In re Representation of Certain Provinces in the House of Commons

In re Representation of Certain Provinces in the House of Commons
Collection
Supreme Court Judgments
Date
1903-04-29
Report
(1903) 33 SCR 475
Judges
Taschereau, Henri-Elzéar; Sedgewick, Robert; Girouard, Désiré; Davies, Louis Henry; Mills, Davis; Armour, John Douglas
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
In Re The Representation in the House of Commons (1903) 33 SCR 475
Date: 1903-04-29
In The Matter of the Representation in the House of Commons of Certain Provinces of the Dominion Consequent upon the last Decennial Census.
1903: April 20, 21, 22; 1903: April 29.
Present:—Sir Elzéar Taschereau C.J., and Sedgewick, Girouard, Davies, Mills and Armour JJ.
REFERENCE BY THE GOVERNOR GENERAL IN COUNCIL.
Constitutional law—B.N.A. Act, 1867, s. 51—Construction—"Aggregate population of Canada."
In determining the number of representatives to which Nova Scotia and New Brunswick are respectively entitled after each decennial census the words "aggregate population of Canada" in subsec. 4 of sec. 51 of the B.N.A. Act 1867, mean the whole population of Canada including that of provinces which have been admitted subsequent to the passing of the Act.
Special Case referred by the Governor General in Council to the Supreme Court for hearing and consideration.
The case was referred to the court in the following form:
"Extract from a report of the Committee of the Honourable the Privy Council approved by the Governor General on the 17th April 1903.
"On a report dated 15th April 1903, from the Minister of Justice, submitting that in connection with the proposed readjustment of the representation in the House of Commons of the provinces of the Dominion, consequent upon the last decennial census, the Province of New Brunswick supported by the Province of Nova Scotia contends for a construction of section 51 of the British North America Act, 1867, different from that which has been heretofore applied and which is adopted by your Excellency's advisers. These provinces have therefore asked that a reference be made to the Supreme Court of Canada for a determination of the question in difference.
"The Minister, therefore, recommends that the following question suggested by the Government of New Brunswick and approved as the Minister of Justice is informed by the Government of Nova Scotia, be referred to the Supreme Court for hearing and consideration, pursuant to the authority of the Supreme and Exchequer Courts Act, as amended by the Act 54 & 55 Victoria, Chapter 25 intituled 'An Act to amend Chapter 135 of the Revised Statutes intituled An Act respecting the Supreme and Exchequer Courts.’
"In determining the number of representatives in the House of Commons to which Nova Scotia and New Brunswick are respectively entitled after each decennial census, should the words "aggregate population of Canada, in subsection 4 of section 51 of the British North America Act 1867, be construed as meaning the population of the four original provinces of Canada, or as meaning the whole population of Canada including that of Provinces which have been admitted to the Confederation subsequent to the passage of the British North America Act?
"The Committee submit the same for approval.
"(Sgd.) JOHN J. McGEE,
"Clerk of the Privy Council."
Counsel:
For the Dominion of Canada: The Honourable Charles Fitzpatrick K.C, Minister of Justice and Attorney General for Canada. E. L. Newcombe K.C, Deputy Minister of Justice.
For the Province of Ontario: Æmilius Irving K.C.
For the Province of New Brunswick: The Honourable William Pugsley K.C, Attorney General for the Province of New Brunswick, and Geo. W. Allen K.C.
For the Province of Nova Scotia: The Honourable J. W. Longley, K.C, Attorney General for the Province of Nova Scotia, and E. M. Macdonald Esq.
For the Province of Quebec: L. J. Cannon K.C., Deputy Attorney General of the Province of Quebec.
Irving K.C. for the Province of Ontario. Your Lord' ship read yesterday the reference that has been made to this honourable court, and it would hardly seem necessary to read it again. But as it is but a few lines and I would like to state the issue that Ontario takes upon it, I therefore, with your permission, will read it.
"In determining the number of representatives in the House of Commons to which Nova Scotia and New Brunswick are respectively entitled after each decennial census, should the words 'aggregate population of Canada’ in sub-section 4 of section 51 of the British North America Act, 1867, be construed as meaning the population of the four original provinces of Canada, or as meaning the whole population of Canada including that of Provinces which have been admitted to the Confederation subsequent to the passage of the British North America Act?"
That, I understand, is the question, and the issue that Ontario takes upon it is: That sub-section 4 of section 51 should be construed as meaning the population of the four original provinces of Canada and that there has been no legal change in that to the present time.
I have to beg leave to refer your Lordships to the clauses of the British North America Act which bear upon this question. The third clause of the Act provided that there should be one Dominion.
"It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a day herein appointed, not being more than six months after the passing of this Act, the Provinces of Canada, Nova Scotia and New Brunswick shall form and be one Dominion under the name of Canada; and on and after that day those three provinces shall form and be one Dominion under that name accordingly."
Then follows section 4 which is as follows;
"The subsequent provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the union, that is to say, on and after the day appointed for the union taking effect in the Queen's proclamation; and in the same provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act."
Then the next clause says:
"Canada shall be divided into four provinces, named Ontario, Quebec, Nova Scotia and New Brunswick." The next clause I do not think is material to the issue, but I come to clause 8 which says:
"8. In the general census of the population of Canada which is required to be taken in the year one thousand eight hundred and seventy one, and in every tenth year thereafter, the respective populations of the four provinces shall be distinguished."
That is a very important clause and bears very much upon the general question that is to follow. Then I have to ask your Lordships to allow me to go to section 51 which is the section indicated in the question submitted to your lordships.
"51. On the completion of the census in the year one thousand eight hundred and seventy one, and of each subsequent decennial census, the representation of the four provinces shall be readjusted by such authority, in such manner, and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules."
There, your Lordships see that the census which by section 8 was to specially distinguish, the populations of the four provinces, is there again referred to as the representation of the four provinces involved in the census provided for in section 8. The rules are as follow:—
"1. Quebec shall have the fixed number of sixty five members."
"2. There shall be assigned to each of the other provinces such a number of members as will bear the same proportion to the number of its population (ascertained at such census) as the number sixty-five bears to the number of the population of Quebec (so ascertained)."
Then sub-section 3 provides for the computation in fractional numbers which I do not think it is important to trouble your Lordships with. Sub-section 4. which is the sub-section to which your Lordships' attention is particularly directed is as follows:
"(4). On any such re-adjustment the number of members for a province shall not be reduced unless the proportion which the number of the population of the province bore to the number of the aggregate population of Canada at the then last preceding readjustment of the number of members for the province is ascertained at the then latest census to be diminished by one twentieth part or upwards."
Your Lordships will see there, that the number of members shall not be reduced unless the proportion which the number of a particular province bore to the number of the aggregate population of Canada, is ascertained at the then latest census to be diminished by one twentieth part or upwards. Now then the next question as I understand here is: What does "Canada" mean in that clause? At that time and up to say 1871, there was no question that by "Canada" was meant the four provinces which had been before specified under the clause to which I drew your Lordships' attention, as embraced under the term "Canada" as constituted under this Act. It says "Canada" shall be taken to mean "Canada" as constituted under this Act, and in the general census of the population of Canada the respective populations of the four provinces shall be distinguished. Well my Lords, this is as it were the first resting place. Under this Act as it stood then there could be no question but that the re-adjustment was to be of the four provinces, and of the aggregate population of those four provinces thus described here in this particular clause under the word "Canada" as the earlier clauses of the Act has contemplated might be done. Then, the following clause, section 52, may be read because it bears an important signification with reference to this.
"52 The number of members of the House of Commons may be from time to time increased by the Parliament of Canada, provided the proportionate representation of the provinces prescribed by this Act is not thereby disturbed.".
Now, that might be taken to mean, on the first glance, that Parliament, provided it did not disturb the proportionate representation, might increase the number of members over all the provinces above what they were under the original Act. But it also is capable of being applied differently and I think we will find one of the elements of difference in the following section:
"146. It shall be lawful for the Queen by and with the advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or provinces of Newfoundland, Prince Edward Island and British Columbia, to admit those colonies or provinces, or any of them, into the Union, and on address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-western Territory, or either of them into the Union, on such terms and conditions in each case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland."
I therefore say that it is on such terms and conditions in each case expressed and as the Queen thinks fit to approve, that representation in Parliament is to be accorded; now the representation of the provinces prescribed by this Act, as far as we have gone, is of these four first provinces, and if that proportionate representation which is the whole keystone of this Act be preserved, then the Parliament of Canada shall have the right to increase its number of representatives from time to time provided the proportion of representation is not disturbed. I think that is a point that cannot be got over. I think that there can be no disturbance of that arrangement. In this Act, by section 52, it was contemplated that the area of Canada as it then was should be enlarged on terms and conditions to be approved by the Queen and upon addresses to be submitted. If these terms and conditions, as we shall come to them, provide for representation in Parliament and representation in the House of Commons, then here we have laid down the rule under which it is to prevail, namely: Provided the proportionate representation of the provinces prescribed by this Act is not thereby disturbed; not the proportionate representation of provinces that may be brought in hereafter. This is the primary condition connected with the whole of the building of the act of union.
MR. JUSTICE ARMOUR: It seems to me that you lose sight of the recital of the Act providing for the union. The union is not to consist only of these four provinces but it is to consist also of such provinces as may be brought in from time to time.
And then section 4 says: "The subsequent provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on or after the union, that is to say, on or after the day appointed for the union taking effect in the Queen's proclamation; and in the same provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act."
Mr. Irving: That is when there is a proclamation introducing the outlying provinces.
MR. JUSTICE ARMOUR: Suppose only one province comes in and then there was a decennial census, how is that province's representation to be ascertained? Must it not be with regard to the aggregate population of the whole?
Mr. Irving: But there would have been no census taken of it, if I understood your Lordship's premises?
MR. JUSTICE ARMOUR: I say, suppose only one province was introduced, and that after the decennial census had taken place.
Mr. Irving: Including that province.
MR. JUSTICE ARMOUR: Yes. Then how is that province's representation to be adjusted?
Mr. Irving: That province's representation was to be adjusted according to the distribution of the four original provinces
MR. JUSTICE ARMOUR: But then, the four original provinces are always to remain the same according to your theory, and therefore you would have a stray horse in the province that was outside.
Mr. Irving: This province outside joins subject to terms, according to its proportion of the four provinces of which it is not one.
Mr. Justice Armour: Then you would not include its population at all in ascertaining its representation; you would simply take the population of the four provinces.
Mr. Irving: Of the four provinces.
Mr. Justice Armour: What proportion then would you give?
Mr. Irving: Whatever was the 65th as provided with reference to Quebec. Then it would get its members in that same proportion.
Mr. Justice Sedgewick: That is all that is contended for now.
Mr. Irving: That is all I am contending for now. My learned friends, however, say that there is to be a pool of the whole population.
Mr. Justice Sedgewick: And there will be representation by population in each province of Canada; that is what they are contending for.
Mr. Fitzpatrick: Of course.
Mr. Justice Sedgewick: That is the old question.
Mr. Irving: I am contending for the same thing only it is a different way of putting it. My learned friends take the grand total or aggregate of the whole census of the Dominion of Canada and I say that it should be the aggregate of the four provinces as they were at the last decennial census.
Mr. Justice Armour: The motive power that put the British North America Act into force was desire to obtain representation by population.
Mr. Irving: Does it say so in the recital, my lord? Mr. Justice Armour: The effect of your contention would be that there would be no such thing as representation by population and the older provinces would have a certain representation according to the time when they were constituted, and the newer provinces would have a representation of their own.
Mr. Justice Davies: I understand you are only arguing so far as the unit is concerned. You say the unit is obtained by dividing the population of Quebec by the population of the old four provinces.
Mr. Irving: Yes, my Lord.
Mr. Justice Davies: And the other construction involved the division of the population of Quebec by, the population of the whole Dominion.
Mr. Irving: Yes, my Lord.
Mr. Justice Davies: That is the only point between you; representation by population would still remain.
Mr. Irving: I am coming to that. If his Lordship will permit me to say so, I do not think the words "representation by population" are in this Act from one end of it to the other, and whatever the arguments may have been before, I do not think we can now import them into this Act. This is a strict question of the construction of an instrument of Government which is like a great charter.
Mr. Justice Armour: You are entitled to look at the position of things when the British North America Act was passed in order to ascertain what they were intending to do, but you are not to alter the wording of the Act by that.
Mr. Irving: I do not know that the political question of representation by population as it was argued before Confederation ever assumed such a concrete form that one could say exactly what was to be introduced here. Mr. Justice Mills: Your contention is confined to the assumption that the word "Canada" in the British North America Act means the four provinces.
Mr. Irving: I contend that, my Lord.
Mr. Justice Mills: What name would you give to the additional Territories when these Territories became Provinces? You have a larger Dominion and you have no name that you could apply to the entire Dominion.
Mr. Irving: I do not now that it is any argument in favour of the broader question, as to what are the conveniences or the inconveniences to which it may lead, unless we can find in any of the subsequent Acts anything which would lead to a different view than the view I am endeavouring to uphold now.
Mr. Justice Mills: Take section 101 of the British North America Act which provides for the constitution of a general court of appeal in Canada. Would not your contention go this far, that a court of appeal created under that Act would be a court of appeal for the four provinces and not a court of appeal for any other portion of the Dominion?
Mr. Irving; I would like to look at that particular clause before I would give your lordship an answer to that if it be deemed that I should give an answer to it. Section 101 says:
"101. The Parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance and organisation of a general court of appeal for Canada."
Mr. Justice Mills: Would that be the four provinces only?
Mr. Irving: I do not say that necessarily. I am now on the question of representation. I am not dealing with reference to any wider question. I am confined to the question of representation and I say that so far, if I have made out expressly that those four provinces are to be the body from which the unit is to be established among themselves and that that is to prevail everywhere, then that does not affect other questions that may arise upon other subjects, because I do not present a scheme which would be perfect as a whole. Your Lordship may say that it is extremely inconvenient. That may be so but I am not dealing with that. I am dealing with what is laid down according to the statute and its convenience or inconvenience has nothing to do with it. I say, therefore, that for other colonies coming in there is a rule preserved by which representation may be given to them. That is rather anticipating some remarks which I am going to make, but does not alter at all the fact that a general court of appeal of Canada should not apply to these provinces that may be admitted. I am only dealing now with the question of the respective representation in Parliament of the four original provinces and illustrating how other provinces might be affected, and that there is a rule existing to give them representation upon the distribution, in section 52:
"Provided the proportionate representation of the province prescribed by this Act is not thereby disturbed."
Now the next in order is the Imperial Act of 1871. Prior to that there had been two Acts of the Parliament of Canada. One of them was on the surrender, or the acquisition perhaps would be at this time the proper term, of Rupert's Land. That provided for the peace, order and good government of that part of Canada, and there is also the "order" afterwards for giving Manitoba a constitution and a representation. It was deemed questionable, whether the Province of Canada had any power to admit or to create a new province out of the territories without special power, the British North America Act not covering that. This Imperial Act is as follows:
"Whereas doubts have been entertained respecting the powers of the Parliament of Canada to establish provinces and territories admitted, or which may hereafter be admitted, into the Dominion of Canada, and to provide for the representation of such provinces in the said Parliament, and it is expedient to remove such doubts and to vest such powers in the said Parliament."
The second clause is:
"2. The Parliament of Canada may from time to time establish new provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order and good government of such province and for its representation in the said Parliament"
That was establishing a new province. Then again:
"3. The Parliament of Canada may from time to time, with the consent of the Legislature of any province of the said Dominion, increase, diminish or otherwise alter the limits of such province upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any province affected thereby."
"4. The Parliament of Canada may from time to time make provision for the administration, peace, order and good government of any territory not for the time being included in any province,"
Now then, those matters do not apply so much to Manitoba. This was for establishing new provinces, but in the case of Manitoba the following acts were passed by the Parliament of Canada: An Act for the temporary Government of Rupert's Land and the North West Territories when united with Canada; and an Act to Amend and continue the Act 32 and 33 Vict. ch. 3 and to establish and provide for the government of the Province of Manitoba, shall be deemed to have been—
The Chief Justice: Do I understand you to contend, or if I understand you well I think you do contend, that the word "Canada" in sub-section 4 applies to the four provinces only.
Mr. Irving; Yes, my Lord.
The Chief Justice: Do you contend that the word "Province" preceding and subsequent, extends only to the four provinces?
Mr. Irving: Only to the four provinces.
The Chief Justice: The word "Province"?
Mr. Irving: Yes—on any such readjustment.
The Chief Justice: Does that mean only for a province?
Mr. Irving: Yes.
The Chief Justice: That is one of the four provinces.
Mr. Irving: That is one of the four provinces.
The Chief Justice: And later on if in the North West Territories or British Columbia or Manitoba, or if anywhere the number should be reduced, this would not apply according to you—this applies only to the four provinces*
Mr. Irving: To the four provinces.
The Chief Justice; Altogether.
Mr. Irving: Altogether.
The Chief Justice; I do not see how you can work it out. Mr. Irving: I have not got quite through, my Lord; I am trying to work it out. These four provinces are to be measured in their readjustment by the aggregate of these four provinces, under the name of "Canada". I understand that the argument on the other side will be, that the aggregate population of Canada is the aggregate of the whole of Canada whatever it may be, a dozen provinces or a dozen territories, and then that these four provinces are to be measured by the unit of Quebec divided under that grand total. Now, I come back to it being to the four provinces, and then I say: That the representation which is to be accorded to the other provinces is to be in the same proportion according to the unit that is allowed to Quebec out of the population of Canada, that is, of these four provinces.
I am now at 33 Vic. ch. 3, which is one of the Acts of Canada which was validated by the Imperial Act of 1871, and therefore it has to be read as, and is in fact, an Imperial Act to the full extent as though it were embraced in the British North America Act. The first clause of that Act deals with the boundaries of Manitoba and the second clause gives to Manitoba a constitution. This Act gives a constitution to the Province of Manitoba and section 2 deals with the application to the Province of the provisions of the British North America Act which may be said generally to apply to all the provinces, but it does not touch the question of representation. It says:
"On, from and after the day upon which the Queen, by and with the advice and consent of Her Majesty's Most Honourable Privy Council, under the 146th section of the British North America Act 186t, shall, by order-in-council in that behalf, admit Rupert's Land and the North West Territory into the union or Dominion of Canada, there shall be formed out of the same a province which shall be one of the provinces of the Dominion of Canada and which shall be called the Province of Manitoba."
That excludes all the special provisions relating to Ontario and Quebec or New Brunswick or Nova Scotia, but it takes all the clauses which I may say were common to all those provinces and grants them as a constitution to Manitoba, but it does not touch the question of representation which is dealt with in a separate section. It provides for representation in the Senate and it now provides for representation in the House of Commons in this manner:
"4. The said province shall be represented, in the first instance, in the House of Commons of Canada, by four members, and for that purpose shall be divided by proclamation of the Governor General into four electoral districts, each of which shall be represented by one member."
That Act was passed in 1870.
"Provided that on the completion of the census in the year 1881, and of each decennial census afterwards, the representation of the said province shall be readjusted according to the provisions of the 51st section of the British North America Act 1867."
Therefore, it provides in the case of Manitoba, that its representation shall be readjusted according to the provisions of the 51st section; the 51st section as I am now arguing to be read as dealing with the original four provinces.
I am not at the clause giving representation to Manitoba. Follow me for a second if you please. There they say, that after 1881 the representation shall be readjusted according to the provisions of the 51st section of the British North America Act, 1867. That leaves the 51st section, as I read it, untouched. In the clause immediately but one before where they were giving a constitution to Manitoba they say this: "As if the province of Manitoba had been one of the provinces originally united by the said Act". Why did they not add that on here with reference to the representation, if they meant to do it? Before I get through my argument I hope I shall be able to convince your Lordships, that there is no way in which section 4 is affected, except by what is presumed to be implied. Now, this gives Manitoba an absolute constitution and it says that it shall have the use and the right to all those powers as though Manitoba had been one of the provinces originally united by the said Act. Then the next clause but one to that says that the representation shall be readjusted according to the 51st section, but it does not go on to say, as though Manitoba had been one of the provinces originally united. That is absolutely left out. These Acts are instruments of government; they have got to be read absolutely and in express terms in accordance with what is laid down and so construed. You cannot by adding to the instruments of government imply ideas.
Mr. Justice Mills: That Act was passed immediately after the disturbance in Manitoba, and it was made a subject of discussion in Parliament, as I remember very distinctly, as to whether the Parliament of Canada could by an Act of Parliament, give to a province a constitution under which it should come into the Dominion and which would be unalterable. And so Parliament by certain resolutions that are embodied in the Imperial Act of 1871 got over the ultra vires provisions of this Act of 1870.
Mr. Irving: Yes my Lord, but this Act of 1870 which I have been reading having been declared valid and effectual by the Imperial Act is exactly the same as though it were a part of the British North America Act.
Mr. Justice Mills: Made so by the Imperial Act. Mr Irving: Yes. It is the Imperial Act that l am relying upon. The Acts which I have read to you, shall be and be deemed to have been valid and effectual for all purposes whatsoever from the day on which they respectively receive the assent in the Queen's name of the Governor General of Canada. Therefore, my Lord, I do not think that this can be explained away by my learned friends. Now, my Lords, I pass to the case of British Columbia. I come to the order-in-council of the 16th May 1871 relating to the admission of British Columbia and it is to be found in the volume of the Dominion statutes of 1872, in the order-in-council in the early part of the volume numbered, in Roman numerals, LXXVII. I refer to section 8 of that, and it is repeated in every one of the addresses so that it is not necessary to refer but to one for they are all alike. It says:
"8. British Columbia shall be entitled to be represented in the Senate by three members and by six members in the House of Commons, the representation to be increased under the provisions of the British North America Act 1867."
Now, with reference to that, the minimum of British Columbia was there settled to be six members to the House of Commons, but on a change of population such as the British North America Act would recognise, it would be liable to be increased. Now the 52nd section of the British North America Act made this provision:
"52. The number of members of the House of Commons may be from time to time increased by the Parliament of Canada, provided the proportionate representation of the provinces prescribed by this Act is not thereby disturbed."
Therefore in the case of British Columbia, starting with six members, the Dominion Parliament has power to increase the representation of the number of members to the House of Commons provided the proportionate representation prescribed by this Act is not thereby disturbed. Therefore so soon as British Columbia had a population which in the ratio of Quebec would entitle it to an increase this section 52 would grant it to the province of British Columbia as a right.
I now take the case of Prince Edward Island and I refer to the order-in-council in that case. It is to be found in the Dominion statutes of 1873; in the orders-in-council grouped in the front part of the volume at page 12 in Roman figures. It provides as follows:
"That the population of Prince Edward Island having been increased by 15000 or upwards since the year 1861, the Island shall be represented in the House of Commons of Canada by six members, the representation to be adjusted from time to time under the provisions of the British North America Act 1867."
That again brings up the same provision, that it is to be readjusted under the provisions of the British North America Act. Now I believe that there is one other Act which I wish to bring to your Lordships' notice. Of course I am taking only the Imperial Acts which are the only Acts we are interested in. This Act is an Act passed in 1886, 49 & 50 Vic. ch. 35. It is an Act respecting the representation in the Parliament of Canada which for the time being formed part of the Dominion of Canada but are not included in any province. About the same period in the same month of June, there was an Act passed by the Parliament of Canada here respecting the representation of the North West Territories, and this Act that I am now about to read is merely an Act to validate that Act which was then being passed here or had been passed and it recites: "Whereas it is expedient to empower the Parliament of Canada to provide for the representation in the Senate and House of Commons of Canada, or either of them, of any territory which for the time being forms part of the Dominion of Canada but it is not included in any province.
"The Parliament of Canada may from time to time make provision for representation in the Senate and House of Commons or in either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any province thereof."
That is the general purview of the Act. Then it states that "any Act passed by the Parliament of Canada before the passing of this Act for the purpose mentioned in this Act shall, if not disallowed by the Queen, be and shall be deemed to have been valid and effectual from the date at which it received the assent in Her Majesty's name of the Governor-General of Canada." That refers to the Act of the Dominion of Canada which was being passed in the very same month of June[and which is chapter 24.
The Imperial Act refers to this Dominion Act although it was only passed a few weeks before and they probably had not official intimation of it having been passed. It says:
2. Any Act passed by the Parliament of Canada before the passing of this Act for the purpose mentioned in this Act, shall, if not disallowed by the Queen, be and shall be deemed to have been valid and effectual from the date at which it received the assent in Her Majesty's name, of the Governor General of Canada. "It is hereby declared that any Act passed by the Parliament of Canada, whether before or after the passing of this Act, for the purpose mentioned in this Act or in the British North America Act 1871, has effect, notwithstanding anything in the British North America Act, 1867, and the number of Senators or the number of Members of the House of Commons specified in the last mentioned Act is increased by the number of Senators or of Members as the case may be, provided by any such Acts of the Parliament of Canada for the representation of any provinces or territories of Canada."
Hon. Mr. Justice Mills: That Imperial Act was passed upon the address of the Governor General in Council of Canada to the Government at home. Mr. Irving: Yes, my Lord. I have now referred to all the legislation or statutes bearing upon the question, and I can only reiterate that which I have stated from the beginning, is the view that I am laying before your Lordships. The word "Canada" in subsection 4 is to be construed as Canada at that particular period, and not the population of Canada as it may be enlarged from time to time.
Pugsley K.C., for the Province of New Brunswick—The question my Lords, which you are called upon to determine is, I think I may fairly say, one of the very greatest importance, not only to the smaller provinces of Nova Scotia and New Brunswick, but also to the province of Ontario. It is of special importance to the smaller provinces because, under the terms of confederation, we were granted representation relatively to our county boundaries, and New Brunswick went into confederation with a population of 250,000. It is proposed now, if the contention of my learned friend the Minister of Justice prevails with a population of 80,000 greater than at the time of confederation its representation shall be cut down from 15 members to 13 members. Starting as we did with a population of 250,000, it is proposed that now, when we have a population of 80,000 greater, the representation of the Province of New Brunswick shall be cut down from 15 to 13 members. That is the proposition, and we have only to look forward to the very rapid increase which is likely to take place in the Province of Quebec in view of the new territory which is being added to that province, and also of the rapid increase in the North-West; we have to look forward to the time coming, inside of 30 years at all events, when, if the view of the other side prevails, our representation in New Brunswick would be cut down to five or six members. Therefore your Lordships are called upon to deal with a question which is of very great importance indeed, looking to the future of this country.
Now, my Lords, it seems to me that there is a misapprehension as to the question of representation by population, as applying to the new provinces and the Territories. I submit that under the British North America Act there is no provision whatever for representation in Parliament of the Territories or new provinces, no provision whatever. You may search the British North America Act from beginning to end and you will find no provision with reference to the representation either of the Territories or of new provinces.
Mr. Justice Armour: Except it comes in under the 4th clause of section 51.
Mr. Pugsley: But when any new province comes in it may or may not agree to come in under section 51. It was competent for the Imperial Parliament to provide, when Manitoba was created a province, that instead of her representation being readjusted from time to time she should have six members until her population reached 100,000 and after that she should have ten members.
Mr. Justice Armour: If it comes in at all, it must come under the provisions of the British North America Act. Mr. Pugsley: But not under section 51.
Mr. Justice Armour: No, section 146.
Mr. Pugsley: I submit not, my Lord. I submit that Manitoba might have been given 50 members; that if Manitoba said: We won't come unless you agree that for all time we shall have at least 50 members in the House of Commons, she need not come into confederation unless she got that. British Columbia might have said we will not come unless you will agree that for all time we shall have ten members. She did stipulate that for all time she should have at least six members. But it was quite competent in the agreement to stipulate that she ought never to have less than twenty members, or that her representation for all time should have been 20 members, or 50 members. It seems to me, my Lords, that you will not find in the Act anything which prevents the Queen in Council, upon proper addresses being sent, providing for any representation or any mode of representation which might be agreed upon.
The Act says:
"On the completion of the census the representation of the four provinces shall be readjusted by such authority in such manner, etc."
But Parliament is not dealing with any other province and, my Lords, it is a curious fact if you look at the history of the matter, that in framing that section 51, the first draft contained the words "each of the provinces." Then it was changed to the representation of "the four provinces," then when you get to the third draft it was changed back to "each province," and finally when we get to the British North America Act it is put "the representation of the four provinces." Your lordship will find the drafts in Pope's Confederation Documents. It is rather curious to see the way in which that expression was changed from time to time, showing that those who had the drafting of the Act were g