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    1. Mr. Minister, in view of the many representations by distinguished groups, Civil Liberties Association, Mr. Tarnopolsky, Mr. Fairweather and others, in view of their representation, what I found at least to be persuasive representations, that there were certain rights which should never be derogated from, who in fact did you listen to in arriving at your proposed Clause I, which witnesses did you listen to, which witnesses made a recommendation in line with your proposed Clause I that there should be no derogable rights? Mr. Kaplan: Well, I think the government was influenced even by the witnesses with which it disagreed, and we have tried to reflect in the version the cutting edge that we want in the Charter of Rights, a Charter of Rights and Freedoms that will make a real difference to the Canadian people, and I would not want to indicate that any of the witnesses were ignored because that is not the case. Mr. Robinson: Well, there were certainly a few that were not listened to. Thank you.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 109-110.

    2. I wonder, though, why it was thought that the appropriate location for a limitations clause was right at the very beginning of the proposed Charter of Fundamental Rights and Freedoms, and whether you would be prepared to look at the possibility of moving the limitations clause in whatever form we may finally end up with—and naturally, there may be complications, because if there is a preamble in it it would be inappropriate to do this; but if there is no preamble, on the proposed Clause 1, moving the limitations clause to the end of the proposed Charter? In other words, I believe it would be important symbolically, if nothing else, to start out with the list of fundamental freedoms, the mobility rights and a positive statement of what the rights are, and then at the conclusion of the proposed Charter to indicate what limitations might exist on those [Page 26] rights, rather than starting out with limitations and then a statement of rights. Mr. Kaplan: Well, before directly answering the question, I would like to understand that you are suggesting that the difference is symbolic, and that it does not make any real difference. Mr. Robinson: Certainly, I would not argue that there was any difference in substance in the way this will be interpreted, and I am sure your advisers could confirm that. Mr. Kaplan: I do not think there any real difference either. I think it is purely a matter of style. Our view of the matter was that it was more realistic and useful to the reader to see at once that the rights were not absolute, but that they were constrained. That would be made immediately clear to a person consulting the statute without having to read the first 30 sections to find that what was contained in the proposed Clause 1 was 0really not the whole story. It seems to be more honest. Mr. Robinson: Mr. Minister, if it is agreed that there is no difference in substance—and we are talking about a document, a Charter of Rights which, hopefully, would be widely distributed to school children, to Canadians right across the country, and I would suggest there is a certain symbolic value in setting out those rights and then at the conclusion of those rights indicating what the limitations, if any, may exist in respect of them, as is done in the Diefenbaker Bill of Rights, where the rights were enumerated and at the conclusion of the Bill of Rights, there are references, for example to the War Measures Act and to other limiting provisions.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 108-109..

    1. Mr. Roger Tassé, (Q.C., Deputy Minister, Department of Justice): I think that is an important question you have raised, Mr. Fraser. In effect when you look at the meaning of law, it may mean a number of things and in this context it could mean an Act of Parliament, for example, and we did not want it to be restricted to an Act of Parliament for some of the reasons that have been expressed, and also for another reason that has not been mentioned so far, and that is in effect we wanted also to cover rules of the common law. For example, in the area of libel, defamation. And in many provinces this has not been clarified. There are rules that have just been expressed over time by the courts and we did not want to upset all of this legislation so that is why in effect in French we have used an expression that would embody as well rules of common law that have been established by courts and it could be in the civil law field or in the common law, most probably in the common law, but also would include the statute and include a regulation enacted under an appropriately passed or enacted legislation. Mr. Fraser: So what you are saying, then, is that … Mr. Tassé: Perhaps if I may just expand on what I have just said. For example, if you look at the freedom of expression, the law of defamation, the law of libel imposes some limits on that so we wanted these to continue to have application and we think that they would fit in effect the tests that are set out in Section 1. Mr. Fraser: Well, then, by the same token, so does the law of master and servant, the law of contract and the law of partnership, and a number of other common law notions. [Page 50] Could you foresee a situation where, on the basis of the rights set out in here, you could have a conflict between what are considered laws which stem from the body of case law that has come down over the centuries which could be in conflict with the right that has been set out in the Charter? Mr. Tassé: Well, Mr. Fraser, we do not see these rights or these prescriptions of the Charter to have application in terms of a relationship between individuals. We see them as applying in terms of a relationship between the state and individuals, so I am not sure that in terms of contract laws, unless we were looking at the situation where in fact we are talking of contracts passed between the state, the government, and that might offend a constitutional limitation on some of these rights, then the Charter might be called upon for assistance but if we are just looking at in effect relationships, contractural relationships between individuals, I do not see how the Charter itself could be called upon to assist in resolution of conflicts that may arise. Mr. Fraser: Well, I do not want to take this too far into the realm of theory but individual contracts are constantly formed as a result of discrimination between certain options and certain individuals, and that has always been, within some limitations, an accepted freedom to enter into contract unless there is a specific piece of legislation which forbids it. You can take, for instance, the codes in some of the provinces which now constrain absolute freedom of contract in hiring policies. But I take it that what you are saying is that in the English version when you say “prescribed by law”, that is not just statute law, but is also the common law? Mr. Tassé: Yes. Mr. Fraser: As decided by the cases? Mr. Tassé: Yes. Mr. Fraser: But they could still be challenged if somebody could take the issue to a court and say that that law can no longer be demonstrably justified in a free and democratic society? Mr. Tassé: That is correct. Mr. Fraser: Thank you.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 107-108.

    2. what effect does this have on the law contained in the common law and has this been considered? Specifically, and to make it easy, a contract, contracts in their very nature are discriminatory, and I am wondering if this problem has been addressed?

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 106-107.

    3. Senator Connolly: Just on that last point, I wonder whether this should not be said, that if Parliament is discussing a piece of legislation which authorizes the making of regulations, it flows from the passing of that piece of legislation that the regulations must be within the four corners of the act, and I suppose the theory is that if Parliament is afraid that something is going to be done under the authority to make regulations which go beyond the act, then I suppose it is up to the parliamentarian at that time to make his objection. Now, you do say, and you did say, if a regulation violates the mother act under which it is made there is recourse to the courts. Your objection to that, I take it, is that it takes too much time and expense and everything else, and I think that is the risk we run in connection with giving the executive a regulation making authority. Mr. Chrétien: And there is too, I would like to say there is, under statutory act procedures there is a revision of all the Orders in Council by Committees of the House and you remember that, but I do think that the principles are the same. We are giving the Canadians some rights and the limits are mentioned in Section I and the courts can intervene and if the rights of the citizens have not been respected in the piece of legislation or any regulation, they are illegal and the court will decide that they do not meet the test that they can be demonstrably justified in a free and democratic society.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 106.

    4. The second part of my question, Mr. Chairman, relates to the use of te word law in Section 1. Any limitations must be as the section states prescribed “by law”. My reading of that, and I hope I am wrong, but my reading of that is a regulation of the government could limit in fact any of the rights or freedoms which are contained this proposed Charter. I believe that the word law indeed does include a regulation as it has been defined in Canadian jurisprudence and, Mr. Minister I would hope … Mr. Chrétien: When you talk about regulations … Mr. Robinson: If I can just conclude my question, Mr. Minister, my understanding is that that is the way the law is interpreted, if that is the case then what this is saying is the government, the Cabinet can take away any of these rights, although there is still the recourse to the courts, and I would hope that you would be prepared to look seriously at an amendment which would make it very clear that it is only legislatures or Parliament which could abrogate these very fundamental rights of Canadian citizens? Mr. Chrétien: Yes, but the regution that when we vote any laws in Parliament we always make provisions for regulations, and the regulations that flow from law are part of the law that has been passed, a delegation of authority to the executive to proclaim some regulation that will make possible the law that we pass the enforced, and I think that everything is part of the same law and it will be impossible to—I can look at your suggestion but the principles are the same and if any regulation passed by any government in relation to regulation based on the law, this same test will apply, and the citizens will have the same recourse and I do not see the point unless there are some regulations that could be made outside of the law, but there is not. When you pass an Order in Council, we always have to base our decision on some legal, we need a legal base. Mr. Robinson: There is no debate in Parliament. Mr. Chrétien: But there is a debate in Parliament to authorize the executive branch of the government to do this and do that, otherwise if we are not autorized by Parliament we cannot do that. Perhaps, I do not know, there might be some exception to that rule. Do you know any? Mr. Strayer: No. Mr. Chrétien: I do not. Because if we act without any authority from any law, our action is illegal. So I am not preoccupied with the problem you are raising. [Page 48] Of course, you can always argue in the House we should never give any delegated authority to any Order in Council. Mr. Robinson: No, no. Mr. Chrétien: No, but y could, and say everything has to be approved by Parliament on a daily basis. We could but it would be a hell of a mess. Mr. Robinson: Mr. Minister, I am saying that where there are to be abrogations, that Parliament should discuss that at least.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 105-106.

    5. Mr. Minister, Section I as it stands now modifies everything that is contained in the Charter, and I appreciate that there can be difficulties in defining which particular rights should never be abrogated. Would you be prepared to look as a minimum at least at excluding those rights which are contained in the Covenant’? If you look at the Covenant I am sure you would agree that it is not a very comprehensive listing, but at least excluding, for example, the right to protection from cruel and unusual punishment. Would you be prepared to look at those areas which this Committee as a whole could agree upon should be protected from trampling upon at any time? Mr. Chrétien: If you ask me would I be willing to look upon, I can look into that but I do think that why we have proceeded in that way, the technical reason, I will ask my advisor to reply to aspect. Mr. Strayer: Well, any attempt to make a list is going to be arbitrary, I think, even if you look at the international covenant. It is somewhat arbitrary in the rights it says can never be derogated and those which it implies can be derogated. For example, in time of emergency or war it forbids derogation from rights such as rights against discrimination on the basis of race or colour but it allows discrimination, apparently, on the basis of national origin; and one can argue overwhat rights ought to be in theory derogable in times of emergency and ones which might not be, but the approach which we are taking here in the new Section I is to leave that as a matter of judgment in the given situation and it is very hard to imagine any situation, for example, where a court would say that it was, in the words of the section, demonstrably justified in a [Page 47] free and democratic society to use cruel or unusual punishment. Even in time of emergency. Mr. Robinson: Mr. Chairman, I understand the argument that was made, but just to conclude this question with respect to Section 1, I do hope that if the Committee can agree on certain restricted areas which, as you say, should never be, I assume you would agree, never be violated, that the government would be prepared to at least consider a possible amendment to that effect.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 104-105.

    6. I wonder if there is a difference in your view in onus between a reasonably justifiable onus on the person before the courts to show that their rights, let us say that the legislatures have not infringed upon the rights of the person, or demonstrably justifiable. To me it seems there might be a heavier onus on the legislature to show they have not. Mr. Chrétien: I have explained this morning the policy of why we have done it, and that it was to find an equilibrium between the rights of the citizens to be protected by the courts and the power of the legislature or Parliament to pass law, and perhaps you are asking me a rather technical question and would you reply to that, Mr. Strayer, please. Mr. Strayer: Mr. Chairman, it was the belief of the drafters that by going to these words demonstrably justified or can be demonstrably justified, it was making it clear that the onus would be on the government, or whoever is trying to justify the action that limited the rights set out in the charter, the onus would be on them to show that the limit which was being imposed not only was reasonable, which was in the first draft, but also that it was justifiable or justified, and in doing that they would have to show that in relation to the situation being dealt with, the limit was justifiable. So whereas before there was no indication as to who had the onus of proving that the limit was reasonable or unreasonable, or whether it was generally accepted or not generally accepted. This seems to put the onus, appears to put the onus on the government that has to try to uphold some kind of limit to the rights set out in the charter. Uphold the legislation or administrative action or whatever it is in question. I might add, Mr. Chairman, that this kind of language was recommended by the Canadian Human Rights Commission. They had two possible drafts, and one of them was very similar to the words in the present proposal, the new proposal. They used words such as prescribed by law as are reasonably justifiable in a free and democratic society. Professor Tarnopolsky, in appearing before the Committee, talked about using words such as restrictions as are prescribed by law and are -necessary for the purposes of a free and democratic society, or he said you could use terms such as demonstrably justifiable or demonstrably necessary, but he said the onus has clearly to be on the one who argues in favour of restrictions, and that apparently is what he thought such language would do, it would put the onus on the person trying to justify the limitation.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 103-104.

    7. The idea is that we have to find the proper balance between the protection of individual rights and the legitimate power of any legislative body. You have to respect the fact that there are legislatures and people have been elected there and they should keep some power of legislation.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 102-103.

    8. I take it that the purpose of this change was to somewhat reduce the limiting direction to the courts of Canada that this section gives when they interpret the rest of the Charter. I want to explore with you just how far it really goes in making that change in the rules; because “reasonable limits” is the same phrase we have in the previous one, and it is modified by “prescribed by law”. That is number one. That can probably be married off with “parliamentary system of government” which you have in the first effort. Then it goes on to say, as can be demonstrably justified Will, if there is a law passed by Parliament, I think the initial assumption is that it is justified or Parliament would not have done it. [Page 42] Whether the courts will take that view, I do not know. But it seems to me that there is a risk that they will. Then you go on to say: as can be demonstrably justified in a free and democratic society. Well, if a free and democratic society passes a law, what is the difference between the situation that we have here and the one you had in the formal one where you said: generally accepted in a free and democratic society with a parliamentary system of government. My fear is that you have not moved very far in removing the objections of these 19 bodies which have appeared before us, and I would like to have your rationale. Mr. Chrétien: I think we have moved quite far; and, in the case of those who were the main proponents of the change, Professor Tarnopolsky and Mr. Fairweather, it is the text which they have more or less suggested, and they have approved it and commended me on it. This is to make sure that, even if the law were passed—it was a danger before that it was almost impossible for the court to go behind a decision of a Parliament or a legislative assembly; but here, even if the law is passed, there is another test, namely that it can be demonstrably justified in relation to this Charter. So this limited clause narrows the limits of the courts. The first one—and you heard the testimony given here, where there was argument to the effect that it was so limiting in scope as to be almost useless, and we would be caught in the same position as we were in the case of the Bill of Rights of Mr. Diefenbaker which has not in fact been used in the courts. Why have we done it? It was not my initial proposition. I have done it under pressure from the provincial governments. It is a good illustration of trying to get on the right keel and you end up with a situation where it was meaningless. So we went back to the original text. This will permit the courts to appreciate whether legislation passed by the different levels of Parliament and legislative assemblies are in conformity with the Charter. The intention of a Charter is to limit the scope of the legislature and Parliament in relation to the fundamental rights of Canadian citizens.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 101-102.

    9. Now, the point is that we heard testimony from some 19 different organizations, I will not name them all but some of their presentations stick in my memory, the Canadian Civil Rights Association, the Canadian Jewish Congress, the Canadian Human Rights Commission, the Canadian Advisory Council on the Status of Women, the National Association of Japanese Canadians, and a good many others, who were concerned about Section 1. While I cannot attempt to summarize with any accuracy what each one said, some of them, at least—and some of the important ones left me with the impression—that this Section 1, as it stood, was so limiting in its impact and force as to destroy—in fact some of them went so far as to say they would just as soon not have the whole thing if Section l was in there: that the limiting character of Section l was so severe as to destroy the effectiveness of the other guarantees in the Charter.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 101.

    1. Section 1: many witnesses and most members of the Committee have expressed concerns about Section 1 of the Charter of Rights and Freedoms. These concerns basically have to do with the argument that the clause as drafted leaves open the possibility that a great number of limits could be placed upon rights and freedoms in the Charter by the actions of Parliament or a legislature. The purpose of the original draft was to ensure that the people, the legislatures and the courts would not look upon rights as absolute, but would recognize them as subject reasonable limitations. While some believed no limitation clause was necessary, many witnesses agreed such a clause is desirable but argued that a more stringent formulation is necessary. You have received a number of constructive suggestions. I am prepared on behalf of the government to accept an amendment similar to that suggested by Mr. Gordon Fairweather, Chief Commissioner of the Canadian Human Rights Commission and by Professor Walter Tanopolsky, President of the Canadian Civil Liberties Association. The wording I am proposing is designed to make the limitation clause even more stringent than that recommended by Mr. Fairweather and Professor Tarnopolsky. I am proposing that Section I read as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 100-101.

    1. The second point I wish to make is the very serious reservations we have with the manner in which Section 1 is presently framed. More specifically the phrase: . . . only so such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. Its broadness and vagueness can be interpreted to give the government the licence to invoke, for instance, the War Measures Act or any future emergency powers act. It is our view that rather than limiting the rights of individuals and groups on certain occasions, there should be limits put on the definition of what constitutes an emergency. This principle should in some fashion find expression in the constitution. Also, unless the constitution guarantees that the Bill of Rights is to supersede all past, present and future legislation, then ladies and gentlemen, we believe that you are not only condoning the past, you are preparing the way for history to repeat itself.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 99.

    2. Mr. Chairman, I would hope in light of the grave concerns that our witnesses have today about Section 1, that the minister be requested to come back to this committee before December 8, preferably the fifth or sixth or so, earlier in any event, so that we can find out in an objective and non-partisan way what he intends to do about Section 1, whether it is to be left in its present form. The present form reflects not communication and dialogue with groups such as your own; it reflects the views of the provincial premiers of this country. It reflects the findings of the minister in his deliberations across Canada this summer as well as the selfishness of many provincial premiers. I think Section 1 is defective and has to be improved. I cannot presume to be talking for my party, but certainly I am speaking for myself. So, I am very pleased with the forcefulness with which you have made your points.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 92.

    1. Ms. L. McDonald: I think for reasons similar to what Mr. Fairweather and other witnesses have raised regarding the treatment of Japanese Canadians. It was within my lifetime that married women were thrown out of the Public Service on marriage. The Stella Bliss case shows how unacceptable women in the labour force are if they are pregnant or if they have very young children. We cannot take as generally accepted all of the rights and freedoms that we would want to have. There are still people that would argue that women do not have a right to jobs on the same basis that men have that right. So we would certainly want that to be in there very strongly.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 99.

    2. Ms. L. McDonald: The opening section under guarantee of rights and freedoms falls short of the statement of principle we would expect. imprecise wording in the limitations clause could open the way to a variety of interpretations of permitted exceptions. Indeed, the potential for driving a truck through the clause led our participants at the conference to dub it the “Mack truck clause”. Failure to clarify the guaranteed rights and freedoms by removing the limiting clause would render useless subsequent sections. Therefore, NAC proposes that the general limiting clause be deleted. If there have to be restrictions on rights and freedoms in time of war these should be specified as well as those rights and freedoms not to be abridged under any circumstances. NAC recommends that the rights and freedoms not to be abridged under any cirumstances should include at least the right not to be subjected to any cruel and unusual treatment or punishment and the human right to equality in the law.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 98.

    3. We surmise that Section 1, at least in part, was included to give Parliament the chance to limit our civil liberties when it is necessary in times of war. apprehended insurrection or other civil emergencies and we suggest that it is in keeping with the democratic traditions of the western world if the limitations that can be placed on our liberties are explicitly spelled out in the charter of rights and not left to something like Section 1. We suggest that Section 1 be reduced to a simple preamble explaining what the charter of rights is intended to accomplish and that Section 29 include a limitation that will come into effect only in times of war or other times of public emergency and that this section ensure a number of aspects. In time of public emergency which threatens the life of the nation so that it is a serious emergency and the existence of which is officially proclaimed, Parliament may authorize that temporary restriction of certain rights and freedoms to the extent strictly required by the exigencies of the situation but in a manner that the other rights and freedoms set out in this charter will be preserved. We also stipulate that there are some freedoms and rights set out in the charter that need never be interfered with no matter how grave the emergency. We recommend that the non-discrimination rights never be tampered with and that there never be any derogation from freedom of conscience and religion, the right to vote and hold office, because there are already protections allowing for the suspension of elections which are found in Section 4. The right to life, liberty and security of the person except when denied by a law duly enacted; the right to being safe from cruel and unusual treatment and punishment; the right to a translator in judicial proceedings should in our view never be suspended because of war or apprehended insurrection, and all the language rights in Sections 16 to 23 need in our view never be suspended because of any kind of civil or martial disability.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 86.

    1. I wonder if you could confirm that unless this Section is indeed amended that we would in fact be in violation of our requirements under the International Covenant on Civil and Political Rights and indeed, because we have signed the optional protocol, that another state could indeed take us before a tribunal of the United Nations to complain of that violation. Mr. Fairweather: Section 1, indeed that would be my opinion. You put it very well.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 98.

    2. We are troubled by the language of Clause 1 which, in its present form, raises fundamental doubts about just how serious the committment is to reform. Those are strong words but you will hear them, I am sure, again and again from witnesses who come before this Committee. The language used departs from that to be found in domestic constitutions of many modern states but what is even more significant is it departs from the European Charter and the international Bill of Rights ratified by Canada, because the language in Clause 1 is unique, it has never been tested. On the other hand, jurisprudence is building up which explains the language of other domestic and international charters. It is in our opinion foolish to turn our backs on a useful body of jurisprudence. As well, the language seems to us to be dangerously broad. We know you will seriously consider recommendations for a more careful wording of Clause 1.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 98.

    3. Mr. Fairweather: It is seriously flawed, and I just cannot believe it is going to be the final enunciation of the principle.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 90.

    4. My second question relates to Section 1, which I understood at the outset from your remarks to be of considerable concern to you, and I have forgotten your words, but I think you regard the Charter of Rights as seriously flawed, those are the words I recall, in relation to Section 1.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 90.

    5. Mr. Robinson: I would also like to ask you with respect to the question that was touched upon by Mr. Epp and also initially raised by yourself, and that is the actions that were taken during and immediately after World War II with respect to Canadians of Japanese origin. Would you indeed confirm that it is at least very possible that under the charter as it is presently worded in view of the fact that it could be argued that that action was “generally accepted” at that time, that that kind of action would indeed be permitted under Section I as it is now worded. Mr. Fairweather: Section I raises that danger.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 90.

    6. Mr. Fairweather, what I would like to do from looking at materials that you have provided earlier, is take you to your concern of Section I of the proposed resolution. At the bottom of your presentation as well as in the accompanying documents you stress your concern about Section l. I would like to ask you from your perspective if the clause remains essentially in the form it now appears what are the technical consequences of that clause in relation to the protection of rights and freedoms? Mr. Fairweather: They are so serious that I could not imagine this Committee letting Section l go unamended, That section as drafted would challenge, in my opinion, the rest of the charter, and I suspect somebody is going to be getting an amendment. It is, as I said, turning our backs on the international and national jurisprudence, and it is very broadly drafted. Why we do not use the language that is well accepted now and has been ratified by Canada, for the life of me I have no idea. This is a strong statement but I have strong feelings. I am absolutely committed to the entrenchment and the patriation and the goals. They are wonderful goals for this country at last but why not go for something better. Mr. Epp: From your experience as a Commissioner of the Human Rights Commission, could you give us examples of if this proposed resolution had in fact been in effect with the prohibitions in Section 1, can you give us some specific examples of the restrictions it would have given or caused both to rights and freedoms and also to the Commission? Mr. Fairweather: Yes. One was given last night, if I know correctly, by the Minister of Justice for Canada. It might be that generally accepted standards in this country for mandatory retirement, the anti-discrimination part having to do with age, could be challenged and rendered meaningless as a reform mechanism, because the generally accepted standards now are quite illiberal, if I may use that word in this place. [Page 12] The generally accepted standards for Canada are to push people out at certain ages, I greeted this charter with excitement when I saw that the Government of Canada had included age, but when I see the language of Section 1, I wonder. Another message that surely cannot be forgotten is that the generally accepted standards in Canada in 1940 and 1941 were to take Canadians whose offence was that they were of Japanese origin. In the Wellington Street Archives last night while you were doing something else I went to the festival of the 100th anniversary of the Chinese in Canada. They came to build the railway and I am as shocked as I know senators and members are to remember that people who are enshrined and rightly, in our history were perpetrators of the Chinese Exclusion Act, the Chinese $50 a head tax act. The Chinese people in this country were not allowed to vote in a province I think until after the Second World War. It was Mr. Diefenbaker who gave the Native peoples the right to vote in the late 1950s. I am not saying that a government that follows this one would, but it could, because those were I guess until reform came the accepted standards. This document is to be entrenched, enshrined, as a statement to the people who have their loyalty to Canada. Mr. Epp: Do I understand you correctly, sir, that if the document before us were to be enshrined, entrenched, that an incident like Canadians of Japanese origin and the removal of these people from various parts of Canada, their prohibition of freedoms at that time, that in fact that kind of action would still be possible under the charter in its present form. Mr. Fairweather: I think, Mr. Epp, my duty is to warn you, and I have given some examples, age and these other offensive matters could be put in jeopardy. I am not saying they will but they could. I think most of this charter is really a superb piece of work, but I cannot see why Canada wants to turn its back on accepted international standards and language that has been adjudicated. That is why I am being a bit fussy. It clouds the rest of a noble document.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 89-90.

    1. Section 1 of the Charter is a very strange article. You have had a lot of comment on it. I do not wish to burden you with repetition. We made two points about it, looking at the first page of our brief, We say that Section I tends to guarantee charter rights, and freedoms, and at the same time provides justification for the suspension of charter rights during an emergency. I have a feeling that the draftsmen, when they drafted Section 1, were torn between two conflicting pressures on them intellectually and practically. The pressures were, how to maintain the theory of parliamentary supremacy when introducing a theory of a charter regime. It was an attempt to find some kind of practical, legal, political equilibrium between a charter regime system, on the one side, and a parliamentary supremacy regime on the other, that Section I represents. But then, when you look at it, it is so great an invitation in language such as, “subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”, that any agressively minded lawyer with an aggressively minded government could ride through that series of gates with very little difficulty and find the charter heavily wrecked en route. [Page 86] We feel that is not the way to begin a regime of a charter; it is not the way to start a new system of rights. We solemnly recommend the total elimination of Section 1, because when you go into Section 2 and the rest of the charter you are very specific there. You do not need Section 1. To the extent that you need emergency powers, you will have them. We recommend that in a new article, Article 28(a) at the end of the brief. To the extent that you want to have an equilibrium between a charter regime and parliamentary supremacy, you must accept the fact that, once you introduce a charter regime, parliamentary supremacy is modified for ever to that extent. That is a plain legal and political fact, and you cannot have the best of both worlds, except in an emergency and we provide for an emergency.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 97.

    2. Mr. Irwin: Now, you have serious difficulty and a great deal of criticism with Section 1, which says 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government. I suggest that if an abuse occurs, then the person who is abused could apply to the courts to see if Parliament has abused that person by legislation and if the courts decide that such abuse has occurred in legislation, and it does not fit in within reasonable limits as are generally accepted in a free and democratic society, then that legislation will be struck down. Mr. Borovoy: The answer to that is yes but the difficulty is the test. If you are talking about that which is generally [Page 26] accepted in a free and democratic society with a parliamentary form of government, you may well be talking about everything that Parliament or the legislatures have said is acceptable and to the extent that you are doing that, then it renders the entire charter a verbal illusion.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 91.

    3. In that particular section, you seem to be recommending to the Committee that unless we change Section 1, then in a sense the game was not worth the candle, that the rights that are promised are not delivered. I want to make sure that that is clear to the Committee. Are you suggesting that unless we change Section l, then the resolution with respect to civil rights that is before us is either useless or dangerous or both? The Joint Chairman (Mr. Joyal): Mr. Midanik? Mr. J. S. Midanik (Q.C., Canadian Civil Liberties Association): Yes, that is our position. Not only that you change Section l, but that the rest of the charter be changed along the lines we have indicated because we feel that the rest of the charter itself is also defective in many respects. But the major problem deals with Section I and if any form of Section 1 is kept so that there be some limitation at all, our position is that it should apply only to Section 2 and not to the rest of the charter. In other words, that the specific rights in the Charter not be limited at all by any Section 1, but if there be any specific limitations, they apply to Section 2 and any such limitations might well be delineated more clearly, as contained in a number of the international covenants. So, what we are saying again is that if what you are going to give us is what we have now, what is before us, our position is thanks, but no thanks, we would rather take our chances with what we have.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 90-91.

    1. Mr. McGrath: I am saying that your charter is meaningless in the light of what is said in Section 1 of Schedule B when you make it subject to the reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 96.

    2. Surely that makes everything that follows redundant because a free and democratic society would have within it in a parliamentary system freedom of conscience and religion. Ours does; it operates under the practices and conventions and traditions of the British Parliamentary System. It seems to me that you have fallen into the same trap here as the Canadian Bill of Rights because you are going to exclude all the very commendable rights and freedoms that you have set out in Section 2 of Schedule B. It either means that they apply or they do not apply. What are the reasonable limits as are generally accepted in a free and democratic society.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 96.

    3. I want to ask the Minister in particular about clause one of this proposed Charter of Rights and Freedoms because I suggest that in its present wording it is a gaping hole in the Charter which really makes the alleged rights and freedoms which are supposed to be protected completely illusory; and in fact if this section one is permitted in its present form that in many ways we will be in a worse position in this ggttntry than had this particular Charter not been implement- Mr. Minister, first of all with respect to clause one I would like to ask you who would determine what is generally accepted as a limitation on these rights and freedoms, and what test would they apply? Would it be a numerical test? Mr. Chrétien: It will be the court who will decide. The way I understand the courts to operate, the precedents will determine the next move. It will be the court because we are not giving them other tests than these. Mr. Robinson: How will it be determined what is generally accepted? Will that be in terms of numbers, if the majority of Canadians accept particular limitations? Would this be your understanding of that provision? Mr. Chrétien: I do not want to pass judgment for what the court will say but I do think there is some, as I explained earlier, there is some historical situation, trends in society, that they can measure; whether it be in terms of numbers and so on. Of course, we are putting a charter there for one reason, to protect the minorities against the abuses of the majority. We have improved fantastically over the past 50 or 75 years in Canada in terms of tolerance in our society and so on and they will have the test of what is reasonable in their minds in [Page 28] relation to those rights that are there. I do not see them turning back the clock; it will be in terms of progress and in terms of protection.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 85.

    4. Mr. Tassé: That is the test that the Court would have to apply and that is the whole purpose of the Charter of Rights. In fact, when you entrench a charter of rights like this one you are saying that Parliament and the legislature will constrain themselves when they legislate.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 84.

    5. we have a Charter of Rights but this text is a limit; it is an indication to the court how to interpret the charter in relation to the different legislation because if you do not put those words there it could lead to all sorts of change by the courts that will not give them any limits of interpretation. As said by my Deputy Minister there is some legislation that has been well established in the Canadian society that are recognized, and we have to make sure that the courts do not destroy all the previous work of the evolution of our society. Otherwise we will be in great legal difficulty, so they will have to apply the test of reasonableness in their decisions. I do think the Charter of Rights has its own limits, as you will find out when you are studying it, section by section.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 85.

    6. Mr. Roger Tassé (Q.C., Deputy Minister): In effect, Mr. Chairman, that Section 1 is meant to bring forward the concept that these rights that are spelled out in the Charter, [Page 15] those you have mentioned and the others, Mr. McGrath, are not absolute rights. If you just take, for example, the freedom of expression, there are limits to the freedom of expression that already are spelled out in the Criminal Code and that will continue and should continue when a Charter of Rights like this is entrenched. What the Section is meant to do is to bring that concept not only to the legislatures but also to the judges because in effect the judges when they are faced with cases where government action or parliamentary action, legislative action is being tested and being challenged, in effect they have to decide whether limits, restrictions, that may have been imposed, because again these rights are not absolute, are reasonable ones. That is only what Section 1 is intended to do, that in effect the judges, when there are challenges brought before them, wherein effect people would claim that their rights have been unfairly or unreasonably restricted that in coming to a conclusion when they are so challenged that in effect the courts will have to take for granted that there are some limitations that may well be reasonable and legitimate in the kind of society in which we live.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 84.

    1. Section I, which preserves the existing constitutional tradition, must be deleted to fully entrench the Charter. Its meaningless vagueness opens the door to the very abuse to the supremacy of Parliament which the Charter is intended to check. Moreover, special provisions are necessary to instruct judges in the Charter’s interpretation. By deleting Section I of the Charter, there will be removed an obvious peg for argument designed to thwart the Charter’s purposes.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 95.

    1. You have referred, as other witnesses have, to Section I, which has been pointed out would permit the proclamation of the War Measures Act in the same terms as in 1970, and will permit the internment of Canadians of Japanese origin and the confiscation of their property. Would it be fair to say you would agree with the suggestion of the Canadian Civil Liberties Association that if Section 1 is not rewritten and perhaps if there is not a remedies section—I believe those are the two sections you have pointed out as having perhaps the gratest weaknesses in the proposed charter—and indeed, we would perhaps be better off not giving the Canadian people the illusion that they have certain rights, but rather that we would be better off without this Charter, if those sections are not in fact amended? Mr. Black: The other way in which, perhaps, you could put it, is that if we do not amend the section, Section 1, we would not have an entrenched charter, even if we were to enact this document. Section 1 imposes such severe limitations on the whole concept of an entrenched charter of rights that it has to be removed to give any effective force to entrenchment.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 94-95.

    2. Now, it is obvious there can be circumstances in which the rights listed in the Charter would have to give way. In times of serious crisis threatening the existence of the nation, such as invasion, insurrection, large scale natural disaster, a temporary emergency limitation on our fundamental rights might be necessary. This is obvious. In fact, it is so obvious and so widely agreed, that, given the difficulties in drafting an acceptable limitation clause, it might well be wiser to leave one out. We cannot now foresee all the situations that might justify temporary emergency limitations. It might therefore be best to let the courts decide in particular cases when the facts of an emergency are known. However, if there is to be a limitation clause, it must indicate clearly that most contingencies that face the nation are to be dealt with by ordinary means which respect the rights guaranteed in the Charter. It must indicate clearly that limitations are justified only in times of “public emergency which threatens the life of the nation”, and then only “to the extent strictly required by the exigencies of the situation”. Here we use the language of the international Covenant on Civil and Political Rights, Article 4, Section 1, to which Canada is a signatory. We recommend this language to you for your consideration. Further, if there is to be a limitation clause, it must clearly indicate that limitations on the Charter justified by public emergency are temporary. We would argue for the inclusion in a general limitation clause of four subsections, the first requiring prompt Parliamentary authorization of the invocation of special powers under emergency legislation, such as the War Measures Act. Second, requiring regular renewal of this authorization if the powers are not to lapse; Third, allowing a small number of members of either House to force review of the authorization; And fourth, allowing any innocent person damaged under the special powers to seek compensation in a special tribunal.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 93-94.

    3. Section 1 of the proposed Charter has come under strong attack and quite deservedly so. At a previous hearing, someone called it the Mack Truck Section. We call it the bathtub section because it makes it much too easy for our leaders and lawmakers to pull the plug on human rights and freedoms and if it is included in the Charter the Charter itself will be worth very little. Section 1 at present says: . . . the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democractic society with a Parliamentary system of government. It will be hard to think of any statement more dangerously vague than this. What is meant by reasonable limits and how is this decided and which democractic society and Parliamentary system are we talking about. Such language opens the door to entrenched present injustices merely because they are widely accepted in supposedly free and democratic societies, and moreover ties Canadian law to the laws and customs of other countries over which Canadians have no control; and to me this is most ironic. We are talking about patriating our constitution and while we are doing this we are proposing to be tied to precedents, set in other countries. it is hard to see what this has to do with producing a Canadian constitution or a Canadian Charter.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 93.

    4. Our next item deals with Section I which we call the Mack Truck clause because a person could drive one right through it. We do not intend to dwell at length on this section which creates such loopholes in the legislation. Suffice it to say that we join with the continents of the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women, and the Canadian Civil Liberties Association and other groups in condemning Section 1. I would just like to summarize a few of our objections. There are two main points. First, Section I applies at all times, it is not limited to emergency situations. Secondly, the standards of reasonable limits that are generally accepted in a democratic society appears to us to allow virtually any legislation passed by a majority in Parliament or a legislature. Apart from concerns regarding the basic rights and freedoms which we share with other groups, we are concerned that this clause may have the effect of completely negating the protection provided by Section 15 on equality of rights.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 86-87.

    1. Mr. Chairman, the serious structural limitations which occur repeatedly through this bill find first expression in Section 1 of the Charter. The limiting provision of this section is so general as to permit, if not cause, the certain failure of everything which the Charter sets out to achieve. If this is poor [Page 7] drafting, then it must be improved. If, however, it is the clear expression of the will of its creators, then they have a view of entrenchment which we will submit does not find reflection in the popular will of Canadians. If the rights set out in the Charter are subject to the limits stipulated in Section I then Parliament acting alone will always have supremacy over the Charter, effectively denying what the Charter proposes to create—entrenchment.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 93.

    1. Now, I put to you that no right is absolute; even the right of free speech is qualified in that perhaps for instance, under the Criminal Code you cannot cause a disturbance in a public place, for example, there are many restrictions to keep our society together without having it turn into anarchy or chaos. I suggest to you, because you are critical of the wording later on in general, that rather than deleted Section l, we might come back with a better worded Section I that meets the requirements of more inspiring wording, and meets the requirements that rights in here are more enshrined and less susceptible to court interpretation. Mr. Paisley: Our concern with Section 1 as written is that it would, in our opinion, completely over-ride the rest of the Charter. Without examining the given Section 1 which is envisaged, it is impossible to say whether our concern would be satisfied or not. We simply take the position that if it remains with the rest of the Charter, it would probably be of no effect at all. Mr. Irwin: Many groups have expressed the view which you are expressing, and some have come back and said that it should be made stronger and not so intrusive. I appreciate the difficulty in not having that here now. Mr. Paisley: May I add to what I have said further. We feel that even if there is no Section I, it does not mean to say that [Page 23] there are going to be unqualified or absolute rights. Experience elsewhere with unqualified rights shows that they are in fact qualified by the courts. There is the statement of the courts in the United States to the effect that the right of freedom of speech does not give a person the right to call “fire!” in a crowded theatre. We believe that if you have the right stated in an unqualified fashion it would be interpreted in a reasonable way by the court. That is the reason why we suggest it is unnecessary to have this sort of introductory limitation clause as proposed.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 92-93.

    1. are the limits mentioned in Section 1 whatever may be the individual linguistic rights mentioned elsewhere in the Charter, embarrassing for you as Commissioner of Official Languages. Mr. Yalden: Mr. Chairman, broadly speaking this part of the first section embarrasses me a little, not necessarily as Commissioner of Languages, but as a citizen reading the text, I do not understand it very well. I find it so broad that whatever it says does not represent in my view a requirement for a legislature who should guide the courts very clearly, very explicitly. If it is the case, it seems to me that this section should be more specific, not stricter than it is. I have followed the discussion here in the Committee, and I said several times tonight I am not a lawyer, consequently, I cannot really express a categorical opinion. It is embarrassing for me for very broad reasons. As for the linguistic aspect, would the linguistic rights mentioned in Sections 16 to 23 be affected by this short paragraph? I really could not give you an answer, precisely, because I find these words: subject only to such reasonable limits as are generally accepted in a free democratic society with a parliamentary system of government so vague that I do not know what they mean. If I knew, I would answer you.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), p. 88.

    1. Section I should not govern either Section 14 or Section 15. It is our view that there should be no circumstances where the right to an interpreter, which a deaf, blind or just a deaf person may require in court, should ever be taken away. Why is it either in war or emergency that a deaf-blind person on trial should be denied an interpreter to know what the case is against them. It is too basic and a denial of natural justice. Moreover when should unwarranted discrimination be permitted? At wartime? At peacetime? In the case of an emergency? It is hard to imagine a situation where it is justifiable, and therefore we have recommended, as have other groups, that Section 14 and Section 15 be absolute rights, rights not subject to Section 1. Alternatively, if that point of view is not acceptable to the Committee, it is our submission that the wording in Section I is far, far too broad. You have heard all the arguments before, we can only reiterate them, that Section 1—labelled by some as the Mack truck provision—will in fact make the rest of the Charter of Rights a virtually worthless and impotent means of protecting civil liberties, In particular, the generally accepted view of the public with respect to handicapped persons is that they are often not capable of taking care of themselves, not capable of maintaining a job, not capable of self-sufficiency, and therefore the kinds of laws that I have discussed previously that are discriminatory would be under Section I generally accepted in a free and democratic society, passed by these kinds of Parliaments. And accordingly, if Section 1 remains, and if Section 15 is still subject to it, it is our view that Section 1 must be very narrowly constrained to protect minority rights and in particular, handicapped rights.

      §1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 87-88.

  2. Nov 2018
    1. One of the reasons why we’re all so addicted to YouTube is because it has nearly perfected the algorithm to get you to watch videos on the platform which didn’t even exist a few minutes ago as well as the ones which its sure you’ll be interested to watch. It surely isn’t a surprise to know that one billion hours of YouTube video content is watched by people all around the world on an average day. At CES 2018, Neil Mohan (Chief Product Officer, YouTube) revealed that 70% of the videos watched by the people are recommendations of YouTube’s advanced algorithm. He also added that these recommendations keep mobile users watching videos for more than 60 minutes at one time, on average.

      5 Tips To Get Your Channel Videos In The YouTube Recommendations Section

  3. Oct 2018
    1. A Legislative union of the British North American Provinces is not liable to all the objections which, as I believe, apply. to a Federal or Federative union; but it is liable to the objection that great discontent in the Lower Provinces would follow the centralization in one Government, and in one Legislature, at Quebec or Montreal, of the powers and authority now vested in the Governments and Legislatures of the several provinces; and, moreover, I believe that no single Government or single Legislature could, in present circumstances, satisfactorily govern and legislate for a territory extending over an area so immense, and so sparsely populated as many portions of that territory are.

      Preamble, §§. 91 and 92 of the Constitution Act, 1867.

    2. Again, the establishment of a Federal or Federative union would, as l believe, be immediately followed by an agitation in favour of the election or the Local Governors, instead of their being nominated by the Crown. And it would be the more difficult to resist this application on account of the purely local or municipal character of the powers with which the Governors would he intrusted ; but the compliance with the request would he in my opinion-highly dangerous, not only because it would at once be fatal to British influence in the Local Governments and Local Legislatures, but also because it would, I believe, be followed quickly by a similar application from the United ‘Provinces, with regard to the Gov,ernor-Generalship, still more difficult to resist from the force With which it would be pressed, but the compliance with which would at once practically sever the connexion between the Crown and British North America.

      Preamble, §§.58, 91 and 92 of the Constitution Act, 1867.

    3. union which they contemplate is not to be necessarily of the same character as that which binds together the several States of the neighbouring Republic. But upon whatever basis a Federative union might be formed, it must, I think, be liable -to one of two objections, either of which ought, as it appears to me, to be fatal to such a scheme. For if the Local Governments and Local Legislatures are still to- continue to exercise the same authority in local legislation and local matters which now appertains to them (and there is comparatively little business of any other description which they are now called upon to discuss), then the result of such a union will be still further to degrade the Local Governments and Legislatures without diminishing their authority while the ‘Central Government and Central Legislature, nominally endorsed with high powers, and proud of their position, but with little or no business of a purely Colonial character to occupy their attention, would, I fear, claim an authority on subjects not purely Colonial, but also of Imperial importance (such as questions of foreign trade, &c.), and shortly be brought into collision with Her Majesty’s Government and with the Imperial Parliament. If, on the other hand, the Local Governments and Local Legislatures were shorn of a large portion or their present powers (to which proposal 1 do not believe that the Lower Provinces would agree), the inhabitants of the Lower Provinces would, in my opinion, very soon, if not immediately, become discontented with an arrangement which would deprive them of -the power they now possess over the management of their own affairs, and render New Brunswick, Nova Scotia, and Prince Edward’s Island, Provinces of Canada, instead of being, as they now are, Provinces of the British Empire.

      Preamble, §§. 91 and 92 of the Constitution Act, 1867.

    4. I presume that the word ‘”Federative” has been used ‘in the Memorandum of the Executive Council of Canada to imply that the

      Preamble, §§. 91 and 92 of the Constitution Act, 1867.

    5. should embrace the question of a Legislative, as well as that of a Federal or Federative union, and the expediency of uniting some, as well as that of uniting all the provinces

      Preamble, §§. 91 and 92 of the Constitution Act, 1867.

    6. It is possible that a Federative union of the British North American Provinces would afford to the Canadian Government the – readiest mode of escape from the difficulties and embarrassments which now surround the settlement of the “seat of Government ” question, and I presume that I am right in supposing that, although the ostensible object of the proposed inquiry is the union by Federative bonds with Canada of the other British North American Provinces, the Canadian Government have no less in view the, severance of the bond which now joins the two Canadas in a Legislative Union, and the substitution for that bond of a more elastic tie of a Federal or a Federative character.

      §.16 of the Constitution Act, 1867.

    7. ment to this may be added that, by the proposed distribution of the revenue, each province would have a direct pecuniary interest in the preservation of the authority of the Federal Government. In these respects’ it is conceived that the proposed Confederation would possess greater inherent strength than that of the United States, and would combine the advantages of the unity for general purposes of a Legislative union, with so much of the Federative principle as -would give all the benefits of local government and legislation upon questions of provincial interest.

      Preamble, §§. 91 and 92 of the Constitution Act, 1867.

    8. The Local Legislatures would not be in a position to claim the exercise of the same sovereign power-, which have frequently been the cause of difference between the American States and their General Govern-

      Preamble, §§. 91 and 92 of the Constitution Act, 1867.

    9. It will be observed that the basis of confederation now proposed differs from that of-the-United States in several important particulars. It does not profess to be derived from the people, but would be the Constitution provided by the Imperial Parliament; thus affording the means of remedying any defect, which is now practically impossible under the American Constitution.

      §§.91, 91(1), and 92(1) of the Constitution Act, 1867.

      Part V of the Constitution Act, 1982.

    10. The Confederation might include the constitution of a Federal Court of Appeal.

      §.101 of the Constitution Act, 1867.

    11. It will form. a subject for mature deliberation whether the powers of the Federal Government should be confined to the points named, or should be extended to all matters not specially entrusted to the Local Legislatures.

      §.91(29) of the Constitution Act, 1867.

    12. That the powers of the Federal Legislature and Government should comprehend the Customs, Excise, and all trade questions; postal service, militia, banking, currency, weights and measures, and bankruptcy; public works of a national character; harbours and lighthouses; fisheries, and their protection; criminal justice; public lands, public debt, and government of unincorporated and Indian territories.

      §§.91 and 92 of the Constitution Act, 1867.

    13. When Mr. Galt, therefore, came into office; it was natural that the question of an union of the Colonies should at once be discussed-. I found him and several of the gentlemen about to assume office deeply impressed with the idea that, in some such union alone could be found the ultimate solution of the great question which had been made a ground of agitation by Mr. Brown, and his friends, at the general election, viz., the existing equality of representation -of Upper and Lower Canada, and the alleged injustice inflicted on the former by such equality. This question is one, I need not say, which threatened to touch the root of the present union of the two sections of Canada -as by law established, and might imperil its existence by reviving all the old antagonism of race and religion.

      §.51 of the Constitution Act, 1867.

    14. The union of Lower with Upper Canada was based upon perfect equality being preserved between these Provinces-a condition the more necessary from the differences in their respective language, law, and. religion; and although there is now a large English population in Lower Canada, still these differences exist to an extent, which prevents any perfect and complete assimilation of the views of the two sections.

      §.51 of the Constitution Act, 1867.

    15. The population, trade, and resources of all these Colonies have so rapidly increased of late years, and the removal f trade-restrictions has made them, in so great a degree, self-sustaining, that it appears to the Government of Canada exceedingly important to bind still more closely the ties of their common allegiance to the British Crown, and to obtain for general purposes, such an identity in legislation as may seem to consolidate their growing power, thus raising, under, the protection of the Empire, an important Confederation on the North American Continent. At present, each Colony is totally distinct in its government, its customs and trade, and its general legislation. To each other no greater facilities are extended than to any foreign State; and the only common tie is that which binds all to the British Crown. This state of things is considered to be neither promotive of the physical prosperity of all, nor of that moral union which ought to be preserved in the presence of the powerful Confederation of the United States.

      §.121 of the Constitution Act, 1867.

    16. That the Federal, Government should be composed of a Governor General, or Viceroy, to be appointed by the Queen; of an Upper House, or Senate, elected upon a territorial basis of representation and of a House of Assembly, elected on the basis of population., The Executive to be composed of Ministers, responsible to the Legislature:

      Preamble, §§.22, 91, and 92 of the Constitution Act, 1867.

  4. Sep 2018
    1. The whole of the clauses which refer to the latter are as complete as the most ardent supporters of union could desire, tempered by the lew exceptions by means of which the provinces have wished to shelter their local institutions from attack.

      §§.92(14) and 101 of the Constitution Act, 1867. of the Constitution Act, 1867.

    2. The 34th paragraph of the 29th clause of the scheme reads thus: ” The establishment of a General Court of Appeal for the Federated Provinces.” What is the object—what will be the character of the tribunal?

      §§.92(14) and 101 of the Constitution Act, 1867. of the Constitution Act, 1867.

    3. We ought to look at the question apart from party considerations, and on its own merits: that is to say, we ought to place in the Constitution a counterpoise to prevent any party legislation, and to moderate the precipitancy of any government which might be disposed to move too fast and go too far,—I mean a legislative body able to protect the people against itself and against the encroachments of power. (Hear, hear.) In England, the Crown has never attempted to degrade the House of Peers by submerging it, because it knows well that the nobility are a bulwark against the aggressions of the democratic element. The House of Lords, by their power, their territorial possessions, and their enormous wealth, are a great defence against democratic invasion, greater than anything we can oppose to it in America. In Canada, as in the rest of North America, we have not the castes—classes of society—which are found in Europe, and the Federal Legislative Council, although immutable in respect of number, inasmuch as all the members belonging to it will come from the ranks of the people, without leaving them, as do the members of the House of Commons, will not be selected from a privileged class which have no existence. Here all men are alike, and are all equal; if a difference is to be found, it arises exclusively from the industry, the intelligence, and the superior education of those who have labored the most strenuously, or whom Providence has gifted with the highest faculties. (Hear, hear.) Long ago the privileges of caste disappeared in this country. Most of our ancient nobility left the country at the conquest, and the greater number of those who remained have sunk out of sight by inaction. Accordingly, whom do we see in the highest offices of state? The sons of the poor who have felt the necessity of study, and who have risen by the aid of their intellect and hard work. (Hear, hear.) Everything is democratic with us, because everyone can attain to everything by the efforts of a noble ambition. The legislative councillors appointed by the Crown will not be, therefore, socially speaking, persons superior to the members of the House of Commons; they will owe their elevation only to their own merit.

      §.22 of the Constitution Act, 1867. of the Constitution Act, 1867.

    4. He said that even if the Lower House were altogether liberal, the Upper House would remain composed of conservatives; this was his fear. He has been a long while trying to gain predominance for his democratic notions, but it is evident he will not succeed.

      §.22 of the Constitution Act, 1867. of the Constitution Act, 1867.

    5. relative to the constitution of the Legislative Council, and said that he had not looked at the question, while speaking the other evening, in the same light as the honorable member for the county of Quebec. He spoke of the conservatives as a party, and his fear was, not that the Upper House would not be conservative enough, but that it would be too much so.

      §.22 of the Constitution Act, 1867. of the Constitution Act, 1867.

    6. MR. GEOFFRION—YOU have equality between the two provinces. HON. ATTY. GEN. CARTIER—Yes, we have equality, but not as a race, nor in respect of religion. When the leader for Lower Canada shall have sixty-five members belonging to his section to support him, and command a majority of the French-Canadians and of the British from Lower Canada, will he not be able to upset the Government if his colleagues interfere with his recommendations to office? That is our security. At present, if I found unreasonable opposition to my views, my remedy would be to break up the Government by retiring, and the same thing will happen in the Federal Government.

      §.22 of the Constitution Act, 1867. of the Constitution Act, 1867.

    7. HON. ATTY. GEN. CARTIER—Am I not in a minority at present in appointing judges? And yet when I propose the appointment of a judge for Lower Canada, is he not appointed?

      §.22 of the Constitution Act, 1867. of the Constitution Act, 1867.

    8. the objection of the honorable member for the county of Quebec is well founded, because the Federal Government may appoint all English or all French-Canadians as legislative councillors for Lower Canada. If the honorable member had read the resolutions, he would have found that the appointments of legislative councillors are to be made so as to accord with the electoral divisions now existing in the province. Well, I ask whether it is probable that the Executive of the Federal Government, which will have a chief or leader as it is nowVI ask whether it is very probable that he will recommend the appointment of a French-Canadian to represent divisions like Bedford or Wellington for instance?

      §.22 of the Constitution Act, 1867. of the Constitution Act, 1867.

    9. Lower Canada is in a peculiar position. We have two races of people whose interests are distinct from each other in respect to origin, language and religion. In preparing the business of the Confederation at Quebec, we had to conciliate these two interests, and to give the country a Constitution which might reconcile the conservative with the democratic element; for the weak point in democratic institutions is the leaving of all power in the hands of the popular element. The history of the past proves that this is an evil. In order that institutions may be stable and work harmoniously, there must be a power of resistance to oppose the democratic element. In the United States the power of resistance does not reside in the Senate, nor even in the President.

      §.22 of the Constitution Act, 1867. of the Constitution Act, 1867.

    10. a class of men who would not represent the province for which they are appointed, and who could give no pledge that they would maintain its institutions.

      §§.24, 25, 26, and 28 of the Constitution Act, 1867. of the Constitution Act, 1867.

    11. he will see that the first nominations are to be made by the existing governments. Thus the Government of Canada, that of New Brunswick and that of Nova Scotia will appoint legislative councillors, but afterwards the Federal Government will make the appointments. The honorable member for Quebec can, with reason, draw the conclusion that there is no guarantee that the views of the provinces will be respected. I for my part have investigated the matter, more in connection with the power that will be vested in the legislative councillors. I asserted that by appointing them for life and limiting their number, an absolute authority would be created, which would be quite beyond the control of the people and even of the Executive; that the power of this body will be so great, that they will always be in a position to prevent every reform if they thought proper, and that a collision between the two branches would be inevitable and irremediable. The danger arising from the creating of such a power is exactly that of being obliged to destroy it if they resist too obstinately the popular demands. In England there is no necessity for breaking down the obstructions sometimes presented by the House of Lords, because the Crown having it in its power to appoint new peers, can overcome the difficulty. Here there will be no means of doing it, when the number of councillors is fixed. Accordingly, I have looked at the question through the medium of the powers assigned to the councillors, whereas the honorable member for the county of Quebec fears lest the Government should make choice of men who would not represent public opinion in the provinces; that they might appoint members all of French origin or all of English origin to represent Lower Canada, or take them all from among

      §§.24, 25, 26, and 28 of the Constitution Act, 1867. of the Constitution Act, 1867.

    12. In our Constitution it is the duty of the Legislative Council to exercise the conservative influence, and to modify the legislation too energetic and too full of outside effervescence, which is sent for their consideration from the House of Commons. But when public opinion gains vigor from the obstacles which it encounters, and the reforms demanded are rational and come before them in due course, there is no danger that the legislation which embodies them will be obstructed in its progress; for the people will rise in their majesty and in their sense of justice, as did the people of England in 1832, and the obstacles they might meet with on their way would be swept away as by a torrent. (Hear, hear.) HON. MR. DORION—That is exactly where the danger lies. HON. MR. CAUCHON—That is the danger which assailed the House of Lords in 1832, but no one would venture to confront to the last extremity a danger such as this. But the honorable member for Quebec tells us, if I understand him rightly, that we have not sufficient guarantees for Lower Canada in the appointment of the legislative councillors. The selection of legislative councillors has no bearing whatever on the question we are now considering, viz., whether the appointment by the Crown is or is not preferable to the elective principle. But in answer to him I will say, that the scheme before us seems to be quite clear. According to this plan the candidates for the Legislative Council will be recommended by the local governments and appointed by the General Government, and it is by this very division of powers that the selections are sure to be good, and made in conformity with the desire and sentiments of the provinces. HON. MR. DORION—Only the first nominations are to be made in this manner, not those which may be made afterwards. HON. MR. CAUCHON—The first nominations will be made by the present Governments, and the federal councillors will be taken from the present legislative councillors to the number prescribed, 24, provided so many can be found who will accept the post, and who possess the requisite property qualification. The Conference has engaged, by the terms of the scheme, to respect the rights of the Opposition, and any government who should fail to carry out so solemn an engagement would well deserve to lose the public confidence. (Hear, hear.) I repeat that the mode of appointing the councillors in no wise affects the conservative principle of nomination on which the constitution of the Legislative Council ought to be based.

      §§.24, 25, 26, and 28 of the Constitution Act, 1867. of the Constitution Act, 1867.

    13. It is true that the House of Lords, Conservative though it be, finds itself removed from all popular influence; but its numbers may be increased upon the recommendation of the responsible advisers of the Crown, if such a measure were to become necessary to obtain the concurrence of both Houses, or to prevent a collision between them. The position which its members occupy in it establishes a sort of compromise between the Crown and the popular element. But this new House, after Confederation, will be a perfectly independent body; its members will be nominated for life, and their number cannot be increased. How long will this system work without bringing about a collision between the two branches of the Legislature? Let us suppose the Lower House composed in a great part of Liberals, for how long a time would it submit to an Upper House named by Government? Be kind enough to observe, Mr. SPEAKER, that under the old system, the Legislative Council possessed the same elements of existence as the House of Lords, and that the Crown could increase its numbers at need; it augmented it in 1849, as it threatened to augment the House of Lords in 1832. Observe, again, that it is precisely this control exercised by the Crown over the Upper House that the hon. gentleman found so fatal to legislation previous to 1856. But there is a more rational manner of appreciating the part sustained by the House of Lords in the British Constitution. No one denies to the Sovereign the abstract right of increasing at will the House of Lords; but such right has never been exercised but for the purpose of rewarding men distinguished for great national services and when, in 1832, WILLIAM IV. granted Earl GREY the tremendous power to swamp the representative body of the great landed nobility, it was because the country was moving with rapid strides towards revolution, and because there remained to the Sovereign but two alternatives, either to lessen the moral weight of the House of Lords, or to see his own throne knocked to pieces from under his feet.

      §§.22, 24, 26, 51, and 52 of the Constitution Act, 1867. of the Constitution Act, 1867.

    14. It must then have been a real revolution, this nomination of one hundred new peers, a revolution as real as that which menaced the Throne; and do we not feel persuaded that if one day our Federal Legislative Council were to place itself obstinately and systematically in opposition to popular will, matured and strengthened by ordeals, it would not be swept away by a revolutionary torrent such as threatened to sweep away the House of Lords in 1832? This Council, limited as to numbers , because the provinces insist on maintaining in it an equilibrium without which they would never have consented to a union, this Council, sprung from the people—having the same wants, hopes and even passions, would resist less the popular will in America, where it is so prompt and active, than could the House of Lords in England, where the masses are inert because they have not political rights; reason tells us thus because they would be a less powerful body socially or politically.

      §§.22, 24, 26, 51, and 52 of the Constitution Act, 1867. of the Constitution Act, 1867.

    15. We have accorded the principle of representation based upon population in the House of Commons of the Federal Government, and that is without doubt a great sacrifice; but we ought only to make so important a concession on the condition that we shall have equality of representation in the Legislative Council, and the right reserved to ourselves to appoint our twenty-four legislative councillors, in order that they may be responsible to the public opinion of the province and independent of the Federal Government.—Without this essential guarantee I affirm that the rights of Lower Canada are in danger. For my part I am ready, on behalf of Lower Canada, to give up her right to elect directly her twenty-four legislative councillors, although the retention of the elective principle might perhaps be the surest means of preserving our institutions; but I am anxious that the new Constitution now proposed should give us adequate guarantees that the legislative councillors to be appointed for life should, at all events, be selected by the Local Government of Lower Canada, which would be responsible to the people. These not ill-grounded sources of anxiety I should like to see removed.

      §§.22, 24, 51, and 52 of the Constitution Act, 1867. of the Constitution Act, 1867.

    16. in relation to the qualifications and appointment of the legislative councillors. Like him, I am quite of opinion that the conservative element ought, of necessity, to be the basis of the Legislative Council, to counterbalance the popular element. This principle governed the constitution of the House of Lords in England, that of the Legislative Council in Belgium, and that of every well organized representative government.

      §.23 of the Constitution Act, 1867. of the Constitution Act, 1867.

    17. In the scheme of the Quebec Conference there was no delegation of the supreme authority, either from above or below, inasmuch as the provinces, not being independent states, received, their political organizations from the Parliament of the Empire.

      §.93 of the Constitution Act, 1867.

    18. The hon. member for Hochelaga has declared that he was willing to accord to the Protestants the guarantees of protection which they sought for the education of their children; but in this he has been forestalled by the Quebec Conference and by the unanimous sentiment of the Catholic population of Lower Canada. If the present law be insufficient, let it be changed. Justice demands that the Protestant minority of Lower Canada shall be protected in the same manner as the Catholic minority of Upper Canada, and that the rights acquired by the one and the other shall not be assailed either by the Federal Parliament or the local legislatures.

      §.93 of the Constitution Act, 1867.

    19. Protestantism dominates in the government and in the legislature, and yet has not Catholicity been better treated, and has it not been better developed, with more liberty and more prosperity than under the regime of the Constitution of 1791. (Hear, hear.) Living and laboring together we have learned to know, to respect, to esteem each other, and to make mutual concessions for the common weal.

      §.93 of the Constitution Act, 1867.

    20. On the contrary, did it not emancipate the latter, civilly and religiously, and did it not give that minority privileges which it had not hitherto possessed? If our people are inflexibly attached to our faith, it is also full of toleration, of good-will towards those who are not of the same belief.

      §.93 of the Constitution Act, 1867.

    21. Before the union, the parliamentary majority in Lower Canada was Catholic, and although it was long involved in a struggle with power, was it ever guilty of an injustice towards the Protestant minority?

      §.93 of the Constitution Act, 1867.

    22. It appears therefore that the only alternative which now offers itself to the inhabitants of Lower Canada is a choice between dissolution pure and simple, or Confederation on one side, and representation by population on the other. And however opposed Lower Canada may be to representation by population, is there not imminent danger that it may be finally imposed upon it, if it resist all measures of reform, the object of which is to leave to the local authorities of each section the control of its own interests and institutions. We should not forget that the same authority which imposed on us the Act of Union, or which altered it without our consent, by repealing the clause which required the concurrence of two thirds of the members of both Houses in order to change the representation respecting the two sections, may again intervene to impose upon us this new change.

      Preamble, Part V, §§.51, 52, 91, 91(1), 92, and 92(2) of the Constitution Act, 1867. of the Constitution Act, 1867.

    23. The example of the neighboring states, in which the application of the Federal system has shown us how fitting it was to the government of an immense territory, inhabited by people of different origins, creeds, laws and customs, has no doubt suggested the idea; but it was only in 1856 that this proposition was enunciated before the Legislature by the Lower Canadian Opposition, as offering, in its opinion, the only effective remedy for the abuses produced by the present system.

      §§.91 and 92 of the Constitution Act, 1867.

    24. The honorable member for Brockville, the Postmaster General, the Speaker, and other members representing Lower Canadian counties, in the present Parliament, have already voted for representation by population. Before long, it will become impossible to resist the demand of Upper Canada in this respect. If representation by population be not granted now, it will infallibly obtain it later, but then without any guarantee for the protection of the French Canadians.

      §§.51 and 52 of the Constitution Act, 1867.

    25. Representation “based upon population was one of the least causes of this project. [And further on] : But, as soon as the Government found itself, after its defeat, obliged either to resign or to appeal to the people, gentlemen on the other side of the House, without there being the slightest agitation on this question, prepared to embrace their most violent adversaries, and said to themselves: ” We are going to forget our past differences, provided we can preserve our portfolios. “

      §§.51 and 52 of the Constitution Act, 1867.

    26. Necessarily, I do not mean to say that I shall always be opposed to Confederation. The population may extend itself, and cover the virgin forests which exist between Canada and the Maritime Provinces, and commercial relations may increase in such a manner as to render Confederation necessary.

      §§.51 and 52 of the Constitution Act, 1867.

    27. Mr. DORION argued that when Lower Canada had the preponderance of population, complaints were of the inequality of the representation of that section. The union of Belgium and Holland, which was somewhat similar to that at present existing between Upper and Lower Canada was dissolved when it was found it did not work advantageously to both countries. He instanced a number of questions on which it was impossible for Upper and Lower Canada to agree; public feeling being quite dissimilar— subjects popular in one section being the reverse in the other. He warned Lower Canada members, that when the time came that the whole of the representatives from the western portion of the province would be banded together on the question, they would obtain representation by population, and secure the assistance of the Eastern Township members in so doing. He regarded a Federal union of Upper and Lower Canada as a nucleus of the great Confederation of the North American Provinces to which all looked forward. He concluded by saying he would vote for the resolution, as the only mode by which the two sections of the province could get out of the difficulties in which they now are. He thought the union ought to be dissolved, and a Federal union of the provinces would in due time follow.

      §§.51 and 52 of the Constitution Act, 1867.

    28. The honorable member for Brockville, the Honorable Postmaster General, the Speaker, and other members representing Lower Canadian counties in the present Parliament, have voted for representation by population. Before long, it will be impossible to resist the demands of Upper Canada in this respect. If representation by population is not granted now, it will infallibly obtain it at a later period, but then without any guarantees for the protection of the French- Canadians. The repeal of the union, a Federal union, representation based on population, or some other great change must in all necessity take place, and for my part I am disposed to consider the question of representation by population, in order to see if it may not be conceded with guarantees for the protection of the religion, the language, and the laws of Lower Canadians. I am equally ready to take into consideration the project of a Confederation of the provinces, leaving to each section the administration of its local affairs, as for example the power of regulating its own civil, municipal and educational laws; and to the General Government the administration of the public works, the public lands, the post-office department, and commerce.

      §§.51, 52, 91, and 92 of the Constitution Act, 1867. of the Constitution Act, 1867.

    29. With the control of our public lands in our own hands, we can attract the tide of emigration, retain our own people in the country, and advance in prosperity as rapidly as the other provinces.

      §§.92(5), 95, and 109 of the Constitution Act, 1867.

    30. It will be said that the national life of Lower Canada is so deeply rooted, that it is impossible to destroy it; but, if we desire to secure its safety, we must accept the present scheme of Confederation, under which all the religious interests of Lower Canada, her educational institutions, her public lands, in fact everything that constitutes a people’s nationality, will find protection and safety.

      §.93 of the Constitution Act, 1867.

    31. The Conservative party has always opposed representation by population under the present union, because under this union we are face to face with the population of a country of which the products are different from ours, and of which the interests are not always identical with ours. This question was strongly agitated. The whole people of Lower Canada resisted that demand, and the whole Conservative party firmly refused to consent to it, while the other party—the Opposition party—held out hopes to those who demanded that measure, and allied themselves with them.

      §§.51 and 52 of the Constitution Act, 1867.

    32. The Federal system is the normal condition of American populations; for there are very few American nations which have not a political system of that nature. The Federal system is a state of transition which allows the different races inhabiting the same part of the globe to unite, with the view of attaining national unity and homogeneousness. Spain, Belgium, France, and several other European countries were formerly peopled by different races, who constituted so many different communities; but they became united, they entered into confederations, and in the course of ages all the communities were consolidated into those which we now see—into everything that is held to be beautiful, noble and great throughout the whole world. When the Federal system has been put in practice in an enlightened manner, it has always sufficed for the requirements of those who adopted it.

      §§.91 and 92 of the Constitution Act, 1867.

    33. These powers of the Federal Government are not, as we understand the matter, to be exercised, except as regards the following subjects, viz., Commerce, comprising purely commercial laws, such as laws respecting banks and other institutions of a general financial character, coinage, and weights and measures; Customs, including the establishment of a uniform tariff, and the collection of the revenue resulting therefrom; great Public Works and Navigation, such as canals, railways, telegraph lines, great seaport works and the lighting of the coast; Post Office arrangements, both in their entirety and in their internal and external details; the Militia in the entirety of its organization; Criminal justice, comprising all offences which do not come under the jurisdiction of the police courts and justices of the peace. Everything else connected with civil law, education, public charities, the settlement of public lands, agriculture, city and rural police, road works, in fact, with all matters relating to the family life, so to speak, of each province, will remain under the exclusive control of the respective Local Government of each one of them, as by inherent right; the powers of the Federal Government being looked upon as merely a concession of rights, which are specially designated.

      §§.91 and 92 of the Constitution Act, 1867.

    34. [Page 576]
    35. [Page 575]
    36. we shall always have our court of final appeal in Her Majesty’s Privy Council
    1. If, as has been alleged, a legislative union is unattainable, because inconsistent with due securities for the rights guaranteed to the French Canadians, by treaty or by the Quebec Act, and Federation is therefore the only alternative, the vital question for the framers of this Constitution is how the inherent weakness of all federations can in this instance be cured, and the Central Government armed with a sovereignty which may be worthy of the name. It is the essence of all good governments to have somewhere a true sovereign power. A sovereignty which ever eludes your grasp, which has no local habitation, provincial or imperial, is in fact no government at all. Sooner or later the shadow of authority which is reflected from an unsubstantial political idea must cease to have power among men. It has been assumed by those who take a sanguine view of this political experiment, that its authors have steered clear of the rock on which the WASHINGTON Confederacy has split. But if the weakness of the Central Government is the rock alluded to, we fear that unless in clear water and smooth seas, the pilot who is to steer this new craft will need a more perfect chart than the resolutions of the Quebec Conference afford, to secure him against the risks of navigation.

      §§.91 and 92 of the Constitution Act, 1867.

    2. What we have to fear, and if possible to guard against, is the constant peril of a three-fold conflict of authority implied in the very existence of a federation of dependencies retaining, as now proposed, any considerable share of intercolonial independence.

      §§.91 and 92 of the Constitution Act, 1867.

    3. We are to buy the Hudson’s Bay territory, and take care of it, and make a grand road all across the continent, which Great Britain shrinks from contemplating herself.

      §§.121 and 146 of the Constitution Act, 1867. of the Constitution Act, 1867.

    4. The completion of the Intercolonial Railway, and the probable annexation of the fertile portions of the Great North-Western territory to the new Confederation, form a portion only of the probable consequences of its formation, the benefits of which will not be limited to the colonies alone, but in which Europe and the world at large will eventually participate. When the Valley of the Saskatchewan shall have been colonized, the communications between the Red River Settlement and Lake Superior completed, and the harbour of Halifax united by one continuous line of railway, with the shores of Lake Huron, the three missing links between the Atlantic and Pacific ocean will have been supplied.

      §§.121 and 146 of the Constitution Act, 1867. of the Constitution Act, 1867.

    5. The result of these proposals, if carried into effect, would be the creation of a new state in North America, still retaining the name of a British dependency, comprising an area about equal to that of Europe, a population of about four millions, with an aggregate revenue in sterling of about two millions and a half, and carrying on a trade (including exports, imports and intercolonial commerce) of about twenty-eight millions sterling per annum. If we consider the relative positions of Canada and the Maritime Provinces—the former possessing good harbors, but no back country, the former an unlimited supply of cereals, but few minerals; the latter an unlimited supply of iron and coal, but little agricultural produce. The commercial advantages of union between states so circumstanced, are too obvious to need comment. The completion of the Intercolonial Railway, and the probable annexation of the fertile portions of the Northwest territory to the new Confederation, form a portion only of the probable consequences of its formation, but in which Europe and the world at large will eventually participate. When the—

      Preamble, §§.121 and 146 of the Constitution Act, 1867. of the Constitution Act, 1867.

    6. A very important question, on which these papers afford no information, is that relating to the future condition of those territories and dependencies of the Crown in North America, which are not included within the present boundaries of the five provinces. “We allude more particularly to the territories now held by the Hudson’s Bay Company, under the Crown, by charter or lease. The Crown is doubtless bound to take care that the interest of its grantees—[it never seems to have occurred to our friend that we, too, are grantees]—are not prejudiced by these changes; but, on the other hand, an English trading company is ill qualified to carry on the government and provide for the defence of a vast and inaccessible expanse of continental territory.

      §.146 of the Constitution Act, 1867.

    7. “The second point which Her Majesty’s Government desire should be reconsidered”—and this phrase is positively, so far as words can give it, a command on the part of Her Majesty’s Government that it shall be reconsidered :— The second point which Her Majesty’s Government desire should be reconsidered is the constitution of the Legislative Council. They appreciate the considerations which have influenced the Conference in determining the mode in which this body, so important to the constitution of the Legislature, should be composed. But it appears to them to require further consideration whether, if the members be appointed “for life, and their number be fixed, there will be any sufficient means of restoring harmony between the Legislative Council and the popular Assembly, if it shall ever unfortunately happen that a decided difference of opinion shall arise between them. These two points, relating to the prerogative of the Crown and the Constitution of the Upper Chamber have appeared to require distinct and separate notice. Is not that a pretty emphatic dissent ?

      §§.24 and 26 of the Constitution Act, 1867.

    8. Her Majesty’s Government cannot but express the earnest hope, that the arrangements which may be adopted in this respect may not be of such a nature as to increase—at least in any considerable degree—the whole expenditure, or to make any material addition to the taxation, and thereby retard the internal industry, or tend to impose new burdens on the commerce of the country.

      §.92(2) of the Constitution Act, 1867.

    9. First, an objection is raised as to the want of accurate determination of the limits between the authority of the Central and that of the local legislatures.

      §§.91 and 92 of the Constitution Act, 1867.

    10. It is quite right that the General Government should have such powers; but the very fact of our having to make a reservation of this kind, is an unpleasant recognition of the fact, in itself the reverse of encouraging, of the all darkening neighborhood of the United States.

      §.33 of the Constitution Act, 1867.

    11. We are here proposing to create in this part of the Queen’s dominions a mere sub-federation, so to speak, tending, so far as it tends to anything, towards the exclusion of this kind of provision.

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    12. if our connection with the Empire is to last, we must have—this department of our public affairs attended to by a regularly appointed Minister of the Crown here, who, whenever occasion requires, may explain them and who shall be responsible to this House. Of course, nobody denies that the Governor General is the channel of communication between us and the Imperial Government. He is the Queen’s representative and servant, and his communications with the Home Government must be of the most confidential character, except in so far as he may see fit to make them known. But fully admitting this, still besides those communications of this character which he may, have and indeed at all times must have unrestrictedly with the Imperial Government, there should be—and, if our Imperial relations are to be maintained, there must be—a further class of communications between the two governments, as to which the Governor should be advised by a minister whose particular duty it should be to manage affairs between the Mother Country and ourselves, and to be in effect a local adviser, as to such matters, of the Imperial advisers of the Crown in England.

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    13. dency. (Hear, hear.) All the great provinces are flying off too much, attending too exclusively to mere local considerations, too little to those of the general or Imperial kind. And at home, as we seem to be flying off, they, too, are thinking of us and of the interests they and we have in common less and less. What is wanting, if one is to look to the interest of the Empire, which is really that of all its parts—what is wanting, as I have said, is an effective federalization of the Empire as a whole, not a subordinate federation here or there, made up out of parts of it. I have neither time nor strength to-night to go fairly into the question of how this thing should be done; but a few words more as to that, I must be pardoned for.

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    14. Your Federal Government will occupy about as anomalous a position between the Imperial and provincial governments as I showed, last night, will be occupied by your lieutenant governors between the Federal authority and the provinces. Both will be out of place, and to find themselves in work they must give trouble. I do not see how they can do good, but I do see how they can do any quantity of harm. (Hear, hear.) The real difficulty in our position is one that is not met by the machinery here proposed. What is that difficulty? In the larger provinces of the empire we have the system of responsible government thoroughly accorded by the Imperial Government, and thoroughly worked out; and the difficulty of the system that is now pressing, or ought to be, upon the attention of our statesmen is just this—that the tie connecting us with the Empire, and which ought to be a federal tie of the strongest kind, is too slight, is not, properly speaking, so much as a federal tie at all. These provinces, with local responsible government, are too nearly in the position of independent communities; there is not enough of connection between them and the parent state to make the relations between the two work well, or give promise of lasting long. There is in the machinery too much of what may be called the centrifugal ten-

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    15. when we propose to create a Federal Government between the Imperial and Provincial, we are equally proposing to create a something which, having nothing of its own to do, must find work by encroaching on the functions of the Imperial and provincial governments in turn, with no place among nations, no relations with other countries, no foreign policy; it will stand in just the same position towards the Imperial Government as Ganada now stands in, or as Upper or Lower Canada before the union used to occupy. That intermediate work of government which is now done by the Province of Canada, the Province of New Brunswick, the Province of Nova Scotia, the Province of Prince Edward Island and the Province of Newfoundland, is to be done, part by the Federal Government and part by the provinces. The work is simply divided that is now done by the provincial legislatures and governments, and in my opinion there is no use in this subdivision of work at all. You are putting this fifth wheel to the coach, merely to find out that a misfitting odd wheel will not serve any useful purpose, nor so much as work smoothly with the other four.

      §§.91, 92, and 132 of the Constitution Act, 1867.

    16. The Imperial Government will be the head of the Empire as much as ever, and will alone have to attend to all foreign relations and national matters ; while we shall be nothing more than we are now. Half-a-dozen colonies federated are but a federated colony after all. Instead of being so many separate provinces with workable institutions, we are to be one province most cumbrously organised—nothing more.

      §.132 of the Constitution Act, 1867.

    17. Unlike the people of the United States, we are to have no foreign relations to look after, or national affairs of any kind; and therefore our new nationality, if we could create it, could be nothing but a name. I must say that according to my view of the change we ought to aim at, any idea of Federation that we may entertain had need take an Imperial direction. Whenever changing our institutions, we had need develop and strengthen—not merely maintain, but maintain, develop and strengthen—the tie, not yet Federal as it ought to be, between us and the parent state.

      §.132 of the Constitution Act, 1867.

    18. I am free to admit that a reduction of the tariff on certain articles, or even some measure of reduction all round, might be no material loss, or might even be a gain, to the revenue— in ordinary or prosperous times, that is to say. But when the object of reducing the tariff is to meet other exigencies than those of revenue, one can hardly hope to get such a tariff as shall give us the largest revenue attainable. And besides, no one can deny that we are about entering upon a time, commercially speaking, that may be termed hard.

      §.121 of the Constitution Act, 1867.

    19. We are marching fast and steadily towards free trade. We must meet the views of the people of the Lower Provinces, who are hostile to high tariffs, and the demand of the Imperial authorities that we should not tax their manufactures so heavily as—in their phrase—almost to deprive them of our market. It was distinctly and officially stated the other day, in Newfoundland, that assurance had been given to the Government of Newfoundland that the views of the Canadian Government are unmistakably in this direction. And I do not think there is any mistake about that, either. To show how people at home, too, expect our tariff to come down, I may refer to the speech of Mr. HAMBURY TRACY, in seconding the Address in answer to the Speech from the Throne, in the House of Commons the other day. He could not stop, after saying generally that he was pleased with this Confederation movement, without adding that he trusted it would result in a very considerable decrease in the absurdly high and hostile tariff at present prevailing in Canada.

      §.121 of the Constitution Act, 1867.

    20. The same sort of thing may be looked for in reference to the New Brunswick timber export duty and the Nova Scotia mineral export duty. Here is one form of the cry that may be raised; ” You give these exceptional privileges to New Brunswick and Nova Scotia; give them, or some equivalent, to us also.”

      §.109 of the Constitution Act, 1867.

    1. [Page 29]
    2. [Page 41]
    3. In order to protect local interests, and to prevent sectional jealousies, it was found requisite that the three great divisions into which British North America is separated, should be represented in the Upper House on the principle of equality. There are three great sections, having different interests, in this proposed Confederation.
    4. To the Upper House is to be confided the protection of sectional interests ; therefore is it that the three great divisions are there equally represented, for the purpose of defending such interests against the combinations of majorities in the Assembly.
    1. We may, however, place just confidence in the development of our resources, and repose in the belief that we shall find in our territorial domain, our valuable mines and our fertile lands, additional sources of revenue far beyond the requirements of the public service.

      §.118 of the Constitution Act, 1867

      Referenced in Re: Exported Natural Gas Tax, [1982] 1 SCR 1004, 1982 CanLII 189 (SCC)

    2. [Page 69]
    3. If we require to find an example of the benefits of free commercial intercourse, we need not look beyond the effects that have followed from the working of the Reciprocity Treaty with the United States. In one short year from the time when that treaty came into operation, our trade in the natural productions of the two countries swelled from less than $2,000,000 to upwards of $20,000,000 per annum, and now, when we are threatened with an interruption of that trade—when we have reason to fear that the action of the United States will prove hostile to the continuance of free commercial relations with this country, when we know that the consideration of this question is not grounded on just views of the material advantages resulting to each country but that the irritation connected with political events exercises a predominant influence over the minds of American statesmen, it is the duty of the House to provide, if possible, other outlets for our productions. If we have reason to fear that one door is about to be closed to our trade, it is the duty of the House to endeavour to open another; to provide against a coming evil of the kind feared by timely expansion in [Page 65] another direction; to seek by free trade with our own fellow colonists for a continued and uninterrupted commerce which will not be liable to be disturbed at the capricious will of any foreign country.

      §.121 of the Constitution Act, 1867

      Referenced in R v Comeau, 2016 NBPC 3 (CanLII).

    4. Now, when we were united together, if union were attained, we would form a political nationality with which neither the national origin, nor the religion of any individual, would interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races was Utopian—it was impossible. Distinctions of this kind would always exist. Dissimilarity, in fact, appeared to be the order of the physical world and of the moral world, as well as in the political world. But with regard to the objection based on this fact, to the effect that a great nation could not be formed because Lower Canada was in great part French and Catholic, and Upper Canada was British and Protestant, and the Lower Provinces were mixed, it was futile and worthless in the extreme. Look, for instance, at the United Kingdom, inhabited as it was by three great races. (Hear, hear.) Had the diversity of race impeded the glory, the progress, the wealth of England? Had they not rather each contributed their share to the greatness of the Empire? Of the glories of the senate, the field, and the ocean, of the successes of trade and commerce, how much was contributed by the combined talents, energy and courage of the three races together? (Cheers.) In our own Federation we should have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new Confederacy. (Hear, hear.) We viewed the diversity of races in British North America in this way: we were of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.
    1. [Page 88]

      §. 26 of the Constitution Act, 1867

      Referenced in Singh v. Canada (Gen. Div.), 1990 CanLII 6922 (ON SC)

    2. But the very essence of our compact is that the union shall be federal and not legislative. Our Lower Canada friends have agreed to give us representation by population in the Lower House, on the express condition that they shall have equality in the Upper House. On no other condition could we have advanced a step ; and, for my part, I am quite willing they should have it. In maintaining the existing sectional boundaries and handing over the control of local matters to local bodies, we recognize, to a certain extent, a diversity of interests ; and it was quite natural that the protection for those interests, by equality in the Upper Chamber, should be demanded by the less numerous provinces.
    1. accustom the people to direct taxation

      §§.91(3) and 92(2) of the Constitution Act, 1867.

    2. Men who for years past have devoted their pen to the unhallowed work of undermining the Catholic religion and vilifying its ministers, who have long aimed at destroying in the minds of French-Canadians all love for their peculiar institutions—the safeguards of our nationality

      §.93 of the Constitution Act, 1867.

    3. any injustice to Upper Canada could arise. And then my honorable friend will see how it is to be distributed afterwards in the way of population, so that although there might be a little loss in the first instance, there would be an immense gain in the end.

      §§.51 and 52 of the Constitution Act, 1867.

    4. We find a section of the people in Lower Canada opposing the work on the ground that it will tend to destroy their language and nationality ; and we find also the British element in Lower Canada complain that in the arrangement for the Local Legislature their rights and privileges will be swept away. (Hear, hear.) On the other hand, Upper Canadians are opposing the scheme as injurious to their true interests, and asserting that the financial difficulties likely to arise under it will be detrimental to the welfare of the west ; so that where there is such great diversity of opinion, it was impossible to mature a scheme which should be in all respects perfect and satisfactory. No doubt Upper Canada has some cause to complain. For instance, the eighty cents per head for carrying on the local governments appears unfair in principle to Upper Canada, and as such they have reason to feel dissatisfied. This apportionment is on the present basis of population, and whatever may be the increase in numbers of the western section of the province, if even we increase during the next ten years in the same ratio that we have been increasing for the past ten years ; if we double our population we shall still only get the eighty cents per head for the present population. There is no doubt this is an objectionable feature. HON. MR. BROWN—Will my honorable friend allow me to assure him that he is slightly in error, and to show him how he is so ? Supposing we increase in population, the other provinces will increase also, and the only unfairness that could possibly exist in the case supposed would be in so far as the population of Upper Canada was relatively greater than that of the other provinces. HON. MR. HOLTON—It is a matter of ratio. HON. MR. BROWN—Yes, it is simply a question of ratio. My honorable friend will see how the principle works. At the rate we are proceeding now, some 2 1/2, 3, or 4 per cent., it would take a great many years before

      §§.51 and 52 of the Constitution Act, 1867.

    5. But I have failed to see, and I yet fail to see, that the Liberal party of Upper Canada have ever given up the advocacy of representation by population. We found all parties in Lower Canada—both the English-speaking population and French-speaking population —refusing to concede to us what we conceived to be this just and proper principle; and when the opportunity was offered to us of relieving the country from its difficulties, we felt that no party considerations or party ties should be allowed to interfere with what we conceived to be our sacred duty to our constituents and our country.

      §§.51 and 52 of the Constitution Act, 1867.

    6. As a commercial work, I have looked into it in all its bearings, and have failed to see the advantages it will confer. The farmers of the grain-producing districts of Upper Canada have the same market to sell their surplus products as the farmers of the States, that is, the English market. Now, I think it is impossible to show that the produce of Upper Canada can be conveyed by this Intercolonial Railway to the seaboard, and thence to Liverpool, as profitably as the Americans can carry it to the seaboard at New York and thence to the English market. If by the one route the grain cannot be carried as cheaply as by the other, it is impossible for the Canadian farmer or merchant to be placed in as good a position as the American. But if, having constructed the Intercolonial Railway, our Government says, ” We will compete with the Americans ; we will put the rates of transportation so low as to offer our farmers as cheap a route by it as by the States,” then the cost of this will have to be borne by the people in another way, for the road failing to pay even expenses, the excess of expenditure will become a charge upon the country for years.

      §.121 of the Constitution Act, 1867.

    7. Now, sir, I believe that in a commercial, agricultural, and defensive point of view, the union would be desirable. Placed as we are now, with the abrogation of the Reciprocity treaty threatened, does it not become our duty, I ask, to make some effort to change and improve our condition ? As I stated, sir, the subject has been so ably placed before this House by honorable gentlemen who have preceded me, and who are so much more capable of dealing with it than I am, that I will not attempt to repeat the arguments in favor of this scheme, commercially, financially, and politically, which have already been adduced. But there are one or two points as to the resources of the whole of British North America, to which I would for a moment invite the attention of the House. The union is desirable with a view to the development of our mineral resources. In British Columbia and Vancouver’s Island the gold fields equal, if they do not exceed in value, those of any other part of the world. Iron we have in that vast extent of country lying between the Rocky Mountains and Lake Superior, a country equal if not superior, for the purposes of settlement and cultivation to any we have in Canada, and whose area is estimated at from eighty to one hundred million acres. Then, again, we have magnificent iron and copper mines in Canada, while the Lower Provinces possess vast mineral resources, extensive coal fields, and valuable fisheries.

      §.121 of the Constitution Act, 1867.

    8. 33rd sub-section gives to the General Gov.- ornament the power of ” rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, and rendering uniform the procedure of all or any of the courts in these provinces ; but any statute for this purpose shall have no force or authority in any province until sanctioned by the legislature thereof.” So that in reality no such law will be binding until it has the sanction of the Local Legislature of the province particularly affected thereby. Such being the guarded terms of the resolution, why is it not made applicable to Lower Canada as well as to the other provinces ? Nothing could be done respecting its peculiar laws without the consent of its Local Legislature, and it is quite possible to my mind, that there are some laws which it would be advantageous to all parts of the Confederation to assimilate. But they emphatically declare in these redo- lotions that there shall be no interference with the laws of Lower Canada. So that while it is proposed to assimilate the laws of the other provinces, there is a large section of intervening country which is to have, for all time to come, laws separate and distinct from the rest.

      §§.93 and 94 of the Constitution Act, 1867.

    9. Well, provision has been made for the consolidation of these laws; but observe how religiously the laws of Lower Canada are guarded from interference. The

      §§.93 and 94 of the Constitution Act, 1867.

    10. however, have said that they were in favor of direct taxation for the support of the local governments, because it would lead those who have to pay the taxes to look more closely into what was going on, and the manner in which their money was expended. (Hear, hear.) There seems also to have been a feeling in the Lower Provinces in favor of a legislative union, and the Hon. Mr. GREY seems to be combatting that idea. He says that with a legislative union, municipal institutions, and direct taxation in every province, would be the only means of getting along. He expressed himself as opposed to that and in favor of a Federal union, which he thought would afford them all the advantage that could be attained, commercially, by union, and would allow each province to retain control over its own local affairs. The local legislatures, he said, were to be deprived of no power over their own affairs that they formerly possessed. But in Canada it was represented that the local legislatures were to be only the shadow of the General Legislature—that they were to have merely a shadow of power, as all their proceedings were to be controlled by the Federal Government. That is the position taken by the advocates of the measure on this floor. So it seems that those gentlemen who have represented to us that they acted in great harmony, and came to a common decision when they were in conference, take a widely different view of the questions supposed to have been agreed upon, and give very different accounts of what were the views of parties to the conference on the various subjects. (Hear, hear.) In the Lower Provinces they were strongly opposed to direct taxation, while here it was present end as one of the advantages to accrue from the Federation. (Cries of No, no.) Well, Mr. SPEAKER, I say yes. That view of the case has been taken. If the amount allowed for the expenses of local legislation—the 80 cents per head—was found insufficient, the local parliaments must resort to direct taxation to make up the deficiency, while in tile Lower Provinces, it seems, nothing of that kind was to follow.

      §§.91(3), 92(2), and 121 of the Constitution Act, 1867.

    11. The Federal character of the United States Government has been referred to prove that it has increased the prosperity of the people living under it; but in point of fact the great and relentless war that is now raging there—that fratricidal war in which brother is arrayed against brother, filled with hatred toward each other, and which has plunged the country into all the horrors of the deadliest strife—is the strongest comment upon the working of the Federal principle—the strongest argument against its application to these provinces. (Hear, hear.) The French element in Lower Canada will be separated from us in its Local Legislature and become less united with us than it is now ; and therefore there is likely to be disagreement between us. Still more likely is there to be disagreement when the people of Upper Canada find that this scheme will not relieve them of the burdens cast upon them, but, on the contrary, will subject them to a legislature that will have the power of imposing direct taxation in addition to the burdens imposed by the General Government. When they find that this power is exercised, and they are called upon to contribute as much as before to the General Government, while taxed to maintain a separate Local Legislature—when they find that the material question is to weigh with them, they will look to the other side of the line for union. I feel that we are going to do that which will weaken our connection with the Mother Country, because if you give power to legislate upon the same subjects to both the local and the federal legislatures, and allow both to impose taxation upon the people, disagreements will spring up which must necessarily have that effect. (Hear, hear.) Then again, by this scheme that is laid before us, certain things are to be legislated upon by both the general and the local legislatures, and yet the local legislation is to be subordinate to the legislation of the Federal Parliament. For instance, emigration and agriculture are to be subject to the control of both bodies. Now suppose that the Federal Legislature chooses to decide in favor of having emigration flow to a particular locality, so as to benefit one province alone—I do not menu this expression to be understood in its entire sense, because I think that emigration in any one portion will benefit the whole, but it will benefit the particular locality much more at the time—and if provision is made by the General Legislature for emigration of that kind, and grants are made from the public funds to carry it out, it will cause much complaint, as the people who are paying the greatest proportion of the revenue will be subject to the drafts upon them as before.

      Preamble, §§.91, 92, and 95 of the Constitution Act, 1867.

    12. He says :—” It is not a question of interest, or mere commercial advantage ; no, it is an effort to establish a new empire in British North America.”

      §.121 of the Constitution Act, 1867.

    13. HON. ATTY. GEN. CARTIER—Allow me to make a remark. A little while ago the honorable gentleman quoted from a speech of Hon. Mr. TILLEY, in which that gentleman supposed the case, that on some evil day Upper Canada, actuated by selfish motives, would endeavor to obtain the passing of some measure that would be conducive to her exclusive aggrandizement. ” In that event,” said Hon. Mr. TILLEY, addressing himself to his people below, with the view of meeting that hypothetical case, “you will have the sixty-five members from Lower Canada and the forty-seven from below, to unite in resisting any attempt of the kind.” On that account the honorable member for North Ontario has stated that he is opposed to this scheme of Federation. He prefers a legislative union ; but of course with a legislative union there would be the same ratio of representation, and his opposition, on this particular ground, ought to apply to the one system as much as to the other.

      §.51 of the Constitution Act, 1867.

    14. Hon. Mr. TILLEY made this representation in a speech which he delivered on the 17th November last :— So close is the contest between parties in the Canadian Legislature, that even the five Prince Edward Island members by their vote could turn victory on whatever side they chose, and have the game entirely in their own hands. Suppose that Upper Canada should attempt to carry out schemes for her own aggrandizement in the west, could she, with her eighty-two representatives, successfully oppose the sixty-five of Lower Canada and the forty-seven of the Lower Provinces, whose interests would be identical ? Certainly not ; and she would not attempt it. MR. H. MACKENZIE—What has that to do with representation by population ? MR. M. C. CAMERON—” What has that to do with representation by population ?” asks the hon. gentleman. Representation by population was agitated, so far as Upper Canada is concerned, because we are paying so large a proportion of the revenue of the country ; and should the Lower Provinces have a corresponding voice, we should still pay the same proportion of revenue—instead, in fact, of standing on an equality, we would have thirty voices more to contend against. (Hear, hear.) Now, let us see whether, in another point of view, it is going to benefit us. It is represented by this same gentleman in the Lower Provinces that, when this change takes place, they will be relieved from the burdens they now bear

      §.51 of the Constitution Act, 1867.

    15. it would be exceedingly inconvenient to manage the local affairs of so widely extended a country. I did not say that we could not exercise a general control over the country.

      §§.91 and 92 of the Constitution Act, 1867.

    1. The first steps towards a Federation of the American Colonies would thus bus to form them all into one state, to give that state a completely organized government, and then to delegate to each of the colonies out of which that great state is formed, such powers of local government as may be thought necessary, reserving to the Central Government all such powers as are not expressly delegated. The Government of New Zealand forms a precedent well worthy the attention of those who are undertaking this arduous negotiation. And I cannot doubt that the framers of this Constitution have studied the precedent as well of the proposed Constitution of Australia, as that of the Constitution of New Zealand, which has been in use for ten years past.

      §§.91 and 92 of the Constitution Act, 1867.

    2. The great weakness of the American system has lain in the fact that the several states, on entering the union, claimed independent jurisdiction ; that they demitted to the Central Government certain powers, and that they claimed equal and sovereign powers with regard to everything not so delegated and demitted. The weaknesses aid difficulties of that system have been avoided in the project now before us, and we have the central power with defined and sovereign powers, and the local parliaments with their defined and delegated powers, but subordinated to the central power. The article says: — It is quite clear that the Federal Constitution of the United States of America forms a precedent which cannot possibly be followed in its principles or details by the united colonies, so long as they remain part of the dominions of the Imperial Crown. The principle of the American Federation is, that each is a sovereign state, which consents to delegate to a central authority a portion of its sovereign power, leaving the remainder, which is not so delegated, absolute and intact in its own hands. This is not the position of the colonies, each of which, instead of being an isolated sovereign state, is an integral part of the British Empire. They cannot delegate their sovereign authority to a central government, because them do not possess the sovereign authority to delegate. The only alternative as it seems to us would be to adopt a course exactly the contrary of that which the United States adopted, and instead of taking for their motto E Pluribus Unum, to invert it by saying In Uno Plural.

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    3. That the separate states be not so powerful as to be able to rely for protection against foreign encroachment on their individual strength. That is a condition which applies most forcibly in our case. (Hear, hear.) The third condition is :— That there be not a very marked inequality of strength among the several contracting states.

      §§.91 and 92 of the Constitution Act, 1867.

    4. that prestige and power which go with every British subject to every civilized part of the globe, enabling him to say, like the old Roman, ” I am a British citizen.” EARL GREY states that :— The possession of a number of steady and faithful allies, in various quarters of the globe, will surely be admitted to add greatly to the strength of any nation ; while no alliance between independent states can be so close and intimate as the connection which unites the colonies to the United Kingdom as parts of the Great British Empire. Nor ought it to be forgotten, that the power of a nation does not depend merely on the amount of physical force it can command, but rests, in no small degree, upon opinion and moral influence. In this respect British power would be diminished by the loss of our colonies, to a degree which it would be difficult to estimate. Passing on a little, we find him saying :— To the latter [i. e. the colonists] it is no doubt of far greater importance than to the former, because, while still forming comparatively small and weak communities, they enjoy, in return for their allegiance to the British Crown, all the security and consideration which belongs to them as members of one of the most powerful states in the world. No foreign power ventures to attack or interfere with the smallest of them, while every colonist carries with him to the remotest quarters of the globe which he may visit, in trading or other pursuits, that protection which the character of a British subject everywhere confers. (Hear, hear.) But to view the subject in another aspect. I believe it will be found that all the conditions are combined in the scheme now before us, that are considered necessary for the formation on a permanent basis of a Federative union. I hold in my hand a book of some note on Representative Government, by JOHN STUART MILL, and I find that he lays down three conditions as applicable to the union of independent states, and which, by parity of reasoning, are applicable to provinces which seek to have a closer alliance with each other, and also, thereby, a closer alliance with the Mother Country. The conditions he lays down are first,— That there should be a sufficient amount of mutual sympathy among the populations. And he states that the sympathies which they should have in common should be— Those of race, language, religion, and, above all, of political institutions, as conducing most to a feeling of identity of political interest.

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    5. I proposed and drew up a plan for the union of all the colonies under one government, so far as might be necessary for defence and other important general purposes. By my plan, the General Government was to be administered by a President- General, appointed and supported by the Crown, and a General Council, to be chosen by the representatives of the people of the several colonies, met in the respective assemblies. The plan was agreed to in Congress, but the assemblies of the provinces did not adopt it, as they thought there was too much prerogative in it, and in England it was judged to have too much of the democratic. The different and contrary reasons of dislike to my plan made me suspect that it was really the true medium, and I am still of opinion it would have been happy for both sides if it had been adopted. The colonies so united would have been strong enough to have defended themselves; there would then have been no need of troops from England ; of course the subsequent pretext for taxing America, and also the bloody contest it occasioned, would have been avoided.

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    6. The New York Conner and Inquirer, in an article published at that time, came to the conclusion “that the union would, in fact, be an argument for a continuance of the existing relations between the two countries: is a matter of policy and gratitude, and that such a change of government could be met with no objection of any weight.”

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    7. But I will state why this union is c: inculcated to prolong our connection with Britain. I t is well known that there has been an entire and radical change of late in the colonial policy of England. That policy has been to extend to us the utmost liberty in our relations to the Empire. What is after all the nature of the bond, which links us to Great Britain, apart from our allegiance and loyalty? What is it but a Federative bond ? That is what links us to Britain,and I feel quite satisfied, in the words of an English publicist of some eminence, that ” the new colonial policy is calculated to prolong the connection of the colonies with the Mother Country.” I believe it will raise these provinces as part of the British Empire, and so secure to us the permanency of British institutions, and bind us more closely to the Crown.

      Preamble, §§.91 and 92 of the Constitution Act, 1867.

    8. I believe that the plan of union proposed will be found to meet the exigencies of our local position, give latitude to local development, and due protection to local interests, and yet secure that general control which is essentially necessary for the proper government of a country placed under the dominion of the British Crown.

      §§.91 and 92 of the Constitution Act, 1867.

    9. It was pledged to introduce the Federative system into the Government of Canada, with special provisions for the incorporation into this Federation of the Maritime Provinces, and it was also pledged to send delegates to those provinces and invite them to join us in this Federation.

      §§.91 and 92 of the Constitution Act, 1867.

    10. ” I propose, in the course of the recess, to communicate with Her Majesty’s Government and with the government of the sister colonies, on another matter of very great importance. I am desirous of inviting them to discuss with us the principles on which a bond of a federal character uniting the provinces of British North America may, perhaps, hereafter be practicable.”

      §§.91 and 92 of the Constitution Act, 1867.

    11. And when we look to the vast territory we have in the North-West; when we know that the great rivers which flow through that territory, flow through immense beds of coal, and that the whole country is rich in mineral deposits of all kinds—petroleum, copper, gold and iron; that the land is teeming with resources of wealth calculated to build up an extensive and valuable commerce, and support a powerful nation; that all this we can touch and seize upon the moment we are prepared to open up a way to reach them and allow the settler to enter ; when we remember this, I say, I think we can look forward with hope to a prodigious increase in our population and an immense development of strength and power.

      §.146 of the Constitution Act, 1867.

    12. Everything is not provided for, because a great deal is trusted lo the common sense of the people. I think it is quite fair and safe to assert that there is not the slightest danger that the Federal Parliament will perpetrate any injustice upon the local legislatures, because it would cause such a reaction as to compass the destruction of the power thus unjustly exercised. The veto power is necessary in order that the General Government may have a control over the proceedings of the local legislatures to a certain extent. The want of this power was the great source of weakness in the United States, and it is a want that will be remedied by an amendment in their Constitution very soon. So long as each state considered itself sovereign, whose acts and laws could not be called in question, it was quite clear that the central authority was destitute of power to compel obedience to general laws. If each province were able to enact such laws as it pleased, everybody would be at the mercy of the local legislatures, and the General Legislature would become of little importance. It is contended that the power of the General Legislature should be held in check by a veto power with reference to its own territory, resident in the local legislatures, respecting the application of general laws to their jurisdiction. All power, they say, comes from the people and ascends through them to their representatives, and through the representatives to the Crown. But it would never do to set the Local above the General, Government. The Central Parliament and Government must, of necessity, exercise the supreme power, and the local governments will have the exercise of power corresponding to the duties they have to perform. The system is a new and untried one, and may not work so harmoniously as we now anticipate, but there will always but p ¡war in the British Parliament and our own to remedy any defects that may be discovered after the system is in operation. Altogether, I regard the scheme as a magnificent one, and I look forward to the future with anticipate- tins of seeing a country and a government possessing great power and respectability, and of being, before I die, a citizen of an immense empire built up on our part of the North American continent, where the folds of the British flag will float in triumph over a people possessing freedom, happiness and prosperity equal to the people of any other nation on the earth.

      §.90 of the Constitution Act, 1867.

    13. If the power that the central authority is to have—of vetoing the doings of the Local Legislature— is used, it will be ample, I think, to prevent anything of that kind. But the veto itself is objected to.

      §§.91 and 92 of the Constitution Act, 1867.

    14. The question of the Northwest is most intimately connected with our prosperity as a people, and some exception has justly been taken to the 68th and 69th paragraphs in though resolutions, which say :— 68. The General Government shall secure, without delay, the completion of the Intercolonial Railway from Rivière du Loup through New Brunswick, to Truro in Nova Scotia. 69. The communications with the North-Western Territory and the improvements required for the development of the trade of the Great West with the sea-board, are regarded by this Conference as subjects of the highest importance to the Federated Provinces, and shall be prosecuted at the earliest possible period that the state of though finances will admit. MR. T. C. WALLBRIDGE—That is the point. MR. A. MACKENZIE—Yes, that is the point my hon. friend is very much exercised over, but he is quite as much in favor of Confederation as I am. In this paragraph, while it is pronounced indispensable to have the Intercolonial Railway built at once, it is only promised that as soon as the state of the finances will permit, the Northwest is to be taken in hand. I think it is absolutely necessary for the prosperity of this colony that our canal connection with the upper lakes should be perfected as early as possible. Our canal system must be improved so as to accommodate the large trade that is coming from the Northwest. On the northern shores of Lake Superior we have sources of wealth that are perfectly inexhaustible. We read only the other day that a mountain of iron had been discovered close to the coast, quite sufficient to supply the demands of the world for 500 years. We have in that locality an abundant supply of minerals of all kinds, and unless our canals are made capable of carrying that traffic, it will necessarily find channels in another direction. (Hear.)

      §.146 of the Constitution Act, 1867.

    15. HON. MR. BROWN—Hear, hear. That is the point, and therefore I accept, as a fair compromise, a second chamber nominated by the Confederate Cabinet.

      §.24 of the Constitution Act, 1867.

    16. establishing an Upper House. They have— reasoning doubtless from the same premises —not only given the legislatures of the respective states the power of nominating the members of the Senate, but have also given that body powers entirely different from those possessed by the elective branch.

      §.24 of the Constitution Act, 1867.

    17. And, besides that, we have provision made for extending the representation east or west, as occasion may require, according to the increase of our population shown at the decennial periods for taking the census. Any thing fairer than that could not possibly be demanded. And if Lower Canada increases more rapidly in population than Canada West, she will obtain representation accordingly. For, although the number of her members cannot be changed from sixty-five, the proportion of that number to the whole will be changed relatively to the progress of the various colonies. On the other hand if we extend, as I have no doubt we will do, westward, towards the centre of the continent, we will obtain a large population for our Confederation in the west. In that quarter we must look for the largest increase of our population in British America, and before many years elapse the centre of population and power will tend westward much farther than most people now think. The increase in the representation is therefore almost certain to be chiefly in the west, and every year will add to the influence and power of Western Canada, as well as to her trade and commerce. The most important question that arises relates to the constitution of the Upper House. It is said that in this particular the scheme is singularly defective—that there has been a retrograde movement in going back from the elective to the nominative system. I admit that this statement is a fair one from those who contended long for the application of the elective principle to the Upper House; but it can have no weight with another large class, who, like myself, never believed in the wisdom of electing the members of two Houses of Parliament with coordinate powers. I have always believed that a change from the present system was inevitable, even with our present political organization. (Hear, hear.) The constitution of an Upper House or Senate seems to have originated in the state of society which prevailed in feudal times ; and from being the sole legislative body—or at least the most powerful—in the State, it has imperceptibly become less powerful, or secondary in importance to the lower chamber, as the mass of the people became more intelligent, and popular rights became more fully understood. Where there is an Upper House it manifestly implies on the part of its members peculiar duties or peculiar rights. In Great Britain, for instance, there is a large class of landed proprietors, who have long held almost all the landed property of the country in their hands, and who have to pay an immense amount of taxes. The fiscal legislation of Britain for many years has tended to the reduction of impost and excise duties on articles of prime necessity, and to the imposition of heavy taxes on landed property and incomes. Under such a financial system, there are immense interests at stake, and the House of Lords being the highest judicial tribunal in the kingdom, there is a combination of peculiar rights and peculiar duties appertaining to the class represented which amply justify its maintenance. We have no such interests, and we-impose no such duties, and hence the Upper House becomes a mere court of revision, or one of coordinate jurisdiction ; as the latter it is not required ; to become the former, it should be constituted differently from the House of Assembly. The United States present the example of a community socially similar to ourselves,

      §§.24 and 51 of the Constitution Act, 1867.

    18. At the time of the formation of the MACDONALD-SICOTTE Government, I was, with many others, strongly blamed, because we allowed that Government to come into existence at all. It is quite possible we were wrong; but I think after all it was fortunate that the hon. member for Cornwall (Hon. J . S. MACDONALD) had a fair opportunity to try his favourite remedy for our constitutional difficulties—the ” double majority principle.” That principle had been pressed on the attention of the country for ten years as one amply sufficient as a remedial measure, under which the existing political system could be harmoniously worked. In the MACDONALD-SICOTTE Government it had a fair trial and a speedy death. (Hear, hear, and laughter.) The existence of that Government, if it served no other purpose, showed the utter impracticability of the one means, by which my hon. friend hoped to accomplish what he, in common with ourselves, had long aimed at (Hear, hear. Now, supposing the Liberal party of the west had refused the terms offered by the present Administration— if we had declined to support a government which was really giving us nearly all we demanded—I do think we would have been fairly chargeable with creating if not advocating a state of anarchy. I think it would have been a most suicidal thing, if, having obtained—if not to the full extent, yet to a very great extent— the concession of the principle we had contended for so long, we had refused to accept the settlement offered, merely because a certain number of gentlemen, to whom we had been strongly opposed before, were among the leaders of the new movement.

      §§.51 and 52 of the Constitution Act, 1867.

    19. He had looked at it in this way. The time had been when the people of Upper Canada imagined that the Lower Canadians were afraid to grant representation by population lest western reformers should interfere with their religious institutions. He was fully satisfied that that idea was entirely erroneous—that the French people never had the slightest fear of the kind, because they knew it would be political suicide, it would be absolute ruin to any political party having the administration of affairs in their hands, to perpetrate injustice on any section of the people, to whatever church they belonged. (Cheers.) There was one element, however, which always entered largely into the discussion of all our national questions, and that was that the French people were a people entirely different from ourselves in origin, and largely in feeling. We all had a certain pride in our native country, and gloried in the deeds of our ancestors. The French people had that feeling quite as strongly as any of us ; this reason, and also because they were a conquered people, they felt it necessary to maintain a strong national spirit, and to resist all attempts to procure justice by the people of the west, lest that national existence should be broken down. He (Mr. MACKENZIE) felt for one that mere representation by population, under such circumstances, would perhaps scarcely meet the expectations formed of it, because although Upper Canada would have seventeen more members than Lower Canada, it would be an easy thing for the fifty or fifty-five members representing French constituencies to unite with a minority from Upper Canada, and thus secure an Administration subservient to their views.

      Preamble, §§.51, 52, and 93 of the Constitution Act, 1867.

    20. We felt that it was not fair—that it could not be just—that four men in Lower Canada should be equal, politically, to five men in Upper Canada. We complained that an eastern majority, in spite of our protestations, framed our laws.

      §§.51 and 52 of the Constitution Act, 1867.

    21. reform of the representation on the basis of population as one remedy I believe to be an effective one.

      §§.51 and 52 of the Constitution Act, 1867.

    22. I am not myself bound down to representation by population as the only possible measure. If the opponents of that measure can suggest any other remedy, I am quite willing to give it a candid consideration ; and I am quite sure that the large constituency I represent will support me in considering any measure which will place it out of the power of the Government of the day to perpetrate sectional injustice ; but until such a remedy is suggested, I feel bound to advocate

      §§.51 and 52 of the Constitution Act, 1867.

    1. It is called for by military reasons and commercial necessity, and the date of its construction cannot safely be postponed. Why, what have we not seen within a very recent period ? Restrictions have been put on goods sent through the United States, by the establishment of consular certificates, to such an extent that you could not send a bale of goods through the States without accompanying it with one of these certificates, the cost of which I am told was nearly $2—perhaps more than the worth of the package, or more than the cost of the freight. (Hear, hear.) Still further, the Senate of the United States had also before them a motion to consider under what regulations foreign merchandise is allowed to pass in bond through the neighbouring country ; and this was evidently done with an in tension of abolishing the system under which goods were permitted to pass in bond from England through the United States. I do not hesitate to say that if the bonding system were done away with, half the merchants in Canada would be seriously embarrassed if not ruined for the time. (Hear, hear.) In the winter season you could not send a barrel of flour to England—you could not receive a single package of goods therefrom. The merchants would have to lay in a twelve months’ stock of goods, and the farmer would be dependent on the condition of the market in spring, and would be compelled to force the sale of his produce at that moment, whether there was a profitable market for it then or not, instead of having as now a market at all seasons, as well in England as the United States. So that whatever sacrifices attach to the construction of the Intercolonial Railway, we must have it, seeing that it is impossible for us to remain in our present position of isolation and suspense. It is one of the unfortunate incidents of our position which we cannot get rid of. It will be a costly undertaking, but it is one we must make up our minds to pay for, and the sooner we set about its construction the better.

      §.121 of the Constitution Act, 1867.

    2. is of either religion, the dissentient minority —either Catholic or Protestant—have the right to establish dissentient schools. In the cities the majority being Catholics, the dissentient schools are Protestant, but in the townships, the majority is sometimes Protestant and the dissentient schools Catholic. MR. POPE—What will be the provision made, where the population is pretty sparse, as in some parts of my county ? Will you allow the minority of one township to join with a neighboring township for the purpose of establishing a dissentient school ? HON. MR. CARTIER—Yes. There will be a provision enabling the minority to join with their friends in a contiguous municipality in order to make up the requisite number. HON. J.S. MACDONALD—While the Government is in a communicative mood— (laughter)—I think it is of some importance that we should know whether it is the intention of the Government to extend the same rights and privileges to the Catholic minority of Upper Canada that are to be given to the Protestants of Lower Canada ? HON. MR. CARTIER—I cannot do my own work and the work of others. The Hon. Attorney General for Upper Canada is not present, but I have no doubt that on some future occasion he will be able to answer my honorable friend from Cornwall. HON. J . S. MACDONALD—In the absence of the Hon. Attorney General West, perhaps the Hon. President of the Council will be kind enough to give us the desired information ? HON. MR. BROWN—If my hon. friend wants an answer from me, I can only say that the Government has not yet considered the provisions of the School bill relating to Upper Canada. As soon as a bill is framed there will be no delay in laying it before the House.

      §.93 of the Constitution Act, 1867.

    3. HON. MR. CARTIER—The honorable member for Chateauguay has the laws of Lower Canada in his possession. Well, he will not find there that there is any such thing as Catholic or Protestant schools mentioned. What are termed in Upper Canada separate schools, come under the appropriate word, in Lower Canada, of dissentient. It is stated that where the majority

      §.93 of the Constitution Act, 1867.

    4. Everywhere. Not to Catholics alone either.

      §.93 of the Constitution Act, 1867.

    5. shall not have the same privilege of saying that his taxes shall be given to a dissentient school as if he resided upon the property.

      §.93 of the Constitution Act, 1867.

    6. The first thing I wish to mention has caused a good deal of difficulty in our present system, and that is, whether non-resident proprietors shall have the same right of designating the lass of schools to which their taxes shall be given as actual residents. That is one point—whether a person living out of the district or township

      §.93 of the Constitution Act, 1867.

    7. I would ask my honorable friend the Attorney General East, whether the system of education which is in force in Lower Canada at the time of the proclamation is to remain and be the system of education for all time to come ; and that whatever rights are given to either of the religious sections shall continue to be guaranteed to them ?

      §.93 of the Constitution Act, 1867.

    8. Now we, the English Protestant minority of Lower Canada, cannot forget that whatever right of separate education we have was accorded to us in the most unrestricted way before the union of the provinces, when we were in a minority and entirely in the hands of the French population. We cannot forget that in no way was there any attempt to prevent an educating our children in the manner we saw fit and deemed best ; and I would be untrue to what is just if I forgot to state that the distribution of State funds fur educational purposes was made in such a way as to cause no complaint on the part of the minority. I believe we have always had our fair share of the public grants in so far as the French element could control them, and not only the liberty, but every facility, for the establishment of separate dissentient schools wherever they were deemed desirable. A single person has the right, under the law, of establishing a dissentient school and obtaining a fair share of the educational grant, if he can gather together fifteen children who desire instruction in it. Now, we cannot forget that in the past this liberality has been shown to us, and that whatever we desired of the French majority in respect to education, they were, if it was at all reasonable, willing to concede. (Hear, hear.) We have thus, in this also, the guarantee of the past that nothing will be done in the future unduly to interfere with our rights and interests as regards education, and I believe that everything we desire will be as freely given by the Local Legislature as it was before the union of the Canadas. (Hear, hear.) But from whence comes the practical difficulty of dealing with the question at the present moment ? We should not forget that it does not come from our French-Canadian brethren in Lower Canada, but that it arises in this way—and I speak as one who has watched the course of events and the opinion of the country upon the subject—that the Protestant majority in Upper Canada are indisposed to disturb the settlement made a couple of years ago, with regard to separate schools, and rather to hope that the French majority in Lower Canada should concede to the English Protestant minority there, nothing more than is given to the minority in the other section of the province.

      §.93 of the Constitution Act, 1867.

    9. I wish to know what share of representation the English-speaking population of Lower Canada will have in the Federal Legislature, and whether it will be in the same proportion as their representation in this Parliament ? This is one point in which I think the English inhabitants of Lower Canada are strongly interested.

      §§.51 and 52 of the Constitution Act, 1867.

    10. any law it might pass to this effect and set it at nought. HON. MR. HOLTON—Would you advise it? HON. ATTY. GEN. CARTIER—Yes, I would recommend it myself in case of injustice. (Hear, hear.) HON. MR. ROSE—I am quite sure my hon. friend would do it rather than have an injustice perpetrated. There is another pout upon which I would like to have from the Attorney General East an explicit statement of the views of the Government. I refer to the provision in the 23rd resolution which I have just read ; what I wish to know is whether the Legislature therein spoken of means the Legislature of the province of Canada as it is now constituted, and whether it is contemplated to have any change in the boundaries of the electoral districts for representation in the first session of the Federal Legislature ? HON. ATTY. GEN. CARTIER—With regard to Lower Canada, it is not the intention to make any alteration in the electoral districts, because there will be no change in the number of representatives sent to the General Parliament. But with regard to Upper Canada, there will be a change in the electoral districts, because there will be an increase of members from that section. HON. MR. ROSE—So that I clearly understand from the statement of the hon. gentleman that in Lower Canada the constituencies, for the purposes of the first ejection to the Federal Legislature, will remain as they are now ? HON. ATTY. GEN. CARTIER—Yes, as they are now. HON. MR. ROSE—And that as regards the representation in the Local Legislature, the apportionment of the electoral districts by it will be subject to veto by the General Government. HON. ATTY. GEN. CARTIER—Yes, in case of injustice being done. (Hear, hear.)

      §§.40 and 90 of the Constitution Act, 1867.

    11. The 23rd resolution reads : ” The Legislature of each province shall divide such province into the proper number of constituencies, and define the boundaries of each of them.” Then the 24th resolution provides that ” the Local Legislature may from time to time alter the electoral districts for the purpose of representation in such Local Legislature, and distribute the representatives to which the province is entitled in such Local Legislature, in any manner such legislature may see fit.” In these resolutions I presume that power is given to the Legislature of each province to divide the province into the proper number of constituencies for representation in the Federal Parliament, and to alter the electoral districts for representation in the Local Legislature. Now, to speak quite plainly, the apprehension which I desire to say again I do not personally share in, but which has been expressed to me by gentlemen in my own constituency, is this, that with respect to the Local Legislature, it will be competent for the French majority in Lower Canada to blot out the English-speaking minority from any share in the representation, and so to apportion the electoral districts that no English speaking member can be returned to the Legislature. That is an apprehension upon which I would be very glad to have an expression of opinion by my hon. ironed the Attorney General East. As I read the resolutions, if the Local Legislature exercised its powers in any such unjust manner, it would be competent for the General Government to veto its action, and thus prevent the intention of the Local Legislature being carried into effect—even although the power be one which is declared to be absolutely vested in the Local Government, and delegated to it as one of the articles of its constitution.

      §.40 of the Constitution Act, 1867.

    12. Looking at the scheme, then, from the standpoint of an English Protestant in Lower Canada, let me see whether the interests of those of my own race and religion in that section are safely and properly guarded. There are certain points upon which they feel the greatest interest, and with regard to which it is but proper that they should be assured that there are sufficient safeguards provided for their preservation. Upon these points, I desire to put some questions to the Government. The first of these points is as to whether such provision has been made and will be carried out that they will not suffer at any future time from a system of exclusion from the federal or local legislatures, but that they will have a fair share in the representation in both; and the second is, whether such safeguards will be provided for the educational system of the minority in Lower Canada as will be satisfactory to them ?

      §§.40 and 93 of the Constitution Act, 1867.

    13. Belonging to different races and professing a different faith, we live near each other ; we come in contact and mix with each other, and we respect each other ; we do not trench upon the rights of each other ; we have not had those party and religious differences which two races, speaking different languages and holding different religious beliefs, might be supposed to have had ; and it is a matter of sincere gratification to us, I say, that this state of things has existed and is now found amongst us. (Hear, hear.) But if, instead of this mutual confidence; if, instead of the English-speaking minority placing trust in the French majority in the Local Legislature, and the French minority placing the same trust in the English majority in the General Legislature, no such feeling existed, how could this scheme of Confederation be made to work successfully ? (Hear, hear.) I think it cannot be denied that there is the utmost confidence on both sides; I feel assured that our confidence in the majority in the Local Government will not be misplaced, and I earnestly trust that the confidence they repose in us in the General Legislature will not be abused. (Hear, hear.) I hope that this mutual yielding of confidence will make us both act in a high-minded and sensitive manner when the rights of either side are called in question

      §.93 of the Constitution Act, 1867.

    14. This is unquestionably a grave and serious subject of consideration, and especially so to the minority in this section of the province, that is the English-speaking minority to which I and many other members of this House belong, and with whose interests we are identified. I do not disguise that I have heard very grave and serious apprehensions by many men for whose opinions I have great respect, and whom I admire for the absence of bigotry and narrow-mindedness which they have always exhibited. They have expressed themselves not so much in the way of objection to specific features of the scheme as in the way of apprehension of something dangerous to them in it— apprehensions which they cannot state explicitly or even define to themselves. They seem doubtful and distrustful as to the consequences, express fears as to how it will affect their future condition and interests, and in fact they almost think that in view of this uncertainty it would be better if we remained as we are. Now, sir, I believe that the rights of both minorities—the French minority in the General Legislature and the English-speaking minority in the Local Legislature of Lower Canada—are properly guarded. I would admit at once that without this protection it would be open to the gravest objection ; I would admit that you were embodying in it an element of future difficulty, a cause of future dissension and agitation that might be destructive to the whole fabric ; and therefore it is a very grave and anxious question for us to consider —especially the minorities in Lower Canada —how far our mutual rights and interests are respected and guarded, the one in the General and the other in the Local Legislature. With reference to this subject, I think that I , and those with whom I have acted—the English speaking members from Lower Canada—may in some degree congratulate ourselves at having brought about a state of feeling between the two races in this section of the province which has produced some good effect. (Hear, hear.)

      §.93 of the Constitution Act, 1867.

    15. of the scheme, without which it would certainly, in my opinion, have been open to very serious objection. (Hear, hear.) I will not now criticize any other of the leading features of the resolutions as they touch the fundamental conditions and principles of the union. I think there has been throughout a most wise and statesmanlike distribution of powers, and at the same time that those things have been carefully guarded which the minorities in the various sections required for their protection, and the regulation of which each province was not unnaturally desirous of retaining for itself. So far then as the objection is concerned of this union being federative merely in its character, and liable to all the difficulties which usually surround federal governments, I think we may fairly consider that there has been a proper and satisfactory distribution of power, which will avert many of those difficulties. (Hear, hear.)

      §§.91 and 92 of the Constitution Act, 1867.

    16. They have established this Central Government, giving it such powers, and so defining the powers of the local governments, that it will be impossible for any Local Parliament to interfere with the central power in such a manner as to be detrimental to the interests of the whole. The great advantage which I see in the scheme is this, that the powers granted to the local governments are strictly defined and circumscribed, and that the residuum of power lies in the Central Government You have, in addition to that, the local governors named by the central authority— an admirable provision which establishes the connection of authority between the central power and the different localities; you have vested in it also the great questions of the customs, the currency, banking, trade and navigation, commerce, the appointment of the judges and the administration of the laws, and all those great and large questions which interest the entire community, and with which the General Government ought to be entrusted. There can, therefore, be no difficulty under the scheme between the various sections—no clashing of authority between the local and central governments in this case, as there has been in the case of the Americans. The powers of the local governments are distinctly and strictly defined, and you can have no assertion of sovereignty on the part of the local governments, as in the United States, and of powers inconsistent with the rights and security of the whole community. (Hear, hear.) Then, the other point which commends itself so strongly to my mind is this, that there is a veto power on the part of the General Government over all the legislation of the Local Parliament. That was a fundamental element which the wisest statesmen engaged in the framing of the American Constitution saw, that if it was not engrafted in it, must necessarily lead to the destruction of the Constitution. These men engaged in the framing of that Constitution at Philadelphia saw clearly, that unless the power of veto over the acts of the state legislatures was given to the Central Government, sooner or later a clashing of authority between the central authority and the various stated must take place. What said Mr. MADISON in reference to this point ? I quote from The Secret Debates upon the Federal Constitution, which took place in 1787, and during which this important question was considered. On the motion of Mr. PINKNEY ” that the National Legislature shall have the power of negating all laws to be passed by the state legislature, which they may judge improper,” he stated that he considered ” this as the corner stone of the system, and hence the necessity of retrenching the state authorities in order to preserve the good government of the National Council.” And Mr. MADISON said, ” The power of negating is absolutely necessary —this is the only attractive principle which will retain its centrifugal force, and without this the planets will fly from their orbits.” Now, sir, I believe this power of negative, this power of veto, this controlling power on the part of the Central Government is the best protection and safeguard of the system ; and if it had not been provided, I would have felt it very difficult to reconcile it to my sense of duty to vote for the resolutions. But this power having been given to the Central Government, it is to my mind, in conjunction with the power of naming the local governors, the appointment and payment of the judiciary, one of the best features

      §§.91 and 92 of the Constitution Act, 1867.

    17. They see in it that which tends to a disruption, and collision with the Central Government. Now, sir, I do not deny that if a legislative union, pure and simple, had been practicable, I, for one, would have preferred it ; but I cannot disguise from myself that it was, and is at present, utterly impracticable, and I cannot help expressing my astonishment and extreme gratification, that five colonies which had been for so many years separate from each other, had so many separate and distinct interests and local differences, should come together and agree upon such a scheme. Remembering the difficulties that had to be encountered in the shape of local interests, personal ambition, and separate governments, I certainly am surprised at the result, and I cannot withhold from the gentlemen who conducted these negotiations, the highest praise for the manner in which they overcame the difficulties that met them at every step, and for the spirit in which they sunk their own personal differences and interests in preparing this scheme of Confederation. (Hear, hear.) It is remarkable that a proposition having so few of the objections of a Federal system, should have been assented to by the representatives of five distinct colonies, which had heretofore been alien, practically independent, not only of each other, but almost of England, and almost hostile to each other. (Hear, hear.) There had been very much to keep these colonies apart, and very little to bring them together, and the success which has attended their efforts speaks well for those statesmen who applied their minds earnestly to the work of union. (Hear, hear.)

      §§.91, 92, and 121 of the Constitution Act, 1867.

    18. one of the very strongest arguments in favor of the Confederation of the provinces, that it enables us to prepare appropriate defences along the whole frontier of our country.

      §.91(7) of the Constitution Act, 1867.

    19. We should, probably, in time aspire to have foreign relations of our own, to have our own army and navy, and to seek for that complete emancipation which with communities as with individuals, maturity prompts. But independence in a state must always be relative, and none of us can expect to live to see the day when the British dominions in this part of the world will be peopled to such an extent, and become so powerful, that they can afford to be independent of England. We must, from the necessities of our geographical position—so long as the United States continue to be as powerful as they are ; and even if they were divided into two or three portions—we must always find in them a source of danger which must force upon us a dependence on England.

      §§.15, 91(7), and 132 of the Constitution Act, 1867.

    1. whatever the increase of the population in the other provinces, the part from Lower Canada is fixed and known. Thus, for instance, if the population of Upper Canada should increase more than that of Lower Canada, the latter will always have sixty-five members, the other provinces receiving such increased number of representatives as their increased population would entitle them to. But the resolutions do not prevent Lower Canada from having more than sixty-five representatives, if its population should increase faster than that of the other provinces. The French translation of these resolutions is erroneous, for it says that ” for the purpose of determining the number of representatives from each province at the end of every decennial census, Lower Canada shall never have either more or less than sixty-five representatives,” whereas the English version of the resolutions, which is the official version, says : ” Lower Canada shall always be assigned sixty-five members.” This does not mean that Lower Canada can never have more than sixty-five members, but that it can not have less than sixty-five members.

      §§.51 and 52 of the Constitution Act, 1867.

    2. îslo questions will be decided in the Federal Parliament but such as relate to general matters. Local matters will not be treated of, nor questions of race, of religion, or of institutions peculiar to the several provinces, and consequently there can be no collision of opinions on such questions. Such a fear, therefore, is quite unfounded.

      §§.91 and 92 of the Constitution Act, 1867.

    3. bishop gave judgment, declaring the marriage null in a canonical sense. Regarded in a civil point of view, the marriage was still valid until it should have been declared null by a civil tribunal. It became necessary, therefore, to carry the cause before the Superior Court, and my honorable friend, the member for Because, who took the case in hand with his usual zeal and legal address, obtained from the court, after a suitable inquiry, a judgment declaring the marred null in a civil sense, and ordering that it should be registered as such in all places where it should be needful. If this affair had occurred in Upper Canada, what recourse would the parties have had ? The parties being Catholics, the case would have been brought before the bishop, who would also have declared the marriage null after suitable inquiry; but the cause would not have had the same conclusion in the civil court, particularly had it depended on certain impediments which have force in Lower Canada, but none in Upper Canada. It would have become necessary to go to Parliament to pray for an act, which, in a Catholic point of view, would be a mere decree of separation, but which the Parliament would have termed an act of divorce. This power to grant a separation is therefore necessarily vested in the Parliament, by whatever names such separation may be designated, and we are not to be reproached for the interpretation which others may give to such name, different from that which we assign to it. I thought it right to make myself understood on this point, because I do not choose that people should be able to say we are afraid of explaining our position with regard to the question of divorce and marriage, and I believe that I have shown that our position is consistent with our religious laws and our principles as Catholics. I regret that I have dwelt so long on the matters touched upon by the honorable member for Hochelaga ; but after his speech, and considering the position he assumed, he must have expected an answer.

      §§.91(26) and 92(12) of the Constitution Act, 1867.

    4. HON. SOL. GEN. LANGEVIN—I beg your pardon, it means that a marriage contracted in no matter what part of the Confederacy, will be valid in Lower Canada, if contracted according to the laws of the country in which it takes place ; but also, when a marriage is contracted in any province contrary to its laws, although in conformity with the laws of another province, it will not be considered valid. Let us now examine the question of divorce. We do not intend either to establish or to recognize a new right ; we do not mean to admit a thing to which we have constantly refused to assent, but at the Conference the question arose, which legislature should exercise the different powers which already exist in the constitutions of the different provinces. Now, among these powers which have been already and frequently exercised de facto, is this of divorce. As a member of the Conference, without admitting or creating any new right in this behalf, and while declaring, as I now do, that as Catholics we acknowledge BO power of divorce, I found that we were to decide in what legislative body the authority should be lodged which we found in our Constitutions. After mature consideration, we resolved to leave it in the Central Legislature, thinking thereby to increase the difficulties of a procedure which is at present so easy. We thought then, as we still think, that in this we took the most prudent course. The following illustration will prove this still more forcibly. I t is known to the House how zealous a partisan the honorable member for Brome (Mr. DUNKIN) is of the cause of temperance. Well, we will suppose that the honorable gentleman were present as a member of a municipal council in which it was to be decided whether all the taverns in a very populous part of the parish, which could not be suppressed, should be banished to a remote corner of the parish, where they would no longer be a temptation and a stumbling-block ; would he not vote for such a measure ? Would he not send them to a place where they would be least accessible to the population, and would he not think he had done a meritorious act, an act worthy of a good friend of the temperance cause ? Just so in a question of divorce ; the case is exactly analogous. We found this power existing in the constitutions of the different provinces, and not being able to get rid of it, we wished to banish it as far from us as possible. One thing it would be vain to deny, namely, that although we, as Catholics, do not admit the liberty of divorce, although we hold the marriage bond to be indissoluble, yet there are cases in which we both admit and require the annulling of the marriage tie—in cases, for instance, where a marriage has been contracted within the prohibited degrees without the necessary dispensations. An instance of this occurred very recently. A few months since, an individual belonging to my county, who had married a young girl of a neighboring parish, without being aware at the time of his marriage of the relationship which existed between him and his wife, found out several months afterwards that they were related in such a degree that they required a dispensation from the bishop. That dispensation had not been obtained. He spoke of it to his wife, who refused to apply for a dispensation, as a step towards the legal celebration of their marriage. It became necessary, therefore, to have the marriage annulled. The affair was brought before the Ecclesiastical Court, and, after a minute investigation, the diocesan

      §§.91(26) and 92(12) of the Constitution Act, 1867.

    5. HON. SOL. GEN. LANGEVIN—The honorable member for Verchères does not choose to be convinced ; so I will make no further attempt to convince him. The resolution in question signifies just what I have stated.

      §§.91(26) and 92(12) of the Constitution Act, 1867.

    6. may be summed up as follows :—The Central Parliament may decide that any marriage contracted in Upper Canada, or in any other of the Confederated Provinces, in accordance with the laws of the country in which it was contracted, although that law might be different from ours, should be deemed valid in Lower Canada in case the parties should come to reside there, and vice versa.

      §§.91(26) and 92(12) of the Constitution Act, 1867.

    7. The honorable gentleman has asked the Government what meaning was to be attached to the word ” marriage,” where it occurred in the Constitution. He desired to know whether the Government proposed to leave to the Central Government the right of deciding at what age, for example, marriage might be contracted. I will now answer the honorable gentleman as categorically as possible, for I am anxious to be understood, not only in this House, but also by all those who may hereafter read the report of our proceedings. And first of all I will prove that civil rights form part of those which, by article 43 (paragraph 15) of the resolutions, are guaranteed to Lower Canada. This paragraph reads as follows :— 15. Property and civil rights, excepting those portions thereof assigned to the General Parliament. Well, amongst these rights are all the civil laws of Lower Canada, and among these latter those which relate to marriage; now it was of the highest importance that it should be so under the proposed system, and therefore the members from Lower Canada at the Conference took great care to obtain the reservation to the Local Government of this important right, and in consent-‘ ing to allow the word ” marriage ” after the word “divorce,” the delegates have not proposed to take away with one hand from the Local Legislature what they had reserved to it by the other. So that the word ” marriage,” placed where it is among the powers of the Central Parliament, has not the extended signification which was sought to be given to it by the honorable member. With the view of being more explicit, I now propose to read how the word marriage is proposed to be understood :— The word marriage has been placed in the draft of the proposed Constitution to invest the Federal Parliament with the right of declaring what marriages shall be held and deemed to be valid throughout the whole extent of the Confederacy, without, however, interfering in any particular with the doctrines or rites of the religious creeds to which the contracting parties may belong. This is a point of great importance, and the French Canadian members ought to rejoice to see that their fellow-countrymen in the Government have not failed in their duty on a question of so serious a nature. On many other points many of them will doubtless claim that we have not thoroughly fufilled our duty, but as regards the matter in question there can be no difference of opinion, as I we have all a common rule to guide us ; and I repeat that they ought to rejoice that their co-religionists in the Conference have not been found wanting on this occasion. The whole

      §§.91(26) and 92(12) of the Constitution Act, 1867.

    8. this troublesome advocate of the second, third or fourth order of talent, and place him on the bench, whilst by leaving these appointments to the Central Government, we are satisfied that the selection will be made from men of the highest order of qualifications, that the external and local pressure will not be so great, and that the Government will be in a position to act more freely. It may be remarked, in passing, that in the proposed Constitution there is an article which provides that the judges of the courts of Lower Canada shall be appointed from the members of the bar of that section. This exception was only made in favor of Lower Canada, and it is a substantial guarantee for those who fear the proposed system. Besides, the honorable member for Hochelaga, who fancies that he sees danger in the powers given to the Central Government, knows by experience, as having himself been a minister of the Crown, that in respect of every appointment of a judge the Cabinet always consults the ministers for the section in which the appointment is to be made, and accepts their choice. The same practice would necessarily be followed by the Central Government, who would be forced to respect it, because behind the ministers from each section would be found the members from that section, and behind our ministers for Lower Canada will be found the sixty-five members whom we shall have sent to represent and protect our interests in the Federal Parliament. It is then advantageous, and there could be no danger in the provision that the judges should be appointed by the Central Government; indeed, it is for our interest, and the interest of all, that it should be so. And although it may be looked upon as a secondary consideration, yet it may as well be mentioned now, that by leaving the appointment of our judges to the Central Government, we are the gainers by one hundred thousand dollars, which will have to be paid for their services by the central power.

      §§.91(27), 96, 97 and 98 of the Constitution Act, 1867.

    9. Were the appointment of the judges left to the local legislatures, the local governmente would be subjected to a pressure which might be brought to bear upon them by the first advocate who would attain influence in the Local Legislature. To get rid of an inconvenient member who might have three or four followers, the Local Government would have to take

      §§.91(27), 96, 97 and 98 of the Constitution Act, 1867.

    10. He declared that he did not understand the meaning of that article of the resolutions which leaves to the Central Government the appointment of the judges, whilst by another article it is provided that the constitution and maintenance of the courts was entrusted to the Local Parliament. The honorable member should have observed that by the powers conferred on the local governments, Lower Canada retains all her civil rights, as prescribed by the 17th paragraph of article 43, as follows :— The administration of justice, including the constitution, maintenance and organization of the courts, both of civil and criminal jurisdiction, and including also the procedure in civil matters. This is a privilege which has been granted to us and which we shall retain, because our civil laws differ from those of the other provinces of the Confederation. This exception, like many others, has been expressly made for the protection of us Lower Canadians. It was our desire, as the representatives of Lower Canada at the Conference, that we should have under the control of our Local Legislature the constitution and organization of our courts of justice, both civil and criminal, so that our legislature might possess full power over our courts, and the right to establish or modify them if it thought expedient.

      §§.91(27), 96, 97 and 98 of the Constitution Act, 1867.

    11. Another question on which the hon. member has also called us to account, relates to the export duties on timber and coals. In clause 29, which relates to the powers of the Federal Parliament, the third section reads as follows : This imposition or regulation of duties of customs on imports or exports, except on exports of timber, logs, masts, spars, deals, and sawn lumber from New Brunswick, and of coal and other minerals from Nova Scotia. The fact that this power has been conferred on the Government does not imply that it will be exercised. The power was granted simply because it might be necessary in certain cases mentioned. Now this is the reason for the second part of the clause which I have just read to the House, and which I cannot better explain than by citing some expressions of a speech by the Hon. the Minister of Finance on the subject. Nevertheless, as there are several honorable members in the House who do no