Constitutional Conference of Federal and Provincial Governments, Wednesday, January 11th, 1950 (10-12 January 1950)
By: Secretariat of the Conference
Citation: Constitutional Conference of Federal and Provincial Governments, Wednesday, January 11th, 1950 (Ottawa: 10-12 January 1950).
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FEDERAL AND PROVINCIAL GOVERNMENTS
Wednesday, January 11th, 1950
EDMOND CLOUTIER, C.M.G., B.A., L.PH.,
KING’S PAINTER AND CONTROLLER OF STATIONERY
|Right Hon. L.S. St. Laurent||55|
|Hon. Leslie M. Frost||56|
|Hon. Maurice L. Duplessis||57|
|Hon. Angus L. Macdonald||57|
|Hon. John B. McNair||61|
|Hon. Douglas L. Campbell||62|
|Hon. Byron I. Johnson||63|
|Hon. J. Walter Jones||64|
|Hon. T.C. Douglas||64|
|Hon. E.C. Manning||66|
|Hon. J.R. Smallwood||68|
FEDERAL AND PROVINCIAL GOVERNMENTS
WEDNESDAY, January 11, 1950
The conference convened at 11.05 a.m., Right Hon. L. S. St. Laurent in the Chair.
Right Hon. L.S. ST. LAURENT (Prime Minister): Gentlemen we shall come to order.
Before the proceedings go farther I wish to say that it is my understanding and I venture to assume that it is the understanding of all of us, that we do not regard this conference as being a legislative body which will make binding decisions. Our purpose is to agree among ourselves on proposals which we can recommend to our governments and through them to the legislative bodies to which we are responsible. It is those legislative bodies that will have the final responsibility of decision.
As I stated in yesterday’s proceedings, we are all agreed upon one principle, namely that it would be desirable to reach agreement so that the next application to the parliament of the United Kingdom will be final. It will follow from that assumption that any agreement upon that specific proposal would be understood to be contingent upon achievement of general agreement. In other words there would be no desire to consider agreement on any one proposal as being something agreed upon for separate implementation,
I think, if we are agreed on that statement of the situation, it will be easier for us to dispose of concrete proposals separately, passing from one to another, it being undertsood that they will all form part of the general agreement and not be separate proposals for separate implementation.
Should we not then make progress if we begin to consider the specific proposals at this time? As I stated yesterday, and the words appear at page 14 of the mimeographed report, the federal government does not intend to submit specific proposals because it seems obvious that the federal parliament would have seine part in any appropriate amending procedure that might be agreed upon. I added the view that the representatives of each of the provinces should put forward their views as to the most appropriate, form of procedure. It is our hope that in so doing we may be able to reconcile the various proposals.
I understood from what Mr. Frost said yesterday, and he is reported at page 24 of the proceedings, that Ontario is prepared to consider any proposals advanced by any governments here. Mr. Frost went on to say: “We are prepared ourselves to advance proposals, not in a dogmatic. way but as a basis only for discussion and consideration.”
If it is convenient to Mr. Frost I would ask him at this time to put forward his proposals so that we may consider them.
Hon. LESLIE M. FROST (Premier of Ontario): Mr. Prime Minister and gentleman: Perhaps I should elaborate a little on what I said yesterday. We from Ontario are here to contribute ideas to the pool of ideas brought forward to this table. We recognize the fact that the machinery which is finally arrived at will not be the proposal of one government or one person but it will be the result of ideas that will be advanced by all of the representatives who are here.
I may say that yesterday my colleagues and I were very much interested in certain proposals which were advanced by other governments. I felt that the Prime Minister himself contributed immeasurably to the solution of the problem with which we are faced in the statement that he made yesterday relevant to the Act of 1949, and his willingness and the willingness of his government that the subject matter of that Act should be considered here and that it should be subject to the machinery, If I may put it that way, which will come out of the conference.
I also said that my colleagues and myself are not desirous of putting before the conference what might be termed “Ontario proposals”. Actually what we are placing before the conference are suggestions for consideration. These suggestions can be incorporated in whole or in part, or they may not be incorporated at all, in what this conference we finally determine. I have purposely made in this draft amendment suggestions for discussion regarding amending procedure. In no way are they to be regarded as being conditions which our province advances. They are not even proposals; they are just subject matter for discussion.
The suggestions that we make are these:
1. With the consent of the legislatures of all provinces the parliament of Canada may amend the Act with respect to,—
(a) The use of the English or the French language
(c) Rights or privileges granted or secured to any class of persons with respect to schools
(d) The legislative jurisdiction of the provincial legislatures.
I am conscious of the fact that this includes all of Section 92. In relation to these matters we offer suggestions for discussion, and we say that there should be absolute agreement upon the part of all the provinces and the parliament of Canada in relation to these matters.
Our other suggestions are:
2. The Parliament of Canada may amend the Act in so far as it relates to one or more but not all of the provinces with the consent of the legislature of the province to which it relates.
3. The parliament of Canada may amend the Act in respect in all matters concerning the executive government of Canada and the constitution and privileges of the House of Commons and the Senate except with respect to the representation of the provinces in the House of Commons and the Senate.
4. With the consent of not less than two-thirds of the legislatures of the provinces the parliament of Canada may amend any other provision of the Act.
In other words, except in the case of (1), (2) and (3) any other amendment may be made by the parliament of Canada if it is confirmed by two-thirds of the legislatures of the provinces.
I must say that these suggestions are by no means what we consider to be the last word. We feel that other suggestions which will be made here which may strengthen them.
Hon. MAURICE L. DUPLESSIS (Premier of Quebec): The Prime Minister has said that we should not regard this conference as being a legislative body which will make binding decisions. He said that the proposals that we agree upon should be submitted to the decision of the respective legislatures. We have always been of that opinion. As a matter of fact, for many consecutive years, at the legislature of Quebec, I myself have introduced legislation which was unanimously accepted, and by which the position of Quebec was clearly established. This legislation stated most clearly that no definite decision could be arrived at until and unless it was approved by the legislature of Quebec.
The second remark of the Prime Minister was very important. Let us speak very frankly. It was the remark of a clever lawyer. Being a lawyer myself I think that the position of Quebec should be clearly established. Mr. St. Laurent said it should be understood from the beginning that the proposals of Ottawa would have to be considered as an entity and that possible amendments should be considered as a whole. I do not agree with that. I think we should exchange our views frankly. As Mr. Frost said, we should pool our views, take the best of them and try and arrive at a definite settlement which will clear the way of misunderstanding and establish once and for all a real Canadian constitution, decided upon in Canada, for Canadians and by Canadians, and taking into consideration, as fundamental principles, the essential autonomy of the provinces in the legislative and administrative field, and also fiscal powers, which are a necessary accessory to the exercise of legislative and administrative powers.
So far as Quebec is concerned we have an open mind. We have firm convictions that cannot be changed, because they are based on fundamental principles which I stated yesterday in a brief way. But we have an open mind as to the ways and means to amend the constitution to establish in Canada a real Canadian constitution. We are willing to listen and we shall listen to other proposals from other provinces. We are ready to pool our knowledge and our desire for a great Canada based on a federal system respectful of the rights of the central authority and of the provincial authorities.
HON. ANGUS L. MACDONALD (Premier of Nova Scotia) : Prime Minister and Gentlemen, I was very glad to hear the Premier of Quebec and the Premier of Ontario refer to their desire to make contributions to what they called a common pool of knowledge and understanding in this conference. It seems to me that certain matters have emerged from yesterday’s discussions. I take it that one is that there is a considerable body of opinion, perhaps I should unanimous opinion, in favour of the principle of an amending procedure.
I should go on to say of course that the application of this procedure will vary according to the particular type of provision of the British North America Act that is being dealt with. In order to determine how many of the governments are of this opinion I venture to state the Nova Scotian delegation has prepared an outline of an enabling section to be added to the British North America Act. I hasten again to express my agreement with Mr. Frost in the view that no province should endeavour to put forward a certain proposal as an Ontario proposal or a Nova Scotian proposal or a Quebec proposal; but it does seem to me that if this rough draft which I have, and which is merely the framework of a section, could be taken and studied, amended, of course, as I am sure it will be in many respects, it will nevertheless at any rate give a direction for us to follow. Just how far and how fast we should travel along that road will be for the conference to say.
The section is based largely on what I said yesterday, namely, that all sections of the British North America Act cannot be treated with the same importance. because some of them deal with matters that are of much greater consequence to Canada, to the provinces and to the people, than others. This section of mine is not to be taken so much as a draft in a legal form, but rather as the framework of a section which might in time ripen into a finished product in the hands of a skilled draftsman. Since it is designed to invoke opinion and possible agreement as to the machinery to he followed, it has been simplified by referring to the British North America Act of 1867 as if it were the sole constitutional document. I venture to state, Prime Minister, that if the various representatives here could agree upon this skeleton section as embodying the desirable principles to be followed with regard to this or that type of provision in the British North America, Act then the conference would have taken a long step in the desired direction.
I have twelve or fifteen drafts which I shall pass around to each delegation It will be noted, gentlemen, that there is a separate clause for each type of amendment which I mentioned yesterday. The nature of the amendment is indicated by parentheses after each clause. For the sake of illustration each clause specifies some section to be amended therein; but there is no thought in our minds in Nova Scotia of asking the conference in the first instance to agree upon the sections so specified. If the framework of amendment should merit adoption in principle then this conference, or a committee of the conference, could determine what sections of the constitution should be specified in the respective clauses which embody the different types of procedure to he followed.
Now,the draft section which I propose would be known as section 148 (1) and would read as follows:
The British North America Act, 1867, hereby amended by adding thereto the following section: 148 (1) The several sections of this act may be amended or appealed from time to time as follows: (a) As to sections 23, 24, 30 and 36—
Those are the sections that relate to the constitutional privileges of the executive government of Canada and of the parliament of Canada, by act of the parliament of Canada. I am speaking now of the executive government of Canada, I am not speaking of anything wider than that.
As you know, section 23 relates to the qualifications of Senators. They must he thirty years of age, have $4,000 worth of property and must be natural-born subjects or naturalized, etc.
Section 24 states that the governor-general may summon persons to the Senate.
Sections 30 to 36 state that Senators may resign, and so forth. I think there would be no objection to that. The place of a Senator may become vacant under certain circumstances, and when a vacancy arises the governor-general can summon any fit person. We only bring these sections forward by way of illustration, and there may be others that should he added to the list, while some of these might be dropped. We do say, however, that there are certain sections of the British North America Act, the amendment of which we would be quite content to leave to the parliament of Canada alone.
Section 148 (1) (b) would read as follows:
(b)As to sections 69 to 80, 86, 87, 88, 94, 124, 147—
Those are sections that relate to Canada and one or some of the provinces, but not to all. As to those sections we say they should be amended by act of the parliament of Canada upon request or with the subsequent confirmation of the legislature or legislatures of the province or provinces concerned.
Sections 69 to 80 deal with the legislative power of Ontario and Quebec. As to that we say that if the province of Quebec wishes to make some amendment. to these sections—if any are now applicable and I do not know how many are—then the province of Nova Scotia or the province of Manitoba or any other province would have no interest in that matter. These are sections that could be amended by the province of Quebec or the province of Ontario, as the case may be, acting with the dominion parliament.
Mr. ST. LAURENT: With the possible exception of the position of lieutenant governor, are not those sections matters with which the legislatures themselves could deal, without any intervention from the dominion parliament?
Mr. MACDONALD: I think that is probably so, and perhaps in any redraft those sections could be omitted.
Mr. DUPLESSIS: In Quebec we have certain clauses which cannot be modified.
Mr. ST. LAURENT: There is no requirement with respect to the parliament of Canada?
Mr. MACDONALD: As the Prime Minister says, that is probably a matter with which Quebec can deal in any case.
Let me take section 124, which I mentioned yesterday, concerning the right of New Brunswick to levy lumber dues. It seems to me that is a typical section to illustrate what I have in mind. I do not know whether New Brunswick still operates under this section, but if it does and a change were desired then I do not think any other province could raise any objection.
A similar statement might be made in connection with section 147 respecting the representation of Newfoundland and Prince Edward Island in the Senate. As I say, those sections are not intended to be exhaustive, Perhaps other sections should he added. The idea I am attempting to convey is that there are some sections of the British North America. Act which are only of concern to the dominion and some provinces. Under clause (b) they could be amended by act of the parliament of Canada upon the request or with the subsequent confirmation of the legislature or legislatures of the province or provinces concerned. There is a similar provision in the United States constitution which allows an amendment to he initiated in the federal parliament, passed there by a two-thirds majority, and ratified by three-fourths of the states, or the states themselves can initiate amendments and have the second step taken in the central parliament.
(c) Under clause (c) sections 21, 22, 28, 51, 51A, 90, 91, 92 (except as to numbers 12 to 14), 95, 96, 101, 118, 125—those are sections relating to matters of mutual concern to the dominion and all the provinces. We say they could be amended by act of the parliament of Canada, passed by an absolute majority of each house of the parliament of Canada upon the request or subsequent confirmation of seven provincial legislatures.
Some of those sections are fairly important, such as the constitution of the Senate. That is a matter of importance to the provinces, no less than to the dominion.
(d) Then, clause (d) concerns sections 92 (numbers 12,13,14) that is the administration of justice, solemnization of marriage, property and civil rights—sections 93, 99, 121, 20, 50, all relate to fundamental rights so-called, such as language, schools, marriage, administration of justice, the duration of the life of a parliament, the sitting of parliament once a year, or as to any new subject of legislation. We say the amendment of those sections can be accomplished by act of the parliament of Canada upon the request or subsequent confirmation of the legislatures of all the provinces.
Now, a new matter touched on here is that of new subjects oi legislation. It occurred to to us that there might, at some time, be some new matter that would arise and some question might develop as to whether that matter should be dealt with by the dominion, by the provinces, by the dominion and one province or by the dominion and a majority of the provinces. It is true that the B,N.A. Act now gives that jurisdiction to one or the other, but to which one? We say that these new matters should be the subject of a conference between the dominion and all the provinces, and they should all agree, Relating to the method of amendment, we say that this section could only be amended by act of the parliament of Canada, upon the request or subsequent confirmation of the legislatures of all the provinces.
As I indicated yesterday, if the amending section itself could be changed lightly, then of course the constitution could be changed lightly. Everything depends upon the strength of that amending position. We would, therefore, add a subsection (e) to subsection (1) stating; that it could be dealt with only by unanimous consent of all the provinces.
Subsection 2 is concerned with a matter of procedure, and would read as follows:
Upon the request of the appropriate legislature or legislatures for the amendment or repeal of a section of this act in clauses (b) to (c) of subsection (1), hereof the executive government of Canada shall within one year present to parliament a bill providing for same.
“The appropriate legislature or legislatures” means of course that if a matter relates only to one province and no other province is concerned, and if the single legislature requests the parliament of Canada for an amendment, then within one year the parliament of Canada should introduce that amendment. Of course, if it were a matter that required the consent of more than one province or the consent of all provinces, then the procedure would have to be in accordance with that.
Then section II follows necessarily; that the B.N.A. (No. 2) Act, 1949 is hereby repealed. It would serve no purpose if this first subsection should be adopted.
We have put in a third section III to provide for the power of the dominion to delegate jurisdiction to one or more provinces, and vice versa.
Now, we submit this humbly and not assuming, it is perfect in this form. We do not even assume it is a draft section, but we suggest it is a framework and, like any other framework, may have to be altered. There may have to be new divisions in the framework or some of the rooms might have to be enlarged. We are happy, however, to submit it as a starting point.
Mr. DUPLESSIS: Mr. Prime Minister, before the meeting adjourned last evening I understood that this morning you were to tell us exactly the stand of the federal authorities in connection with the recent constitutional amendment of 1949, No. 2. I may have been under a wrong impression; but I think it would be important to know exactly the stand of the government in that regard. Yesterday afternoon, if I understood you correctly, you stated that the federal authorities would be willing to consider examining the whole constitution, including the new amendment. Has any decision been arrived at?
Mr. ST. LAURENT: I will not say any decision was arrived at; but I understand the suggestion offered by Mr. Macdonald, for instance, would cover the whole field and would render subsection (1) of 91, enacted by the 1949 statute, inoperative. What I stated was that we had no objection to the discussion of an overall procedure being over-all; but what I said this morning was intended to mean that we were not suggesting we would be prepared, if nothing else was
agreed upon, to ask for the repeal of the 1949 statute. It would disappear in an over-all procedure; but it was not intended to be an undertaking to cause it to disappear if there were to be no over-all procedure.
Mr. FROST: Our suggestion was for an over-all procedure,
Mr. ST. LAURENT: That was my understanding; that it was the desire to discuss the possibility of an over-all procedure which would absorb this particular subsection of section 91.
Mr. DUPLESSIS: As far as Quebec is concerned, we listened carefully to the suggestions of Premier Macdonald and we would be prepared to consider them in principle as a starting point for the discussion. They are very interesting, and I believe Quebec would be willing to consider them.
It seems to us, however, that if, as we all hope, we are going to have a well-established and definite constitution, the special position of the province of Quebec must be considered, Quebec is not asking for any favours or privileges, but we want our special position to be recognized and admitted. It seems to us that any arrangement arrived at should be based upon contracts authorized by the legislature and by the federal parliament, in order that there may he no doubt about their validity.
Mr. MACDONALD: That would be a contract written into the constitution?
Mr. DUPLESSIS: Yes.
Mr. ST. LAURENT: Instead of being merely an enactment?
Mr. DUPLESSIS: I may be wrong, but while respecting the opinions of others, I must say I am convinced that a law can always be amended, while a contract cannot honestly be amended. Since we are all looking for stability and security, to my mind the best way to obtain that stability and security is to make sure there is a contract or agreement; and Quebec would favour this suggestion. It is not a definite suggestion, of course; I leave it to the consideration of the delegates. But I think it would be very important and would be conducive to real Canadian unity, if we had a stable, clear constitution established on a solid foundation, and not liable to the amended by future legislation.
Hon. JOHN B. MCNAIR (Premier of New Brunswick): May I say just a word at this stage. It is recognized, of course, that we were invited here to deal with a specific matter. That matter was a procedure to amend the constitution. We must not overlook the fact that the constitution is not entirely confined within the limits of the British North America Act, however. We are all in favour of working out some procedure of that nature, but I venture to suggest that as we get on with our deliberations we will find ourselves continually confronted with the necessity of getting down to more fundamental considerations.
I took occasion yesterday to suggest what I felt we would have to do before we reached anything of a final nature; that was, the establishment of a new constitution. I gathered that Premier Duplessis is very strongly of that view, and there are sound grounds in support of that suggestion.
To put into the British North America Act of 1867 specific provisions for its amendment does not entirely meet the situation, for different reasons. I have already suggested one, that our constitution is not entirely contained in that Act. I have in mind at the moment the British North America Act of 1915, which is very important as far as the provinces are concerned. That Act did not insert new provisions in the British North America Act of 1867. That is the Act which provides for the number of senators in Canada and their distribution as between districts. I have not seen the legislation, but I venture to suggest that Act No, 1 of 1949, which was passed at Westminster in order to validate the entry of
Newfoundland into the union, is in the same form. I do not know, but I anticipate that that Act did not insert any new provision into the British North America Act of 1867.
I mention those two matters to illustrate what I have in mind, that by dealing with the British North America Act of 1867 we are not doing a complete job.
There is another objection, too, and it is this. Although we might agree on a procedure and have it written into the British North America Act of 1867, at the hands of the United Kingdom government, those provisions could be struck out some time in the future; and they would be struck out, I believe, at the request of the Canadian Parliament, under the procedure that has been established by usage over the years.
I mention these points to indicate that we are going to find ourselves confronted with more fundamental considerations than merely writing into the British North America Act provisions for the amendment of that act.
We did not prepare any concrete proposals, anticipating that others would be doing so and that we might well agree to take seine proposals that would be advanced here as the basis of discussion. I believe Mr. Frost has made certain suggestions which are worthy of a great deal of consideration. Nova Scotia has given a good deal of consideration to the matter, and it might well be that we could agree to take something already advanced as the basis for our discussion. Yesterday Manitoba suggested that we might take up the proposals which were developed in 1935-36 as a basis for discussion, and we are prepared to go along with the conference in that connection.
We agree that we must have an amending procedure for the constitution, but I believe we should reflect upon this point, that first we must have a constitution in such a form that we know definitely what we are dealing with, before we can reach any finality in our work.
I do not want to press this view too strongly at this stage, but I think we will find—and it may be becoming more apparent—that we must get on with that more basic matter. I conceive that there will be great difficulty in these days in writing a new constitution, but I was intrigued with the suggestions made yesterday that certain fundamental things should be written into the constitution somewhere, perhaps a bill of human rights, and so on. I think a constitution for this country should have some colour to it; but against the possibility that we may not make progress in that direction immediately I suggested that at least we could set up, in the form of a Canadian document, the contents of the enactments which are new in the hands of the imperial parliament.
I do not want to say more on that point at this stage, except to agree that we must have an amending procedure for something, whatever it may be. We are prepared to go along with the conference and take as a basis for the studies we are to make the proposals of Ontario or Nova Scotia or Manitoba. But I do hope that out of this conference something very definite will result, for I think we must have it.
Hon. DOUGLAS L. CAMPBELL (Premier of Manitoba): Mr. Prime Minister and gentlemen, yesterday when I spoke I was in position of being the first representative of the western provinces to address the conference. Today I find myself in the perhaps unenviable position of being the first layman to address the conference, after a group of very distinguished legal gentlemen have spoken. As a matter of fact I have been looking over the composition of our committee this morning, and I believe you have to come all the way down the table—and I use the word “down” advisedly—to the level represented by the Premier of British Columbia and myself before you find one of that great body
of laymen to whom I refer as distinguished from the legal lights of our country, who naturally take a very important part, as they should, in the deliberations of a conference of this kind.
As a matter of fact even from that point on I presume we are about fifty-fifty, because I gather that we have all fortified ourselves with our attorneys general for this occasion. The point I am making is that we are fortunate in having: such distinguished legal talent here from both the federal government and the provinces; but I feel the legal gentlemen will be the first to admit that they are glad to be reinforced by a great body of robust common sense and greed judgment on the part of the laymen of the conference as well. As representing the laymen I would like to heartily endorse the position taken by Premiers Frost, Macdonald, and others and say that we from Manitoba agree with bringing; forward suggestions only, as opposed to rigid proposals, in the spirit of contributing to the pool of ideas for discussion at this round table conference. We are opposed to urging and arguing specific plans. I think that View is important at this conference if we are going to achieve the progress that we desire.
I think that the Manitoba representatives believe that it is important, at least at this stage, to keep our discussion to the procedure for amending the constitution, rather than getting into a discussion of the merits of particular amendments that might be proposed. We realize, of course, that the particular amendments themselves would be very interesting, important, and would no doubt bear a very close relation to the matter of procedure. If, however, we allow ourselves to be drawn into that phase a great deal of time would undoubtedly be consumed and some of the unanimity that has been achieved to date would be lost in the process.
We would simply renew the suggestions which we mentioned in our brief yesterday and which is found at page 27 of the Hansard. It is, as I mentioned, a digest of the report of the committee of 1935, given at the last session of parliament by the Right Hon. Mr. St. Laurent. There is no need for me to read it now because it is incorporated in the report given yesterday. I think it gives, in somewhat different language, almost the same suggestion as was laid before us this morning by Premier Frost. It is the same, I gather, as the suggestion put forward by Premier Macdonald, except that he went into greater detail by mentioning; the specific clauses that would come under the various headings enumerated there.
Our suggestion would simply be, and it is only for consideration, that this report, or a digest of it, might be taken as a basis for study by the conference. Reasonable progress might be made if, after some consideration of that report and other suggestions, we decided to appoint some sort of a continuing committee from this conference which would work out something in greater detail which would be submitted back to a reconvened conference at some later time.
Hon. BYRON I. JOHNSON (Premier of British Columbia): Speaking for British Columbia, may I say that I concur in the remarks of my colleague from Manitoba, particularly where he makes reference to myself as being one of the laymen who are in attendance here. I should couple with his reference my friends from Alberta and Saskatchewan, Premiers Manning and Douglas, who have not had legal training either.
I agree with the suggestion that we should not down to discussing; some of the definite proposals that have been put forward. We cannot come to conclusions until we do.
We realize that there are difficulties but, as I said yesterday, I think that the 1935 report could very well form the basis of our discussion. Mr. Frost, Mr. Macdonald, and Mr. Campbell all mentioned and centered their remarks
around, the 1935 report and, without going into any more detail, I shall say that we from British Columbia concur. In other words, let us go back to the 1935 report and start from there.
I should touch on Mr. McNair’s suggestion about a new constitution, That is something which may be very desirable and may come into being, but I believe our job today is to try to find a way to amend our present constitution in the hope that we may reach the point where we are all agreed on the type of constitution we want. At such a stage it would be more appropriate to discuss any new constitution.
As far as British Columbia is concerned we would now like to discuss the proposals placed before the conference by Premiers Frost and Macdonald. Mr. Campbell has also suggested that is what he would like to do.
Hon. J. WALTER JONES (Premier of Edward Island): Mr. Prime Minister and gentlemen: I wish to congratulate you on the success of the conference so far. I see no reason or excuse for anyone getting up and walking out at this stage but I think we must move along to particular points for agreement.
I speak as a layman, and I may say that I am one of a group of farmers present here, I was looking at the Fathers of Confederation the other day and could not find one farmer in the group. The professional men were “ruling the roost” in those days. Here, however, at this conference we have four or five farmers—Mr. Manning, Mr. Smallwood, Mr. Campbell, Mr. Johnson and myself. I think that the farmers are feeling better.
Our suggestions yesterday were embodied in Premier Macdonald’s suggestion of topics for discussion and we would just like, to go along with those, if the committee will agree.
Hon. T. C. DOUGLAS (Premier of Saskatchewan): Mr. Chairman, yesterday I endeavoured, on behalf of the Saskatchewan delegation to place our proposals before the conference and I see no need of reiterating any of those proposals today.
It seems to me, now that the provinces have placed before the conference what are really their suggestions, the next step is for us to try to work out some agenda by which we can discuss the various problems and attempt to get some agreement in principle as to how each of the problems can be met. We could then probably set up a continuing committee, possibly composed of the attorneys general of the various provinces, to try to work the principles into concrete terms for submission to a reconvened conference.
We have, as a basis for discussion, the proposals placed before us this morning by the premiers of Ontario and Nova Scotia We have the suggestions of the various provinces as given yesterday, and it seems to me that, from new on, there is not a great deal of point in contributing further to those general suggestions. I believe that our modus operandi should be to take each of the topics, discuss them one by one, and what general agreement we can obtain.
I noticed that yesterday a number of the provinces suggested that they were in agreement on the principle that the constitution of Canada should be a Canadian statute. I do not know how general that opinion is but it might be a topic for discussion and we could see whether there is general unanimity on the proposal that eventually the B.N.A. Act become a Canadian statute.
There seems to be general unanimity on the proposal that the parliament of Canada should have power to amend the constitution in so far as it affects the executive powers or constitutional privileges of the executive government at Ottawa. Although I have not taken the trouble to list them, several of
the provinces certainly more than half of them—have already suggested that they can see no objection to giving to the parliament of Canada and any one province or several provinces the power to make amendments regarding matters which only affect these particular provinces and do not affect all of Canada.
If we can get that far we can put that matter out of the way and turn it over to the continuing committee for drafting. We might then go to the next point on the agenda, those matters which are of general concern to the dominion and to the provinces. There is not as much unanimity on this point, if we can judge by the statements made yesterday and this morning. I have not yet heard anyone say that none of these matters can be changed without unanimous consent. Saskatchewan suggested yesterday, and I think one or two of the other provinces did likewise, that these matters of general concern might be amended by the parliament of Canada and a majority of the provinces. This morning the premier of Nova Scotia mentioned seven provinces which would be two-thirds. I do not think we would quibble about the number but it should be something of a majority, short of unanimity, and devised so that it would not be possible for one part of the country to veto suggestions for change of which the majority of Canadians are in favour. As I say the number should be something; greater than simple majority but short of unanimity.
It would be very important, of course, to select proper items for inclusion on our agenda but I would like to see us deal with them by topics. I think we should have a general discussion of the items which Mr. Macdonald has suggested, and perhaps other items, which can be changed by consent of the parliament of Canada and a majority of the provinces, whether that majority is something more than a half, or two-thirds, or whatever figure is agreed upon.
There also seemed to be general agreement both yesterday and today that there ought to be certain entrenched clauses which could only be changed by the consent of the parliament of Canada and all of the provincial legislatures of Canada. I think that subject ought to be placed on our agenda for discussion to see what area of agreement there is.
I notice the suggestion this morning by Ontario that the legislative jurisdiction of the provincial legislatures might be included under such a provision. We would want to advance the argument, with regard to that suggestion, that if the whole section 92 is going to come in as an entrenched clause, it would virtually amount to the compact theory of confederation. It would mean a rigidity that the constitution has not suffered from up to the present time.
There is a great area of agreement—everyone seems to agree on the matters of language, education, solemnization of marriage, and administration of justice. I do not think that there should be any great disagreement on those matters.
Yesterday, we suggested that Saskatchewan was prepared to go further. I would urge that later consideration be given to the inclusion in the entrenched clauses of a bill of rights. There has been a great deal of discussion in all political parties in Canada of a bill of rights, and I think there would be general agreement in support of the inclusion of such a bill of rights in the entrenched clauses.
As the discussion proceeds I would like Mr. Macdonald to elaborate on this matter of the entrenched clauses. I notice that he included subsection 13 of section 92, property and civil rights, in the entrenched clauses. If the premier of Nova Scotia has in mind the thought that the whole of subsection 13 could not be taken out of section 92 without the unanimous consent he mentioned, I would agree with him. But, if his suggestion has the effect of saying that no part of that subsection can be removed without unanimous consent, it would mean that the national labour code, which has now been interpreted in the courts as being part of property and civil rights, could not be put into effect without the unanimous consent of the provinces. Similarly a social service program
could not be instituted, without unanimous consent of the provinces and I doubt whether the premier of Nova Scotia intends that.
I think we would agree with him that there should be some provision that subsection 13 could not be removed in its entirety but I do not think it would be fair to say that nothing relating to property and civil rights could be put effect without the unanimous consent of the provinces. That would be imposing a rigidity upon amendment of the constitution which would make the position no better than it has been. So far as the amendment of the constitution is concerned, it still lies with the parliament of Canada by an address to Westminster. While that is a difficult procedure, I would much rather have a difficult procedure than an impossible procedure. In our opinion too rigid a procedure would be an impossible procedure. We prefer to have it the way it is rather than impose too great a rigidity in the amendment.
Mr. Macdonald in his suggestions, and one or two other Premiers, have spoken in favour of delegation, of powers by the federal government to the provinces, giving the provinces the right to receive the delegation of power. I myself would like to have that discussed. If there could be a general area of agreement there it might be possible to take steps to have legislation passed at the coming session of parliament and in the other legislatures providing for that amendment while we are working out the details of the other. It may take some time to work out these matters and procedures to cover the whole of the constitution, but in the meantime the right to delegate powers can be established. I think that it might provide for flexibility that would help a great deal. Therefore, Mr. Chairman, I should like to suggest that when the various Premiers have spoken, if it seems to meet the consensus of opinion, we ought to take the various subjects that have come up, but not necessarily in this order, namely, (1) the question of the constitution becoming a Canadian statute; (2) the question of giving the Canadian parliament power to amend those matters relating to their own jurisdiction; (3) the right of parliament and any province concerned to make amendments with reference to matters which concern them only; (4) the rights of parliament and any given number of provinces to make an amendment with reference to matters which are of joint concern, and (5) and finally, the entrenched clauses which can only be changed by unanimous consent. I would still hold for discussion sometime in the course of the next few days whether or not the Dominion government and the provinces would be prepared to consider immediate action in providing for delegation of power. I think we should deal with these questions in some order, but not necessarily in the order I have indicated, to find out if we can agree on the general principle. Then I think it would be wise for this conference to set up a continuing committee with the advisers to try to resolve into legal terminology the principles to which we have agreed.
Hon. E.C. MANNING (Premier of Alberta) : Mr. Prime Minister and gentle- men, the discussions of both yesterday and today have made clear the fact that our problem is compound in nature. We have before us the specific matter of devising a formula to provide for amendments to our constitution without reference to the parliament of the United Kingdom. Upon the desirability of that there seems to be very general agreement. But hand in hand with that we have the broader, and in some respects perhaps even the more important question of the possible re-drafting of the Canadian constitution so that it may ultimately become a purely Canadian document domiciled and amended within this country.
I find myself in very substantial agreement with what was expressed this morning by Premier McNair. It seems to me that if we attempt to divorce the two parts of this one comprehensive issue we are making a grave mistake, for
sooner or later I think we would all agree we should come, and perhaps must come, to the place in this country where we have a constitution which is purely a Canadian document.
In his statement yesterday morning Mr. McNair made this observation which I think is very well taken. These were the words: “The time for such a move—”that is for redrafting of the constitution—”is now opportune. Some occasion in the future may conceivably find us attempting such a change amid the heat and turmoil of an international crisis”. I think that expresses a view- point that is borne out by plenty of evidence. I would suggest, Mr. Chairman and gentlemen, that there is no great problem in keeping these two integral parts of the one issue before us at the same time. The first and immediate issue is to devise a formula for the amendment of the Canadian constitution without reference to the United Kingdom parliament. In our view the suggestions advanced this morning by Premier Macdonald would form a very acceptable and practical basis for arriving at that formula. If, as an initial step, we as a conference could agree that the four major classifications suggested by Premier Macdonald and also by the Premier of Ontario, were satisfactory, it would be a definite step forward. We could then proceed to a detailed analysis of the subject mater that is proposed for each of those classifications.
I would not suggest that we can complete that in a conference of this kind. We should confine ourselves, to agreeing to the general principle and have a continuing committee of legal experts carry that analysis further and submit recommendations and alternate suggestions for consideration, at a future conference. I think that the method suggested by Premier Macdonald by specifically enumerating matters to come within each of the proposed classifications is sound and might well be adopted as a guiding principle by the conference. But at the same time that these maters were being considered: by a continuing committee it would emphasize that we should also embody the proposal advanced by Premier McNair and that the continuing committee should proceed to make a redraft of the constitution for our consideration at a later date. Perhaps it would he better to say a redraft of the constitution embodying primarily the present provisions of the British North America Act, together with other statutes of the United Kingdom parliament that relate to the constitution of this country; and also of course embodying the provision and formula for amending within this country.
I would say, Mr. Chairman, in our view sooner or later in this country we should, and we believe must, come to grips with that broader question. We can agree with Premier McNair in what he said about now being the opportune time. Certainly no other time is going; to be more opportune, and if we attempt to divorce these two things one from the either, I am afraid that at some later date if we decide to go into the broader question of redrafting the constitution to arrive ultimately at a purely Canadian document we shall merely then have to go over a great deal of the same discussion. that could well be covered in the drafting of a formula for amending the constitution.
May I also add that if we proceed with the ultimate objective of redrafting the constitution to make it a Canadian document, when that goal is arrived at ultimately the redrafted constitution itself obviously would have to be ratified by the parliament of Canada and by the legislatures of the Canadian provinces; and that procedure would provide the effect of a contract along the lines mentioned by the Premier of Quebec, and would take care of the very fundamental principles that he emphasized in his remarks this morning.
Our suggestion, Mr. Chairman and Gentlemen, would be that this conference, should agree first of all on the desirability of arriving at a satisfactory formula for amending the constitution without reference to the United Kingdom parliament. We should agree that our ultimate objective would be the redrafting
of the constitution to make it a purely Canadian document. To that end a continuing committee should be established to which this confer we could give direction in the very general principles such as these classifications, under which the subject matter of the constitution would be arranged. We should proceed from there to get some draft prepared, and alternate suggestions prepared by competent constitutional authorities which would then receive the detailed consideration of this conference at some future date.
Hon. J.R. SMALLWOOD (Premier of Newfoundland): Mr. Prime Minister, when the Premier of Alberta yesterday have his reasons for welcoming Newfoundland into the Canadian family he said that in previous Dominion-Provincial conferences Alberta had been the last province to speak. That honour had new fallen to Newfoundland. We accepted that honour on the grounds that the first should be last and the last; but we did not bargain for what has just happened, namely, that our thunder should be stolen on us. Some of the remarks that he has just made are remarks that I was going to make. There have been half a dozen times this morning when I have been very clear in my mind as to what ought to be done. Premier Frost resolved the whole matter for me until Premier Macdonald spoke.
When it comes merely to amending the present British North America Act it seems very very simple until I begin to worry about the point made by Premier McNair, which seems to me at least to be a very important one. In between whiles I have read the confederation debates and one or two books. I have heard and read references from time to time to the great dispute as to whether the fact of confederation was a compact; whether it was created by the four original provinces and the power of the federal parliament given by the four original provinces, or whether the original confederation was created outside of Canada by the parliament of Britain. Which is which I do not know, but it seems to continue as an argument.
It seems to me that the strength of Premier McNair’s proposal is that we can all accept the compact theory by first making a compact. The thing that puzzles me is this: If Premier Frost’s and Premier Macdonald’s proposals were acted upon, do they not amount merely to amending the present act? True, the amending is done here in Canada, but it is the amend of an United Kingdom act, which act presumably would remain in the United Kingdom, so the constitution of Canada would still be The British North America Act, thereafter amended from time to time in Canada. Still, it would not be a Canadian document and would not be domiciled in Canada, as Premier McNair put it.
On the other hand, if his proposals were acted upon, I am unable to follow what it would then become. Would it become an Imperial act, or would that Imperial act cease to exist? Would a new and purely Canadian act then give authority to the federal and provincial parliaments? This idea of a treaty between the federal parliament, the provincial legislatures and the parliament of the United Kingdom, if a constitution were based on such a treaty, what would that constitution be? Would it then be domiciled in Canada? Would it be a purely Canadian document? I wish Premier McNair would take that matter up because it has me puzzled.
Everyone appears to desire a purely Canadian constitution. Does Premier McNair’s proposal make it that? If his proposal is not followed, do we then have a purely Canadian constitution if it remains the British North America Act, which is an act of the parliament of the United Kingdom? Frankly, I am a little puzzled about it. I was quite clear until I began to think about Premier McNair’s proposal. The amendment of the present British Act seems to be fairly simple, until you come to the point that Premier McNair has made.
Mr. ST. LAURENT: Gentlemen, are there any others who wish to make further comments on the suggestions that have been put forward?
Mr. MACDONALD: In answer to Mr. Smallwood, the section which I have suggested here, according to my idea would be enacted by the British parliament. Every section of the British North America. Act, however, would be dealt with either in clauses (a), (b), (c), (d) or (e). Provision would be made for the proper amendment of every section as well as dealing with new subject matter. It would describe how all sections of the British North America Act should be treated. There would be no trouble about amending the B. N. A. Act if this section were adopted, and it would be amended somewhere in Canada. Some parts would be amended by the dominion alone, other parts by the dominion and one province, by the dominion and a majority of the provinces or by the dominion and all the provinces. if this were passed, the British North America act could be dealt with in Canada.
Mr. SMALLWOOD: It would be the British North America Act and, except in name, entirely Canadian,
Mr. DOUGLAS: It would still be an Imperial statute.
Mr. MACDONALD: It is the only way we can do it. We have no power now to do all the things that are set out here, and the only place we can get it is from the British parliament.
Mr. DOUGLAS: It would have to be amended first, and then the act could be transferred afterwards.
Mr. MACDONALD: It would seem to me that the purpose of this conference is to devise a method of amending it. While I can see the viewpoint, and I have a great deal of sympathy for it, that we should new deal with substantive matters such as a bill of rights and so on, it seems to me that if we are going to deal that problem now when we are faced with considerable difficulty about agreeing on one section such as this humble submission of mine, if we are going to deal with 148 sections, we will take a long time. We are getting away from the real purpose of the conference.
As you suggested yesterday, Mr. Prime Minister, you do not want the conference to be confined by anything that has been done. I have no doubt that if the conference desired, it could consider substantive amendments. It seems to me, however, that if we get the method first, we can deal later with the substantive amendments such as where the constitution should be domiciled.
Mr. MCNAIR: May I say a word or two in answer to the question put by Mr. Smallwood? First, dealing with the point raised by Mr. Douglas, if the work of this conference results only in the establishment of an amending procedure for the British North America Act, our constitution will remain in its present state, an enactment of the parliament of the United Kingdom. I cannot conceive how, merely though the use of the amending power, that constitution can be brought to Canada. I believe that is a proper answer to that question.
We would have an anomalous position in this respect, that an act of one parliament would be amended by another parliament. The constitution is still the pronouncement and the law of that other parliament. It might be a safeguard, but it might create serious risks for us. I feel that the final step in this work should be the divesting of the United Kingdom parliament of any authority over the constitutional affairs of Canada. I believe that is vital to the whole situation. Otherwise, we may be faced with this situation, notwithstanding the safeguards we may endeavour to set up, by leaving the authority in the Imperial parliament to deal with Canadian constitutional matters, we might find some
Canadian parliament of the future seeking, not an amendment to the British North America Act of 1867, but by separate legislation to change the situation in material respects.
Now, the British North America Act of 1915 which brought about very important constitutional chances was not an amendment to the act of 1867. The British North America Act (No. 1), 1949, if I understand it correctly, was separate legislation, and did not take the form of an amendment to the British North America Act of 1867. My point is that, as long as the Imperial parliament is left with a vestige of jurisdiction to deal with the constitution of Canada, especially when present day procedure is followed and action is taken as a matter of course upon the request of the Canadian parliament, our whole plan might be circumvented. I say there is a risk in it. I believe our work should finally result in having that residuum of jurisdiction, retained by the United Kingdom parliament by virtue of the Statute of Westminster, cancelled out.
There are doubtless different plans that could be followed to set up a new constitution in Canada. The suggestion advanced in my submission of yesterday was predicated upon the opinion it would be necessary to get some legislative authority at Westminster to proceed in the matter. It was out in yesterday’s Hansard, so I shall not repeat it. There are ways of bringing it about, but it will not be by use of this amending power we are seeking; at this conference. I do not believe there is anything more I have to say at this moment.
I have just been asked a question by the Premier of British Columbia, so perhaps I might be permitted to read a short passage from my brief submitted yesterday which deals with this particular point.
It has been suggested in some quarters that the constitution should be made an Act of the parliament of Canada. With this I would most strongly disagree. In my view the constitution of Canada should not be within the unfettered control of the parliament of Canada or of any other legislative body. The constitution of Canada and the power of amendment thereof should rest on a deeper basis than the will of a single legislative body.
Now, just to amplify that, might I observe that any suggestion of establishing a constitution for Canada as a statute of the parliament of Canada, is, in my view quite untenable. I say that first because it would result in the position that the parliament of Canada would be giving to the provinces either new powers or reaffirming them in their present sovereign powers, which is a motion to which I for one would not want to subscribe.
Mr. FROST: But may I ask this question. If we agreed on the amending procedure beforehand and that were made part and parcel of the act, would that take away your objection? Supposing before the British North America Act was made an act of the parliament of Canada the amending machinery was agreed upon. Would that meet your objection?
Mr. MCNAIR: And included in the statute of the Canadian parliament?
Mr. FROST: Yes.
Mr. MCNAIR: I do not think it would.
Mr. FROST: I mean it would include the machinery we hope to arrive at here for making amendments. Would that then meet your objection?
Mr. MCNAIR: If I get the question correctly it is this: would it be satisfactory to have our constitution set out in a statute of the Canadian parliament, with provision with respect to amendment and all the safeguards included therein?
Mr. FROST: That is right; and confirmed by the legislatures of the ten provinces.
Mr. MCNAIR: No; I would say it would not meet the situation, because by its own not or of its own motion clearly the Canadian parliament could wipe out all those provisions having to do with the amending procedure, together with any safeguards which might have been agreed upon and placed therein. It would have power to do that.
Mr. MACDONALD: But surely the courts would have to rule in any such case.
Mr. MCNAIR: Certainly the Canadian parliament could repeal or amend its own act. That is the answer.
Mr. MACDONALD: What greater security would you want?
Mr. MCNAIR: Let me read my suggestion again.
To evolve a new constitution free from the difficulties and hazards now prevailing, different methods of procedure may be open to us. At present the following method common itself to me; the initial step would be a conference of repesentatives of the dominion and of the provinces to formulate a proposed new constitution. This present conference might itself well undertake this task. But since the drafting of a completely new constitution would probably require a very long period of time, the new constitution might well consist of the substance of the British North America Act, 1867, and other relevant statutes, with such necessary changes as might immediately be agreed upon, but in any event including a procedure for amendment thereof in Canada. I do feel, however, that the 1949 amendment to the British North America Act should be most carefully reviewed before being carried into Canada’s proposed new constitution.
When agreement has been reached on the draft the dominion and the provinces would, in conference, determine the nature of appropriate legislation to be sought from the parliament of the United Kingdom to authorize and empower the dominion, the provinces and possibly the United Kingdom to enter into a treaty, after approval of the proposed new constitution by the parliament of Canada and the legislatures of the several provinces. The treaty contemplated would declare the proposed new constitution to be, and to become, the constitution of Canada on and after day to be fixed in the treaty. The United Kingdom legislation would also provide that upon the coming into force of the new constitution, as provided in the treaty, the British North America Act, 1867, and certain other enactments of the parliament of the United Kingdom are repealed.
I think by that process we could arrive at a constitution which would be the fundamental law of this country. There may be other methods, but I can say that is one which appeals to us as a result of the thinking we have given the matter.
Mr. JOHNSON: I should like to make a suggestion, because we could go on with this discussion almost endlessly, as to what we should do about domiciling our act in Canada, and other matters. May I suggest that a committee be set up to draw up an agenda setting out the points which could be referred to the conference. Such a committee might meet this afternoon and discuss the points which would be dealt with here, and come back tomorrow morning. That might be the answer to our problem. It seems to me in that way we would get something specific which we could go ahead and discuss, and I offer this suggestion with a view to getting something definite before us.
Mr. ST LAURENT: What would be your views, gentlemen, on Premier Johnson’s suggestion that a committee attempt to draw up an agenda. It may be that there are still some very substantial questions that the conference itself has to consider further before a committee could make very much progress on a specific agenda.
There is the view which has been expressed by Premier Duplessis and Premier McNair, which I understand to be that an amending procedure by statute would not be satisfactory to them, that they would not wish to participate in something that did not make what was being done the equivalent of a compact, and that would have to be regarded as such. That is a very substantial point. Possibly there would be other ways in which a statute could become an entirely Canadian document. I have no reason to so, but I have the firm conviction that the United Kingdom authorities would be only too happy to divest themselves of any right to deal by legislation with Canadian constitutional problems. But before it would be prudent for us to have them do that I believe we would have to be quite sure that we had here everything required to be able ourselves to make at any time whatever amendments we might find it desirable to have made, and on the other hand to have the sure safeguards that the Canadian public would wish to see in a Canadian document as the unalterable basis of that Canadian document.
It is a very big question, and I think probably many of us would like to give it some thought, and would probably have some further views we would wish to express. I think the matter is one as to which we would have to know the obstacles to overcome in order to deal with it ourselves. I do not think there would be any desire in the United Kingdom to retain jurisdiction if we were satisfied that we had provided in practicable fashion for everything we might wish to have done at any time in respect of our problems.
I do not know that there is anything more I can say on the point.
Mr. MACDONALD: It is nearly one o’clock now; could we adjourn now until three o’clock this afternoon?
Mr. ST. LAURENT: If that is agreeable we might adjourn at this point.
Mr. FROST: Might I ask a question. If such a document as Mr. McNair refers to is to he arrived at ultimately, amending machinery would have to form part of it. Is there anything to prevent us going ahead and discussing amending machinery, with Mr. McNair’s reservation that he thinks when we arrive at that machinery it should be part of such a document as he mentioned? Why not go ahead with the amending machinery end of it, having that reservation in mind? That would give us an opportunity of thinking over that problem.
Mr. MCNAIR: We have no objection at all to that course. If we could not arrive at any agreement on the larger question certainly we would be most anxious to have amending machinery of some kind devised to deal with the constitution in London by action in Canada.
I do not think we would need to have two statutes. I agree with Premier Macdonald’s suggestion that the insertion of such a procedure in the act of 1867 would meet the problem in substantial measure, but I do think we would need to have a British North America Act of 1950 or 1951 to deal with statutes other than the original act of 1867.
Mr. FROST: My point was just this; that if the amending machinery, if I can put it that way, has to be devised, we might get on with that in any event. Then if we could not arrive at methods of making amendments ourselves it would seem to me that necessarily we could not agree upon Premier McNair’s broader prospo-
sition, and that we might be well advised to go ahead and see what we can do with the narrower matter, holding the broader question until we see if we can answer that first question. I just offer that suggestion.
Mr. MCNAIR: I would agree wholeheartedly with it.
Mr. ST. LAURENT: Then may we rise at this time and come back at three o’clock this afternoon.
At 12.55 pm. the conference adjourned.
The Conference resumed at 3.07 pm.
Right Hon. L. S. ST. LAURENT (Prime Minister) : Gentlemen, when we rose at 12.55 Mr. Frost had asked Mr. McNair if he felt it would be possible to go on and consider an amending procedure, suggesting that if we could not reach common ground on that, the other greater question of getting a constitution domiciled in Canada would not be one upon which we would she apt to get very far.
I understand that Mr. McNair said that he had no objection at all to that course.
Hon. JOHN B. MCNAIR (Premier of New Brunswick): Mr. Chairman and gentlemen: To remove any doubt as to New Brunswick’s position at this stage of the proceedings of the conference I would like to make a further very brief observation or two.
First we are strongly of the view that a procedure should be worked out to amend in Canada the constitution. Next, if our constitution is to remain an enactment of the parliament of the United Kingdom, such procedure should be made an integral part of the constitution through appropriate legislation at Westminster.
We feel very strongly that our work here must carry us that far. The 1949 amendment to the B.N.A. Act (Number 2) creates a situation which, from the viewpoint of the provinces, must be remedied in any event.
We have the Prime Minister’s assurance that, if an over-all procedure for amendment is agreed upon, last year’s amendment will be surrendered.
Further, we believe that in time this country is bound to have a constitution of another nature—a purely Canadian document. We feel that the time is new opportune to undertake its formulation.
Again we feel that while many improvements could be made in our present constitution, we would be content at this time to subscribe to a Canadian constitution containing what is new contained in the B.N.A. Acts and other associated legislation of the United Kingdom. In short, we would be willing to transfer to Canada the constitution as it now stands.
I wish to repeat and to make it abundantly clear that we are prepared to go along and work out a procedure in any event.
Mr. ST. LAURENT: Mr. Duplessis, would it be satisfactory to you if we were to proceed in that manner?
Hon. MAURICE L. DUPLESSIS (Premier of Quebec): Yes, to a certain extent. As far as Quebec is concerned we want it to be clearly understood that we consider the constitution to assert certain principles which are not admitted by
others. Consequently, if we were to start by accepting as a basis, the present constitution, it would be with the understanding that our opinions and our attitudes are to be considered as being fundamental principles on which we insist.
Briefly, and to sum up, we have a constitution today. This constitution refers to certain things of more or less secondary importance and to certain other matters of vital importance. We have, as one basis for discussion, the brief given by Premier Macdonald which covers the subject pretty well.
To my mind the first thing is to remedy the most recent situation. The amendment which was passed recently by the House of Commons is, to my mind, a definite encroachment upon provincial rights, and I think that it would be appropriate to settle that question.
We consider that the constitution is one thing that must be considered as a whole and not in a piecemeal fashion. The federal government by recognizing that situation, without necessarily stating it is wrong, and by recognizing the reasons for which we protest against the amendment, would make it possible for us to go a long way towards arriving at co-operation by starting anew.
There is no doubt, to my mind, that the amendment of 1949 is a most serious and severe encroachment upon provincial rights. I think that, when we are gathered here in a spirit of friendly co-operation, it is only fair to say that serious causes of dissatisfaction and difficulty should be put aside.
I do not, for a moment, doubt the good faith of those who approved of the amendment but, it happens sometimes when an amendment is submitted, that for one reason or another the real contents of it are not fully realized. There is no doubt whatever that this amendment, with all due respect for different opinions, is most inappropriate and certainly a definite encroachment on provincial rights. I think that when we start discussion in a friendly way we should brush aside the obstacles and start anew.
Mr. ST. LAURENT: I think, Mr. Premier, that I am bound to be quite as frank in stating: my opinion as you have been in stating yours.
I cannot admit, as a matter of principle, that the amendment of 1949, number 2, is an encroachment on provincial rights. I cannot admit that; and I do not think that my colleagues can admit it. What we did say was that if we could get machinery that would cover the whole field of the constitution, that machinery would include whatever is now possible under the 1949 number 2 amendment. That amendment could be repealed, not on the ground that we admit that it is an encroachment on provincial rights, but on the ground that the existing constitution may very well lack some things which we would agree it should contain. As an illustration, there has been a suggestion in the views put forward here that the provincial legislatures should be the bodies speaking for the population of their own respective provinces in respect of some of the matters within the jurisdiction of the federal authorities. That is not there now. It perhaps would be quite proper that it be there, and we are quite prepared to consider with you gentlemen putting there something that is not already provided for.
It is the same with respect to these really fundamental rights. They are regarded as sacred by all Canadians when, as a matter of the constitution itself, they are no more formally protected in a legal way than any other provision of the constitution. We are quite prepared, and we are even hopeful, that it will be possible to make some of these distinctions in the constitution as to matters which are of such a fundamental character that great rigidity has got to be stipulated with respect to them and others which are not of that fundamental character; but we would hope that in order to do that it would not be necessary for us to have controversies over matters about which we cannot agree.
I would not hope to convince the premier of Quebec that the 1949 statute was not an encroachment on provincial rights. I do not think he would hope to convince me that it is; but in spite of the fact that neither of us expects to convince the other that he is wrong we can both agree on what would be a right result. Well, then, would it not be the sensible thing for us, acting in as constructive a way as we know how, to get the things that we can agree upon as the right results without having as a preliminary to convince either the one or the other that the other thing is entirely wrong? It is in that spirit that I stated, when I heard these observations made yesterday that there was concern about the interpretation that might be placed on the 1949 (No. 2) Act, that we wanted to get in the same position with respect to the federal constitution that the provincial authorities are in in respect to the provincial constitution. If we can get that in some other way that would remove everybody’s anxiety or concern about the terms of the 1949 (No. 2) Act we are not going to insist on this if it an obstacle to agreement.
But I would not like the impression to go forth that we are admitting it amounted to a dangerous encroachment on provincial rights. Possibly it is something like the compact theory of confederation. Whether it be a compact or whether it be a statute, it is something there which operates as a constitution. If we can agree that there are certain things that are going to be respected, whether it be as a result of ones opinion that it is a compact or another’s opinion that it is the right and moral thing to do does it matter if the result we reach is one that does the thing that we all want?
Mr. DUPLESSIS: I think that everyone here wishes to get the best result possible and find the fairest ways and means of achieving what we desire, namely, a Canadian constitution for Canada, made in Canada, for the benefit of Canadians.
I respect the views of others, but it is my duty to state the views of Quebec. We are speaking for Quebec. As I said before, the best way to arrive at a settlement is by frank discussion of different views and by desiring, as we all do, to explore the possibility of arriving at a fair decision in the matter. Without any reproach to those who called the conference I think it would have been better to leave things the way they are. That is a matter of opinion, and that is why when the Prime Minister asked me what I thought about the proposal I had to express my opinion frankly. That is my opinion and I hope everybody will respect it, because everyone has a right to his own opinion, and I am sure I express the views of my province in saying that.
Mr. ST. LAURENT: You said sir, there were some things that were less important, some that were more important and some that were fundamental. I think that most of the provincial representatives who have expressed their views so far have agreed that there are those classifications. Of course the most important are the things that are fundamental. There have been indications by some delegates here as to what they consider the things that are fundamental. Perhaps it might be a method that would lead to some progress if there was a discussion as to whether or not those that have been indicated as fundamental are regarded by all as such. If they are so regarded by all, and if the enumeration is regarded by all as being sufficiently inclusive it could be so indicated.
Hon. ANGUS L. MACDONALD (Premier of Nova Scotia): Mr. Prime Minister, I asked a.question as to the meaning of the phrase “Constitution of Canada”, as used by the British North America (No. 2) Act, 1949. I went on to ask was the feet of it that the parliament of Canada could amend all sections of the British North America Act other than those specifically excepted therein, and if the answer to that question was “No” then what sections of the B.N.A.
Act could be amended by the dominion parliament under the clause? If an answer were given to those questions generally the mind of the Premier of Quebec might be a little more satisfied.
Mr. ST. LAURENT: Macdonald, I think it would be presumptuous for anyone to attempt to say in any authoritative way what the answer should be.
Mr. MACDONALD: Yes.
Mr. ST. LAURENT: We used language that is similar to the language used in 92 (1), and acting unilaterally we did not feel that it would be proper for us to attempt to say to what that language would extend. We attempted to provide that it would not extend to anything that was within provincial jurisdiction; that it would not extend to any rights guaranteed to a legislature or to a government of a province; that it would not extend to anything secured to any class of persons with respect to education; that it would not extend to anything respecting the use of the English or French language. Then there was added that it would not extend to the requirements of the constitution that there be a session of parliament at least once a year and a general election at least every five years, save with a proviso for postponing in the event of any cases of war real or apprehended, leaving it to the courts, in the event of any disagreement with our views to say that something we were attempting to do went beyond what we were entitled to do.
There are a certain number of provisions in the British North America Act which are part of the constitution of each province. They certainly are not included in 91 (1) because under 92 (1) the provinces respectively have exclusive jurisdiction in that regard. There are certain other provisions which are spent provisions. There are certain others which certainly involve rights guaranteed or secured by a Constitutional Act, for instance, the boundaries between the provinces. There are others which refer to the distribution of the assets they existed originally. They certainly do guarantee rights to the provinces.
There are other provisions which are clearly rights that the legislatures enjoy, For instance, wherever there is joint jurisdiction extended—wherever there is joint jurisdiction given to parliament and to a legislature there is there a constitutional right given to the legislature to legislate with respect to the matter included in that section. That is certainly something which could not be interfered with. For instance, there are provisions which relate to certain aspects of the administration of justice. The administration of justice is something over which the legislatures have control, and with respect to which they have rights guaranteed by the constitution. The field really narrows down to these matters which affect the set-up of the central authority. Even there there are some provisions which it has been suggested here should not be left to the unlimited control of parliament. I think they would be under the unlimited control of the central parliament. For instance, those which refer to the Senate and to the representation in the House of Commons are, I think, a part of the Canadian constitution, They are not matters which are excluded by the exceptions.
Now, it has always seemed to me that was something which was lacking in the constitution. No provision was made in that respect, probably because the over-all legislative authority was being retained in the parliament at West- minster. It may very well be that when we come to the position where the legislative jurisdiction will not be retained in the parliament at Westminster, it would be conducive to greater confidence, a more satisfactory feeling throughout the Canadian nation, if there were some guarantees about them. I have in mind, for instance, the provision which states that the representation of a province in the Senate shall be such and such, and that it shall always be entitled to no fewer
members in the House of Commons. Probably that is something which should be surrounded with guarantees which do not exist at the moment.
There is a matter about which I have not been able to satisfy my own mind, and that is with respect to the position of a lieutenant-governor as a constituent element of a provincial legislature. The province has no jurisdiction to deal with that, and I would not imagine we have. It is a right of the provincial government to have its provincial government composed in a certain fashion. I believe any attempt to deal with that would be regarded as impinging upon something which was a right secured to the provincial constitution by the act.
There are other provisions. There is this provision about the freedom of entry of a product, natural or manufactured, of any province into any other province. That is not something which is a constitutional right of a legislature or of a government, it is something which is put there as a right of the Canadian people. Rightly or wrongly, we have always felt that, in respect of those matters which were not under provincial control, the people of a province were represented by those they elected to speak for them in this place. We have felt there is a distinction between what is meant by the legislatures and governments of a province, and what is meant by the general expression, “The province.”
It has always been my hope, in looking towards this conference, that we could deal with problems in a manner that would bring about practical achievements, without having to be too much concerned with the method of reasoning of each one of us to arrive at the proper conclusion. I am sorry, Mr. Macdonald, that I cannot attempt to be more specific.
Mr. DUPLESSIS: Since I believe the Prime Minister has directed some of his remarks at me, perhaps I should make certain points clear. We do not doubt for one minute the sincerity of the Prime Minister. We do not doubt for one minute his desire to do things in the best way he knows how. The disagreement arises as to the method of achieving what we all want.
Up to this moment, the conference has done a lot of good work. First, we have unanimity on the desirability of having a Canadian constitution, made in Canada by Canadians for Canada. Second, there was unanimity in arriving at a conclusion that the highest court in Canada should sit in Canada and be composed of Canadians, according to the spirit of the constitution.
Mr. St. Laurent now says that we are all in agreement that, in the matter of language and education, to mention the only two in which the provinces have exclusive rights, there should be no change. What is the use of these rights if we have not the money to build schools? What would be the use of those rights if we have not the money to pay teachers or to buy books? I contend it is important to consider those questions. We are not in heaven, but I hope we all go there. We are not in a hurry. We are on earth, and money is a necessity. Financial means and financial powers are necessary to a full exercise of the rights which are conceded by everyone.
Speaking for myself, I should say that I prefer the old horse and buggy in which I can move along, to a Rolls-Royce without any power. I believe the fiscal powers of the provinces are absolutely essential. A certificate of right is very nice to look at, but not very useful.
Hon. DOUGLAS L. CAMPBELL (Premier of Manitoba): Mr. Prime Minister, I was going to refer once again to what the representatives of Manitoba suggested for consideration, because there seems to be almost complete unanimity of opinion that a method for amending the constitution should be found. In the first place, we should be devoting our time to a consideration of that method, and it seems to us that to get into the wider field of discussing individual amendments on their merits, or this other field which we agree is most important and on which a good deal of unanimity seems to exist, the domiciling
of the constitution within Canada, is only complicating the issue. We are inclined to suggest that more progress would be made if we were to confine our attention so far as possible to some principle. Perhaps we could take advantage of the unanimity of opinion which has already been expressed, and once again we could suggest the formula proposed by the committee of 1935 which you, Mr. Prime Minister, used in the House of Commons last session.
It may be possible for us to agree to endorse the principles contained there, and the divisions of the British North America Act under those headings. I believe they are exactly the same, although set up in another order and perhaps with less detail, as the ones that were presented this morning by Premier Frost and those presented in greater detail by Mr. Macdonald. If the conference would prefer to express an opinion in principle upon Premier Frost’s suggestions, or Premier Macdonald’s suggestion, then I think that would meet our wishes in the matter. We feel that greater progress would be made if we could now consider some general principles. I believe more rapid progress would be made, even though it might be horse and buggy style instead of the Rolls-Royce, than if we continue to give our attention to the matter of specific amendments or the wide question, important though it is, of having a fully Canadian constitution.
Now, Mr. prime Minister, would it be worth while taking the feeling of the conference here as to an expression of opinion in principle with regard to the report of that committee as it is set out on page 27 of yesterday’s report?
Mr. MACDONALD: What are those provisions? Some distinctions would be necessary. Looking at the bottom of page 27, I would ask, what are matters of concern only to the central parliament? That brings up the question which I endeavoured to raise a moment ago that the meaning of the phrase “constitution of Canada” could be taken to mean many things. It could be given a wide interpretation to include the statutes, case law and custom, or it could be narrowed down to something in the B.N.A. Act.
It is true that section 92 (1) of the B.N.A. Act says that the provincial legislatures shall have exclusive power to deal with certain things, among them the amending of the constitution of the province; that is clear. IN asking the British parliament to pass the amendment calling for the amendment from time to time of the constitution of Canada by the parliament of Canada the dominion was only doing what the provinces already requested. I would point out in the first place that the powers of the provinces, as I apprehend the meaning of section 92 (1), only refer back to the two sections of the B.N.A. Act in the case of Nova Scotia, namely, sections 64 and 88 which set up the executive authority and the legislature of the province.
Section 64 says:
The constitution of the executive authority in each of the provinces of Nova Scotia and New Brunswick shall, subject to the provisions of this act, continue as it exists at the union until altered under the authority of this act.
Section 88 provides that the constitution of the legislatures of the provinces of Nova Scotia and New Brunswick shall continue as it exists at the union, until altered under the authority of the act.
As I see it, when section 92 (1) speaks of amending the constitution of the province, the reference is back to sections 64 and 88 of the British North America Act. That is the meaning of “constitution” as used in section 92 (1).
To the argument that the dominion parliament is only seeking the same power the provincial legislatures now have with regard to amendment of the constitution, I should point out, I think, one difference which appears to me to be vital. That is that amendments made by any province to its constitution, to its executive authority or to its legislature, will have no bearing whatever
on any other province. My friend in Quebec has a legislative council as well as a House of Assembly. In Nova Scotia for more than one hundred years we also had a legislative council, which was abolished in 1926. Whether rightly or wrongly, the fact is that it was abolished by act of the legislature of Nova Scotia.
That act had no bearing whatever on the province of British Columbia. I do not think Mr. Johnson cares whether we have a bicameral or unicameral or tricameral or any other sort of legislature; that does not affect British Columbia. But I am afraid when you come to deal with the constitution of the Senate which specifically, from the beginning, has been selected on a basis provincial in nature, you are doing something that vitally affects the provinces.
Therefore there is a great distinction between saying to the provinces, “Oh, you have power to amend your constitution,” and that the dominion is only asking the same power. I am afraid the fact is that when we exercise our power we affect only ourselves. By no stretch of the imagination can anything that we might do in Nova Scotia, in connection with our executive or legislative authority, affect Quebec or Ontario or British Columbia or any of the other provinces.
On the other hand when you come here as a federal parliament to change the constitution of the Senate, let us say, or the basis on which the Senate shall be selected—twenty-four from Quebec, twenty-four from Ontario, twenty-four from New Brunswick, Nova Scotia and Prince Edward Island, and so on— then you are touching something that I think is fundamental in our whole federal system.
Therefore, Mr. Prime Minister, with all respect I think there is a very great difference between giving the provinces the power to amend their constitution, in the sense in which that word is used in the British North America Act, to amend their legislative or executive bodies, and giving the dominion what is called a similar power. Of course if some procedure such as that set out in these documents were adopted the matter would become very simple. No matter what the dominion government intended or what a provincial government might intend, if something of this sort were introduced every section of the British North America Act would be placed in one category or another, and a method of amendment could be devised.
Mr. ST. LAURENT: That is what I meant a few moments ago in saying that we had no objection to considering having provisions in the documents resulting from our work here that are not new in the constitution there and that have not been there in the past.
Mr. MACDONALD: Quite so.
Mr. DUPLESSIS: I should like to make it clear as far as the province of Quebec is concerned that the fact that the constitution gives the provinces a limited right to change the constitution as far as the provincial jurisdiction is concerned and does not give the federal government power to make any changes that may be desired in the constitution is because the Fathers of Confederation, for reasons of their own, decided that the provinces should have that right and Ottawa should not have it. So while Ottawa is taking upon itself that right, it is taking a right which was refused at the time the constitution was drawn up. That may be a matter of opinion, but those are the views of the province of Quebec. The action of Ottawa in taking unto itself that right which was refused by the constitution is, if not exactly an encroachment—which might be too harsh a word—at least a trespass.
Hon. J.R. SMALLWOOD (Premier of Newfoundland): Not to interrupt the flow of discussion but to settle a point which may be very simple but which frankly I do not understand, I should like to ask a question concerning the act bringing Newfoundland into union, Act No. 1 of 1949. Someone was saying here that it was not an act amending the British North America Act, that it was a separate act. As I understood it the British North America Act applies to Newfoundland. So does the British North America Act (No. 1) of 1949, more specifically. In working out a formula to amend the British North America Act, will that also mean a formula for amending the British North America Act (No. 1) of 1949?
Mr. ST. LAURENT: No. The British North America Act (No. 1) of 1949 was merely a confirmation of the terms of union agreed to and confirmed by dominion statute. There I do not think anyone could have any doubt that it is a compact between Newfoundland and the central authority representing Canada it was before union. The terms are contractual terms that were agreed upon.
Mr. SMALLWOOD: But they rare confirmed not only by the parliament of Canada but by the parliament of the United Kingdom.
Mr. ST. LAURENT: That is so.
Mr. SMALLWOOD: It is an act of the United Kingdom parliament, Would any formula finally accepted for amending the British North America Act, whatever it may be, give anyone the right to amend Act No. 1 of 1949?
Mr. ST. LAURENT: Not unless express provision was made for that purpose.
Mr. MACDONALD: It would be a matter you would have to agree to.
Hon. E. C. MANNING (Premier of Alberta): I should like to make a suggestion following what was proposed by the Premier of Manitoba; but first might I ask it you, Mr. Chairman, would clarify for us the present situation resulting from the enactment of the British North America Act (No. 2) 1949, concerning the first exemption contained in that amendment, which reads 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.
I touched upon this matter yesterday. The wording there specifically refers to matters assigned exclusively to the jurisdiction of the provinces. The point. I would ask you to clarify, if you would, is this. Does this mean that in matters of divided jurisdiction between the dominion and the provinces— for example, the field of agriculture, which I used as an illustration yesterday— the dominion parliament could amend its constitutional powers, as they relate to those matters that are the subject of divided jurisdiction as between the dominion and the provinces?
If the answer to that question is yes, would it not be true to say that by making such amendments the dominion could very easily completely alter the position of the provinces and the value of the authority of the provinces in that particular field of jurisdiction?
Mr. ST. LAURENT: Of course, Mr. Manning, I can only express an opinion which would not have any binding effect upon any court that might have to consider the question. I do agree with you that if the answer were yes it would have that effect; but I suggest that the answer cannot be yes, because there is not only the first exception. That first exception was designed to exclude all those classes of matters placed within the exclusive jurisdiction of the provinces, that is to say everything contained in section 92. The second
exception is of everything that would impinge upon the right secured to a legislature or to the government of a province by any constitutional act. My opinion is quite firm that where there is jurisdiction under section 95, that is concurrent jurisdiction, there could not be any amendment that would affect the right the legislature has to concurrent jurisdiction under that section, because of the terms of the second exception in the 1949 No. 2 act.
Mr. MANNING: I confess that as a layman I am not too clear on the significance of some of the legal phraseolegy.
It seems to me quite clear that the other exceptions contained in the provision present no problem, in that they are specific, but this first one, by reason of the fact that the word “exclusive” is there, would suggest to me that any matter which is not exclusively within the authority of the provincial legislature—but which is a divided responsibility between the dominion and provincial legislatures—would come within the category of matters concerning which the dominion parliament is authorized to make amendment.
Mr. ST. LAURENT: I quite agree that would be so if the clause stopped after the first exception but the right of the legislature in matters which are not exclusively placed within its jurisdiction is also protected in the second exception.
Mr. MANNING: If I may follow that a little further perhaps I could clear up the point.
I follow your answer, in so far as it relates to the specific matters enumerated in the remainder of the section, but again to take agriculture as an illustration, there is nothing in the balance of this section that refers to agriculture. The balance of the section refers only to the definite specific matters enumerated therein.
Mr. ST. LAURENT: The balance of the section refers in general terms to all the rights and privileges of the legislatures. Then, in addition, it refers to things which are not rights or privileges of the legislatures of the provinces, but which are rights or privileges of persons.
The general rights with respect to education are matters exclusively within the jurisdiction of the province with the proviso for remedial legislation in the cases enumerated.
These are with respect to rights secured to classes of persons, with respect to existing at the time those rights were crystallized, they are secured to classes of persons.
The second exception in the 1949, number 2 Act, reserves the rights or privileges by this—that is to say the British North America Act—or any other constitutional act secured to the legislature or government of the province.
MR. MANNING: Mr. Chairman, I wish to thank you for the explanation you have give and I take it from what you have said that the words in the amendment, “with respect to rights or privileges by this or any other constitutional act secured to the government of a province”, would prevent the dominion parliament in itself amending a section, of the constitution, dealing with matters in which it has jurisdiction, but where the province also occupies the same field.
Mr. ST. LAURENT: Yes, that is my firm opinion.
Mr. MANNING: Thank you very much, sir.
May I continue with the suggestion I made a moment ago. We have before us the submission of the premier of Manitoba that the conference might well, at
this stage, consider categories or classifications suggested in the 1935 report as a basis from which we could proceed to decide which particular matters within the British North America Act should be assigned to those respective categories.
Mr. CAMPBELL: There are also the suggestions made by Mr. Frost and Mr. Macdonald.
Mr. MANNING: Yes. We have a more detailed suggestion made by Premier Macdonald this morning which follows almost the same pattern, as far as categories are concerned.
Mr. CAMPBELL: Yes, and as well we have Mr. Frost’s submission.
Mr. MANNING: Yes. I would like to say, as representing one province which has urged strongly that we should not divorce the broader question raised by Mr. McNair from the consideration of the method of amending the constitution, that we are quite in agreement with the suggestion that, as an initial step, we should proceed with this matter of the formula for amendment to the constitution without reference to the United Kingdom parliament.
I would like to suggest that we approve the categories referred to by the premier of Manitoba and then take the suggestions of the premiers of Ontario and Nova Scotia as a basis for a discussion of which specific matters should then be assigned to the four categories embodied in the 1935 report.
Hon. T.C. DOUGLAS (Premier of Saskatchewan): And we should deal with the committee’s allocations.
Mr. ST. LAURENT: Would it be the wish of the conference to proceed in that manner?
I think everyone who has spoken so far has recognized that there are four categories. The question arises into which of the categories does such a matter fall. A little earlier I suggested to Mr. Duplessis, as I think everyone will agree, that the most important are the fundamental things which should not be dealt with except by the concurrence of parliament and the legislatures of all of the provinces.
The most helpful thing to do, I suggest, would be to consider if we are agreed upon the list of those fundamental things, Mr. Macdonald’s suggestion indicates some of them, and it may be that we are all agreed that it contains all that should be included.
Should we not attempt, in dealing with the most important aspects first, to see whether we do agree that this or that item should go into the category that requires concurrent action of parliament and of all of the legislatures?
Hon. BYRON I. JOHNSON (Premier of British Columbia): Mr. Prime Minister, may I suggest that we deal with the first proposal contained in Mr. Macdonald’s suggestion this morning.
Mr. ST. LAURENT: The fundamentals are in clause (d).
Mr. CAMPBELL: Yes.
Mr. ST. LAURENT: They are regarded as things of the utmost importance and things that should not be dealt with without the unanimous consent of the eleven legislative bodies.
Mr. DUPLESSIS: To my mind there is a very important paragraph omitted in No. 2, the means to exercise our rights—the financial power to exercise our rights.
Hon. LESLIE M. FROST (Premier of Ontario): I was just about to raise that point.
Mr. Prime Minister, in the memorandum which we submitted this morning, in clause 1(d) we have the legislative jurisdiction of the provincial legislatures Now I know that is a broad matter and actually we do include all of section 92. Our reasons for so doing are that when you look down section 92, taking sub~ section 1, there is the matter of amendment of the provincial constitution from time to time. It seems to me that is a definitely provincial matter. The second item is direct taxation in the province, For some of us that verges on being fundamental. Then No. 3 refers to the borrowing of money on the sole credit of the province. No. 4 is the establishment and tenure of provincial officers No. 5 concerns the sale of public lands belonging to the province. I would not say that No. 6 is so very fundamental; perhaps we would be glad to hand over our prisons to someone else.
Mr. DUPLESSIS: There is not only the matter of prisons but there are the reformatory institutions which are very important to us.
Mr. FROST: I will say that No. 6 might not be so very fundamental. No. 7 has to do with the establishment of hospitals, asylums and charities.
Mr. SMALLWOOD: Down at this end of the table we feel that we have as much right to the pleasure of hearing Premier Frost and Premier Duplessis as you have at that end of the table. We cannot hear a word.
Mr. FROST: I apologize to Mr. Smallwood.
I was dealing with the various subsections of section 92 and giving reasons why, in our memorandum, we suggested this morning that those things should be counted as being fundamental to the provinces. No. 8 has to do with municipal institutions in the province; No. 9 covers saloons, taverns, auctioneering and other methods of raising revenue for the province; No. 10 has to do with certain local works and undertakings other than two exceptions. As we go on, No. 11 covers the incorporation of companies with provincial objects; No. 12 deals with the solemnization of marriage; No. 13, which I know is a big subject, deals with property and civil rights; No. 14 deals with the administration of justice; and No. 15 deals with the imposition of fines and penalties incidental to the enforcement of law. Sixteen generally on matters of local or private nature; it seems to me that these things are really pretty fundamental to the provinces. We have felt that they should be included as fundamental. Remember, these things can always be dealt with by agreement. At the present time eight of the ten provinces have tax agreements with the dominion. They can do that. Two of the provinces have not. I do not think that the conference would suggest that by a constitutional amendment certain of the provinces that perhaps consider these things fundamental should be forced to accept a change which would alter their position very radically. That is the purpose of including all of 92 in the fundamental section. They are fundamental but you can always agree. The provinces themselves can agree with the dominion to do what they want to do with their powers. If there is any doubt one way or the other about the matter of delegation perhaps we should clarify it.
Mr. MACDONALD: Leave out Nos. 12, 13 and 14 but put the whole 92 in?
Mr. FROST: That is right.
Mr. CAMPBELL: Is not the proper thing for us to do here at this time to agree on just the principles rather than immediately attempt to designate all the various sections that would come under the various headings? I think it would be better to deal first with the principles broadly. Then it would be the work of a continuing committee to recommend where the various sections should be fitted in. If we can agree on the principle cannot some committee perform this work better? I have the highest respect for the ability and reliability of the
Premier of Nova Scotia, but it would hardly be expected that in the limited time that he has had to give attention to this matter he could have arranged all these subjects in their proper category. If we agree on the broad principles—and I am sure that is the suggestion the Premier of Alberta had in his mind—we shall be making great progress at this time.
Mr. DUPLESSIS: The Prime Minister asked us to mention some fundamentals and that is what we are doing.
Mr. FROST: Mr. Prime Minister, this looks to be a very formidable task but actually it is not when you get down to dealing with the actual sections. Suppose the conference was agreeable to all of section 92 being treated as fundamental. That would pretty well clean up point No. 1 of the little memo that we have this morning and it would also clean up a number of points in Mr. Macdonald’s memorandum.
Mr. CAMPBELL: That would be all right with us, always on the under- standing, Mr. Prime Minister, that the deliberations of today would not be final.
Mr. FROST: That is right.
Mr. CAMPBELL: We cannot be expected to dot every “i” and cross every “t” at this session.
Mr. SMALLWOOD: What do you mean by “fundamental”?
Mr. MACDONALD: All provinces would agree.
Mr. FROST: Yes.
Mr. MANNING: The distinction between “C” and “D” in Mr. Macdonald’s memo, as I understand it, is that “C” deals with matters that might be classified as very important, and “D” with matters which can be classified as fundamental. I would suggest that if we were to move all of section 92 into “D” then the designation of “fundamental” loses its true meaning. These things are very important, but I think it would be going rather a long way to suggest that they are in the same category as matters that, generally speaking, we would properly regard as fundamental and as coming within category “D”. If we were to take that position the Dominion Government undoubtedly would be quite justified in taking the position that all of 91 should come in the same category. I think it is getting away from the meaning of fundamental.
I would agree with the point raised by the Premier of Quebec that sub- section (2) should quite properly be added to Sections 12, 13 and 14, as coming within the category of fundamental.
Mr. FROST: What I am concerned about is this. Take No. 5, Management and Sale of Public Lands. Management and Sale of Public Lands includes Forests, Mines and Oil. Perhaps my friend might consider oil fundamental. He has some things we would like to get.
Mr. MANNING: I would certainly agree it is very important.
Mr. FROST: There you are.
Mr. DOUGLAS: I think we have a clear-cut distinction between what is important to the economic and social life of a province and what is fundamental in terms of minority and civil rights. Surely, if we are to have a flexible constitution the part we are talking about now is going to be most inflexible and completely rigid. Surely in that limited field what we are trying to do is to safeguard certain minority rights and certain fundamental freedoms. It seems
to me if we cover such things as the use of the French and English languages and the matter of education which has very widespread ramifications, and the matter mentioned here, namely, the solemnization of marriage, and the administration of justice, that is about as far as we can go. When you get into the matter of including all of Section 92 even before leaving out subsection 13 which I shall mention in a minute, there are things we ought to look ahead to and see the possibility of. For instance, Subsection 3 deals with the borrowing of money on the sole credit of the provinces. In the thirties there was a considerable difficulty about borrowing money. It is conceivable that you might meet a situation where the provinces might want to delegate to the federal government certain arrangements for borrowing—
Mr. FROST: That could be done by agreement.
Mr. DOUGLAS: Only by unanimous consent.
Mr. FROST: No.
Mr. DOUGLAS: If you put all of Section 92 in that category it could only be amended by unanimous consent. That would mean one province, representing say one per cent of the population of Canada, or ten per cent of the population of Canada—
Mr. DUPLESSIS: No.
Mr. FROST: No. The point is you could not take away the right to borrow on the credit of the province from the province unless there was unanimous agreement. That would not prevent one province from making an arrangement with the federal government to borrow money. They could make their own separate arrangement; but you could not take the right away from the provinces across the board unless there was unanimous agreement. In other words, before you took away any of these rights from the provinces there would have to be agreement with the provinces.
Mr. DOUGLAS: I submit, Mr. Chairman, that these things which are basic to a provincial economy certainly cannot be classified as fundamental in terms of requiring; unanimous consent. There are possibilities of enlarging provincial powers at the expense of the federal government, or enlarging federal powers at the expense of the provincial governments. It is quite conceivable that the majority of the provinces or two-thirds of them or whatever is agreed upon in the amending procedure, might want to transfer powers on a general scale, not merely by delegation, across Canada in order to bring about far-reaching social security measures which might be desirable. If you put all of 92 into the clause then you must have unanimous consent. It seems to me you are going to put the Canadian people in a straitjacket if you do that.
I especially want to mention again, as I did this morning, the question of 13 under 92, namely, property and civil rights. Certainly if that comes under the clause requiring unanimous consent it would postpone for many a day the making of many of the changes that are now being recognized as socially desirable, and which are now in effect in other parts of the world, such as contributory and social security programs, national labour codes, and things of that sort.
Mr. MACDONALD: Property and civil rights are pretty fundamental provincial powers in the province of Quebec, for instance.
Mr. DOUGLAS: Yes. I grant that. In the west certain powers with reference to property and civil rights are also fundamental; but the interpretation of property and civil rights is now becoming so broad as to affect such things even
as contributory unemployment insurance. If this amendment were made giving the federal government that power it would affect social security contributory schemes and things of that sort. I notice that in 1935 the committee made a distinction between the two, giving to the provinces some guarantee. That part which dealt purely with the Quebec situation would stay with the province, and the other would be in the more flexible field. They outlined that on page 6 of the memo of the 1935 committee. It will be found on the second half of the page and reads: “Provided that if the amendment is in relation to matters coming within the classes of subjects enumerated in clauses (13) and (16) of section 92, or either of them, the legislature of any province, the legislative assembly of which has not approved or it is not deemed to have approved such amendment—” and so on.
Mr. MACDONALD: What is the beginning of the paragraph?
Mr. DOUGLAS: “Provided that.”
Mr. CAMPBELL: I suggest that the difficulty we are now having in resolving our difference of opinion or approach to these minor matters, exemplifies how impossible a procedure it would be to try to fit all these sections into their proper places in anything like the time that is available to us. Once again I come back to the original suggestion, that if we could deal with principles only, leaving a committee to submit to us the detailed sections to he allocated to specific positions, we would make more progress. Probably after having looked over the submissions by Premier Frost and Premier Macdonald, both of whom have evidently given a good deal of thought to this matter, it might still be better to try to assert as a principle something quite close to that which was outlined by the 1935 committee.
Let us look at what that committee outlined. In respect of matters concerning the central government only, amendments might be made by passing an act of parliament. It would be for the committee to consider and report to the membership of this conference what those matters are. Undoubtedly, there will be some difference of opinion as to where they should be allocated, but if we could agree on the principle and tell someone to ascertain which sections should go into that class, I think it would be useful.
The second submission is, that in respect of matters concerning the central government and one or more but not all the provinces, the amendment might be made by an act of parliament and the assent of the legislative assemblies of each of the provinces affected. There again apparently there are not so many in that category, but a committee composed of the members of this conference itself or the delegates from the various provinces, could I think (give us an authoritative indication of the sections which belong in that class. I do not think any of us would like to take the responsibility of saying here and now that we could cover all the things that would fall in that class.
The next submission is that in respect of a large number of matters concerning the central authority and all the provinces, the amendment might be made by an act of parliament and the assent of the legislative assemblies in two-thirds of the provinces representing at least 55 per cent of the population of Canada. This, of course, is a large field and the one which we are primarily discussing today. There are some who would perhaps feel that the two-thirds should be altered now, and it should be specifically stated by number since we have one more extremely valuable province following the date of that report. Perhaps the population percentage may not meet with general approval, but at least a principle could be enunciated that there be a certain number of entrenched classes which could not be dealt with except by act of parliament and the assent of all the legislative assemblies of the provinces.
From my observation of what has happened here, we are close to agreement on most of these principles. If it were possible to say so now, we could prob- ably get a committee to work and, as a result of that, have something much more concrete to lay before the conference in a short time.
Mr. DUPLESSIS: Some time ago it seems to me I saw newspaper reports to the effect that the federal authorities had created a committee of experts to study this problem and make suggestions. Perhaps this is mere conjecture on the part of the newspapers, but if it is true could we see those reports?
Mr. ST. LAURENT: I believe, Mr. Duplessis, that the newspapers were speculating. I have attended all the meetings of our committee, and I do not remember having my attention called to those reports. If the reports are as you have stated them to be, and I have no doubt they were, they were no doubt speculation and not founded on what has taken place in the committee dealing with this matter.
Mr. DOUGLAS: I agree with the idea of sending the matter to a committee eventually, because whatever decisions are made here will have to be put in legal terminology. I do not believe, however, that we can get away from what we are doing now. It is not sufficient to agree in principle that there ought to be four categories, whether they labelled “important”, “very important” or “most important” and “vital”. The pith and substance of the matter is what to put in those categories. It seems to me that those are details that have to be settled, and they should be settled in a public forum. What goes into those categories is of tremendous interest to the people of Canada.
No doubt some cases are borderline cases, and those will have to be referred to the committee. Certain provinces may wish to reserve judgment on some of the borderline cases, but it seems to me that the main issue is what things will fall into the different categories. It seems to me that a discussion of that subject has to be continued for some time before the matter can be referred to a committee. What is more, I believe we will have to go over the whole series of proposals made by this 1935 committee, bu Mr. Macdonald and by Mr. Frost in the memoranda they submitted this morning. One cannot be final about this.
There has been talk about entrenched classes. A moment ago Mr. Frost said the matter of borrowing might be a subject on which the province could delegate powers to the federal government or vice versa. It seems to me that is based on the assumption we are agreed on the delegation of power, then we are able to take a different position when we come to talk about these different categories, because as we already know from the result of one or two court cases recently, the power to delegate powers and the power to receive delegated jurisdiction are two controversial questions.
I believe we ought to go over the various categories, as we are doing now, and discuss what ought to go into the entrenched classes, and matters which ought to go into the field of joint concern. It seems to me that is the way to do it, and the only way to do it. We cannot try to settle every detail, but we ought to agree on general principles, and then send the matter to a committee if we believe there is sufficient agreement to warrant doing so.
Mr. MANNING: I agree with much of what Mr Douglas has said, with this exception: It seems to me that the question of just what should be placed in each of these categories is so important and so involved that none of us, as representatives of governments, are in a position at this stage to be definite as to just what the allocation should be. I would not favour merely setting up it committee and having that committee analyze the act and recommend what the divisions should be. I feel rather that we would make better progress if the
conference set up such a committee as has been proposed, and let each government, dominion and provincial, make a thorough analysis of this whole matter. A submission could be prepared setting out clearly the matters allocated to these four categories, according to the way that particular government thinks is desirable. Then, that should be submitted to the committee. The committee would have the considered judgement and viewpoint of the dominion and all ten provincial governments.
If that were done, the committee might find that there was no disagreement on many of these sections. The disagreement would probably resolve itself into a limited number of points concerning the category in which certain subjects should be placed. At a future conference our discussions could then be concentrated on those particular matters on which there was disagreement as to the category in which they should be placed. Speaking for Alberta, I certainly would not favour merely turning the matter over to a committee. As a province, we want to make a thorough analysis of the whole B.N.A. Act, the various divisions under the act, and carefully consider the allocation of these matters as between those four categories in a manner that would be in the best interests of the country. I would suggest that should be done by all the governments concerned, their findings submitted to a committee for co-ordination, and then the differences discussed at a meeting of the conference.
Mr. CAMPBELL: I hope the Premier of Alberta did not think my suggestion entailed turning this matter over to a committee which would have authority to act without referring the matter back to this conference. I would, of course, have assumed that the committee would be composed of representatives of each of the provincial governments, as well as the federal government. I approve of the suggestion of the Premier of Alberta that the governments would maintain the closest liaison with the representative on the committee, and do exactly what he has suggested. This conference, of course, would have the final authority, subject once again to parliament and the legislatures.
Mr. FROST: I believe, Mr. Prime Minister, that there is merit in Mr. Campbell’s suggestion and the suggestions of the two other gentlemen who have spoken. Perhaps if we were to agree upon the four or five principles, whatever the number happens to be, but I believe four have been mentioned in the memoranda filed, that would be some progress. We might add to that an additional class relating to the delegation of powers, following Mr. Macdonald’s proposal. If, without getting into detail, we can determine what procedure would be followed in the matter of what we call, say, fundamentals, and the other classes here, perhaps afterwards we could see what things fall into those various classes. I believe that might be a method of dealing with the problem.
Mr. MCNAIR: May I say a word or two on this subject? I note that the discussion centres almost entirely around the plan to amend the B.N.A. Acts, 1867 to date. I should like to point out that there are other acts for which we should also provide an amending procedure. I think that should not be over- looked. I have in mind the 1915 act which was not an amendment to the British North America Act, although it contained provisions vitally affecting things that are in the British North America Act.
The other point I wish to raise at this time has to do with the necessary relationship between sections 91 and 92. As I recall my law, it is clear that the courts have decided that the entire legislative field in Canada has been divided, under those two sections, between the parliament of Canada and the legislatures of the provinces.
I am not so much concerned at the moment with any amendments affecting what is in section 92. I have in mind that any amendments to section 92 would
be very limited; perhaps there would be none at all. The important thing is amendments to section 91, because every amendment to section 91 affects the content of section 92.
I need not argue that. It is not enough to say that the unanimous consent of the provinces will be required before an amendment can be made to section 92 affecting property and civil rights, because by amending section 91 property and civil rights may be very materially affected. So I think section 91 is the important section; and I throw that out as a suggestion for consideration.
I just want to say that, as has been stated, there is a wide field of operation on the basis of agreement between the federal authority and the provincial authorities, and we have seen that operate rather effectively during recent years.
Next, and last, I want to say that New Brunswick is vitally interested in the possibility of including in the British North America Act or in the constitution the right of the different legislative authorities to delegate power. You may recall that this was a rather important proposal advanced in the program which was under study during the last dominion-provincial conference of 1945. I think it has a great deal of merit to it, and I am entirely in accord with the suggestion that has been made that consideration be given to the possible inclusion in the constitution of the right to delegate power as between the different government bodies.
That is all I have to say just now.
Mr. MACDONALD: Then, Mr. Prime Minister, is there general agreement that some such division as suggested in my memorandum should be attempted?
Mr. ST. LAURENT: It was my understanding that it seemed to be the opinion of all that there were four categories. Then your memorandum suggested that there might be a fifth, because I take it that if an amending procedure is agreed to it should be just as carefully safeguarded as any other fundamental clause, and that it might very well be a part of the so-called entrenched provisions which could not be dealt with except by the joint action of parliament and of the provinces.
But I understood it was suggested that there might be a fifth category, which would include new matters. It occurred to me that probably the legal effect of that was that it could provide for taking out of the residual clause something that would be only in that residual clause, and making it a specific power of either the legislatures or of parliament. Because I think that, theoretically at least the pronouncements have been as stated by Mr. McNair, that the whole field be included in 91 and 92, though there may be parts that are only in the residual portion of section 91.
It seemed to be universally admitted that there would have to be these four categories and possibly also the fifth, or the fifth might be there as part of one of the others if it was not there as a separate category. It might be easier to get agreement on the basis that there would be five than if there were to be only the four and there was an attempt to have everything that might be covered by the broad interpretation of property and civil rights as an entrenched clause.
If that were so it would mean the situation would remain as in my opinion it is at the present time. In spite of what I have heard from the premier of New Brunswick and the other premiers, I have always felt that parliament could not take from the legislatures without their participation, something over which the act of 1867 had given them jurisdiction.
Mr. MACDONALD: Are you referring to section 92?
Mr. ST. LAURENT: Yes, under section 92; that to take from a province anything that has been placed under its jurisdiction is a matter over which the parliament of Canada has no jurisdiction.
That, of course, creates a very rigid situation. But it is a matter of equal concern to the representatives of the provincial governments and the representatives of the federal government, and I could not suggest that we should take away any jurisdiction without the consent of all those who have it. But if all those who have it agreed that they should allow it to be taken from them all if a certain number of them are willing, that is something which is within their jurisdiction.
Mr. DUPLESSIS: Provided it did not affect the other provinces.
Mr. ST. LAURENT: If the ten provinces were to agree that whatever seven decided would bind the ten, that would be their responsibility.
Mr. DUPLESSIS: We would not agree to that.
Mr. ST. LAURENT: I am not suggesting you would, sir. I am not suggesting that we have the right to ask that this be done. But otherwise it does create a very rigid situation, which possibly could be eased by having a specific subject dealt with possibly without the unanimous consent of the ten provinces. For instance, there was unemployment insurance, which was agreed to by the then nine existing provinces and which operates in spite of the broad construction sometimes placed upon property and civil rights, but which would not operate in spite of the broad construction placed upon property and civil rights if it had not been made an enumerated power of section 91. It may be that in future certain similar things can be done.
Mr. DUPLESSIS: As far as that goes it was never approved by the legislature. I am not discussing the point, but as a statement of fact it was never approved by the legislature of Quebec.
Mr. ST. LAURENT: No; it was approved by the governments of the various provinces, not by the legislatures. There are certain things which by the constitution have been placed under the jurisdiction of the legislatures and which they have the right to retain. Whether it is essential that they should individually retain all those rights is a question which they have to decide.
Now, with respect to section 92, some subsections could very possibly go into the category of things which require the consent of a province or of several provinces, which would effect only those that had consented. There are certain things which need not be uniform throughout the whole country but that it might be possible to have in this category, which provides that they be dealt with by parliament and by the legislature of the one or more provinces to be affected, and which would not operate outside the provinces which had participated in making whatever change had been accomplished.
That would probably affect some of these subsections of section 92. There are others which are of such a nature that probably the situation with respect to them should be the same throughout the whole country. I appreciate the suggestions made by the Premier of Manitoba and the Premier of Alberta; but there are certain fundamentals in connection with which the governments and legislatures of the provinces will have to take the responsibility of making a decision, and there cannot be any decision made for them by anyone but themselves. A committee might make suggestions; but a committee could not get very far unless it had some indication of what those who are going to have the ultimate responsibility want to have done.
Mr. DUPLESSIS: Then are there any definite proposals?
Mr. ST. LAURENT: No. I stated in opening that the federal government felt it was obvious that it would have a role to play in the amending procedure, and that it felt there should be appropriate participation by the provincial legislatures; and that it was desirous of having the responsible representatives indicate
what they felt would be appropriate participation. I think it might be regarded at least in some quarters as an impertinence for us to suggest that the provincial legislatures should be content with a certain degree of participation. I think it is their responsibility, and that in some quarters it might be regarded as an impertinence on our part to say that they should be prepared to agree to such or such a degree of participation.
Mr. DUPLESSIS: If I understand correctly this is a gathering in which we have representatives from the central authority and the provincial authorities, and the object of this meeting is to exchange views.
As far as Quebec is concerned, as I said before we are open minded, except that on fundamentals our opinion is firmly entrenched, for many reasons. But it seems to me that in a gathering of this importance and of this kind, everyone should feel free to offer suggestions without trying to impose anything on anyone else. I do not know; I may be mistaken, but the federal authorities may have some suggestions to offer. If I am not wrong that is the objective of this gathering. I do not think we are playing hide and seek. We are net, as far as Quebec is concerned, and we would be very much interested in having the views or suggestions of the federal authorities, because otherwise people might be inclined to think that the federal authorities had no opinions, which would be most unfair to such distinguished gentlemen as the Chairman and the Minister of Justice. As far as Quebec is concerned we would be very much interested in having friendly suggestions and opinions from the federal authorities, because I know the Minister of Justice would be the last one to play hide and seek.
Mr. MACDONALD: Why could we not put all of section 92, with the exception of 12, 13 and 14, in (d) for the moment, at any rate?
Mr. MCNAIR: I do not know that I made quite clear what I was endeavouring to say. I do not think that section 92 is so important. I do not think we would find difficulty in the future if we did put section 92 in the most favoured or sheltered clause.
Mr. MACDONALD: All of it?
Mr. MCNAIR: All of it. I think the important clause is number 91. Important changes in legislative jurisdiction could be brought about by amendment of section 91. The Prime Minister, a few years ago, instituted an amendment which vitally affected property and civil rights, that was the matter of unemployment insurance. I do not think that all of the provinces, even through their governments, greed to that amendment but it was sought and obtained. The amendment was made to section 91 by adding another clause which materially affected the legislative authority of the province under section 92.
I think that the important thing is to consider a plan for amending section 91.
Mr. MACDONALD: Put both of them in the entrenched clauses.
Mr. MCNAIR: If we put them both in that most sheltered provision of the Act we may find that we have put ourselves in a straight-jacket. We must consider that.
Mr. MACDONALD: No.
Mr. MCNAIR: We must consider it. It has been stated here that we want to get the constitution in such a condition or so placed that there will be some elasticity and so that amendments, which time may prove desirable, can be brought about. There should be some flexibility in it. We want to keep that
feature in mind, I think, when considering these matters now under discussion— particularly the classifications where we would place particular sections as far as amendment is concerned.
I do not know whether we can get much farther today. I think we must reflect on this important problem; there will have to be consideration given as to how amendment of section 91 and section 92 can be brought about. I think, if we can get over that phase, we can proceed relatively quickly.
Mr. MACDONALD: Amendment to section 91 is to be by a majority of the House of Commons of Canada and of seven legislatures.
Mr. MCNAIR: That is inconsistent with what you suggested with respect to 92.
Mr. MACDONALD: I do not think that there is any use of talking about taking property and civil rights out of section 92, in view of the attitude of certain provinces and the differences which exist in certain of their laws. Quebec, for instance, would never agree to that.
Mr. MCNAIR: I have failed to make my point clear. I have never, for a moment, and I would not, suggest that property and civil rights could be taken out of section 92. I say that the subject matter therein could be very vitally affected by the inclusion of a new clause in section 91. According to Mr. Macdonald’s suggestion the procedure should provide, with the consent of a number of provinces—not unanimous consent—that new provisions could be put in section 91 which could affect section 92.
Mr. DUPLESSIS: If you are going to amend section 92 in such a way as to have some effect on section 91, then you must consider both of them. It is important and essential that both be considered.
Mr. MCNAIR: I do not think it is so important, with all respect, having in mind the language of section 91. I need not read it all but I shall quote a portion of the section:
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
Inclusion of a clause under section 91 directly affects section 92 but I do not think that the reverse would apply.
Mr. DOUGLAS: Mr. Chairman, could we make me progress by selecting those items that we are agreed should go into the entrenched clauses, requiring unanimous consent for amendment. Let leave the sections upon which we cannot agree for the moment and move on to the next category. There seems to be general agreement on the questions of language, education, solemnization of marriage, and administration of justice.
I certainly do not think that we can agree to putting all of section 92 in the entrenched clauses. I think that would impose a rigidity upon the constitution that would be awkward. That is particularly true if, as I say, we put all of subsection 13 in. It might, however, be possible to divide the section as suggested by the committee in 1935.
Could we dispose of those upon which we are agreed and then, when we have done that we can see what we have left over. We might then hammer out the different categories which we think those matters should fall into.
Mr. ST. LAURENT: I have heard no one suggest objection to having included in the fundamental provisions the matters of education, languages solemnization of marriage, and the administration of justice. There might perhaps be considered some qualifications as to the life tenure of office of judges. It might be that some provinces would desire an age limit similar to the one which affects judges of the Supreme and Exchequer courts. There may be other provinces which prefer to retain the clause in the constitution securing the life tenure arrangement. I do not think that is something which would necessarily have to be uniform throughout the whole country. There has been for a number of years, a limitation—an age limit—in the Supreme and Exchequer courts and there have certainly been no repercussions elsewhere. Some provinces may say that they wish to have a similar age limit for the judges of their superior courts. The matter is something that I do not think would have to be uniform. I am not saying that it should not be uniform but I am saying that it is one qualification of the administration of justice that might be worthy of study.
My impression, from what I have heard, is that everyone agreed that the four matters which I mention should be in the entrenched position.
Is there anything else that should be in that category?
Mr. DOUGLAS: We suggested, in our presentation yesterday, that consideration might be given for inclusion of a maximum term for parliament and the calling of the session each year. While that does not directly affect the provinces, it does affect the people of Canada. The matter has been excluded by the federal government in the 1949 amendment.
Mr. PATTERSON: That provision is covered in the Nova Scotia submission.
Mr. DOUGLAS: Is representation by population covered?
Mr. PATTERSON: Yes.
Mr. JOHNSON: Item No. 50 relates to the term of parliament.
Mr. DOUGLAS: We wondered if there was a possibility of providing amongst the entrenched clauses, some basis for representation by population. Unless some such basis were provided, it would be possible by redistribution to leave a province with a very small representation. I think, at present, Prince Edward Island has a guarantee of four members.
We had a feeling that probably some basis of representation might be put in as an entrenched clause so that it would not be possible, by enlarging the number of persons in a constituency in one province as against another province, to have one province more highly represented than another.
Mr. SMALLWOOD: There is one thing, Mr. Prime Minister, that might have been said in addition to the point touched on by Premier Douglas. Representation of a province in the House of Commons may not fall in number below the number of senators.
Mr. PATTERSON: That is provided for now.
Mr. SMALLWOOD: As an entrenched clause?
Mr. PATTERSON: It is in clause (c) and amendment would take a majority of seven provinces.
Mr. SMALLWOOD: In provinces such as Prince Edward Island, Newfoundland,—even Nova Scotia but certainly Newfoundland—it might be found that the population was drifting toward Upper Canada because of the greater population and developed resources in that part of Canada. We might find ourselves left with, for instance, half of our present population and representation, therefore, in the House of Commons would fall away to something much less than
it is now if the provision that the number of representatives might not fall below the number of senators were changed or could be changed, even without our own consent, by seven out of the ten provinces. I would like to see such a change possible only by a unanimous decision.
Mr. ST. LAURENT: Would it be fair to take it, as a result of our deliberations, that there is no objection raised to entrenching: (1) educational rights; (2) language rights; (3) solemnization of marriage; (4) administration of justice, with the possibility of considering special arrangements for various provinces if they so desire; (5) a provision that the representation of the people of a province in the House of Commons would not fall below its representation in the Senate.
Mr. DUPLESSIS: Oh I do not know about that. We have a guarantee of sixty-five representatives so why should we accept twenty-four?
Mr. ST. LAURENT: There may then have to be further consideration given to what would be a proper entrenched provision for representation in the House of Commons and representation in the Senate. Without being specific as to what the formula would be, it would be a formula designed to protect representation of the people of each province in both the Senate and the House of Commons on a basis that it is still a subject for further consideration. That is perhaps as far as the provisions of the subsections of 92 are not being considered. I understood Mr. Douglas to ask if we would try and ascertain how far we had reached up to the present time.
Mr. MACDONALD: Would you mind running them off again? Section 92 (12), Solemnization of Marriage, and (14), Administration of Justice; 93, Education; 133, Language; 20 and 50, dealing with a parliament once a year and a five-year term.
Mr. ST. LAURENT: Yes. There I think everyone would be agreed that that would be a proper provision with perhaps a proviso for a certain form of escape clause in case of emergency.
Mr. SMALLWOOD: Mr. Prime Minister, Mr. McNair mentioned education. Education in Newfoundland does not appear at all in the British North America Act. It appears in the Act (No.1) of 1949. This present discussion does not touch No. 1 of 1949 apparently. Where would that leave us with regard to our clause in 1 of 1949 on education or on anything else?
Mr. ST. LAURENT: My understanding is that it would be educational rights whether they be in 93 of the original act or whether they be in the Manitoba Act, the Saskatchewan Act, the Alberta Act, or the Newfoundland Act. It would be education as it is now protected by any of these constitutional statutes. Do I take it that that is the general understanding?
Mr. DUPLESSIS: There is something more besides that, namely, the right that we have already under Section 92.
Mr. ST. LAURENT: I am not saying there is nothing more; I am just trying to summarize what up to the present time we have found ourselves in agreement upon.
Mr. DOUGLAS: On the question of representation by population which is the new section 51 passed in 1946, if that were entrenched it would cover the question I have in mind.
Mr. ST. LAURENT: My understanding was that there would be some entrenched provision for proper representation, but that there might have to be some consideration given as to what the right formula would be.
Mr. SMALLWOOD Mr. Prime Minister, a moment ago you said something about an escape clause in connection with education but you did not pursue it.
Mr. ST. LAURENT: No, it was merely in connection with the requirement that there be a general election at least once every five years.
Mr. SMALLWOOD: What I would like to ask in connection with our clause on education is this. If it becomes, along with other clauses concerning other provinces in the matter of education, entrenched would there be any way in which under that scheme any given province desiring at any time in the future seine change in that clause to make it by mutual consent between parliament and the legislature of the province concerned? Or is it entrenched in perpetuity, or does it mean the consent of all the legislatures or seven out of ten of them?
Mr. JOHNSON: Entrenched is all.
Mr. SMALLWOOD: Therefore if in half a century from new or a quarter of a century from now Newfoundland wished to have some change—it may be only a word or two—in its educational clause, to get that it would have to get the consent of the other nine provinces?
Mr. JOHNSON: No.
Mr. ST. LAURENT: I would not like to venture an answer without looking at the terms of union. It is my recollection that that matter was expressly provided for in the terms of union. I would not like to venture an answer without looking very closely at those terms of union; but it is my understanding that the present position, whatever it may be, with respect to education would be an entrenched provision without any modification as to what now is possible to be achieved in the way of change. I think that Section 92 is a matter for decision by the representatives of the provincial legislature. My own personal views are they may not be correct; they may not be shared by very many—that that which is within their jurisdiction has to be dealt with by them.
Mr. CAMPBELL: Before we adjourn tonight can we not get an expression of opinion with regard to the proposal that the Premier of British Columbia, the Premier of Alberta, myself and, with reservations, the Premier of Saskatchewan and I believe some others, have supported that we might have a declaration of broad general principles on which we could start to work toward fitting in the various sections? So far as our province is concerned we would not consider it advisable to attempt to carry on as we are now and settle on these various sections without further conferences among ourselves. If that is the method that is decided upon by this conference then we will act, with all possible expedition to present our suggestion as to where these various sections should go. But I once again make the proposal that the more beneficial way to proceed would be to settle first on the broad principles, and then let us fit into these broad principles the particular sections that seem to belong in certain categories.
Mr. FROST: Following up Mr. Campbell’s suggestion may I suggest that at the present time we have four principles set out in different wording, namely, the wording of Mr. Campbell which refers I think to the 1935 conference. Then there is the wording that Mr. Macdonald submitted this morning, and there is the wording which I used this morning. Let us go away and see if we cannot
devise a wording that is satisfactory to ourselves, embodying these four principles, and adding to it the delegation provision; that s the fifth, and then see if tomorrow we cannot agree on the four or five provisions.
Mr. CAMPBELL: I think that is a good suggestion.
Mr. ST. LAURENT: Is it generally acceptable that there might be a delegation provision that would of course optional and could be exercised only by each authority for itself, or that something that some hon. gentlemen would prefer to think over over in it. As I understand it a delegation provision would be merely a provision whereby by agreement between the federal authority and the province there could be delegation and acceptance of delegation for a time arranged between them but would have legal effect while it was in force.
Mr. MACDONALD: A statute?
Mr. ST. LAURENT: By statute, yes, but it would have legal effect while it remained in force.
Mr. DUPLESSIS: Provided that it did not affect the other provinces?
Mr. ST. LAURENT: No.
Mr. DUPLESSIS: That did not want the delegation?
Mr. MACDONALD: That is right.
Mr. ST. LAURENT: It would have to be something that had effect only between those whose legislative bodies agreed to it.
Mr. JOHNSON: May I suggest that an appropriate committee be set up, to do the thing that Mr. Frost suggests should be done. Mr. Frost refers to “we”. Who are we?
Mr. FROST: Let us come back in the morning.
Mr. JOHNSON: I think it should be put in this way. When it is brought in tomorrow morning it should be in the form of an agenda that we can discuss. If there are to be three or four suggestions brought in and we start discussing them from different angles I am afraid we will not get anywhere. I made a suggestion this morning. It seems to me the proper thing to do would be to set up a committee and know who the committee is and who is to bring in the proposal so that we can deal with it and with it only when we start tomorrow morning. I make that suggestion for what it is worth.
Mr. DOUGLAS: I would certainly support that suggestion. If we start in tomorrow morning to discuss whether we shall take four or five categories we shall waste a considerable amount of time. If there was a small committee set up to deal with these matters that we have already dealt with, one of which is the entrenched clause, it could go on and enumerate other categories and decide on what provision we are all agreed on and so forth. If it is in order I would like to suggest that a committee be composed of Premier Frost, Premier Duplessis and Premier Macdonald to outline these categories and to put them in some terminology acceptable to them and put them before the conference tomorrow morning.
Mr. FROST: I was going to suggest that the committee consist of Mr. Macdonald.
Mr. DUPLESSIS: It seems to me that the suggestion is most unfair to Ottawa because no representative of Ottawa will be on the committee.
Mr. MACDONALD: There should be a federal member.
Mr. ST. LAURENT: If there is to be a committee it seems to me there should be a representative of each one of the governments on that committee. The committee might, consist of the Attorney General of Canada and the Attorneys General of the provinces, or whoever each province would designate to act for the Attorney General of the province.
Mr. MACDONALD: Agreed.
The CHAIRMAN: Would it be convenient, for that committee to meet in Room 16 at ten o’clock? The committee would consist of the Minister of Justice and the Attorneys General of the provinces or whoever would be designated to act for each province? Could they meet in Room 16 at ten o’clock this morning?
Mr. MACDONALD: Are we meeting at eleven?
Mr. ST. LAURENT: We would like to meet at eleven if the committee felt that one hour would be sufficient for it to prepare and bring in the report.
Mr. MACDONALD: Make it twelve.
Mr. CAMPBELL: Do you think one hour is sufficient for a committee com- posed of eleven lawyers?
Mr. Frost: Make it 9.30.
Mr. ST. LAURENT: The Premier of Ontario suggests that we ask the committee to meet at 9.30 instead of 10, and that we meet eleven. As the Premier of Ontario and I are not members of the committee, we raise no objection. Do we adjourn until 11 o’clock tomorrow morning?
At 5.30 the conference adjourned.