June 12, 1952

LIB

James Joseph McCann (Minister of National Revenue)

Liberal

Hon. J. J. McCann (Minister of National Revenue):

Mr. Speaker, I have not had notice of the question, and shall give an answer at a later date.

Topic:   INCOME TAX
Subtopic:   PROFESSIONAL ENGINEERS
Sub-subtopic:   DEDUCTIONS FOR ASSOCIATION FEES
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BRITISH NORTH AMERICA ACT

AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS

LIB

Walter Edward Harris (Minister of Citizenship and Immigration)

Liberal

Hon. W. E. Harris (Minister of Citizenship and Immigration) moved

the second reading of Bill No. 331, to amend the British North

British North America Act America Acts, 1867 to 1951, with respect to the readjustment of representation in the House of Commons.

He said: Mr. Speaker, this is a bill to amend the British North America Act. I am sure that the house realizes that this is a historic moment for Canada and this parliament. The opportunity to amend the British North America Act and our constitution by an act of this parliament arose in 1949 by the presentation and passing of an address requesting the insertion in the British North America Act of a clause which would permit the amendment of the constitution by an act of this parliament. That action was the result of the skill, good judgment and leadership of the Prime Minister (Mr. St. Laurent) of this country.

As all members of the house who took part in the debate at that time pointed out, there seemed to be almost unanimous agreement in the country that we should have the privilege of amending our constitution in Canada, but up to that time no one had succeeded in bringing it about or, for that matter, had seemed to take any positive steps to bring it about. The action of 1949 resulted in the first positive step vesting in this parliament authority to amend the constitution in so far as the privileges of the federal government went; and in so far as they went there were certain exceptions set out.

All other commonwealth countries have the right, and have been exercising that right for many years, to amend their constitutions. For many years New Zealand has had that privilege and right; South Africa has had it since the union act of 1909, and Australia since 1900. As has been pointed out on many occasions, we have lagged behind other commonwealth countries solely because we were the first to have a written constitution given to us and it was given to us at a time when the thought of amendment by other means than an act of the United Kingdom parliament apparently had not arisen. We as the senior country acted as a pilot for the others. As the other commonwealth countries obtained their several constitutions it was found necessary and desirable to insert clauses giving the right to amend although, as I have said, we did not have that right. The amendment of the constitution of Canada in 1949 was suggested in these words, and I am quoting now from the address which went through the house at that time as follows:

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 or as regards the requirements that there shall be a session of the parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the writs for choosing the house; provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such house.

In the amendment which I have just read there is a striking resemblance to a section which has been in the British North America Act since it was passed relating to provincial legislatures. Subsection 1 of section 92 reads:

The amendment from time to time, notwithstanding anything in this act, of the constitution of the province, except as regards the office of lieutenant governor.

As hon. members know, that is the section setting out the subjects over which the provincial legislatures have jurisdiction. Under that right there have been many amendments to provincial constitutions. All the provinces with the exception of Quebec have abolished their legislative councils, a very serious step when you consider the constitution as it was originally set up. But in no case was it necessary for a province to come to this parliament for action or to go to the parliament of the United Kingdom. That power was vested in the legislature which exercised it accordingly.

The amendment of 1949, as I have read it, contains a number of exceptions. It says that this parliament shall have no power to pass an amendment to the constitution with regard to matters coming within the classes of subjects assigned by the British North America Act exclusively to the legislatures of the provinces; as regards the rights and privileges conferred by the British North America Act or by any other constitutional act on the legislature or on the government of the province, and with regard to certain other matters.

The situation at the moment is that this parliament can amend the constitution of Canada in matters of a purely national character and the provincial legislatures can amend their constitutions in matters of purely provincial character.

The representation in the House of Commons of the several provinces has been the subject of more amendments to the British North America Act in the past than is the case with any other subject. I think there have been seven amendments since 1867. In

1871 there was an amendment passed by the United Kingdom parliament which gave the parliament of Canada the authority to create provinces and to provide for their representation in the House of Commons. I think that particular amendment validated an act with respect to Manitoba. In 1886 there was a further amendment giving this parliament authority to create representation in parliament for the territories even when they had not been created provinces. I think that act confirmed representation which had already been granted to some of the territories. In 1915 there was an amendment increasing the number of senators and providing that no province should have its membership in this house reduced below the number of senators to which it was entitled.

In 1943 there was another amendment to postpone the redistribution which should have followed upon the census of 1941 until the first session after the cessation of hostilities. Then in 1946 there was another amendment setting up new rules to be followed in computing the membership in this house. Finally in 1949 there was an amendment, as part of the terms of union with Newfoundland, whereby certain representation from that province was established. In addition, there were two imperial orders in council which created representation from the provinces of British Columbia and Prince Edward Island. Just to make the record clear, there was one other amendment with respect to parliament in 1916 providing for the extension of parliament. In these six or seven cases in which there were amendments the amendments were sought by joint addresses of parliament except in the first case in 1871 which was sought by the government of the day headed by Sir John A. Macdonald by action of the executive without any action by parliament.

When the question of representation arose consequent upon the census taken in 1951, it appeared to be the rather general opinion of the house that some consideration should be given to the effects of applying the rules which had been established in 1946, and several members of the house during the debate on the address in reply to the speech from the throne urged the government to consider whether those rules might be amended having particular regard to the fact that one of our provinces would lose one-quarter of its representation in the house. I need not cite the comments of members. Members from all groups presented that as an argument to the government and they also suggested that, however desirable the rule of representation by population may be and however desirable it may be that we should strive to achieve that ideal, it must be recognized in this country of vast distances 55704-1994

British North Avierica Act that other considerations than a strict counting of heads will have to enter into the representation in this house. The result was that the Prime Minister (Mr. St. Laurent) introduced a motion to set up a special committee to consider whether some additional rule might be used in order to avoid the drastic consequences which would occur if we applied the existing rules strictly. I have not seen many debates in which there appeared to be such agreement as there was on the motion to set up that committee.

The committee reported to the house earlier this week and suggested two things: first, that the proposal in the motion itself setting up the committee should be adopted; and second, that a certain procedure should be followed to carry out that suggestion. Therefore we have before the house a bill for the purpose of amending the British North America Act in order to place within it a further rule which would apply at the present readjustment of representation and would apply to future ones as well.

In addition, the bill increases the membership of the House of Commons by one member so that representation can be given to the Mackenzie district separate and distinct from the Yukon. I might add that there seemed to be no disagreement in the house originally, nor was there any disagreement in the committee, that the extra member should be provided. The rule which has been suggested was explained in detail by the Prime Minister when he presented the motion. Very briefly I might sum it up in this form, that after using the existing rules to compute the membership of the House of Commons from the several provinces there shall be established a so-called floor whereby the representation of any province shall not fall by any more than 15 per cent at any one readjustment, subject, however, to the qualification that the rule shall not work out in such a manner that the representation of a province with a smaller population shall be greater than that of a province with a larger population.

This is not precisely unusual in representation in the House of Commons. There have been other occasions when other rules applied to establish floors of representation. As all members know, there was the so-called one-twentieth rule which existed up to 1946. At the time it was established, as was pointed out by Sir Wilfrid Laurier, it was intended apparently to provide a floor for the maritime provinces, and Sir Wilfrid, speaking in the house in 1915, had this to say:

It has been explained, and it is the true explanation, that at the time of the formation of confedera-, tion no one anticipated the extraordinary developments which were to take place west of lake

British North America Act

Superior and in consequence of which the representation of the maritime provinces in the House of Commons has decreased from decade to decade. We had to deal with the matter in 1902 . . .

The problem today is not the maritimes. The problem consists of the great difference in representation from the prairie provinces which would take place. This house will have to decide whether it is desirable to follow the strict rules or whether it is desirable to import the additional floor I have mentioned into section 51 of the British North America Act. I think it should be recognized by most members that in the various provinces we have a great disparity of representation. There are constituencies with a large population and constituencies with quite a small population, and apparently that condition will continue from census to census because of the peculiar situations and because of the desire to adhere to other rules which would give representation of the kind that the House of Commons feels should be given.

One of the generally accepted rules is that representation from rural areas should be greater than the strict counting of heads would indicate, although it is fair to say that there has been no agreement as to precisely how much greater it should be. It is for that reason and for others that a case has been made that in the province of Saskatchewan in particular at the moment, although it applies to the province of Manitoba, perhaps to the province of Alberta as well and to other provinces where there are no great centres of population, some consideration in representation should be given having in mind the general approach that we have with respect to rural and urban representation.

The committee apparently had this in mind and also had in mind the desire not to have violent fluctuations in membership from one census to the other. It presented a report to the house which was unanimous in so far as the adoption of the 15 per cent rule is concerned. For that reason I presented this bill to the house. I might remind hon. members that in introducing the motion to set up the committee the Prime Minister indicated that if the committee were of the opinion that such a course were desirable and advisable he would be disposed to support it, and I am authorized to say that he is going to vote for the bill. There are several ways in which we could carry out the change in the representation in the house. We could adopt the method which is suggested here, what is known as the direct method of repealing a section of the British North

America Act, and substituting something for it. We could adopt the method which has been used by provincial governments in amending their constitutions, that is merely passing another statute without reference to the British North America Act and without seeking to repeal any section of that act, but merely substituting something else. This occurred in the province of Ontario where, according to the British North America Act as originally constituted, there were so many members and certain constituencies set out in the act. Because the province had authority to amend its constitution, the provincial legislature passed an act of redistribution increasing the membership in the house and setting other limits on the constituencies. This was done without referring in any way to the British North America Act, either repealing it or reciting it as the authority for the act of the legislature.

We could have suggested to the house a representation bill setting out the representation of the provinces according to the rules, without any reference to the British North America Act. It seemed best to recommend that there be two bills, one to amend the British North America Act, substituting in section 51 the floor which had been decided upon, and then by a separate representation act carry out the rules which would then apply to representation in the house. That is the course recommended here.

The bill provides for the existing rules, in so far as they go, but it also provides the additional floor for any province which qualifies according to the definition in rule 5 of section 1. The immediate result, after the representation bill is passed and in accordance with these rules if adopted, will be that instead of fifteen members the province of Saskatchewan will have seventeen members. We hope that that will be the only result, and that as time goes on the western provinces will increase again and that they will have a greater proportion of the people of Canada, so that their representation here will be even greater. We must recognize the great contribution the west has made to parliament, and to Canadian national life. It would be unfortunate if the representation here were to fluctuate so that at one census it would change greatly, and have to be restored at the next. There ought to be better continuity than that. For that reason, sir, I move the second reading of this bill. I hope that it meets with as much approval as possible in the house, having in mind the fact that while it is a new principle it nevertheless bears a great deal of resemblance to the floors which have appeared in the past in the representation in the house.

British North America Act

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Donald M. Fleming (Eglinlon):

Mr. Speaker, a bill in relation to the representation in the House of Commons is an important bill on any occasion, but the present bill, I think it may be fairly said, surpasses in importance all bills hitherto submitted to the house in relation to the subject of redistribution. In his remarks this afternoon the minister has referred to this as an historic occasion. It may be so in certain respects, sir, but that is not to say that every departure from recognized constitutional procedure is a departure that ought to be welcomed.

May I say at the outset that so far as the purposes of the particular provisions in reference to redistribution are concerned, there were no differences among those who sat on the redistribution committee of this house. In other words, the proposal that the drop in the representation of the province of Saskatchewan should not be permitted to reduce it below seventeen members was supported by all parties in that committee. The proposal to give separate representation to the Northwest Territories by constituting them under a new electoral district named Mackenzie River was likewise supported by all parties. We of the official opposition went further and gave our support to an amendment which was not carried in the committee, but which would have held the reduced representation of Saskatchewan at eighteen instead of seventeen. Therefore, I clear the air at once, sir, by indicating that as to that portion of the present bill which relates to the direct changes in the representation in the house, there is no issue.

There is, sir, however, a very much larger question raised by the present bill than any mere or passing change in the rule respecting representation in the house. The house must be made well aware of the significance of the implications of the larger question involved in the motion now submitted to the house by the government. As the minister has said, this is the first occasion upon which the Canadian parliament has been invited, by direct action, to amend the constitution of Canada, the British North America Act. Hitherto, when amendments were sought, application was made to Westminster on an address passed by both houses.

The minister has referred to the change that was wrought in the British North America Act by the amendment to section 91 which was passed in the fall session of 1949, when a new class of subject matter described in a new clause 1 of section 91 was added to those subject matters which lie within the exclusive jurisdiction of parliament. I wish to review briefly what occurred in this house

in connection with that amendment. The minister has treated the 1949 amendment as disposing of the constitutional questions in relation to the propriety of parliament proceeding to legislate directly to change the provisions of section 51 of the British North America Act. So far as the official opposition is concerned, Mr. Speaker, I wish to make it abundantly clear that the matter does not end there. Simply because of this amendment in the fall session of 1949, which was subsequently confirmed by legislative action at Westminster, it is not to be considered, so far as we are concerned, that parliament has the right to proceed to exercise the jurisdiction purported to be conferred upon it by this amendment, without any necessary consultation with the provinces, for which we contended at that time.

Sir, our position was made abundantly clear in the historic debate in the fall session of 1949 on the proposal of the government that a change be sought in the British North America Act to confer jurisdiction upon parliament to amend the constitution in what were called federal matters. Indeed on that occasion, on October 17, 1949, the leader of the opposition (Mr. Drew) immediately moved the following amendment on behalf of the official opposition, as reported at page 841 of Hansard of that year:

That the said proposed resolution be amended by striking out all the words alter 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."

Sir, that amendment was designed to set out in the clearest terms the position taken by the official opposition. We concurred enthusiastically-indeed we had so declared on previous occasions-in the idea that Canada should possess within its own borders the means and the right of amending the constitution embodied in the British North America Act. We did say that parliament had no right to proceed in that direction without consultation with the provinces. We said further, sir, that any formula for carrying out within Canada in the future amendments of the British North America Act was a formula that first had to be submitted to the provinces. Indeed in a matter so important as that of devising a procedure, a method or a formula for amendments to the British North America Act, we said that it was not only important but essential that the provinces should be consulted and that the provinces

British North America Act should consent to that formula. That amendment, sir, was ruled out of order; but that did not end the matter because it fell to my lot subsequently to introduce, on behalf of the official opposition, on October 27 this amendment, to be found at page 1210 of Hansard:

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

"This house is of the opinion:

1. That an humble address should be presented to His Majesty the King praying that His Majesty may graciously be pleased to cause a measure to be laid before the parliament of the United Kingdom providing for an amendment to the British North America Act. 1867, relating to the amendment of the constitution of Canada by the parliament of Canada.

2. That as a condition precedent to the presentation of such address the scope and form of the amendment prayed for should be made the subject matter of a conference of the dominion and provincial governments and the subsequent approval of the parliament of Canada."

That amendment was in order and it was voted on. It was defeated in this house on October 27 by a vote of 137 to 38, all parties in the house, with the exception of the official opposition, voting against it.

So far as we of the official opposition are concerned, our position was clearly set out in those two amendments. That position was sound. It is: the position of the Progressive Conservative party and of the official opposition in reference to this question today, and it will continue to be the position until there is enough wisdom in government to call the kind of conference between the dominion and the provinces that we proposed and urged then, for the purpose of working out a comprehensive method1 of amending the constitution according to a formula that will be acceptable to all parties, namely the dominion and the provinces.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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?

Jean-Paul Stephen St-Laurent

Mr. Si. Laurent:

Will the hon. member permit a question?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Yes.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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?

Jean-Paul Stephen St-Laurent

Mr. Si. Laurent:

I know he is desirous of making the differences of opinion between the parties as clear as possible on this occasion. I noted that he said that there should be consultation with the provinces and consent of the provinces: to the formula to be adopted. Does that mean that the position of the official opposition is, when they speak of the requirement of consultation with the provinces, that it should be consultation that would result, before action, in the consent of every one of the provinces?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

As to the formula for amending within Canada the constitution of Canada, yes. In other words, sir, while the formula which would be adopted according to our

suggestion would not necessarily call for unanimous consent as a condition precedent to all amendments which might follow, nevertheless we said that the formula to be worked out was something which was so basic and so fundamental that it should be acceptable to all.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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LIB

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

Liberal

Mr. St. Laurent:

And that until there is such a formula, whenever there is to be an amendment to the constitution the consent of all the provinces should be previously obtained?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

That does not necessarily follow, Mr. Speaker. What we said was that we should proceed at once to call that kind of conference to work out that formula and that we were confident that, with good will on both sides, such a formula could be worked out. We are still confident that with determination to arrive at such a formula, it could be arrived at.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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LIB

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

Liberal

Mr. St. Laurent:

I do not want to press the hon. gentleman any further than he wants to go.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Quite right.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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LIB

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

Liberal

Mr. St. Laurent:

As yet there is not any formula that has been accepted by all the provinces; and each time an amendment is proposed there have been suggestions that there should be consultation with the provinces. When -that suggestion is made, does it mean, in the intent of the official opposition, that there should not be any amendment until the consent of all the provinces is obtained? I am just inquiring, if the hon. member is in a position to make the situation clear on that point.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Sir, I think the position can be made perfectly clear. We have said that amendment of the British North America Act should not be sought in the way that parliament previously had been seeking it, namely by simply passing an address and going to Westminster, without consultation with the provinces.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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LIB

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

Liberal

Mr. St. Laurent:

Does that mean without consultation resulting in the consent of the provinces to the amendment suggested in the address?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

I think that we would have to view the situation in the light of the particular circumstances. But we did consider it to be so important that there be a formula for amending the constitution within Canada, within Canadian borders, that there should be no time lost in seeking, with general consent, a formula satisfactory to all for the making of these amendments within Canada, and putting an end for the future, for all time to come, to this situation which arises every time an amendment is sought.

I think I have made the position perfectly clear. In every situation that arises, apart from the general formula under which the whole basis of providing amendments would be devised, it would have to be determined in the light of consultation with the provinces and in the light of all the circumstances obtaining whether it would be possible to proceed with an amendment failing the consent, we will say, of one or two provinces. It would depend on the subject matter.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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LIB

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

Liberal

Mr. St. Laurent:

But there might be cases where the consent of all the provinces would not be felt essential to proceeding with the request for an amendment?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

I am not prepared to be dogmatic about it. I am not prepared to be tied down to any particular formula. I have said that will depend. In every such situation, if it were not possible to arrive after consultation at complete agreement or unanimous agreement, it would have to be decided in the light of the situation whether there was any justification for proceeding. Because that situation apparently is not one that has arisen in the mind of the government, I underline what I said before as to the vital and urgent importance of seeking within Canada a method or formula for amending the British North America Act so that we are not encountering in the future these questions which the Prime Minister has raised now which may be, in many circumstances, simply academic, but which, as long as questions such as those raised by the Prime Minister may be raised emphasize and underline the necessity for grappling with this problem, and doing it on a comprehensive basis.

Now, sir, our position on that occasion, I have indicated, was made clear in the two amendments we proposed, of which the first was ruled out of order and the second defeated. And so it became possible, under the amendment sought and obtained by the majority in both houses of this parliament from Westminster, to proceed to amend, in the language of the new clause 1 of section 91 of the act, the constitution of Canada in federal matters, with certain express exceptions.

I point out, sir, that the dangers inherent in an amendment of that kind are clearly illustrated in the situation we have before us, and might conceivably be illustrated in circumstances even more direct than those before the house today. Parliament acts by a majority; each house of parliament acts by a majority. A majority of one in each house of parliament would be a sufficient expression of the will of parliament in a matter of this kind, and therefore under

British North America Act this amendment of 1949 it becomes possible, within what is called the scope of federal matters, with certain exceptions, for parliament, by a majority of one in each house, to proceed by direct legislative action to change the British North America Act.

Sir, we of the official opposition consider that to reduce the constitution to a statute which can be changed so lightly, in so light a way as that, ' creates a dangerous situation. We believe that the constitution of this country, embodied principally in the British North America Act, is so fundamental in its character and in its importance that it should not lie within the power of parliament, without any consultation with any province, to proceed to change this constitution in so-called "federal matters" simply by a majority of one in each house.

We see flowing from this enactment of the fall of 1949 certain results, inevitable results. The minister in his speech this afternoon referred to the fact that the committee on redistribution, when considering what course it should take with reference to the alteration proposed in the present section 51 of the British North America Act, had three courses open to it. Those three courses were outlined to the committee by the law clerk of the house in the following words which are found on page 29 of the proceedings of the committee of May 2. He said:

The B.N.A. (No. 2) Act, 1949, introduced an amendment to section 91 of the B.N.A. Act, 1867, which relates to the legislative authority of the parliament of Canada. By that amendment, it was made lawful for the parliament of Canada to amend the Canadian constitution with certain exceptions which are enumerated in the amendment. Sections 51, 51A and 52 do not fall within these exceptions and can, therefore, be amended by the federal parliament.

The next question is: How can this be done? In other words, what procedure should be followed to change the fundamental law? The answer is that legally it can be done either directly or indirectly. It can be done indirectly by simply bringing in a bill which would be contradictory to section 51 of the B.N.A. Act as it now stands.

On the other hand, it might be done directly by introducing a measure to amend the constitution. In this case, the act would be entitled: "An act

to amend the British North America Act, 1867," and its short title would be: "The British North

America Act, 1952.V

A third way of proceeding would be by an act along the lines of Mr. Knowles' bill of the current session respecting the quorum of the House of Commons.

Sir, the committee has not followed the first of these suggestions. It would, I think, have been unfortunate had it done so; but the effect of the matter is clearly indicated by that statement from the law clerk of this house, that the position of the constitution of Canada now is such that within the scope of what are called federal matters parliament does not even need to pass a bill formally to

3158 HOUSE OF

British North Avierica Act change or amend the British North America Act. All it does need to do is just to go ahead and legislate without making the slightest reference to the British North America Act.

I said the committee has not followed that method. Some of us in the committee argued very strongly against it because it would have the effect of reducing the fundamental law of this country simply to the status of any other act of parliament. But, sir, let it not be overlooked that that can legally be done; that the legal and constitutional position of this country today is such that within the scope of what are called federal matters, it lies now within the power of parliament simply to go ahead and legislate in a manner at variance with the effect of the British North America Act and without the slightest reference to that act, without even going through the form of amending expressly the terms of the British North America Act. And, sir, I say that legislation such as this legislation of 1949, which has reduced the British North America Act over this vast field of legislative jurisdiction simply to the status of any other act of this parliament, has created a situation fraught with the greatest constitutional danger for this country.

Now, sir, this subject relates to section 51 of the British North America Act. This is not the first time that parliament has been confronted with an amendment to the British North America Act, or with an attempt to obtain an amendment to the British North America Act for the purpose of altering section 51. Those hon. members who were members of the twentieth parliament will recall the leading debate which occurred in June, 1946, on a resolution then presented to the house by the government that an address be presented to His Majesty seeking the enactment by the parliament at Westminster of certain amendments to section 51, and the stands taken by the parties in the house on that occasion were, I take it, not different in any particular from the position they take today.

The government put forward the doctrine that it lay within the power of parliament to seek and obtain an amendment at Westminster, because there is no question about their obtaining whatever was sought by the address, for it had long ago been established that the parliament at Westminster would not question any address presented to it by the parliament of Canada. Therefore, so far as the effect of the adoption of an address in this house was concerned, in the light of that position it was as good as passed at Westminster once the address was passed by both houses of the Canadian parliament.

The government then proposed that that address be presented to Westminster without any consultation with the provinces. We of the official opposition said that there should be no such attempt to obtain an amendment which would have had the effect of recasting section 51, indeed completely changing section 51, of the British North America Act, without previous consultation with the provinces. We pressed our position to the point of amendment. In those amendments we placed on record the position of this party, and exposed also the position taken by other parties in this house. The government contended that parliament was at perfect liberty to proceed to obtain this amendment of section 51 without the slightest consultation in any degree or form with the provinces. We of the official opposition contended firmly that there was no right, legal or constitutional, in the government to proceed to obtain an amendment to section 51 of the British North America Act without previous consultation with the provinces. And in that important debate some statements of very great significance were made in this house.

Sir, so far as we of the official opposition are concerned, the amendment of 1949 has in no degree changed our position or changed the constitutional position as we set it forth in speeches made in the house on our behalf in 1946. Our position is consistent. Our position today is identical with what it was then. We still demand consultation with the provinces before there shall be any change in the provisions of section 51 of the British North America Act.

And, sir, we do say this, that if any particular proposal for changing the basis of representation in this house, as defined by section 51 of the British North America Act, has merit in the national interest, we need not have any doubt about the willingness of the provinces to give it intelligent and fair-minded consideration.

Why, on the merits, should there be this invincible unwillingness on the part of the government to consult the provinces? The government says that it is not necessary, that they can go ahead without consultation, even if it were-

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
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LIB

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

Liberal

Mr. St. Laurent:

If the hon. member would permit an interruption: In our view, if we consulted the provinces, that implies that we would not go ahead unless we got the consent of every one of them; and we are not prepared to take that risk.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   AMENDMENT TO READJUST REPRESENTATION IN THE HOUSE OF COMMONS
Permalink

June 12, 1952