October 18, 1949

IND

Raoul Poulin

Independent

Mr. Poulin:

I am sorry, but I have already discarded some quotations-

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Louis-René Beaudoin (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Beaudoin):

The

member for Bonaventure (Mr. Arsenault) knows very well that he cannot ask his question without the hon. member's consent.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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IND

Raoul Poulin

Independent

Mr. Poulin:

I believe I have been condescending in permitting one question and if another were granted, it would take too much of my time.

Under the circumstances, the notary-it was the Right Hon. Ernest Lapointe who coined that expression-was the imperial parliament. The notary had long side-whiskers, rather narrow glasses, but was very broadminded and compliant. He did not object to the provisions of the contract but very obligingly helped the parties to draw their terms in legal form.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Bona Arsenault

Liberal

Mr. Arsenault:

Was the province of

Quebec really a signatory of the British North America Act?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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IND

Raoul Poulin

Independent

Mr. Poulin:

The years went by. The parties to the treaty got used, more or less, to the yoke they had submitted to, of their own free will.

In 1907, a matter was brought up which reopened the discussion on the nature of the political constitution of Canada. A provision was being introduced to increase federal grants to the provinces.

What were the views expressed by the statesmen of that time? I shall give only two quotations from many that have been gathered.

British North America Act

In the Debates of 1906-1907, page 2199, Sir Wilfrid Laurier said during a discussion on legislation providing for an increase in the grants to the provinces:

Confederation is a compact, made originally by four provinces, but adhered to by all the nine provinces which joined the union.

And on the same page, Sir Robert Borden is reported as saying:

I agree with what has been said by the right hon. gentlemen regarding the undesirability of lightly amending the terms of our constitution-although of course all the provinces are represented here. But inasmuch as it is a federal compact which we are asked to vary . . .

Then more recently, in 1925, a full debate took place in this house on a resolution quite similar to the one before us now.

Let us review briefly what was said then by our statesmen, by our great party leaders who, after all, were as able as we are to appreciate events which were closer to them by some twenty-five years.

I wish to quote from page 332 of the Hansard of February 19, 1925, where the Right Hon. Mackenzie King stated the following:

Due regard should be had to the view that a compact was made at the time of confederation, and that an amendment of the importance that such an amendment certainly would have, ought only to be proposed after there had been a conference and agreement between the dominion and the provinces.

According to page 335 of Hansard of February 19, 1925, the Right Hon. Arthur

Meighen said:

Undoubtedly, the pact of confederation is a contract and there are rights involved therein not represented by the parliament of Canada . . . The speech of the Minister of Justice determines, I think, without power of dispute, that there should never be suggestion of amendment affecting other parties to the contract save after conference and consent of those other parties.

I shall now quote the opinion of the hon. Senator Thomas Vien, who must enjoy much consideration since he has been so well rewarded. Here is what he had to say on February 19, 1925, as recorded on page 310 of Hansard for that year:

I fully agree with the hon. Minister of Justice (Mr. Lapointe) that a pact which was entered into at a conference where all the component parts of what was then Canada were represented should not be lightly dealt with or amended, without a conference where the opinions of the representatives of all those provinces which now form part of the Dominion could be collected and fully considered.

And further on:

Our country is one of the contracting parties and no one can have the contract altered, except with the unanimous consent of the contracting parties.

[Mr. Poulin.1

And at page 313:

As in the case of a contract between private individuals, you cannot change the British North America Act without first convening a conference similar to that as a result of which the act originally came into being.

And the Hon. Ernest Lapointe expressed himself as follows, as reported in Hansard of February 18, 1925. I quote from page 298:

Now, has it (the Canadian constitution) been considered as a treaty? I heard it suggested some time ago that this idea at confederation of a treaty is an antiquated idea. Maybe it is. But, Mr. Speaker, truth does not cease to be truth when it gets old; an old truth is always true. You cannot prevent facts from being facts whether you like them or not.

Mr. Lapointe went on to say:

The British North America Act says itself that the Parliament of Great Britain merely enacted, put into a statute, the wish of the people of the provinces of Canada.

On that occasion, in 1925, there was scarcely an hon. member who did not agree in the house that confederation was a treaty.

And now, Mr. Speaker, all those opinions are worthless. We must forget all that. What was true yesterday no longer holds today. Everything has changed, everything has altered. Yet there are things that remain unchanged.

What has happened during the past twenty-five years to give a different aspect to historical facts?

Faced with the pressing needs of the second world war, we doubtless acquired the habit of compromising in a way we should never have countenanced in different circumstances.

It may be claimed that the theory of a constitutional compact has often been disregarded and, on such occasions, no objection was raised by the very people who are now protesting. In this respect, those whose duty it is to watch over the interests of the provinces are perhaps blameworthy, but the argument cannot justify anyone in perpetuating the evil done and still less in setting it up as a system.

I have the deepest respect for the Prime Minister. I think very highly of his personality and of the great office he fills with such distinction. On September 23, 1949, as

reported at page 196 of Hansard of the same date, he stated the following in the house:

The leader of the opposition says that whenever there has to be any kind of amendment whatsoever to any part of the constitution there should be consultation with the provinces. That is an opinion that is very frequently voiced, but it is one which we cannot accept. It would imply that the British North America Act is a contract . . .

With that theory we are in diametric disagreement.

And yet, on February 18, 1925, another great Canadian, Right Hon. Ernest Lapointe, also a Quebec representative, made the following statement in the house, as reported in Hansard:

If the British North America Act is the charter of the provinces as well as the charter of the dominion, I ask again, how can we alter it without communicating with the provinces? . . . Would it be fair to take upon ourselves the right of amending this legislation which is the constitution of the provinces as well as our own?

On page 301:

They cannot be made arbitrarily; they cannot be made only at 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.

And further on, on [DOT]the same page:

To those who want changes I would say that the only way to get them is the constitutional way to ask the consent of the various parties to confederation.

Mr. Speaker, since so many Canadians of sound judgment, so many experienced statesmen have always considered confederation to be a contract, let us at least give the contracting parties the opportunity to meet, to discuss, to try to agree in order that, unanimously, a new statute or a revised statute be introduced, in which, undoubtedly, the parties concerned will again have to accept some sacrifices, just as they did in 1867. It has been said that after this act was passed by the house, the provinces would be consulted and that, if a "satisfactory agreement" could be reached, an address would be presented to the parliament at Westminster.

It would be important to know, before this discussion ends, just what is meant by "satisfactory agreement".

Is it an agreement adopted unanimously by the provinces, such as that of 1867? If not, words and not powers will, in the future, form the bones of contention.

By satisfactory agreement do we mean exaggerated, even vexatious concessions, which the provinces will be practically compelled to accept, because, when faced with a fait accompli, they will be afraid to lose everything?

When referring to a fait accompli, I am obviously referring to the present act which will have been accepted by parliament and in which it will be nowhere specified that the unanimous consent of the provinces, or even of one of them, is required to amend our constitution.

I cannot believe for a moment, Mr. Speaker, that the prime motive of the movers of this resolution has been to have this legislation passed so that they might afterwards use it as a sword of Damocles at the provincial conference.

British North America Act

However, if such had been their objective,

I believe they could congratulate themselves on having very well succeeded.

On the other hand, I know quite well that the cause which the hon. member for Chicoutimi (Mr. Gagnon) and I, along with many others in this house are upholding is a forlorn cause. In view of the huge majority the government has in this house, I do not make the mistake of thinking that our views will be accepted but when someone has decided to engage in a fight known to be hopeless, it is generally because he has also decided to hold fast to ideals which to him are sacred and immutable.

Granting this, Mr. Speaker, I now appeal to the Prime Minister's sincerity and good will, and I trust I shall not be deceived.

Far be it from me to think that the government and its leader want to sacrifice some of the inalienable rights which are granted to one or more groups, one or more provinces, in our beloved Canada. I believe we more likely differ on the procedure to follow in order to better ensure those rights.

Well, as the government will have the best of it, being in a position to make full use of the procedure it considers the most effective and which we deem dangerous, I would at least ask it to be careful, not to move too fast, mindful of the fact that the fathers of confederation took years and years to reconcile their minds towards an agreement.

I humbly suggest to the government, when the house has passed this legislation, to be very obliging, conciliating and patient with the representatives of the provinces who I understand are to be called to a conference. The government should give as much latitude as possible to the provinces, bearing in mind that the first Canadian constitution was drafted by the provinces, a historical fact that can never be gainsaid.

Mr. Speaker, I am not obstinate, I am not stubborn and if I could be useful to the government in its very difficult endeavour, I would offer my humble co-operation; but that, I know, is not necessary.

Let us not forget, Mr. Speaker, that the individuals pass away rapidly, that generations follow as quickly and that the task we are undertaking today for their sake will be appreciated according to the earnestness with which we settle down to it.

However, since I cannot approve of the procedure followed by the government, I shall have to vote against the resolution.

(Text) :

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

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

Mr. Speaker, it is all to the good that long and careful consideration should be given by

924 HOUSE OF

British North America Act this house to the address that has been moved by the Prime Minister. It will only be through discussion and deliberation on the part of parliament that the nature of the procedure being requested by the government, and the arguments both for and against the adoption of that procedure, will be fully understood.

I feel that one course that should be adopted in connection with the consideration of this address-if it indeed be a fact that what we are doing on this occasion will constitute a landmark in our constitutional set-up in this country or a milestone that we will look back upon over the years-is that the matter should be brought before a committee of the whole house. Such a move would enable the members of this house to secure information regarding the reasons leading up to the adoption of this plan, and the departure from the pledged word of the Prime Minister as given during the election campaign.

Even at this late hour in the discussion, I should like the Prime Minister to consider whether it would not be fitting and proper to have this matter discussed by a committee of the house so that we may obtain full information relative to the address as well as the answer to various questions, which will not be answered unless the house moves into committee. I am sure that hon. members in all parts of the house have waited for the answers to many questions that arise in their minds.

This debate has been conducted as one would expect a debate of its kind to be conducted in a deliberative assembly under a democracy. The address of the Prime Minister (Mr. St. Laurent) was a historical symposium and a record of the steps taken to effect amendments since confederation, while the speeches of the leader of the opposition (Mr. Drew), the leader of the C.C.F., and the leader of the Social Credit group indicated that, as we all do, they approach the consideration of this problem with the consciousness and pride of Canadians. That attitude is,

I think, worthy of all those who have contributed to the debate.

I regret, Mr. Speaker, that you found it necessary under the rules of debate to declare that the amendment moved by the leader of the opposition could not be discussed by parliament nor be considered an amendment to the main address. In my opinion it deals with a matter that deserves to be voted upon by parliament. The constitution of our country is not the monopoly of the government of this day, with its overwhelming majority in both houses of parliament. It belongs to every one of us. The amendment moved by the leader of the opposition would have permitted a discussion by members of this house and a vote on the question

whether or not there should be set up in this country a constitutional convention of representatives of the dominion and provincial governments to devise a method of amending within Canada the constitution of Canada, and of safeguarding minority rights so that such method might become the subject later of a humble address-

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Elie Beauregard (Speaker of the Senate)

Liberal

Mr. Speaker:

Order. I ruled the amendment out of order.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

Yes.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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?

An hon. Member:

You cannot read it.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Elie Beauregard (Speaker of the Senate)

Liberal

Mr. Speaker:

I doubt if the hon. member can now discuss it as an amendment.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

I did not in any way

suggest, Mr. Speaker, that it had not been ruled out of order. I was suggesting however that, if it had been in order within the rules, this parliament would have had an opportunity of voting on a matter that is of preeminent interest to the people of this country as a whole. I made it clear at the beginning that there was no suggestion that you could have done otherwise than you did, having regard to the rule you invoked. I take it that the hon. member for Bellechasse (Mr. Picard), with his close relationship to the previous minister of justice and his senior position in this house, must have been speaking for his party when he spoke of the necessity of the convening of such a national constitutional convention with a view to arriving at the means of amending our constitution. That statement was indeed interesting. By this procedure we are today laying the foundation in part for future amendments of this constitution.

We believe that the Prime Minister should have carried out the undertaking he gave when he spoke on the radio on May 19 last. At that time there was no circumscription which would in any way allow him to proceed in the manner in which he has proceeded in moving an address that provides only for parliament having the power to amend those things that are peculiarly within the federal jurisdiction.

I shall read his promise. If he and his party received a mandate, that mandate was with regard to something about which there never was any dispute, namely, that there is indeed need of amending the constitution in order to meet changed and changing conditions. No political party in this country, in the last fifteen years, has at any time enunciated a policy that denied the necessity for amendments to the British North America Act, subject of course to the protection of the rights of minorities, school rights and the like. But subject to those things, it has been agreed

that a means must be established of amending the constitution. I ask the Prime Minister, when he speaks, to answer one question. Where in this country did he say: If my

party is returned to power, we will amend the constitution in a dual way; we will secure for parliament immediately the right to amend the federal portions of the constitution and then a little later on we will convene an assembly of dominion and provincial representatives with a view to arriving at a method of amending the constitution in its entirety. Here is the promise:

We Liberals also believe that a method should be worked out to amend our constitution in Canada.

That won't be easy.

We do not want the Canadian constitution to be too rigid, but we do want to make sure it contains the fullest safeguards of provincial rights, of the use of the two official languages, and of those other historic rights which are the sacred trust of our national partnership.

And this is the undertaking:

It is our intention, after the election, to consult the provincial governments with a view to working out a method, which will be satisfactory to all Canadians, of amending the constitution in Canada.

That, Mr. Speaker, was the undertaking given by the Prime Minister.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. Si. Laurent:

Will the hon. member permit a question?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

Certainly.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

Does the hon. member suggest that he is so naive as to have believed that that was an undertaking by the party of which I was the leader to renounce the right that has been exercised for the last eighty-two years in this house, to have amended without consultation with the provinces those parts of the constitution that do not affect the jurisdiction of the provinces?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

The people of Canada must have been naive. The words of the Prime Minister (Mr. St. Laurent) are incapable of any other interpretation, naivete or anything else to the contrary. The undertaking was given as well at Moncton. I could quote his exact words. He said that the government would seek provincial government co-operation in drafting ways and means of amending our constitution in Canada. He did not say that we would amend it piecemeal. He said "our constitution", not a part of our constitution, not a portion designated by the Prime Minister and those associated with him, but our constitution, which meant, and could only be understood to mean, the constitution of Canada without division. Some of us would like to know when the change came about and the reason for it.

There is no question whatsoever that there is almost unanimous opinion in this country

British North America Act as to the need of amendment. There has never been any question about that over the years. In 1925 the then prime minister of this country spoke of the need of amendment. The then minister of justice, Mr. Lapointe, spoke of the need of amendment. At that time Mr. Meighen spoke of the need of amendment. All of these men also stated the grave and difficult problems that would face any government that endeavoured to secure a general principle upon which amendment could be based.

There is no question that there is agreement in parliament and throughout the country as to the necessity of the protection of constitutional rights inherent in the constitution. There is no question that we wish to bring our constitution up to date in order to meet those changed and changing conditions which have occurred since 1867. May I go back beyond that and quote the words of Lord Brougham which indicate that he had a perception of the need of constitutional reform. He used these words:

Constitutions must grow if they are to be of any value: they have roots, they ripen, they endure. Those that are fashioned resemble painted sticks planted in the ground-they strike no root, bear no fruit, swiftly decay and ere long perish.

There is no argument about the necessity of amendment, but I think that, not in a party sense, not in a political sense but in a national sense, each of us in this parliament and in the country should do what the fathers of confederation did. They joined together. Many of them were personal enemies but they joined together for the purpose of achieving confederation. I feel that through a national constitutional convention we would be able to secure that measure of agreement, that measure of unanimity based on our pride as Canadians that would achieve a permanent and complete amendment of our constitution.

Before I go on I wish to refer to the amendment moved by the hon. member for Winnipeg North Centre (Mr. Knowles). What a strange amendment it is! He believes that parliament should have the right to make the necessary amendments to the constitution in so far as the federal authority is concerned. In effect he says: "Give us that power". At the same time through this amendment he asks the British parliament to diminish the power of this parliament to do that which he says is so necessary to take a step in the direction of an amendment of our constitution. What a position this parliament will be in, going to Westminster and saying that we demand the power to amend our own constitution within the federal ambit of authority, then adding four lines at the end declaring that we do not want the power in so far as

926 HOUSE OF

British North America Act section 20 of the British North America Act is concerned. We want to ensure that the parliament of Canada will never deny a session every year and an election every five years.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. Knowles:

Does the hon. member not agree?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

I agree with the necessity of such things being embodied in our constitution by precedent, but I do not agree that if we go to Westminster and ask for power we should at the same time say that we are afraid to trust ourselves in the years to come. As a matter of fact, by that amendment my hon. friend indicates that while he asks for that much he is afraid that if too much power is exercised by this parliament democracy is indeed in danger by reason of the amendment that he says he supports.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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?

Donald MacInnis

Mr. Maclnnis:

Will the hon. member permit a question? Will he say that the same condition applies to the English and French languages?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

I must answer that question. I shall come to the question of compact, to which the hon. member for Iles-de-la-Madeleine (Mr. Cannon) referred. He said that there is no compact. In 1925 the then prime minister, Mr. Mackenzie King, called it a compact. In 1925 in the same debate Mr. Meighen referred to it as a compact. As far as constitutional rights are concerned, we in this party have always taken the stand that they are inviolable and are part and parcel of the basis upon which confederation was built.

On motion of Mr. Diefenbaker the debate was adjourned.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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BUSINESS OF THE HOUSE

October 18, 1949