In re Representation of P.E.I. in the House of Commons

In re Representation of P.E.I. in the House of Commons
Collection
Supreme Court Judgments
Date
1903-06-08
Report
(1903) 33 SCR 594
Judges
Taschereau, Henri-Elzéar; Sedgewick, Robert; Girouard, Désiré; Davies, Louis Henry; Nesbitt, Wallace
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
In re Representation of P. E. I. in the House of Commons (1903) 33 SCR 594
Date: 1903-06-08
In the Matter of The Representation of Prince Edward Island in the House of Commons upon the last Decennial Census.
1903: June 2; 1903: June 8.
Present:—Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies and Nesbitt JJ.
REFERENCE BY THE GOVERNOR GENERAL IN COUNCIL.
Constitutional law—B. N. A. Act, 1867—Representation of P. E. L in House of Commons.
The representation of the Province of Prince Edward Island in the House of Commons of Canada is liable to be reduced below the original number of six under s. 51, s.s. 4, B. N. A. Act, 1867, after a decennial census.
Special Case referred by the Governor General in Council to the Supreme Court of Canada for hearing and consideration.
The case so referred was in the following terms: "Extract from a report of a Committee of the Honourable the Privy Council approved by His Excellency on the 16th May, 1903.
"On a memorandum dated 12th May, 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 Prince Edward Island contends that its representation in the House of Commons is not liable to be reduced below six, although the application of the provisions of section 51 of the British North America Act, 1867, would, in view of the census returns result in a reduction.
"The Minister states that he does not agree with the view advocated by the Government of Prince Edward Island and the province has 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 Prince Edward Island, be referred to the Supreme Court of Canada for hearing and consideration, pursuant to the authority of the Supreme and Exchequer Courts Act as amended by the Act 54 & 55 Vic. ch. 25, intituled 'An Act to amend Chapter 135 of the Revised Statutes intituled An Act respecting the Supreme and Exchequer Courts,' viz:
"Although the population of Prince Edward Island, as ascertained in the census of 1901, if divided by the unit of representation ascertained by dividing the number of 65 into the population of Quebec is not sufficient to give six members in the House of Commons of Canada to that province, is the representation of Prince Edward Island in the House of Commons of Canada, liable under the British North America Act, 1867, and amendments thereto and the terms of Union of 1873 under which that province entered Confederation, to be reduced below six, the number granted to that province by the said terms of Union of 1873?
"The Committee submit the same for approval.
"JOHN J. McGEE,
"Clerk of the Privy Council."
The following counsel appeared:
For the Province of Prince Edward Island: A. B. Aylesworth, K.C.; The Honourable Arthur Peters, K.C., Attorney General of Prince Edward Island, and Mr. E B. Williams.
For the Dominion of Canada: E. L. Newcombe, K.C., Deputy Minister of Justice for the Dominion of Canada. Aylesworth K.C.: If your Lordships please, Mr. Attorney General Peters and Mr. Williams, of Charlottetown, are also of counsel for the province in the case, and unless it is contrary entirely to your Lordships' traditions to hear more than two counsel, I have no doubt that each would be very pleased if your Lordships would allow him to address the court.
The Chief Justice: Of course, this is not a usual case. We do not even give a judgment; nothing but an opinion. It binds nobody, and we did hear a good many counsel on the reference the other day but of course they were representing the different provinces. You are asking now that three be heard on one side; is that it?
Mr. Aylesworth: Yes, my Lord.
The Chief Justice: I do not think there would be any objection to it under the circumstances of the case. We will hear the learned gentlemen.
Mr. Aylesworth: We shall endeavour to present the considerations which it appears to us affect the matter, as briefly as may be. Of course everything depends, for disposal of this question, upon the provisions of our constitution, the Act or instrument of Government, the British North America Act. Under the British North America Act, as your Lordships will be aware, there was provision made by section 146 for the subsequent admission into the union of Prince Edward Island as well as of British Columbia, Newfoundland and such portions of the territories from time to time as it might be desirable to take in. As to Prince Edward Island, the provision of the British North America Act was that upon addresses from both Houses of the Parliament of Canada and both Houses of the Provincial Legislature, the Queen might, by order-in-council, upon such terms and conditions as are expressed in the addresses, subject to the conditions of the Act, admit the province into the union. Addresses were passed by the respective legislatures and the terms and conditions of union agreed upon and incorporated in an order-incouncil, by which on the 26th of June, 1873, it was provided that Prince Edward Island should be admitted into confederation
Our position is that, under the terms of that compact and agreement, Prince Edward Island was given six members in the House of Commons and that that representation was then fixed for the island; not as a matter of right, not as a matter of giving representation by population in accordance with the provisions of the British North America Act itself, but because of the peculiarly isolated position of the province, and because, unless there had been an arrangement of that sort it would, as the delegates to the conference from the Island stated, have been quite impossible to have carried in the Island the terms of union.
We have it then in the first place: That by agreement, by compact between the Dominion then an established Government on the one part and the provincial legislature of the Island on the other part, it was a term of the union that the representation of the island should be six members at least, and it was never contemplated that that number should at a future time be reduced.
The Chief Justice: Prince Edward Island came in, in 1873?
Mr. Aylesworth: Yes my Lord. At that time the population of the Island would not according to the unit of representation have entitled it to more than five members, but from the first it had been the position taken by those representing the island in the various conferences, that with regard to confederation five members would not satisfy and that unless a larger representation than five members could be secured it was idle to propose terms of union which it could be expected would be acceptable to the people of the Island. Your Lordships will find in the Quebec resolutions, that at that time it was proposed that Newfoundland and Prince Edward Island should join the union, and that the House of Commons should consist of 194 members of whom five should represent Prince Edward Island. Now, the debates on the resolutions in the conference at Quebec, and especially the attitude taken by the delegates of Prince Edward Island at that time, demonstrated that it was just because of that small representation which the resolutions proposed to allot to Prince Edward Island, that the Island refused at that time to enter confederation. The Island and Newfoundland not joining in confederation, the statute provided by section 37 that the House of Commons should consist of 181 members. The resolutions had contemplated 13 more or 193 members altogether; five for Prince Edward Island and eight for Newfoundland, but as those colonies were not joining in the pact of confederation the number was reduced to 181 when the Act itself came to be passed. The position taken by the representatives of the Island at that time as detailed in the debates, leading to the passage of the Quebec resolutions, demonstrates that the feature of union amongst others, that one at all events particularly, was one in regard to which the delegates felt strongly and by reason of which among other things the Island at that time was unwilling to enter confederation. It is put in that way in the most distinct manner by the different representatives of Prince Edward Island. Mr. Palmer speaking at the conference puts it this way:
"(a.) When a colony surrenders the right to self-government she should have something commensurate in the federation. Why give up so great certainties where we have only a feeble voice."
Mr. Whalen says:
"Our people would not be contented to give up their present benefits for the representation of five members. It may be said that confederation will go on without Prince Edward Island and that we shall eventually be forced in. Better however than that we should willingly go into confederation with that representation."
Colonel Grey says:
"The provision of five members is unsatisfactory, Prince Edward Island is divided longitudinally into three counties. We cannot divide three counties into five members."
Mr. Galt had proposed six members and Mr. Coles said:
"I approve that rather than Mr. Brown's motion because it allows us to give to our counties two members each."
And finally on this subject Mr. Pope said:
"The circumstances of Prince Edward Island are such that I hope the Conference will agree to give us such a number as we can divide amongst our three constituencies. Nature as well as the original settlement of the Island has made three counties and it would give rise to much difficulty if we had to adjust five members to the three counties. I cannot ask it as a matter of right, but as one of expediency, as one without which it is impossible for us to carry the measure in Prince Edward Island."
That being put distinctly before the members of the conference at Quebec none the less the resolutions were passed, and by the seventeenth resolution the proposal was, that Prince Edward Island should have but five members if it entered confederation. Prince Edward Island declined to do so and confederation became accordingly an accomplished fact under the statute, with the representation of the other of the four combining provinces fixed by section 37 of the Act at the figures which the conference proposed. Then the authorities both in this country and in the old country continued to urge that whether Newfoundland came in or not, Prince Edward Island should at all events be admitted upon some terms. We have a notable letter from Lord Granville to the Governor General on the 4th of September 1869 (which will be found in the Journals of the Prince Edward Island House of Assembly, 1870 page 15Y in which Lord Granville urges upon the Governor-in-Council that in settling the basis of arrangement between the provincial and Dominion governments, the Dominion Government should deal with the Island;
"I trust that in settling the claims proposed as the basis of this arrangement the Government of the Dominion will deal liberally as well as justly with the Island."
At this stage, when it was a matter of negotiation between a great commonwealth such as the union of these provinces extending from the Gulf of St. Lawrence to the Pacific Ocean had made, there was on the one hand the large contracting party, the Dominion, which could afford to be generous in the matter of representation with its small sister who was considering the advisability of entering into the federal pact.
There had been, as your Lordships may see from the attitude taken at the Quebec Conference, just that line of division, just that very circumstance, that the representation of so few as five members out of a house of 194 was felt to be entirely inadequate; would have given to the island as a constituency so feeble a voice in the councils of the nation that there was no return offered for the manifest advantages of self that the Island would by entering confederation be giving up. The House had now by lapse of time and by the admission into confederation of the new provinces of Manitoba and of British Columbia, come to have a representation of 200 members by the statute of 1872; and there being a slightly larger representation in the whole House of Commons than there had been at the origin of confederation in 1867; there being this emergency; it was suggested from the Colonial Office that the Dominion could afford to deal generously and to deal liberally with the Island in the matter of representation. It came to be a matter of agreement between the Dominion on the one part and the Island on the other, and it was settled that there should be six representatives, and upon that footing and basis these addresses were passed by the provincial houses at Charlottetown and by the Dominion Legislature here and incorporated in the Queen's order-in-council admitting the province.
Now according to representation by population there was no such right. If one had divided the population of Prince Edward Island as it stood in 1873 by the unit fixed in section 51 of the statute in reference to the population of Quebec, the Island would not have been entitled to six members at all; it would have been entitled to barely five; and that circumstance coupled with the fact that the province had been, from the time of the original proposal for confederation, standing for better terms, so to say, standing out for larger representation; now that the terms of union were being arranged it was stipulated on their part and agreed to by the Dominion that they should have a representation larger than their population entitled them to. That seems to us one of the very strongest circumstances as then demonstrating that the intention of both sides at the time was that Prince Edward Island should never have less than the number of six representatives.
Mr. Justice Davies: Do I understand you to say that when the Island was admitted in 1873, the population at the previous decennial census, with the addition allowed for the years between 1871 and 1873, would not have entitled them to six.
Mr. Aylesworth: Not according to the Quebec unit. As a matter of fact I think they would have scarcely five, but it would have been so near to five that if Prince Edward Island did come in upon the strict basis of representation of population they would have been awarded five only. It is recited in the resolutions clause 12:
"That the population of Prince Edward Island having been increased by 15,000 or upwards since the year 1861, the Island shall be represented in the House of Commons of Canada by six members."
The population in 1861 had been 80,857. and in 1871 it had come up to over 95,000, the actual increase being that 15,000 as recited in the resolution. The population of Quebec in 1871 being 1,191,516 the unit of representation as fixed by that population for the decade of the seventies was 18,331, and your Lordships will see that that would not entitle Prince Edward Island with a population of even 95,000 to the representation of 6 members.
Mr. Justice Davies: The point I want to take is this—making a proportionate allowance for the two years from 1871 to 1873 which of course must be estimated, would that give them the six members.
Mr. Aylesworth: I think it manifestly would not, but of course under the statute we are dealing with the decennial census and at that time in 1873 the returns of the census of 1871 were probably not finally received. If under these circumstances we find, as we do, that the resolutions called for a representation of six members in a house of 200, it seems to us that we find the strongest grounds for the confidence that it was a matter of compact and arrangement, and that it was intended to be a fixed minimum below which the representation of that province was never to fall. Your Lordships of course see the alternative. We have now as a result of nearly thirty years of confederation an increase in our population over the number when we entered the union of nearly 10,000. But, by reason of there being a much larger increase in population in the province of Quebec, although our people now number nearly 104,000, we are not according to the present unit of representation entitled to more than four members. Quebec has grown from 1,190,000 in 1871 to 1,650,000. and the unit of representation has accordingly advanced from 18,000 to 25,000. Cur 104,000 people are now entitled to a member for each 25,000 souls and that would give us four members. And as Quebec increases its population in the decades to come, Prince Edward Island, limited in area, even though it advanced at the same rate per cent that it has advanced in the past, must gradually be over taken, and it is a mere matter of arithmetic to compute how long it will be until Prince Edward Island can have no member at all, and until its population would fall below the unit of representation. The unit of representation is growing, and each decade there is an advance of 2,000 or 3,000; it was. 18,111 in 1871; it was 21,000 in 1881; it was 23,000 in 1891, and it is 25,000 now. It advances by 2,000 or more each decade, because the population in Quebec increasing as it does and its representation being fixed at 65, we have a greater number of individuals each decade to be represented by the one member. At that rate of advance, even granting to Prince Edward Island its increase in population upon the same percentage basis as in the past, with 2,000 square miles of area circumscribed as it is, by natural conditions, it is bound to be overtaken and unless there is an actual decline in the population of Quebec, in the course of three or four decades more Prince Edward Island will have been reduced to one member and finally to none at all, because their whole population will not entitle them to one member.
Now, can such result ever have been contemplated by those who framed this statute on the terms of union between the Island and the Dominion. We think not. We think it is not a question of representation by population in that sense. There are other circumstances that are to be taken into account. The principle of representation by population is just enough as between the larger provinces; as between the different sections of the different provinces. That principle could very well be employed in such a case, but when you have a community isolated as Prince Edward Island is, you have it circumscribed and limited so that it cannot expand and grow. Its voice in the Parliament of the country will be feeble indeed unless you adopt some other principle than the strict one of representation by population in fixing its representation in the House.
The next step in the argument is, on our part: That there is no provision in the British North America Act for any reduction in representation unless it is in the case where there has first been an increase. Our position is that the British North America Act never contemplated Quebec, of course, having less than 65; equally it never contemplated Ontario being reduced below 82.
Mr. Justice Sedgewick: Why not?
Mr Aylesworth: Because section 37 of the Act provides for a Parliament of 181 members for the four provinces that were then in the union and for no less; and it would be no Parliament at all if it had, we would say, 175 members. There is no provision in the British North America Act for a reduction below 181. That never was contemplated, and no matter what the population might be, no matter what the readjustments might be, there were never to be, our submission is, less than 82 for Ontario; less than the number fixed by section 37 for New Brunswick and Nova Scotia respectively.
Before discussing in a little more fullness the position under this clause of the union, let me point out or emphasize the further considerations that I have already alluded to. We were, as of course any province is that enters into confederation, surrendering something of our independence of government. We were of course entering confederation necessarily subject to the provisions of this Act, as section 146 declares, and we could no I have validly stipulated—even if we had so desired—that after that we should have control over any of the matters mentioned in section 91 of the Act. The Island Legislature was necessarily giving up its control over these subjects of legislation. What was it getting in return? What else but a right to a voice in the passing of such laws by means of at least six representatives from the province.
Then we have the circumstance that is adverted to and made the ground for, as it were, pressing the claim. At all events the insistence on six members by the Prince Edward Island delegates in respect to the natural and geographical subdivision of the island into three sections, is a circumstance of some importance in that connection. The British North America Act fully recognised the subdivision of the country into counties, and the representation of different sections in the Parliament of the Dominion by counties. That is the scheme of representation provided by section 40 of the statute, and the schedule to the Act annexed. We hear of three counties on the island, and these three counties were set beyond and separate, each from the other, by deep indentations into the coast line, and sea gulfs separating one of the three subdivisions from each of its fellows. It was marked out for the representation of some multiple of three.
I cannot pretend to say that that was by any means to be a governing consideration, but that was certainly in the minds of those who were framing these resolutions as demonstrated by their remarks upon that occasion and that consideration certainly influenced the matter at the time. It is just as impossible to day as it was forty years ago to distribute proportionately five members or four members among three counties. That consideration was advanced and urged by the delegates of the island at the Quebec conference. It has been relied upon in their subsequent negotiations in regard to these matters, and it is a circumstance of importance, as it seems to us, in the consideration of the matter still.
As I say, there are these circumstances in the discussion of the Quebec resolutions and of the terms of union in 1873, which demonstrated the views of those who debated the terms under which the island should join the Dominion. But aside altogether from any such question, upon the nature of the terms and conditions themselves it can be readily seen that the idea of those who framed, and the idea on the part of the provincial representatives, was that for which we contend when they introduced the language of clause 12.
"That the population of Prince Edward Island having been increased by 15,000 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 readjusted from time to time under provisions of the British North America Act, 1867."
I do not know what the fact may be as to whether the census returns of 1871 had been completed at the time of the framing of this resolution; the reference to the approximate increase that the population had been increased by 15,000 or upwards, seems to indicate lack of absolute certainty as to the figure. But the reference to the figures of 1861 seems important. Why word the resolution in that way? Why preface it by that consideration? We interpret that as simply meaning this: The population of the Island is increasing, and inasmuch as it had increased by 15,000 in the last decade, inasmuch as it is an increasing thing, we will give a representation of six subject to re-adjustment.
Now, our population at that time as I have said would have given us but five and one-eighth or barely over five members. We are then given six members because of the fact that we are of an increasing population. Then I refer further to the provisions of clause 14 of the resolution;
"The provisions of the British North America Act 1867 shall, except those parts that are referable to one province only-"
which does not apply here—
"and except so far as the same may be varied by these resolutions, be applicable to Prince Edward Island."
That is possibly in view of the provisions of section 146 which authorised the Queen in council to define or to approve the terms of union expressed in the resolutions "subject to the provisions of this Act." That perhaps is a provision to which if it in any way conflicted with the expressed terms of the statute no effect could be given, but treating it as a provision which is not opposed, as we hope to convince your Lordships it is not, to anything contained in the statute, it seems an additional guarantee to Prince Edward Island in this minimum representation.
The provisions of the British North America Act 1867, except so far as the same may be varied by these resolutions, shall be applicable to Prince Edward Island in the same way and to the same extent as they apply to the other provinces of the Dominion and as if the Colony of Prince Edward Island had been one of the provinces originally united by the said Act.
Your Lordships will remember the wording of section 51 of the British North America Act in its terms applies to only four provinces. The language is:
"The representation of the four provinces shall be re-adjusted."
I do not overlook the circumstance—of course I may not do so—that the other day, in assigning reasons for the disposal made of the questions submitted as to the interpretation of section 51, Mr. Justice Mills, at all events, of your Lordships' bench, expressed the view that the word "four" ought to be read as if it were "seven" and that section 51 would in that view be applicable to all the provinces of the Dominion however few or many they might be from time to time.
The point I was seeking to make—if it is open to me at all—on section 51 was as I have indicated, that it does not profess to apply to any but the four provinces that were then united. That at all events is the language, and if that be a correct view of its scope, then reading it with this 14th resolution you have nothing in conflict, but you have as one of the terms of the compact of union with Prince Edward Island the stipulation that the provisions of the British North America Act, except to the extent that they are varied by this resolution, shall be applicable to Prince Edward Island. Now, one of the variations—the principal one so far as one can see in the whole series of resolutions—is this on the matter of representation, and that representation haying been fixed by resolution 12 we think it immediately followed as one of the articles of the treaty, that the British North America Act, except so far as it might be varied by these resolutions, was to be applicable.
Mr. Justice Girouard: The opinion of the court is that section 51 should be construed as meaning the whole population of Canada including the provinces which had been admitted into confederation subsequent to the passing of the British North America Act. Now yon are asking us to decide the very reverse.
Mr. Aylesworth: No my Lord; let me point out. The court has undoubtedly declared that under subsection 4 of section 51, the phrase "the population of Canada" means the population of seven or of eight or of all the provinces. But that is quite a different thing my Lord from the question I am submitting; whether the representation of any province except the original four is to determined by that rule of proportion based upon the aggregate population of the whole Dominion. Your Lordships were not asked anything in the other case by the reference, as to whether section 51 was applicable to the provinces that have joined Confederation since 1867. The court was asked merely with reference to the words "the aggregate population of Canada", and the court answering what was meant by "the aggregate population of Canada", declared that it meant the whole population of the whole Dominion, seven or eight provinces. Now, that might well be the basis of representation in each one of the four original confederating provinces and not be the basis in a specially admitted province such as Prince Edward Island.
Mr. Justice Sedgewick: But the Queen's orderin-council admitting Prince Edward Island into the union provided expressly that after 1873 the subsequent representation of the province should be readjusted according to section 51.
Mr. Aylesworth: No my Lord. The only thing we have in that regard is in resolution 12 which I have referred to; that the population having been increased by 15,000 since 1861 the Island should be represented in the House of Commons of Canada by six members, the representation to be re-adjusted from time to time under the provisions of the British North America Act, 1867.
Mr. Justice Nesbitt: The opinion of this court on the former reference says that these four provinces are in the same position as others coming in afterwards.
Mr. Aylesworth: No; all that this judgment says—at least the only answer that goes formally from the court is that as far as re-adjustment is necessary under 51 you must take the population of the whole Dominion as the basis.
Mr. Justice Nesbitt: Is it not the same thing?
Mr. Aylesworth: I do not think so. If your Lordship had the clause before you, you would see what I am contending for. By section 51 it is provided that after each decennial census the representation of the four provinces shall be re-adjusted. These four provinces were of course the two Canadas, New Brunswick and Nova Scotia. The representation of these four is to be re-adjusted in the following manner: Quebec shall have a fixed number of 65. There shall be assigned to each of the others—I read that, each of the other three—such a number of members as will bear the same proportion to the number of its population as the number 65 bears to the population of Quebec. That will provide a house of say 185 members. Then there is no change as to the remainder of the House. Of course that is unfair representation to Quebec I grant. It is equally unfair representation to Ontario, and New Brunswick and Nova Scotia, but while it is so it is comparatively a little thing; it is over-representation at most to the extent of two or three or four members, a trifle in the whole; a large thing to the small province, but a thing of small consequence to the other members of confederation.
Upon the terms of our union there is just a further reference I wish to make. By clause 6 your Lordships will find the provision for paying annual subsidies to the island:
"In consideration of the transfer to the Parliament of Canada of the powers of taxation, the following sums shall be paid yearly by Canada to Prince Edward Island for the support of its Government and Legislature; that is to say: $30,000 and an annual grant equal to 80 cents per head of its population as shown by the census returns of 1871, namely, 94,021; both, by half yearly payments in advance. Such grant of 80 cts. per head to be augmented in proportion to the increase in population of the Island as may be shown by each subsequent decennial census until the population mounts to 400,000, at which rate the grant shall hereafter remain, it being understood that the next census shall be taken in the year 1881."
That recites that the population is now 94,021 and provides that 80 cts per head of that population shall be paid it annually, and then that that grant of 80 cts. per head shall be augmented in proportion to the increase of the population of the Island as may be shown by each decennial census. Now, it happened that the population of the Island increased from 94,000 in 1871 to 108,000 in 1881; increased again to 109,000 in 1891 and fell off in 1901. That is to say, it was larger in 1891 than in any other period since the Island entered into the union. Does this grant of 80 cts per head fall off? No. The provision is that this grant of 80 cts. per head shall be augmented in proportion to the increase of the population of the Island, and having once gone up to 80 cts. on 109,000 it never comes down no matter how much the population of the island falls off decade after decade.
Mr. Justice Nesbitt: Is not that against you on the rules of construction?
Mr. Aylesworth: Because it is expressed in the one clause and not in the other? I do not think so, I am not going to argue that there is anything in the British North America Act itself inconsistent with the contention that we are putting forth, but rather the reverse. There is on the face of these resolutions what constitutes the terms of our union with the Dominion, a clear expression in clause 6 which I read, that decrease in the population was not to affect our rights in that regard. As a matter of fact the authorities of the Dominion acquiesced in this interpretation of that clause.
Mr. Justice Sedgewick: There is nothing in the British North America Act to prevent the original four provinces from giving any amount of subsidy to British Columbia or Newfoundland or Prince Edward Island.
Mr. Aylesworth: Certainly, and clearly there is nothing in the British North America Act to prevent them from giving undue representation to any of the outlying district—I mean representation greater than the population would warrant.
Mr. Justice Davies: There is nothing to prevent you granting it when the province comes in, but is there not everything to prevent excepting that province from the readjustment which applies to the whole?
Mr. Aylesworth: Of course that is the point I am arguing. Let me ask your Lordships to permit a brief reference to Gray's Book on the History of Confederation page 58., upon this very question of whether representation by population was the governing principle of the statute. He says:
"Thus at the first inception on entering into the union, population was not intended to be held as the only rule for representation. Though taken as a guide the apportionment must be more or less arbitrary. Existing arrangements, territorial and other considerations must be taken into account, and modifications to suit circumstances necessarily made; but, after entering the union, future changes of the entire representation were to be governed by that principle. Such seemed to be the views on this subject. The principle itself was affirmed simply and explicitly in the 17th resolution in the conference at Quebec; but in the constitution as subsequently settled at Westminster and enacted by the British North America Act, 1867, while the re-adjustment made by the Quebec resolution is adhered to, the principle explicitly laid down 'that the basis of representation in the House of Commons shall be by population,' is not re-declared. So marked a distinction, it must be presumed, was intentional to remove any doubt that the confederation of the four provinces then formed should have free scope for terms that might be necessary thereafter to bring in other portions of British North America."
That is exactly the principle upon which we submit the Dominion, under the invitation or at the suggestion of the Home authorities, acted in regard to the admission of Prince Edward Island. They were invited to be generous and to deal liberally with their small sister. They did so and it would be a most illusory thing if granting that in the terms of the original compact, they are entitled to take it away at the expiration, it might be, of a couple of years. Mr. Justice Davies: Where would be the distinction from the illusory standpoint in Prince Edward Island losing a member under the terms it came in on and New Brunswick losing a member under the terms it came on.
Mr. Aylesworth: I have to say—unless I am precluded from saying it by your Lordships' view as expressed the other day—that my admission of the true construction of section 37 is that Nova Scotia could never have less than 19.
Mr. Justice Nesbitt: What do you make out of the words "subject to the provisions of this Act" in section 51?
Mr. Aylesworth: My interpretation of section 51 is this: Wherever you increase above the original representation as fixed by section 37, you may re-adjust that increase by wiping it out altogether, but there is no provision in the statute from start to finish for a house of less than 181 members. Would it be any Parliament at all with 160 members under the British North America Act? By section 52 there is a careful provision that the number may be increased. There is no provision that it may be decreased and surely one may say that a provision for decrease would be more necessary than one for increase. No matter how much you increase you still have at least 181 members and one would have thought no express provision for increase would be necessary. But in abundance of caution, by section 52 it is provided that you may increase. Surely the inference is the strongest that you should not cut down; you may not make a house smaller than the minimum fixed by the Act itself in section 37. If then you have a minimum house of 181 for the four original provinces, upon the basis of proportion you cannot cut any one of these four provinces below the numbers fixed by the statute. Mr. Justice Nesbitt: Suppose one of the provinces by constant influx of population or the growth of manufacture should become very populous. Take Nova Scotia; it cannot go below 19 but it can go to 70.
Mr. Aylesworth: Yes, and so increasing in population that increase beyond 19 might be re-adjusted and according to the terms of the statute might to up and down. It may be that the position was not contemplated of a province ever falling below the figures fixed by the original compact, by the statute. It may be that was not thought of, but however that may be there is certainly no provision for it here and the absence of such a provision is very marked, in the presence of such a very careful provision for increase.
Mr. Justice Davies: There is no provision if we give to the word "re-adjustment" the limited meaning you suggest. But giving it the ordinary meaning which it bears in the English language there is a provision for reduction. I do not quite catch the meaning of your argument or the full force of it on section 37. The statute does not say arbitrarily there shall be 181 members of Parliament, but "subject to the provisions of the Act" evidently contemplating the possibility of less.
Mr. Aylesworth: But what are the provisions of the Act in that regard? Section 52 provides for increase not decrease. Does section 51 provide for any decrease of the aggregate? Not that I am able to see.
Mr. Justice Davies: It provides for the operation of the rule, the result of which may be a decrease.
Mr. Aylesworth: To re-adjust; not to decrease.
Mr. Justice Sedgewick: If you re-adjust an account between two merchants that means that you have to add to one and subtract from another. Re-adjustment must be capable of only one meaning. Mr. Aylesworth: Let me ask your Lordships to look at at it as I have just been putting it. We have three sections defining the number of members in the House of Commons of Canada; sections 37, 51 and 52. Section 37 gives us a certain number to start with, namely 181 members, and the House of Commons shall consist of that number subject to the provisions of the Act. That must mean subject to these other two clauses; subject to 51 and 52. Now 52 says that the number of 181 may be increased. Then under sections 37 and 52 together, the number shall be 181 or more, a