March 22, 1905 (10th Parliament, 1st Session)

Sir WILFRID LAURIER.

I am glad that this debate is starting in such an auspicious manner and that both sides are apparently in very good humor and in a very good frame of mind for the discussion. When some time ago I presented this Bill to the House, I stated that there were certain questions connected with it which were of paramount importance and which in fact were the essence of the whole measure. The first was the number of provinces to be created ; the second was the ownership of the land ; the third was the financial terms to be granted ; and the last was the education system. My hon. friend the leader of the opposition (Mr. Borden) rose immediately after me, but confined his remarks for the moment to two of those questions only- the ownership of the lands and the school question. With regard to the ownership of .the land, my hon. friend re-asserted the position he had often maintained on the floor of this House as elsewhere, namely, that the land should go to the provinces to be owned and managed by them. On the school question my hon. friend was reserved. He did not announce any policy, but very wisely said that, in his judgment, the subject was one which ought to be approached with calm and moderation. The press which follows and supports my hon. friend took, notwithstanding this advice of his, a very different attitude. On the land question it said very little, if it said anything at all, but upon the school question it offered a very violent opposition. Perhaps I may not be out of Sir WILFRID LAURIER.
the way in saying that the press which supports my hon. friend has spared no effort to inflame the public mind upon an ever delicate subject.
In the course of the years I have been in this House, many have been the occasions in which parliament has had to face and to solve questions, simple enough in themselves, but complicated and rendered difficult by sudden outbursts of passion. And here again I may repeat what I had the opportunity of saying some few days ago, that in using this word * passion.' I do not want to convey any offensive sense. I recognize, we all recognize, that passions are very often the outgrowth of noble sentiment ; but let this sentiment be ever so meritorious, if it goes beyond a certain line, it may become blind, unthinking, unreasoning passion. In 1875 on the New Brunswick school question, in 1889 on the Jesuit Estates questions, in 1896 on the Manitoba school question, several parts of the country-now one part, now another- were roused to a high pitch of excitement.
Since my conduct on the present occasion has been assailed, perhaps I may be pardoned if I refer for one moment to myself, and say that upon every one of these questions, I have endeavoured, so far as I know-and successfully I think-to act on the very principle of the constitution under which we live. In 1875, being then a young man, I supported the government of Mr. Mackenzie which refused to interfere with certain legislation passed by the legislature of the provinces of Quebec of which the Roman Catholic minority complained. That minority complained that this legislation was an invasion of their rights and forced an intolerable burden upon them. But, as it was established that at the time of confederation New Brunswick had no system of separate schools, it followed as a consequence that this parliament had no jurisdiction in the matter, and the government of Mr. Mackenzie, very properly, I think, refused to interfere and disallow that Act it was asked to disallow. In 1889, having become leader of the party to which I belong, I supported the government of Sir John Macdonald when they refused to accede to the request of a section of our fellow countrymen to disallow the Act of the legislature of the province of Quebec to settle what was known as the Jesuit Estates question. In 1896, I opposed the government of Sir Mackenzie Bowell when they endeavoured to force upon the province of Manitoba a# system of schools which, according to high judicial authority, the province of Manitoba had a right to reject and which it had rejected by action within the scope of its legitimate authority. And in this year, 1905, when two provinces are to be brought into the Dominion, in which provinces there is a system of separate schools such as we have in the province of Quebec and Ontario, I stand again, as I believe, upon ' the rock of the constitution of Canada when

I say that this parliament should, according to that constitution, give to the minority in the new provinces the same rights and privileges that are given to the minorities in the new provinces of Quebec and Ontario. Sir, what seems to me this very proper legislation is opposed throughout the length and breadth of our country-no, I will not say that,-but in certain portions of our country-and in the name, I might almost say the sacred name, of provincial rights. But it is remarkable that the men who at this day, are insisting the most upon what they call provincial rights have taken no heed of the fact that, in the very letter of the constitution on which they rely there is an abbreviation of provincial rights wherever there exists in any province a system of separate schools. Provincial rights are the basis of our constitution. All parties now admit these rights and recognize them, whatever may have been their position in the past. But, Sir, it is an old saying that there is no rule without its exception; and, in the very letter of the constitution, an exception has been made concerning provincial rights wherever there is a system of separate schools in any province. Now here is the law upon this point. The words which I use now may grate upon the feelings of some, may7 seem harsh to the ears of others, may seem harsh to my own ears, but, Sir, here is the law. Section 93 of the constitution says : .
In and for each province the legislature may exclusively make laws in relation to education-
If the law stopped there, if there were no other words to qualify this general provision, such legislation as is now before the House would never have been introduced. But the latv does not stop there ; there are words w'hich qualify the general proposition :

subject and according to the following provisions :-
1. Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.
Here you have the fact proclaimed, the principle laid down, that wherever there is, in any' province, a system of separate schools, the provincial rights are abbreviated and the legislature can do nothing to prejudicially affect the rights of the minority who have the benefit of tills clause. But, though these facts are plain, still, at the present moment, they seem to be ignored; and, even on the floor of this House the attempt is sometimes made to cast upon myself, who have always held these views, the imputation that at one time or other, I held different views. The other day my hon. friend from East Hastings (Mr. Northrup) quoted some words of
mine in this House spoken on this same subject, in which I gave due praise to the Liberal party, especially of the province of Ontario, for the stand they made in favour of provincial rights. These are the words of mine that he quoted :
Sir, I am to-day as firm a believer as I ever was in the doctrine of provincial rights. I take as much pride as ever I did in belonging to the great party which in the past carried that doctrine to a successful issue, an issue, indeed, so successful that we rank among the advocates of that doctrine to-day the most prominent of the men who opposed it in the past. And when the historian of the future shall refer to the first twenty years of confederation, the brightest page he will have to record will he the page in which he will trace the efforts of the Liberal party to maintain inviolate and intact the liberties and independence of the local legislatures. And I am proud to say that among the names which shall de revered in the hearts of their countrymen, as the names of those who stood foremost in the fight, will be the names of Edward Blake and Oliver Mowat.
My hon. friend stopped there. Had he read a little further, he would have found that I qualified the statement I made by saying that, in the matter of education, provincial rights were not supreme, but they are abbreviated by the very letter of the constitution. I continued as follows :
I agree with the Prime Minister In this view, that it would have been wiser for the fathers of confederation to have adopted the American principle of local independence. But such, after all, is not the principle which has been adopted. On the contrary, the principle of our constitution is this : that while in all
other matters the powers of the local legislature are almost independent, in the matter of education, a supervisory power has been given to this government, in so far as separate schools are concerned.
So that, in 1893 I held the views I now hold, and I am acting exactly in accordance with the opinions I proclaimed twelve years ago and which so far as I remember, I have always held. This being well established, this being I believe, impossible of denial- that the rights of a province are abbreviated whenever there is a system of separate schools-yet we are told that this cannot be adopted because the provinces referred to in this legislation are not now provinces, but are simply territories. If I understand that argument correctly it means that if the provinces of Alberta and Saskatchewan already existed and were to come to-day and ask to enter confederation, they would come with their system of schools, and that system would apply mechanically and parliament would be forced to give it to them; but as they come as territories, they are not to have the same privileges as they would have had, coming as provinces. Now, in the name of common sense, what does it matter, so far as law and order is concerned, whether these territories are now territories or are now provinces? If under the

law we gave them in 1875 they established a system of schools, is not that system of schools as dear to them as if they had been erected into provinces ? If they have acquired rights thereby, are not those rights as sacred as if they had been erected into provinces ?
Now Sir, it seems to me that this argument cannot bear examination. But if we are to take some of the newspaper articles and some of the speeches I have read, what is the supreme reason and argument that is advanced why this principle of the constitution should not apply to the Territories? It is because parliament is omnipotent, it is because parliament is not bound to respect the acts of a former parliament, it is because the parliament that was elected in November, 1904, is not to be bound by the parliament which sat in this House in 1S75. Well, Sir, if that view is to be taken, if we are to say that parliament is supreme, I have nothing more to say. Parliament is supreme indeed, parliament is supreme, and may even go to the length of disobeying the moral laws which bind all governments and all men. It is open to any man to break his word, it is open to any man to violate his engagement, it is open to any man to trample under foot his plighted troth. Now if it is open to any man to do that, it is also open to an assembly of men; and if it be the view that parliament is not .bound by the acts of any preceding parliament, that parliament may violate its plighted troth, then we have a double opportunity on this occasion to signalize ourselves, because not only can we remove from the minority the system of separate schools which they have had for many years, but we can correct another invasion of provincial rights which is far more reaching than the violation of provincial rights in the matter of education. If it be true that in 1875, parliament introduced separate schools into the Northwest Territories and gave to the minority the privilege of those schools, it is equally true that in the, year 1881 this parliament for ever abbreviated the powers of those new provinces in the matter of taxation ; it is equally true that in 1891 this parliament decreed by an Act passed here, passed against the protest of the minority in that parliament, decreeing for all time to come, not for one year only, or ten years, or one generation, but for all time to come, that the Canadian Pacific Railway and all stations, station grounds, workshops, buildings, yards and other, property, rolling stock and appurtenances required and used for the construction and working thereof, and the capital stock of the company, should for ever be free from the power of taxation by those provinces. It was decreed also that no municipal body created by the provinces could levy taxation upon the Canadian Pacific Railway, its stock, its buildings, its workshops and its Sir WILFRID LAURIER.
capital stock. Sir, is not that an invasion of provincial rights far more reaching in its consequences than the invasion of provincial rights which is complained of in the matter of education ? But does anybody in this House think of removing from the Canadian Pacific Railway the powers and immunities which have been granted to that company? Does anybody in this House think for a moment of giving to those new provinces the power to levy taxation upon the Canadian Pacific Railway? No. we respect our engagements. Then I ask if we respect our engagements in the one case, why should we not respect our engagements in the other case?
But Sir, that is not all. I find no better testimony in favour of the principle which is embodied in this Bill than the letter which was written to me some days ago by Mr. Haultain, Premier of the Northwest Territories ; I want no better testimony of the soundness of the position which we have taken than the ipsissima verba contained in Mr. Haultain's letter, and which I will read to the House.
The territory included within the boundaries of these proposed provinces was ' admitted into the union ' on July 15, 1870, and immediately upon the creation of these provinces the provisions of section 93 of the British North America Act, 1867, become, as a matter of indefeasible right, a part of their constitution.
That is to say, as a matter of 'indefeasible right ' the provision of section 93 of the British North America Act becomes part of the constitution of the Northwest Territories. Now, let me repeat, what is the disposition of section 93 of the British North America Act :
In and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provision :-
1. Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at' the union.
Therefore, if I understand the English language, it means this, according to Mr. Haultain's own admission, that in this matter of education the rights and privileges of the minority are secured against any prejudicial legislation which might be passed.' Now, Sir, there is this difference between Mr. Haultain and myself with regard to this point. Mr. Haultain argues that this section 93 applies automatically, that this House has nothing to do but simply to admit the province and immediately it becomes subject to section 93 ; whereas the position we take is while the provision is embodied in section 93 it has to he introduced legislatively by this parliament into the constitution of the Northwest Territories.

Upon this point I might go further. On a previous occasion I spoke at some length on this point, ancl I will not go over the same ground again. However, it may not be inopportune on this occasion to inquire what is the history of clause 93 in the British North America Act. how did it become a part of the British North America Act ? Sir, we live in an age of such intense excitement, we are moving with, such rapidity, our lives are so much engaged in business occupations, that history is very soon forgotten, and what is the event of to-day is forgotten history to-morrow. It may not therefore be inopportune to look into the causes which led to the introduction of this section of 93 into the British North America Act. _ It was introduced at the suggestion of Mr. Galt, in the interest of the Protestant minority of the province of Quebec, at a time when he was champion and representative of that minority in the old parliament of Canada. I have quoted on a former occasion, and I may be permitted to quote again, the language of the Quebec resolutions which formed the embryo of section 93 of the British North America Act. We find that section 43 'of the Quebec resolutions, concludes as follows :
Education, saving the rights and privileges which the Protestant or Catholic minorities in both Canadas may possess as to their denominational schools at the time when the union goes into operation.
That was section 43 which guaranteed separate schools both in Ontario and Quebec, but did not go further. Now, Sir, it is a matter of history that the Protestant minority in Quebec at that time was not altogether satisfied with their condition under the system of separate schools such as it was. They wanted the system extended and improved, and they wanted this to be done before confederation, so that under the new constitution the rights and privileges secured to the Protestant minority could not be interfered with by the new legislature of Quebec. Mr. Galt, who at that time as I said was the champion of the Protestant minority in the province of Quebec, and was also a member of the government of that day. spoke upon that subject at a meeting held in the town of Sherbrooke which he represented In parliament. In the month of October, 1864. just a few months after the Quebec resolutions had been adopted by the conference, Mr. Galt used the following language :
He would now endeavour to speak somewhat fully as to one of the most important questions, perhaps the most important that could be confined to the legislature, the question of education. This was a question in which, in Lower Canada, they must all feel the greatest interest, and in respect to which more misapprehension might be supposed to exist in the minds, at any rate of the Protestant population, than in regard to anything else connected with the whole scheme of confederation.
It must he clear that a measure would not be favourably entertained by the majority of Lower Canada which would place the education of their children and the provision for their schools, wholly in the hands of a majority of a different faith. It was clear that in confiding the general subject to the local legislatures it was absolutely necessary it should be accompanied with such restrictions as would prevent injustice in any respect from being done to the minority.
Now, this applied to Lower Canada, but it also applied, and with equal force, to Upper Canada and the other provinces ; for in Lower Canada there was a Protestant minority, and in the other provinces a Roman Catholic minority. The same privileges belong to the one of right here, as belonged to the other of right elsewhere. There could he no greater injustice to a population than to compel them to have their children educated in a manner contrary to their own religious belief.
It had been stipulated that the question was to be made subject to the rights and privileges which the minorities might have as to their separate and denominational schools. There had been grave difficulties surrounding the separate school question in Upper Canada, but they were all settled now, and with regard to the separate school system of Lower Canada, it was the determination of the government to bring down a measure for the amendment of the school laws before the confederation was allowed to go into force. He made this statement, because as the clause was worded in the printed resolution, it would appear that the school law, as it at present existed, was to be, continued.
Now, Mr. Speaker, Mr. Galt undertook that the school law would be amended in the following session. In the following session, that was the session of 1865, the resolutions of the Quebec conference were discussed in the legislature of Canada but no school Bill was introduced to amend the law of Lower Canada. Complaint was made to the House by Mr. Holton and others and a measure was promised the following year. In the following year, that was the year before .confederation, a school Bill was introduced giving to the Protestant minority much more power than they had then and giving to them the powers which they have now and which have been given them since by the legislature of the province of Quebec. Amongst the dispositions of that measure were the following :
The superior education will comprise the universities and the classical and industrial colleges or seminaries, and the provincial aid thereto, as well as that for academies, shall be annually divided between the Roman Catholic and Protestant institutions in proportion to the respective Roman Catholic and Protestant population according to the then last census.
Another section reads :
Whenever four of the Protestant members of the Council of Public Instruction for Lower Canada shall be of opinion that the management of the Protestant schools should be distinct and separate from that of the Catholic schools, they may make known that opinion under their respective signatures to the government through the Provincial Secretary.

But a strange thing happened in the legislature of Canada. It was at the time when we had a representation from Lower Canada and a representation from Upper Canada. A similar Bill was introduced immediately for the province of Upper Canada. This was strongly resisted and so strongly was it resisted that the two Bills were withdrawn. Thereupon Mr. Gait resigned his position as a member of the government of the day because he had not been able to improve the situation of the minority to which he belonged by legislation before the Act of confederation came into operation. Then what took place ? Of course, there was a great deal of commotion at that time and the Protestant' minority of Quebec felt disinclined to enter confederation unless their rights were secured as they thought they ought to be secured. Mr. Galt was appointed to go to England with Sir John Macdonald, Sir Geo. Cartier and others in order to frame the Act which was to be the Act of Confederation. At that time the ' Montreal Gazette ' was the principal as today it is the most important organ of the Conservative party. It spoke for Mr. Galt and on the 21th October, 1866, the ' Montreal Gazette ' contained the following article :
We have much pleasure in announcing that during the recent protracted sittings o{ the cabinet at Ottawa, the subject of the position of the Lower Canada education question was very fully considered. Thd ministry were, we understand, desirous that Mr. Galt should be appointed as a delegate to represent the interests of the British population, but that gentleman felt that he could not accept unless he was assured as to the views of the government on the points that so seriously concern his countrymen and co-religionistS, and which so deeply roused their feelings. We are informed that the ministry entirely satisfied Mr. Galt of their determination to give practical effect to the pledges given in parliament, and the gentleman has in consequence accepted the appointment of delegate for the express purpose of watching over these important interests, as well as of lending his aid to the consummation of the measure of confederation.
We feel that our Protestant friends may rest assured that the man who resigned the honours and emoluments of office on this question will not, as a delegate, be found wanting to his trust as their representative. And we hail with great satisfaction the approaching settlement of a question which might have been fraught with so much danger to the kindly and cordial relations which have of late so happily subsisted between the people of different races and creeds in Canada. .
Mr. Galt went to England as a delegate. We know as a matter of history that be contributed to the drafting of section 93 of the British North America Act, and those of us who have read Mr. Pope's book upon the debates preliminary to confederation know that as a matter of history the 3rd and 4tli subsections of section 93, the subsections which give the right of appeal, are Sir WILFRID LAURIER.
even in his own handwriting. Therefore it is to him that we have section 93 in its present form. As to that let me call the attention of the House to another extract from the ' Montreal Gazette ' of March 2nd, 1867. Either that day or the day before the ' Montreal Gazette ' had published the whole text of the Bill which afterwards bcame the Confederation Act and it accompanied this with the following comment:
Few questions have excited a more lively interest in this country than the education of children in public schools, or, perhaps, it would be more accurate to say, the appropriation of taxation for that purpose. We need not repeat the particulars of the agitation on the subject, which commenced with the promulgation of the resolutions of the conference of Quebec, and resulted in Mr. Galt resigning his seat in the cabinet. The short of the story is, all this led to an agreement on the part of the Canadian government to advise Her Majesty's ministers to insert in the Union Bill the provisions with which the public are, undoubtedly, already aware. That was the agreement to which we referred, in October last, as having been satisfactory to Mr. Galt, and on the strength of which he consented to become a delegate to London. The public may find in these provisions in the Bill the proof of the statement made by us, which some of our contemporaries, without any evidence, undertook to call in question.
Before the question of confederation was mooted, the constant cry on the part of a portion of Lower Canada Protestant minority, was: give us the same privileges as those enjoyed by the Upper Canada minority. Well, the Bill as it stands, in terms, provides that the minority in Lower Canada shall have precisely the same privileges as the minority in Upper Canada.
And further, that the minorities in all the provinces shall have the right of appeal to the general parliament.
The Bin, in this form, undoubtedly, in our opinion, will become the fundamental law of the country, forming a part of its political constitution ; and that, as such, it must be accepted. It affords essential guarantees as well in immediate practice as in ultimate resort.
Well Sir, Mr. Galt was too great a man not to stipulate for other minorities that which he was stipulating for the minority to which be belonged. Mr. Galt was not satisfied to have these guarantees under the constitution simply for the minority of Quebec, but he put them in the terms which I read a monment ago so that they could apply to any minority in any province under any condition under which a system of separate schools exist. It is in obedience to that order of the constitution that we have inserted the clause which I read a moment ago.
Now, Sir, a word as to the changes we have made in that clause. I stated the other day that we proposed to make a change and we have given notice of an amendment which we intend to move to clause 10. What is the reason of this change ? It is a fair question to ask and a question to be answered.

Sir, we have taken the ground on more than one occasion, we again take this ground and it is the ground upon which we stand in dealing with the present case, that wherever a system of separate schools exists that system comes into force and is constitutionally entitled to the guarantees which are embodied in section 93 of the British North America Act. Be that system much, be it little, whatever it is, it is entitled to those guarantees. That is the position we take, and when we introduced section 16, as it is in the Bill, we had no other intention than to give to the minority the rights and privileges to which they are entitled under the law which they have today.
But, Sir, it has been objected to us that the language used in section 16 was too broad, too vague, and that if it were adopted, it would create trouble and confusion instead of certainty as to the rights of the minority. By the first paragraph of section 16 as it stands in the Bill, the Act of 1875 is reproduced in toto. But Sir, an event occurred some 14 or 15 years ago which has to some extent limited that Act. Some 14 years ago the legislature of the Territories passed a law which in the opinion of the minority abridged the rights conferred on them by the Act of 1875. They complained to the federal government at Ottawa. They made representations to the government of that day and asked the disallowance of that law as an infringement upon their privileges as secured to them by the law of 1875. Sir John Thompson, who was then Minister of Justice, examined the question and refused to disallow the Act. He admitted rather, that the Act was an infringement on the privileges conveyed to the minority, but he stated that as this was a consequence, only following a similar Act, or rather continuing a similar Act passed some three or four years before, as to which no ' complaint had been made, and which was therefore in force, he would not advise disallowance and he allowed the Act to go into force. Under such circumstances the law of tlie Territories has been in force now for 13 or 14 years. Section 16 thus restricted is now the law of the country which has been in force for 13 or 14 years and which has given general satisfaction. Under such circumstances if we were to reenact section 93 of the Act, it was possible that we would create confusion and that there would be lawsuits to determine the exact condition of the law. We therefore thought it was preferable to have the law made absolutely certain and in order to do that we have incorporated the ordinances under which the law as it is to-day has been established. It may be disappointing to some, but we believe that on the whole it is preferable to have a clear understanding on this subject so that the minority shall have the privilege of exercising control over their schools as they have to-day, and so that the law shall! be absolutely clear and pronounced as to what is intended by the parliament of Canada if it passes this legislation. That is the reason why we have done this. The law' of the Territories on this question is established in three ordinances, chapter 29 of 1901, chapter 30 of 1901, and chapter 31 of 1901. Chapter 29 organized a system of schools and this organization retained to the minority the privileges which they have of separate schools. Chapter 30 regulates the power of assessments over the municipalities for contributions to education and chapter 31 regulates the aid and contributions to be made to the different schools conforming to the law. We have introduced into the amendment chapter 29 and chapter 30 ; we have not introduced chapter 31 which regulates the aid and grants to be given to schools because we have thought it preferable simply to lay down the principle, putting no burden upon the Territories, not saying how they are to dispose of their money, not telling them what they shall do but simply stating that when schools conform to the law, whether they are separate schools or public schools, all shall be treated equally and there shall be no discrimination between them. That is the reason of the legislation I have introduced.
Upon this occasion I have nothing more to say but in moving this Bill, as I now do, for the second reading, I want to impress on the House once more that we are acting strictly in accordance with the principles involved in the constitution of Canada. I want to impress once more the fact that the constitution of Canada has been and is a compromise between different elements in order to produce a great result. It is a compromise in order to unite different heterogeneous elements. There are differences of powers, there are exceptions,, but all this diversity is intended to promote unity. [DOT]
Let me say one last w7ord. We have done pretty well so far in the development of our national institutions, but we have not yet reached the maximum ; we have not yet reached the end. We may have a great deal still to do and I hold that we ought always to be ready for the task, and I am sure that it will not be too much to say that it will not injure any one, that it will not do any harm but on the contrary will do much good if, whenever we are called upon to apply the principles of the constitution, we apply them, not in any carping sense, but in a broad and generous spirit.