April 14, 1903 (9th Parliament, 3rd Session)


Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Minister of Justice were more convincing to me than it is-and I am bound to say that I appreciate its weight-nevertheless we have on the other hand the opinion of the law officers of the province of New Brunswick, and all who are acquainted with the Attorney General of New Brunswick (Hon. Wm. Pugsley), and all who have met him at the bar, realize and recognize his eminence in the legal profession. Therefore, so long as there is a question with regard to it, I think it would be right that it should be submitted to the Supreme Court. It ought to be submitted not only to the Supreme Court, but it seems to me necessary or at least desirable that provision should also be made for having the opinion of the Privy Council upon the question. I say that for this reason : Suppose the
parliament of Canada should pass this Act in its present form, and a question should afterwards be raised-and it may be raised before the courts-as to whether this parliament had jurisdiction, and the case so raised should go not only to the Supreme Court of Canada, but to the Privy Council, a very awkward condition of affairs may come to pass. It seems to me that it would be impossible to separate in such an Act as this, that portion which upon the assumption that I have made, would be good, and that portion which would be bad. May I make my meaning a little plainer

I am trying to address myself more particularly to my hon. friend the Minister of Justice. Here is a statute which undoubtedly contains provisions which this parliament may pass-there can be no doubt that we can deal with the revision of constituencies throughout Canada. While that revision or redistribution of constituencies throughout Canada is part of the statute, it contains, let us say, a provision which is absolutely ultra vires of this parliament; namely, the reduction of the representation of Ontario to eighty-six and the reduction of the representation of the other provinces by one or two members. In construing a statute of that kind it may be held by the court eventually : That not only that portion
which deals with the representation of the province of Ontario is bad, but the whole is bad, because the two things are so much dependent on each other and so absolutely joined together in the Act, that you cannot separate in it that portion which is good from that portion which is bad. Therefore, it seems to me that we should have an adjudication upon this question and we should not only have the adjudication of the Supreme Court of Canada upon It, but we should also have the adjudication of the Privy Council by way of appeal as well.
I do not desire, Mr. Speaker, to detain the House further. There is, however, one matter which I forgot to mention and which I know has impressed itself upon the mind of my hon. friend the Minister of Justice : That is the fact which seems to have been taken for granted in 1892 : That British Col-39
umbia came into the union under such conditions that her representation although it may be increased cannot be decreased. It would seem to me that this is quite as incongruous as to the point to which the Minister of Justice has referred ; namely, that under the contention which he controverts certain provinces in Canada are to have their representation increased or diminished according to the population of four provinces and not the population of the whole of Canada, while so far as the rest of Canada is concerned the representation of the different provinces is dependent, not upon the population of the four provinces, but upon the population of all the provinces of Canada. Therefore, Mr. Speaker, I think it would be a wise course for the government to have that question, which has been raised by the province of New Brunswick, submitted to the courts; and not only to have it submitted to the Supreme Court but to have the question determined by the highest court of appeal to which any judicial matter can be carried in this country.

Full View