To many people this would have been much less acceptacle than for them to keep what they had and for Ontario to gain 17 members. What we are doing to-day is the same process in reverse. If we had true representation by population and Quebec's representation were still fixed at 65, Ontario would have only 74 seats. By the method followed in the present measure Ontario not only does not lose but gains one seat, while Quebec gains eight. The present government by following this method shows the same regard for the feelings of Ontario that the fathers of confederation had for the feelings of Lower Canada in 1867. Instead of reverting to true representation by population by reducing the membership of certain provinces, it secures that result by a new device which does not reduce substantially the representation of any province but increases that of three.

An hon. member criticized increasing the membership of this house. May I remind him of Sir John A. Macdonald's words in this regard. But before I do so, let me point out that in the parliament under the Union there were 130 members for Lower and Upper Canada when their joint population was two and a half million. That would mean that we would now have 592 members in this

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house, a ridiculously high number. Taking the representation given in 1867 to Ontario and Quebec, 147 members, we would now have 669 members, which would have been an abnormally high number. But just the same Sir John A. Macdonald did not think the number of members set at the time was high but rather that it was not high enough. I might be permitted to quote him in this regard. He said:

I was in favour of a larger house than 194, but was overruled. I was perhaps singular in the opinion, but I thought it would be well to commence with a larger representation in the lower branch. The arguments against this were that, in the first place, it would cause additional expense-

That is an argument that is being made to-day by his inheritors. He went on:

-in the next place, that in a new country like this, we could not get a sufficient number of qualified men to be representatives. My reply was that the number is rapidly increasing as we increase in education and wealth; that a larger field would be open to political ambition by having a larger body of representatives; that by having numerous and smaller constituencies, more people would be interested in the working of the union, and that there would be a wider field for selection for leaders of governments and leaders of the parties. These are my individual sentiments,-which, perhaps, I have no right to expres here-but I was overruled, and we fixed on the number of one hundred and ninety-four, which no one will say is large or extensive, when it is considered that our present number in Canada. alone is one hundred and thirty. The difference between one hundred and thirty and one hundred and ninety-four is not great, considering the large increase that will be made to our population when confederation is carried into effect.

That so-called "large increase" at the time meant a total population of four millions. Can it be said that, in order to bring a true measure of representation by population, it is extravagant to increase the membership by ten in order to avoid the necessity of reducing it by seven if we followed the old method foreseen by article 51?

Sir John A. Macdonald also stated:

In the formation of the House of Commons the principle of representation by population has been provided for in a manner equally ingenious and simple.

I contend, Mr. Speaker, that the manner provided for in the measure now under study for the restoration of the true representation by population as intended by the fathers of confederation according to their numerous statements is also a manner equally "ingenious and simple", to use Sir John's words, that commends itself to the sense of justice and equity of all those who believe in true representation by population.

[Mr. Picard.1

The fact, Mr. Speaker, that we have no definite provisions for amending our constitution or our so-called constitution is not conducive to a healthy state of affairs. That very lack constitutes a danger in this way, that it leaves open to argument the methods for amending and the conditions which must be followed. On certain amendments of the British North America Act, about certain clauses, any interpretation is as good as another, whether or not the parties to the pact are to be consulted. Previous speakers have enumerated the eight different amendments of the British North America Act since it came into force, and I am not going into that again; but on no occasions have the provinces been consulted, although it might be said that in 1907 the amendment provided for a revision of the scale of subsidies to the provinces, and that came after resolutions passed by the provincial conferences of 1887, 1902 and 1907. Yet on two occasions the question of representation in the Senate, on one occasion the representation in this House of Commons, were involved and the provinces were not consulted, although the measure changed in a sense the balance of sectional power. The act of 1886 authorized the parliament of Canada to make provision for the representation in the Senate and the House of Commons of Canada, or in either of them, of any territories which for the time being form part of the dominion and are not included in any province thereof. The act of 1915, as has already been stated, raised the number of senators to ninety-six and increased the divisions of Canada from three to four, and provided for a different mode of representation for Prince Edward Island. To-day we have a resolution proposing a third amendment affecting the representation.

Having regard to the procedure followed in the past of not consulting the provinces on such a question, I ask myself, has parliament the power to deal with this matter of representation? To this I answer: in default of any definite rules on the matter in the British North America Act, and since the provinces are represented in this parliament, I consider that we have sufficient authority.

My second question is, does the redistribution of seats provide a true way of bringing about a fair measure of representation by population? To this I have already built up my case for the affirmative in the first part of my remarks.

My third question is, are we in this resolution carrying out the wishes of the founders of confederation? My answer is, not only are we doing that, but we are correcting a

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state of affairs which they had surely not foreseen when they enacted subsection 4 of section 51; that is, representation disproportionate to population given to the largest province.

Having thus satisfied my conscience, I shall vote against the amendment and for the resolution.

However, I am not willing to let the case rest with such a conclusion, and I feel that I must pursue farther the aspects of the question having regard to the future. Does this procedure which has been followed in the past, and which now I am about to support by my vote, guarantee a safe element of stability between federal and provincial rights, and is Canada's constitutional position consistent with its status of a sovereign state? These are two broad questions, and I have very little time to do them justice.

The hon. member for Lake Centre (Mr. Diefenbaker) has quoted an impressive list of authorities to uphold the theory that the provinces ought to be consulted in a question of this kind. I have made a review of many of his quotations, and I am quite in agreement with them on one point, that it would be a most unhealthy practice for this house to go on forever assuming the right to press for amendments to the British North America Act without devising some way of obtaining the views of the parties who entered into the contract or the treaty whose terms are the Quebec resolutions. I do not intend to start an argument as to the nature of the agreement which led to the passing of the British North America Act. Surely the latter is not an instrument which should be continually amended at will by the federal parliament alone. I may be wrong, but I feel I am in good company when I say that. .

Parliament appears to have been created by the act of a superior legislative body; yet this is not true, and the appearance results from a situation peculiar to our condition of colonies at the time of confederation, because the pact was the resultant of negotiations and agreements between equals at the time. The Act of Union of 1840 was de jure and de jacto the mere expression of the will of the British parliament about the management of some turbulent colonies to which it was granting its first responsible government. Therefore it could have been amended by the constituting authority without any consultation with the colony. The British North America Act, however, was not imposed on Canada. It came as the result of long negotiations initiated by the colonies and taking place among themselves without the intervention or control of Great Britain. All the correspondence and the documents pertaining to these negotiations

point to the origin from within and not to the imposition from without. They show the desire and anxiety of a group of enlightened men who were far from being geniuses but who were men of good will and courage, who understood that their respective and joint interests would be better served if they united together.

Speeches made at the time of confederation and the interpretations by all constitutional authorities lead to the conclusion that Mac-'donald and Cartier wanted to create a strong central government, while at the same time assigning to the provincial legislatures definite and enumerated powers, We do not have to go over all the reasons which made a federal union the most acceptable scheme to the colonies and the most practicable in the circumstances; but it is evident, not only by the text of the British North America Act but by the speches made by the fathers of confederation, that they wanted a strong Canada with the central government as the predominant factor. On the other hand, we know from Sir John A. Macdonald's own lips that not only Lower Canada but the maritime provinces would not have joined in a legislative union. By what has happened since then, and even very recently, we know that the provinces are jealous of their powers and prerogatives, not only as concerns personal and property rights or minority rights, but also on the other items over which they have been clearly given authority, not to mention those which they are trying to get by broader interpretations of article 92.

Mr. Speaker, hearing some provincial leaders, one might think the Canadian parliament is a foreign institution instead of being made up of representatives of all the provinces.

I am one of those who believe that Canada must emerge out of these differences a bigger and better country with strong national legislative institutions, and I believe that the interests of the nation are not well served by the constant expansion of provincial authority in fields where no civil rights are involved and no minority rights are endangered. Nevertheless, if we have a federal form of government as a result of agreement between different bodies such agreement should not be tampered with in matters of respective powers without some sort of consultation. Instead of arguing repeatedly in academic debates whether this method or the other should be used for amending the act of confederation, we should recognize once and for all that, since it does not contain in itself the necessary provisions for its amend-

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ment, we should take the necessary steps to provide for them by agreement between the dominion and the provinces.

There are three known methods of changing the constitution: First, by growth of convention or custom; second, by progressive judicial interpretation; finally, the method of formal amendments. Speaking before the special committee on the British North America Act sitting in 1935, the late Doctor

O. D. Skelton, then under-secretary of state for external affairs, had this to say of these methods of changing the constitution which had been advocated as sufficient by the previous witness:

I think that, however useful and necessary these two methods may be, they are not adequate, they are not certain, they are not sufficiently rapid to meet rapidly changing needs. Courts may modify: they cannot replace them. They can revise earlier interpretations as new arguments, new points of view are presented, they can shift the dividing line in marginal cases, but there are barriers they cannot pass, definite assignments of power they cannot reallocate.

Other speakers have wondered why the resolutions of Quebec did not advocate any method or provide any method of amending the provisions therein contained. It may be said that in 1867 Canada was still a colony and the only authorized body to legislate on the shaping of our institutions was the British parliament. It had done so in 1771 and in 1840. Neither act provided for its own amendment. Britain alone could amend the act it had consented to pass at the time, and I suppose that with the mentality of the time it was not considered decent for a colony to tell the mother country how to act. That was the period when Sir John A. Macdonald, despite his strong expressions of Canadian nationalism, yet qualified meekly some of his statements, as follows:

Instead of looking upon us merely as a dependent colony England will have in us a friendly nation, a subordinate people.

And later on he said:

She-

Britain.

-will be able to look to the subordinate nations in alliance with her.

Well, we are no more a subordinate nation and the time has come for us to enact our own constitution. As Doctor Skelton also stated in 1935:

The Canadian constitution, or the British North America Act, which is the backbone of it, is unique in that we alone of all peoples do not know how our constitution is to be amended, are not clear as to what parties are to act in securing amendment, what procedure is to be followed, or what majorities are to be required.

Our sister dominions all have power to amend their constitution. In the case of South Africa, it passed a constitution act in

"

1935, which modifies the British act of 1909. New Zealand was constituted by an imperial act in 1852, and it had a system, federal only in name, with the power for parliament to alter from time to time any provisions of the act. The constitution of Australia dates from 1900, and provides specifically for amendments.

Referring to the changes between these constitutions and the British North America Act, Doctor Skelton stated:

A generation later, when Australia came to frame its constitution, and nine years later still when the South Africa Act was passed, a marked change in interimperial relations had come about and continued control by the United Kingdom was no longer conceivable. Neither dominion was prepared to leave future amendment to Westminster and definite provision was made for amendment at home. Canada was mainly responsible for the growth in interimperial relations which brought this about but its own constitution remained in form the vestige of an earlier day, while its younger sisters obtained up-to-date models.

We shall always have with us that problem of dominion and provincial powers; we shall always have these recurrent disputes about amending the act of confederation until we tackle the broader problem of enacting for Canada a truly national constitution. Professor F. R. Scott of McGill university stated lately:

The practice of going abroad for such national legislation seems too incongruous to survive for long.

But it is not only the awkw'ardness of the process that concerns us, which should justify a change in our constitutional set-up. Our status as an independent and sovereign state makes it imperative for us to remove once and for all that vestige of colonialism. Instead of sharing the fears of certain timid souls in my province for a truly Canadian constitution which should be amended according to definite rules, I have always believed it could easily be framed so as to protect essential rights.

Professor Angus of the university of British Columbia is of the same opinion when he

states:

It is imperative to make provision for the formal process of constitutional amendment for the sake of protecting provincial governments against the insidious development of constitutional conventions of preserving a federal form of government.

There is another and most serious argument operating in favour of our having a constitution of our own and of our being able to amend it according to definite and sufficiently pliable lines or rules. It is Canada's present position in the field of international affairs. It is Canada's necessity at times to enter into treaties and conventions. More and

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more, the influence of economic conditions throughout the world will have a bearing on the maintenance of peace. More and more, the nations of the world will have to collaborate in economic and social matters. More and more, agreements will have to be negotiated to ensure and implement such collaboration.

At the present moment the social and economic council of the united nations is meeting in New York; its six committees are studying a multitude of problems whose effective solution would demand international collaboration and would demand, afterwards, the implementing of those resolutions by national legislation enacted by all the signatory members. Mr. A. G. B. Fisher, writing recently on "International economic collaboration and the economic and social council," aptly stated:

Talk about cooperation, coordination, or collaboration is rather hollow if we are prepared to participate in international conferences and discussions only with the implicit reservation that we are not to be expected to make any substantial modification of policies which we have already decided to apply.

Canada, because of the position she has secured in international affairs, due to her potentialities, but mainly due to the role she has played in the economic and industrial field during the last war, cannot to-day remain indifferent to world trends in economic and social matters. She cannot shirk the responsibilities and obligations imposed upon her.

How would Canada be able to implement agreements she might enter into under our present constitutional set-up? Professor Angus of the university of British Columbia, in an article entitled, " The Canadian constitution and the united nations charter," states:

The existing policies which me may have to modify may be either federal or provincial, and it will therefore be extremely serious if constitutional impediments continue to obstruct the conclusions or the implementation of agreements on economic and social matters.

In short it is not safe for Canada to leave the constitutional position with respect to the implementation of treaties as it stands under the British North America Act. It is not easy to point to a solution which would maintain the fundamentally federal character of the Canadian constitution. If the process of treatymaking is easy, as it is in Canada, the power to implement any and every treaty would be tantamount to the power to amend the constitution at will and the exclusive legislative powers of the provinces would exist merely on sufferance.

If treaty-making were difficult, as it would be apt to be if the consent of a large proportion of the provinces were required, then the progress of international cooperation would be blocked at the outset. It would, therefore, not meet the difficulty if the Canadian government were to be given full power to enact legislation designed to implement Canadian treaties but were required to secure ratification of these treaties by some process designed to protect the provinces.

Now, Mr. Speaker, we have two objects to attain: first, do our share of the work to bring about better international cooperation in the economic and social field; and, second, do it in such a way as not to affect the rights of the provinces as attributed to them under article 92, or so as to secure an understanding with them on such matters as regards our multilateral international agreements.

The federal government, of course, can enter into a treaty with any foreign power; but, on the other hand, it cannot under the British North America Act do things or pass laws that are within the legislative competence of the provinces.

At the present time we have no machinery devised to enable us to correct this situation. If we assumed these rights by a process similar to the one we are using in the present instance, our form of government would ultimately lose its federal aspect. On the other hand, if we had to secure approval or ratification in each and every case through the medium of dominion-provincial conferences, the processes would be too clumsy and too slow. Such situations could be foreseen in the drafting of a Canadian constitution and the proper machinery provided for amending it.

A constitution is the basic and most important feature of legislation that any country may enact. A constitution is the foundation-stone of a state; it is the compound of general principles that govern the political life of a country'. As Professor Mirkine-Gueteevitch says in his book entitled, "The Constitution of New Europe":

The constitution of each state is always the result of a compromise between existing political traditions and the general principles of constitutional law, and its elaboration and drafting are of the competence of juridical science. Constitutional law is not something immovable; it is modified by the march of ideas and of political events.

The famous Sieyes said at the time of the French revolution:

The positive laws that can emanate only from the will of the nation are the constitutional laws. These are called fundamental, not in the sense that they may become independent of the national will, but because the bodies created by them acting according to them cannot touch them. The constitution is not the work of the constituted but of the constituent power.

What body, then, in Canada should be the constituting authority? I wish to quote here a brief extract of the evidence given by Doctor Beauchesne, K.C., C.M.G., LL.D., before the committee that sat in 1935. Doctor Beauchesne said:

Drafting a constitution is a serious matter, particularly in a federated country like Canada. Suggestions have to be weighed with calm deliberation and reconciled with the needs of the

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nation. Some plan embracing the whole life of the nation has to be accepted. Geography, natural resources, avenues of trade, transportation, social legislation and racial harmony have to be considered. It is idle to think that this can be done in the same formal way as an amendment to a public statute. The new constitution must leave nobody with a grievance. A spirit of conciliation should predominate. For these reasons, the task must be entrusted to an independent body in which all the elements of the country will be represented. I, therefore, beg to suggest an imposing constituent assembly formed of eminent men coming from all parts of Canada. Provincial conferences, attended by a few ministers meeting behind closed doors, would hardly satisfy public opinion. The debate should be public. I submit that a constituent assembly, chosen by the provincial legislatures and by the House of Commons, representing the main political parties and groups in proportion to the votes given at the last general elections, should meet in session and discuss the constitution from all its angles.

Later on, Doctor Beauchesne said:

The number of members representing the dominion and each province would be equal to one-fourth of the membership of all those legislative bodies in Canada.

Then he gave a suggestion that the British North America Act should be transformed into a constitution which would meet the requirements of present conditions but still preserving the minority rights guaranteed by the said act. Then he went on to state that:

Once a constitution has been passed by the constituent assembly, it should be adopted by each province and by the dominion, but before coming into force it should receive the assent of His Majesty.

The British North America Act should be the basis of the new constitution. Some articles which are now spent could be well left out. A method of amendment should be provided, and special clauses should deal with the powers of the federal parliament in relation to the implementing of multilateral international agreements.

May I at this point commend the reading by everyone who is interested in our constitutional problems a book entitled, "Problems of Canadian Sovereignty" by Doctor Maurice Ollivier, K.C., LL.D., which has already been quoted by the hon. member for Lake Centre. It is a most remarkable book. Doctor Ollivier also made a splendid contribution to this subject when he appeared before the special committee of 1935, and his whole evidence is food for thought.

I do not want to enter into the details of the procedure suggested by Doctor Ollivier. The hon. member for Chambly-Rouville (Mr. Pinard) has already touched on one point in the good speech he made last Thursday, namely, the order in which the constitution should cover the different items of the British North America Act. The procedure for

amendment of the different articles of the constitution, would also demand longer time than I have at my disposal, but I should like to quote the following from Doctor Ollivier's book:

The fundamental principle, which is at the basis of social, political and parliamentary institutions of British democracy, is that the state exists to serve the individual and in doing so that it serve the general interest, not only of the nation, but of all nations. The state should take note of the aspirations and rights of its different parts, in the present instance, of the provinces, but the provinces themselves should in their turn be careful not to destroy the unity which the fathers of confederation tried to create.

Here, as in England, political liberty is the goal of the constitution, for rulers are created for the benefit of the people and not people for the benefit of the rulers. We should, therefore, bend our efforts to maintain in this country popular government, individual liberty and social justice as the only means capable of assuring to all, an equal chance to work and to profit from the better life that comes with material progress, in other words, of guaranteeing to all, freedom from want and freedom from fear, remembering that economic and political nationalism has always, in the past, created racial strife and world disasters.

In line with these words, I personally would include in the constitution not only the provisions of the British North America Act but such an act as was suggested sometime ago by the hon. member for Lake Centre, namely, a bill of rights, which should be part of our constitution.

In conclusion, may I say that Canada has reached the adult stage. She has emerged from the war as one of the very few creditor nations. She is now the third largest trader in the world. She has a role to play in the after-war commensurate with her new stature. She has outgrown her outmoded, colonial style constitution, and it is time for her to assert her national will and to take her place among those nations of the world which have elaborated constitutional monuments as their basic law. Canada owes it to herself to nominate a constituent assembly and to draft a new constitution. How fitting it would be if the party which has always been to the forefront in the enactment of forward and emancipated measures and the Prime Minister, (Mr. Mackenzie King), who has attached his name to so many progressive moves and who has for longer than anyone led our country through war and peace with such ability, should initiate the necessary steps to give the people of Canada a long-awaited Canadian constitution.

Mr. JOHN T. HACKETT (Stanstead): Mr. Speaker, the motion which the Minister of Justice (Mr. St. Laurent) has brought before the house entails the consideration of

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at least two questions: that of giving adequate and fair representation to the people of each of the nine provinces, and that of determining if an amendment of the British North America Act is necessary to bring about the desired equality of representation. In the latter hypothesis I am willing to endorse what has been said by the hon. member who immediately preceded me, who reiterated what is known to every hon. member, namely, that unlike the constitution of the United States and those of the other members of the British commonwealth, our constitution is without any specific means of amendment. An attempt to amend a document, especially a constitution, when no specific method is provided for carrying it out, is a perilous undertaking.

At this juncture I should like to say to the hon. member for Beauharnois-Laprairie (Mr. Raymond) that any reluctance on the part of the party to which I owe allegiance to entrust the right to amend the constitution to the whim of a party should not be interpreted as direct opposition to rectifying the inequality of representation at present existing between the different provinces. I can assure the hon. gentleman that if he allows the generosity which guides his steps in so many walks of life to dictate his appraisal of his opponents he will come to the conclusion that there may be sound and salutary reasons for objecting to the present suggested means of amending the constitution, reasons in fact quite other than that of desiring to retard the hour of equality of representation within the dominion of the province of which we are both citizens and devoted sons.

On motion of Mr. Hackett the debate was adjourned.

On motion of Mr. St. Laurent the house adjourned at 10.57 p.m.

Wednesday, June 12, 1946.

Topic:   REDISTRIBUTION
Subtopic:   AMENDMENT TO BRITISH NORTH AMERICA ACT AS TO RULES FOR READJUSTMENT OF REPRESENTATION
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June 11, 1946