October 18, 1949

LIB

Elie Beauregard (Speaker of the Senate)

Liberal

Mr. Speaker:

The amendment is before the house.

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

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

It is perfectly clear that the resolution constitutes a repudiation of the position taken by the great Liberal leaders of times gone by, and the Liberal party in its best days, on this subject of the constitution. Why should there not be consultation with the provinces? Would it not be the simplest thing in the world to enlarge the scope of the proposed dominion-provincial conference to include matters so obviously proper to be discussed there as those before the house today? Our provincial premiers, doing their duty, in reply to the invitation of the Prime Minister to attend the conference at the end of the present session, a conference that will have half an agenda in relation to amendments of the constitution, have taken advantage of the opportunity to state quite clearly the positions of their provinces.

This afternoon the leader of my party read the very telling observations of the premier of Alberta in relation to the proposed procedure. The premier asked that before any action is taken of the kind that parliament is being asked to take today there should be consultation between the dominion and the provinces, and that the conference which is to take place at the conclusion of this session between the dominion and the provinces ought to be enlarged to include this matter with others to be submitted to that conference. That is a very simple request by the premier of the province of Alberta, and he is not alone in making that request.

The premier of the province of Quebec has written two letters on the subject and I quote short passages from them. On Octo ber 5 he said, in concluding a letter to the Prime Minister:

Once more I draw your attention to the fact that the Canadian constitution did not result from hasty decisions, nor was it the realization of a singie political party or of a single government. We renew our request, Mr. Prime Minister, that you agree to postpone all legislation concerning the federative pact and call together initially the interested parties to study together in a spirit of co-operation the vital problems involved in an amendment to the British North America Act.

British North America Act

Surely that is a reasonable request, but it is one that the government is in too great haste to consider. Again the premier of the province of Quebec said this in a letter to the Prime Minister on September 21:

In our opinion the Canadian constitution is a pact which cannot be amended in a unilateral fashion. We believe that an ounce of prevention is worth a pound of cure, and it is appropriate that the provinces should be consulted beforehand rather than be left in the presence of an accomplished fact. We therefore ask, Mr. Prime Minister, that you delay all legislation relating to the federated pact and call together, in the first place, the interested parties-*

Again he makes the same request that the provinces be called together so that they may work out this subject of amendment with the dominion in a spirit of co-operation.

The present premier of the province of Quebec is not the first premier of that province who has taken the same position as to the nature of confederation and the necessity of consulting the provinces before undertaking amendments. Mercier took it. Mr. Godbout, when he was premier of the province of Quebec, on June 22, 1943, wrote to the then prime minister of Canada. His letter concerns an amendment, proposed at that time, to the British North America Act for the purpose of postponing the decennial redistribution of seats in the house. This letter was quoted by Mr. Cardin in the same speech to which I have referred. It reads: Dear Mr. King:

I regret to hear that you consider delaying the readjustment of representation in the House of Commons according to the 1941 census. This decennial readjustment is an essential part of the compact between the provinces out of which arose the Canadian confederation, and therefore the British North America Act cannot properly be amended, in this respect, without the assent of the provinces.

Could anything be plainer? Will hon. members from the province of Quebec choose to follow the view expounded by Mr. Godbout in 1943 or the contrary view expounded by the Prime Minister in this house today?

Then I turn to the letter of the premier of Ontario of October 7 in which he says:

I am frankly in some doubt as to the advisability of dealing with the matter piecemeal-

That is the matter of the procedure for amending the constitution.

-without first attempting general agreement. Obviously, matters which are purely a federal concern will have to be delineated from time to time by the courts. My consideration of the matter leads me to believe that abolition of appeals to the privy council may affect this very important side of matters more than is generally realized.

Then the premier of the province of Manitoba says in his letter of October 6:

The government of Manitoba feels that there might be differences of opinion as to whether a proposed amendment to the constitution related only

British North America Act to federal matters or affected provincial interests, rights, or jurisdiction. Before agreeing to any specific proposal, therefore, our government will examine carefully the manner in which the provincial position is to be protected.

It is only natural that one should turn also to the letter from the Liberal premier of the province of Nova Scotia. In his letter of September 27 to the Prime Minister he said this:

I observe that the Minister of Justice has introduced a bill for the abolition of appeals to the privy council. It seems to me that the abolition of appeals to the privy council might well form the subject of study by such a general conference as is envisaged in your letter. I beg to suggest, therefore, that final consideration of the bill now before the House of Commons be deferred until the conference suggested in your letter will be held. There is, I believe, considerable support for the view that the abolition of appeals to the privy council is in effect an amendment of the constitution and that, therefore, it is a question which should be the subject of discussion at the dominion-provincial conference which you suggest.

There you have the very reasonable and sensible point of view put forward by the premier of the province of Nova Scotia that when a question involves an amendment of the constitution the provinces ought to be consulted. Again the Liberal members of the house will have the opportunity of choosing between the point of view of the Liberal premier of Nova Scotia and the view expounded in this house today by the Prime Minister.

Before I leave this subject of the pact and the desirability, indeed the necessity, of consulting the provinces if we are to have due regard for the essence of confederation, let me make this final observation. We are a parliament. We are not sitting as a court construing the terms of the British North America Act, an imperial statute. The courts cannot look behind the terms of the statute. They cannot look back at the Quebec resolutions; they cannot look back at the language used by those who introduced in the British houses of parliament the bill which in due course became the British North America Act. The courts are not permitted to go back of the language of the legislation they are engaged in construing. But we are not a court; we are a parliament. We are here making laws; and I say to this House of Commons that we have neither the legal nor the constitutional nor the moral right to shut our eyes to what preceded and led up to confederation. Yet in effect that is what we are being asked to do today.

We speak of precedent. The Prime Minister (Mr. St. Laurent) has given us a review of previous amendments, and he has claimed the benefit of precedent for the course the government is pursuing here. Among those he quoted I say there were some pretty bad

[Mr. Fleming.)

precedents; but at best or at most-perhaps I should say at worst-he had precedent for a particular amendment. But this present resolution goes far beyond any amendment to the British North America Act hitherto obtained at the request of parliament. This is infinitely more far-reaching. This is something that goes to the basis of the amending procedure; and there is no precedent for this. In my submission a far better precedent would be the report of a committee of this house which studied this question in 1935 and made its report and recommendations in these terms, which appear at page 143 of its proceedings:

The committee recognizes 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.

It is further of opinion that the conference hereafter proposed should carefully consider the adoption of a recognized yet flexible method of amendment.

In view of the fact that the several provinces did not feel it advisable to give the committee the benefit of their views with respect to the method of procedure to be followed in amending the constitution, the committee is of the opinion that before any decision upon the subject matter of the resolution is finally made, the opinions of the provinces should be obtained otherwise, if at all possible, and for that reason recommends that a dominion-provincial conference be held as early as possible in the present year to study the subject matter of the resolution. The proposed conference should have ample time in which to study every phase of the question.

In view of the above recommendation the committee expressly refrains from recommending any form of procedure for amendment so as to leave the proposed conference entirely free in its study of the question, except that the committee is definitely of the opinion that minority rights agreed upon and granted under the provisions of the British North America Act should not be interfered with.

Within the realm which the Prime Minister says is quite clear, but which many of us do not find characterized by such clarity-that is, the federal sphere-we are being asked to put our constitution on the same basis as an ordinary statute of this house, capable of amendment in the same way as any other piece of legislation ever adopted by this parliament. Every federal constitution that I know anything about has drawn a clear line of distinction between ordinary legislative processes in the particular legislature that has been created, and methods of changing the constitution. The constitution is fundamental; it is the organic document from which legislatures-and I am speaking of federal constitutions in general-derive their existence. This proposal and the proposed amendment to the B.N.A. Act, if it were enacted at Westminster, would put our constitution, in matters which the Prime Minister says come under federal jurisdiction, in exactly the same position as any other statute

of parliament. In other words, in relation to what the Prime Minister says are federal matters, the British North America Act could be changed here in precisely the same way as any other law of parliament.

I do not think that is the way to approach amendments to the constitution. A clear line of distinction should be drawn between ordinary legislation and changes in the constitution because, as I have said, the constitution is fundamental, and is the organic document from which this parliament derives its existence.

My time is passing, but I wish to make one more comment before I conclude. In most federal constitutions, certainly in the case of the United States, the senate was designed to be representative of the states. It was designed to be the protector of states' rights. It may be that our Senate is not the complete counterpart of the United States senate in that respect; nevertheless, in some respects our Senate was intended to be the protector of the rights of the provinces. But with all respect to the other house I say that as it comes closer and closer to being a one-party chamber, then by its very composition it is going to be more and more precluded from discharging that duty of protecting the rights of the provinces.

The resolution seeks to make an interesting exception of language and school rights, the reason for v/hich I think you will find in the doctrine propounded by the Prime Minister in this house on June 18, 1946. That is a doctrine which has done much mischief; namely, that the rights of minorities in respect of language could be abrogated by amendment without consulting the provinces. An exception is to be made here; but let every hon. member of this house realize the position in which minority rights under section 133 of the British North America Act are left by this resolution. To hear the Prime Minister speak one would think that somehow these rights are being given additional guarantees. They are not. Parliament is creating one more precedent, a more far-reaching precedent than has ever been created in times past for automatically obtaining at Westminster amendments to the British North America Act simply on the request of both houses of parliament, by an address adopted by a majority of perhaps only one in each house. Remember that the parliament at Westminster is not divesting itself of the right to make further amendments to the constitution. It could not, because it is an imperial statute. The rights of minorities continue to have all the validity they now have under section 133 of the act-no more, no less-but if parliament passes this resolution parliament will have created another

British North America Act precedent for obtaining amendments to the British North America Act, including section 133, without consultation with the provinces. The rights of minorities under section 133 after this resolution is adopted, if it should be adopted, will not stand any higher, under the doctrine expounded by the Prime Minister, than the forbearance of a majority of one in each house.

That is no position in which to leave minority rights in this country. Those rights are sacred and fundamental. There would have been no confederation had those guarantees under section 133 not been given, and I say it is the duty of this house to seek a comprehensive method of amendment of the constitution which will embrace all features of the act, so there may be within Canada complete autonomy and complete power of amendment, and which will really preserve and safeguard the rights of minorities and will not leave them at the mercy of a majority of one in this house and in the Senate.

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

Elie Beauregard (Speaker of the Senate)

Liberal

Mr. Speaker:

This afternoon there was mention made of the fact that the amendment might not be in order. During the dinner recess, I read the amendment carefully and I have some doubt as to whether or not it is in order. It occurred to me that some hon. members might like to express their views with regard to whether or not the amendment is within the rules. If so, I would be glad to hear them now.

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

Edmund Davie Fulton

Progressive Conservative

Mr. E. D. Fulton (Kamloops):

Mr. Speaker, I appreciate the opportunity of expressing some views on the question of whether or not the amendment moved by the leader of the opposition is in order. Since no attack has as yet been made on the point of order, one is compelled to deal with it by anticipating what might be said. In this connection, I think it is fair to point out that, although the matter was referred to in passing by the hon. member for Rosetown-Biggar (Mr. Cold-well), it did not appear that the hon. gentleman was entirely satisfied the amendment was out of order. As I point out to you, Mr. Speaker, he advanced no grounds for its being out of order and did not take the position that it was, in fact, out of order.

It seems to me there might be three grounds only upon which the amendment could be declared to be not within the rules. The first one would be that it is not relevant to the main motion. In this connection, may I refer Your Honour to Beauchesne, third edition, page 136, where citation 338 reads as follows:

The object of an amendment may be to effect such an alteration in a question as will obtain the support of those who, without such alteration, must either vote against it or abstain from voting thereon,

British North America Act or to present to the house an alternative proposition either wholly or partially opposed to the original question. This may be effected by moving to omit all the words of the question after the first word, "That", and to substitute in their place other words of a different import. In that case the debate that follows is not restricted to the amendment, but includes the motives of the amendment and of the motion, both matters being under the consideration of the house as alternative propositions.

At this point, perhaps I should direct Your Honour's attention to the fact that this amendment does do exactly what is contemplated in that citation from Beauchesne, namely, to suggest an alternative proposition wholly or partially opposed to the original question. It does so by moving to strike out all the words after the first word "that" and to substitute other words.

In fact, Mr. Speaker, one is always conscious of the difficulty of complying with the various rules of the house in moving an amendment, particularly to a resolution. In speaking in support of the proposition that this amendment is in order, and in asking Your Honour to rule accordingly, I can say with absolute certainty that a most scrupulous attempt has been made to see that the amendment does, in fact, comply with the rules because it is our desire to have a discussion on the merits of the situation.

The citation which I have read from Beauchesne is a citation based on May, the great British authority, and it is supported by the ruling of a Canadian Speaker referred to by Beauchesne at page 595. This question of relevancy had been raised and Mr. Speaker Lemieux, on June 6, 1923, quoted and applied that ruling in May. Dealing further with the question of relevancy, there seems to be a certain amount of contradiction between the various citations. It is for that reason that I say a most scrupulous effort has been made to draft an amendment which will be in order.

It seemed to us that the amendment had to do two things. First, it had to deal, in part at any rate, with the subject matter of the main motion. Second, it had to deal with or suggest a new or further proposition which, in effect, adds something to or is different from the main motion. If Your Honour will look at page 137 of Beauchesne, you will see what he advances as the law on the relevance of amendments. It reads as follows:

The law on the relevancy of amendments is that if they are on the same subject-matter with the original motion, they are admissible,-

I would point out to Your Honour that this amendment is on the same subject matter as the main motion. The main motion deals with the question of enacting in Canada a means of amending our own constitution. The amendment deals with the same matter

because it suggests that following the convening of a constitutional convention to devise a method of amending the constitution in Canada, then such method should be made the subject of an humble address. It can be seen, therefore, that the amendment deals with the same matter as that which is before the house in the main motion, but it suggests an alternative and entirely different procedure from that which is outlined in the motion. I submit, therefore, it is in order on these two grounds, which it is admittedly difficult to reconcile, that it may suggest a difference in principle and yet must be relevant to the subject matter of the main motion.

Further, if Your Honour will look at the various rulings of Canadian Speakers cited in Beauchesne where amendments have been ruled out of order on the ground that they are not relevant, I believe it will be seen that in every case in which the amendment was ruled out of order it did nothing more than deal with an entirely different subject. For instance, on page 580 of Beauchesne's third edition, there is a reference to a speaker's ruling in which an amendment was ruled out of order on the ground that it was not relevant. The operative part of the ruling is as follows:

The motion before the house deals with one specific question, the scale of payments to be made by Canada to the various provinces. The amendment proposes to deal with the representation of several provinces. It seems to me that is an entirely different question, and it is not relevant.

As I have pointed out, our amendment does deal with the subject matter of amending the constitution. It does not deal with an entirely different proposition and, therefore, I submit it does not fall within the scope of those previous rulings in which amendments have been ruled out of order on the ground that they were not relevant.

We come then to the second possible ground of objection, that it introduces new matter. I think, Mr. Speaker, that is dealt with in the citation to which I have already referred and which is to the effect that a member may move an amendment asserting a different proposition or advancing a different principle. It seems to me it would be quite impossible to comply with the strict interpretation of the rules when it is said the amendment must not introduce new matter and, at the same time, you are faced with a citation that an amendment may assert a different proposition. I am not one to suggest that the rules of the house should be disregarded or that they are merely an inconvenience to be overridden. I say the rules are for the purpose of regulating and guiding discussion. Nevertheless, I do suggest that

there is such an apparent conflict between the two citations that Your Honour should exercise some discretion in interpreting the amendment. This amendment does, in fact, assert a different principle to be followed in achieving constitutional amendments; nevertheless, it does deal with the question of amending the constitution. I submit it is not out of order on the straight ground that it introduces new matter.

The third ground upon which objection might be raised is that it involves an expenditure of money. That is the old stand-by to which we always look when trying to have amendments ruled out of order.

In this connection I refer Your Honour to the fact that it does not directly involve the expenditure of money. If adopted, it constitutes a request to His Excellency the Governor in Council that a certain course be followed. It does not say that a constitutional convention must be or should be convened the day after tomorrow. It asks that His Excellency the Governor in Council be requested to convene a constitutional convention. So far as it can be made to do so, it merely asserts the principle that this is a proper way to go about solving this problem.

I am not going to take the time of the house or of Your Honour to deal with all the various conflicting rules on what is a money bill and what is not. I think it is sufficient if I remind you that the actual interpretation of what is a money bill is a strict interpretation and that if one applies that interpretation with a reasonable attitude toward amendments which are introduced into the house, it will be seen that this amendment clearly does not fall within that rule.

May I finally refer to a number of previous similar amendments which have been found to be in order; or perhaps I should say that by inference they were found to be in order because they have not been ruled out of order. I refer to the amendment introduced in 1946, when the British North America Act was being amended to change the basis of distribution of seats in the house. On that occasion the hon. member for Lake Centre (Mr. Diefenbaker) moved an amendment to the resolution then being discussed. His amendment is to be found at page 2235 of Hansard of June 6 of that year. The hon. member moved an amendment in these words:

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

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

British North America Act

Now therefore be it resolved that the government be required to consult at once the several provinces and upon satisfactory conclusion of such consultations . . .

To proceed with the redistribution. That amendment was not ruled out of order, although it was defeated in the house on a vote on the merits of the amendment itself. Similarly, in the spring of this year, at the last session of the last parliament when the agreement with Newfoundland was being discussed, the leader of the opposition (Mr. Drew) moved an amendment in much the same words. The amendment, to be found at page 501, was as follows:

That the motion be amended by deleting the words:

"A humble address be presented to His Majesty the King in the following words":-

and substituting therefor:

"And whereas it is desirable that the government of Canada should consult with the governments of the several provinces in respect to the said matter;

Now therefore be it resolved, that the government of Canada be required to consult at once the governments of the several provinces and that upon a satisfactory conclusion of such consultations . . .

And so on. On two occasions therefore you have amendments in much the same form as this one, with this exception. The wording of those amendments required consultation at once so that they are even stronger directions for the holding of a dominion-provincial conference than is this one. Those amendments having been found to be in order, although they required the holding of a conference and therefore, by inference, if that rule applied, would require the expenditure of money, I submit that this amendment, which is not nearly so direct in its requirements but merely suggests that His Excellency be requested to convene a conference, is also clearly in order on the precedents established by those two earlier amendments.

There is one final point in connection with this rule regarding expenditure of money. I would refer Your Honour to the principle set out in Beauchesne's Parliamentary Rules and Forms, third edition, in dealing with bills, not resolutions. At page 170, citation 444, you will find the following:

Private members may introduce resolutions that do not directly involve the expenditure of public money and have no operative effect but simply express an abstract opinion on a matter which may necessitate a future grant.

Here we have an expression of opinion that the proper procedure would be for His Excellency to be requested to convene a dominion-provincial conference, an abstract expression of principle which might possibly at some future time require a grant. But according to the citation I have read, it is within the power of a private member to move such a resolution.

British North America Act

For these various reasons I submit that this amendment is in order. I am sorry to have been so lengthy in my explanation but I offer this excuse. As I said at the outset, it is difficult to draft amendments to resolutions such as this which will be within the rules. This amendment has been as carefully drafted as we could do it, in order to comply with all the somewhat conflicting citations to be found. That is my excuse for the length of time I have taken on this submission that the amendment is within the rules of the house.

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

Elie Beauregard (Speaker of the Senate)

Liberal

Mr. Speaker:

Does any other hon. member wish to speak to the point of order?

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

Some hon. Members:

Carried.

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

Elie Beauregard (Speaker of the Senate)

Liberal

Mr. Speaker:

I am now prepared to give a ruling. First of all, I wish to thank the hon. member for Kamloops (Mr. Fulton) for the care he has taken to explain why he thinks that the motion is in order. He has cleared up for me several points on which I had some doubt. There is, however, one point which he has not cleared up and that is whether or not the amendment amounts to a motion for which notice must be given. He did not satisfy me with regard to that. I am not stating that he entirely satisfied me with regard to the other doubts which I had in my mind, especially the question as to whether this motion would require the government to make an expenditure and was not merely setting forth an abstract principle. It will not be necessary, however, for me to make a ruling on that point.

I would point out to hon. members that citation 355 of Beauchesne's Parliamentary Rules and Forms, third edition, makes it clear that an amendment must not raise a question which can only be considered as a distinct motion after notice. The principal motion before the house asks that an address be presented to His Majesty the King praying for a measure to be laid before the parliament of the United Kingdom in amendment of section 91 of the British North America Acts, 1867-1949. The amendment, on the other hand, envisages the convocation of a constitutional convention to devise a method of amending the constitution of Canada. In my view the amendment is so different, in substance and effect, from the main motion as to require its introduction as a distinct motion after notice. I would refer hon. members to Canadian Commons Journals, 1929, pages 109-111.

It is not necessary for me to consider the other points which the hon. member has mentioned. My view is that this motion is so different in substance and effect from the

main motion as to require its introduction as a distinct motion after notice. I must accordingly rule the amendment out of order.

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

Gordon Francis Higgins

Progressive Conservative

Mr. G. F. Higgins (St. John's East):

I have listened carefully, Mr. Speaker, this afternoon and evening to the views expressed by the various hon. members on matters connected with this resolution. I must confess that the more I have listened, the graver the matter contained in the resolution appears to me to be. The statute contemplated by the resolution may have far-reaching effects. This being so, I cannot see the need for the unseemly haste in the passage of the legislation.

Why is it that this legislation must be hurried? Is Canada losing face among the nations of the world? Is Canada not regarded any more as a sovereign power? What is to be gained or what is to be lost by this hurry? I heard one hon. member say today that it was to make Canada sovereign in all respects. But surely Canada has been a sovereign power since 1931. I believe that since the passage of the Statute of Westminster we can regard Canada as being a sovereign power.

In fact, I need only refer hon. members to what I believe can be called an official government publication. This is the British North America Acts and Selected Statutes, published on January 1 of this year by the King's Printer. It states in a headnote that all this material has been brought together, collected and annotated by Dr. Maurice Ollivier, K.C., F.R.S.C., joint law clerk of the House of Commons. At page 25 it states:

It may be stated that responsible government was established in 1848, just as it may be said that Canada became a sovereign country in 1931.

Surely we must be all agreed, and the government must agree-or its booklet would not be published in this fashion-that Canada is a sovereign power, and has been since 1931. What is the reason then? Do we want to be regarded as a sovereign power, when we already are one?

I listened carefully to the Prime Minister (Mr. St. Laurent) today upon which occasion I believe he said that this resolution was an implementation of an election promise. I read the letter addressed to the premiers of the different provinces, as it appears at page 25 of Hansard, and this is what I read-and I would presume this is the promise made by the Prime Minister prior to the election:

Before the recent election I stated on several occasions that it was the view of the government that a method should be worked out to amend our constitution in Canada, and that any such method should include the fullest safeguards of provincial rights and jurisdiction, and of the use of the two official languages and of those other rights which are the sacred trust of our national partnership.

Then he goes on in the same letter, the next paragraph, to say:

I stated also that it was the intention of the government, after the election, to consult the provincial governments with a view to working out a method of amending the constitution in Canada, which would be satisfactory to all Canadians.

Unless I am completely astray in my reasoning in this matter-and I could very well be-it would appear to me that the only interpretation which could be placed upon that paragraph is that the Prime Minister prior to the election made an announcement that, if he came into power as head of the government, legislation would be introduced to this effect, and that the provinces would first be consulted before such legislation was introduced. No other interpretation could be placed upon that particular paragraph.

I submit to hon. members that they should read it and decide for themselves what conclusion they are forced to. There is no other way it can be read. I have been listening to various interpretations of acts and agreements in respect to confederation, and what they mean. The conclusion I came to was by reverting to what might be described as the Newfoundland agreement, passed in 1948. The heading of this agreement between Canada and Newfoundland, and dated December 11, 1948, is "Memorandum of agreement entered into on the 11th day of December, 1948, between Canada and Newfoundland." This is called a memorandum of agreement. In other words, there was an agreement between Newfoundland and Canada, and I assume there must be similar agreements between Canada and the other provinces.

The agreement with Newfoundland was implemented by statute. But it is an agreement between peoples; and if any part of that agreement is to be altered, then I submit both parties must first be consulted. As I see it, that is only fair and just. But again I may be wrong.

I would refer once more to this 1949 edition from the King's Printer, where it states at page 27:

There has been a certain amount of discussion as to whether the B.N.A. Act was a pact or not. This discussion has taken place amongst writers on constitutional law and the subject has been perhaps more frequently mentioned in political speeches. Strictly speaking it is impossible to say that the B.N.A. Act is a pact since it is an act of the imperial parliament which is supreme. On the other hand this statute cannot, in this day and age, be amended without the consent of Canada and, furthermore, it is based upon an understanding which had taken place between the different colonies. We might recall here that these resolutions constituted a compromise, a sort of pact or understanding, and we might add that our constitution is a re-edition of this understanding with very few changes.

British North America Act

And this from a government publication of 1949! It would appear therefore that the compiler of this particular book did have in his mind the thought that confederation between each of the colonies, including the last one, the present province of Newfoundland, was a pact or an agreement. As such, any alteration of that agreement would have to be made by agreement between the parties.

I have gone over some of the legislation passed, not by this parliament but by preceding ones, and I find that on prior occasions the British North America Act has been amended without consultation with the provinces. But, may I ask, do two wrongs make a right? In 1940 when an amendment of a minor nature compared with the present one was required, namely the amendment necessary for the introduction of a bill to bring about unemployment insurance, why was consent first asked and obtained from each of the provinces before the bill was introduced? If that was done in 1940, why should not the provinces be consulted in connection with this important matter and their consent obtained? I should like to refer to the letter written by the premier of Newfoundland in reply to the letter by the Prime Minister (Mr. St. Laurent) of September 14. In his letter dated October 4 Premier Smallwood acknowledges the letter from the Prime Minister and makes this rather significant comment:

-you wrote me on September 14 with regard to finding a suitable new procedure for amending the British North America Act.

He goes on:

I have brought the matter to the attention of the government of Newfoundland, and they share fully my view that we, for our part, agree with you and your government that a new procedure should be found. We will be happy to co-operate with you in the endeavour. We will be ready at any time after prorogation of parliament to meet with you at Ottawa.

I hold no brief for the premier of Newfoundland who heads the Liberal government, but it would appear from his letter that he was agreeing to the consideration of a new method whereby the British North America Act could be amended. If the premier of Newfoundland thinks in that way, as would appear from his letter, surely he should be informed of what Ihe real situation is before this legislation is passed. He is only one premier. There may be others.

Speaking only as one member from Newfoundland I must protest at the indecent haste in which this legislation is being put through. I see no need for the hurry and rush. We have been here a month and bills of the greatest importance to Newfoundland

8S8 HOUSE OF COMMONS

British North America Act

have gone through. This is a most important measure and I see no reason why we cannot have a little less hurry.

I think of Canada as a two-wheeled cart, one wheel being the federal government and the other wheel being made up of the ten provinces. That cart will run along quite well as long as the two wheels are of the same circumference, but it is now proposed to alter one wheel without altering the other and I think that will make for a very lop-sided cart. The only way we can keep this Canada of ours on the level is to make alterations to both wheels at the same time. It seems so sensible to me that I cannot imagine any one quibbling about the idea.

I know there are other hon. members who wish to speak so I shall sum up briefly. There is no need for haste. The premiers are meeting in a short time, as I understand the Prime Minister has received the consent of all to meet. We do not want to make a botched job of this most important matter. In conclusion I can only repeat the words used by the Prime Minister in his letter to the premiers, that a method should be worked out of amending the constitution which would be satisfactory to all Canadians. That is what we want to work out, a method that will be satisfactory to all Canadians, and that is not going to be done by adopting the procedure contemplated by this resolution.

Mr. Jean Fran$ois Pouliol (Temiscouaia):

Mr. Speaker, this is a most difficult question. I have listened with interest and an open mind to all the speeches that have been made this afternoon and evening. I think every hon. member who spoke did his best to speak on a high plane, and the subject matter before the house certainly deserves that treatment. I appreciate what the Prime Minister (Mr. St. Laurent) has said, that we should have no inferiority complex when thinking of other nations of the world. I think every one agrees with him. When the leader of the opposition (Mr. Drew) was speaking-we are all glad to see him back in the house, in his usual good form-he said that there is no suggestion that we must assert our sovereignty or declare that we are no longer under any limitation; that we have asserted that and have demonstrated that. We all believe it, said he. *

I do not believe that Canada is a sovereign nation at the present time. A number of years ago Sir Wilfrid Laurier said that Canada was a nation in the commonwealth. That was a fine phrase, but it meant nothing. A nation may be a group of people having the same language or following the same customs, but Sir Wilfrid did not mean that Canada

was a sovereign nation in the commonwealth. At that time the only sovereign nation was Great Britain; all the other nations of the commonwealth were subservient to Great Britain. I have great admiration for Sir Wilfrid. It would have meant differently if he had said that Canada was a sovereign nation in the commonwealth, but he could not say that and he was honest enough not to say something that was not true.

Let us see if we have become a sovereign nation. Some hon. members are under that impression, but I do not think we are for the very good reason referred to by the hon. member for Eglinton (Mr. Fleming). The disallowance provisions that were put in the British North America Act still exist. In 1931 there was passed an act called the Statute of Westminster, although there are thousands of other statutes of Westminster. Section 7 of that statute reads:

Nothing in this act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 193D, or any order, rule or regulation made thereunder.

That means that nothing has been changed by that enactment to the provisions of our constitution providing for disallowance of Canadian legislation by the British parliament. All hon. members are familiar with the British North America Act, and therefore it is not necessary for me to read to them the provisions concerning the disallowance of Canadian enactments. They are easily found. They are sections 56 and 57, and also section 90, which is quite interesting with regard to the disallowance of provincial enactments.

That is not all; there is more to it. Some Englishmen who have discussed our constitution have come to the conclusion that Canada is the only country in the world that cannot amend her constitution. It is right and it is not right. The constitutions of the other dominions have been double-barrelled constitutions. On one hand the British government gave to the other dominions the power to amend their constitutions, and on the other hand reserved to itself the right to disallow that legislation. What progress could any dominion make in amending its constitution if all or any of the enactments passed by the legislature of that dominion could be disallowed by the British government? It makes no sense, and it seems so unbelievable that I shall have to give my authorities.

Let us look at the old dominion of New Zealand. The act concerning New Zealand was passed in 1852 and is 15-16 Victoria, chapter 72. Bills were sanctioned in the

first place by so-called superintendents who were elected by the people who had the right to vote and elect members in New Zealand. The superintendents of each province were elected by persons duly qualified in each of the said provinces to elect members for the provincial councils.

Section 28 of that statute says that the superintendent must send copies of bills assented to by him to the governor. Listen to the words of section 29, which reads:

It shall be lawful for the governor at any time within three months after such bill shall have been received by him to declare by proclamation his disallowance of such bill, and such disallowance shall make void and annul the same from and after the day of the date of such proclamation, or any subsequent day to be named therein.

Let us look at the Commonwealth of Australia Constitution Act. It was passed by the imperial parliament in the year 1900 and is 63-64 Victoria, chapter 12. I quote from section 128:

This constitution shall not be altered except in the following manner-

It is pretty long but I will quote a whole paragraph to show what kind of right to amend the constitution has been given to the commonwealth of Australia by the imperial parliament. It reads:

And if in a majority of the states a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the governor general for the queen's assent.

Let us revert to section 58, royal assent to bills. It reads:

When a proposed law passed by both houses of the parliament is presented to the governor general for the queen's assent, he shall declare, according to his discretion, but subject to this constitution, that he assents in the queen's name, or that he withholds assent, or that he reserves the law for the queen's pleasure.

It is the same legislation that we have in the British North America Act, and the above was probably copied from the British North America Act. I quote again from the second paragraph of section 58 as follows:

The governor general may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the houses may deal with the recommendation.

Let us now take section 59, which deals with disallowance by the queen. It reads:

The queen may disallow any law within one year from the governor general's assent, and such disallowance on being made known by the governor general by speech or message to each of the houses of the parliament, or by proclamation, shall annul the law from the day when the disallowance is so made known.

The power the commonwealth of Australia has to amend its constitution does not amount to much.

British North America Act

Let us look at the South Africa Act, an imperial statute of 1909. It is 9 Edward VII, chapter 9, part X, amendment of act, section 152. It reads:

Parliament may by law repeal or alter any of the provisions of this act: Provided that no provision thereof, for the operation of which a definite period of time is prescribed, shall during such period be repealed or altered: And provided further that no repeal or alteration of the provisions contained in this section, or in sections thirty-three and thirty-four (until the number of members of the House of Assembly has reached the limit therein prescribed, or until a period of ten years has elapsed after the establishment of the union, whichever is the longer period), or in sections thirty-five and one hundred and thirty-seven, shall be valid unless the bill embodying such repeal or alteration shall be passed by both houses of parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both houses. A bill so passed at such joint sitting shall be taken to have been duly passed by both houses of parliament.

That would be all right, but now I refer to the disallowance provisions which are dealt with in section 65 of the same bill:

The king may disallow any law within one year after it has been assented to by the governor general, and such disallowance, on being made known by the governor general by speech or message to each of the houses of parliament, or by proclamation, shall annul the law from the day when the disallowance is so made known.

How can South Africa claim the right to amend her own constitution when every piece of legislation passed by the parliament of that country is subject to disallowance by the imperial parliament, just as it is in the case of Australia?

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

William Joseph Browne

Progressive Conservative

Mr. Browne (Si. John's West):

If the hon. member will permit a question, how often were any laws passed by South Africa or Australia disallowed by the king?

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

Jean-François Pouliot

Liberal

Mr. Poulioi:

If my hon. friend will permit me to proceed I shall answer his question to his satisfaction. I say it is impossible for any of those dominions to claim sovereignty as long as the disallowance provisions remain in their constitutions. The hon. gentleman who just asked a question may tell me that those provisions are spent, to use judicial language; that they are not used any longer. Let me ask him a question which he may answer when he speaks. If those provisions are considered deadwood by the British parliament how did it happen that, when the Statute of Westminster was passed in 1931, section 7 stated very clearly and beyond doubt that nothing was changed in the British North America Act, meaning that the disallowance provisions in our constitution still exist?

This afternoon we had an assertion of sovereignty by the leader of the opDosition

British North America Act (Mr. Drew). I congratulate him on his statement, though it was not accurate. It was what Mr. Mackenzie King would have called good will; but it is not accurate for the reasons I have mentioned. How can we Canadians say that we are a sovereign nation as long as all our enactments are subject to disallowance by the imperial parliament? That is something I cannot understand. If we want to discuss constitutional matters in the right way, let us be earnest, let us not exaggerate our importance, and let us take things as they are. I admit that Canada is a great country, but Canada cannot be at the same time a great and a small country. We have a great deal of work to do to see to it that we have a constitution that fits Canada, one that is fair to the dominion parliament as well as to the provincial legislatures. At the time the scheme of confederation was discussed in the legislature of Canada my grandfather voted against it, because he saw in it some kind of legislative union. I am all for having the rights of the provinces respected; but when we realize that the imperial parliament passes all the legislation requested by the Canadian parliament for the amendment of our constitution, my first impression is that to go to London for such an amendment is just red tape. I do not see that it is anything else. What kind of protection is there if the British parliament is ready to approve and rubber stamp all that is requested by the Canadian parliament? Let us give Canadians an opportunity to discuss and decide their own business.

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

Arthur Leroy Smith

Progressive Conservative

Mr. Smith (Calgary West):

Were not the statutes setting up constitutions for Australia, New Zealand and South Africa in the exact language that was asked for by the governing bodies in those colonies or dominions, whatever they were at that time? In other words, following up your second argument that the British parliament is a rubber stamp in these matters, is it not a fact that the constitutions they got were exactly what they asked for, with all these powers of disallowance which you have just mentioned?

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

Jean-François Pouliot

Liberal

Mr. Pouliot:

I agree with what my hon. friend has just said; but all those people were colonial-minded, they walked on stilts, stepping high. They claim they are autonomous, but they are not. This is like the opening chorus of "Tannhauser".

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

Arthur Leroy Smith

Progressive Conservative

Mr. Smith (Calgary West):

The hon. member is very clear.

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

Jean-François Pouliot

Liberal

Mr. Pouliot:

I mentioned a piece of music to bring harmony between us. My hon. friend knows very well-

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

Arthur Leroy Smith

Progressive Conservative

Mr. Smith (Calgary West):

I am not disagreeing with you. Don't pick on me.

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

Jean-François Pouliot

Liberal

Mr. Pouliot:

No, the hon. member knows I have great admiration for him. I mean it, and he deserves it from every one of his colleagues. Those people asked for a certain type of constitution. They got one. Was it what they asked for or was it something else? I am not in a position to say. All I know is what I find on the statute books. Nevertheless, there is a tremendous disparity between what they claim to be, what they boast of being, and what they really are. It is for this reason that I am ready to support my leader to the limit in his suggestion that we find a means of amending our own constitution without asking the imperial parliament to do it. I will do so with a still greater measure of satisfaction if it is the intention of the government to consult the provinces of Canada before passing any amendment to our constitution. I shall go so far as to ask the Prime Minister whether it is the intention of the government to consult the provinces before making any changes in the constitution. If the Prime Minister will answer that question in due course, it will relieve the minds of most of the members.

I remember that last year, when the question of union with Newfoundland was before the house, the leader of the opposition was satisfied with consultation with the provinces. He did not insist on having consent. On that question I went even farther than he did. This discussion is friendly. No harsh words have been said. The members are interested in a satisfactory settlement of a question which has been the subject of many discussions in the past. There have been some so-called changes in the constitution, but they amount to very little. The Canadian people, in common with the Australians, New Zealanders and South Africans, have boasted of what they did not have. In past years we did not have autonomy because there was an inferiority complex with regard to everything that was not Canadian. We suffered from it.

Today, we are in a new era; an era of sincerity and truth. How many times have we been told that some progress was made constitutionally by the enactment of the Statute of Westminster which repealed the Colonial Laws Validity Act. It was a step, but the disallowance provisions remained on the statute books and could be used. When? No one knows when. There was a possibility that any future government of the United Kingdom could take advantage of those provisions and disallow enactments passed by this parliament. As I mentioned the other day, when His Majesty came to Canada on the eve of the last war and gave the royal assent to some bills under the roof

of our Canadian Senate, all those bills could have been disallowed within two years by virtue of the provisions that have been left in our constitution. Is it not absurd? The British government would have had the right to disallow enactments sanctioned by our sovereign. It cannot work.

This afternoon mention was made of the fact that in 1871 the provinces were not consulted. This might have been due to the fact that, at that time, there was a dual representation and those who were sitting in Ottawa also sat in the provincial legislatures. It is a very good thing that the dual representation was abolished. I understand, sir, this government wants parliament to have the right to amend our constitution without changing anything in it for the time being. Then, a meeting of the representatives of the ten provinces of Canada would be held to discuss the whole matter. Who could have any objection to that? Amendment to the constitution, subject to consultation with the provinces, is something that has been done only twice since confederation, and once not all the provinces were consulted, as was stated this afternoon.

The government does not want to infringe on the rights of the provinces. It merely wants to establish the sovereignty of Canada. The leader of the opposition agrees with that position, as does the leader of the C.C.F. group; and I am sure my hon. friend the leader of the Social Credit party shares that view concerning the sovereignty of Canada. At any rate, from what he said this afternoon, I understood that to be so. We are all agreed on that point. Now, let us accomplish it in the best manner possible. Some constructive suggestions have been put forward by the members who have spoken. Some other members have expressed opinions without offering suggestions. Do you not think, sir, that the simplest way of amending our constitution is to make it our own and to abolish the disallowance provisions? Owing to the fact that the Colonial Laws Validity Act is a thing of the past, only the disallowance provisions remain. The various countries of the commonwealth have made progress, and I presume that the imperial parliament would not now dare to apply the disallowance provisions to a constitution made by Canada or by any other country of the commonwealth. It is an exceedingly delicate matter. We do not know about the future. We are here now to decide this most important matter and to discuss it, leaving aside all petty political considerations. We are here to do a good job in the interests of the Canadian people who elect us and who also elect the members of the legislatures. We must be fair to the Canadian people.

British North America Act

I believe in the separation of powers. I believe in the respective exclusive jurisdictions of Ottawa and of the provinces; but I believe that if we are to do something worthwhile as to the sovereignty of Canada, this is the time to do it. Before we go further by making amendments to the British North America Act the provinces should be consulted. I am sure that the representatives of the provinces will offer constructive suggestions so that the whole thing may be done in complete harmony without affecting the rights and privileges of minorities and of provinces.

I congratulate the government on taking up with the imperial parliament a matter of such great importance. I wish the Prime Minister (Mr. St. Laurent) good luck in his dealings with the imperial parliament and with the provinces. I am sure that the provinces will co-operate in adjusting matters so that the constitution will not be amended in the future as often as it has been amended in the past.

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

John Sylvester Aloysius Sinnott

Liberal

Mr. J. S. Sinnoll (Springfield):

Coming as I do, Mr. Speaker, from a western riding and believing as I do in my leader, I think I would be remiss in my duty if I did not say a few words tonight. Coming from possibly one of the most cosmopolitan ridings in Canada, I think I can say that my constituents view with great interest this resolution which is before the house. While we have today heard some hon. members of the opposition express their views on this matter, nevertheless they are not the views of my leader or those of the Liberal government. In view of the fact that my leader, before coming to this house, was regarded as one of the best constitutional lawyers in Canada, I do not think we on the Liberal side have anything to fear with regard to this resolution. We have had a long speech from the leader of the opposition (Mr. Drew); we have also had quite a lesson from the hon. member for Eglinton (Mr. Fleming) and also from the hon. member for St. John's East (Mr. Higgins). But nevertheless, this is a repetition of "kitty bar the door" tactics, as you might say, used in connection with the bill that was brought in to bring Newfoundland into confederation last session.

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

Arthur Leroy Smith

Progressive Conservative

Mr. Smith (Calgary West):

Where do you belong in the club?

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

John Sylvester Aloysius Sinnott

Liberal

Mr. Sinnott:

If you will follow Time magazine, you can go back and get a college education. If this measure were to be considered in the same way as was the bill to bring in Newfoundland, it would be a long time before we could put this amendment through and call Canada a sovereign nation. I am sorry to say that many Conservatives

British North America Act were born to look backwards; but Liberals were born to look forward. With these few words, I want to express to my leader the appreciation and gratitude of my constituents for this forward-looking legislation.

Mr. J. W. Nose worthy (York South): As

one who has given some years to the study of Canadian history, and as a teacher of Canadian history, I have been intensely interested in the discussions that have taken place here this afternoon and evening. I want to make it clear that I am not speaking as a lawyer but rather as one who has followed Canadian history and our constitution. We all seem to be agreed, Mr. Speaker, upon the need for a revision of our constitution. Every group in this house appears to be agreed on the theory that the constitution should be revised within Canada by the Canadian parliament and without appeal to any outside power. Our difference of opinion arises in the matter of how that revision should be done. As I understand the resolution which is before us, it proposes that, in those fields over which the federal parliament has jurisdiction by virtue of the British North America Act, this parliament should take unto itself the right to amend the constitution without any consultation with the provinces. Those who oppose the resolution appear to oppose it on two grounds, the first of which is that it is a piecemeal job. They appear to object to the constitution being amended by what they call a piecemeal procedure. In the second place, they say that it should not be done without first having consultation with the provinces. The point I should like to call to the attention of the house is one which has already been emphasized by the Prime Minister (Mr. St. Laurent) and by others, and it is this. While many quotations can be given from the speeches of our political leaders, quotations which appear to support the theory that no amendment should be made to our constitution without reference to the provinces, throughout the years the actual practice of those same political leaders has been to amend the constitution, where federal matters only were concerned, without that consultation.

The Prime Minister gave us a resume of the various amendments which have been made to the constitution. I should like to quote from this booklet sent out by the King's Printer in 1949, British North America Acts and Selected Statutes. In this we find the comments of Dr. O. D. Skelton, the then under-secretary of state for external affairs, to the special committee of the House of Commons on the British North America Act

in 1935. He comments on each amendment made to the British North America Act from 1871 to 1935.

Concerning the amendment of 1871, an act the object of which was to settle doubt as to the competence of the Canadian parliament to establish new provinces out of the western territories, and to give them constitutions and representation in the federal parliament, he says:

The procedure was that the act was passed by the United Kingdom parliament at the request merely of the Canadian government. There was no consent of or consultation with the provinces in 1871.

Then he states concerning the amendment of 1875, the object of which was to settle doubts as to the power of parliament under section 18 of the British North America Act:

The procedure again was that this act was passed by the United Kingdom parliament, merely at the request of the Canadian government. ... a resolution demanding parliamentary rather than executive action was introduced but withdrawn.

Concerning the amendment of 1886, the object of which was to empower parliament to provide for representation of territories in the Senate and House of Commons, he said:

The provinces were not consulted, and did not ask to be consulted, though if the British North America Act was a treaty, modification in the representation in parliament, changing the balance of sectional power, might have been contended to require the consent of the existing provinces.

Then in 1907, after twenty years, there came the fourth amendment. This one is of particular importance, its object being to provide an increase in and a definite settlement of federal subsidies to the provinces. On this amendment there was consultation. He states:

The procedure in this case was that the act was passed by the United Kingdom parliament in accordance with an address from the Senate and House of Commons based on a series of resolutions passed by a provincial conference in 1887.

Concerning an amendment of 1915, to increase the number of senators and alter the main senatorial divisions, the provinces were not consulted, and only one-Prince Edward Island-made representations before the House of Commons committee. Its representations were not accepted.

In respect of the amendment of 1916, the object of which was to lengthen the term of the existing parliament for one year, he states:

The procedure was on an address by both houses. The provinces were not consulted and, as far as I can recall, they were not referred to in the debate.

Concerning the amendment of 1930, which was to ratify an agreement by Canada with the four western provinces, there was consultation.

[Mr. Sinnott.l

Respecting the amendment of 1940, to include unemployment insurance among the classes of subjects enumerated in section 91, again there was consultation.

In respect of the amendment of 1943, to provide for readjustment of the representation of the provinces in the House of Commons of Canada, again there was no consultation.

Concerning the amendment of 1946 there was no consultation, although an amendment was made in the House of Commons and negatived by a vote of 108 to 42, the main motion being carried by a vote of 107 to 22.

My point is that notwithstanding all that has been said through the years by political leaders in this parliament, in actual practice from 1871 to 1946 it has been the custom of this parliament to make representations to the United Kingdom for amendments to the British North America Act in those matters concerning the federal parliament alone. Only in those instances where quite obviously the interests of the provinces were clearly implicated, as in 1907, 1930 and 1940, were the provinces consulted.

The question in my mind is why at this stage, after having followed that practice from 1871 to 1946, and after having acknowledged the right of the federal parliament to amend the British North America Act in matters affecting the federal parliament alone, we should accept the principle that the provinces must be consulted before parliament can amend the British North America Act in this respect.

I am sure hon. members will recall that in the past occasions have arisen concerning which amendments to the constitution were necessary, and under circumstances that would have rendered it exceedingly difficult to have secured either consultation with or the consent of the provinces. It is not unreasonable to suppose that in our future history many such occasions will arise again.

I would hesitate to accept as a precedent at this time a procedure which would tie us to the practice of having to consult the provinces before even in an emergency any amendment could be made to the British North America Act on matters coming clearly within the jurisdiction of the federal parliament. Hon. members who have spoken seem to imply that those who are elected to the provincial legislatures have a greater source of wisdom or are much more interested in their provinces than are those elected to the federal parliament. It would seem to me that hon. members elected to this parliament are as interested in the welfare of their own provinces as are members elected to the provincial legislatures.

17, 1949

British North America Act

I doubt if members elected to this house would take steps that would deprive the provinces from which they come of any rights any more than would a member elected to a provincial legislature.

It has been argued that this is a piecemeal job but I suggest that every amendment that has been made to the British North America Act since 1867 has been a piecemeal job. I fail to see how we could possibly amend the British North America Act for all time. Any action that we took, any procedure that we followed, or any amendment that this parliament might make to the British North America Act would of necessity be in the nature of a piecemeal job. In the light of this reasoning I shall support the main motion.

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

William Joseph Browne

Progressive Conservative

Mr. W. J. Browne (St. John's West):

Mr. Speaker, when one looks around the chamber and sees the large attendance of Liberal members-

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