October 18, 1949

LIB

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

Liberal

Mr. St. Laurent:

January 28, 1935. A committee was set up. It heard witnesses, and on the 19th of June brought in a report making no specific recommendation as to amending procedure, but recommending that a dominion-provincial conference be held to consider the adoption of a recognized yet flexible method of amending the constitution. It further recommended that the minority rights agreed upon and guaranteed by the provisions of the British North America Act should not be interfered with.

The dominion conference was held in 1935, from December 9 to December 13. The conference appointed a subcommittee on constitutional questions to discuss the revision of the British North America Act and to try to reach agreement on future action with respect to social legislation. The subcommittee

submitted a report, and a continuing committee on constitutional questions was set up, which met on January 28, 1936, and constituted a subcommittee which worked on the matter from January 30 until February 11, 1936. This subcommittee prepared a report in which it recommended that in respect of matters concerning the central government only, amendments might be made by passing an act of parliament; that, in respect of matters concerning the central government and one or more but not all the provinces, the amendment might be made by an act of parliament and the assent of the legislative assemblies of each of the provinces affected; that, in respect of a large number of matters concerning the central authority and all the provinces, the amendment might be made by an act of parliament and the assent of the legislative assemblies in two-thirds of the provinces representing at least fifty-five per cent of the population of Canada; but that there be a certain number of "entrenched clauses" which could not be dealt with except by an act of parliament and the assent of the legislative assemblies of all the provinces.

General agreement could not be obtained and the matter was dropped. It received some discussion in 1940 when a proposal to amend the British North America Act was brought forward, and again in 1943, 1946, and 1949, but without any definite results being achieved.

In considering one of these amendments in the British House of Commons Mr. A. P. Herbert was reported as follows:

The necessity for action was clear to everyone. But the view was very general that nothing could be done.

As a matter of fact nothing has been done about that procedure for the eighty-two years which have elapsed since the proclamation of the act on July 1, 1867.

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:

What date was that?

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:

I have not the exact reference here. I think it was in the discussion on the terms of union.

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

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

Redistribution.

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

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

Liberal

Mr. St. Laurent:

In a national broadcast on May 19, I ventured to say:

The record of Canadians in two world wars demonstrated beyond any question our ability and our capacity to bear the responsibilities of full nationhood. But our adult nationhood is not yet fully recognized in our constitution and our laws...

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 trusts of our national partnership.

17, 1949

British North America Act

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 was before June 27. Since then my colleagues and I have felt that we have a responsibility to accomplish as much as can be accomplished. That is why this resolution is now before this House of Commons. In a previous debate the hon. member for Broadview (Mr. Church) said that it was the accomplishment of an electoral promise. I do not blush for that. It is. Few promises were made, but, as to those which were made, we feel that a serious attempt should be made to implement them to the full.

In suggesting a procedure with regard to amendments, we take it for granted that, in the Canadian federation, constitutional matters fall into three particular classes. There are those matters which are of concern to the provinces alone and not to the federal authorities, such as the constitutions of the provinces themselves in respect of everything that is within their control. Hon. members know that from the very inception the provinces have had the right to deal themselves -each one of them, independently of anybody else-with the amendment from time to time, notwithstanding anything in the act, of the constitution of the provinces except with regard to the office of lieutenant governor. Several provinces have made use of that provision to bring their provincial constitutions more in harmony with what the representatives of those respective provinces felt to be the conditions then prevailing. Likewise there are matters which concern the federal authorities alone and which are of no concern to the provinces. It is with respect to those matters that, upon eight of the eleven occasions on which amendments were enacted by the parliament at Westminster, that parliament had to deal. In 1907 it was a matter of the provincial subsidies, which were of concern to all the provinces. In 1940 the proposed amendment had to do with the transfer of jurisdiction in certain matters from the provincial authorities to the federal authorities. In those two cases the provinces were concerned, and though in one case one of the provinces did not agree, the amendments were made. In 1930 the amendment concerned the western provinces only. In the other cases the amendments were made on the request of the houses of the Canadian parliament, because it was felt that they were matters which dealt with subjects assigned to the jurisdiction of the federal parliament.

There are other classes of matters which are of concern to both the federal and the provincial authorities. This resolution deals

British North America Act only with matters which concern exclusively the federal authorities. It requests that there be inserted in section 91 of the British North America Act a provision similar to that which is in section 92 of that act with respect to provincial constitutions, and that it be declared that this parliament may itself, by its own responsible action, implement the decision it arrives at with respect to amendment. Heretofore the decision has been arrived at here, but the amendment has been officially made by the action of another parliament. All this resolution seeks to do is to have it declared that henceforth amendments of that kind can be made by this parliament instead of being requested by this parliament and made effective by the parliament at Westminster. Great care has been taken to avoid any possibility of infringing upon provincial jurisdiction, upon the rights of provincial legislatures or provincial governments, upon the fundamental principles dealing with schools or with the use of the two official languages of this country. Care has been taken to avoid making any declaration as to where the dividing line might strike matters which are of provincial jurisdiction, those which are of federal jurisdiction, and those which are of joint concern to federal and provincial authorities.

Under the proposal contained in this resolution the parliament of Canada will be in the same position with respect to its constitution as the legislatures have been for the last eighty-two years with respect to their provincial constitutions.

If under the pretext of making an amendment to a provincial constitution a provincial legislature had attempted to impinge upon something which was within federal jurisdiction, the courts of law would have declared its attempt unconstitutional and invalid. Likewise, if after this amendment is adopted any parliament of Canada at any time attempts to do something which a provincial government or, in fact, anybody else, says impinges upon the jurisdiction of the legislature or upon the rights or privileges guaranteed to legislatures or provincial governments, or upon any of the safeguards over school matters or the use of the official languages, the legislation can be challenged before the courts, and the courts can and will decide whether or not it is something within the jurisdiction of this parliament, something which impinges upon the jurisdiction allocated to another body, or upon the rights guaranteed to another body.

It has been felt that that was all we could attempt to do without agreement with the representatives of the ten Canadian provinces, and that we should do at once everything we had the right to do. It was felt that

we should then discuss with the provincial authorities the establishment of a proper procedure, one which would be looked upon as proper and safe by each one of them and by ourselves, to bring to Canada the remaining vestige of legislative jurisdiction by the parliament of another country over the domestic affairs of the Canadian nation.

I invite the close attention of hon. members to the terms of the suggested change in the British North America Act. They would do well to compare it with the terms of class 1 under section 92 of the act. It will be noticed at once that the resolution does not contain, as is contained in class 1 of section 92, the words, "notwithstanding anything in this act". That is because it is unnecessary. Those words are in the first portion of section 91, which reads:

It shall be lawful for the queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms in this section, it is hereby declared that (notwithstanding anything in this act) the exclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say-

And class 1 thereof will be:

1. The amendment from time to time of the constitution of Canada, except as regards matters coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces, or as regards rights or privileges by this or any other constitutional act granted or secured to the legislature or the government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language.

As I staled on a previous occasion, when the speech from the throne had been prepared letters were dispatched to the premiers of the ten Canadian provinces, informing them of the intentions of the government-and I have tabled the replies today-to seek immediately a declaration that parliament can deal here in Canada with all those matters which do not trench upon the jurisdiction of the legislatures, or upon the rights guaranteed to the legislatures, or upon educational rights or the use of the official languages, and would immediately after the session seek a conference with them to determine a proper procedure to make all such amendments as could not be made by a provincial legislature under class 1 of section 92, or by a federal parliament under the new class 1 of section 91, and would seek to have a procedure established which for the future would determine how amendments which, from time to time, may be necessary can be effected.

I confess at once that this method of proceeding does clash with the effect sought to be given by many to the compact theory of confederation. According to them there is not a word, not a comma, in the British North America Act that is not of a contractual nature among at least the four so-called original provinces, and that nothing therein can be changed without obtaining their prior consent, unless one wishes to incur the charge of committing a breach of contract.

I have recited to the house what has been done in the past in that respect. Here we are seeking a declaration whereby only such amendments as deal with matters within the exclusive concern of the federal authorities can be made in the future, as they have been made in the past, without consulting the provinces, but that they can be made here. To that extent, but only to that extent, does this create a new situation. It does not change anything at all, except the venue where the amendments can be made. They have always been decided here, in this parliament, without recognizing the necessity or the obligation of consulting the provinces or getting their consent; and in the future, with this in the act, they will continue to be made without consulting them or getting their consent. But instead of having them decided in one place and registered in another, they will be registered^ and made effective in the place where they are decided; and they will be registered and made effective for the Canadian people by representatives of the Canadian people in a Canadian forum.

Mr. George A. Drew (Leader of ihe Opposition:) Mr. Speaker, first of all may I say that the review by the Prime Minister (Mr. St. Laurent) of the background of the subject matter now under discussion is most helpful in considering a subject that perhaps is not generally understood and not fully recognized by many people as having the importance it really does have for every Canadian. So far as the record itself is concerned, I think the review given by the Prime Minister can be taken as one which will be agreed upon by hon. members, but a number of the points made by the Prime Minister serve to emphasize the tremendous importance of this subject and the necessity of dealing with it on the basis of a recognition of the fact that this is not merely a question of what power or legislative authority the parliament of Canada possesses; it is also a question of future good will and harmony and understanding between the dominion and the provincial governments which collectively make up our federal system.

I do not believe there is the slightest difference of opinion anywhere in this house 45781-531

British North America Act as to the amendment of the Canadian constitution being made in Canada by Canadians for Canadians in a way that will be best for Canada at all times. That is not a subject that is in issue; it is not a subject to which the thoughts of hon. members should be devoted in the present discussion. We start by agreeing on that basic proposition. I feel sure that there is general agreement-I would imagine unanimous agreement-as to that basic approach to the problem.

I do not think there is any question of national sovereignty involved in this discussion. There has been agreement in this house for many long years that the Canadian constitution should be amended in Canada. But there has been a great deal of discussion and considerable difference of opinion as to the method by which the constitution should be amended in Canada by the parliament of Canada for Canadians.

The Prime Minister has referred to a statement that he made in May. I believe I am correctly quoting the words he used earlier when I say that he said: "A method should be worked out to amend our own constitution." The right hon. gentleman then went on to say'-and in this case I am not attempting to quote his exact words, but I believe I give the effect of them: "It is our intention after the election to consult the provinces as to the method by which amendments to our constitution shall be made."

That was the undertaking; that was the basis upon which this government received a mandate. This government received a mandate to proceed with the question of amendments to the constitution after consulting the provinces, and only after consulting the provinces. Any attempt to deal with amendment of the constitution without first consulting the provinces is in itself a repudiation of the very statement to which the Prime Minister has himself referred.

Even assuming that there could not be the slightest question about the authority of this parliament to deal with amendments to our constitution in any aspect without consulting the provinces, there are the strongest reasons why it is desirable to consult the provinces. To do so is in the interests of future harmony in Canada, in view of the statements which have been made already by some of the provincial premiers on behalf of the governments chosen by the people of those provinces.

May I quote what I think is a clear statement of the position taken by some of the provincial premiers and others who may not be in an official position. A letter was written on October 12 last to the Prime Minister of Canada by the premier of Alberta in response to a letter which the Prime Minister has

British North America Act written to the premiers of all the provinces. I quote the last two paragraphs of a letter written by Mr. E. C. Manning, as follows:

I would like to refer particularly to your observation that it is the intention of parliament at the present session to request an amendment to the British North America Act by the United Kingdom parliament which would vest in the parliament of Canada the authority to amend the constitution of Canada in relation to matters not coming within the jurisdiction of the legislatures of the provinces.

While this may appear to be a matter of concern only to the dominion government, my colleagues and I feel strongly that the amendment proposed concerns the provinces as well in that federal policies initiated under future amendments to the British North America Act, which the dominion parliament might make within its constitutional sphere, could well have far-reaching effects on the economy of the provinces. Furthermore the privy council has held that under the British North America Act all powers have been vested in either the provinces or the dominion. It is difficult, therefore, to see how a situation could arise where any amendment to the British North America Act would affect dominion powers alone without, at the same time, affecting at least to some degree the rights of the provinces. We feel it is extremely important, before any amendment is made to the British North America Act, even in the field of federal jurisdiction, that the whole question of dominion versus provincial jurisdiction be fully discussed at a joint meeting of representatives of the dominion and provincial governments. We strongly urge that this whole matter be held in abeyance pending the conference which you propose to convene at the close of the present session of parliament. It seems to us that this is the only way in which future conflict can be avoided and the unity of Canada, which we all desire, preserved and strengthened.

I believe that the premier of Alberta in those words has put forward one of the clearest and most cogent arguments in favour of withholding any action until the representatives of the dominion and the provincial governments have met so that the whole field may be explored, not only because of any question as to the constitutional authority of the Canadian parliament but so that any future misunderstandings might be avoided by the discussions which would take place in that way.

It is because of the points put forward in the letter of the premier of Alberta, which I have quoted simply because they express what I believe is the general sentiment of many who have given this subject considerable thought, that I believe the government would be well advised to defer action on the resolution, and to have a meeting with the provinces to discuss the whole subject. Then amendments to the constitution could be dealt with as one subject and not piecemeal in the way that it is now proposed.

The suggestion is too often made that there is difficulty in obtaining an effective agreement between the governments of Canada. I think it might be well if it were remem-

TMr. Drew.l

bered how wide the measure of agreement really is that has been reached by all the governments of Canada on many important problems of administration and legislative authority. I could review many of them. I think one of the best examples is the measure of agreement which was reached in regard to the education and rehabilitation of our veterans after the last war. There is an example of the kind of agreement that is being reached constantly between the dominion and provincial governments. The provincial governments handled the whole of the educational and rehabilitation programs under broad plans worked out in consultation with the dominion government. It worked with complete satisfaction not only to the governments but I am sure to practically all of the many thousands of young men and young women who availed themselves of the courses developed in that way.

A wide measure of agreement has already been reached in regard to certain aspects of forest supervision, which have not awaited the measure now before the house. I think the evidence is fairly conclusive that it is possible to reach an agreement as long as a continuing effort is made to do so. The particular matter we are dealing with is something that the Prime Minister (Mr. St. Laurent) has described as one of the most important subjects brought before the house for consideration since confederation. For that reason I think the possibility of agreement should be fully explored in the manner that has been suggested in the letter from which I have quoted.

The Prime Minister has referred to a number of occasions on which this subject has been discussed. The fact that it has been discussed on those occasions is the best evidence that we are not discussing a new subject. It is the best evidence that there has been agreement for years that this parliament should have the power to amend our own constitution within Canada. The fact is that there has been full power to amend the constitution. In many long years there has not been a case where any question has been raised as to representations made with regard to amendments of the British North America Act.

One question which has held back the dealing with this matter entirely by the parliament of Canada has been the failure to find a procedure. That subject was explored very carefully in 1935. I think it is well for us now to remember what took place at that time because the proceedings started under the government headed by Mr. Bennett, and

were carried forward under the government headed by Mr. Mackenzie King. Both those governments, made up of different political parties, were agreed that there should be full power to amend in Canada, and that the one question about which they were concerned was the procedure.

On February 12, 1935, a select committee was appointed to inquire into the possibility of amending our constitution, and four important conclusions were reached by that committee. I should like to refer to them, because I think they indicate what the problem appeared to be at that time, and how the matter was approached. The committee reported as follows:

The committee recognizes that there is a divergence of opinion with respect to the question of whether or not the British North America Act is a statutory recognition of a compact among the four original provinces of the dominion and as to the necessity or otherwise of provincial concurrence in amendments. Without expressing any opinion upon that question, the committee feel that in the present case and at the present time it is advisable in the interest of harmony and unity that there should be consultation with the provinces with respect to the adoption of a definite mode of amendment or the enactment of amending legislation which might seriously alter the legislative jurisdiction of the provinces and the dominion.

The committee further recognized the urgent necessity for prompt consideration of amendments to the British North America Act with reference to a redistribution of legislative power and to clarify the field of taxation. The committee further expressed the opinion that before any decision upon the subject matter is finally made the opinions of the provinces should be obtained, and recommended that a dominion-provincial conference be held to study carefully the adoption of a recognized yet flexible method of amendment. The committee definitely expressed the opinion that minority rights agreed upon and granted under the provisions of the British North America Act should not be interfered with.

These four recommendations apply just as strongly today as they did in 1935. They are recommendations made by men who believed that there should be the power to amend our own constitution in Canada without reference to an authority outside our own country, but they pointed out certain safeguards that they thought should be recognized as the best way to avoid any future misunderstandings which might undermine the effects of what they were seeking to achieve in the best interests of their country.

As a result of that recommendation a conference met in December of 1935. That conference adopted a resolution which was introduced by the then premier of Quebec,

British North America Act Hon. L. A. Taschereau, K.C., who was attending both as premier and as attorney general of his province. This was the resolution he placed before the conference, and which was adopted:

This conference, in the interests of the dominion and of the provinces, is of the opinion:

(a) That amendments to the British North America Act are now and subsequently may be necessary and imperative.

(b) That, as in the case of all the other selfgoverning dominions, Canada should have the power to amend the Canadian constitution provided a method of procedure therefor satisfactory to the dominion parliament and the provincial legislatures be devised.

(c) That the Minister of Justice convene at an early date a meeting of appropriate officials of the dominion and of the provinces to prepare a draft of such method of procedure to be submitted to a subsequent conference.

(d) That a conference be held at an early date after such draft has been prepared to consider such a method of procedure.

I would point out that this resolution, presented by Mr. Taschereau and approved by the representatives of all the provinces and of the dominion, emphasized that a method for amending the constitution-the whole constitution, not just part of it-should be devised by representatives of the dominion and provincial governments before any steps were taken to amend our basic constitution, which is the British North America Act. After all, that proposition is just as strong today as it was then. The reasons which prompted Mr. Taschereau to introduce that motion and which prompted the representatives of all the governments to approve it are reasons which I suggest to hon. members make it desirable that this motion should not be proceeded with until after the conference, which is to take place after the termination of this session, in regard to limited aspects of the constitutional problem.

It does not seem to me that a single argument has been placed before this house to indicate why this matter cannot very well stand over until that time. What is the urgency? There is no suggestion that we must assert our sovereignty, or declare that we are no longer under any limitations. We have asserted that; we have demonstrated that, and we all believe it. There is no situation now confronting this country which makes necessary or advisable such an assertion of our position to the outside world. We have full power to amend now; and we are concerned with the future of Canada, not with what any people outside Canada may think of the form of procedure. Having regard to the best interests of Canada, then, we should follow the course most likely to avoid any misunderstanding or dangerous conflict of opinion in the future. In view

British North America Act of the statements already made by some of the provincial premiers with respect to the misunderstandings that may follow this piecemeal approach to the amendment of our constitution, I believe a very dangerous step will have been taken if this resolution passes and the provincial representatives are called together only after this has become a fait accompli, after this positive and definite step has been taken. Then they will be told, "Well, now we are prepared to discuss with you what remains".

That is not the way to deal with this question. It is one constitution; but in effect this resolution would tear that constitution in two. Much has been said about asserting our complete independence of any outside jurisdiction. Well, let us assert it; but we are not doing so by this procedure. This resolution merely provides for amendments within a partial field, leaving the remainder of the constitution in such a position that until the discussions with the provinces have taken place we must still go to the same authorities. If that is the important consideration-and it is suggested that it is-then surely it is best to wait until the whole problem has been examined and then deal with it once and for all, ending the necessity of reference to any outside authority in the whole field, not just in part. Unfortunately in the face of statements already made by some of the provincial premiers the possibility of reaching agreement in the remainder of the constitutional field may not be as good as it would be if the recommendation to which I have just referred were followed and the whole matter allowed to stand until the representatives of the dominion and provincial governments could come together, discuss the whole subject and seek to find a procedure satisfactory to all.

Again reference has been made to the fact that there is a difference of opinion between those who believe in the compact theory and those who hold that this is a statute. Of course the British North America Act is a statute. That argument has been worked to the limit, and really has no validity. The British North America Act is a statute; but it is a statute which interpreted in statutory form the agreements, the compact, call them what you will, reached in Quebec by the representatives of the governments who joined to make Canada one nation. Certainly, there was a compact and there was an overall agreement. Is it possible for any hon. member of this house to conscientiously assert that this country would have become one nation unless those who made and presented their resolutions at Quebec, prior to the presentation of the opinion of that conference to Westminster, had believed that this was

a binding agreement as to certain basic principles which would be strictly observed in the future?

One might argue about the dictionary definition of the word "compact", but surely that is a compact in the ordinary understanding. We do not need to argue that further. Here is a statute which interprets the basic understanding in the minds of those who said, "It is upon this basis we are prepared to join in forming one nation in Canada." It seems that it would be highly desirable, in any way possible, to avoid any arguments that could be made that this parliament is disregarding those common understandings reached at that time. Even if hon. members of this house do not think the arguments put forward in support of the compact theory are right, even if they do not think the theory is based upon a sound interpretation of our constitutional position, it would be much better to avoid any possibility of a misunderstanding. It should be recognized that there are those who sincerely believe in the compact theory, and whose views can only be dealt with in a way that will avoid future misunderstanding if this meeting takes place before any amendment to the constitution is undertaken.

The Prime Minister has pointed out that the difficulties that have arisen in the past have been with regard to procedure. Certainly, all the difficulties have been in regard to procedure, and it is for that reason the proposed course should not be followed. The course proposed by this resolution does not provide any procedure whatever, but is worded as though there were only two fields of legislative and administrative responsibility. There are, in fact, three, as the Prime Minister pointed out. He has pointed out that there are, first of all, those things which are beyond question within the jurisdiction of the dominion government. There are those that are unquestionably within the jurisdiction of the legislatures of the provinces. Then, there are those matters in which there is a common concern and a common responsibility shared by the dominion and provincial governments.

There is something more, however. For years there has been a repeated emphasis upon the need for a review of the responsibilities of the dominion parliament and the provincial legislatures, as well as the division of taxing power, which would give to the governments responsible an independent discretion to deal with the powers that are actually conferred upon them. To an extent that is often not fully appreciated, a provincial government may have full legislative power as well as full administrative responsibility, yet if its taxing powers are limited

those responsibilities cannot be carried out because the government has not the necessary revenues to do what should be done on behalf of the people.

The main consideration prompting the appointment of a royal commission, which was presided over first by Mr. Justice Rowell and later by Mr. Sirois, was the division of that responsibility. The report of that commission was directed to the need for a definition of responsibility and a definition of the taxing powers of the governments concerned. Under such an amendment as is now proposed, the dominion government might make amendments in the field of taxation which it would be contended were entirely within their jurisdiction. From the practical point of view, such an amendment might make it impossible for the provinces to carry out some of their responsibilities, no matter how little doubt there might be that those were exclusively within provincial jurisdiction.

In the resolution before the house, reference is made to education. Perhaps there is no single matter of greater concern to every province in Canada than education. It is the basis upon which the future of our country is built. It will be of little use to the provinces to retain full control over education unless they have the revenues to do the things they feel should be done in the interests of the people of the provinces. If the dominion government exercises the taxing powers to the extent that the provinces are unable to raise their revenues for this purpose, then indirectly the dominion government becomes the overriding power which is in a position to say, not only that this is the amount of money a province will receive, but this is the manner in which the money shall be used. There is not an hon. member in this house who does not know quite well that there is a general tendency for people to say, if money is being provided by one treasury for another, then the treasury providing the money should have some say as to how that is to be spent.

Consequently, by the process of amendments relating to taxation, fields of exclusively provincial jurisdiction may be effectively invaded, and invaded in a very dangerous manner, even though that might not be the intention of any member of this government. As this government looks around and sees the large numbers of its supporters in this house and feels the confidence inspired by that representation, it would be well for them to realize that there will be many other governments in the years ahead. It should be the purpose of the parliament of Canada to make certain that the course which is followed is not one which opens up dangers in

17, 1949

British North America Act the future, no matter how confident any government of the day may be that it would not abuse those powers. Of course, the extent to which a government might not abuse those powers is a subject upon which there might be a divergence of views.

The fact remains, however, that this is something which will affect the whole future of Canada. Great caution should be exercised to see that the door is not opened to a procedure which would centralize in Ottawa effective control of matters that were intended to be under provincial jurisdiction, through the indirect method of gaining control of the purse strings of the provincial governments, which is a very real and immediate possibility unless a conference meets soon to deal with the particular problems of taxation and allocation of responsibilities.

I need not remind any hon. member jf this house that the present agreements under which a number of provinces receive payments are not agreements that resulted from conferences. They are agreements that resulted from the acceptance by those provinces of terms stated here in this House of Commons. Long before those agreements terminate it is essential that the whole problem of taxation be considered, as well as that of responsibility and jurisdiction. The time to do that is while this matter is up for consideration so that we deal not only with the constitutional matters but with the incidence of the constitutional problems which measure the practical ability of the governments to carry out what the constitution says they must do.

This present motion assumes the possibility of clearly defining that dividing. I recall that the Prime Minister (Mr. St. Laurent) has said that, if there was any doubt about that, the courts could decide. But in many cases that may be an imaginary relief; because if the dominion government goes ahead and places before parliament amendments which would concentrate the taxing power and would remove from the provinces that measure of independent taxing authority which is an incident of their ability really to govern, they might be placed in the position in which they would be forced to accept agreements, as some provinces were, simply and only because, according to the statements of the premiers of those provinces, they did not feel they could help doing so because of the financial point of view.

By all means let us have a flexible constitution adjusted to the needs of this adult, growing nation. By all means let us have a constitution that is up-to-date in every respect. But we do not achieve that result by this piecemeal procedure or by tearing

840 HOUSE OF

British North America Act the constitution in two and saying: Let us take the power to amend in regard to this part; then having done that, let us meet the provinces to see how we can deal with the rest. We shall achieve the result which the Prime Minister has said to be the purpose of this resolution only by covering the whole field at one time.

The Prime Minister accurately and fully has reviewed the difficulties which have arisen in the past. He has referred to the fact that charges have been made that improper procedure had been followed. There is not an hon. member of this house who has been reading the press or who has read the letters that have been sent in who will not be aware that there is every possibility of further charges of improper procedure being made if this course is continued; because that is the clear indication disclosed by those letters and statements that have already been made. As the Prime Minister himself has said, the result of the absence of an understood and clearly-defined procedure has led to controversy as to methods. Nothing that is now before the house meets that situation in any way. Yet that is a situation which we should all try to meet.

Referring to the discussion earlier this year with regard to the Newfoundland agreements and the statutes, the Prime Minister said that it was not clear whether consultation means consent. After all, this is a subject on which men of good will and good judgment can best determine how they can proceed when they meet together and discuss this problem. Until they do so, no one in this house is in a position to say what measure of agreement can be reached or what procedure might be suggested.

The fact is that the conference that met in January, 1936, went a long way toward reaching unanimity as to procedure. The fact that agreement was not reached is no evidence that agreement cannot be reached, because this matter was not brought forward in a purely constitutional conference. It was again brought up in a conference in 1940 when a number of other subjects were under consideration and when the conference did not deal first with this one but with others upon which great difficulty was experienced in reaching agreement. So it has been in other cases. This matter is sufficiently important that a conference should be called for the sole purpose of dealing with it, of reaching agreement, and of reaching agreement with regard to the whole field.

There is one other point that has been mentioned on other occasions as well as today. The Prime Minister pointed out that ever since 1867 the provinces have had the power to amend their constitution, and that

what is now proposed is only giving to the parliament of Canada the right of amending, a right which the provincial legislatures have possessed for more than eighty years. But there is a vast difference in the situation. The provincial legislatures carry on their duties within the definite limitations of section 92 and other limiting sections of the British North America Act. Their power to amend their constitution is strictly limited in that way, and in effect deals only with procedural matters and details of that kind. But under the British North America Act, in addition to the specific authority that was conferred upon the parliament of Canada, all the residuary powers which had not been dealt with by the act were conferred upon that parliament. Therefore this amendment covers the whole broad field, including its effect upon provincial responsibilities and administration as well as upon the dominion field.

May I once again quote the words of the premier of Alberta in the closing part of his letter, because I believe they put in simple form something that should be in our minds now.

We strongly urge that this whole matter be held in abeyance pending the conference which you propose to convene at the close of the present session of parliament. It seems to us that this is the only way in which future conflict can be avoided and the unity of Canada, which we all desire, preserved and strengthened.

Assuming for the sake of argument that every hon. member in the house is in complete agreement with the arguments put forward by the Prime Minister (Mr. St. Laurent), I still believe that this matter should stand, in view of the fact that the wholehearted concurrence and co-operation of every provincial government and every provincial legislature is so essential to the strengthening of our domestic structure within Canada, during one of the most critical periods in our national history.

No country in the world offers to its people greater opportunities than this country offers to every Canadian today. But the full realization of our vast opportunities to a very great degree depends, in this vast country of ours, upon effective and real co-operation between the dominion and provincial governments, and the parliament of Canada and provincial legislative bodies, no matter of what political persuasion those governments may be.

We are here dealing with the future of Canada, which depends upon that kind of good will and understanding. In view of the statements which have been made, I urge every hon. member to think of the unnecessary disputes which may result if the course now proposed is actually followed, no matter hoiy right the Prime Minister may think he is in the arguments he has put forward, nor

how right hon. members supporting him may believe he is in the statements he has made.

The question of co-operation is a real, practical and fundamental principle, one which is vital to the fulfilment of the very purpose the Prime Minister has stated to be in his mind and the minds of his colleagues in offering this resolution. It is for that reason that I move, seconded by the hon. member for Lake Centre (Mr. Diefenbaker):

That the said proposed resolution be amended by striking out all the words after the first word "that" and substituting therefor the following:

"That His Excellency the Governor General in Council be requested to convoke as soon as may be possible 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 may become the subject later of an humble address, when adopted, to His Majesty the King praying an amendment of the British North America Act, 1867, accordingly."

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

Major James William Coldwell

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

Mr. M. J. Coldwell (Roseiown-Biggar):

Mr. Speaker, in common with all hon. members I realize that this is a most important debate, and that we are discussing this afternoon an important resolution.

First of all however may I offer the suggestion to the Prime Minister (Mr. St. Laurent) that in view of the importance of the subject, and of the correspondence with the provincial premiers, it might be well if the letters tabled this afternoon were printed as an appendix to today's Hansard. I make this suggestion because, in following a debate of this description, references are made to communications. Unless those communications are printed in Hansard, many of the people who receive Hansard could not follow the discussions.

May I ask the Prime Minister if he would agree to my suggestion?

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:

If there is no objection from any hon. member I should be glad to accept the suggestion of the hon. member for Rosetown-Biggar, and ask Mr. Speaker to instruct the editor of Hansard to print the letters as an appendix.

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:

Does the suggestion meet with the unanimous approval of the house?

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

Some hon. Members:

Agreed.

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

Major James William Coldwell

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

Mr. Coldwell:

The two speeches to which we have listened this afternoon have been of a very high order, one which I suggest does credit both to the subject under discussion and to the House of Commons. The Prime Minister has placed on record an historical review of our constitution, both prior to the adoption of the British North America Act, and the events which occurred subsequently. His plea is that we shall take unto ourselves in this parliament the right which 45781-54

British North America Act parliament should possess to deal with matters specifically assigned to this legislative body, and to safeguard the rights of minorities as set forth in the British North America Act. With that position we of the C.C.F. are in agreement.

I am not going to discuss the amendment, because the leader of the opposition (Mr. Drew) did not develop the idea which he suggests in his amendment. He did not tell us how the constituent assembly implicit in the amendment would be established, or what procedure would be followed in implementing the amendment. If for no other reason, we could not vote for it.

However, for another reason I shall not discuss it. I believe that under the rules of the house Mr. Speaker, after taking it into consideration, may consider whether or not it is in order.

We have heard a great deal this afternoon about the early days of our confederation. Not as a lawyer but rather as a student of Canadian history let me say that I have always been struck with the manner in which the fathers of confederation immediately after 1867 viewed the British North America Act. This afternoon the Prime Minister drew to the attention of the house the fact that in 1871 the government of the day, which consisted of the fathers of confederation, actually took upon itself the responsibility of requesting the parliament at Westminster to amend the British North America Act, without any reference to the House of Commons and the Senate of Canada, or any reference to the provincial legislatures.

That action was criticized on the floor of parliament. In 1875 something similar was done. When we look through the records following confederation I think it is perfectly clear-I am not dealing with subsequent interpretations of the law; I am leaving that out altogether-that obviously the fathers of confederation did not hold the view that has been expressed this afternoon by the leader of the opposition (Mr. Drew) and which is sometimes expressed by some other people, that in order to amend the British North America Act the provinces must be consulted. That is what is known as the compact theory.

The leader of the opposition remarked that the provincial legislatures may amend their own constitutions. Indeed they may amend their own constitutions in every particular except that touching the appointment of the lieutenant governor. If it is argued that the provinces should be consulted if we propose to amend the constitution of Canada in matters assigned specifically to the parliament of Canada because what we propose to do may affect the welfare, the

British North America Act rights and the economies of the provinces, it seems to me that by the same token it might be argued that this parliament should have the right to be consulted if any amendment is to be made to the provincial powers or, if we care to call them that, to the provincial constitutions. However, no one argues that opinion because obviously it would be untenable. I think that we have in this parliament the right to deal with all matters assigned to us and hence should also have the right to amend the constitution in relation to them.

There was some validity to the argument of the leader of the opposition that it is unfortunate that this is being done in a piecemeal manner. I do not know the minds of members of the government in this particular, but I presume something like this is in their minds: In the past the dominion-provincial conferences dealing with dominion-provincial relations have been abortive and consequently, when this parliament takes to itself the right to amend the constitution in connection with those particulars that affect only the rights of this parliament, it is an indication to the provinces that this parliament is determined to do everything in its power to bring about a satisfactory method of amending the constitution generally. That is what I think.

In that connection the leader of the opposition spoke of the powers of taxation and expressed the fear that we might infringe upon certain rights of the provinces in regard to taxation. I am sure that this parliament has no desire of infringing upon the rights of the provinces in that field. Let me point out that under section 91, subsection 3, of the British North America Act this parliament is empowered to raise money for the country by any method it decides to use. Consequently it seems to me that the argument of the leader of the opposition in that particular falls to the ground.

However, in taking the right to amend our own constitution there are some fears that we might legitimately have in our minds. I am not going to deal with all of them, but let me say that when we have the right to amend our own constitution in the particulars involved in this resolution there will be nothing to prevent this parliament from perpetuating itself beyond five years. This parliament could amend the sections of the appropriate acts to prolong the life of parliament to seven years, to ten years or beyond.

I think we should safeguard ourselves somehow in that particular.

I say that, because the legislatures have done exactly that. A few years ago the legislature of the province of Ontario extended its life by one year, with the consent of all

[Mr. Coldwell.)

the parties in the legislature. Then it proceeded to extend its life another year. I fancy the present leader of the opposition was the leader of the opposition in the Ontario legislature at that time, and if my recollection is correct the second extension of one year was not agreed to by the opposition parties. A Liberal government of Saskatchewan, against the bitter criticism of the opposition, took unto itself in 1943 the right to extend the life of the legislature for one year beyond the five years' limitation.

I think the real power of the people is in their right to elect their parliaments and legislatures, in their right to statutory periodic elections. It seems to me that in dealing with this matter, and it should be thought of, we should see to it that when we amend our constitution we do not jeopardize a right of this description. We should safeguard ourselves in connection with important matters of that sort.

We should see to it that we provide for measures of parliamentary reform. As hon. members know, we believe that the time has come when the condition of the other place warrants its abolition, but in any event we should see to it that Canada has the right to amend it under the proper conditions and in important particulars.

The main point I want to make this afternoon-the other points in connection with this matter have been well made by both the Prime Minister and the Leader of the Opposition, and I do not propose to reiterate what they have said-is that I do not think under the circumstances, and in view of what has happened in recent years in dominion-provincial negotiations, that we should heed the plea for further delay. The idea has grown up in this country over a number of years, due in part to decisions of the privy council, that we should accept the view that the provinces must be consulted when we propose merely to take to ourselves the right to amend our constitution only in so far as it affects the affairs of this parliament itself. We do not accept this opinion.

If we look at the history of this country since confederation we find, for example, that we are told that at the Quebec conference agreements in the nature of a treaty were reached. My recollection is that there were seventy-two resolutions passed to guide the fathers of confederation when they went to London, but when they got to London they did not implement them. As a matter of fact, there was much discussion and finally compromises were reached. Even the Prime Minister (Mr. St. Laurent) said that there were four provinces at Quebec which gave approval to the resolutions requesting the

British North America Act

British North America Act, but there were only three. There were Canada, Nova Scotia and New Brunswick, although at the Quebec conference Canada was more or less divided into two parts, upper and lower Canada.

Let us not forget that before the British North America Act was passed Joseph Howe went to Great Britain with, I believe, one or two colleagues to make a protest to the imperial parliament, but without avail. I understand only two of the thirty-eight members elected to the Nova Scotia house after the British North America Act was passed favoured confederation. After that election Joseph Howe headed a delegation to London to protest and to ask the imperial parliament to set up a royal commission to review the whole matter of the entry of Nova Scotia into confederation. We all know what happened. The request was not granted.

I mention that because it indicates that there was no compact, no agreement. As we have seen, one of the provinces that came into confederation at the beginning bitterly opposed it subsequently and sent its ablest spokesman to London in an attempt to upset 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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PC

Percy Chapman Black

Progressive Conservative

Mr. Black (Cumberland):

He afterwards supported it.

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

Major James William Coldwell

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

Mr. Coldwell:

He afterwards joined the government and supported it when he found that all protests were ineffective. I suppose as a good patriotic Canadian he decided that the best thing to do was to try to make the best of what he considered a bad job and help to make it a success. In any event he had failed to upset it. I think a very good summary of what actually happened can be found in volume II of a series of papers written some years ago and circulated widely across Canada. They were known as the Kingdom and Independence Papers. I used to get them from the very beginning. They were the work of the late John S. Ewart, K.C., of Ottawa, a man who, in the years prior to his death, which occurred in the early thirties, did a great deal to popularize the idea that Canada had become an adult nation and should take unto herself the attributes of sovereignty and nationhood, including Canadian citizenship, the abolition of appeals to the privy council, and the right to amend our Canadian constitution.

In the concluding paragraph of paper No. 5 in volume II this description of the British North America Act can be found:

A statute arranged not in Canada but in England, by delegates from Canada who although bound by the Quebec resolutions departed widely from them: by delegates from Nova Scotia who were known not to represent Nova Scotia's wishes and the proceedings purposely kept secret from the people

45781-54i

who might, by "reverberation" of it, be "stirred to its depths" in opposition, can hardly be regarded as a contract.

In support of the last statement, "kept secret from the people who might, by 'reverberation' of it, be 'stirred to its depths' in opposition", he quotes at some length a letter written to Mr. Leonard Tilley, one of the fathers of confederation, by Sir John A. Macdonald just before he left for London on the 8th of October, 1866. In his letter Sir John A. Macdonald says that great secrecy must be kept regarding the proposals and that in view of the forthcoming New Brunswick elections the least said about the proposals the better. That is the meaning of the reference of Mr. Ewart.

It seems to me it is in the best interests of parliament and of Canada that the resolution should be adopted by the house at the conclusion of the debate, and that we should not let the matter drag along interminably. I believe the people of Canada understand the situation very well. I think there was and is a good deal of resentment across Canada that the dominion-provincial conferences were not a success in other respects. As a matter of fact, I think that hon. members opposite to some extent owe some of the support they received in the election on June 27 to the fact that many people of Canada felt that way about it. Whether or not that be so, I think the time has come when wc should support a resolution of this description.

The leader of the opposition (Mr. Drew) asked why we should adopt the measure right now, and whether it mattered what people outside the country might think about it. I think it matters a good deal because anyone who has attended an international conference, and perhaps has represented Canada at one or more of those conferences, or has represented Canada unofficially at some of the unofficial conferences, as I have had the privilege of doing from time to time over the last ten or twelve years, will know that again and again a Canadian is questioned in this regard. People say to him, "You say that you are an independent sovereign nation, but what is your final court of appeal?" Then the Canadian representative says, "It is the privy council in London". Then he is asked, "What is your constitution? Have you the right to amend it?" The answer is made that we have not. We also know perfectly well that in the early years of the United Nations, as in the league of nations before that, there were nations which were inclined to question Canada's right to act as an independent nation because they would constantly say that we were merely a colony of Great Britain, and that we had to do what the foreign office of the

British North America Act United Kingdom said we had to do. The evidence they brought was our constitutional immaturity.

I think from the point of view of our external relations, from the point of view of the manner in which we appear in the eyes of the world outside our own borders, the time has come when, in so far as this house can do it, we should take the right to amend our constitution. I also think that we cannot leave the matter there. I do not think the government should allow the final amendment of our constitution in all particulars by Canadian legislatures-and I use the plural- to drag along indefinitely.

I believe every attempt should be made to tidy up the matter within the next year or so, to get a provincial conference together, and to finish the job in a proper and decent manner. I know there are tremendous difficulties in the way, but sooner or later not only the governments but perhaps-and this may be what the leader of the opposition (Mr. Drew) has in mind; I do not know-the parliament and the legislatures of the country may have to form themselves into a constituent assembly, where all parties would be represented and come to a conclusion. I do not think it would be wise to have a constitution drafted which would be predominantly a constitution of the Liberal party, or of the Conservative party, or of any other party. I believe the constitution of Canada should be one which will represent the consensus of Canadians as such, aside from their party differences and affiliations.

Mr. Speaker, we support the resolution.

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

Solon Earl Low

Social Credit

Mr. Solon E. Low (Peace River):

At the

outset, Mr. Speaker, I should like to record the views of the Social Credit group on this very important question of constitutional amendment. We have not spent a great deal of time trying to decide whether the British North America Act is a pact or simply a statute of the parliament at Westminster. Whatever it may be declared finally, the fact remains that sections 91 and 92 set out a division of powers as between the dominion and provincial governments which since 1867 has served to guide those governments in the things they have attempted to do. With respect to a federal constitution, we believe the broad principles upon which the legislative powers were distributed between the dominion and the provinces under the British North America Act were generally sound. Jurisdiction over those matters of national concern was reserved exclusively to the dominion, while jurisdiction over matters with respect to which decentralized autonomy was considered desirable was reserved exclusively to the provinces. However, over the

[Mr. ColdweU.l

years many difficulties have arisen between the dominion and the provinces. I should like to cite just two or three of the main reasons for this, as I see them; and I do this because they involve some of the views we hold toward the proposal of the Prime Minister (Mr. St. Laurent) as it is contained in the resolution now before us.

In the first place, the British North America Act is a rigid coftstitution circumscribed by a statute of the parliament of the United Kingdom. Under it the distribution of legislative powers was laid down in the light of conditions existing at the time, that is, in 1867. Conditions have changed since then in a good many respects. I feel sure, as must most hon. members of this house, that the fathers of confederation could not possibly have foreseen the changes that have taken place, nor could they have foreseen the many problems that have arisen between the senior and the provincial governments as a result of changed conditions. But the fact remains that some of our present constitutional difficulties have arisen simply because times and conditions have changed. This in itself indicates that occasions requiring amendments are bound to arise; but we believe there is little that cannot now be done in the interests of the Canadian people, under the British North America Act as it stands, through earnest co-operation between dominion and provincial authorities. In those few cases where desirable and progressive things are actually being retarded because of the super-rigidity of the constitution, we think it desirable that amendments be sought; and we are quite in agreement that those amendments should be sought in Canada, through this parliament.

The second important cause of problems that have arisen is the fact that difficulties in fields of jurisdiction and responsibility as between the dominion and provincial government are not altogether due to the allocation of specific powers under sections 91 and 92. Very often they arise from interpretations; and the interpretations that have been placed upon the distribution of powers over the years have involved a good many classes of subjects. Considerable confusion has arisen because at different times in the past dominion governments have invaded various fields of provincial jurisdiction, or fields the provinces had come to believe were theirs exclusively, of course much of it under the pressure and exigencies of war. We believe this whole situation must be clarified permanently as soon as possible.

The first step in that direction, in our judgment, need not be the amendment of the constitution but rather the negotiation of a clear and definite understanding as to

respective fields of jurisdiction and responsibility as between the dominion and provincial governments. If as a result of dominion-provincial negotiations it is established that amendments to the constitution are necessary and obviously in the interests of our people as a whole; and if it becomes necessary to allocate responsibility for and jurisdiction over such matters as have become of national interest and importance since 1867, such as radio and things of that sort, then of course we believe such amendments ought to be sought. And let me repeat that we believe those amendments should be sought within Canada, in this parliament.

A third cause of difficulty between provincial and senior governments lies in the failure, particularly here at Ottawa, the capital of Canada, to realize that authority carries with it corresponding responsibility. Moreover, Mr. Speaker, there has been too much inclination here at Ottawa to place responsibility under the constitution upon provincial governments without careful consideration of the means by which those authorities and responsibilities may be carried out. With respect to this cause of trouble between governments, and by way of illustration, let me quote a short portion of the preliminary statement by the premier of Alberta at the opening of the dominion-provincial conference on August 6, 1945. At that time Mr. Manning said:

In actual fact, while with respect to certain matters the dominion government has been given constitutional authority, the provincial governments are constitutionally responsible for the consequences of the federal government's actions. With respect to other matters for which the provinces must assume full constitutional responsibility, they are denied the means-that is the effective constitutional authority-necessary to enable them to discharge those responsibilities. Section 92 of the British North America Act gives the provinces exclusive jurisdiction over property and civil rights, but experience has shown that the provinces' authority in this field is largely nullified by the fact that the dominion government has exclusive jurisdiction in matters affecting interest and bankruptcy laws. This was brought out forcibly during the pre-war depression years, when under the stress of economic conditions many western Canadian farmers were unable to meet their debt obligations resulting in wholesale foreclosures at depressed land values by lending corporations. It was within the provinces' sphere of jurisdiction to safeguard the property rights of the victims of those conditions, but provincial governments frequently found themselves frustrated in taking effective action due to the fact that the dominion possessed exclusive jurisdiction over matters affecting interest and bankruptcy.

This quotation illustrates the fact that there are overlapping authorities and confused fields of jurisdiction. Furthermore, it illustrates that, in at least this one instance which I have cited, the responsibility is placed on the province but it is denied the wherewithal to make good that responsibility.

British North America Act

Now, a good many examples could be quoted to illustrate this same confusion about the allocation of authority and responsibility within the dominion. Mr. Manning cited another example which I believe should be put on the record because it is important to this whole discussion. He said:

Of particular importance is the fact that the dominion government enjoys exclusive jurisdiction over banks, banking and the issue of money, together with the regulation of trade and commerce. This gives the parliament of Canada complete jurisdiction over national monetary and economic policy, but it is the provinces that are constitutionally responsible to provide the necessary relief and other social services required by those who find themselves unemployed and destitute as a result of a restrictive monetary policy imposed or permitted by the dominion government. In short, experience has demonstrated that the provinces frequently must assume responsibilities involving substantial expenditures as a result of the consequences of national policies over which the dominion government has exclusive jurisdiction, while at the same time experience has made it equally clear that the constitutional responsibilities of the provinces frequently cannot be carried out effectively due to the fact that provincial authority in certain fields is nullified by the dominion's exclusive or equal rights in fields which infringe upon provincial autonomy. This situation is particularly acute in regard to matters involving financial policy and its effects upon the economy of the country as a whole.

The important question, sir, which faces us, in the light of these facts, is this: How can the Prime Minister and his government contend that they can safely proceed with the piecemeal alteration of the constitution? How is he going to know which is, in fact, a federal and which a provincial authority or responsibility? That is a question which has to be answered, and it is one about which there is grave concern across this whole country. In the first place, we are opposed to the piecemeal method of changing ox-altering our constitution. We hold, Mr. Speaker, that any worthy move to clarify the constitutional position of the federal and provincial governments must be a part of a much broader effort that will embrace the entire field of constitutional authority.

All of these things emphasize our contention that this resolution should not be passed by this house now. There are two main reasons why this group has adopted that position and I should like to refer to them briefly. I am puzzled, Mr. Speaker, about the resolution as a result of a Canadian Press dispatch which was dated Montreal, October 14. It appeared in the Ottawa Citizen of that date under the large headline:

Will meet provinces when session ends. To discuss amendment of B.N.A. Act.

The dispatch states that the Prime Minister said on October 13, at a meeting in Montreal, that a dominion-provincial conference will be called at the end of the present session

British North America Act to ask agreement on a satisfactory procedure for amending the Canadian constitution in Canada.

If this dispatch is correct, sir, the Prime Minister said, while speaking to the main conference and banquet of the Young Liberals Association:

If we can reach a satisfactory agreement, we will then ask the United Kingdom parliament to amend the British North America Act of 1867 ... to give to federal authorities the same power to amend the constitution of Canada which the provincial authorities already enjoy to amend the constitutions 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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LIB

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

Liberal

Mr. St. Laurent:

If the hon. member will permit, I should like to say at once that that dispatch is incorrect. If the hon. member reads the editorial in the Citizen, he will note that the editor of that paper realized from the tone of the dispatch that it could not be correct.

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Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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SC

Solon Earl Low

Social Credit

Mr. Low:

I am glad to have the Prime Minister's statement at this point because, Mr. Speaker, there were grave questions in my mind, and the minds of many other Canadians, about his good faith. I do not like to doubt him. I think the Prime Minister should be above that at all times. I am glad he did make that assertion to correct the impression that had gone abroad.

The fact remains, sir, that whatever was said, the last part of his statement is repeated in the letter to the premier of Quebec, namely, that the proposed amendment will- -give to the federal authorities the same power to amend the constitution of Canada which the provincial authorities already enjoy to amend the constitutions of the provinces.

Now, Mr. Speaker, to pass this resolution would not put the dominion on an even footing with the provinces at all. It has not escaped the Prime Minister's thinking, I am sure, nor the thinking of any hon. member, that the powers of the provincial legislatures, even in the matter of amending their own constitution, are seriously circumscribed by the overriding authority of the dominion government to disallow any provincial legislation. That is a handicap from which the federal government does not suffer. I say to you, sir, that the Prime Minister's argument is invalid.

In moving the adoption of the resolution today, the Prime Minister indicated that he did not intend to await the outcome of the dominion-provincial conference which has been announced. It seems to me, Mr. Speaker, that is a poor way of starting to gain and hold the confidence of the provinces of Canada in the good faith of the federal government. Surely, the Prime Minister must realize that, when it comes to the very serious and

important matter of changing the fundamental law of the federation of provinces, he must seek and get the full co-operation, good will and confidence of all the governments and people of Cananda. Without those, no satisfactory procedure could possibly be worked out as he has suggested for the amendment of the constitution, even in matters that do not affect the exclusive powers of the federal government. If there is not that confidence and good will, it could not be worked out from now until doomsday. I am quite sure all of us are aware of that.

Good will must be exhibited on all sides, but it takes an effort to get it and to hold it. If the provinces and the people do not have confidence in the justice and fairness of the federal government, I do not know what good a dominion-provincial conference could do.

Under those circumstances why did the Prime Minister (Mr. St. Laurent) not have the dominion-provincial conference first, and then at the next session of parliament bring this resolution before the House of Commons? Surely a matter of a few months is not going to make any appreciable difference. There is not that much rush. If there is, why have we not been told why? I am convinced there is nothing that is rushing. Could the explanation of this particular question that I have asked be found in that article that Mr. Sandwell sent around to all of us, which was published in Toronto Saturday Night of September 27 last, and in which he said:

The announcement of the government's policy has achieved already one of its main purposes, which was unquestionably that of clearing up the confusion left in the public mind, especially in Quebec, by the Prime Minister's declaration that parliament has the power to abolish the French language if it decided to do so. The country has now been assured, if it needed the assurance, that parliament has no intention of abolishing the French language and is perfectly willing to turn over that power to some authority more carefully constituted for the purpose.

I say that may be the explanation, although I do not know. But if it is, then the purpose has already been served, and the minds of the people have already been set at rest on that point, and we need not proceed to pass the resolution.

There is another cause for some bewilderment over the way in which the government is proceeding in this whole matter. Only a few days ago this house passed legislation authorizing the government to set up the Supreme Court of Canada as the final and conclusive court of appeal in all cases, constitutional and otherwise, coming from the Canadian courts. It will take months if not years of most painstaking work to organize our supreme court and to establish it on a basis that will make it possible for it to deal

effectively with constitutional matters especially; I am not now referring to civil and criminal appeals.

I am sure that it has not escaped the Prime Minister's thinking that there is a most important psychological consideration involved if the Supreme Court of Canada is to achieve and to hold the confidence of Canadian citizens in its ability to deal objectively and justly with constitutional references. That, to my mind, is a most important consideration. Let us not forget that the supreme court will be a creature of the dominion government, that its members will be appointed by the governor general in council, and that the powers and duties of this court can be increased or decreased by a simple majority vote of this house at any time that the government sees fit to bring in proposals for doing so. It is our belief that the resolution should not be passed until the Supreme Court of Canada has had time and opportunity to establish itself in the confidence of the people of this country.

I have only a word or two further to say, Mr. Speaker, and then I shall close. Other questions that are in our minds at this moment are these: Why is the government

seeking this power? Are there important things that are essential to be done in the interests of the Canadian people and that cannot be done without amending the British North America Act? If so, let us have a statement of them. What are they? We are, of course, denied the privilege of asking these questions and dozens of others that would occur to us, and which it is necessary to ask in order to obtain the information, because the resolution must be discussed with you, sir, in the chair. If it could be discussed in the committee of the whole, we could then ask the questions that are in our minds and could elicit all the information that it is possible to get. I say to you, Mr. Speaker, that we in this house should get all possible information with regard to what is behind this resolution, or what is activating the government in moving it at this time. Furthermore, every implication in it should be laid bare to the Canadian people. That is our contention.

Perhaps the Prime Minister would be constrained to answer some of these questions. It being nearly six o'clock, I have not time to ask them all, but one or two occur to me at the moment. One is this. Is this resolution the government's way around the stalemate or impasse which arose as a result of the breakdown of the last dominion-provincial conference? Another one is this. What would be the attitude of the Prime Minister and his government, if, having attempted to

British North America Act lay down a definite procedure for a constitutional amendment, the majority of the provinces state that they are definitely opposed to an amendment suggested by the federal government? Would the government of Canada proceed to put through the amendment anyhow? Those are questions that are in the minds of the Canadian people and they have far-reaching implications that the people ought to understand. Another question is this. Is this resolution indicative of the general trend? Is it a first step towards a complete repeal of the British North America Act and the substitution for it of another constitution? Although some hon. members may laugh at what I am about to say, I say it in all seriousness. There are many people in this country who are thinking in that way.

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:

How many?

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

Solon Earl Low

Social Credit

Mr. Low:

A great many more than the hon. member who has interjected has any idea of; I will guarantee that. This is a matter which ought to be clarified; the people's minds ought to be set at rest on the issue.

In conclusion, Mr. Speaker, with regard to procedure I would say this. We believe- indeed we have already put ourselves on record to this effect-that at the earliest possible time a dominion-provincial conference should be called, at which conference a procedure should be laid down for amending the British North America Act in Canada. The procedure decided upon must, of course, be satisfactory to both the dominion and the provinces. There must also be a real effort to clarify permanently the whole matter of responsibilities as well as authorities and powers under sections 91 and 92. We feel that this resolution is a matter of grave concern to so many people across this country that it should not be passed at this time.

At six o'clock the house took recess.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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AFTER RECESS The house resumed at eight o'clock.


PC

Donald Methuen Fleming

Progressive Conservative

Mr. Donald M. Fleming (Eglinton):

Mr. Speaker, the subject matter of the resolution before the house is one of admittedly fundamental importance. In many respects it goes to the root of the whole structure of our nation. It touches on matters vital to national unity; and whether we remain here a short time or a long time I venture the prediction that nothing of more far-reaching importance will be dealt with, in the experience of any member.

It is, therefore, I believe, particularly regrettable that a matter of such vast

British North America Act importance should be dealt with under a procedure which permits of only one debate. Think of it, sir! In even the most ordinary and commonplace bills we have three readings, together with consideration in detail in committee of the whole. In this instance, on the other hand, we are dealing with a matter which goes to the root of confederation, and yet we deal with it only as a resolution. There will be no consideration in committee; there will be no review in detail in committee; and it will be before the house for only one debate.

That is serious enough from the point of view of the opportunity needed by hon. members thoroughly to sift through the significance of the proposals; but, if I may say so, it is more serious for the country at large, because we know that in a matter such as this it is only as the debate proceeds in the house and the various points of view are put forward by hon. members that the true significance begins to permeate the electorate, through the medium of the press and other avenues of information.

We know that when a measure in the form of a bill goes through the various stages in the house there is an opportunity for the public to form an appreciation of the significance of the measure under debate, and to bring public opinion to bear upon the subject matter before the house. We see that happening every day. It is because of the necessity of informing the public, as well as to avoid unduly precipitate action in the house, that provision is made in our procedure for consideration stage by stage.

Yet here today we have just one opportunity of reviewing this subject in debate. When the vote is taken on the resolution, that will end the matter in the house. Whether the debate continues long enough to give the people of Canada an opportunity to appreciate the full significance of the proposal remains to be seen. But I wish to express my view that it is most regrettable that the procedure of the house permits a matter of such far-reaching importance as this one to be disposed of in a relatively summary fashion.

In view of the ringingly clear statement made by my leader this afternoon I do not think it is strictly necessary to say what I am about to say. However, I do wish to put myself clearly on record as stating that the time has long since passed when Canada should have the right to amend her own constitution within her own borders, both from the point of view of recognizing her own status and autonomy and of relieving the parliament of the United Kingdom of what

on some occasions has been a source of embarrassment. It was so in 1943, when the address presented by our parliament at that time was opposed by at least one provincial legislature.

It should not be possible now, with Canada a grown-up nation, to have a situation continue where embarrassment may be caused to the parliament of the United Kingdom in that fashion, and where we put ourselves in the position of having to go outside Canada to obtain amendments.

But, sir, to say that we ought to have in Canada complete power to amend our constitution as we see fit is a very different thing from saying that this parliament ought to have unlimited power to make amendments to the constitution. I think it is fair to say that in a good deal of the discussion of this subject in times past there has been a regrettable tendency to confound amendments made by Canada with amendments made by parliament, or at the instance of parliament.

I wish to say definitely that in subscribing to the principle that Canada ought to have within her own shores the power to amend her constitution in any way she sees fit, I do not mean at all that parliament should have untrammelled power to bring about amendments by itself. The question before us is or should be one of finding a formula for an amending procedure. With that should be linked the question of what method we should pursue at this time in relation to the legislatures and governments of the provinces in seeking that necessary formula.

I make it clear here and now that so far as I am concerned I do not think the method proposed by the Prime Minister (Mr. St. Laurent), the method inherent in the resolution before the house today, is a satisfactory formula or even a helpful beginning toward seeking a satisfactory amending formula.

Something was said this afternoon about the need for amendments. Sir, there are many amendments needed in our constitution. I believe we would find ourselves on common ground if we were to say in the first place that Canada ought to have the right to amend her constitution and, in the second place, that amendments are necessary. We are not here engaged in merely academic discussion. It has been a matter of wonder to me for a long time why we allow sections 55, 56 and 57 to continue in the British North America Act. They may be a dead letter, but they remain. These are the sections under which power is reserved to the reigning sovereign in council to disallow measures of parliament. They confer on the British government the right of reservation of legislation and the right of disallowance. It is a

fact that the power of disallowance has not been exercised since 1873, and that the reservation of legislation for the sovereign's approval under these sections did not long continue after that date. It seems to me that is one striking example of an amendment long overdue to remove a dead letter.

The Prime Minister maintained this afternoon that his government possessed a mandate to put this resolution into effect, and suggested that in the view of the government it was the first step it should take, even in advance of consultation with the provinces in relation to other matters arising out of the constitution.

I heard the statement made in the house by the Prime Minister about a year ago on this subject. I followed press reports of his speeches during the campaign, with some care, and I do say that unquestionably the government has a mandate, as I think every member in the house, regardless of party, must have a mandate from his electorate to seek for Canada the power to amend her own constitution. But I submit to you, sir, that the Prime Minister has yet to show the House of Commons where he has a mandate from the people of Canada to proceed by the method laid down in the resolution now under debate. Certainly it was not indicated in the speech he made to the house this afternoon.

Where is the mandate to select one field, a field the line of demarcation of which is not as clear to many people as it appears to be to the Prime Minister, and to say that without consultation with the provinces we are going right ahead with this subject in a manner which I think will prejudice the wider enterprise of seeking a comprehensive amending formula for the Canadian constitution in all its aspects?

Undoubtedly if the fathers of confederation did wrestle with this question of amending procedure, they had some difficulty with it. It is not free from difficulty yet. In his correspondence with the premiers of the provinces the Prime Minister referred to it as being a subject of great difficulty. Nevertheless, we should no longer continue to be the one dominion lacking this power.

But in my submission the formula by which a comprehensive amending procedure is to be achieved in Canada must be one that is acceptable to the provinces. It is the height of folly to proceed to carve up this subject. We are only inviting the defeat of any hope of effecting that comprehensive approach to the problem of devising an amending procedure which is long overdue.

So far as the government is concerned, the Prime Minister this afternoon tolled the death

British North America Act knell of the compact theory of confederation. If those who follow him in this house follow him in his speech, then the Liberal party has today tolled the death knell of the compact theory. There are some things about the compact theory about which I should like to remind Liberal members in this house.

Whether or not that theory is precisely recognized by the courts in interpreting the British North America Act, it is an incontestable historical fact.

I should like to refer to the letter of October 5, 1949, from the premier of Quebec to the Prime Minister. In that letter reference is made to the statement made by Lord Carnarvon when the British North America bill was introduced by him into the Westminster parliament. Lord Carnarvon said:

The Quebec resolutions, with some slight changes, form the basis of a measure that I have now the honour to submit to parliament. To those resolutions, all the British provinces in North America were, as I have said, consenting parties, and the measure founded upon them must be accepted as a treaty of union.

When the bill was introduced in the British House of Commons by Mr. Adderley he said:

If again, federation has in this case specially been a matter of most delicate treaty and compact between the provinces ... it is clearly necessary that there should be a third party ab extra to give sanction to the treaty made between them.

That was the view of the government which introduced in the Westminster parliament eighty-three years ago the bill that later became the British North America Act.

But the evidence does not end there. It was the view of the Liberal party in its best days in this country that the British North America Act, certainly the scheme of confederation which found its legislative embodiment in the British North America Act, was a compact. I should like to refer to the words of Sir Wilfrid Laurier, as reported on page 2199 of Hansard of January 28, 1907, when he said:

Confederation is a compact-

I ask Liberal members of this house who heard the remarks of the Prime Minister today when he completely repudiated the compact theory to put alongside his words those of Laurier, in 1907, who said, "Confederation is a compact." I quote from page 2199 again:

Confederation is a compact made originally by four provinces, but adhered to by all the nine provinces who have entered it, and I submit to the judgment of this house and to the best consideration of its members, that this compact should not be lightly altered. It should be altered only for adequate cause, and after the provinces themselves have had an opportunity to pass judgment on the same.

8S0

British North America Act

The view expounded this afternoon in this house by the Prime Minister and the view expounded by Laurier in that passage are as different as day is from night.

That view did not end with Sir Wilfrid Laurier. Speaking in this house in 1924, the late Right Hon. Ernest Lapointe said this, as reported on page 520 of Hansard of 1924:

Now this treaty cannot be changed, it has been the contention of many constitutional authorities, and I think it is only fair that no change should be accepted, without the consent of all those who were parties to it. It is a sacred treaty just as is any other treaty; it is no scrap of paper.

A treaty-that was the view of Lapointe: it was not to be changed apart from consultation with those who were parties to the treaty. Put that statement alongside the doctrine expounded in this house this afternoon by the Prime Minister and you will find that they can never be reconciled until kingdom come.

Then speaking in 1925, as reported on page 301 of Hansard, Mr. Lapointe said this:

I do not think there can be any attempt to change the mutual charter of both the dominion and the provinces by the arbitrary action of this parliament. I do not think it is possible to do it. To those who want changes, and I am willing to admit that there might be the necessity for 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.

That is all that the amendment that has been submitted to the house by my leader asks, that there shall be consultation with the provinces. Surely it is a reasonable request. That was certainly the view of the Liberal party until these later days.

I turn now to a very commendable speech made in this house on June 20, 1946, by the late Hon. P. J. A. Cardin. If I remember rightly this was the last speech made in this house by Mr. Cardin. It was a great and eloquent speech made by a man who had given long years of sincere public service in this house. Out of his long experience he made some significant observations upon a similar measure that was then under debate in the house, that an humble address be presented to His Majesty the King seeking an amendment of the British North America Act for the purpose of altering the basis of redistribution and membership in the house under section 51 of the British North America Act. Mr. Cardin was referring to the doctrine expounded in that debate by the present Prime Minister, then Minister of Justice, that except in connection with the subjects enumerated in sections 92, 93, 94 and 95, parliament had the right to obtain an amendment of the British North America Act without consulting the provinces. When the hon.

member for Calgary West asked if that doctrine applied to section 133 of the act, when he asked if parliament had the right to obtain from Westminster an amendment to the British North America Act in reference to section 133, the Prime Minister, then the Minister of Justice, answered, "Yes, legally, I say it can". The Prime Minister expounded the doctrine that parliament, without consulting the provinces, has the legal power to secure amendments to the British North America Act at Westminster which could have as their purpose the abolition of any language rights under section 133. Following that statement, referring to the doctrine expounded by the present Prime Minister, Mr. Cardin is reported at page 2667 of Hansard as follows:

And what is the consequence? We have heard the Minister of Justice say in reply to the hon. member for Calgary West (Mr. Smith) that the federal parliament would have the authority to make representations to the imperial parliament to amend the constitution by wiping out section 133 of the British North America Act which protects the French language in this country, and that without consulting the provinces. That is one consequence of the theory which has been expounded by the Minister of Justice in this house, contrary to the views expressed by his distinguished predecessor, the late Right Hon. Ernest Lapointe, and all public men in Canada since 1867.

In all the discussions which took place in regard to amending the constitution it has always been contended by all parties that we could never touch the privileges of any province, of any race or any religion, without giving them the opportunity of being consulted and of expressing in detail their views on the proposition.

At page 2671 Mr. Cardin concluded his remarks with these words:

The amendment asks for consultation with the provinces and the obtaining of at least their advice before proceeding with the resolution. I am in accord with that view, and in that stand I remain in the family of the old Liberals among whom I have been brought up in my political life. I stand with Blake; I stand with Laurier; I stand with Lapointe, and on that constitutional issue I also agree with leaders of the Conservative party in the past. No, I am not alone. I am at present preaching the gospel they all have preached, the gospel I myself have been advocating in my province and in Canada as a whole for the last thirty-five years.

That was a great speech by a great Canadian, and I put it to every Liberal member of the house: Do you stand today with the Prime Minister (Mr. St. Laurent) and the government in the doctrine that has been expounded by him today, or do you stand with Blake, with Laurier and with Lapointe? You cannot stand with the Prime Minister today and stand with Blake, Laurier, Lapointe and Cardin. When the amendment and the resolution come to a vote the Liberal members today will make their choice because they cannot vote for both. They will make their choice with respect to the doctrine of

the present Prime Minister. They will have the opportunity of standing with him or the opportunity of standing with Blake, Laurier, Lapointe and Cardin.

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

Gladstone Mansfield Ferrie

Liberal

Mr. Ferrie:

On a point of order, are we discussing the amendment? The new members of the house would like to know whether we are discussing the amendment or the resolution. I have listened for half an hour and it seems to me that nothing has been said about the amendment.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENTS TO THE CONSTITUTION
Sub-subtopic:   ADDRESS TO HIS MAJESTY THE KING
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October 18, 1949