Freedom and Order: Collected Essays 9780773595385

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CARLETON UNIVERSITY I

Freedom and Order

by Eugene Forsey

w ith an in tro d u c tio n by D o n a ld C re ig h to n

The Carlelon Library No. 73 McClelland and Stewart Limited

IDbS (ft 51 0 6 T H E C A R L E T O N L IB R A R Y

A series o f Canadian reprints and new collections o f source material relating to Canada, issued under the editorial supervision o f the Institute o f Canadian Studies o f Caricton University, Ottawa. D IR EC T O R OF THE INSTITUTE

Davidson Dunton G E N E RA L EDITOR

fC loD

Michael Gnarowski EXECUTIVE EDITOR

James Marsh ED ITO RIAL BOARD

Duncan M . Anderson (Geography) B. Carman Bickerton (History) Dennis Forcese (SociologyI J. George Neuspiel (Law) Thomas K. Rymes (Economics) Derek G . Smith (Anthropology) Michael S. Whittington (Political Science)

© M cClelland and Siewart Limited. 1974 ALL RIGHTS RESERVED

The Canadian Publishers McClelland and Stewart Limited 25 Hollinger Road, Toronto 374. Printed and bound in Canada by T. H. Best Printing Company Lim ited

V

To the memory of Arthur Meighen, kindest and most generous of friends, patriot and statesman, incomparable parliamentarian, who summoned us to be “conscious of our mighty heritage, proud of the Imperial Fountain of our freedom,.........worthy of those ideals of British liberty and justice which have sent their light forth and their truth among all races of men.”

Table o f Contents

Preface Introductory Notes on the Essays Eugene Alfred Forsey: An Introduction by Donald Creighton Part I: c r o w n a n d c a b i n e t 1. Constitutional Monarchy and the Provinces 2. The Authority of the Government 3. The Crown and the Constitution 4. Appointment of Extra Senators under Section 26 of the British North America Act 5. Meetings of the Queen’s Privy Council for Canada, 1867-1882 Part II: p a r l i a m e n t 6. Parliament’s Power to Advise 7. Constitutional Annus Mirabilis 8. Mr. King and Parliamentary Government 9. The Problem of “ Minority” Government in Canada 10. Government Defeats in the Canadian House of Commons, 1867-1873 11. Constitutional Aspects of the Canadian Pipe Line Debate 12. Removal of Superior Court Judges 13. Fixed Dates for Election? Part III: d o m i n i o n a n d p r o v i n c e s 14. Dominion Status for the Provinces 15. Canada and Alberta: The Revival of Dominion Control over the Provinces 16. Extension of the Life of Legislatures 17. The Constitutionality of the Official Languages Act 18. The Canadian Constitution and its Amendment Part IV: “ f r e n c h ” a n d “ E n g l i s h ” 19. The British North American Act and Biculturalism 20. Canada: Two Nations or One? 21. Present Problems of Confederation: An English-Canadian View 22. Memorandum on the Associate States 23. Canada, 1967 24. “ Our Present Discontents”

vii xi 1 21 32 34 50 60 73 84 87 109 123 128 148 152 157 177 205 222 227 240 247 269 284 288 306

P re fa c e The editors of this series have suggested that I might introduce this book by explaining how I came to be interested in a subject which has been an abiding passion through all the changes and chances of a somewhat chequered career. I am tempted to reply that I was born that way. A belief in, and devotion to, British institutions, was certainly bred in my bones; and in the home in which I was brought up, politics, especially Canadian politics, was meat and drink. My father’s people came to Newfoundland from Devon almost two hundred years ago. My maternal grandmother’s fam­ ily were, on one side, New York Loyalists who came to Nova Scotia in 1783, on the other, pre-Loyalists who arrived from Massachusetts in or before 1760. Each family, Thornes and Shaws, contributed a member to the Nova Scotia Legislature before Confederation, and the Thornes a Senator within my lifetime. My mother’s father, William Cochrane Bowles, i.s.o., was a bilingual Quebec City Anglo-Scots Irishman, of the first generation born in Canada. He entered the service of the Assem­ bly of the Province of Canada as a page in 1855, and retired from the service of the House of Commons of the Dominion of Canada as Chief Clerk of Votes and Proceedings in 1915. For some years of that period, he doubled as secretary to Sir John Bourinot, from whom he acquired a mastery of parliamentary procedure. It was in his house that I was brought up. My father died suddenly, in Mexico, when I was six months old, and my mother came back to her own family in Ottawa. As a result, I frequented the Canadian Parliament Buildings almost from the time I was able to walk. Where other boys played, watched and talked, baseball, football or hockey, I listened to parliamentary debates. I remember every Prime Minister since 1894, except Sir Charles Tupper; I remember one man who was elected to Parliament in 1867, half-a-dozen elected in 1874, a dozen elected in 1878. I have known personally a great many of the parliamentarians of the last sixty years, of all parties except Social Credit. My earliest political recollection is the Mexican Revolution of 1910 (two of my father's family were still in Mexico), closely followed by the struggle in Britain over Irish Home Rule, in which my grand­ father naturally took the liveliest interest. The first Canadian political event I recall is the election of 1911, when I heard Sir Wilfrid Laurier speak from the end of his private car in Annapo­

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lis. I have still a vivid recollection of my indignation, the night of the election, at being parked with a neighbour while the rest of the family went out to look at the bulletin boards and see the fun. Next morning, I asked mother what a Cabinet was, and I got the essence of it forthwith. She and my grandfather must have been superb simplifiers. I cannot think of anything they taught me about Canadian eovernment which I have had to unlearn. With that background and in those surroundings. I could hardly fail to grow up intensely political; and when I went to McGill, I was a natural for Honours in Economics and Political Science. In his courses on British and Canadian government, Stephen Leacock (a masterly teacher of both) built on the foun­ dations my home had laid. At Oxford, I read Philosophy, Politics and Economics; curiously enough, with Politics in third place (which, in retrospect, seems both inexplicable and foolish). I also turned my back on the solid Conservatism in which I had been nurtured and became a zealous member of the Labour Party. (Even before I left Canada, I had got into hot water with the university authorities as a “ Bolshevik” - the precise word they used on the somewhat odd ground of having written, for a student periodical, an impassioned defence of Arthur Meighen, whom the bien peasants of Montreal considered a dangerous radical.) Back in Canada after 1929, I lectured at McGill on British and Canadian government for six or seven of my twelve years on the staff. 1 became notorious for my Socialist opinions and activi­ ties; but my views on constitutional matters remained unimpeach­ ably traditional. I do not say “orthodox,” for I was already preaching what was then the heresy on the reserve powers of the Crown, which seems now to have become orthodoxy. Indeed, in 1930, 1 presented to the Canadian Political Science Association a paper on the royal power of dissolution of Parliament which incurred the wrath of that much over-rated constitutional “authority,” Mr. J. S. Ewart, k . c . He made a poor fist of arguing his case before the Association. But he had a shot left in his locker: he went to the Secretary and asked him to ask me to consent to having the paper suppressed. I declined, in suitable terms. 1 was told at the time that Mr. Ewart was going around Ottawa breathing forth threats and slaughters about the pamphlet in which he would demolish me. It never appeared. It remained for Mr. J. W. Dafoe to attempt the task, thirteen years later, when my book on the subject was published. He reviewed it in two articles in which gross distortion, outright mendacity and sheer billingsgate were nicely blended. I replied briefly, dealing

PREFACE

ix

with four of-the most outrageous misrepresentations. To my letter, Mr. Dafoe appended a “ note,” saying 1 had “ducked” all his most important criticisms. This I had no intention of answer­ ing, till Arthur Meighen and T. C. Douglas, in identical words, told me I should “ let him have it both barrels.” The ensuing exchange lasted three months (probably a record for newspaper con­ troversy on a Ph.D. thesis), with Mr. B. K. Sandwell taking a hand, on my side, in Saturday Night. In attacking my work, Mr. Dafoe was able to enjoy the luxury of hitting simultaneously both his pet political hates, the Conservative party and the c.c.F. He had begun by accusing me of being part of a Tory conspiracy; he wound up by calling me a “left-wing mudslinger and character assassin.” In my twenty-seven years with the Canadian Congress of Labour and the Canadian Labour Congress, I was, naturally, mainly preoccupied with matters other than constitutional. But I kept my hand in by lecturing, part-time, on Canadian govern­ ment, at Carleton University; I drew up the Congress' petitions for the disallowance of the Prince Edward Island Trade Union Act of 1948 and the two iniquitous Newfoundland Labour Acts of 1959 (I had, while at McGill, drawn up the petition for disallowance of the Quebec Padlock Act); I appeared, for the Congress before parliamentary committees dealing with human rights and fundamental freedoms and the Diefenbaker Bill of Rights; and from time to time I supplied my employers with what I called “ illegal legal opinions” on constitutional matters (such as the British Columbia Act on trade union contributions to political funds,where most of the lawyers I knew were against me, but where the Supreme Court of Canada came down against them). Various people still occasionally ask me for such opinions: one appears in this volume. So far, I have usually been lucky enough to find my conclusions coinciding with those of the Supreme Court. One case has still to be determined; when it is, I may be chastened as effectively as I was by the electors each of the four times when I sought their votes. Almost all the articles in this volume were written while I was with the Labour Congresses. The officers were exceedingly indul­ gent to these extra-curricular activities, only a few of which were of any direct use to them, while several may well have been an embarrassment. I am most grateful for their kindness. Much of the material for some of the articles is the fruit of research undertaken for a book on Cabinet government in Canada for which I received a Guggenheim Fellowship, and later, a Skelton-Clark Fellowship at Queen’s, and which, alas! has yet to be written, ( d . v ., it will be.)

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The spirit to write what I have on constitutional matters came largely from Arthur Meighen, the hero of my boyhood and student days in the galleries of the House of Commons, the friend and teacher of my later years, the generous but exacting critic of my doctoral thesis. I still have the original manuscript, with his “crisp, pointed and delightful” marginal comments. (Two, espe­ cially, remain in my memory. On a quotation from one of his own speeches; “ 1 was about to write opposite this, ‘Excellent,’ until I looked at the footnote and saw where it came from!” On conflicting pronouncements by Berriedale Keith: “ His mind is taken captive by one platitude to-day and by another to-morrow.” ) His voluminous typed comments are in the Public Archives. Characteristically, he forbade me to mention any of this in the preface to the book. In the dedication of this volume, I pay at last a very small instalment of the immeasurable debt I owe to him. Without my wife’s constant support and encouragement, vir­ tually nothing I have ever written could have got on to paper at all, let alone seen the light of day. My successive secretaries, Mrs. Dawn Dobson and Mrs. Betty Eligh, were indefatigable, and unvaryingly patient, in making fair copies from my two-fingered typing, often hideously complicated by strike-overs and pen-and-ink interlinings. That Donald Creighton should have consented to write the Introduction is perhaps the highest honour I have ever received. It is one more proof of the generous friendship he has given me, in increasing measure, for thirty years. Non sum dignus. Eugene Forsey

I N T R O D U C T O R Y N O T E S O N T H E E S SA Y S

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Introductory Notes on the Essays

Constitutional M onarchy and the Provinces

(From The Confederation Challenge (Ontario Advisory Commit­ tee Background Papers and Reports), the Queen’s Printer of Ontario, Toronto, 1967, pp. 177-86) This is a report to the Ontario Advisory Committee on Confeder­ ation, set up by the Government of Ontario in 1965. I was a member till shortly after my appointment to the Senate in Octo­ ber 1970. Someone in the Committee must have suggested the possibility that relations between Quebec and the rest of the country might be improved by making Canada a republic, or else allowing any province to make itself a republic within the Cana­ dian federation. The A uthority o f the Government

(From 25 Canadian Bar Review, February, 1947, pp. 185-7) The occasion of this article appears plainly in the text. The Crown and the Constitution

(From the Dalhousie Review, vol. 33, Spring, 1953, pp. 31-46; with footnotes, minor corrections, and a revised ending) This was part of my continuing campaign to get people to realize that, in Arthur Meighen’s words, “The sphere of discretion left to a Governor-General under our constitution and under our prac­ tice is a limited sphere indeed, but it is a sphere of dignity and great responsibility. Within the ambit of discretion residing still in the Crown in England, and residing in the Governor-General in the Dominions, there is a responsibility as great as falls to any estate of the realm or to any House of Parliament. . . Within the sphere of that discretion the plain duty of the Governor-General is not to weaken responsible government, not to undermine the rights of parliament,. . . it is to make sure that responsible gov­ ernment is maintained, that the rights of parliament are respected, that the still higher rights of the people are held sacred. It is his duty to make sure that parliament is not stifled by government, but that every government is held responsible to parliament, and every parliament held responsible to the people.”

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The A ppointm ent o f Extra Senators under Section 26 o f the British N orth America Act

(From Canadian Journal o f Economics and Political Science. vol. 12, May, 1946, pp. 159-67) This was written at a time when the Conservative party had almost disappeared from the Upper House, and when the c.c.F. seemed likely to become a major party, leading to a situation where perhaps no party would have a majority in the House of Commons and either a Conservative or a c.c.F. minority Gov­ ernment might find itself without a single member in the Senate. M eetings o f the Q u ee n ’s Privy Council for C an ada, 1867-1882

(From Canadian Journal o f Economics and Political Science, vol. 23, November, 1966, pp. 489-98) This is a bit of antiquarianism, provoked by the re-emergence of occasional formal meetings of the Privy Council as such, with the Governor-General and non-Ministers present. P arlia m en t’s Power to Advise

(From Canadian Journal o f Economics and Political Science, vol. 29, May, 1963, pp. 203-10) This is a by-product of the discussions of possible disallowance of the Newfoundland labour legislation of 1959. In a Halifax news­ paper, I read that the Speaker of the House of Commons, on a point of order raised by the Minister of Justice, had given a ruling which, in effect, would have debarred the House from discussing the Government’s action until either it had disallowed the provin­ cial legislation, or the time for disallowance had run out. 1 knew this was wrong, and on my return to Ottawa I sat down to prove it. 1 wrote the Speaker a 5,000-word letter. That, and a subse­ quent discussion with him and the Clerk, convinced him that I was right. The substance of my letter, somewhat better expressed, I hope, appears below. Constitutional Annus M ira b ilis

(From Public Affairs, Dalhousie University, vol. 2, Autumn, 1951, pp. 43-5) The “marvellous year” was 1926, which saw not only the Byng-King crisis but also a remarkable intervention by the Dominion Government in Nova Scotia. The latter is discussed below.

I N T R O D U C T O R Y NOTES O N T HE ESSAYS

x iii

M r . King and Parliam entary Government

(From Canadian Journal o f Economics and Political Science, vol. 17, November, 1951, pp. 451-67) This, published soon after Mr. King’s death, is, I fear, a breach of the maxim, “ De mortuis nil, nisi bonum.” I am rather sur­ prised that the executive of the Canadian Political Science Asso­ ciation allowed me to deliver it in the spring of 1951, or publish it even in November. I set about it in a spirt of stern academic objectivity, telling myself that, though Mr. King’s behaviour in 1926 was constitutionally inexcusable, he could not have been consistently wrong on such subjects. Evening after evening I went to the Parliamentary Library determined to find evidence of his constitutional good deeds. Evening after evening, within half an hour or less, what 1 found was fresh evidence of the contrary: either outrages 1 had forgotten, or new ones that I had never heard of, both of which sent me soaring into the dome of the library in a state of incandescence. The paper delivered to the Association was too long for its quarterly Journal. The parts I had to cut out I thriftily used in “ Constitutional Annus Mirabilis.” The Problem o f “ M in o r ity ” Government in C anada

(From Canadian Journal o f Economics and Political Science, vol. 30, February, 1964. pp. 1-11) This is a revised version of a series of articles 1 wrote for the Hamilton Spectator, at the request of its then publisher, my old friend Tom Nichols, just after the election of 1963. I thought they might be useful to students in a more permanent form, so I submitted a revised version to the Canadian Journal of Econom­ ics and Political Science. The editor jibbed: the Journal did not publish material which had appeared elsewhere. He suggested a short “note,” with much detail on the Australian and New Zea­ land cases. I replied that 1 did not know enough of these latter to be able to add anything; I was too impecunious to make a trip to the Antipodes to find out; and even if I could, the result would be a note of gargantuan length, a note to end all notes. This produced a hasty assurance that, with some further, relatively minor, revisions, the article would be acceptable as was. Governm ent Defeats in the C anadian House o f Com m ons,

1867-1873

(From Canadian Journal o f Economics and Political Science, vol. 29, August, 1963, pp. 364-7)

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This is another by-product of the 1963 election. Constitutional Aspects o f the C an adian Pipe Line Debate

(From Public Law, Stevens & Sons Limited, London, vol. 2, Spring, 1957, pp. 9-27) This is a sequel to the pipeline debate of 1956 in the Canadian House of Commons, most of which 1 witnessed, as I had wit­ nessed most of the crucial debate on the Customs Scandal and the constitutional issue, thirty years before. For a letter criticizing the 'Speaker’s conduct (one of the two letters mentioned in the article) I came very near being called to the bar of the House; but the events of “ Black Friday,” June 1, lost me my one chance of fame. Removal o f Superior Court Judges

(From Canadian Commentator, vol. 17-19)

10, February, 1966, pp

This was occasioned by the proceedings for the removal of Mr. Justice Landreville, of the Supreme Court of Ontario, in 1965-66. The proceedings were never carried to a conclusion, as the judge resigned after a Committee of both Houses had recommended a Joint Address for his removal. Fixed Dates for Elections?

(From Canadian Commentator, vol. 10, July-August, 1966, pp 24-7) After the election of 1965 failed to give any party a majority, the perennial cry for a fixed date for elections was heard again. Since this article was written, it has cropped up in a modified form in the report of the Joint Committee of both Houses on the Consti­ tution, 1972. This latest proposal would provide that a Parliament would sit for a fixed period of four years, subject to dissolution within that period only if (a) the Government were defeated on an explicit vote of censure or want of confidence, (b) the Govern­ ment were defeated on a bill or part of a bill which it had, before the vote, declared to be a matter of confidence, or (c) the House of Commons voted for dissolution. Under this scheme, if the electors returned a House of Commons with 132 members on each side, it might prove impossible to elect a Speaker. Parlia­ ment would be totally incapable of functioning. The Cabinet would have to carry on for four years without Parliament, con­ vening it once a year to meet the requirements of section 20 of

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XV

the British North America Act, only to reveal afresh its impot­ ence. This is a recipe for legislative impotence and irresponsible government. D om inion Status for the Provinces?

(From Saturday Night, vol. 63, February 24, March 20, April 24, May 15, June 26, 1948) This series of articles in Saturday Night was provoked by Mr. Maurice Duplessis’ claim that the provinces should be consulted on the admission of Newfoundland to Confederation. C anada and A lberta: The Revival o f D om inion Control over the Provinces

(From Politico, vol. 4, June, 1939, pp. 95-123) This was occasioned by the almost instantaneous Dominion disal­ lowance of three Alberta Acts, and the Lieutenant-Governor’s reservation of three Alberta bills, in 1937, and Dominion refusal to disallow the Quebec Padlock Act of the same year. Six more Alberta Acts were disallowed between 1937 and 1943. The Supreme court of Canada found the Padlock Act ultra vires in the case of Switzman v. Elbling and the Attorney-General of Quebec, [1957] S.C.R. 285. Extension o f the Life o f Legislatures

(From Canadian Journal o f Economics and Political Science, vol. 26, November, 1960, pp. 604-16) I cannot now recall what prompted this. It may have been a class discussion which revealed both a failure to realize what the “sover­ eignty” of a provincial Legislature (within the limits of subject and area defined by the British North America Act as interpreted by the highest Courts, and subject to the Dominion's power of disallow­ ance and its powers under section 93 of that Act and the corre­ sponding sections of the Manitoba, Saskatchewan and Alberta Acts) means, and a failure to understand the constitutional safe­ guards against abuse of that “sovereignty." An extraordinary num­ ber of people, even, at times, some lawyers, seem to be under the impression that our Constitution is just a smudged copy of the American, and that, accordingly, our provincial Legislatures are, in effect, limited in the same way as American state Legislatures. I encountered this superstition in the discussion of the British Columbia Act dealing with trade union contributions to political funds.

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The C onstitutionality o f the O ffic ia l Languages Act

(From the Globe and M ail, Toronto, February 8, 1969) This “illegal legal opinion” was written at the request of a distin­ guished Conservative M.P., himself an excellent lawyer. 1 pro­ tested: I was not a lawyer, and 1 did not think my opinions on such questions were of much value. He was kind enough to say he thought I might let others judge of the value of my opinions, and to renew his request. So I complied. The subsequent approval of two other lawyers of high standing has emboldened me to include the article here. The C anadian C onstitution and its Amendment

(From The Quarterly o f Canadian Studies fo r the Secondary School, Winter II, 1972, pp. 173-83) This article was written by request of the editors of the periodical in which it appeared. I have (as in some other instances) added foot­ notes to give references, to correct minor errors, and to note things that have happened since the article was written. The British N orth Am erica Act and Biculturalism

(From Queen's Quarterly, vol. 71, Summer, 1964, pp. 141-9) This is a preliminary effort at the intellectual slum clearance to which the rest of this volume is mainly devoted. The other articles involve a certain amount of repetition, which, however, may not be entirely superfluous, since the whole subject is one on which igno­ rance, confusion and muddleheadedness abound and persist, even among people who ought to know better, and the general public have too often been “ hungry sheep” who have looked up to the learned and not been fed, or, worse, fed soap bubbles or sawdust. C a n a d a : Two N ations or O ne?

(From Canadian Journal o f Economics and Political Science, vol. 28, November, 1962, pp. 485-501) This is my presidential address to the Canadian Political Science Association in 1962. In some sense, it is my apologia for leaving the New Democratic Party, immediately after its formation, because it had, in effect, accepted that “ two nations” theory, “whose mortal taste” so nearly “brought death into the world, and all our woe.” Present Problems o f Confederation: An English-Canadian View

(From Journal o f Canadian Studies, Trent University, vol. 1, August, 1966, pp. 13-23)

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Xvii

This was one of the first series of Champlain Lectures at Trent University. It is the product of a long agony of composition. I did about fifty drafts of the first paragraph. The lecture was to be deliv­ ered Tuesday evening. On Sunday afternoon at five, I was still staring at a blank sheet of paper. By six o'clock Monday evening (and without burning the midnight oil), I had finished all but one paragraph, and my then secretary, Mrs. M. R. Dobson, had, by a generous gift of overtime, finished the fair copy. The one missing paragraph I wrote in Peterborough Tuesday afternoon. By the time I mounted the platform, “ Nature within me seem [ed] In all her functions weary of herself,” and I was incapable of deciding whether the production was passable or the worst tripe I had ever perpetrated. Fortunately the audience took the more lenient view. M em orandum on the Associate States

(From The Confederation Challenge, vol. 1, pp. 189-92) This is another report prepared for the Ontario Advisory Commit­ tee on Confederation. It is perhaps relevant not only to the docu­ ment it deals with but also to M. Rene Levesque’s “ Souverainete-Association.” C a n a d a ,1967

This is a lecture delivered at the University of Western Ontario, in a series which was, I understood, intended for publication. The publication never came off. I have a special fondness for this lecture because this was the first time I ever embellished a speech with song. (I have done it twice since, once in the Senate.) The song was provoked by the Quebec Government’s objections to the use of the word “national” in the name of one of the Centennial organiza­ tions. “ O u r Present Discontents”

(From The Confederation Challenge, vol. 2, 1970, pp. 60-84) This is a slightly abbreviated version of the first George Nowlan Lectures at Acadia University. The Ontario Advisory Committee on Confederation kindly asked permission to include it in the sec­ ond volume of its Background Papers and Reports. It entrusted the editing of the volume to a professional editor, who undertook to correct my English, an attempt to which I responded with a gener­ ous warmth. Most of her efforts took the form of changing the word order to flatten every point I was trying to make; sometimes, she changed words; once she revised my paraphrase of a section of the British North America Act, producing a version which contra-

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dieted the Act itself. Fortunately 1 had the Oxford Dictionary, and Fowler (and the Act), in my corner. On a later occasion, faced with the same sort of games by a more learned editor, I was able to summon to my aid not only Fowler and the Dictionary but Shake­ speare and the Bible. In each case, I consented to a single change, on the fine old English principle, “ It pleases 'e and it don't ’urt O i;" and made one correction of a very minor error of fact (which the editor had not spotted). Otherwise, the text remained unaltered; perhaps “a poor thing, but mine own.”

E U G E N E A L F R E D F O R S E Y : A n Introduction by D onald Creighton

I My close association with Eugene Forsey, which has now lasted for nearly thirty years, provides a convincing proof of the truth that friendship does not necessarily depend upon propinquity. Eugene was born in Grand Bank, Newfoundland in 1904, and I nearly two years earlier in Toronto. I grew up in my native city and Eugene in Ottawa, to which he was brought, after the death of his father, when he was only six months old. In the first decades of this century, Canada’s enormous distances were really divisive; the capital of Canada seemed so far away and I never even set eyes on it until I was in my late Twenties. While Eugene crowned a brilliant career at Ottawa Collegiate Institute with thirteen firsts in Senior Matriculation, I cut short my much less distinguished passage through Humberside Collegiate, Toronto, at the Junior Matriculation level and left gratefully for Victoria College. Eugene read for honours in Economics and Political Science and English at McGill University, and I took the Honour Course in English and History at the University of Toronto. We both graduated in 1925; but, while Eugene remained another year at McGill and gained his Master’s degree, I departed at once for Balliol College, Oxford. He followed me there a year later, hav­ ing won the Rhodes Scholarship which I failed to get in 1925, and it was at Balliol that we met and talked for the first time. We saw relatively little of each other then, however, for at Oxford, as at every other university, one’s college year largely determined one’s friends and acquaintances; and also, while Eugene chose the Honour School in Philosophy, Politics and Economics, I read Modern History. Our time together at Balliol was brief, more­ over, for while my Kylie scholarship gave me only two years at Oxford, Eugene’s Rhodes scholarship provided for three. In 1927, I returned to Canada and began teaching in the Department of History at the University of Toronto, and two years later Eugene followed and became a lecturer in the Department of Economics and Political Science at McGill. In the years that succeeded, we were separated almost as much by our contrasted interests as by the distance between Montreal and Toronto. The two major intellectual enthusiasms of Eugene’s career his constitutional traditionalism and his social radicalism - were by this time firmly established. His devotion to

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ESSAYS O N T H E C A N A D IA N C O N S T IT U T IO N

the constitutional inheritance bequeathed to Canada by British constitutional monarchy and the British imperial system had been nurtured by his paternal grandfather, W. C. Bowles, Chief Clerk of the Votes and Proceedings of the House of Commons, in whose home in Ottawa he had been brought up, and by Arthur Meighen, the political idol of his boyhood, whom he had often watched and heard with delight and admiration from the galleries of the House. During the years at McGill and Oxford, the political Conservatism inherited from his family yielded to a growing interest in labour problems and a vigorous socialist faith. These new convictions were to prove very durable; but they did not disturb his belief in the British constitutional tradition and its great advocate, Arthur Meighen; and his first scholarly paper as a young McGill lecturer, which was presented to the Canadian Political Science Association in 1930, was called “The Royal Power of Dissolution of Parliament.” This was a very early evidence of scholarly ability-my own first historical essay was not published until a year later-but productive scholarship and academic affairs could not alone have contented Eugene; and now, in the first harrowing years of the depression, his socialist principles clamoured for active expression. The founding of the first democratic socialist party in Canada, the Co-Operative Com­ monwealth Federation, had its chief intellectual inspiration in the work of the League for Social Reconstruction, a body of scholars and teachers, most of them young, at McGill and the University of Toronto. Eugene Forsey, along with F. R. Scott and J. King Gordon, was one of the chief leaders of the Montreal group. In all this activity I took almost no part at all. I remember attending what may very well have been the first meeting of the McGill and Toronto groups, which was held in the old Baldwin House, the History building at the University of Toronto. I think I sat through one session, or perhaps an entire day, of the discussions; but that was enough for me and I did not return and never became a member of the League. In those years, I was deeply involved in the study which was finally published as The Commercial Empire o f the St. Lawrence. 1760-1850, and every momenta not pledged to University teaching was devoted to that book. Its terminal date was 1850. I knew very little socialist theory, had little interest in contemporary Canadian politics, and was lamentably ignorant of modern Canadian history. It was not until The Empire o f the St. Lawrence was published and 1 went down to Ottawa in 1938 to join the research staff of the Royal Commission on Dominion-Provincial Relations that I began to develop a real interest in Canadian Confederation and in post-

EUGENE ALFRED FORSEY

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Confederation history and public affairs. The long months I spent in Ottawa in 1938-39 brought my interests, sympathies, and beliefs much closer to those of Eugene. Indeed it could be said that the young men who worked for the Royal Commission and the young men who founded the League for Social Reconstruc­ tion shared a common concern for Canada in depression and a common hope for its better future. Social Planning For Canada, the book in which the League set out its proposals, offered a rigorously socialist programme. The Report o f the Royal Com­ mission was, of course, not nearly so radical in its recommenda­ tions; but it did lay down the bases of the interventionist and welfare state of the future. And both the book and the report assumed that the creation of the new Canada was a national enterprise which must be carried forward under the leadership of the federal government. The gradual convergence of our interests and the curious near-coincidences of our careers continued. We both were awarded Guggenheim fellowships, Eugene in 1941 and I a year earlier. I was looking for a biggish subject, a sequel to my Empire o f the St. Lawrence; and Eugene, having won his doctoral degree with a thesis on the royal power of dissolution of parliament, embarked on an even more ambitious project, a study of cabinet government in Canada. Research and writing had become a compulsive pursuit for both of us; but henceforth we would follow it under markedly different circumstances. 1 returned, after my year as Guggenheim fellow, to the traditional home of schol­ arship, the university; Eugene left it to take up a post as Director of Research in the Canadian Congress of Labour. For a few years, work on both our big projects was suspended. 1 turned aside to write a general history of Canada, and Eugene busied himself in cutting down his bulky thesis to the size demanded by his publishers, the Oxford University Press. In 1943, The Royal Power o f Dissolution o f Parliament in the British Commonwealth was finally published, with a foreword by Sir John Marriott. And it was this book, and the controversy which followed its publica­ tion, which first revealed Eugene’s exceptional gifts to the general public of Canada. The book itself, which surveyed the precedents of grant and refusal of dissolution throughout the British Commonwealth, reviewed the opinions of constitutional authorities on the subject, and then examined the Canadian constitutional crisis of 1926 in detail, was a classic example of the thoroughness, exactitude and trenchancy which characterized Eugene’s historical method. It revealed his superb analytical and expository powers to the full;

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but other weapons in his intellectual armoury, his epigrammatic wit and controversial skill, did not appear in all their brilliance until the famous controversy with Dr. John Wesley Dafoe, the editor of the Winnipeg Free Press. It was inevitable that Dafoe should feel a compelling urge to attack Eugene’s book. Along with O. D. Skelton and Professor R. M. Dawson, Dafoe had been one of the chief prophets and expositors of the Grit-Liberal interpretation of Canadian history, and he realized instinctively that this divine revelation was threatened by the impious heresy of Eugene’s book. It was surely his duty, as well as his pleasure, to denounce it. Skelton was dead. Dawson who, after all, was a scholar as well as a Liberal, might be swayed by the cogency of Eugene’s case. But Dafoe, on the subject of the Grit interpreta­ tion of Canadian constitutional history, was proof against all argument and deaf to all reason. He was a big, gross man, with a dogmatic, hectoring “ bow-wow” manner, a truculent and abusive style, an intense partisan dislike to both Tories and Socialists, and a psychotic hatred of what he thought of as “ British imperialism.” He cher­ ished the journalist’s favourite delusion that he was an authority on virtually everything; and for one class of subjects - Canadian political and constitutional history since Confederation - he regarded his pronouncements as ultimate and infallible. He had grown smugly accustomed to laying down the law for the respect­ ful and edified citizens of Western Canada; and, until he unwarily attacked Eugene’s book, he may never have encountered an antagonist of anything like his own debating power. He soon discovered that he had aroused a formidable opponent who was very unlikely to be intimidated by his air of bullying omniscience. On May 18, 1943, in a letter to the Free Press, Eugene charged that its review of his book was “compounded of about equal parts of misrepresentation and abuse” and proceeded to supply “five glaring examples” of these offences. The Free Press printed this letter, but Dafoe added a brief note accusing Eugene of having evaded his chief criticisms. He may have imagined that this was the end of the matter. He was mistaken. On the identical and emphatic advice of the socialist T. C. Douglas and the Conservative Arthur Meighen, Eugene replied to Dafoe's taunt at length. Then began an exchange of letters which lasted through most of the summer and which, for sheer intellectual interest, was one of the best controversies in the history of Canadian journalism. From the beginning, Dafoe was completely outclassed. In neither historical knowledge, legal eru­ dition or debating skill was he even remotely comparable to

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Eugene. He threshed about, like a huge, infuriated bull, tor­ mented by the banderillas of Eugene’s incisive style and pointed wit. His laboured argument was a coarse mixture of historical inaccuracy, evasion, distortion and abuse. Even the heavy bludg­ eon of his invective proved curiously ineffective against Eugene’s easy command of all the literary weapons of controversy. Irony, satire, comic exaggeration, a copious knowledge of the rich vocabulary of denigration, were all brought into play as Eugene warmed to his work; and, in the end, Dafoe was revealed not only as an ill-informed and unreliable historian, but also as a prejudiced and narrow-minded political partisan. “ I have never . seen,” Eugene summed up the indictment in one of his last letters, “a more glaring example of the lengths to which an inherently rotten case and blind partisanship can drive a man of ability, long experience in public affairs, and (hitherto) some reputation for intellectual honesty.” II Although we saw each other occasionally at the annual meet­ ings of the so-called “ learned societies,” it was not until the winter of 1944 that I received my first letter from Eugene. He wrote asking for some offprints of my essay “George Brown, Sir John Macdonald and the ‘Workingman’,” and he closed his letter by confessing to “a secret hope that you are writing either a life of Brown, or a life of Macdonald, or of both.” This flattering encouragement could hardly have come at a more appropriate moment. By then I had abandoned my search for a sequel to The Empire o f the St. Lawrence and had decided to undertake a biography of Macdonald, which, though I scarcely realized it at the time, was perhaps the best answer to my quest. By the summer of 1944, I was deep in the researches which were to occupy nearly ten years of my life and which increasingly revealed how far Eugene and I shared similar attitudes to Canadian his­ tory. Even before I started work on the Macdonald biography, I had become suspicious of the Grit interpretation; but it was the neglect and underestimation of Macdonald by the Liberal histori­ ans of the early twentieth century that convinced me that their outlook was seriously distorting our understanding of the past. The result of this realization was an article “ Macdonald and Canadian Historians,” to which Eugene gave a hearty welcome. “The whole crew of Grits will froth at the mouth,” he predicted, “and as they have had things so much their own way for so long, this rejoices me exceedingly.”

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The close resemblance of our views on Canadian history and the Canadian constitution was converting a pleasant relationship into a friendship. We saw each other more frequently now, dur­ ing Eugene’s brief visits to Toronto and my longer periods of research in Ottawa. Our interests, of course, never coincided completely. During the last half of the 1940’s, Eugene was very much occupied with the practical politics of the c.c.F. He ran as a c.c.F. candidate in the Ontario election of 1945, and he opposed the redoubtable George Drew in Carleton County, in both the federal by-election of 1948, and the federal general election of the following year. I, on my part, was as little likely to give my ardent support to the c.c.F. as I had been to become an active worker in the League for Social Reconstruction. I was anxious, of course, to see King’s long reign brought to an ignomi­ nious close; but none of the opposition parties attracted me very much, for none of them seemed to share my deep concern at Canada’s increasing subjection to the economic and political domination of the United States. My Canadian nationalism was perhaps more prickly than Eugene’s, his social awareness more sensitive than mine. Yet, although in many ways our interests differed, we agreed completely on the falsity and danger of Grit history and Grit constitutional theory; and thenceforth, from two quite different directions, we attacked it. Eugene laboured to strip King of the extravagant eulogy which had been lavished on him by Liberal apologists; I worked to rescue Macdonald from the disregard and obloquy to which Grit historians had subjected him. 1 was alone and unnoticed, for research and writing is a solitary business and I had no hope of exerting any influence on public opinion until my book was done. Eugene, who was an excellent platform speaker and an occasional contributor to popular weeklies such as Saturday Night, was a much more prominent and effective cam­ paigner than I. Yet his task was inherently the more difficult of the two. The adulation of King which had been rapidly swelling during the past years of the old leader’s triumphant career, reached a climax in the lavish panegyrics which followed his death in 1950. For a while, the stronghold of King’s popular acclaim seemed impregnable. Yet Eugene worked steadily away towards its ultimate demolition. He ridiculed the dilatory and spasmodic fashion in which King had lived up to his grandiose pretensions as a social and industrial reformer. As a socialist, Eugene was deeply offended by these easy breaches of faith; but, on the whole, he was more seriously perturbed by King’s repeated offences against the law and custom of the constitution. He quickly became convinced that the real enormity of

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King’s parliamentary career lay not so much in his individual constitutional misdeeds, as in his persistent attempts to undermine the moral and intellectual bases of the constitution in the minds of the Canadian people. Macdonald, he admitted, might have been guilty of corruption; “ but,” he continued, “ I don’t think he ever debauched the mind of the country as King has consistently done. In particular he never miseducated them about the constitu­ tion.” What appalled Eugene was that at the bottom of all King’s political machinations lay a complacent and cynical disregard of all law and custom, only excepting the unvarying law of his personal interest and partisan advantage. This general indictment was amplified, with many outrageous examples, in the paper delivered to the Canadian Political Science Association in the Spring of 1951. King, Eugene concluded, believed not in parlia­ mentary, but in plebiscitary democracy. He subscribed to the “demagogic heresy” that elections ultimately decide constitutional law and that a people can vote away its own liberties. To deliver an academic address to an academic audience satisfied Eugene’s scholarly standards; but it did not weaken the popularity of the King legend or challenge its journalistic support­ ers, or call in question the continuation of King’s constitutional beliefs. King was dead; but his successors, the new generation of Liberal politicians, endorsed with equal fervour the Grit interpre­ tation of history and the Grit theory of the constitution. Dafoe, King’s principal constitutional apologist, was also dead; but he had left behind him a remarkable journalistic progeny. Dexter, Ferguson, and Hutchison, who ensured that orthodox Dafoeism, with its ring of booming authority, was certain to go on resound­ ing through Canadian journalism. Two years after King’s death, Bruce Hutchison published a biography of the former Prime Minister with the grandiose title The Incredible Canadian, and Eugene reviewed it in an Ottawa paper. The book opened with an oracular pronouncement to the effect that “ the mystery of Mackenzie King” was not “the mystery of a man but the mystery of a people” and continued in this occult fashion for some time. Eugene, who enjoyed good rhetoric and was offended by spurious magniloquence, dismissed this incantation as “ political crooning” and proceeded to supply an extensive list of the errors, omissions, and contradictions of Hutchison’s book. This irreverent treatment aroused the ire of another journalist, Leslie Roberts, who assumed, like most newsmen, that mockery was the exclusive prerogative of the press and who wrote to Saturday Night, in a great flush of moral indignation, denouncing Eugene’s “ brutal” and “virulent” attack. Eugene was admirably effective in these newspaper encoun­

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ters. Yet to expose King and his apologists was not enough. King had set in motion certain definite tendencies in the political and constitutional development of Canada, and, under St. Laurent, these trends grew steadily in strength. The avowed aim of both men was Canadian national independence; and both men con­ ceived it, not as the fulfilment of Canada's original and distinctive character, but as the repudiation of its past. For them Canada was not a constitutional monarchy which had attained complete sovereignty; but an unacknowledged republic which must now discard all tokens of its former “subjection” to its imperial mas­ ter, Great Britain. The logical end of this process of rejection was the fall of the monarchy and the parliamentary system; but the Liberals sensibly realized that it was politically impossible to reach this ultimate goal. Canada’s distinctive political character and constitutional identity could not be disavowed yet; but, in the meantime, it might be possible to prepare-very surreptitiously if need be-for the great day of their final repudiation by discarding the most conspicuous tokens and symbols of Canada’s past and its historic connection with Great Britain. Three of the symbols marked out for gradual elimination were the Union Jack in the fly of the Canadian ensign, the adjective “royal" in the names of a variety of Canadian institu­ tions organizations and services, and Canada’s original title the “ Dominion of Canada.” The word “ Dominion,” in particular, seemed to have aroused in King and St. Laurent a curious, almost pathological resentment; and ever since 1936 they had been systematically removing it from public documents and replacing it simply with the word “ Canada,” or the phrase “gov­ ernment of Canada.” The title “ Dominion of Canada” had, of course, been invented by Sir Leonard Tilley and it was the deliberate and unanimous choice of the British North American delegates in London in the winter of 1866-67. The British govern­ ment had nothing whatever to do with the title except to insert it in the British North America Act. Yet, despite these undoubted historical facts, Canadian politicians and leaders of public opinion helped to perpetuate the myth that the title was imposed on the reluctant British Americans by “ Downing Street dictatorship.” “ Dominion,” as Eugene pointed out, was “our word, perhaps the only distinctive word we have contributed to political terminol­ ogy.” It was inspired by a majestic verse in the seventy-second psalm; the sentiment of that verse was echoed in the sonorous Latin motto of the Canadian coat-of-arms, “ A mari usque ad mare,” and no words could have described Canada’s widespread boundaries with more beautiful precision. Yet, when public pro­

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test forced St. Laurent to make a statement in Parliament, he chose to belittle and disparage Dominion as a “colonial” locution which had grown shopworn and commonplace! This unabashed defence of a deliberate attempt to obliterate the symbols of Canada’s distinctive past alarmed Eugene. “The rot in our national life has gone so far,” he wrote, “that govern­ ment thought it could safely unveil its treason.” The astonishing arguments, historically baseless and politically illiterate, by which Liberal supporters sought to defend the government's action, seemed equally shocking to him. He busied himself writing letters and short pieces to the newspapers, and participating in radio debates on the controversy; but he soon came to feel that these efforts were not enough; and he was fortunate in finding two people, Judith Robinson, a Toronto journalist, and John Far­ thing, a former master at Bishop’s College School, Lennoxville, who shared his deep concern at the demoralization of Canadian public opinion. In the spring of 1952, they were planning to collaborate on a book on the British tradition in Canada, a book which, they hoped, would break “ the Liberal grip on the intellec­ tual life of the country.” I, who was then giving all my time to the completion of my biography of Macdonald, readily agreed to contribute some passages from my essay “ Sir John Macdonald and Canadian Historians.” The plan, as its authors had originally conceived it, was never carried out. The little book on the British tradition in Canada was too difficult a co-operative venture for three busy people. Yet their failure did not mean that constitutional monarchy and par­ liamentary government were left without historical explanation and theoretical defence; it did not mean that the “creeping repub­ licanism” of the Liberals would proceed unquestioned and unchecked. In the middle I950’s, after four victories at the polls, it looked as if the professional Grit machine would continue indefinitely in Canada; but, in fact, after only two years more, it was brought to an abrupt stop. Two episodes in 1956 the pipe­ line debate which disclosed the depth of Canada’s dependence on the United States, and the Suez crisis, which revealed the extent of her separation from Great Britain together brought about its downfall. It was these two features of contemporary Canadian constitutional developments - its easy susceptibility to American influence and its growing disregard for the British tradition which had first aroused the fears of Eugene and his friends. They had detected these trends at an early stage and exposed the evasions which concealed their true significance; and, although the Forsey-Farthing-Robinson pamphlet was never completed, its

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authors’ beliefs did not lack expression. Farthing died in 1954; but the theoretical work which was perhaps better suited to his talents, Freedom Wears a Crown, appeared three years later. Eugene continued to expound his own views in such articles as “The Crown and the Constitution” : .and the two volumes of my biography of Sir John Macdonald came out in 1952 and 1955. Ill The new Conservative government had not been in power very long when another common, although different interest-the future of Canadian broadcasting brought Eugene and me together again. Like Eugene, I was an infrequent radio listener and had not yet considered buying a television set; but, like Eugene also, I was deeply interested in the success of the national Canadian system. When Graham Spry, the Agent-General for Saskatchewan in the United Kingdom, returned to Canada to organize support for the reform and strengthening of national broadcasting, I was vulnerable to his persuasions. As far back as 1930 Graham Spry and Alan Plaunt had founded the Canadian Radio League and had successfully mobilized public opinion in favour of a nationally owned broadcasting system. In 1957, twenty-one years after the founding of the Canadian Broadcasting Corporation, its thorough reconstruction seemed imminent; and from interviews with George C. Nowlan, the new Minister of National Revenue, Spry realized that the Conservative cabinet looked sympathetically on his plans. What was needed, he decided, and what would justify the government in its contem­ plated action, was a demonstration of popular support for the reorganization of Canadian broadcasting in the national interest. I was invited to join the movement on the assumption that my biography of Macdonald might give me a favourable hearing; and later, when Spry determined to revive the old Radio League under a new title, the Canadian Broadcasting League, I reluc­ tantly agreed to act as its chairman. On July 18, 1958, the executive of the League, supported by the representatives of a large number of national organizations, met with the Prime Minister and Messrs. Nowlan and Hees. Spry always insisted that this demonstration of public concern was of substantial use in strengthening the government’s hand; and, in fact, the new Broadcasting Act, introduced a month later in the House of Commons, was a real departure from the past. It established-and this was an evidently essential reform-a national board which would regulate all Canadian broadcasting.

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public and private; and the board’s declared object, as set out in the Act, was a “broadcasting service of high standard that is basically Canadian in content and character.” The new system gave the Canadian Broadcasting League much, though by no means all, of what it had asked. Obviously a lot depended on the composition and conduct of the future board; and the League tried to exert some small influence on the appointment of its first members and to subject their original regulations to a critical review. The Canadian Labour Congress had given the League its powerful assistance, and we were all extremely pleased when Eugene was appointed one of the first members of the Board of Broadcast Governors. I continued for a while as Chairman of the League, trying rather unhappily to fill a position for which I was not qualified in any special way; and, in November, 1959, when the Board held a public hearing on its proposed new television regulations, I appeared before it as Chairman of the League’s delegation. That was my last effort on behalf of Canadian broad­ casting, for shortly after I accepted a post on the British Advisory Commission on the constitution of Rhodesia and Nyasaland. and left for Africa early in the new year. Eugene remained on the Board of Broadcast Governors for another two years. He thought well of his colleagues; he approved the Board’s policies in general: but he found the work, which had to be fitted in with the daily routine of his office in the Canadian Labour Congress, a heavy burden. In 1962, when he finally resigned over the issue of a television licence, he had reached the end of a distinct phase of his career. He left for a year at Queen's University, as Skelton Clark fellow, to resume work on his history of Cabinet govern­ ment in Canada. When he returned to the Canadian Labour Congress, it was to take up a new post as Director of a Special Project, the history of organized labour in Canada. Tranquil years of research and writing seemed to stretch ahead for Eugene; but this pleasant prospect never quite became a reality. The 1960’s were to confront him-and all students of Canadian government-with a constitutional challenge more seri­ ous perhaps than any that the twentieth century had yet pro­ duced. The long reign of Mackenzie King had brought many threats and injuries, acknowledged and concealed, to constitu­ tional monarchy and parliamentary government; but the so-called “ Quiet Revolution” in Quebec, which began with the triumph of the Liberals in the provincial election of 1960, carried with it an equally fundamental peril to Canadian national unity. The aim of the new French-Canadian nationalists was to preserve French Canada’s identity and to strengthen and elevate its place in the

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Canadian nation. Obviously this object might be achieved in one of two quite different ways, either by promoting the equal part­ nership of the two founding races in the nation as a whole, or by recognizing the Province of Quebec as the real guardian of French-Canadian culture and by granting it legislative autonomy equivalent to a special or separate status in Confederation. Both these alternatives were so fraught with uncertainty, difficulty, and danger that a sober, clear-thinking people might have quailed before them; but a sober, clear-thinking people the Canadians emphatically were not in the early 1960s. They existed in a state of confused exaltation, of muddle-headed euphoria. The French Canadians, who fondly believed that they had forced their hated English “oppressors” into submission, were flushed with the fer­ vour of revolutionary achievement. The English Canadians, large numbers of whom had been lectured into believing that the pitiable state of French Canada was a crime of which they were morally guilty, were wallowing in the luxury of self-abasement, contrition, and repentance. Eugene was not impressed by the excesses of this religious revival; but few of its self-righteous converts had a better knowl­ edge and understanding of French Canada than he. His education in French had begun in elementary school; he could and did write and speak the language readily; he was an elder and steward in a French-Canadian United Church. He was ready to agree that there were two cultural traditions in Canada and that FrenchCanadian culture deserved more public recognition and support than it got; but he was convinced that this aim must be sought within a united and powerful Canada, and he refused to risk the country’s dismemberment by the grant of separate or associate status to Quebec. That Canada was a nation of two cultures he had no doubt; but he was equally certain that this fact did not justify the use of the ambiguous phrase “ two nations.” Canada, he insisted, was politically and legally one nation and the adjec­ tive “national” was the proper word to describe its collective policies and enterprises. It was his emphasis on this vital distinc­ tion that led him to break with the New Democratic Party, the successor to the c.c.F., the party which he had served faithfully for almost thirty years. In the new party’s constitution, which was presented to the founding convention in the summer of 1961, the word “national" had originally occurred no fewer than seventy-six times; but on the curious ground that it “hurt and offended our French-Canadian fellow citizens,” this exactly appropriate adjec­ tive was deleted, and in many cases, though not all, the innocuous word “federal” was substituted instead. Disgusted with this ludi­

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crous exercise in appeasement, Eugene quickly resigned from the new party. As he said later, the n . d . p . founding convention was probably the only occasion in history when some thousands of people gathered to found a new national party and began by agree­ ing that there was no nation to found it in! The grovelling submission of the n . d . p . convention was a revealing example of the lengths to which the appeasers of French Canada were prepared to go and of the mindless excuses with which they justified their conduct. In loud, overbearing and sanc­ timonious tones, they talked bad logic and worse history. The country resounded to a continuous babel which was popularly described as a “dialogue” ; but it bore, in fact, not the slightest resemblance to a discussion in which two or more sides were engaged. On the contrary, it was a strident and raucous chorus in which French-Canadian nationalists and their English-Canadian sympathizers drowned all opposition and criticism. Those who objected that the rapid implementation of a programme of official bilingualism would be difficult and costly and might very well arouse resentment and dissension, were quickly and roundly denounced as bigots, racists, “ w a s p s ” and “ bad Canadians.” Those who argued that such an official programme had no justifi­ cation in Canadian history were categorically informed that, of course, it was amply justified by the “bicultural compact” of Confederation. The “bicultural compact” was, in fact, a complete myth; but the confident assertion of its authenticity, even by people who ought to have known better, was a curious index of the Canadians' ignorance of their own history. Repeatedly, Eugene and I had to trace our own way through the Charlotte­ town, Quebec and London conferences, through the British North America Act and subsequent Canadian history in order to prove that the “bicultural compact,” even its modified form as a “ moral commitment” or “extra-legal agreement,” had no exist­ ence whatever. Though he exposed the ignorance, and criticized the unrealis­ tic excesses of the advocates of “ instant bilingualism,” Eugene continued to believe in a bilingual but united Canada. Within limits, he accepted the first method of preserving French Cana­ da’s identity and strengthening its position in Canada. He almost totally rejected the second method, the recognition of the Prov­ ince of Quebec as the only effective guardian of French- Canadi­ an culture and its elevation to a separate or independent status. He readily conceded that Quebec was a different province, distin­ guishable in several important ways from the others. He had no objection to its takeover of all social security programmes which

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lay within provincial jurisdiction. But, in fact, the claims of the province, or of its principal theorists, went much further than this. Some demanded the transfer of considerable amounts of unquestionably federal jurisdiction, as well as fundamental changes in the composition, organization, and functions of two basic federal institutions, the Senate and the Supreme Court. Others urged a Canadian Confederation composed of two sover­ eign associated states, Quebec and the rest of Canada. In Eu­ gene's opinion, all these plans would prolong Canada in a man­ gled existence which would be worse than death. He preferred Quebec’s complete separation preceded by “hard bargaining.” Eugene and I began to feel somewhat isolated amid the rap­ idly growing clamour for the appeasement of French Canada; and this feeling increased after 1965, when we both joined the Ontario Advisory Committee on Confederation, a small committee estab­ lished by the provincial government to offer advice on the issues of Canadian federalism, advice which could, of course, be either accepted or rejected. It soon became clear that we would fre­ quently be in a minority in the committee, sometimes, indeed, a minority of two. Our own views had been formed by this time; and the equally firm opinions of some other members might have been inferred from their previous or subsequent activities. Profes­ sor John Meisel of Queen’s University had been one of the su­ pervisors of research for the Royal Commission on Bilingualism and Biculturalism. Professor Paul Fox of the University of To­ ronto later took part in the delimitation of the bilingual districts set up by the Official Languages Act; and President T. H. B. Sy­ mons of Trent University subsequently acted as commissioner for an inquiry into French-language secondary education in Ontario. The position of the senior member of the Committee, Professor Emeritus Alexander Brady, could not perhaps be so readily de­ duced from the record. In 1940, when the findings of that other great inquiry into Canadian federalism, the Report o f the Royal Commission on Dominion-Provincial Relations, was published, Professor Brady seemed to be a convinced centralist. In a long review of the Commission’s Report, he doubted the wisdom of its recommendation that residual authority in the social services should remain with the provinces. “The true end of Canadian de­ velopment,” he wrote, “must be national unity with such centrali­ zation of legislative power and decentralization of administrative discretion as the necessities of statehood at the time dictate.” That was in 1940. Twenty-five years later, it appeared that “ na­ tional unity” and “centralization of legislative power” were not, after all, "the true end of Canadian development.” Times had

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changed and Dr. Brady had changed with them. For several rea­ sons, including the “dynamism of a fresh and potent FrenchCanadian nationalism,” the federal pendulum had swung, and Professor Brady was determined to swing with it! In the years 1965-1970, the conciliation of Quebec through constitutional change and administrative adjustment was a cause which rolled steadily forward of its own momentum. The strength of its current was very evident inside the government and civil service of Ontario. What the people of Ontario thought about the subject was a question which didn't seem to awaken much inter­ est in governmental circles. Among the many documents with which the members of the Advisory Committee were supplied was a monthly compilation of reports and editorials on Confeder­ ation, taken from the French-Canadian press. Apparently it never occurred to the secretariat that a monthly collection of EnglishCanadian or Ontario views on Confederation would serve any useful purpose. And when, in the autumn of 1967, Prime Minis­ ter John Robarts announced that a “Confederation of Tomor­ row” conference would be held in Toronto, it would have been difficult to prove that he had acted in response to an urgent ap­ peal from the people of his province. He had, however, created a fashion which the federal government felt obliged to follow. A few months later, it summoned an official constitutional confer­ ence; and the Province of Ontario, with the aid of its Advisory Committee, began to prepare its views for submission. In these later sessions of the Committee, Eugene was at his best, speaking to the point in his concise and vigorous fashion, and writing a stream of comments, memoranda, and papers, some of which are reprinted in this volume. In 1970, when Mr. William Davis succeeded Mr. John Ro­ barts as Prime Minister of Ontario, the work of the Advisory Committee came to a close. Eugene might have fancied himself freed at last from the organized investigation of constitutional change; but if so, he was quickly undeceived. In the autumn of that year, he was summoned to the Senate of Canada; and he soon found himself appointed as a senatorial member on the Spe­ cial Joint Committee of the Senate and the House of Commons on the Constitution of Canada. He became an active and influen­ tial member of this Committee; but he soon discovered that at Ottawa-as at Toronto - constitutional amendment was con­ ceived almost exclusively in terms of purely contemporary values, interests, and concerns. When, on occasion, witnesses before the Committee tried to talk historically, their object seemed to be to misrepresent the origins of Confederation and to disparage its au­

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thors, and they dealt largely in synthetic mythology and vulgar folklore. To Eugene’s great disappointment, nobody who could give adequate expression to the historical point-of-view, had ap­ peared before the Committee; and, at his earnest request I went down to Ottawa in the spring of 1971 to give evidence. I came away convinced that I had wasted my own time, as well as that of the Committee. Its members were about as interested in the plans of the Fathers of Confederation as they would have been in the laws of Hammurabi or the constitutions of Solon. What really seemed important to them were what they called “ the constitu­ tional imperatives” of the moment-meaning, 1 suppose, the pol­ itical pressures of the 1960s. In due course, the Committee’s report was completed and printed, and Eugene discussed it ably in a critical speech in the Senate. More than a year has gone by since then, and the great new constitution which the Committee had devised has yet to be­ come the law of the land. Canadians were urged by its authors, “to press with us for the writing of a new Constitution”; but, in fact, all real hope of a new constitution had vanished, when what might have been called its first instalment, the Victoria Charter, was deliberately rejected by Quebec, the province which it had been specially designed to satisfy. The movement for constitution­ al change, which had been both originated and terminated by Quebec, and which had lasted for ten years of barren agitation, ended at last in frustration and futility. IV Eugene Forsey has occasionally been heard to say that he lacks the “staying power” needed to complete a large historical or political work. This is, of course, demonstrably untrue. He has published one very influential constitutional study, The Royal Power o f Dissolution o f Parliament. His history of trade unions in Canada is now finished; and, with the greater leisure which he now enjoys, he may soon complete his book on Cabinet govern­ ment. Time is the indispensable requisite of research and writing; and, for long periods of his life, Eugene has not had a great deai of it to use as he likes. Scholarship is also a solitary business, car­ ried on in archives and libraries, where the rumour of contempo­ rary affairs is dim; and Eugene has always been irresistibly inter­ ested in contemporary affairs. His socialist faith, as well as his position as Director of Research for the Congress of Labour, has focused his attention on social questions and labour disputes. His historical knowledge and his firm belief in the significance of his­

EUGENE A LFRED FORSEY

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tory for modern politics has led him into innumerable debates and controversies. He has responded rapidly and with great ad­ dress to these constantly recurring challenges, and the result has been a long succession of letters to newspapers, short pieces in periodicals, essays in learned journals, and papers delivered to university audiences. This became, in the end, the mode of ex­ pression which he liked best and by which he is best known; and this book is a representative collection of his characteristic writing in this favourite form. What strikes the reader at once is the extent and particularity of Eugene’s knowledge, and the systematic and logical way in which it is organized. His erudition is at once enormous in its range and minute in its detail. If he has ever been caught out in an important mistake of fact, I don’t know when or where it occurred; and I am completely confident that he has never written a muddled or slipshod piece of prose in his life. His thoughts are always marshalled in their most effective order, and the argument proceeds rigorously from stage to stage towards an inescapable conclusion. A sharp and censorious eye is alert to mistakes his own or other people’s - in the evidence or the style; and a num­ ber of Canadian historians and political scientists have benefited and also suffered on occasion - from the lists of errata that Eugene has discovered in their work. I used sometimes to be sent copies of these formidable lists, and I was so impressed with his critical exactitude that I asked him to perform the same service for me before, not after, publication! He read the manuscript of Canada's First Century with his usual scrupulous care, and I still possess the copious pages of his corrections and comments. Nobody can rival him in this field, for nobody possesses such an exact and comprehensive knowledge and such an acute and sensi­ tive feeling for words. Erudition and precision are the first requirements of constitu­ tional history; but there are other, equally desirable qualities that Eugene displays in his historical writing. His prose is not only exact and lucid, it is also continuously lively. He could hardly write a dull page if he tried! His sentences are crisp, incisive, forceful, obviously the work of a man to whom words come easily, who has a vast knowledge of English history and literature, and who savours their most memorable episodes, passages, and phrases. Quotations, acknowledged and unacknowledged, from the Bible, Shakespeare and Milton down to P. G . Wodehouse make their unobtrusive but effective appearance in his pages. Political anecdotes, from the days of Pitt and Palmerston down to those of Churchill, Borden and Mackenzie King, lend a piquant

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savour to his writing. The entire gamut of the critic and controv­ ersialist wit, satire, irony, comic exaggeration, burlesque and invective-are all available at his command. He can rise to great heights of angry rhetoric as in his denunciation of J. W. Dafoe; he can compose a set of comic rhymed couplets at the expense of some silly journalist or the half-baked advocates of a Canadian republic or a “distinctive’' Canadian flag. His metaphors and turns of phrase are deft and amusing. “ Even in his loftiest flights of oratory,'' he wrote once of Mackenzie King, “he always carries a verbal parachute, so that he can bail out if things get too hot for him." King has been a constant inspiration to Eugene’s powers of parody, both spoken and written. He can mimic King’s earnest, nasal tones, and his long, dribbling, casuistic sentences so well that on one occasion at least, his voice was mistaken for King’s own on the radio! As a historian and political scientist, Eugene stands quite alone in Canada. His combination of scholarly and literary quali­ ties is unique. His historical traditionalism and social radicalism form an incomprehensible mixture which completely baffles most Canadian critics. They are simply not equipped, intellectually, to cope with him. Literary criticism in Canadian newspapers nor­ mally reads as if it had been written by journalists who had been given the job of literary editor as a reward for the competent reporting of the police court or the town council. Political and social criticism, even in Canadian periodicals and learned jour­ nals, is all too Irequently the work of commentators and scholars whose narrow specialized knowledge is not enlarged by general cultivation and lacks any real sense of discrimination. In far too many cases, these critics summarily divide historians and politi­ cal scientists into categories according to the names of existing political parties, or the popular designations of current political and social attitudes. On a higher level, they are labelled as liber­ als, conservatives, or socialists, and placed firmly in the appropri­ ate pigeon-holes. On a lower level, they are tagged as Reds, Tories, “ w a s p s , " bigots and “ imperialists,’’ and usually der­ ided. Occasionally, even to the undiscerning Canadian critic, all existing labels seem unsuitable for one reason or another. This makes the critic acutely unhappy, and his usual way out of the difficulty is to invent a new label by the simple method of hyphenating two of the old ones! “ Red-Tory,” a typical example of this clumsy attempt at refined analysis, is a term which might conceivably, I suppose, be bestowed on Eugene. A more inade­ quate, inappropriate and misleading term could scarcely be imag­

EUGENE ALFRED FORSEY

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ined! The truth is that he is undecipherable by Canadian criti­ cism. If only there were more Canadians like him!

‘Som ething G a y From B a li?’

Sirs:— Because our monarch is not resident, Some people want to have a president. They feel we should be much more up-to-date If we were to elect our Head of State. Republic’s what they want; perhaps banana, Perhaps akin to Kenya or to Ghana? Perhaps South Africa would be the model? It’s really hard to know what’s in their noddle. An adaptation of the scheme Iraqi Might seem to some of them a trifle wacky. Perhaps, to fit our country’s dual souls. What we need’s two republics, both de Gaulle’s? For Communists the class war would dictate A local version of the Soviet State; Or even (though on this they are not keen) A “ Popular Republic” a la Chine. Something along the lines of the Egyptian They might accept without a fit conniption. Do some think it would be Elysian To have a State like the Tunisian? Would others like a system Syrian, Still others something more Algerian? It might be worth while copying Uganda (Turning our backs on Dr. Hastings Banda). And what republican could e’er grow weary In the following the lead of Nyerere? For some, the best example yet, by far. Is Portugal, the land of Salazar (The Corporate State). Again, there is, iwis. The ancient federation of the Swiss. And if we can't have something gay from Bali, Perhaps we could adopt the ways of Mali? They’ve a republic down in Mexico, I think expropriated Texaco: A model this for us, against the Yanks,

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If branch plants here indulge in any pranks? Perhaps the thing we’re looking for may lurk Among the followers of Ataturk? The possibilities are infinite. Enough to cause the strongest head to split. The simple citizen, with hollow groan, Says “ Why can’t they leave well enough alone?” EUGENE FORSEY

Ottawa Journal

C r o w n a n d C a b in e t 1. Constitutional M onarchy and the Provinces

The first thing to get clear is that the provinces are not themselves “ monarchies.” They are parts of a constitutional monarchy, Can­ ada. The Queen is Queen of Canada, not Queen of Ontario, Queen of Quebec, Queen of British Columbia, etc. She is, of course, Queen in all these provinces. But her title is “Queen of Canada,” and it is as such that she is Queen in each of the provinces. This fact is important, because it has been suggested that Quebec, for example, might be allowed to become a republic, with a president, but still remain part of something called “Can­ ada.” The analogy, presumably, would be with India, Pakistan and the other republics which remain part of the Commonwealth. But the analogy is false. India, Pakistan and the other republics within the Commonwealth are distinct political nations; each of the provinces of Canada is part of one political nation. No Canadian province could become a republic without ceasing to be part of the one political nation, Canada. To propose, therefore, that any one province should be allowed to become a republic is to propose secession, separatism and total independence for that province. If the people of any province favour republicanism, but want to remain part of Canada, then the only thing they can do is try to make Canada a republic. The second thing to get clear is that Canada is a constitu­ tional monarchy by deliberate choice. It is not by accident, nor from absentmindedness, or coercion, or the fear of coercion, that the British North America Act, 1867, Section 9. says “ The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen” . On the contrary. Sir John A. Macdonald, in the Confederation Debates in the Parliament of the Province of Canada, took pains to emphasize that the Quebec Resolutions on the subject (on which Section 9 of the Act is based) had “met with the unanimous assent of the Conference” ;1 and it is noteworthy that not one of 1 Parliam entary Debates on the Subject o f the Confederation o f the

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the opponents of Confederation, in any province, advocated republicanism. The London Resolutions on the monarchy reiterated those of Quebec.’ The third and fourth drafts of the British North Amer­ ica Bill proposed that the new nation should be called the “ King­ dom of Canada” ,3 and this was dropped only in deference to the real or supposed sensibilities of the Americans.4 Sir Leonard Tilley then suggested, as a synonym, the old French word “ Dominion” ,5 which had disappeared from that language but had' been preserved in English: and Lord Carnarvon, the Colonial Secretary, writing to the Queen, at the request of the Fathers of Confederation, told her: “The North American delegates are anxious that the United Provinces should be designated as the 4Dominion of Canada’ (his italics). It is a new title; but intended on their part as a tribute to the Monarchical principle which they earnestly desire to uphold.”6 It might be added that one of the most vociferous supporters of that principle was Sir Georges Etienne Cartier.2 It would, indeed, have been very surprising if any British North American of consequence had advocated republicanism in the 1860s. Not one square inch of any of the colonies or prov­ inces had ever been under a republican form of government. In fact, New Brunswick and Canada West (now Ontario) had been founded by people who fled (or were driven) from the Thirteen Colonies precisely because they refused to live under such a government; and the motto of the province of Ontario to this day commemorates both the monarchism of its founders and their resolve to maintain it: “ Ut incepit, sic permanet, fidelis” : “ As she began, so she remains, faithful.” Even the republican rebel Mack­ enzie, after a sojourn in the United States, begged to be allowed to come back and become a loyal subject of the Queen, declaring that if he had had any idea of what a republic was like, he would have ,been "the last man in America” to try to set one up in B ritish N orth Am erican Provinces (Quebec. 1865), pp. 33-4. (H er­ einafter. cited as Confederation Debates. I 2 Confederation Docum ents, edited by Sir Joseph Pope (Toronto. 1895), pp. 39 and 94. 3 Ib id .. pp. 159, 160, 162. 163, 164, 177, 178, 181, 182 and 190. 4 D. G . Creighton, Jo h n A . M acdonald: The Young P olitician (Toronto, 1952), p. 458. 5 The O xford English D ictionary calls it “ obsolete French.” 6 Letters o f Queen V ictoria. Second Series (London, 1926), vol. I, p. 394. 1 Confederation Debates, p. 59.

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Canada;8 and the American Civil War took any remaining gilt off the republican gingerbread. The Confederation Debates are sprin­ kled thick with expressions of horror at American republicanism and "mob rule,” and of pious gratitude that British North Amer­ icans had been spared such a fate.1 ’ Why, then, do we now hear so much talk of republicanism, both in French and in English Canada? First, because republics are once more the fashion, especially since the Second World War, and a lot of people want to be in the swim. All the countries behind the Iron Curtain are republics. Also India, Pakistan, Ghana, Nigeria, Kenya, Tanzania, Uganda, Zambia, Cyprus, South Africa, Ireland, Singapore, South Korea, South Vietnam, Algeria, Tunisia, Egypt, Syria, Lebanon, Israel, the two Congos, the Sudan, Mauretania, Mali, Senegal, Dahomey, Guinea, the Ivory Coast and Italy, have all, within the last few decades, joined the ranks which had already included the United Slates, France, and the whole of Latin America. (Inciden­ tally, which of these not altogether similar polities would Cana­ dian republicans take for a model?) Second, some Canadians seem to have got it into their heads that people who live in a republic are somehow "freer” than those who live in a constitutional monarchy. It would be interest­ ing to know precisely how and why. It is not obvious that South Africans (especially coloured South Africans), or Ghanaians, or Russians, or Chinese, or Hungarians, or Egyptians, for example, or even Americans, Frenchmen, Italians or Indians, have more freedom than we have. The same comments apply to the notions that as a republic we should be more “ independent,” or should have more “ dign­ ity.” How and why? Then there is the contention that a republic would be more truly “ Canadian.” This also is not obvious. No part of this country has ever been a republic or part of a republic and to become one would be an abrupt break with our history. Our monarchy, our British monarchy, our Anglo-French monarchy, our historic monarchy, is part of the Canadian tradition. It is not something alien. It is bone of our bone and flesh of our flesh. At this point, someone may say: “ All very well if you are of British ancestry. British settlers brought the British monarchy 8 W . M . Kilbourn, The Firebrand: W illiam Lyon M ackenzie am i the Rebellion in Upper C anada (Toronto, 1956), p. 241. Note also the quotations from his petition to the Govenor-General, p. 242. 9 Notably Cartier, loc. cil.

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with them in their baggage. But what about the French Canadi­ ans? What about the people of other origins who have come since: the Germans, the Scandinavians, the Ukrainians, the Hungarians, the Dutch, the Japanese and Chinese, and the rest? Surely the mon­ archy is no part of their Canada?” Yes, it is. It is plain enough that British Canadians got their ideas of constitutional government from Britain. But where did the French Canadians get their ideas? From France? From Rome? From the United States? From Latin America? From the Laurentian Shield or the Aurora Borealis or the waters of the St. Lawrence or the Saguenay, or their own inner consciousness, or subconsciousness, or unconsciousness? No. Just as plainly, as definitely and as unmistakably as the British Canadians, they got their ideas of constitutional government from Britain; just as plainly, as definitely and as unmistakably as they got their Civil Law from France. As for the others, the Germans, the Scandinavians, the Chinese and Japanese and the rest: they came here, nearly all of them, of their own free will, knowing that they were coming to a country with a British constitutional monarchy, knowing that they would have to adapt themselves to this fact, just as, if they settled in Quebec, they would have to adapt themselves to a French Civil Law. They deliberately chose to become Canadians, deliber­ ately chose to come to a country whose institutions had already been shaped by the two founding peoples who were here in 1867; deliberately chose to come to a country whose constitution was explicitly declared to be “similar in principle to that of the United Kingdom.” 10 That constitution they accepted as part of the Can­ ada of which they chose to become citizens. That constitution they have lived under and worked under and prospered under.11 In the working of that explicitly British, monarchical constitu­ tion, French Canadians and “other,” non-British, non-French, Canadians have taken a distinguished part. This is not to say that the constitution cannot be changed, that we are not free to become a republic if we want to. We were free to do so in 1867; we have been free to do so at any time since; we are free to do so now. But if we are to do it, let it be for good and sufficient reasons, not on the false ground that our existing monarchical constitution is “foreign” or “ un-Canadian.” Canada is not something rootless, floating in empty space; it is 10 British N orth Am erica A ct. 1867, preamble. 11 This is important in relation to complaints that the phrase “ the two founding peoples" relegates the “ others" lo second-class citizenship.

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not simply a land mass. Canadians are “ not simply so many bipeds living within a given habitat which colours and determines all else in our lives. Man is a being who lives in time as well as in space; and the life of a people is rooted in time as well as environed by geography.” 12 Our monarchy is part of our constitu­ tion; our constitution is part of our history, which has shaped our character as a people. To get rid of it is to change that character; and such a change is “ not by any to be taken in hand unad­ visedly, lightly or wantonly, but reverently, discreetly, advisedly, soberly,” from deep conviction, grounded on rational examina­ tion of the facts. There is no point in change for its own sake, or just for the sake of having the very latest thing in constitutions. (What mat­ ters in a constitution is not how new it is but how good it is, how well it works.) The bigger the change, the heavier the onus upon those who propose it to prove that it is necessary, or even useful. Changing Canada to a republic would be a very big change, the more so as there is an infinite variety of republics to choose from. The change would be fiercely resisted, at least in the Atlantic provinces, Ontario and British Columbia. A first-class row for sufficient reason is tolerable, may even be necessary; a first-class row without sufficient reason is criminal folly. What good would this particular first-class row do? The republicans should be asked not only how their nostrum would make us freer or more independent, but also how it would give us better government, or more welfare. Would a republic, in and of itself, give us a better distribution of legislative power between the Dominion and the provinces, stronger provinces, or a stronger Dominion, or a better balance of the two? Would it give us a better Executive (President or Cabinet), wiser, stronger, more responsive to public opinion? Would it rescue us from the tribulations, real or supposed, of minority government? Would it give us a better balance between Government and Parliament, or between either and the Civil Service? Would it give us better municipal government? Would it reduce the dangers of corruption? Would it make government cheaper? Would a republic, in and of itself, give us more welfare, a higher standard of living? (Joining the American republic might; but that is a very different thing.) 12 John Farthing, Freedom Wears a Crown (Toronto, 1957), p. 14. The whole book is an admirable philosophical discussion o f the basis and meaning o f our monarchy.

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These are the eminently practical questions the republicans must be made to answer, and answer in detail, with reasons. They have no right to ask us to buy a magic potion. One alleged reason for changing to a republic is that it would help solve the problems arising out of French Canada's position in Confederation. If it were true, this would be a weighty reason indeed. But is it true? This is precisely the place where it is most necessary to ask how the magic potion would work, what specific ills it would assuage or cure. Would a republic automatically mean more bilingualism in the national administration and public service, or in the provincial or municipal administrations and services, or in private business? Would it automatically mean more bilingualism in the courts? Would it automatically mean more top jobs for French Canadi­ ans in public administration or private business? Would it auto­ matically mean more French Canadians in the Cabinet, or more of them at the head of important departments? Would it automat­ ically produce any change in the Senate or the Supreme Court of Canada? Would it automatically mean more French education for French-Canadian children outside Quebec? Would it automati­ cally mean wider taxing powers, or more revenue, or wider legis­ lative jurisdiction, or a “special status” for Quebec? Would it automatically add one copper to any French Canadian’s pay, or shorten his working day by a fraction of a second? Would the country choose a French-Canadian President oftener than it chooses a French-Canadian Governor-General? Would a republic automatically smooth the path to an “ Associate State of Quebec,” or an independent Quebec? An amiable, if rather fuzzy, desire to help the French Canadi­ ans is undoubtedly one source of the present talk of republican­ ism. There are at least two others: the carbon copy theory of Canada, and the rubber stamp theory of the Crown. Both are deep-rooted, but both are false. The carbon copy theory of Canada assumes that this country really is, and certainly ought to be, a second United States. (Why on earth there should be a second, no one pauses to explain.) But, plainly, it is a poor copy. The Fathers of Confederation smudged it. It is high time we got busy with our erasers and cleaned it up. There could not be a wilder misconception of the origin and nature of Canada. The Fathers of Confederation were not “a lot of mixed-up kids,” who tried to copy the United States and tailed. They tried to make a very different kind of country, and they succeeded.

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The Americans deliberately broke with their past. We have repeatedly and deliberately refused to break with ours. The most important thing for us about the American Revolution is that we, both French Canadians and British Loyalists, refused to have anything to do with it, and indeed strenuously resisted American efforts to “liberate” us. The most important thing about the rebellions of 1837 is that they failed, and for the same reason: that most of the people, French Canadians and British Canadians alike, refused to have anything to do with them. The Americans deliberately set out to make theirs a country of one language and one culture. We deliberately chose to pres­ erve two languages and two cultures. The Americans chose a decentralized federalism. We set out to create a highly centralized federalism. “They commenced at the wrong end,” said Sir John A. Macdonald. “ Here, we have adopted a different system.” 13 The Americans left most of their criminal law in the hands of the states. We entrusted the whole of our criminal law to the central Parliament. The Americans made most of their judges elective, and left most of their courts to the states. We made all the judges of our superior, district and county courts appointive, and placed the appointments in the hands of the central Government. The Americans provided for no central control of the states, except what might be necessary to preserve a republican form of government. We placed at the head of every provincial Govern­ ment an official appointed by the central Government, instructed by the central Government, and removable by the central Gov­ ernment; endowed him with the power to reserve assent to pro­ vincial bills and send them to the central Government for assent or veto; and, to make assurance triply sure, gave the central Government power to wipe any provincial Act off the statute book within one year. The Americans in effect forbade denominational schools sup­ ported by public funds. We guaranteed their existence, and all provinces but one gave the central Government and Parliament special powers to enforce the guarantees. The Americans wrote into their Constitution a very explicit and detailed Bill of Rights. We relied on the “well understood” unwritten “principles of the British Constitution.” The Americans provided for fixed election dates, for their President, Senators and Representatives. We provided only for a 13 Confederation Debates, p. 33.

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maximum duration of Parliament, with no "term” at all for the Government. (An American President who wins an election has to take a fresh oath of office; Franklin Roosevelt, who held office for a total of nine consecutive years, was President four times. A Canadian Prime Minister who wins an election does not have to take a fresh oath of office; Sir Wilfrid Laurier, who held office for fifteen consecutive years, was Prime Minister only once.) The American Congress and state legislatures are hedged around by constitutional prohibitions. They cannot, for example, confiscate property, or take one man’s property and give it to another, or pass retroactive laws. Our Parliament, within the limits of subject and area laid down by the British North America Act. can do anything; for example, confiscate property, take one man’s property and give it to another, or pass retroactive laws. So can our provincial legislatures, subject to the Dominion power of disallowance. No wonder our constitution does not work like the Ameri­ can! No wonder the “carbon copy” looks smudged! But it does not follow that we should get to work with erasers. The French Canadians, for example, might not be altogether pleased by the erasure of section 133 of the British North America Act. guar­ anteeing a limited official bilingualism in Quebec and at the centre. The Roman Catholics might not be altogether pleased by the erasure of section 93 and the corresponding sections of the Manitoba. Saskatchewan and Alberta Acts. Very few of us would be pleased to see ten systems of criminal law instead of one, or to have most judges elected by popular vote. A good many people, weary of a rapid succession of Domin­ ion general elections (three in three years, five in eight years) may think they would like the American system of fixed election dates. They might find the reality disillusioning. In the United States, no matter how unworkable a legislature may prove to be, it must go on till the preordained date; no matter what great new issues may arise, no matter how great the wave of hostile opinion, there is, no means of hastening by so much as one hour a fresh consultation of the people. In Canada, a fresh dissolution of the legislature can break a deadlock, as in Quebec in 1936; here, parliamentary obstruction can force a parliamentary majority to go before the people on a great new issue where there is reason to believe public opinion is against that majority, as happened with Reciprocity in 1911. And it is noteworthy that the power to break a deadlock, or to bring the legislature into harmony with a changed public opinion, by dissolution of that legislature, is a power of the Crown.

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That brings us to the other great current fallacy, the rubber stamp theory of the Crown. This can be very simply stated: the Crown, or its representative, must always follow the advice of the Cabinet in office at the moment, even if that Cabinet has just been resoundingly defeated in an election: or even if that Cabinet refuses to meet Parliament for more than the single sitting, once a year, that the law requires; or even if that Cabinet cannot muster a majority in Parliament and an alternative Cabinet which could do so is possible. Parliamentary responsible government is a wonderfully sensi­ tive, flexible and effective instrument, far more so than the Amer­ ican system. But also it can be a far more dangerous system than the American. In the American system, everybody is hedged around with legal prohibitions, which will be enforced by the Courts. In our system, that is not so. If a provincial legislature takes it into its head to prolong its own life by a year, two years, ten years, it can do so. No law prohibits. No Court can say no. If a Prime Minister tries to bludgeon Parliament or a legislature into submission by a series of elections, again no law prohibits, no court can say no. As far as the law goes, he can dissolve a new Parliament or legislature even before it can meet. If he lets it meet, he can dissolve it any time he thinks it won’t vote for him. And he can go on doing it as often as he likes. He can totally prevent Parliament or the legislature from transacting any busi­ ness at all, or any business except what happens to suit him. He can call elections every few months, till the people, in despera­ tion, either give him a majority or revolt. Not one shred of illegality, and all the quintessence of democracy: what can be more democratic than appeal to the people? But the result would be that governments would be irremovable except by their own consent, or by force of arms. Fantastic? Impossible? One Cana­ dian Prime Minister, after being defeated at the polls, tried to fill up the Senate and the Bench. Another Prime Minister tried to dissolve Parliament before it could vote against him on a motion of censure. As recently as 1952, there were persistent rumours that a provincial government contemplated dissolving the newly elected legislature before it could meet. What does stop this kind of thing happening in Canada? Generally, the sense of decency and fair play and responsibility which we took over from Britain with parliamentary government itself. Generally, ministers remember that they are not the peo­ ple's masters but the Queen’s servants, answerable to the Queen’s faithful Commons, bound to let Parliament meet, bound to let it vote, bound to abide by its verdict unless there are substantial

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reasons of public policy for appealing to the electorate. But if a Prime Minister tries to turn parliamentary responsible govern­ ment into unparliamentary irresponsible government, ''then only the Crown can stop him; only the Crown can keep Government responsible to Parliament and Parliament to the people; only the Crown can prevent Parliament from degenerating into a rubber stamp for the Prime Minister, elections into mere plebiscites— plebiscites whose verdict the Prime Minister accepts only if it suits him— only the Crown can prevent the Prime Minister, prime servant, from degenerating into a prime despot, the whole process into an elaborate farce, swindling the public at the public expense, with the public helpless to protect itself. The Crown is the embodiment of the interests of the whole people, the indispensable centre of the whole parliamentary dem­ ocratic order, the guardian of the Constitution, ultimately the sole protection of the people if M.P.s or m . l . a .s or ministers forget their duty and try to become masters, not servants. The Crown’s reserve power to refuse the advice of ministers when that advice imperils the Constitution still remains, as Lord Attlee reminded us in 1952 and 1959; and if parliamentary government is to survive, it must remain. Parliament is the very Ark of the Cove­ nant of the Canadian tradition. But a system in which Parliament exists, debates, votes, only at the pleasure of a jack-in-office, is a snare and a delusion. In Pym’s words, “ Parliaments without parliamentary liberty are but a fair and plausible way into bond­ age. Freedom of debate being once foreclosed, the essence of the liberty of Parliament is withal dissolved.” Responsible government means not only responsibility to Par­ liament, or to the electorate, but also responsibility for the inter­ ests of the nation as a whole. It has been maintained, by a distinguished Canadian professor, that a Prime Minister’s supreme duty is to keep his party united and in office. That was not the doctrine which ied Peel to carry the repeal of the Corn Laws, at the price of destroying his party. It was not the doctrine which led Wellington to support him. The true doctrine is that “The Queen’s Government must be carried on”, that “there are times,” as Meighen said, “when no Prime Minister can be true to his trust to the nation he has sworn to serve, save at the temporary sacrifice of the party he is appointed to lead.” That is something Prime Ministers are a good deal more likely to remember if they think of themselves first and foremost as the Queen’s servants, not just party leaders with “an ambition to be re-elected.” The Crown stands also for something else which is essential

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in the Canadian tradition: for a Canadianism which, while utterly loyal to Canada, looks beyond Canada. It reminds us that nation­ alism is not enough. Another distinguished Canadian professor, some dozen years ago, extolled the “pure” Canadian, “who knows only Canada,” “for whom the Old World has virtually ceased to exist.” It apparently did not occur to him to ask what use this monstrosity would be in n a t o or the u . N . ; if he had had any conception of loyalty to a Queen of a world-wide Common­ wealth, such pernicious nonsense would never even have entered his head. The Crown is in truth “the imperial fountain of our free­ dom.” If we abolished it, and substituted a national President and ten little presidents for the provinces, then of two things one: either we should have to change our whole system of government and replace it by an American or Gaullist or Soviet or other totally alien system; or we should have to give the presidents substantially the same powers as the Queen, the GovernorGeneral and the Lieutenant-Governors now have. If we go for Gaullism, or plump for “popular democracy,” or even the Ameri­ can congressional variety, we shall be entering on an enterprise which will be a violent break with our whole history, our whole constitution, all our political ideas, habits and practices; an exer­ cise in political and constitutional bedlam, the issue of which no man can even dimly foresee. If we embark on the more modest attempt simply to replace the Crown by presidents, in the inno­ cent hope that we can leave the structure of parliamentary respon­ sible government otherwise intact, we shall still face formidable problems. Unless we give the presidents the reserve powers, we shall run the risk of Prime Ministerial dictatorship. But the reserve powers are not easy to define in precise terms, and the constitutional draftsman might end up by giving the head of state, and his provincial counterparts, either too much power or too little.14 Even if he were successful, his troubles (and ours) would not be over; for he would have to devise a method of election which would provide some hope that the presidents would be reasonably impartial politically; no small task. And all this effort, all this ingenuity, all this tearing up of our roots, all the time, all the strife the process would involve: for what? What would it all accomplish? What good would it do? 14 See, for example, the attempt in Marcel Faribault and Robert M . Fowler, Ten to One: The C onfederation Wager (Toronto and M o n ­ treal, 1965), in Articles 32 and 33 o f their proposed new constitu­ tion. at pp. 128-9.

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Who would be the better for it? Heaven knows, we have prob­ lems enough, constitutional and otherwise, to occupy us, prob­ lems national and international, constitutional, political, social, economic; urgent, practical problems to which we must find some tolerable solutions if Canada is to preserve any life at all, let alone a good life. Surely they are enough to tax all the intellec­ tual, spiritual, moral resources we have, without gratuitously add­ ing anything extra that can be avoided? Unless the proponents of a Canadian republic can produce massive evidence that the change is a matter of urgent public importance, the whole notion must be summed up in the verdict of Sir Robert Borden on a very different subject: “One of the most absurd suggestions ever to come to my attention.’*

2. The A uthority o f The Government

On November 12, 1945, Mr. Ilsley, then acting Prime Minister, told the House of Commons: “The authority of the Government is not delegated by the House of Commons; the authority of the Government is received from the Crown . . . His Majesty’s advis­ ers are sworn in as advisers to the Crown. The Government is responsible to Parliament,. . . but that is a different thing from the doctrine that the Government is a committee of the House of Commons or that it exercises authority delegated by the House of Commons, that is not so.” 1 The Opposition parties fiercely attacked this position, quoting freely from speeches by Mr. King, notably one of January 29, 1934, in which he described the Cabinet as “an executive which derives its powers from and is responsible to the House of Com­ mons.” 2 Curiously enough, no one quoted his attack, in the autumn of 1926, on Mr. Meighen’s Government of that year, when he asked: “ When was there a Ministry in British history that undertook to carry on the government of the nation having no authority from Parliament and no authority from the coun­ try?” 3 Mr. Ilsley stoutly maintained that he was not only “techni­ cally correct” (i.e., as a matter of strict law), which no one seems to have questioned, but also “constitutionally correct. . . and in spirit correct.”4 It was on this point that he was challenged, and 1 Commons Debates, 1945, pp. 2020, 2022. 2 Quoted in Commons Debates, 1945, p. 2076. 3 Commons Debates, 1926-27, p. 47. 4 Ib id ., 1945, p. 2078.

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the challenge was on the face of it impressive. But those who upheld the opposite doctrine, that the authority of the Govern­ ment is delegated by the House of Commons or the electorate, appear to have overlooked certain highly important facts. (1) Between the dissolution of one Parliament and the elec­ tion of another, a period which in Canada may last for several months, the Government continues to hold office and exercise its functions. It may have to make vitally important decisions, both in domestic and external affairs. It might have to decide the question of peace or war. Where does it get its authority? Not from the House of Commons, for there is no House of Com­ mons; the old one is gone and the new one has not yet been elected. Nor from the electorate, for the electorate has yet to pronounce. The case is particularly clear if, as not infrequently happens, the old House was dissolved because the Government had been defeated in it. This was the position of Mr. Meighen’s Government in the summer of 1926, after its defeat in the House on July 1. (2) If, as in Britain in 1834, December 1905, and October 1922, or in Canada in November 1873, a Government resigns without having been defeated in the House or at the polls, the new Government takes office without any authority from either the House or the country, and can claim no authority from either till it has been upheld in the House or at a general election. (3) If a Government has secured a dissolution and comes back in a minority, it may decide to retain office till the new Parliament can meet and pronounce judgment. During that period it can certainly claim no authority from either the House or the electorate. This was the position of Peel’s Government in 1835, Melbourne’s in 1841, Derby’s in 1852 and 1859, Palmerston’s in 1857, Salisbury’s in 1886, Mr. Baldwin’s in 1924 and Mr. King’s from the end of October 1925 till January 1926. (4) If, as in Britain in 1783 and 1807, in Quebec in 1878 and 1891, and in British Columbia in 1898, a Government undefeated in the House is dismissed, the new Government takes office without any authority from the House or the country, and can claim no such authority till it has been upheld in the House or at a general election. This case is unlikely to arise under modern condi­ tions, but cannot be entirely ruled out. It is therefore evident that repeatedly in British history Minis­ tries have undertaken to carry on the government “having no authority from parliament and no authority from the country” ; that this is bound to continue to happen; that in the circum­ stances indicated above and possibly others as well, Governments, under the British system, derive their authority, not only in law

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but in constitutional fact, solely from the Crown, and could derive it from no other source; and that Mr. Ilsley was absolutely right in claiming that his statement was “constitutionally correct and . . . in spirit correct.” All the criticism of his position, in fact, appears to have arisen from the mistaken notion that there is some conflict between the principle that the Government’s authority is derived from the Crown and the principle that the Government is respon­ sible to the House of Commons and the electorate. As Mr. Ilsley himself pointed out, there is no such conflict. The Government derives its authority from the Crown and is responsible to the House and the electorate. Any Government can be removed from office by the House of the electorate; no Government can retain office without the support and confidence of the House which repre­ sents the electorate.

3. The Crown and the Constitution

In 1943, two moribund provincial Legislatures, Ontario and Sas­ katchewan, prolonged their own lives, in the teeth of Opposition protests; and an Ontario court ruled (beyond doubt, correctly)^ that the courts are powerless to intervene. In other words, any provincial Legislature in Canada can postpone general elections as often and as long as it pleases, can, indeed, suppress them altogether; and any attempt to have the legislation set aside by the courts is just waste of time. This is clearly a grave threat to democratic government. Yet, as Mr. Justice Hope pointed out in 1943, the provincial constitu­ tions provide only one means of protection: the reserve power of the Crown to refuse assent to such bills, or to force dissolution, bring on a general election. Many people will object that there is no reserve power; that the Crown is just a rubber stamp for the Cabinet, or that if it isn't it ought to be. The first objection is nonsense. The Crown undoubtedly has some power to refuse a Cabinet’s advice. It has done it, often. The most conspicuous example is in relation to requests by Cabinets for dissolution of Parliament, that is, for a fresh general election. At least fifty such requests have been refused by the Crown or its repre­ sentatives, in almost every part of the British Commonwealth, and many of the cases are recent. The only Canadian case (Dominion) 1 Rex exrel. Tolfree v. Clark, [1943] O .R ., 319.

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was in 1926, the only South African case in 1939. O f the thirty-six Australian cases, exactly half (including the three Commonwealth cases) occurred in the present century, one as recently as 1928. There were refusals in the old Province of Canada in 1858, in Nova Scotia in 1860, in Quebec in 1879, in New Brunswick in 1883, in Prince Edward Island in 1891, and in British Columbia in 1903.2 Moreover, the rubber stamp theory has been decisively repu­ diated by statesmen of all parties, notably Wellington, Peel, Aber­ deen, Russell, Derby, Disraeli, Gladstone. Salisbury, Courtney, Asquith, Lloyd George, Simon, Churchill and Attlee in Britain, and by Macdonald, Mackenzie, Blake, Cartwright, Laurier, Meighen and King in Canada.3 Mr. Churchill’s and Mr. Attlee’s statements are particularly noteworthy. On March 29, 1944, a Labour member, Mr. Price, accused Mr. Churchill of “claiming for the Executive now to dissolve Parliament and go to the country.” He replied: “ I never said anything of the sort. I must make it absolutely clear that it does not rest with the Prime Minister to dissolve Parliament.” Mr. Price attempted to brush this aside with: “That, of course, is the law, but in actual fact the advice comes from the Prime Minister.” Mr. Churchill replied: “This is one of the exceptional occasions when the Prerogative of the Crown comes into play and where in doubtful circumstances the Crown would refer to other advisers. It has been done on several occasions. I must make it absolutely clear that it does not rest with the Government of the day. It would be most improper on my part to use any language which suggested that I have the power to make such a decision.”4 Mr. Attlee, in February 1952, in an article on the death of King George VI, was equally clear and emphatic: “The monarch has the right to grant or refuse a Prime Minister's request for a dissolution of Parliament which involves a general election. This is a very real power. It means that there is always someone other than a party leader who is available to take action in critical times.” 5 Nor is this just theory. Lord Newton and Lord Esher both

See my R oyal Power o f D issolution o f Parliam ent in the B ritish Com ­ m onwealth (Toronto, 1943), passim : and for the Prince Edward Island case, Frank M acK innon, The Government o f Prince Edw ard island (University o f Toronto Press, 1951), pp. 160-1. 3 The R oyal Power o f Dissolution o f Parliam ent in the British Com m on­ wealth, pp. 72-105. J P arliam entary Debates, Fifth Series, vol. 398, p. 1516. 5 L ife, February 18, 1952, p. 31: see also Globe and M a il, August 26, 1959.

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say that in November, 1910, King George V at first refused Mr. Asquith’s request for dissolution, and Sir Almeric Fitzroy, Clerk of the Privy Council, certainly implies it.6 Mr. Harold Nicolson, in his recent official biography, says this is “ incorrect.” 7 But two' other cases he discusses make it perfectly clear that, in the United Kingdom, the power to refuse is by no means dead. In December 1916, Mr. Asquith resigned. The King sent for Mr. Bonar Law. He thought Mr. Law might decline to take office unless he was granted an immediate dissolution. The King asked Lord Haldane, a former Liberal, and later Labour, Lord Chancellor, whether he could constitutionally refuse. Lord Haldane replied: “The Sovereign, before acting on advice to dissolve, ought to weigh that advice. His Majesty may, instead of accepting it, dis­ miss the Minister who gives it. or receive his resignation. This is the only alternative to taking his advice. It follows that the Sovereign cannot entertain any bargain for a Dissolution merely with a possi­ ble Prime Minister before the latter is fully installed. The Sovereign cannot, before that event, properly weigh the general situation and the Parliamentary position of the Ministry as formed.” Mr. Nicol­ son adds: “ Fortified by such expert judgment, the King informed Mr. Bonar Law that he would refuse, if asked, to accord him a dis­ solution.” 8 Still more striking is the story of 1924. Mr. Baldwin had secured a dissolution, November 16, 1923. He emerged from the election with 258 seats, against Labour’s 191 and the Liberals’ 158. He met the new House, which defeated him, January 21, 1924. He at once resigned, the King sent for Mr. Ramsay MacDonald, who formed a Government and carried on for over eight months. On October 8, he was defeated on a motion of censure. Next morning he asked for dissolution, and got it. Professor Keith, in 1928, said this ought to have been “con­ clusive” in Canada in the very different circumstances of June 1926.9 Mr. MacDonald had not had the previous dissolution; Mr. King had. Mr. MacDonald had secured Supply; Mr. King had not. Mr. MacDonald had not tried to prevent the House from pronouncing judgment on his Government-he asked for dissolu­ tion only after the motion of censure had been passed; Mr. King had tried to prevent the House from pronouncing at all - he 6 The R oyal Power o f Dissolution o f Parliam ent in the British Com m on­ wealth, pp. 12-13. ''K in g George V: H is Life and Reign, (London, Constable, 1952), p. 116. s Ib id .. p. 289. 9 Responsible Government in the Dom inions (Oxford. 1928). pp. 147-8.

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asked while the motion of censure was still under debate. None the less, Professor Keith insisted, Lord Byng ought to have granted Mr. King’s request because the King had granted Mr. MacDonald’s, “ immediately,” and “without even considering whether the Government could be carried on without a dissolu­ tion.” 10 But now it turns out that the King did nothing of thesort. Even before Mr. MacDonald’s defeat, he had sent his private secretary to see whether Mr. Baldwin or Mr. Asquith would accept office. “ Neither,” says Mr. Nicolson, “showed any desire either to assume office or to enter a coalition” ; and he sums up: “The King did not agree 'immediately’: he agreed with the utmost reluctance and only after he had ascertained from the leaders of the Conservative and Labour” (this is clearly a mis­ print for "Liberal”) “parties that they themselves were unable or unwilling to form an Administration” .11 So, instead of the 1924 case being a “conclusive” precedent for the rubber stamp theory, or anything like it. it is just the opposite. It is often assumed that Mr. Mackenzie King supported the rub­ ber stamp theory. But he didn’t.12 Among writers on the Constitution, Austin, Hearn, Todd, Dicey, Anson, Low, Marriott, Keith and Ramsay Muir have all emphatically asserted the existence of a reserve power; Keith, indeed, devoted a large part of his later works to discussing it, and elaborating his celebrated theory of the Crown as guardian of the Constitution. Lowell, Jenks, Jennings, Chalmers and Asquith, and even Laski, all admit a greater or less degree of such power.13 Dr. Evatt, who speaks with particular authority, as a former judge of the Australian High Court, a former Commonwealth Minister of External Affairs and Attorney-General, as the present Leader of the Australian Labour Party, and as a distinguished writer on the Constitution, has devoted a whole book to explain­ ing the nature and necessity of the reserve power.14 Unquestionably, then, the power exists. Unquestionably also, it is a power to be exercised only in very special circumstances. Ordinarily, the Crown does, and must, follow the advice of the Cabinet in office. Many eminent statesmen, and most writers on the Constitution, have considered that there were occasions when 10 Ib id .. p. 147. 11 Op. cit.. pp. 399-400 13 See below, pp. 87-8. 13 The R oyal Power o f D issolution o f Parliam ent in the British Com ­ m onwealth. pp. 72-105. 14 The K ing and H is Dom inion Governors (Oxford. 1936).

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it ought not to do so. But many ordinary people feel there must be no exceptions whatsoever; that the only safe rule is to insist that the Crown shall invariably accept the advice of the Cabinet in office, regardless of circumstances. Is this in fact a safe doctrine? What might its consequences be? A few concrete examples may help to make things clear. (1) Suppose the present Dominion Government gets a disso­ lution in 1954. Suppose the election gives the c c f a clear major­ ity. Suppose the Liberal Government then advises the Governor-General to fill all vacancies in the Senate and on the Bench, thus depriving the prospective c c f Government of any rep­ resentation in the Upper House and packing the Bench with hostile judges. Would it be the duty of the Governor General to accept such advice, setting the verdict of the electorate at defiance? It couldn’t happen? But it did. In July 1896, Sir Charles Tupper’s Conservative Government, decisively defeated at the polls, tendered precisely this advice to Lord Aberdeen. Aberdeen refused to accept it. Tupper resigned, and Laurier took office, thus accepting responsibility for Aberdeen’s exercise of the reserve power. But there’s no chance of a c c f Government? Suppose there isn’t. Suppose it’s the Progressive Conservatives who win the election. Even if the defeated Liberal Government filled all the vacancies in the Senate and on the Bench, it wouldn't be depriv­ ing the prospective Conservative Government of any representa­ tion in the Upper House or on the Bench. There are still eight Conservative Senators, and a few Conservative judges, and some of them will probably survive till 1954. All right. But suppose the Liberals win in 1954 (or whenever the next election comes), and then lose to the Progressive Conservatives in, say, 1958. By that time there may well be no Conservative Senators left, and few if any Conservative judges. In either case, the new Government could get eight extra Senators appointed under section 26 of the British North Amer­ ica Act; but it would then be unable to appoint any Senators in the ordinary way till the total for each senatorial division had fallen to 24. It would labour under a severe, and wholly illegitimate, hand­ icap, imposed by a former Government which had been repudiated by the electors. This question of appointments by a defeated Government is even more important now than it was in 1896, for the Governor-General himself is now appointed by the Dominion Government. Acceptance of the rubber stamp theory would mean that a Government defeated at the polls could advise the Queen

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to appoint one of its own partisans Governor-General, and that the Queen would have to do it. True, the new Government could advise her to dismiss the Governor appointed by the defeated Government and appoint a new one, and she would have to do that. But the new Government might well shrink from bringing about such an unedifying spectacle, and might feel it had to put up with a partisan opponent at Rideau Hall till he show'ed himself so glaringly unsuitable that there would be general agree­ ment that he must be removed. (2) Suppose the present Dominion Government gets a dissolu­ tion and fails to get a majority at the polls. Suppose the Government then announces it considers this result unsatisfactory, and that it has accordingly advised the Governor-General to dissolve Parliament again forthwith, before the Parliament just elected can even meet. On the rubber stamp theory, the Governor-General is bound to accept the advice. If the result of the second election is unsatisfac­ tory, he is bound to accept that advice also, and so on, indefinitely, till the electorate has been lied, bullied or wearied into giving the Government a majority, or, in desperation, has decided that the only remedy is to shoot the lot. But no Government would ever dream of offering such advice? No? In the Parliament of 1921, the Liberal Party started off with 117 members, to 50 Conservatives and 68 Progressives, Labourites and Independents. It ended up with 118, to the Con­ servatives’ 51 and the others’ 66. On September 5, 1925, Mr. Mackenzie King got a dissolution. Three days later he declared, at Erindale, Ontario: “ If we were again faced with the situation that confronted us in the last four years, I should ask for another dissolution of Parliament to get this matter straightened out, until we got a majority sufficient to meet the country’s needs” .15 On the most charitable imterpretation, this can only mean that Mr. King considered himself free to go on asking for fresh elections (and he plainly thought it was a case of, “Ask and ye shall receive” ) till somebody got a majority big enough to govern effectively. The Erindale speech does not stand alone. After the election, one month and two days before the new Parliament’s existence could legally begin, Mr. King issued an official statement boldly claiming the right to advise an “ immediate” second dissolution, again with the clear implication that to ask was to get.16 This was not said in the heat of the campaign, nor in the first flush of 15 See below, p. 99. 16 See below, p. 99.

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anger at defeat. It was said after a week’s reflection on the results; and Mr. King repeated it to the House of Commons more than a year later, with every appearance of pride and satisfaction. So it must be taken to have been his considered opinion. British Columbia, in the summer of 1952, may have come very near reaping the fruits of this extraordinary theory. An election, early in June, had overwhelmingly defeated the Liberal Government. That much was clear at once. But it was some weeks before anything else was clear. When it appeared that Social Credit had elected 19 members, the c c f 18, the Liberals six, the Progressive Conservatives four and Labour one, the Lib­ eral Government resigned, and Social Credit took office. A few weeks later, stories appeared in the newspapers that Mr. Bennett, the Social Credit Premier, proposed to ask the LieutenantGovernor to dissolve the new House without even allowing it to meet. As it turned out, he didn’t; but the mere fact that it could be seriously suggested he was thinking of it is bad enough. For a request for dissolution in such circumstances would be a scandal­ ous and immoral violation of the basic principles of parliamentary government. A legislature is elected to transact public business. If it has any right at all, if it is to serve any purpose at all, it must at least have the right to meet and see whether it can do what it was elected to do. Only if it cannot elect a Speaker (as in Prince Edward Island in 1859, and Newfoundland in 1909), and is therefore paralyzed and impotent, is the Government entitled to a fresh dissolution. If Mr. King in November, 1925, or Mr. Ben­ nett in August, 1952, had asked for dissolution before the new house met, he would have been guilty of a brazen contempt of Parliament, an inexcusable outrage, committed against the public at the public’s expense. Yet the only safeguard against such conduct is the reserve power of the Crown to refuse dissolution. On the rubber stamp theory, the public is helpless to protect itself. (3) Suppose the Government gets a dissolution, and no one gets a clear majority. The Government retains office and meets ihe new Parliament (as it has a perfect right to do), hoping to pick up enough votes from the third party to keep it in power. But the new Parliament defeats it. It declines to resign (Govern­ ments don't resign automatically on defeat). Instead, it asks for a second dissolution, and, upon a further defeat in the ensuing Parliament, a third, and so on, till the electors give in or revolt. Is the Governor-General bound to acquiesce in this game of constitutional ping-pong from electorate to Parliament, from Par­ liament to electorate again, back and forth interminably?

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But nothing like this could happen! Couldn't it? After the 1925 election, Mr. King, as we have just seen, claimed he could have another election forthwith, without even letting Parliament meet. But he graciously added that he did not propose to exercise this right. He “felt it was not in the interests of the country to occasion the turmoil and expense of another general election until at least Parliament has been summoned and the people’s repre­ sentatives in Parliament had been afforded an opportunity of giving expression to their views” . The House of Commons was to be allowed “ to disclose its attitude upon division” .17 Parliament, that is, would meet not of right, but of his grace. So Parliament met, in January, 1926. In June, it defeated Mr. King’s Govern­ ment. The Government did not resign. It asked for dissolution instead, the Governor-General refused, and Mr. King then resigned. But, on the rubber stamp theory, the Governor-General couldn't have refused. Mr. King would have got his second dissolution; and, by the same token, he could have got a third, a fourth, any number. This, again, was no mere momentary aberration. In the 1926 election campaign, Mr. King laid down the general principle that “ it was for Parliament to decide” which party should govern, “ if Parliament were in a position so to do; when Parliament ceased to be in a position to make a satisfactory decision, then it was for the people to decide” .18 On the rubber stamp theory, this leaves the whole thing to the uncontrolled, sovereign discretion of the Cabinet in office, even if that Cabinet has been defeated at the polls and in the House. Parliament will decide, if, as and when the Cabinet sees fit to let it decide; but when, in the opinion of the Cabinet, Parliament ceases to be in a position to make a decision “satisfactory” to the Cabinet, the Cabinet can dissolve Parliament and appeal to the people. This is a “ heads I win, tails you lose” theory of the Constitution. It bears not the faintest resemblance to parliamentary government. Yet on the rubber stamp theory of the Crown’s powers there is no escape from it, no protection against the Cabinet dictatorship it would rivet upon the country. (4) If a Government gets a dissolution, and the Opposition gets a clear majority in the election, the defeated Government might simply decide to postpone the meeting of Parliament indef­ initely. On the rubber stamp theory, the Governor-General would have to acquiesce. It may be objected that these dangers are illusory; that we 17 See below, p. 100. IS See below, p. 100.

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have sufficient safeguards against them in (a) the statutory requirement that Parliament and the Legislatures must meet at least once a year, and (b) the necessity of an annual grant of Supply. But both these safeguards are a good deal less substantial than they look. (i) The Dominion Parliament, on January 25, 1940, held a session lasting less than five hours. There can be no doubt that for the purposes of the British North America Act this was a real session, and the Government was not legally obliged to summon Parliament again till January 24, 1941, when it could have repeated exactly the same proceedings. The same thing could happen in any province, and neither in the Dominion nor in the provinces would there be any recourse to the courts. (ii) Any provincial Legislature can abolish the requirement of an annual session. (iii) Parliament or any Legislature could vote Supply for more than one year. British Columbia did, in 1879, for eighteen months.19 (iv) The requirement of an annual session is subject to the Crown’s overriding power to dissolve at any time. In Quebec, the first session of the seventh Legislature was prorogued on Decem­ ber 30, 1890; dissolution followed shortly afterwards; and the first session of the new Legislature opened on April 26, 1892. Despite the express “twelve months” of the statute, almost sixteen months intervened between sessions. The legality of this proceeding seems never to have been seriously challenged. (v) In the Dominion and in every province, when Parliament or the Legislature is not in session, the Governor-General or Lieutenant-Governor has power to issue warrants for the expendi­ ture of public money without a vote by Parliament or the Legisla­ ture, on the certificate of the Ministers concerned that the necess­ ity is urgent and has not been provided for by Parliament or the Legislature. This provision of the law has been used at least four times in the Dominion (1896, 1911, 1926 and 1940), at least once in Quebec (1936), and once in Ontario (1945), to cover all ordinary Government expenditures for a period of months, when dissolution had prevented Parliament or the Legislature from voting the necessary Supply. In some of these cases, the Govern­ ment could, and should, have tried to get Supply voted before dissolution; in some, it did try, and was balked by obstruction. But in none of them was the Government guilty of any gross 19 Journals o f the Legislative Assembly, pp. 53, 57.

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impropriety. But, on the rubber stamp theory, this power could be used, with perfect legality, to subvert the Constitution. The Governor-General or Lieutenant-Governor would, on that theory, have no choice but to sign the warrants, even if they were being used to enable the Government to rule without meeting Parliament at all (except, perhaps, for “token” or “shadow” sessions a la 1940). (5) Suppose that in a nicely balanced House the Opposition moves a vote of censure on the Government for misconduct. Highly inconvenient facts begin to come to light, and the Govern­ ment scents danger of defeat. While debate is still in progress, and before a vote can be taken, the Prime Minister asks the Governor-General for dissolution. To grant the request is to con­ fer on the Cabinet power to choke and strangle Parliamentary institutions. All this would, undoubtedly, be completely beyond the power of the courts to prevent, control or punish. On the rubber stamp theory, it would also be beyond the power of the Crown or the people; for, as we have seen, that theory enables a Cabinet to defy both Parliament and the electors. It must be emphasized that what is here in question is a totally different thing from allowing a Government against which a motion of censure has been passed to appeal to the people. It is proper, in certain circumstances, to allow a man convicted by a lower court to appeal to a higher. It is never proper to allow a man on trial in a lower court to appeal to a higher court while the trial is in progress. Plenty of Governments in the British Commonwealth have appealed from conviction passed by the House. Only one, Mr. King's in 1926, has ever tried to escape conviction by dissolving Parliament before it could pronounce judgment. “ O f course,” says Dr. Evatt, “ in one sense, every appeal to the people, whatever circumstances exist when it takes place, represents an attempt to get a decision from the political sover­ eign. In this sense a series of repeated dissolutions of the Parlia­ ment may be said to represent the ‘triumph’ of the people as political sovereign. In actual fact, however, by means of defama­ tion and intimidation and the deliberate inculcation of disillusion and disgust, a series of repeated dissolutions would probably be the very means of first delaying and ultimately defeating the true popular will, and so represent a triumph over, and not a triumph of, the electorate.” 20It may be added that even without defama­ tion, intimidation and so forth, the same result may follow if the -° Op. cit.. p. 109.

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people are obliged to vote in ignorance of the essential facts which might have been uncovered by prior parliamentary debate. In other words, an “appeal to the people” is not necessarily democratic. It may be merely demagogic, pseudo-democratic, even anti-democratic. In Lord Balfour’s phrase, “ No Constitution can stand a diet of dissolutions.” The fact is that one of the biggest threats to parliamentary democracy in Canada is the Winnipeg Free Press dogma that any Government, regardless of circumstances, always has a dissolution in its pocket; that an appeal to the people is always proper. Anyone who ventures to question this is a “reactionary” and “anti-democratic.” Anyone who argues that the Crown and its representatives have a reserve power to refuse dissolution, is just “colonial-minded.” Precedents and authorities from Britain and the other Dominions are brushed aside as irrelevant, out-of-date, part of a tradition we have outgrown. Very well. Let us for a moment forget that we are British, forget the Crown, forget about tradition. Let us look at some ultra-modern, purely republican Constitutions. First, Ireland. Ireland has deliberately left the Common­ wealth, and Mr. de Valera can certainly not be accused of over­ weening reverence for things British. The Irish Free State Consti­ tution of 1922, had virtually prohibited dissolution to a Govern­ ment defeated in the House. Mr. de Valera, in the republican Constitution of 1937, removed this prohibition. But he did not replace it by the Free Press dogma. On the contrary, the new Constitution explicitly provided that “the President may in his absolute discretion refuse to dissolve Dail Eireann on the advice of a Prime Minister who has ceased to retain a majority in Dail Eireann.” 21 And Mr. de Valera was perfectly clear about what it meant and why: “ There are certain circumstances in which . . . a government should not be given a dissolution but there are cir­ cumstances in which they should. In order to try and distinguish between these two cases, we bring a third person, so to speak, as arbiter. He will give his decision and grant a dissolution or refuse it, at his own discretion.” The President, Mr. de Valera said, might say to a defeated Prime Minister: “ I cannot give you a dissolution; the circumstances under which you have been defeated are such that I do not think there is any question which should be put to the people.” “ What that simply means,” Mr. de Valera summed up, “ is that we are making provision in the Constitution for the possibility of referring a question of prime 21 Article 13, section 2.

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importance, on which the Government has been defeated, to the people for a decision.” 22 No one argued that a defeated Govern­ ment had a right to a dissolution on demand. The Opposition argued it had no right at all. Mr. de Valera insisted that there are cases, the exception rather than the rule, on which dissolution to a defeated Government is proper: when there is a great question of public policy at issue. This is precisely the classic British doctrine, set forth by Peel, Russell and Gladstone. Ireland, under a leader who rejects the Crown and the whole British tradition, has deliberately adopted this doctrine simply as a matter of com­ mon sense; has deliberately given its President power, as someone said in the same debate “to guard the people’s rights and . . . the Constitution.” Mr. de Valera is not “anti-democratic” ; he owes no loyalty except to Ireland; he is no “ Englishman,” he is the leader of a. successful revolution against the Crown and the Com­ monwealth. But he uses his brains, instead of just repeating a jingle about the Head of the State being always obliged to accept the advice of his Ministers. France also is a republic. France also has no Crown, no British tradition. France has long experience of a Constitution which virtually prohibited any dissolution of Parliament before the end of its maximum term. France, after the last war, deliber­ ately adopted a new Constitution which allowed a Government defeated in the Assembly to appeal to the people. But France also surrounded this right with safeguards designed to protect the Assembly from frivolous or arbitrary dissolutions. The appeal can take place only after the fall of two Ministries within eighteen months, and only with the concurrence of the President of the Assembly.23 Germany under the Weimar Republic had plenty of experi­ ence of the theory and practice that any Government can have a dissolution at any time. The results were the reverse of demo­ cratic. Indeed there never was a more complete demonstration of Lord Balfour’s dictum. The new West German Republic, accord­ ingly, provides that the President can dissolve Parliament only if it denies the Chancellor a vote of confidence, and even then Parliament can prevent its own dissolution by electing a new Chancellor within twenty-one days.24 Here again, no Crown, no British tradition, here again a recognition that a general election is necessary when a great question of public policy is at issue, or the utility of a particular 22 D a il Eireann Debates, 1937, Vol. 68, pp. 1204-13. 23 Article 51. 14 Article 68.

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Parliament is exhausted before its maximum term has expired. But here again the determination to prevent a Government from bludgeoning Parliament into submission by repeated dissolutions or threats of dissolution. Most remarkable of all are the provisions for dissolution which Mr. T. K. Finletter has suggested should be inserted in the American Constitution. The Americans made very sure that their Congress could never be dissolved. The Senate and the House of Representatives are elected for fixed terms. So is the President; the Senate for six years, the House for two, the President for four. If the President’s measures are defeated by Congress, he can’t appeal to the people in a general election. If Congress loses confidence in the President, it can’t turn him out and put in a new one, except by impeachment, which is virtually impossible. Both must wait till the appointed times, when the electors may return Houses still at loggerheads with the President and perhaps with each other. The result, of course, is often deadlock and near-paralysis. Mr. Finletter accordingly suggests amending the Constitution to give the President power to dissolve both Houses and order a new election of President, Senators and Representatives “ when­ ever a deadlock arises between Congress and the Joint Cabinet” (which he has proposed to be made up of nine members appointed by Congress and nine by the President). “ If it became clear that relations between the Executive and the Congress had reached an impasse which was seriously affecting the interests of the nation, the President could issue an executive order calling for a new election of the entire House, Senate, and Presidency.” This proposal recognizes the value of the power of dissolution; but it does not provide for dissolution whenever the President feels like it. On the contrary, the power could be used only in case of deadlock, “only if there were a real difference of conviction on matters of major importance between Congress and the Execu­ tive, and then only when all attempts to reconcile the difference had failed and the government accordingly could no longer func­ tion . . . It would of course be possible to provide by constitu­ tional amendment that a dissolution could be called only on a vote of the Joint Cabinet, or on the demand of the President and the vote of both Houses. But this would only incorporate for­ mally in the Constitution what would necessarily be the unwritten practice” .25 25 Can Representative Government D o the Job? (New York, Reynal and Hitchcock, 1945), pp. 110, 113, 128.

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Mr. Finletter is no royalist; he cannot invoke any British tradition; and his proposal differs widely from anything in our Commonwealth. But sheer weight of experience has forced him to recognize the usefulness of dissolution; and, equally, it has forced him to recognize the dangers of the power and to surround it with safeguards to prevent its being used to choke and strangle Congress and reduce it to a mere creature of the Executive. The Irish, the French, the Germans, and this distinguished American, all see and face, and try to provide against, the terrible dangers of an unlimited power of dissolution. Our “ Liberals” can’t, or won’t. The Irish, the French and the Germans, wanting genuine parliamentary democracy, but lacking the reserve power of the Crown, have been compelled to create something to take its place. Mr. Finletter would have the Americans do the same. Our “ Liberals” want to throw out of our Constitution just the kind of thing these other countries have now put, or talk of putting, into theirs. Others can learn from British experience. We mustn’t. It doesn’t lessen their independence. But it would ours. It strengthens their democracy. But it would destroy ours. And anyone who protests against this idiocy is an old fogey, a Tory die-hard! It would be hard to find a more beautiful illustration of the utter irrationality of “ Liberal” constitutional doctrine in this country, a more perfect example of how epithets have taken the place of argument, and invincible ignorance blinded people to plain facts. (6) The final and most flagrant example of the results of the rubber stamp theory is, of course, the one we began with: a moribund Legislature prolonging its own life without any man­ date and despite the protests of the Opposition. Evatt calls such action “an impudent attempt to thwart the people’s will", “a coup d’etat under the forms of law.” 26 Yet against such “acts of tyranny and usurpation” 27 neither the courts nor (on the rubber, stamp theory) the Crown can offer any protection, and the people are helpless to protect themselves. True, the Dominion Government could disallow the provin­ cial Act prolonging the life of the Legislature. But recent history suggests that it would be most unsafe to count on this.28 Besides; unless the disallowance was practically instantaneous, the Legisla­ ture could re-pass the Extension Act, and this process could go on indefinitely, unless the Lieutenant-Governor reserved the 26 Op. cit., p. 200.

11 Ib id ., pp. 287-8. 28 See below, pp. 199-205.

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Extension Bills for the signification of the Govemor-GeneraFs pleasure. But this again means intervention by the Crown. In.every one of the cases described, the rubber stamp theory is an affront to common sense and results in a monstrous perver­ sion of democratic government. Yet some people persist in main­ taining that exercise of the reserve power in such cases would be “ undemocratic.” It is perfectly “democratic” to appeal to an appointed judge to use a power he does not possess to prevent frustration of the people's will. But it is “undemocratic" to appeal to an appointed Governor-General or Lieutenant Governor to use a power he does possess for the same purpose. As both Dicey and Lord Oxford have pointed out, the reserve power cannot be used arbitrarily or against the will of the people. The Crown cannot act without the advice of Ministers. If it refuses the advice of the Ministers in office, and they refuse to back down, it must find other Ministers who will take responsi­ bility for the refusal; and the new Ministers must secure the support either of the existing Parliament or of a new Parliament. The reserve power is, indeed, under our Constitution, an absolutely essential safeguard of democracy. It takes the place of the legal and judicial safeguards provided in the United States by written Constitutions, enforceable in the courts. The Americans do not allow the President or a State Governor to dissolve Congress or a State Legislature at all. They positively forbid Congress and the Legislatures to prolong their own lives. Any citizen can secure the observance of these constitutional provi­ sions in the courts. The disadvantage of this, of course, is that there are times when the public interest requires that the electo­ rate should be consulted before the maximum legal term of the legislative body has run out; times when it is highly desirable that there should be an appeal from the verdict of the legislature to the electors; times when the public interest requires (as in Britain during the second world war) that Parliament’s life should be prolonged beyond the maximum term specified in the existing law. The Canadian Constitution, for the most part, regulates these matters by convention, custom, usage, unenforceable in the courts. It very sensibly allows Governments to appeal from Par­ liament to the people, and the provincial Legislatures to prolong their own lives, when the public interest so requires. But it does not follow that it provides no means of protecting fundamental democratic rights against abuse of these powers. It does; and the means is the reserve power of the Crown as guardian of the Constitution.

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It is the rubber stamp theory which is undemocratic. It makes existing governments irremovable except by their own consent. Such a doctrine is a travesty of democracy. It delivers every Opposition gagged and bound into the hands of its opponents. It delivers the people gagged and bound into the hands of any jack-in-office. The jack-in-office may, of course, loosen the gag and the ropes. He may loosen them so much that we don’t realize they’re there. But he can tighten them again whenever he pleases, and as tight as he pleases. This is not democracy. It is despotism; more or less benevolent, perhaps, for the moment; but despotism none the less. We inherited from Britain the parliamentary responsible gov­ ernment which is the essence of our Constitution. When we framed the British North America Act, we didn’t write into it one syllable about the Government being responsible to Parlia­ ment. We contented ourselves with saying, in the preamble, that Canada was to be “one Dominion, under the Crown of the United Kingdom, with a Constitution similar in principle to that of the United Kingdom.” That was the basis of the whole thing, the foundation on which all the superstructure set up by the Act rested, and without which the superstructure would collapse. A Dominion of the Crown; a Dominion of the British Crown; a Constitution founded on the British Constitution. That was all; it was enough; and it was essential. Without it, there would have been no Canada. Without it, there can be no Canada, at best, just a blurred, faint, unmeaning carbon copy of some other coun­ try; a thing without character and without honour. Some people, however, say that even if all this is true it’s no use talking about it now. In Canada, the reserve power of the Crown is gone. The election of 1926 abolished it. But, as I have shown elsewhere, this is not so.29 Our British Constitution is ours still. Nothing can take it away from us so long as we remain “con­ scious of our mighty heritage, proud of the Imperial Foundation of our freedom and of the flag that floats above us, worthy of those ideals of British liberty and justice which have sent their light forth and their truth among all races of men.”30

29 See below, pp. 105-09. 30 Arthur Meighen, Unrevised and Unrepented (Clarke, Irwin, Toronto, 1949), p. 206.

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4. Appointm ent o f E xtra Senators U nder Section 26 o f the British N orth Am erica Act.

The present party standing in the Senate is sixty-five Liberals and twenty-six Progressive Conservatives, with five seats vacant. Since the Bennett government left office, thirty-seven Conservative Sen­ ators have died or resigned, eleven of them in the last three years alone. As the Progressive Conservatives are, for the most part, among the oldest Senators, it is by no means impossible that, if the Liberals retain office a few years longer, a succeeding Pro­ gressive Conservative government may find itself without a single supporter in the Senate. A c.c.F. government would, of course, inevitably be in the same position. Clearly, any government must have some supporters in the Upper House, if only to move and second its legislation. Would there be any way out of the difficulty short of an amendment to the British North America Act? The answer would seem to be yes. Normally the Senate is limited to ninety-six. But Section 26 of the British North Amer­ ica Act provides that “ If, at any Time, on the Recommendation of the Governor-General, the King thinks fit to direct that four or eight Members be added to the Senate, the Governor-General may by Summons to four or eight qualified Persons (as the case may be), representing equally the four Divisions of Canada, add to the Senate accordingly.” Sections 27 and 28 add: “ 27. In case of such Addition being at any Time made the Governor-General . . . shall not summon any Person to the Senate, except on a further like Direction by the King on the like Recommendation, to represent one of the four Divisions until such Division is represented by Twenty-four Senators-and no more. 28. The Number of Senators shall not at any Time exceed one hundred and four.” There can be little doubt that a government in the position just described would advise appointment of at least four extra Senators; and there can be equally little doubt that the advice would be accepted. Unfortunately it is impossible to be more positive, for there have never been any appointments under Section 26; only once has there been even an attempt to take advantage of its provi­ sions, and on that occasion, the circumstances were very different from those which may arise at the next change of government. Nonetheless, the case is worth examining. On November 7, 1873, the Mackenzie government took office. It prorogued Parliament the same day. Dissolution fol­ lowed, January 2, 1874. Meanwhile, on December 22, 1873, Mr.

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Mackenzie had drawn up a confidential memorandum1 recom­ mending the appointment of six extra Senators (the maximum possible under the Act as it then stood), and on December 23 this recommendation was adopted by the Cabinet, in P.C. 1711. It was at once approved by the Governor-General but not for­ warded to London till January 26, 1874. With it went a second confidential memorandum from Mackenzie, dated January 2, set­ ting forth the reasons for the recommendation. The constitutional practice of that time was that the Canadian Cabinet advised the Governor-General to make the “ recommen­ dation’' to the Queen; that the Governor-General, if he accepted the advice, made the recommendation; and that the British Cabi­ net advised the Queen whether or not to “direct” the appoint­ ment of the extra Senators. On this occasion, the GovernorGeneral accepted the advice of his ministers, but the British government declined to advise the Queen to direct the appoint­ ments, the refusal being dated February 18, a month and eight days before the opening of the new Parliament. Since the Balfour Report of 1926, the constitutional proce­ dure would of course be different. The British Cabinet would not come into the picture at all. The Governor-General’s “ recom­ mendation” would settle the matter. If a Cabinet advised the appointments, the only thing that could prevent them would be a possible “reserve power” in the Governor-General to refuse, a power which he could exercise only if the Cabinet gave way or if he could find other ministers prepared to take responsibility for the refusal. Clearly the chance that any such power would be exercised is very small, but it cannot be altogether excluded; and the behaviour of the Governor-General in 1873-4, and the rea­ sons given by the British government for refusing the request then, may give some indication of the principles which might guide a Governor-General in dealing with any future request. The circumstances of December 23, 1873, were peculiar. The late government had not been defeated in the House, though if it had waited for the vote on Mr. Mackenzie’s motion of censure it almost certainly would have been. The same House was still in existence, and it unquestionably contained a majority normally 'A n incomplete version o f this M em orandum appears in the Macken­ zie Letter Books, II 104-17. It is practically identical with the first eleven paragraphs o f the Mem orandum o f January 2, 1874 (see below). N o complete copy can be found in the Privy Council Office, the Public Archives, the G overnor-General’s O ffice, or the Public Records Office in L ondon. For the texts o f both M em oranda, see C anadian H istorical Review. June. 1946. pp. 189-194.

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hostile to a Liberal government. It was more than doubtful whether the new government could carry on without a dissolu­ tion, and the results of a dissolution were by no means certain. Even if an election took place, and the government won it, it could not be taken for granted that the Senate would necessarily be seriously hostile. In view of these facts, the Governor-General might well have balked at accepting advice to invoke an extraor­ dinary power provided by the constitution presumably only for use in cases where nothing else would serve. But with his custom­ ary tact, Lord Dufferin accepted the advice and put the orderin-council in his pocket till the eve of the election, forwarding it to London only when it was certain to reach the British govern­ ment after the election results were known. A modern Governor-General could not adopt either of the expedients Dufferin resorted to. His ministers would insist on an immediate answer and there could be no appeal to the British government. Faced with a request like Mackenzie’s in similar circumstances, what would a modern Governor-General do? He might urge delay till the existing Parliament had shown whether it was prepared to support the new government, or until elections had been held. He might urge delay till the Senate had shown that it was not prepared to deal fairly with the new government. But if his ministers insisted on immediate compliance with their request, what then? Would he give way or would he seek other advisers? If he sought them could he find them? To these questions, Mackenzie’s memorandum of January 2, 1874,2 the British government's reply of February 18, 1874, and* the debate in the Senate, March 19-20, 1877, offer partial answers. Mackenzie at the outset lays down the general principle that Section 26 “was obviously intended to give relief from the rigidity consequent on having a fixed number of Senators holding their seats for life and thus find a way to avoid possible complications or inconveniences by giving some elasticity to the system.” He deliberately refrains, however, from any attempt to “enumerate or anticipate all the cases which might arise justifying the exercise” of this special power, confining himself to the two reasons which in his view warrant its exercise in this particular case. The first is the pre-Confederation agreement that the original appointments to the Senate should be divided equally between the 2There seems to be no copy o f this document in Canada. It has been made available from the Public Records Office in London through the kindness o f Sir Shuldham Redfern and Sir Eric Machtig.

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two political parties, an agreement which, with some qualifica­ tions, Mackenzie seeks to erect into a permanent principle of the Canadian constitution. The earlier memorandum simply asserts the existence of such an agreement, adding that without it the Confederation negotiations could not have been carried through at all, because, though the Conservatives had a majority in the Cabinet of the old Province of Canada, the Liberals had a majority in the House. The later memorandum, perhaps at Lord Dufferin’s suggestion, offers, as proof of the agreement, the four­ teenth of the Quebec Resolutions: that in the first appointments to the Upper House, “due regard shall be had to the claims. . . of the Opposition in each Province so that all political parties may as nearly as possible be fairly represented.” Mackenzie admits that, broadly speaking, the agreement was carried out in the original appointments. But “the principle adopted in its creation . . . an equitable distribution of its political power between the two political parties” had not “been adhered to” in subsequent appointments. O f thirty-one new Senators, nine were appointed “to give representation to the three new Provinces of Manitoba, Columbia and Prince Edward Island,” and only in Prince Edward Island “was there any attempt made to consult the politi­ cal divisions which had previously prevailed.” The result was twenty-nine new Conservative Senators and two Liberals, and a “very large” Opposition majority in the Upper House. The situa­ tion had been aggravated by the fact that, with the admission of Prince Edward Island, vacancies from Nova Scotia and New Brunswick could not be filled till their representation had fallen from the original twelve to ten, and so the government was unable to replace two Liberal Senators from these provinces who had recently died. Mackenzie was, of course, well aware that to suggest rigid application of the principle which had governed the original appointments would be a counsel of perfection. I do not mean [he said], to lay down the doctrine that the Senate must be filled by the appointment of an exactly equal number from each political party. Such an arrangement would be scarcely possible; nor do 1 pretend to say that, even if possible, it would be advisable for each successive Adminis­ tration to obtain a majority in the Senate.. . . It is, however, evident that much care and delicacy is necessary in making appointments to give the body the weight it should have in the country and prevent the impression gaining ground that it is too much the creation of the Administration of the day.

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The fair equilibrium which should exist has been seriously disturbed, and a sufficiently clear case has been established to justify the application of the counterpoise provided by the Constritution. The second reason for advising the appointments is that “The new Administration should have an opportunity of seating some of the prominent supporters of its policy . . . for the pur­ pose of having able advocates of the Government measures in the House.” The British government’s reply was a frigid and uncompro­ mising refusal. It totally ignored both Mackenzie’s reasons for advising the appointments, laying down instead the principle that the Queen could be advised to exercise the power only “ in the event of an actual collision of opinion between the two Houses when it was made apparent that a difference had arisen of so serious and permanent a character that the Government could not be carried on without Her intervention, and when it could be shown that the limited creation of Senators allowed by the Act would supply an adequate remedy.” In this case nothing of the sort had been shown. Neither the Canadian government’s request nor the British government’s reply was communicated to either House until 1877, and even then Mackenzie’s memorandum was not brought down. After the production of the papers, Senator Campbell, Conservative leader in the Senate, moved a motion approving the British government’s decision and the reason for it, and a most interesting debate followed. Senator Wilmot, the only Senator who had been present at the London Conference where the British North America Act was drawn up, confirmed the conten­ tion that Section 26 had been intended only to break a deadlock between the two Houses.3 Senator Scott, for the government, contended that the number of appointments provided for was too small to break a deadlock. The power could therefore not have been given for that purpose. The government had sought only to anticipate vacancies and strengthen itself in the Senate, and this would have been a perfectly proper use of the power.4 Senator Dickey denied that the number was too small to break a dead­ 3 Senate Debates, 1877, p. 203. Sir Joseph Pope's Confederation Docum ents, (Toronto, 1895), p. 118, and Lord Carnarvon's speech in the House o f Lords on the second reading o f the British North America Bill, quoted by Senator Macpherson, Senate Debates, 1877, pp. 215-16, show that this is correct. 4 Senate Debates, 1877, pp. 204-5.

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lock: the Esquimalt and Nanaimo Railway Bill had been defeated by only one vote, with two government supporters voting against it.5 George Brown thought the power given by Section 26 should be used with “great caution,” but could properly be used in any “fitting exigency,” any case of “ imperious necessity.” Such necessity, he contended, had plainly existed in December, 1873. He repeated Scott’s argument; but where Scott had admitted that appointments to the Senate were part of government “patronage” and that it was “only natural” for the Macdonald government to have appointed its own supporters. Brown, like Mackenzie, asserted the principle that the numbers of the two parties in the Senate should be kept roughly equal. He repeated the substance of Mackenzie’s argument on this point, bolstering his case by claiming that six of the late government’s appointments had been made when it was in its “ last throes,” and ought to have been held over for the new administration.6 Senator Kaulbach said that the terms of Sections 26 and 27 made it clear that the power to make extra appointments was an emergency power: “ Had the Government measures not been treated in a fair spirit; had not the action of honourable members been generally approved by the people; had the Government appealed to the people upon any measure refused here, and then on being returned and again presenting it here, this House had again refused it, a case of deadlock might have been made out such as to justify the Gov­ ernment.” 7 Senator Vidal insisted that the power could be pro­ perly invoked only when a “permanent” difficulty had arisen. If the government had asked for the appointments after the defeat of the Esquimalt and Nanaimo Railway Bill, it would have had a case,'though even then the permanency of the difference between the two Houses would not have been established, as the bill had not been reintroduced.8 Senator Wark made the original and significant suggestion that the special power might be needed, on occasion, to find a speaker, or a “ legal gentleman” to take charge of legal business, or a cabinet minister.9 In this whole controversy, the British government, and the Canadian Conservative party, stood firmly on the history of Sec­ tion 26 itself and on British precedent. Section 26 had been inserted in the Act not by the Fathers of Confederation but by 5Ib id ., h Ib id ., 1 Ib id ., * Ib id ., ‘‘ Ib id .,

p. 206. pp. 207-9. p. 217. p. 218. p. 221.

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the British government, and inserted solely for the purpose of breaking a deadlock which could not be broken by any other means. Mackenzie and the Liberals, on the other hand, arguing that the Act itself conferred an unrestricted and unconditional power, fought for a wider interpretation based at least partly on purely Canadian history and circumstances. Subsequent develop­ ments have made most of the arguments on both sides obsolete. On the one hand, Mackenzie's main contention has been shown to be altogether Utopian: no government ever appoints anybody except its own supporters to the Senate. On the other hand, the long tenure of most Canadian governments (the very reverse of what British, Canadian, Australian, and New Zealand experience down to 1867 had led everyone to expect) has rendered Section 26 perfectly useless for the purpose for which it was intended. It will probably never be used except for purposes which its creators never contemplated. Viewed retrospectively, therefore, the only really important part of Mackenzie’s argument is the second-to-last paragraph of his memorandum of January 2, 1874: that the government needed the appointments to give it “able advocates” in the Senate. Similarly, the only important contribution to the debate of 1877 is Senator Wark’s: that a new government might need extra appointments to give it Senators with the particular qualifications necessary for the speakership, cabinet office, or the conduct of legal business. Unfortunately for Mackenzie, his second-to-last paragraph is introduced almost as an afterthought, without any supporting evidence; there was already a considerable number of Liberals in the Senate; on December 16, 1873, a vacancy had allowed him to appoint George Brown, certainly a highly “able advocate” ; and, as the event proved, further vacancies might well occur before the opening of the new session.10 It is worth noting that even if Mackenzie had got his six Senators, he would still have been in a minority in the Senate, so that if the elections had gone against him, a new Conservative government would not have been seriously embarrassed by the fact that the appointments had been made. This might have been considered an additional reason for assenting to his request. On the other hand, if the six had been enough to give him a major­ ity, that might have been an additional reason for declining until he had proved that he had the confidence of the existing or of a new House of Commons. It would have been intolerable to allow 10 R. W . Scott and E. G . Penny were appointed shortly before the opening.

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a government which had never had the confidence of the Com­ mons to hamstring its successor. By the same token, if six appointments would have given Mackenzie a majority but three would not, the Governor might properly have agreed to recom­ mend three but not six, always assuming, of course, that he could find an alternative government to accept responsibility for his action. It cannot be said that the 1873 case throws much light on the problems which would arise if a government today found itself without a single supporter in the Senate. On the contrary, both the Cabinet and the Governor-General would have to be guided almost entirely by the light of reason, the spirit of the constitution and the particular circumstances of the case. If the new government took office, as in 1873, because its predecessor had resigned without being defeated in the House or at the polls, and asked for the appointment of four or eight extra Senators before meeting either the existing House or a new one, would the Governor-General be bound to assent? He certainly could not refuse unless he could either persuade the late govern­ ment to resume office or could find another alternative govern­ ment. But could he have any solid ground for refusing? Suppose that on the present Liberal government’s resignation the Progres­ sive Conservatives took office. They would, ex hypothesi, have no majority in the existing House of Commons and no certainty of winning an election. If they got the full eight extra Senators, met the existing Parliament, were at once defeated, either did not ask or were refused a dissolution, and made way for a c .c .F . govern­ ment, the new c.c.F. government would find itself not only with­ out supporters in the Senate but with no means of getting any. A Governor-General who agreed to the full eight appointments before the House met would be making himself an accomplice in a scandalous abuse of power; a Governor-General who declined would merely be safeguarding the rights of the people. If, how­ ever, the Progressive Conservatives asked for only four appoint­ ments before the House met, the Governor could scarcely refuse; for even if the Progressive Conservative government were at once defeated in the House, and a c .c .F . government took office, the new c .c . F . government would still be able to make four appoint­ ments. The essential constitutional right would have been pres­ erved. Similarly, if the Progressive Conservatives secured a disso­ lution, either without meeting the existing House or after defeat there, the Governor could hardly refuse a request for the appoint­ ment of four extra Senators after the election but before the new House met (unless, of course, another party had won a clear

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majority), but might properly refuse a request for eight until the government had either won a clear majority in the election or secured the support of the new House. If a new government without a single supporter in the Senate took office after winning a clear majority in an election, its right to the full eight appointments would seem to be unquestionable, its power to get them equally so. An alternative government in the existing Parliament and a fresh dissolution would be alike impossible. But if the Liberal government resigned as the result of an election which gave no party a clear majority, the case would be different. Suppose, in this instance, that a c.c.F. government took office. It would certainly have a right to four appointments forth­ with, to enable it to meet Parliament. But if the Progressive Conservatives were numerous enough to have any chance of forming a government if the c.c.F. government were defeated when it met the House, then, for reasons already indicated, the Governor-General would be entitled to insist on deferring the other four till the c.c.F. had shown that it could command a majority; and he would presumably have no difficulty in finding an alternative government to take responsibility for his action. If, however, the Progressive Conservatives were so few as to have no chance of forming a government, then, again, the Governor could hardly refuse to make the full eight appointments, as the alterna­ tive to a c.c.F. government would be the return of the Liberals who already had the whole normal membership of the senate." This does not, of course, by any means exhaust the possibili­ ties of the subject. There are times when a government is not entitled even to fill vacancies in the Senate, let alone make use of Section 26, and when the Governor-General would be entitled to refuse his consent if it tried. The crisis of June-July, 1896, when Sir Charles Tupper, after his defeat at the polls, tried to fill two vacancies and Lord Aberdeen refused, and was upheld by Sir Wilfrid Laurier, by the Colonial Secretary (Joseph Chamberlain), and, many years later, by Mr. Meighen, provides one illustration. The events of November, 1925-JuIy, 1926, provide two others. If Mr. King’s government, after the election of 1925 (from which it emerged with 101 seats to the Conservatives’ 116) and before it received the support of the new House of Commons, had tried to fill the two vacancies which existed, Lord Byng could properly have refused. If Mr. Meighen’s government, after its defeat in the 11 It is worth noting that Section 26 might provide the only means by which a Progressive Conservative or C .C .F . minority government could give French Canada representation in the Cabinet.

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House and while it was awaiting the verdict of the electorate, had tried to fill the three vacancies which then existed, again Lord Byng could properly have refused. Lord Aberdeen easily found an alternative government to take responsibility for his refusal, and it is altogether probable that Lord Byng would have also. Actually, both Mr. King and Mr. Meighen behaved with perfect propriety: Mr. King filled no vacancies till June 25, and Mr. Meighen none at all. In all three cases, an attempt to appoint extra Senators under Section 26 would, of course, have been even more impro­ per than an attempt to fill vacancies, and there can be little doubt that the Governor would have refused. If in any one of the three cases the state of parties in the Senate had been such that the appointment of the full number of extra Senators would have converted a minority into a majority, the Governor would have been almost bound to refuse, as compliance with the request would have seriously embarrassed an incoming government. But both Sir Charles Tupper and Mr. Meighen already had majorities in the Senate, and the majority against Mr. King was so large that even if he had filled both vacancies and added the full eight extra members, he would still have been in a minority. In none of the three cases, therefore, was the government under any tempta­ tion to make improper use of Section 26. But situations in which it might be are easily conceivable. There is also the possibility that a new government might find itself with some supporters in a full Senate of ninety-six members, but none of an age or capacity to bear even the relatively slight burdens of a minister without portfolio and leader of the Senate; it would seem to have a clear right to four appointments, though not to eight unless it had already shown that it possessed the confidence of the Commons. These are some of the principles which, it is submitted, ought to guide governments and governors-general in the use of Section 26. But the conventions governing such use have still to be worked out, and they will have to be worked out without much help either from our own or British history. British precedent in regard to the creation of peers will be almost totally useless. For one thing, it is concerned almost entirely with the question of “swamping” the Upper House, something for which Section 26, as we have seen, is never likely to be of any use. For another, Britain has a Parliament Act; Canada has not. For a third, the House of Lords is not limited in number; the Senate is. The power of the Senate is much greater than that of the Lords, and the power of the Canadian government and House of Commons to overcome obstruction by the Upper House is much less, indeed almost nil. Moreover, if a British government created a thousand

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extra peers, this would not prevent its successor from creating another thousand; if a Canadian government secured the appoint­ ment of eight extra Senators under Section 26, it might prevent its successor from making any appointments at all for several years. Because of the provisions of Section 27, it could make no ordinary appointments till at least two Senators from some one senatorial division of Canada had died, resigned, or become disqualified, and could make no further use of Section 26 till at least one Senator from each division had died, resigned, or become disqualified. The need for a reserve power in the Governor-General to prevent abuse of Section 26 is therefore much greater than the need for a reserve power in the King to prevent abuse of the power to create peers. That the King has such a reserve power is abundantly clear from the events of November, 1910. On that occasion, he was willing to create enough peers to carry the Parliament Bill, but only after all other means had been exhausted. The first step was to try to get the Lords to pass the bill in the existing Parliament. If that failed, the next step was to dissolve Parliament, to see whether the electorate really favoured the bill. If the electorate said yes, the next step was to see whether the Lords would give way, as they had after the election on the Lloyd George budget. Only if all these steps had been taken without result was the King prepared to create enough peers to swamp the opposition. It is arguable that the Parliament Act, by providing an alternative method of overcoming obstruc­ tion by the Lords, has strengthened the King’s reserve power in the creation of peers; certainly it can hardly be argued that it has taken it away. If the King has a reserve power in the creation of peers, a fortiori the Canadian Governor-General ought to have a reserve power in the use of Section 26 of the British North America Act. It should hardly be necessary to add that “ reserve power” means what it says: a power held in reserve, to be used only on extraordinary occasions to prevent a flagrant breach of constitutional right. As long as Cabinets observe ordinary consti­ tutional decency, restraint and decorum in the advice they tender, reserve powers remain in reserve; it is only on the occasions, fortunately rare, when Cabinets forget themselves, that the reserve powers come into play.

5. M eetings o f the Q u ee n ’s Privy Council for C a n a d a , 1867-1882

In Britain, a meeting of the Privy Council means a meeting of

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the Queen and three or more Privy Counsellors (at least four must be summoned, but only three need be present).1 Such meet­ ings are, of course, summoned for purely formal purposes, but they are not infrequent. It used to be blandly assumed that similar meetings of the Queen’s Privy Council for Canada had taken place only very rarely indeed. Successive articles by Profes­ sor Mallory showed that at least in the early years after Confeder­ ation this was not so.2 Professor MacNutt, on the other hand, has suggested that, until Lord Lome’s assumption of the Governor-Generalship, meetings of the Council with the Governor present were the rule rather than the exception, and that they were much more than merely formal. He says “ Shortly after his arrival in Ottawa, Lome was astonished by an invitation to sit in Council with [his ministers] as public business was discussed. He was shown the high-backed, decorated gubernatorial chair in the cabinet room in the east block where Dufferin had sat like a Stuart monarch and sometimes summarily influenced debate. Lome refused; most informed men were confused and mystified.” 3 What Lome himself said was rather different: "1 am some­ times told that my predecessors used to attend also the meetings of the Cabinet quite as we may suppose the Stuart monarchs may have presided at their Council of State when their Ministers deliberated___ The Governor-General in Canada has often him­ self sat and spoken in the Cabinet conclave. To prove this to me I was shown the Council Room, in which a high-backed, deco­ rated chair was placed at the head of the long table, and ranged along the table at each side were the chairs for the Ministers. I said as soon as I saw this Cabinet throne that I would not be representing the Queen in occupying it when Ministers were engaged in consulting each other about any B ill they proposed to bring forward in the House and that I would never use it. Nor did I do so even for the formality of assenting to Bills passed, which was done by signing ‘Privy Council Orders.’ ”4 In fact, there seems little, if any, ground for believing that Lome’s practice was appreciably different from Dufferin’s or his 1 W . R . Anson, The Law and Custom of the Constitution: The Crown, 4th. ed., edited by A . Berriedale Keith (Oxford, 1935). II. Part i, 162. 2 “ Cabinets and Councils in C anada,” Public Law (A utum n, 1957), 233-4; “ The Governor General ‘in’ C ouncil,” unpublished ms., deals with the period 1867-73. 3Da,vs of Lome (Fredericton, 1955), 127-8. 4 Passages from the Past (London, 1907), II, 412 - 13; italics mine.

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predecessors’, or that, except on one occasion, Dufferin ever presided at anything but a formal meeting. If he had, he would scarcely have written Macdonald, as he did on February 11, 1873, saying that he did not want “his right of presiding over his Council to lapse altogether,” 5 Blake, in 1876, said that “ the practice for a very great number of years has been that the busi­ ness of Council is done in the absence of the Governor. On very exceptional occasions the Governor may preside, but these would occur only at intervals of years, and would probably be for the purpose of taking a formal decision on some extraordinary occa­ sion, and not for deliberation.”6 This statement, as we shall see, raises some problems and may not be entirely accurate (after all, Blake was, as Macdonald said, “ the dissolving view of the Mack­ enzie Administration,” and much may have happened, even in that Government, when he was not in office). But its substantial correctness is attested by Dufferin himself. It is true that he said: “ But within the walls of the Privy Council I have as much right to contend for my opinion as any of my Ministers” 7 But he also specifically complained that, after he had persuaded Mackenzie of something, “everything is thrown into confusion by his being compelled to adopt a change of front by his colleagues whom it is o f course very difficult fo r me to reach, and upon whom it ought not to be necessary that I should have to act.” s His correspond-' ence with Carnarvon also shows that he occasionally sent for Mackenzie and Blake together, or even Mackenzie, Blake, and Cartwright together, to discuss crucial matters, which he would scarcely have had to do had he been accustomed to sit in Council during the discussion of business. The probability is that, for the whole of the first fifteen years after Confederation, the practice in the matter of the Governor’s presence was substantially that set forth in Head’s memorandum of 1857. At that time, Head says, the Executive Council discussed “/'/? committee, the Governor not being present, the various mea­ sures or questions with which they have to deal___ When the measures or questions have been discussed in committee of Coun­ cil, the result of such discussion is embodied in a memorandum. Such memoranda when copied out fair by the clerk, filed and tied 5Sir Joseph Pope, ed.. Correspondence of Sir John Macdonald (Oxford, 1921), 203. Italics mine. 6 Letter to Carnarvon, undated, but marked "received about July I, 1876”; Sessional Papers (Canada), 1877, no. 13, 8. 7C. W. deKiewiet and F. H. Underhill, eds,. Dufferin-Carnarvon Correspondence. 1874-1878 (Toronto, 1955), 319. 8Ibid., 244; italics mine.

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together are countersigned by the President of the Committees of Council. They are in this shape laid before the Governor. My practice usually is when there is no press of business out of the Parliamentary Session to approve the Minutes and affix my ini­ tials to them in the Council Room at the table with the members (four being a quorum). During the session however and if there is nothing in such minutes which seems doubtful, or if they appear mere matters of course, I often initial them without going into Council. On the other hand, if any doubt of the propriety of any one minute suggests itself to my mind, either from the memoran­ dum itself, or from the papers on which it is founded and which are placed in the box with it, then I go into Council and discuss the matter fully, or sometimes I send it back for reconsideration by speaking to some one of the members of the Council on the subject.. . . The memoranda which when approved by me become minutes of Council are laid before me with a printed heading to the effect that each is submitted as the recommendation of the Executive Council.” 9 Professor Mallory has established not only that for many years after Confederation there were formal meetings of the Privy Council, with the Governor present, for certain purposes,10 butalso that there seems to have been “only one clear case . . . in which it is certain that the Governor-General met with his Coun­ cil for the discussion of important business” : August 15, 1873, when he laid before the Council “ the terms on which he would accede to a prorogation of Parliament” in the Pacific Scandal crisis.11 There is, however, evidence that, in the first fifteen years after Confederation, formal meetings of the Privy Council, with the Governor General present, were much more frequent than Professor Mallory suggests, and that he is over-cautious in saying that one of the purposes for which they were held was “ possibly, the formal approval of Orders or Minutes of Council.” 12 This paper might be described as an elaborate footnote to his articles. It covers only the period to May 19, 1882, because that is the date on which the Privy Council Minute Book ceased to be kept, and, to quote Professor Mallory again, “the last continuous source of clear evidence on these matters came to an end.” 13 But 9 D. G. G. Kerr, with the assistance of J. A. Gibson, Sir Edmund Head. A Scholarly Governor (Toronto, 1954), 175-6; italics in the original. 10“The Governor General ‘in' Council,” 3 4. 11Ibid., 5; “Cabinets and Councils in Canada,” 233. 12“Cabinets and Councils in Canada," 233. 13“The Governor General ‘in’ Council,” 5.

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I have supplemented what the M inute Book tells by examining the original Orders and Minutes of Council in the Public Archives. The first thing that can be said with some assurance is that the whole Privy Council for Canada seems never to have met, even during the few months, before Galt's resignation on Novem­ ber 7, 1867, when the membership of the Cabinet and the Privy Council was identical. At the first meeting, July 1, 1867, Kenny was absent; and at all the later meetings till November 7, there was at least one absentee. After Galt left, of course. Cabinet and Privy Council ceased to be identical; and during the period under consideration, there is, in sharp contrast to Britain, no case of a formal meeting at which any Privy Councillor not a member of the Cabinet was present. The second thing that emerges pretty clearly is that (if the Minute Book and Orders are to be trusted) the formal meetings were astonishingly frequent. The Minute Book and records of formal Orders show at least 1,807, and perhaps as many as 1,812, from July 1, 1867 to May 19, 1882. There were thirty-six before the end of 1867; a hundred and twenty in 1868; a hundred and twelve in 1869; a hundred and nineteen in 1870; a hundred and twenty-four in 1871; a hundred and seven in 1872; a hundred and fifty-four in 1873; a hundred and sixteen in 1874; a hundred and six in 1875; a hundred and one in 1876; ninety-seven in 1877; a hundred and eleven or a hundred and twelve in 1878; a hundred and fifty-six to a hundred and sixty in 1879; a hundred and forty-four in 1880; a hundred and thirty-four in 1881; and seventy in the rather less than five months of 1882 before the Minute Book stopped. The Minute Book shows two meetings on Novem­ ber 12, 1868, July 14, 1873, July 8, 1874, February 7, 1878, January 20, May 20 and December 22, 1879, April 16, October 29, and December 9, 1880 and three on October 19, 1878. This last makes one wonder whether all the meetings really took place. Professor Mallory notes that the Minute Book records a meeting in Quebec on June 21, 1870, and another in Ottawa the next day, and observes that it is “ highly improbable” that the Governor General abruptly returned from his usual summer resi­ dence so early; that, on the contrary, it seems certain the he was not at the Ottawa meeting, and the Minute recorded his presence merely to conform with the Instructions, the Report which he was supposed to have approved being then sent to him for his signa­ ture.14 Similarly with the two meetings of July 8, 1874; one at 14Ibid.. 4.

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Tadoussac, the other at Ottawa. This is the more probable because Sir John A. Macdonald, when proposing on February 17, 1873, a distinction between Orders-in-Council and Minutes of Council said that for adoption of the former “the GovernorGeneral should be present, or supposed to be present."'5 (Mac­ donald, incidentally, speaks of modifying the Orders and intro­ ducing a new practice. He must have been thinking of Head’s and no doubt his successors’ - practice of taking doubtful draft Minutes into the full Cabinet; for right from July 1, 1867, there were formal Orders, beginning: “ Present: His Excellency The Governor General, The Honourable [a list of names] In Coun­ cil,” and the much more numerous Minutes, beginning: “ On an application from,” or “The Committee of the Privy Council have had before them.” ) One Privy Council official, a few years ago, went so far as to tell me that all the Minutes or other documents purporting to record the Governor General’s presence were fakes of this kind, and that he never was really there at all. But this is surely trying us rather too high. Even the most inventive or complaisant clerk would scarcely put down, over and over again, that “ His Excel­ lency administered” this or that oath to this or that minister, lieutenant-governor, or judge; or that, after certain proceedings, “ His Excellency then withdrew” or “ retired,” if in fact His Excellency had never been there at all. We have corroborative evidence for at least one meeting. Macdonald, on February 21, 1873, wrote to Dufferin: “ If Your Excellency could conveniently come to Council Monday afternoon, Mr. Tilley could be then sworn in to his new office” ;16 the Minute Book duly records the* meeting, February 24, at which Tilley was sworn Minister of Finance and Tupper Minister of Customs; and there is nothing in Macdonald’s letter to suggest that this was anything but the normal practice. Besides, there were the occasions when the public was admit­ ted to meetings of the “ Privy” Council, with the Governor Gen­ eral present, for certain ceremonies, notably at the very first meeting, July I, 1867; the swearing in of Administrators (June 22, 1872, May 15, 1875, October 19, 1878, and November 11, 1881); the swearing in of a new Governor General (June 25, 1872); and the swearing in of judges of the Quebec Court of Queen’s Bench and Superior Courts (February 2, 1869). Nor is it easy to believe that the Cabinet, or members of it, would meet, 15 Pope, Correspondence of Sir John Macdonald, 207. 16Ibid., 208.

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by themselves, without the Governor General, at Rideau Hall (July 4, 1867, October 25, 1871, and February 13, 1879-though in this last case only the Governor General is recorded as present, no Privy Councillors); at Spencer Wood. Quebec (November 12, 1868); in the Executive Council Chamber, Quebec (November 14, 1868, June 25, 1872); at the Court House, Montreal (February 2, 1869, though here again there is no list of Privy Councillors pre­ sent); at '‘ Montreal” (July 29, 1869 and “ July 1873” -no list, again); “at the residence of the Hon. Hector Louis Langevin, St. Lewis [s/c] Street, at the City of Quebec” (June 21, 1870); at the St. Louis Hotel, Quebec (June 22. 1872); at “the Town of Prescott” (July 2, 1872); in St. Lawrence Hall, Montreal (January 30, 1873); at the Citadel, Quebec (June 14, 1873, October 26, 1878, July 26, 1879, and May 20,21 and 24, 1881); at Tadoussac (July 8, 1874); at Government House, Halifax (October 12, 1874); at “ Halifax” (Jan­ uary 21, 1878; no list); at the Windsor Hotel, Montreal (October 17, 1878); in the Legislative Council Chamber, Quebec (October 19, 1878; technically, there seem to have been three meetings, one pub­ lic); and in the Legislative Assembly Chamber, Halifax (November 25, 1878; no list). Furthermore, there was at least one occasion, long after 1882, when the Governor General was certainly present at a formal meeting of the Privy Council: March 21, 1895, for the passing of the famous Remedial Order in the Manitoba School case. Not only does the Order itself list the Governor General and twelve Privy Councillors as present,17 but Lady Aberdeen’s Canadian Journal says18 that her husband left Rideau Hall that morning to go to “ a special meeting of the Privy Council to sign the remedial order,” and, later,19 that the Order was signed “ in­ presence of the whole Council” (meaning, presumably, the whole Cabinet, though in fact they were not all present). So it seems at least probable that a considerable proportion of the 1,800-odd formal meetings did actually take place. It seems clear, also, that a great many of the meetings, if they really were held, gave formal approval to Minutes or “ Reports” from the Cabinet (the Minute Book is full of entries “ Report approved,” “ two Reports approved” ), or adopted formal Orders-in-Council. 1 have found, from 1867 to May 19, 1882, no 17 P.C. 834: Sessional Papers (Canada), 1895, no. 20. 26. 18John T. Saywell, ed.. The Canadian Journal of Lady Aberdeen, 1893-1898 (Toronto. I960). 211. 19Ibid., 233. The absentees were Smith. Ferguson, and Patterson: Ses­ sional Papers (Canada). 1895. no. 20. 26.

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less than 1,155 of these latter: twenty in 1867, eighty-two in 1868, fifty-eight in 1869, eighty-four in 1870, sixty-five in 1871, eighty-three in 1872, seventy-two in 1873, a hundred and eleven in 1874, eighty in 1875, eighty-two in 1876, seventy-one in 1877, fifty-six in 1878, a hundred and nineteen in 1879, sixty-four in 1880, eighty in 1881, and twenty-eight in the first five months of 1882. Several Orders, of course, were often passed at a single meeting; the number of meetings at which formal Orders were adopted is 688: thirteen in 1867, thirty-seven in 1868, forty in 1869, fifty-five in 1870, forty-one in 1871, forty-five in 1872, fifty-one in 1873, fifty-six in 1874, fifty in 1875, forty in 1876, forty-five in 1877, thirty-eight in 1878, sixty-three in 1879, forty-six in 1880, fifty-two in 1881, and sixteen in the first five months of 1882. It is not easy to see why some things were done by Order and some by Minute. Certainly it was not a matter of intrinsic im por­ tance; for we find such relatively minor matters as rules and regulations for Cow Bay Breakwater, or damage to targets, or changing the name of the port of North Pembina to Emerson, or the tolls on the Huntingdon and St. Francis Road, or the prohi­ bition of the import of second-hand ropes, treated with the same pomp and circumstance as assents to reserved provincial bills, disallowances of provincial Acts, the summoning of Parliament, or the admission of foreign vessels to the coasting trade. Nor can it have been statutory requirements; for, while assents to reserved provincial bills and the summoning of Parliament, were usually done by formal Order, this was not invariable. For example, there is a mere Minute for the assent given September 18, 1872 (P.C. 872); and though the summoning of Parliament was done by Order in 1867, 1869 (twice), 1870, 1871, 1872, 1873, 1874, and 1875, and in 1879, 1880 and 1881, there is, as far as I can discover, no Order for this purpose in 1876, 1877, or 1878. The most numerous group of Orders is that releasing from mortgage, bond, or lien lands pledged as security for the perform­ ance of some office or contract. There are 244 of these. Next comes the group dealing with death sentences (54), commutations of death sentences (81), other commutations (2), reprieves from death (2), other reprieves (5), admissions to bail (alleged Fenians, (12), and pardons, remissions of imprisonment, respites, discharges from custody (one each). The death sentences, of course, were in a special category. Macdonald, in his letter of February 17, 1873, said: “The carrying out of capital sentences by Order-in-Council is an excep­ tional course, depending on the Royal instructions. Formerly, Governors-General always decided [?] in full Council. This should. I

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think, still be done, where there is a difference of opinion in Coun­ cil.” 20 So at least some of the meetings purporting to have passedOrders to carry out the death sentence must have taken place. There is also a large group of Orders dealing with Customs ports and outports: port of entry (12), ports of warehousing (15), ports of entry and warehousing (15), ports for export in bond (9), outports (73), ports for leaf tobacco (13), and miscella­ neous (4). There are 71 Orders dealing with fishery regulations, 12 with fish reserves, and one with fishery inspection districts. There were 40 Orders dealing with pilotage districts, and three with pilot rates and dues. There were 33 dealing with wreck and salvage districts; 15 with ports of registration and shipping, and 17 with shipping offices. There were 10 dealing with canal regula­ tions, 17 with canal tolls, one with lock tolls, one with lock regulations and tolls. There were five dealing with railway regula­ tions, three with railway regulations and rates, and 15 with rail­ way rates. There were 14 dealing with slidage tolls or booms. There were six dealing with harbour tolls, six with tolls on piers, one with sufferance on wharves and warehouses. Three Orders transferred harbours to municipalities, and one a canal. There were 18 Orders dealing with inland revenue divisions or districts, and eight with divisions for inspection of staple articles of Cana­ dian produce (under two Acts). One Order set out customs regu­ lations, two drawback regulations; six specified precise drawbacks; 14 fixed customs duties; four established valuations for duty pur­ poses. No less than 18 Orders dealt with cattle disease, usually with imports. Three dealt with Dominion lands, seven with Indi­ ans and their property. Eleven Orders had to do with the safety of steamers, or with investigations into the lack of it. Well over a dozen dealt with goods in bond, and another dozen with weights and measures. Twelve Orders gave assent to reserved provincial bills; 28 disallowed provincial Acts; 17 summoned Parliament (or can­ celled a summons); 30 brought the Canada Temperance Act into effect (or cancelled Orders doing so) in particular localities. Eight admitted vessels of certain foreign countries to the coasting trade. Six transferred property to various provinces. One provided for a common gaol at Keewatin, and a Keeper. One, in 1879, appointed commissioners to swear in m . p .’ s (apparently, after every other election, this was done without formal Order). One enacted regulations for the Royal Northwest Mounted Police; one amended Royal Military College regulations which had appar­ 20 Pope. ed.. Correspondence ofSir John Macdonald, 207.

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ently been enacted originally without formal Order. Two appointed lieutenant-governors (all the rest, apparently, were appointed without formal Order); one appointed Mr. Baby Assistant Judge of the Quebec Court of Queen’s Bench for six months; one appointed Mr. Aylesworth Superintendent of Survey and Admeasurement of Shipping at Napanee; one appointed Mr. Hutchinson to a pilotage authority; one appointed Mr. Lauder Superintendent of Survey and Admeasurement of Shipping at Port Hope; one appointed “ Commissioners to adjust and settle the accounts and differences between 'the . . . Provinces” [of Canada and New Brunswick] under the Imperial Act 24-25 Viet., c. 63. Why these particular appointments were singled out for formal Orders when so many others were not is not clear. One Order provided for a Great Seal for Canada, one for a Great Seal for Manitoba, and one for a Great Seal for the Northwest Territories. An Order of 1870 authorized the Lieutenant-Governor of the Northwest Territories to appoint recorders and other officers; three Orders of 1873 provided for the adminis­ tration of justice in the Territories, the Northwest Territories Council, and the Oath of Secrecy for the Territorial Council’s members; an Order of 1877 dealt with the oaths and powers of the Territorial Council. One Order extended the customs laws, and two others the inland revenue laws, to Manitoba; two dealt with the form of land grants in Manitoba; two with licences to manufacture spirits in Manitoba. One extended the inland reve­ nue laws to British Columbia; one provided for telegraph rates, one for inspection of sugar, one for the transport of pack animals in bond, and one with licences to manufacture spirits, in British Columbia. One Order dealt with licences to manufacture spirits in both Manitoba and British Columbia. One Order referred the case of the New Brunswick Peniten­ tiary to the Supreme Court of Canada; another provided for the letters patent of the c p r ; another provided for new forms of oaths at customs houses, and still another rescinded this. Then there were Orders providing for the limits of the port of Musquodoboit, and the harbour master’s salary; for the master and rules of Gaspe Harbour; for the extension of the Port Wardens Act to all Prince Edward Island ports; for joint stock companies’ fees; for exempting the Nashwaak River from certain acts on sawdust; for permitting tobacco manufacturers to use certain kegs; for suspending this last; for fees and travelling expenses of surveyors of shipping; for further powers for Mr. Clark Gamble in connec­ tion with the Trustees of the Bank of Upper Canada; for manag­ ing directors of La Caisse d’ Economie de Notre-Dame de

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Quebec; for an agreement between the Union Bank of Lower Canada and the Quebec Provident and Savings Bank. It is, all in all, an extraordinarily miscellaneous collection, and often looks haphazard. Only a thorough study of the Minutes could reveal any pattern of consistency in handling certain matters by formal Orders, or establish that there was no such pattern. This I have not attempted. One minor point of some contemporary interest emerges from even a rather hasty inspection of the Orders and Minutes: that there was no formal Order in French during this period, and apparently only one Minute: P.C. 756 of May 19, 1881, provid­ ing for a “gardien des glissoires et barrages” on a river; and even this is marked “Approved,” not “ Approuve.” One final question calls for some attention: the number of Privy Councillors present at the formal meetings. Down to 1878, the Royal Instructions provided that at least four Privy Council­ lors must be present;-1 afterwards, this was dropped, and there does not seem to have been even an informal rule, for meetings either of the Privy Council or the Cabinet till Tupper’s Minute of May 1, 1896.22 In fact, even before 1878, the legal requirement of four members seems sometimes to have been treated rather lightheartedly. At the meeting of June 22, 1872, at the St. Louis Hotel, Quebec, when Doyle was sworn in as administrator, only three Privy Councillors (Macdonald, Langevin, and Hincks) were pre­ sent; none the less, “The Public having withdrawn,” His Excel­ lency gave the Great Seal to Sir John A. Macdonald (in the absence of the Secretary of State), and presented the draft of the Proclamation of his assuming the Administration, which was ordered to be engrossed and gazetted. At the meeting of July 8, 1874, at Tadoussac, only two Privy Councillors (Letellier de St-Just and Fournier) were present for the swearing in of Fournier as Minister of Justice and the swear­ ing in of Geoffrion as a Privy Councillor and Minister of Inland Revenue. Even when Geoffrion had been sworn, there were still only three Privy Councillors present; but they proceeded to approve a Report of the Committee of Council. At the meeting of July 2, 1878, which approved two Reports from the Cabinet, only Smith, Burpee, and Scott were present. :i Sessional Papers (Canada), 1867-68, no. 22, 4. The 1878 Instructions are in Sessional Papers (Canada), 1879, no. 14, 3-5. ” See text in A. D. P. Heeney, "Cabinet Government in Canada: Some Recent Developments in the Machinery of the Central Executive," this Journal, x i i . no. 3 (Aug. 1946), 298-9.

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At the meeting of October 19, 1878, in the Legislative Coun­ cil Chamber, in Quebec, for the swearing in of the administrator, only one Privy Councillor (Macdonald) was present. At the next meeting, on the same day, Macdonald alone was present for the swearing in of Masson as a Privy Councillor and the appointment of Langevin as Postmaster-General and Masson as Minister of Militia and Defence; only Macdonald is recorded as present at the beginning, though of course Langevin, who was admitted at once, was also already a Privy Councillor. With Masson’s admis­ sion, there were three present. At the third meeting on that day, Macdonald and Langevin are recorded as present for the swear­ ing in of J. C. Pope and Bowell as Privy Councillors and of Aikins as Secretary of State, Pope as Minister of Marine and Fisheries, and Bowell as Minister of Customs. For the handing of the Great Seal to Aikins however, there were, of course, five Privy Councillors present. A week later, there was another meeting, at the Citadel, in Quebec, when Langevin alone was present for the swearing in of Baby as a Privy Councillor and Minister of Inland Revenue. On November 7, 1878, a meeting with only two Privy Coun­ cillors present adopted a formal Order (P.C. 946) commuting a death sentence; this seems to be the only case in which a meeting with less than the legal quorum ventured so far. That there really were only two members present seems to be confirmed by the fact that three Minutes of the same day (P.C.’s 944, 945, and 947) show, on the covering “face” of the bundle of Orders and Min­ utes, only two present. All this would be more conclusive if one could be sure that the Minute Book was always exact, or, for that matter, the list of Privy Councillors in the formal Order. But the Minute Book has a good many blanks where it ought to have lists of members present; the Minute Book, the “ faces,” and the list in the formal Orders, do not always agree; and, most extraordinary of all, the Minute Book asserts that Blake, who, of course had been sworn of the Privy Council November 7, 1873, was re-sworn of the Privy Council May 19, 1875! Some of the discrepancies could, no doubt, be cleared up by reference to the Stale Book or the Oath Book; some might still remain. A problem which may turn out to be quite insoluble, is, how long formal meetings of the Privy Council, with the Governor present, actually continued after 1882. The formal Orders, pur­ porting to have been passed with the Governor present, certainly continued: I have a long, though incomplete, list of them down to January 2, 1900. But Lady Aberdeen’s notes on the Remedial Order of 1895 rather suggest that by that time the formal meeting

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had become highly exceptional. A good deal of work remains to be done, even on the 1867-1882 period, before we can be at all pre­ cise. Official despatches, personal papers, even newspapers, might all shed some further light, for even those that have been thoroughly worked over for other purposes have probably usually not been looked at with this specific point in mind. The conclusion of the whole matter, so far, seems to be that there were undoubtedly, down to May 19, 1882, a good many, per­ haps a great many, formal meetings of the Queen’s Privy Council for Canada, with the Governor-General present, but that it is very hard to say just how many; that meetings at which the Governor actually took anything but a formal part must have been exceedingly rare; and that glib generalizations with any claim to precision or finality would be very risky.

2. P a r lia m e n t 6. P arlia m en t’s Power to Advise

No one questions the power of Parliament to approve or con­ demn the actions of the Queen’s ministers. But has it or has it not also the power to advise, to ask the Crown to take or not to take some particular action? May says that the British Parlia­ ment, at any rate, has: “ An Address to Her Majesty is the form ordinarily employed by both Houses of Parliament fo r making their desires and opinions known to the Crown." The subjects of such Addresses “ have comprised every matter o f foreign or domestic policy; . . . the administration of justice;. . . and, in short, representations upon a ll points connected with the government and welfare o f the country Edward Blake was equally clear and emphatic that the Cana­ dian Parliament also possessed this power. Replying on April 30, 1890, to Sir John Thompson’s contention that it would be uncon­ stitutional for the Government to disallow a provincial Act after announcing that it would not disallow, Blake said flatly that this was wrong, because Thompson's doctrine might thwart, annul or affect the power of Parliament to express its opinion by Address, requesting His Excellency to exercise his power to disallow.. . . The Parliament of the country has a power not merely to approve and to condemn, but it has also a more important power with reference to every political and executive act - it has a power to advise.. . . Neither the approval nor the condemnation of an accomplished act serves any purpose save that of criticism. The power of advice is the great power of Parliament, a power to be exercised with reserve, but to be maintained in efficiency; and to preserve effectively that power, it is necessary that we should deem that it has not passed beyond the domain of Parliament to advise within the twelve months, no matter what the Execu­ tive may d o ... . It is of very little use for Parliament to say to Ministers, who have decided that they think an Act ought to 1Sir Thomas Erskine May, Parliamentary Practice, 16th. ed. (Lon­ don, 1957), pp. 828-9; italics mine.

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be allowed: "Gentlemen, we think you are wrong; we con­ demn you; we censure you.” Are we to be told that if the twelve months still remain unexpired, we may condemn the Administration, forsooth, but the Act must remain operative; that we cannot make our advice effective; that we cannot take a step which will cause that to be done which the great council of the country decides in the interest of the country ought to be done? The power of Parliament itself would be thwarted by the proposition of the hon. Minister of Justice.2 Nearly seventy years later, on March 16, 1960, another Minister of Justice, Hon. E. D. Fulton, in effect advanced a proposition even more extreme than Sir John Thompson’s and was upheld by the Speaker. Mr. Arnold Peters had asked leave to move the adjournment of the House for the purpose of discussing a matter of urgent public importance, namely, the immediate need for the Government to protect human rights and fundamental freedoms by giving consideration to the disallowance of two Newfoundland Acts of 1959 the period for whose disallowance he believed expired that day.3 Mr. Fulton contended that the request was out of order, under Beauchesne's citation 161.4 Mr. Speaker Michener agreed; the power of disallowance, he said, is a power which has been entrusted to the executive and not to the legislature. For that reason, it seems to be clearly settled and decided in our practice, as stated by Beauchesne in citation No. 161, that until the government has acted the legislature is not competent to call on the government to take one course of action or the other. It is, of course,. . . open to this house to criticize the government if it does not disallow. Such a motion could be brought in the house, in accordance with the citation to which I am referred, criticizing the gov­ ernment tomorrow or on the next supply motion or at any time any hon. member can claim the time of the house for presenting such a motion, so what is in question here is not criticism of the government for the action it has taken; it is rather a question of seeking to advise the government before it has acted. 1 think the authority is sufficiently clear that if today is the last day it is too early to bring the motion, and if the time for disallowance has expired the matter has no 2Canada, House of Commons, Debates, 1890, pp. 4211-12. Hereafter cited as Debates. 3Ibid., 1960. p. 2120. AArthur Beauchesne, Parliamentary Rules and Forms, 4th ed. (Toronto. 1958), 135-6.

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urgency because any action of the house would not alter the situation.. . . The house is in no position to insist on a deci­ sion being taken by the government.5 The essential point in this ruling is that it restricts the House to approving or condemning a Government’s action (or inaction) after the event; it wholly denies any power to advise the Govern­ ment, one way or the other, until the advice has become wholly ineffective because action is no longer possible. If, during the twelve months within which disallowance can take place, the Government sees fit to disallow, the House may approve or condemn; and either way, the disallowance will be absolutely unaffected. But if the Government just keeps mum for the whole twelve months, the House is gagged and bound: on the very last day, it is still “ too early to bring” even the most abstract motion on the subject, a motion expressing the opinion that the House should “discuss” the need for the Government to “consider" disallowance. During the twelve months, the smallest and most obscure municipal council, the humblest private citizen, may peti­ tion the Govemor-General-in-Council to disallow, but the Com­ mons of Canada, the High Court of Parliament, cannot. Only when the twelve months are up is the “legislature competent to call on the government” to disallow; and then the Government no longer has the power! If Beauchesne was right, then the Minister was right in his contention and the Speaker in his ruling. They naturally accepted whatever he said. But was Beauchesne right? Does his citation really state something “clearly settled and decided in our prac­ tice,” or is it just something “all carved out of the carver’s brain”? His first three sentences are: “ Disallowance of provincial laws is not one of the functions of the Dominion Parliament. The fact that this subject is dealt with in Section 90. of the British North America Act and not in Section 91 shows clearly that the legisla­ tor did not intend to include it with the residue of powers vested in the Dominion Parliament. The only authority that can disallow provincial laws is the Governor-in-Council.” This is undoubtedly correct: the power of disallowance is vested in the Executive, not the Legislature. Who ever contended anything else, or could rationally contend anything else? The text of the British North America Act is clear. But this unassailable fact is perfectly irrele­ vant: Parliament can entertain, and has even passed, motions on 5Debates, I960, p. 2121: italics mine.

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all sorts of questions on which it cannot legislate, and can tender advice on such questions. Between 1869 and 1903, the House entertained no less than seven motions on the Irish question (Disestablishment, Home Rule, and Coercion) and passed four of them.6 By no stretch ofthe imagination can any one of the seven be considered to be within the legislative authority of the Parliament of Canada. Yet no one so much as questioned that they were in order. Beauchesne, or his defenders, might reply that his citation was intended to deal only with the rights of the House in relation to powers vested in the Executive. But the defence will not hold. The power of pardon also is, indubitably, vested in the Executive, not the Legislature. Yet the House, in 1875, 1877, and 1886 entertained motions tendering advice to the Government on this subject.7 No one raised the question of order. The conferring oftitles is also vested in the Executive, not the Legislature. But in 1918 and 1919, the House not only entertained but passed motions tendering advice on this subject.8 Again, no one sug-' gested such motions were out of order. The power of dismissing lieutenant-governors also is vested in the Executive, not the Legislature. But Sir John A. Macdonald, in 1878, insisted that the House of Commons could entertain a motion for the “recall’ of a lieutenant-governor;9 and in 1879," Mr. Mousseau, moving his motion that Mr. Letellier’s conduct had been “ unwise and subversive of the position accorded to the advisers of the Crown since the concession o f . . . Responsible Government,” said that it “ invo!ve[d] the censuring, and proba­ bly the dismissal, in consequence of such censure, o f . . . a Lieu­ tenant-Governor” 10 (as indeed the event proved it did). Mr.‘ MacDougall, a la Beauchesne, argued that Mousseau’s motion was out of order, since “the dismissal of a Governor was not one of its [Parliament’s] enumerated powers”;" but no one paid any1 h Commons Journals , 1869. pp. 163-4; ibid., 1882, pp. 307-09; ibid.,' r886, pp. 231-8; ibid., 1887, pp. 34-39, 57-62; ibid., 1889, p. 347; ibid., 1892, p. 351; ibid., 1903. pp. 87-9. Cited hereafter as Journals. 1Ibid., 1875, pp. 69-70, 74-7; ibid., 1877, pp. 254-5; ibid., 1886, p. 265, and Debates, 1886, pp. 1258-60. Note also an interesting article in The Times, Feb. 16. 1961, p. 13, by Mr. Edward F. Iwi. 8 Journals, 1918. pp. 128-9, 311-13; Debates. 1918, pp. 468-518, 2342-74; Journals , 1919, pp. 171-2, 252, 286, 293-5; Debates, 1919.

pp. 1441-81, 2696-748. 9Debates, 1878, p. 1879. 10 Ibid., 1879, p. 251. " Ibid., p. 289.

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attention. Mousseau’s motion carried, and Lettellier was dis­ missed. The first part of Beauchesne’s fourth sentence is also correct: "As the Governor-in-Council is responsible to Parliament, the House of Commons may criticize the action taken by the Cabinet in cases of proposed disallowances.” In other words, after the Government has disallowed, or after the period for disallowance has expired without the Government acting, the House can enter­ tain a motion of censure or want of confidence on the subject. But this, though indubitably sound, provides no ground whatever for saying that the House cannot also tender advice during the period of disallowance. In his second paragraph, Beauchesne goes on: Since the only power enjoyed by our House of Commons in matters of disallowance is to criticize the action of the Dominion Government after it has either disallowed or refused to disallow a provincial Act, it follows that the House must await Government action before taking the matter up. If the House considered the Act before the expiration of the one-year period during which Council must give its decision, it would exceed its own jurisdiction. The first of these sentences simply begs the question, to say the least. Indeed, it asserts as fact what is not fact at all, but, as will appear, “ unfact,” to use George Orwell’s apt term. The second sentence is based on the true, but irrelevant, first three sentences of Beauchesne’s first paragraph, so is equally beside the point. Beauchesne's third paragraph says that after the event the House may discuss the Government’s action, and that the usual way to do it is by moving for papers. This is, of course, true, but has no bearing on the question of the right to tender advice before the event. Beauchesne’s fourth paragraph says: The adoption of a resolution calling upon the Government to disallow a provincial Act would be an encroachment by the House of Commons on the powers of the Legislative Assem­ blies as set forth in Section 92 of the British North America Act. Such a resolution was moved in the Canadian House of Commons on the 15th. [s/V] of May, 1873, but it was severely criticized and never accepted as a precedent. This is all nonsense, as will appear. Beauchesne's final paragraph consists of two quotations. The first from Lefroy, reads: “ Moreover the Dominion House of

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Commons cannot constitutionally interfere with the operation of provincial Acts by passing resolutions urging their disallowance by the Governor-General.” O f course it can't. Who ever sug­ gested it could? Fifty resolutions of the sort would manifestly have no legal effect whatsoever. That is not the point at issue. The Governor General can interfere with the operation of provin­ cial Acts by disallowing them within the prescribed period; and the question is, can the House of Commons constitutionally ask him to do so? That is a very different question from the one the Lefroy quotation pronounces on, and on that question the quota­ tion is perfectly silent. The second quotation is from a dispatch of June 30, 1873, from Lord Kimberley, British Colonial Secretary: “ If such a resolution were allowed to have effect, it would amount to a virtual repeal of the section of the British North America Act, 1867, which gives the exclusive right of legislating on these mat­ ters to the provincial legislatures.” If a mere resolution of the House of Commons could disallow a provincial Act, of course it would “amount,” etc. But, again, this is not the point. The point is that the British North America Act expressly gave the provin­ cial legislatures the exclusive right to legislate on certain matters subject to the power o f the Governor General to disallow provin­ cial Acts within a prescribed period; and the question at issue is, has the House of Commons the right to advise the Governor General to exercise, or not to exercise, that power? It may be argued that Lefroy and Kimberley can be con­ strued to mean that the House cannot constitutionally tender such advice. Very well; if so, that is their opinion; but it is only an opinion, and it can be overthrown by evidence that in fact the House has tendered such advice (without the propriety of its action being contested when the motion was made and passed), or that it has considered several motions proposing the tendering of such advice, without any question of their propriety being raised at all. Such evidence exists, and on an impressive scale: (1) On May 20, 1872, Mr. Costigan moved an Address to the Governor General, “praying His Excellency. . . at the earliest possible period to disallow” the New Brunswick School Act of 1871. Sir George Cartier argued that “ It was upsetting the basis of responsible Government to ask the House to advise the Gover­ nor,” but no one seems to have paid any attention. He also asserted that the Government had already advised the Governor General not to disallow, and that the year was up; but no one seems to have paid any attention to this either. On the contrary,

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Sir John A. Macdonald said that the period for disallowance had “a month to run yet.” The House proceeded to consider, and vote on, an amendment and four sub-amendments to Costigan’s motion: a singular course of action, if Beauchesne were correct. The first amendment, by Col. J. H. Gray, declared that “this House does not deem it proper to interfere with the advice that may be tendered to His Excellency the Governor General by the responsible Ministers of the Crown, respecting the New Bruns­ wick School Law.” Mr. Chauveau moved a sub-amendment, asking for an amendment to the British North America Act. This was defeated, 127-34. Mr. Colby then moved a fresh sub­ amendment, to delete most of the Gray amendment and to sub­ stitute regret that the New Brunswick Act was “ unsatisfactory to a portion of the inhabitants of that Province” and the hope “that it may be so modified during the next Session of the Legislature of New Brunswick as to remove any just grounds of discontent that now exist.” This carried, 117-42. Mr. A. A. Dorion then moved a fresh sub-amendment, to add: “that this House further regrets that. . . His Excellency the Governor General has not been advised to disallow the School Act of 1871, passed by the Legislature of New Brunswick.” This was defeated, 119-38. Mr. Mackenzie then moved a fresh sub-amendment, asking for con­ sultation with the Law Officers of the Crown in Britain in rela­ tion to section 93 (4) of the British North America Act. This was carried. The amendment as amended then carried; and the main motion as amended carried on division.12 Now if Beauchesne were correct, this whole performance, lasting four days, would have been, to say the least, superfluous. The Government would simply have taken the same course as Mr. Fulton did on March 16, 1960, and the Speaker would have ruled Costigan's motion out of order. Yet in a House which contained no less than nine Fathers of Confederation, including the Speaker, no one even tried to get such a ruling. Presumably these men13 knew something about the Constitution they had drafted. Presumably they also knew something about parliamen­ tary procedure. Yet not one of them, nor anyone else, raised the question of order. (2) On May 14, 1873, Mr. Costigan moved, in amendment to Supply, “that. . . it is the duty of the Government to advise His Excellency the Governor General to disallow the several Acts 12Journals, 1872, pp. 134, 155, 175-9; Debates, 1872, pp. 707, 710. " Macdonald, Cartier, Tupper, Tilley, Langevin, Gait, McDougall, Gray, and Cockburn.

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passed during the last Session of the New Brunswick Legislature to legalise Assessments made under the common [j/c] School Act of New Brunswick, and in amendment of the said Common School Act.” Beauchesne says categorically that this cannot be done: “A member cannot raise a debate on a provincial Act on the motion to go into Supply.” But Costigan did it, and his motion carried, 98-63.14 Beauchesne, as we have seen, felt obliged to take some notice of this, but he did it incompletely and incorrectly: “ Such a resolution was moved in the Canadian House of Commons on the 15th. [s/c] of May, 1873.” He does not say that it was an amendment to Supply, and that it carried. He tries to cover his flank by saying that it “was severely criticized” and “never accepted as a precedent.” The former statement is true: Macdon­ ald, Langevin, Tilley, Hincks, and Mitchell all attacked it.15 But none of them suggested it was not in order. If every motion that is “severely criticized" were ruled out of order, the Journals and Debates would be a lot slimmer than they are. The statement that Costigan’s motion was “ never accepted as a precedent” is simply untrue, as will appear. The House which passed this motion contained seven Fathers of Confederation, including the Speaker.16 The Government' which opposed it, and disregarded it after it was passed, con­ tained eight Fathers of Confederation.17 Yet again, as in 1872, no1 one so much as raised a point of order,18 let alone suggested thatpassage of the motion would, in Beauchesne’s words, “be an encroachment by the House of Commons on the powers of the Legislative Assemblies as set forth in Section 92 of the British North America Act.” (3) On March 26, 1889, Col. O'Brien, like Costigan in 1873, did just what Beauchesne says no member can do: moved, in amendment to Supply, for an Address to the Governor General “praying him to disallow an Act of the Province of Quebec intituled: ‘An Act respecting the Jesuits’ Estates.’ ” There was a prolonged debate, lasting till March 29. The motion was defeated, 14Journals, 1873, pp. 345, 347-8. 15 The Mail (Toronto), vol. II, no. 353, May 15, 1873, p. 4. 16 Macdonald, Cartier, Tupper, Tilley, Langevin, Mitchell, and Cockburn. 17 Macdonald, Cartier, Tupper, Tilley, Langevin, Mitchell, Chapais, and Campbell. Is Blake, in 1875, explicitly upheld the “competence” of the House to pass Costigan’s motion. Debates, 1875, p. 1005.

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188-13, but not before a series of powerful speeches by Macdon­ ald, Thompson, Laurier, Mills, and Cartwright. The Government had already refused to disallow. The issue was a first-class politi­ cal hot potato. If there had been any ground for ruling O ’ Brien’s motion out of order, one can hardly suppose that men like Macdonald and Thompson would have neglected to use so heav­ en-sent a means of getting rid of it. But from first to last, there was not one syllable uttered that even hinted at such a thing. On the contrary, Thompson, far from arguing (a la Beauchesne) that the motion was out of order, spent an immense amount of time and energy opposing it and defending the Government’s refusal to disallow.19 The entire debate provides, indeed, a complete refutation of Beauchesne’s whole position. (4) On April 5, 1897, Mr. W. W. B. Mclnnes moved an Address to the Governor General for disallowance of the British Columbia Southern Railway Aid Amendment Act of 1896. No one so much as hinted that the motion was out of order; on the contrary, it was debated at some length, and Hon. Louis Davies, for the Government, promised consideration and an early announcement of the Government’s position. Debate was adjourned and never resumed.20 Three other events are worth noting in this context. First, Blake, in 1886, gave notice of resolutions for an Address praying His Excellency not to disallow the Manitoba Central Railway Act of 1884; but before he could move his motion, the Government disallowed, so that he had no choice but to drop his motion.21 Second, in 1893, Dr. Weldon, m . p ., Dean of Law at Dal­ housie University, and a very eminent constitutional authority, raised, on the motion to go into Supply, the desirability of disallowing a Nova Scotia Act relating to the Dominion Coal Company. He did not, indeed, move an amendment; but the merits of disallowance were debated at some length, without any suggestion from anyone that the debate was out of order.22 Third, on April 13, 1908, Mr. Armand Lavergne asked the Government whether it was aware (1) that chapters 2 and 25 of the Saskatchewan Statutes of 1907 contained provisions contrary to the education clause of the Act of “ 1907” [1905] establishing 19Journals, 1889, pp. 199-201, 203, 205-07; General Index lo the Journals, II, p. 417; Debates, 1889, pp. 811-910. 20Debates, 1897, pp. 493-6, 545. 21 Ibid., 1886, p. 383. 22Ibid., 1893, pp. 1618-69.

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that province; (2) whether it was aware the period for disallow­ ance would end on April 22, and (3) whether it intended to disallow. The Minister of Justice answered: “ No. Yes. No.” On April 21, Mr. Lavergne moved adjournment “ in order that the House [might] consider” the two Saskatchewan Acts of 1907 and the Minister’s statement of April 13. The matter was debated briefly, and the motion negatived.23 It may, perhaps, be argued that the latest of the precedents for a motion actually requesting disallowance is now sixty-six years old. The relevance of such a contention is dubious, at best; but it is worth noting that a very much more recent motion and debate show plainly that as recently as 1916 the House considered itself fully entitled to debate such questions, and to tender advice on this very matter of disallowance. On May 10, 1916, Mr. Ernest Lapointe moved an amend­ ment to Supply “respectfully suggesting]” to the Ontario Legisla­ ture certain action on Regulation 17 of the Department of Educa­ tion. Mr. Knowles (Moose Jaw) raised a point of order, on the ground that “ the subject-matter was not within the jurisdiction of the House.” Sir Wilfrid Laurier drew the Speaker’s attention to the series of motions on the Irish Question, and the Speaker ruled the motion in order: “ The present amendment is one asking an expression of opinion on the part of the House upon a matter of general public interest and need not be relevant, nor upon a subject within the legislative powers o f this House." Mr. Northrup appealed from this ruling, which was upheld by the House.24 Sir Robert Borden observed that Mr. Lapointe “would have been more within his constitutional rights if he had come forward with a motion for disallowance of an Ontario Act which had been under consideration earlier, “ because that question was con­ stitutionally before the Government of Canada and had to be dealt with; and for the reason that it was before the Government of Canada, the Parliament of Canada would have had a much better right to discuss the subject fo r the guidance and informa­ tion o f the Government." He added, later: “ I infer. . . that he (Mr. Lapointe) intends, at the proper time, to make a motion asking the Government to disallow " a Manitoba Act to which also Lapointe had objected.25 As Borden indicated, and as the 23Ibid., 1907-8, pp. 6644, 6854-70. 24Journals, 1916, pp. 353-5: italics mine; Debates, 1916, pp. 3618-21, 3677-733, 3734-826. 25Debates, 1916, pp. 3692, 3694-5; italics mine.

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1873 case shows, the Government is not bound to take the advice; but the House has an undoubted right to tender it. Beauchesne's pontifical pronouncements on this subject are, on their face, an affront to common sense, and subversive of an ancient and fundamental right of Parliament. It now appears that they are also without support in law or precedent, and are indeed flatly contrary to precedent. They may perhaps best be summed up, charitably, as “but words and breath, and of no force to oblige a man at all,” let alone guide a minister or bind a Speaker. It is unfortunate, therefore, that during the same session of 1960, Mr. Speaker Michener used this worthless citation 161 to rule out of order not merely a motion suggesting disallowance but also all questions on the subject, except the bare inquiry “whether [the government] had or had not disallowed.” He said it was “ irregular,” within the period during which disallowance could take place, even to ask whether disallowance was “ under consid­ eration.” This was “a settled rule of the House.”26 If so, it got “settled” double-quick; for Mr. Speaker Miche­ ner himself had allowed questions of the kind he now prohibited on no less than eight occasions in the previous year, and the Prime Minister (five times) and the Minister of Justice (three times) had replied, without raising any question of order.27 For' refusing the questions in 1960, the Speaker had no precedent; for allowing them in 1959, he had at least fifteen precedents, stretch­ ing from 1882 to 1945: questions asked by such distinguished parliamentarians as Edward Blake, R. R. Bennett, M. J. Coldwell, and J. G. Diefenbaker, and answered by such experienced ministers as Sir Charles Tupper, Sir John Thompson, Sir Allen Aylesworth, Sir Lomer Gouin, R. B. Bennett, Ernest Lapointe, and Louis St. Laurent.28 There is reason to believe that Mr. Michener, before he left office, became convinced of Beauchesne’s errors, and of his own mistake in respect both to the motion and the questions of 1960, on the subject of disallowance. His successors, and all members, will, one hopes, be sceptical enough not to believe any “citation" which calls in question “ the great power of Parliament,. . . the power to advise.” 2bIbid., 21Ibid., 2*!bid., 2992; 1628; 2445.

1960, pp. 387-8, 1587-8, 2122.

1959, pp. 1677, 1779, 1832-3, 1866, 1966, 2227,4106. 5409. 1882, p. 558; 1894, pp. 4717-8; 1907-8, p. 6644; 1922, p. 1931, p. 640; 1938, pp. 243-4, 759-60, 3384; 1939, pp. 994-5, 1945 (second session), pp. 376-7, 423, 495-6, 831-2, 1074,

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7. Constitutional Annus M ira b ilis

The year 1926 was a constitutional annus mirabilis in Canadian history. It witnessed Mr. King’s unprecedented request for disso­ lution while a motion of censure was under debate; Lord Byng’s refusal; Mr. King’s repeated request to the Governor to get his orders from Downing Street; Lord Byng’s refusal of that; Mr. King’s abrupt abandonment of office, contrary to all precedent, leaving the country (in his own words) with “ no Government” ; Mr. Meighen’s temporary Government, and its defeat (after four decisive victories) by a broken pair. Scarcely less extraordinary, however, though perhaps less gen­ erally known, is another important constitutional event of the year: the Nova Scotia Government’s attempt to abolish the Legis­ lative Council, and Mr. King’s frustration of that attempt. In the Nova Scotia election of 1925, the Conservatives, after forty-three years of Opposition, had won an overwhelming vic­ tory: 40 to 3. They had also won an absolute majority of the popular vote: 270,524 to 166,418 for all other parties combined. But the new Government faced an Upper House of eighteen Liberals and one Conservative. The total membership had never been more than twenty-one. Before the session opened, the Gov­ ernment appointed a second Conservative, but it was still, obviously, hopelessly outnumbered.1 The Speech from the Throne, February 9, 1926, announced: “Conforming to the overwhelming pressure of public opinion, measures will be considered respecting the Constitution of the Houses, with a View to the ultimate abolition of the Legislative Council." A bill to abolish the Council on May 1 was introduced in the Assembly on February 25. On March 2, a resolution asserting the necessity for maintaining the Council's existence was introduced there, and on March 11 it passed. The abolition Bill passed third reading in the Assembly, March 16. On March 18, the Council, with one dissenting vote (the new Conservative member) gave it the three months' hoist, on the ground that, with prorogation next day, there was no time for proper considera­ tion.2 Even before the vote of March 11, however, this action was a foregone conclusion. The Government had tried to induce the Councillors to vote for abolition, but without success. So on 1Canadian Annual Review, 1925-26, pp. 403, 405. 2Ibid., p. 408: Assembly Journals, 1926, pp. 6, 58. 158: Council Jour­ nals, 1926. pp. 27, 38. 66. 103.

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March 5, the Premier, Mr. Rhodes, asked the LieutenantGovernor, Mr. Tory (ex-Minister in the late Liberal Govern­ ment) to appoint twenty new Legislative Councillors. The request was accompanied by a written opinion from the Deputy Attor­ ney-General that the Lieutenant-Governor had power to make the appointments. Next day, Mr. Tory telegraphed the Secretary of State, at Ottawa, that he concurred in the opinion and pro­ posed to sign the necessary Order-in-Council, March 15, unless otherwise instructed by the Governor-General. On March 8, the Under-Secretary of State wired back to delay approval. On March 15, the Dominion Government passed an Orderin-Council, P.C. 414, instructing the Lieutenant-Governor not to sign.1 The ground given was the opinion of the Dominion LawOfficers: “That at the time of Confederation the Legislature consisted in part of the Legislative Council composed of twenty-one members; that the effect of Section 88 of the British North America Act was to continue the constitution of the Legis­ lature as it existed at that time and until altered by enactment of the Provincial Legislature; that the power which was formerly vested in the Sovereign to make appointments in excess of twen­ ty-one was no longer vested in him nor was it transferred to the Lieutenant-Governor in Council, and that thereafter the power to increase the number of members of the Legislative Council was exclusively vested in the Provincial Legislature under the powers conferred by Section 92 of the British North America Act, and that the Lieutenant-Governor has no power to make any appointments in excess of the existing number, twenty-one. It is further suggested that on account of the differences of opinion on the subject, and having in view the disastrous consequences which might follow the enactment of legislation by a Legislature shorn of its Upper Chamber by an Act which might be declared to be illegal, action be deferred until the questions involved have been judicially determined.'M The whole correspondence, with a sum­ mary of P.C. 414, but not the text, was tabled in the Assembly, March 16, of course with the Lieutenant-Governor’s consent, and was printed in full in The Halifax Herald next day. There is a double irony about Mr. King’s action in this case. Six months before, he had been fulminating against the Domin­ ion Upper House. He was exacting from each new Senator a pledge to vote for any measure of Senate reform he might submit. 3 Halifax Herald. March 17. 1926. p. 5. 4 P.C. 414 of March 15, 1926: by courtesy of the Clerk of the Privy Council

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Yet here he was, intervening to save the Nova Scotia Upper House. Three months later he was fulminating against the Governor-General’s refusing the advice of his Ministers. Yet here he was, ordering the Governor of Nova Scotia to refuse the advice of his Ministers. True, there was one important difference. The Nova Scotian Government was fresh from a resounding victory at the polls. Mr. King’s Government, on June 26, 1926, was fresh from a resounding defeat at the polls and two defeats in the House of Commons. Was there any real ground for this violent interference with provincial self-government? If the Dominion Law Officers were right, yes. But, were they? They admitted that before Confedera­ tion the Crown had power to appoint as piany Legislative Coun­ cillors as it thought fit. They admitted that by section 88 of the British North America Act the Constitution of Nova Scotia was to remain as it was until altered by the Legislature. They could not deny that the Nova Scotia Act of 1872 transferred the power of appointment from the Crown itself to the LieutenantGovernor-in-Council, and did not provide for any limitation of numbers. It would seem to follow inescapably (and the Judicial Committee later so decided) that the LieutenantGovernor-in-Council had power to appoint as many Councillors as he pleased.5 The astonishing thing is that any lawyer of stand­ ing, let alone two judges of the Supreme Court of Nova Scotia, could have subscribed to any other conclusion. The even division in the Supreme Court of the province6 would certainly lend* weight to the Dominion Law Officers’ opinion, if it were not for the very positive and unqualified judgment of the Privy Council. It is hard to resist the conclusion that Mr. King’s grounds for ordering the Lieutenant-Governor to refuse the advice of his Ministers were at best doubtful. But unluckily for Mr. King’s reputation, this is not the whole story. While the telegrams were going back and forth between the Lieutenant-Governor and the Dominion Government, The H ali­ fax Chronicle got wind of what was going on, and published, March 10, a substantially accurate summary. The provincial Lib­ eral leader, Mr. Chisholm, asked the Premier whether it was true. Mr. Rhodes said the matter involved the constitutional relation­ ship between the Lieutenant-Governor and his Ministers, and was therefore highly confidential. It would be premature and unfitting to make any answer at the moment. Mr. Chisholm then wired 5 [1928] a . c . , 109-15. 6 [1926] 4 d . l . r ., 6 53 .

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Mr. King that there was a “rumour” that the provincial Govern­ ment was asking for appointments “ exceeding 21” . Mr. King obligingly wired back: “ Rumour referred to in your wire is cor­ rect. Law officers of the Crown have been asked carefully to consider and furnish Government with expression of their opin­ ion. Lieutenant-Governor has been so advised.” Mr. Chisholm read this production to the Assembly, and renewed his question. Mr. Rhodes replied: “ If the Prime Minister of Canada is so lacking in appreciation of constitutional procedure as to disclose confidential communications passing between the LieutenantGovernor and the chief law officers of the Crown at Ottawa, this does not afford any reason for my departing from the correct practice.” 7 Mr. King’s instructions to the Lieutenant-Governor may have sprung from the purest zeal for the public welfare. But the tele­ gram to Mr. Chisholm can only be described as a shocking and inexcusable breach of constitutional propriety for partisan ends; and the telegram casts a sinister shadow on the instructions. Without the telegram, it is at least possible to argue that here we have Mr. King the defender of law and order, in Nova Scotia, flanked by Law Officers and Judges, .standing in the breach against a possible flood of illegal Acts. With the telegram, we have only Mr. King the defender of the Liberal party in Nova Scotia, flanked only by Mr. Chisholm and the Chronicle, stand­ ing in the breach against the otherwise certain destruction of a party stronghold.

8. M f . K ing and Parliam entary Government

What Mr. King said and did about parliamentary government constitutes his most important and distinctive contribution to the development of our constitution, and to Canadian political ideas. This is partly because parliamentary government is the very ess­ ence of our constitution; partly because Mr. King had an enor­ mous amount to say about it, and an unrivalled opportunity to put his ideas into practice; and partly because this is the one field in which his ideas were completely original. This is notably true of his theory of the Crown. Two facts about it are unmistakable. First, he did not believe in the “ rubber stamp” theory. In the 1926 crisis, he said three times, once in the 7 H alifax Herald, March 11, 1926, pp. 1-2.

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House of Commons and twice in his opening campaign speech, that there would be circumstances in which the Crown would be justified in refusing dissolution.1 He also said, before the vote on the Robb motion, that if Mr. Meighen’s Government were defeated, and did not resign, the Governor-General should dis­ miss it, and he himself would take responsibility for the dis­ missal.2 This is about as far from the “ rubber stamp” theory as anybody could get. Second, except in its remoteness from the “rubber stamp” theory, Mr. King’s theory was startlingly differ­ ent from the received doctrine of British parliamentary govern­ ment. A single example will dispel any doubts. If there is one firmly established point in British constitutional practice, it is that a retiring Prime Minister has no right even to offer advice as to his successor, let alone have it accepted. He can advise only if asked, and even then the Crown need not follow the advice. The authorities for this are legion, and unanimous.3 Yet Mr. King' repeatedly claimed the right, even if defeated in Parliament or at the polls, to name his own successor. In the crisis of 1926, he said he had two choices: to ask for dissolution, or to “advise His Excellency to send for some other member of this house.”4 He “could not assume the responsibility of advising [His] Excellency to send for” Mr. Meighen.5 This implies that he could proffer the advice unasked, or at least that he would be certain to be asked. It implies also that resignation carried with it not only the right but the obligation to name his own successor; if he could not see anyone capable of forming an alternative Government, then he could not resign! He must ask for dissolution, and dissolution must be granted! In 1930, when the election gave the Conservatives a clear majority of 27, Mr. King solemnly announced that he had “advised His Excellency to send for Mr. Bennett.”6 In the cir­ cumstances, it is hard to believe that this advice was asked for; it was certainly ludicrously superfluous, indeed gratuitous. 1House of Commons Debates, 1926, 5189-225; A. Berriedale Keith, Speeches and Documents on the British Dominions, /918-1931 (Lon­ don, 1932), 150, 153-4. 2House of Commons Debates, 1926, 5261. 3 Hon. H. A. Bruce cited a selection in ibid., 1944, 6823-4. No one attempted to answer him. 4Ibid. 1926, 5217. 5 Letter to Lord Byng, July 3, 1926, printed in R. MacGregor Daw­ son, Constitutional Issues in Canada, 1900-1931 (London, 1933), 75. 6 Montreal Gazette, July 30, 1930.

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In the 1944 crisis, he said: “ I had to consider. . . whom I would advise His Excellency to call upon to form an alternative government. . . . The first question I would be asked by His Excellency would be: Whom do you recommend?. . . When it becomes my duty to advise the Governor-General. . . that 1 should resign . . . how will I reply to His Excellency's question: Who is to be called on to form a government? . . . No one can even say who would preside over the new government.” 7 If he couldn’t, no one could! In 1947, he said: “ If this amendment of the leader of the opposition were to carry tomorrow, whom would I advise His Excellency to call upon to form a government? I would not want to ask His Excellency to call upon the leader of the Conservative party because that hon. gentleman could not command a majority in the house.”8 If the motion had carried, it would have been clear that perhaps Mr. Bracken could “command a majority” ; but once again the implication is that resignation is impossible unless the head of the defeated Government can name a successor whom he thinks capable of providing an alternative Government in the existing Parliament. This theory is completely without warrant in British usage; and the late President Lowell rightly described any such notion as “ improper,” “absurd,” and “gro­ tesque.” 9 On Mr. King’s theory of the power of the Crown in relation to dissolution of Parliament, I have said my say elsewhere.10 I have since found important new evidence to support my conclu­ sions. Apart from that, and a few corrections of typographical and other minor errors, what I wrote stands, “ unrevised and unrepented.” To the theory and practice of the Cabinet Mr. King made several notable contributions. Two, the creation of the Cabinet secretariat, and the development of the system of regular Cabinet committees,11 were wholly admirable. The others were not. In 1931, he declared: “The cabinet is a committee of the House of Commons; any power it has is derived from the mem­ 7House o f Commons Debates, 1944, 6604, 661 I, 6613. * Ibid., 1947, 68-9. ‘'A. L. Lowell, Government of England (New York, 1920), I, 34. 10 The Royal Power of Dissolution of Parliament in the British Com­ monwealth (Toronto, 1943). 11A. D. P. Heeney, “Cabinet Government in Canada: Some Recent Developments in the Machinery of the Central Executive,” Canadian Journal of Economics and Political Science, XII, no. 3, Aug., 1946, 282-301.

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bers who sit in this house.” 12 This is not so. Mr. Ilsley, then acting Prime Minister, stated the correct doctrine in 1945: “The authority of the government is not delegated by the House of Commons; the authority of the Government is received from the crown.. . . His Majesty’s advisers are sworn in as advisers to the crown. The government is responsible to parliament. . . but that is a different thing from the doctrine that the government is a committee of the House of Commons or that it exercises author­ ity delegated by the House of Commons. That is not so.” 13 No one has ever effectively challenged what Mr. Ilsley said.14 In the 1944 crisis, Mr. King propounded two novel theories on the Cabinet. The first was that the Prime Minister is entitled to reveal what took place in Council without the consent of the Crown, but other ministers are not. Mr. King, in his broadcast on November 8, discussed freely certain proceedings in the Cabi­ net, and there is not one syllabic to show he had received the necessary permission of the Governor-General.15 But when Colo­ nel Ralston, four days later, gave his version of the same events, Mr. King gravely rebuked him for a breach of constitutional propriety.16 This is highly original. The other theory is even more so: no Minister is entitled to resign from the Cabinet “in circum­ stances where as a consequence of [his] action the whole structure is almost certain to collapse,” unless he is prepared to accept the premiership himself.17 Colonel Ralston’s comment was: “That is the strangest doctrine I have ever heard enunciated in this house. If I were not respectful of the Prime Minister, I would call it just plain nonsense.” 18 Nonsense it is. Did anyone ever hear of this theory when Stanley and Buccleuch resigned in 1846, or Russell in 1855, or Cranborne in 1867, or Chamberlain and Trevelyan in March 1886, or Churchill in December, 1886, or Chamberlain, Ritchie, Hamilton, and Devonshire in 1903, or Mr. Bevan a few months ago? If any British Prime Minister had talked in this vein, people would have thought he had taken leave of his senses.

12 House o f Commons Debates, 13 Ibid., 1945, 2020, 2022.

1931, 4282; also ibid 1934 4?

14 For a defence of Mr. Ilsley’s position against the attacks made on it in the House of Commons, see above, pp. 32-4. '■Canada's Support o f the Arm y Overseas, broadcast by Right Hon. W. L. Mackenzie King. M.P., Prime Minister of Canada, Ottawa, November 8, 1944 (Ottawa, 1944). 16 House o f Commons Debates, 1944, 6505, 6600, 6658. 17 Ibid., 6603. '* Ibid., 6663.

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In 1945, Mr. King produced another startling new theory. Mr. Alistair Stewart had observed, with unimpeachable accuracy, that “ in a cabinet, where a minority disagrees with a majority, they accept the verdict of that majority, or they are in honour bound to resign.” Mr. King interjected: “That is not true,” and, a moment later: “ Where did my hon. friend get the idea that a majority of the cabinet necessarily control?” 19 Where did Mr. King get any other idea, and what was it? O f course the Prime Minister always has the whip hand, because he can ask the Crown to dismiss dissident colleagues and replace them by others who accept his policy. He can also bring the Cabinet to an end by resigning himself; but this is only a particular case of the general principle Mr. Stewart stated. In 1948, announcing Mr. Pearson’s appointment to the Cabi­ net, Mr. King told the press the civil service should be regarded as “the steppingstone to the Ministry.” 20 This I described at the time as “the most extraordinary statement of his career,” and as asserting “a constitutional principle as novel as it is subversive of parliamentary government.” 21 I have since discovered one state­ ment even more extraordinary; otherwise I see no reason to modify my conclusion or the reasons for it. This is in no sense a criticism of Mr. Pearson. But the general principle Mr. King invented to support the appointment was untrue, vicious, and unnecessary. The Senate also came in for Mr. King’s attention. On Sep­ tember 5, 1925, he declared that Senate reform was one of the “all-important national problems . . . pressing urgently . . . for solu­ tion,” and announced that all new Senators he appointed would be pledged to vote for any scheme of Senate reform his Govern­ ment might submit.22 This proclamation reveals a total incompre­ hension of, or contempt for, the purposes for which Parliament (the Senate in particular) exists. Members of the Commons are elected, as Burke told the electors of Bristol, to exercise their judgment on public business. Candidates for our House of Com­ mons, under the present Elections Act, are expressly forbidden to give written undertakings “to follow any course of action that will 19Ibid., 1945, 3703. :o E. A. Forsey, "Parliament is Endangered by Mr. King's Principle." Saturday Night, Oct. 9, 1948. :i Ibid. ” Speech at Richmond Hill, Ont., Montreal Gazette, Sept. 7, 1925: see also speech at Cayuga, Ont., Sept. 10, Toronto Globe, Sept. 11, 1925.

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prevent [them] from exercising freedom of action in parlia­ ment.” 23 Senators are supposed to be even more bound to inde­ pendence. Yet here we have Mr. King exacting from every new Senator a pledge to vote for any measure of Senate reform he may present, a pledge to deliver his conscience, and his constitu­ tional responsibilities, on this “all-important national problem” into Mr. King’s keeping. For the powers, privileges, and traditions of the House of Commons, Mr. King always professed a most tender solicitude. When Dr. Bruce resigned his seat in 1946, Mr. King went out of his way to assert, first, that by resigning without giving his reasons in his letter to the Speaker, Dr. Bruce might be establish­ ing “a dangerous precedent” ; and second, that a member is not entitled to resign at all “ unless there are grave reasons;. . . he is . . . in duty bound to keep the mandate he has received from his constituents.” 24 When Colonel Ralston died, Mr. King again went out of his way to explain why he had not risen to pay tribute to him: "Part of my duty as leader of the house and Prime Minister is to preserve traditional practice___ I therefore had a careful search made,. . . and have been unable to find that at any time, with one exception,. . . has reference been made by the leaders of the parties to the passing of former members of governments who were not members of the parliament then in session. The only exception, so far as I have been able to ascer­ tain, has been with former prime ministers or leaders of political parties. I considered whether it would be proper for m e . . . to set a precedent which . . . might become embarrassing.. . . ” 25 Not one of these pronouncements has any foundation. A quick check of the Commons Journals and Debates shows 102 resignations before Dr. Bruce’s. In eight cases, the wording is not given. In 85 of the other 94, the member resigning gave no reason. The “dangerous precedent” had been set as early as July 15, 1868. Thirty-one cases occurred during Mr. King’s own par­ liamentary career, nine in the session of 1944-5 alone, and three more followed Dr. Bruce’s, all without a word of protest. Among those who resigned without giving any reason, let alone “grave reason,” were Mr. Ernest Lapointe in 1919, and Mr. Bennett in 1938. As for the possibly “embarrassing precedent” of the tribute to Colonel Ralston: when Mowat died in 1903, and Langevin in 23 Dominion Elections Act, 1938, as amended to June 30, 1948, sec­ tion 106. 24 House of Commons Debates, 1946, 473. 25Ibid., 1948, 4291.

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1906, Laurier and Borden both paid tributes in the House.26 Neither Mowat nor Langevin was a member at the time; neither had ever been Prime Minister or leader of a political party. These cases might have been passed over as of no particular importance if Mr. King himself had not made so much of them. They illustrate perfectly, however, his special talent for inventing fictitious precedents and disregarding real ones. Sometimes, of course, as in his claims to nominate his own successor, and his 1944 theory about ministers’ resignations, he didn’t even bother to invent a precedent; he proclaimed a new constitutional dogma ex cathedra. Much more serious are his repeated attempts to prevent or stifle discussion in the House. The classic instance is his request for dissolution while a motion of censure was under debate. But this by no means stands alone. On June 28, 1926, he announced the refusal and his conse­ quent resignation, then moved adjournment. Mr. Meighen rose to make a statement. He had uttered exactly thirty words, when Mr. King interrupted, “ I might say that this motion is not debatable.” Mr. Meighen tried again. When he had uttered three more sentences, Mr. King’s lieutenant, Mr. Cannon, rose to a point of order: “The motion is not debatable.” The Speaker was obliged to intervene to preserve the rights of the Opposition leader.27 On June 30, 1926, after a long harangue on the temporary Government, in Committee of Supply, before the Government could reply, Mr. King moved that the Chairman leave the chair, which would, of course, have prevented any further discussion.28 In the “Addled Session” of January 25, 1940, after a speech which covers six pages of Hansard, Mr. King moved adjourn­ ment. Dr. Manion rose. He was able to utter only the two words, "M r. Speaker,” when Mr. King bounced up with: “The motion is not before the house.” Only after a vehement protest from Dr. Manion did Mr. King graciously observe: “ If my hon. friend wishes to speak, I shall be quite pleased to have him do so.” 29 On March 19, 1945, Mr. King moved a motion for preced­ ence for Government business. When Mr. Hanson began to discuss it, Mr. King broke in to assert that Mr. Hanson “ knew” the motion was not debatable, and asked the Speaker “to see that the rules of this house are strictly observed.” Mr. Hanson pro­ 26Ibid., -7Ibid., 38Ibid., 29Ibid.,

1903, 1575-9; ibid., 1906, 5084-5. 1926, 5096-7. 5229. 1940 (1st session), 4-11.

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tested. Mr. King insisted he was "not in order, and no one knows it better than himself.” He then moved a second motion, and the Speaker was obliged to point out that there was already a motion before the House. On the very next page, the Speaker ruled that the original motion was debatable.30 In 1947, Mr. Bracken moved a want of confidence amend­ ment to the Address, in exactly the same words as Mr. King’s own amendment in 1934. Mr. King said: “ When the leader of a political party drafts a motion and presents it to the house, to the effect that the government of the day no longer enjoys confidence, he is supposed to be in a position to form an alternative govern­ ment.” 31 In other words, no leader is entitled to move a motion of want of confidence unless it is certain to carry! If this were true, few indeed would have been the motions of want of confi­ dence in the whole course of British parliamentary history. An Opposition member interjected that Mr. King had not been in a position to form an alternative Government when he moved his motion in 1934. Mr. King's reply is characteristic: “ Wasn’t I, by Jove! I can tell my hon. friend that the best proof of being preferred is that in the time I have been leading the government, we have had seven general elections in Canada of which the Liberal party carried six. I do not think there has ever been a time when the Liberal party has not been prepared to form a government in the event of the party opposite being defeated.”32 (a) This is completely irrelevant: the results of elec­ tions “ have nothing to do with the case.” (/>) It dodges the issue by changing “ in a position to form an alternative government” to “prepared to form an alternative government in the event of the party opposite being defeated." (c) Most of it is untrue. There had indeed been seven general elections in the time Mr. King had been leading the Liberal party, but he was leading the Govern­ ment only in 1925, 1930, 1940, and 1945. The Liberals had carried not six of the seven but four: 1926, 1935, 1940, and 1945, and only three of these when Mr. King was “ leading the govern­ ment.” 33 This speech, perhaps, furnishes some examples of that unequalled “passion for accuracy” which Mr. Pickersgill has cele­ brated in the Queen’s Quarterly,34 30Ibid., 1945, 5-6. 31 Ibid., 1947, 69. Text of Mr. King's motion in ibid., 1934, 58; of Mr. Bracken’s in ibid., 1947, 55. 32Ibid., 1947, 69. 33 1921, 117 Liberals out of 235; 1925, 101 out of 245; 1930, 88 (plus 3 Liberal-Progressives) out of 245. 34Autumn, 1950, 309.

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On June 26, 1948, on the motion to concur in the report of the prices committee, Mr. Fleming moved that the report be “referred back to the committee for the purpose of deleting the conclusions therein and substituting therefor” a different set. Mr. King claimed the amendment was out of order, because, while the House could “direct a committee as to what it is to inquire into,” and “enlarge the order of reference by means of an instruc­ tion,” it could not "tell a committee in advance what it must find.” 35 This would be true of an instruction to a committee before it started its inquiry. It is not true of an instruction on a reference back. On June 22, 1926, on the motion to concur in the report of the special committee on customs and excise, Mr. Stevens moved "that the report. . . be referred back to the special committee with instructions to add thereto” certain sub-clauses. One embodied censure of the Minister of Customs, the Prime Minister, and the Government.36 No one even hinted that the Stevens amendment was out of order. Yet in 1948, an amend­ ment almost exactly the same in form, though far milder in content, was ruled out of order, partly because it gave "no discretion to the committee,” and purported “ to dictate an opin­ ion to the committee.” 37 So did the Stevens amendment. If the 1948 ruling is allowed to stand, it will seriously restrict the rights of the House. I have made the Senate my wash-pot, and over the House of Commons have I cast out my shoe. What of Parliament as a whole? The Liberal platform of 1919 promised “discontinuance of Order-in-Council government.” 38 Mr. King went up and down" the country in 1919, 1920, and 1921, breathing forth threatenings and slaughters on the subject; and throughout his career he never tired of proclaiming that Parliament was supreme. Parliament must and would decide. The Orders-in-Council against which he declaimed were largely a phenomenon of the war and reconver­ sion period; with the end of that period, they lapsed. The promise to discontinue them was just sound and fury, signifying nothing. It was not till Mr. Bennett introduced his 1931 relief bill that Mr. King was able to take up where he had left off. 35House of Commons Debates, 1948, 5935. 36Arthur Beauchesne, Rules and Forms of the House of Commons of Canada (Toronto, 1943, 3rd ed.), 608-30; House of Commons Debates, 1926, 4832 et seq. 37Ibid., 1948, 5941. 38 Canadian Annual Review, 1919, 605 et seq.

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The bill was undeniably open to objection on constitutional grounds. It gave the Government a blank cheque for relief. It gave power, “ notwithstanding the provisions of any statute or law,” to “take all such other measures as may be deemed neces­ sary or advisable for carrying out the provisions of this Act,” and to make “all such orders and regulations as may be deemed necessary or desirable for,. . . within the competence of Parlia­ ment, maintaining peace, order and good government throughout Canada.” All orders and regulations of the Governor-in-Council were to “have the force of law and [to] be enforced in such manner and by such court officers and authorities as the Governor-in-Council may prescribe.” The Governor-in-Council could prescribe penalties, not exceeding SI,000 or three years’ imprison­ ment, and say whether trial was to be upon summary conviction or indictment. All expenditures, orders, and regulations had to be reported to Parliament by March 15, 1932.39 Mr. King protested vigorously, and with reason, though his case was not quite as formidable as it looked. There was a severe emergency of an unprecedented kind, in which swift action might be essential. The Act was to apply only from the end of the 1931 session till about a month after a new session was likely to open (though as it turned out one of the first things done in the next session was to prolong the Act for another two months, so that the Cabinet’s powers were in fact exercisable for nearly three months while Parliament was sitting). It would have been hard to fix any maximum figure for expenditures. And, finally, the “peace, order and good government” power was not as wide as it looked; for, as Mr. Meighen was to point out later, the courts had interpreted those words in a very restricted sense.40 None the less, the Government tacitly admitted the force of many of Mr. King’s criticisms by dropping from the 1932 Act the “ peace, order and good government” power (substituting power to take such measures as seemed necessary or advisable to protect the credit and financial position of the Dominion or any province), dropping the penalty section, and providing that all orders and regulations must be laid before Parliament forthwith, or, if Parlia­ ment was not sitting, published in full, or in an abstract disclosing their essential provisions, in the next Canada Gazette.4I The Acts of 1933, 1934, and 1935 restored the “peace, order and good 39 Unemployment and Farm Relief Act, 1931(21-22 Geo. v, c. 58). 40Senate D ebates , 1934, 265. 41 Relief Act. 1932 (22-23 Geo. v. c. 36).

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government” power, but with the important proviso that it could be exercised only when Parliament was not in session.42 When the second war came, Mr. King himself was in office, and proceeded to indulge in “ Order-in-Council government,” both during the war and after, on a scale never before approached. Any criticism based on the sheer number of the Orders-in-Council would be both silly and unfair. As Mr. Heeney has pointed out, about 95 per cent of them were for approval of contracts and routine administrative purposes. Only about 4 or 5 per cent were “of a legislative character,”43 and many of these were unexceptionable. In modern conditions, even in peacetime, much delegated legislation is normal, necessary, indeed inevitable; in wartime, and in the aftermath of war, this is even truer. But the broad framework of legislation should be laid down by Parlia­ ment. Mr. King’s offence, constitutionally speaking, is not that he legislated by Order-in-Council, but that he did so to an altogether unnecessary and even dangerous degree; and the offence is partic­ ularly heinous because he had himself so often denounced it. He sinned against the light. I shall take just four examples: price control, wage control, wartime labour policy, and conscription. All of these were dealt with almost exclusively by Order-in-Council. None of them needed to be. It may be that price control and wage control, to be effective, had to be imposed swiftly; that they could not wait even for a Parliament which was only adjourned, and could be recalled almost instantaneously. This would have warranted tem­ porary Orders-in-Council, till Parliament could act. This course was followed with the foreign exchange conservation measures in 1947.44 It could and should have been followed with price and wage control. Most of the wartime measures of labour legislation were not of a kind to warrant even temporary orders. Yet in the whole list there is exactly one on which Mr. King invited Parlia­ ment to decide: a bill to debar the late J. L. Cohen, K. C., from sitting on conciliation boards.45 This weighty matter required submission to both Houses; such trifles as collective bargaining, the right to strike, conciliation machinery, could all be settled by 42 Relief Acts, 1933, 1934, and 1935 (23-24 Geo. v, c. 18; 24-25 Geo. v, c. 15; 25-26 Geo. v, c. 13). 4>A. D. P. Heeney, Cabinet Government in Canada, 286. 44The Orders-in-Council were p .c . 4678, Nov. 12, and P.C. 4858, Nov. 26; Parliament met Dec. 5; Act assented to March 24, 1948. 454-5 Geo. vi, c. 20.

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executive decree, even while Parliament was sitting, or was sub­ ject to immediate recall. So could conscription. In the first war, Parliament passed a most elaborate act on the subject.45 In the second war, the British Parliament did the same.47 But Mr. King did the whole thing by Order-in-Council under the National Resources Mobilization Acct. A marciful Providence fashioned us holler A ’purpose that we might our principles swaller. Actions of this sort show scant regard for Parliament. The Japanese-Canadian deportation orders show positive contempt. When the War Measures Act was about to be superseded, the Govern­ ment introduced, October 5, 1945, an emergency powers bill to continue certain powers it had under the War Measures Act, including power to pass Orders-in-Council covering “entry into Canada, exclusion and deportation, and revocation of national­ ity.” Parliament jibbed, and on December 5 the Government dropped the clause. Parliament continued to sit until December 18. The new Act came into effect January 1, 1946. On December 15 the Government proceeded to do what Parliament had just plainly indicated it thought ought not to be done.48 The discrepancy between Mr. King's professions and his practice is gross and manifest. But the crucial question is, did he really believe in parliamentary responsible government at all? He said he did. But did he understand what he was saying? Was his basic constitutional creed really parliamentary democracy or pleb­ iscitary democracy with a thin parliamentary veneer? In 1923, Mr. Irvine moved that Governments should not resign on the defeat of a Government bill, unless the defeat was followed by a vote of want of confidence. Mr. King’s speech is important and revealing. It contains the seed of the political theory which flowered in 1926 and bore fruit in 1940. In the classic theory of parliamentary government, a Cabinet defeated in the House of Commons on a vote of censure or want of confidence or on a major Government measure must either resign, and make way for an alternative Government which can carry on in the existing Parliament, or it must ask for dissolution, if the circumstances are such that a request for dissolution is proper. Mr. King, at one point in his speech, stated this position correctly, except that, significantly perhaps, he omitted the final proviso. But elsewhere he said: 4» pour 1’entite politique que lui et ses collegues se croyaient en train de creer. Je cite egalement Tache et Belleau. Celui-la dit que sans ports de mer (et je cite textuellement). « nous ne pourrions devenir une grande nation.. . . Je defie qui que ce soit de . . . m’indiquer une seule grande nation qui n’ait pas de ports de mer qui lui soient ouverts le long de l’annee. » 12 Et Tache appela la Confederation projetee « une puissante nation une nation prospere .. . une nation independante. »13 De la meme fagon, Belleau dit que les Peres de la Confedera­ tion creaient « le germe d’une puissance qui prendra un jour sa place parmi les nations du globe. Tous les elements qui sont necessaires pour faire une nation puissante se trouvent dans les colonies reunies.. . . La reunion de ces elements ferait de la confed­ eration une grande puissance parmi les autres nations du globe, . . . un peuple nouveau et puissant » . II parle egalement de « notre representation nationale », c’est-a-dire, canadienne-frangaise, faisant usage, comme les autres, du mot « national » aux deux sens, selon le contexte.14 The terms of the British North America Act itself are no less plain than the speeches of the Fathers. Professor K. C. Wheare, indeed, has gone so far as to call the system set up by the Act not federalism but “ quasi-federalism.” 15 Look at the enacting words of section 91, which give the residual power in legislation to the Parliament of Canada. (Macdonald’s words make it clear that this was deliberate: the Fathers wanted to prevent the new Dominion from being disrupted, as the United States had just been, by “states’ rights.” ) Look at just two specific heads of section 91: “ The Regulation of Trade and Commerce” (so much more sweeping than the corresponding provision of the American Constitution), and “The Criminal Law” (a state matter in the United States). Look at section 92, head 10 (c), by which the Dominion Parliament can bring any local work under its own exclusive jurisdiction simply by declaring it to be a work “ for the general Advantage of Canada o r . . . of Two or more of the Provinces” (this is the whole basis for Dominion regulation of the grain trade). Look at the treaty section. Look at the paramount " Ibid., 369, 375, 379, 390- 1. 12 Ibid.. 6. " I b id ., 349. 14 Ibid. 184. 15 Federal Government (3rd ed., London, 1956), 20.

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power of the Dominion over agriculture and immigration. Look at the provisions for controlling the provinces: the appointment, instruction and dismissal of lieutenant-governors; the lieutenantgovernor’s power to reserve provincial bills; the Dominion gov­ ernment’s power to disallow provincial Acts; the provision for Remedial Orders and Remedial Acts to protect the educational rights and privileges of Protestant and Roman Catholic minori­ ties. Note that all judges of the superior and county courts (except judges of probate in Nova Scotia and New Brunswick) are appointed by the Dominion government. So are all senators, though the Senate was supposed to represent the provinces: vin­ tage John A. Macdonald, this! Note that the Supreme Court is not set up by the Constitution itself, but that, on the contrary, its establishment and constitution are explicitly entrusted to the Par­ liament of Canada. All these things, and more, bear witness to the fact that the Fathers of Confederation not merely said they were creating “a new nation, a new nationality,” but that they made a serious effort to do it, and to give it legal form. Macdonald's whole economic and transportation policies, to the day of his death, were directed to the same end. It is true that the wicked Stepfath­ ers of Confederation, the Judicial Committee of the Privy Coun­ cil, greatly weakened many of the central powers, and indeed in many respects turned our Constitution inside out and upside down. But that is not the point here. Pour l'instant, je ne conteste pas 1’affirmation que le sens politique et juridique du mot « nation » ou « national » soit, pour le Canadien-frangais, «faible et pauvre ». II faudra, d’ici quelqups moments, demander si cela est aussi vrai que ne le croit M. Laurendeau, et, dans la mesure que cela est vrai, quelles en sont les raisons. Entre-temps, je me contente de dire que, pour le Canadien anglais, le sens politique et juridique de ces mots n’est pas faible et pauvre. Au contraire, il est fier, et de plus en plus, du statut national du Canada. Les mots «nation» et «national » evoquent, pour lui, des souvenirs precieux d’une evo­ lution constitutionnelle longue et parfois penible, d’une lutte seculaire contre le colosse americain. Et le Canadien anglais est conscient du role de premier plan qu’ont joue dans cette evolution et cette lutte les Canadiens frangais: les Cartier, les Laurier, les Lapointe, les St-Laurent, meme les Bourassa. Nous autres, nous sommes de plus en plus conscients de la dette que nous devons aux Canadiens frangais a cet egard. Ce sont, a plusieurs reprises, les Canadiens frangais qui ont ete nos maltres en droit constitutionnel, qui nous ont pousses vers un nationalisme canadien plus vif et mieux

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realise. Bref, les Canadiens frangais nous ont appris un canadianisme plus marque, plus approfondi; et voila que, maintenant, tout d’un coup, quelques-uns parmi eux nous disent: « Tout cela ne vaut rien, ne signifie rien. Vous avez votre nation, nous avons la notre. Allex-vous-en! Laissez-nous tranquilles! » Nous nous sentons confondus, degus, trahis. But is it really true that, for the French Canadian, the consti­ tutional and political sense of the words “nation” and “national” is “weak and poor?” M. Laurendeau certainly ought to know a great deal better than I. 1 think I am probably better informed about French Canada than the average English Canadian; but the more I learn about it, the more conscious I am of my almost encyclopaedic ignorance. Nonetheless, I find it very hard to believe that the history of Canada’s advance from “colony to nation,” in which French Canadians have taken so notable, so essential, so decisive, a part, can really mean so little to them as M. Laurendeau seems to suggest. He himself admits that “many French-Canadians in the past, and still in the present, spoke or speak willingly of ‘the Canadian nation.’ ” 16 Nonetheless, I think there is no question that to many, a great many, perhaps most, almost certainly an increasing number, of French-Canadians, the political and constitutional sense of the words “ nation” and “national” means less than it does to Eng­ lish-speaking Canadians. Why? To some extent, I think, because they have gained their point. Canada is now, for all practical purposes, an independent, sovereign state, or as independent and sovereign as any nation can be in this interdependent world. The struggle for status is over. True, there are some respects in which we still cannnot amend our own Constitution, though that is certainly our own French-Canadian and English-speaking Canadian fault. True, also, we have still no flag and no anthem which the French Canadians feel is satisfactory, though that also is our own French-Canadian and English-speaking Canadian fault. (Inciden­ tally, if we must throw overboard the political and constitutional sense of the words “nation” and “national,” we certainly cannot have a “national” flag or a “national” anthem.) But no other nation now has any political control over us except under interna­ tional treaties or other engagements which our own Dominion, or national, or federal, or central, or Canadian, or “ bi-national,” government and Parliament have accepted. So that, in this mat­ ter, the French Canadians have got what they wanted (most of 16 Le Canada, experience ra te e . . . ou reussie? 72.

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the rest of us, in recent years at any rate, wanted it too), and can now afford to call it Dead Sea fruit. Some may say that a second reason why French Canadians are less enthusiastic about the Canadian nation than the rest of us is just minority touchiness. Perhaps so. Most minorities, unless they are dominant minorities, are touchy. How many of us Eng­ lish-speaking Canadians have ever really tried to imagine how we should feel if the United States were a French-speaking country, if two-thirds of the population of Canada were French-speaking, if we were confined almost entirely to the province of Ontario, though with English-speaking minorities of various sizes in the other provinces and perhaps some hope of an English-speaking majority in New Brunswick? Suppose English were an official language in the Dominion Parliament and Dominion courts, and in the Ontario Legislature and Ontario courts, but nowhere else. Suppose we couldn’t plead a case in English in Montreal, or Winnipeg, or Vancouver, or any other place outside Ontario. Suppose the capital of Canada were Hull, and we couldn’t plead a case in English in the courts there, and were denied even English street signs there. Suppose fewer than a third of the higher officials of the Dominion civil service were Englishspeaking. Suppose most big business, even in our own province of Ontario, were in the hands of French-speaking people, Ameri­ can or Canadian. Suppose that a large part of the French-speaking areas had been first discovered, explored, even in some cases settled, by English-speaking people before the ancestors of most of the French-speaking had ever set foot in this country. Suppose that immigration had been, till recently, overwhelmingly French, and that even now most of the non-French immigrants became French-speaking. Suppose that most of the French-speaking people made no effort at all to learn English, even when they lived in pre­ dominantly English-speaking Toronto for generations. Suppose that at Confederation we had cherished hopes of a bilingual West and that English had been abolished as an official language in Manitoba. Isn’t it just possible that we'd be a bit touchy too? Isn’t it possible that we might feel an intense loyalty to English Canada, but a rather less intense loyalty to Canada as a whole? Mightn’t we perhaps be rather anxious about our survival as an English-speaking people? Mightn’t we tend to see hostility and conspiracies where in fact there was only indifference, or ignorance, or a feeling that we were queer and hard to understand, and easily roused to irrational behaviour by tub-thumping demagogues? Perhaps that sounds as if I were endorsing every grievance that any French-Canadian ever produced. I am not. I am simply

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asking whether in fact we would behave very differently from the French-Canadians if we were in their place. 1 am not even going to try to answer. But I do suggest to my fellow English-speaking Canadians that they take a good, hard look at my questions, and do some good, hard thinking about them. If they do, they may be a little less inclined to go off with a loud .pop the next time some French Canadian starts complaining of his people’s difficulties and making demands on the rest of us. Some of the complaints may be ill-founded. Some of the demands may be nonsense. If so, we should not be afraid to say so, and say why. But let us remember that, but for the accidents of history, there go our­ selves. I am perfectly aware of the standard English-speaking Cana­ dian answers to a lot of the points I have just raised, and the answers have a lot of truth in them. I know that in fact the French language has more rights now in the Dominion Parlia­ ment and the Dominion administration than the British North America Act gave it. I know that there are at least two good reasons why the proportion of French Canadians among the higher officials of the Dominion civil service is much lower than the proportion of French Canadians in the total population: (a) the spread of government activity into fields requiring scientific and technical training which, until recently, the Quebec educational system was rather short on; and (b) the reluctance of many of the ablest and best-trained French Canadi­ ans to leave Quebec, especially now, when so many exciting things are happening there and when they are so desperately needed there to help the exciting things produce the right results. I know the deficiencies of the Quebec educational system in the past are not our fault. I know how hard the Dominion govern­ ment often works to get competent French Canadians for the higher posts, and how discouraging the results often are, and I know it is not entirely our fault that so many of the best French Canadians want to stay in Quebec (though it is partly our fault; I'll come back to that shortly). I know how exasperating it is to hear French Canadians talk about how they have been here for centuries, whereas we walked down the gangplank only yesterday or the day before. (It is particularly exasperating for an English Canadian like myself, most of whose ancestors came to this country over two hundred years ago, many of them having pre­ viously been in the thirteen colonies for well over a hundred years.) I know that businesses owned and directed by Englishspeaking people often try hard to get competent French Canadi­ ans for high positions, and suffer some of the same frustrations as

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the Dominion government when it makes the same attempt. I know that most people won’t learn a second language unless they have to. I know that the predominantly English-speaking immi­ gration was not the result of a deep, dark plot by Englishspeaking Canadians to swamp the French Canadians and do them out of their share of the heritage of the Prairies. I know how the attitudes of English Canadians towards French Canadi­ ans have changed for the better even in the last twenty or thirty years, and are changing now, even faster, especially among young people. But when all the answers have been given, there still remain some points unanswered, or only partly answered. There still remains, I think, some solid ground for the French Canadian to feel that if there really is a single Canadian nation, in the political and constitutional sense, his nation as well as ours, he is getting short-changed on it. Now what can we do about it? First, we could give up. We could let Quebec go. I have already ruled that out. I don’t think we can unscramble the Canadian Common Market. I don’t think independent Quebec would be politically stable. Stirred by the cries of the separated brethren, the Volksfranzdsisch, or Volkslaurentisch, in the rest of what had been Canada, it would be forced at least to make demarches to the Department of External Affairs of the other, predominantly English-speaking, Succession State. But our Secre­ tary of State for External Affairs would be obliged to explain to the Laurentian ambassador that he was sorry, but education was a purely provincial matter, over which he and his government had no control. D ’ou, fatalement, la creation d’une Laurenlia irre­ denta, et une demande, de plus en plus forte, de la population laurentienne, que la Laurentie s’etende pour inclure tous les fran­ cophones de l’ancien Canada, par l’annexion de la moitie du Nouveau-Brunswick et des territoires francophones ontariens a la frontiere ouest, et par une serie d’enclaves en Nouvelle-Ecosse, a Terre-Neuve, a I’lle-du-Prince-Edouard, et eparpillees ga et la a travers I’ouest, ou par un transfert des populations francophones de l’ouest, et une nouvelle expulsion des Acadiens, dans une Laurentie agrandie. Jolie perspective pour tous! Chimere, cauchemar, pour tous! Second, we are told that we can, or must, “ re-think Confed­ eration.” I am not very sure what this means. It appears to mean replacing the present Dominion (for, in spite of all the jiggerypokery, bad history and worse logic, that is still the official title of this country; see the preamble and section 3 of the British North

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America Act, still unrepealed), by what is described as a “true confederation,” a league of states like the thirteen ex-colonies just after their War of Independence, or the ghost of the deceased Austro-Hungarian Dual Monarchy sitting crowned upon the grave thereof. Exactly how this monstrosity would be constituted I do not know. Exactly what powers the central, or joint, author­ ity would have, I do not know. I have asked, but I have got no answer. Presumably, the “ Canadian and Laurentian government” (to adapt to our purposes the Austro-Hungarian “ Imperial and Royal” formula), would, like its prototype, have responsibility for the common defence, external affairs, a common customs tariff. Would there be a common currency and a common Central Bank? What would happen to social security, especially such purely Dominion parts of it as unemployment insurance, family allowances, and old age security? How would the “ Canadian and Laurentian government” raise its revenues? By taxes imposed by a “Canadian and Laurentian” joint Assembly? Or by contribu­ tions from the Laurentian part of the affair and the Canadian part or parts? What would happen to the provinces other than Quebec? What powers would they have? I don't suppose Quebec would care a rap; but the others might like to know. I venture to think the public generally, English-speaking and French-speaking, would like to know a little more about this kind of scheme before they are asked to accept it. Very few people really want to buy a pig in a poke. We are told that times have changed since 1867. So they have. But in what direction? We are told that we have moved out of the horse-and-buggy age. So we have. But where to? Not back to the ox-and-wain, but forward to the motor car, the bus, the truck, the diesel locomotive, the jet aeroplane, the nuclearpowered ship, the rocket space-ship. It may well be that various changes which have taken place since 1867 necessitate changes in our Constitution. But in what direction? Towards greater decen­ tralization? I was asked to speak, a month or so ago, on “ Politi­ cal Implications of the Canadian Economy.” 17 I said then that the most decisive implication of the Canadian economy for the Canadian polity springs from the fact that there is a Canadian economy, a single, distinct, recognizable, working, Canadian body economic.. . . Railways and canals and grain elevators, the tariff, mone­ tary and fiscal policy, these things [and I might have added oth,17 To the history section o f the O ntario Secondary School Teachers’ Federation, Toronto, A pril 24, 1962.

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ers] have bound us together inextricably. They have made us one economy. They have made us politically one nation.. . . By the same token, they have made it essential that the Dominion Government and Parliament. . . should have and keep at least the powers which the Fathers of Confederation gave them [or, strictly, such of those powers as the Judicial Committee of the Privy Council left to them]. Even a moder­ ately efficient operation of the Canadian economy on any other basis is simply impossible. Take away the central pow­ ers necessary to keep our transport and communications func­ tioning, to bargain our way into world markets, to shield ourselves from sudden market disruptions, to control booms and recessions and maintain anything like full employment, and the economy simply grinds to a stop. We cannot exist with any Constitution less centralized than a federal state with strong powers at the centre.. . . This political implication of the Canadian economy has only been strengthened by modern economic developments. More and more, Canada is one market: one market for goods, one market for labour, one market for capital. More and more, this requires not only one single authority for the matters entrusted to the Dominion by the Act of 1867, but also national minimum standards for such matters as social security and education. Note that I say “ minimum.” Note also that I do not say how such minimum standards are to be got and kept. I am not for a moment suggesting that. . . the whole of social security must be handed over to the national, Parliament, still less that. . . education should be taken from the Provinces and given to the Dominion . . . [That] would be fool­ ish to the verge of madness. But, without seriously disturbing the present balance of jurisdiction, it should be possible to pro­ vide for all Canadians certain minimum standards of social security and education,. . . of hours and wages and conditions of work.. . . There is, I suggest, plenty of room here for varia­ tion in the means; I can see no room for variation about the end. Technology is pushing us away from smaller units towards larger. The threat of communism is doing the same. Can we, in a technologically post-post-post-Confederation world, in a world where every free people is menaced by a totalitarian tide which seems still at the flow, go back, politically and constitutionally, to a very pre-pre-pre-Confederation constitution? The rest of the world is moving towards internationalism. Can this country move towards something less than Canadian nationalism?

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Ici, je puis me figurer ce que pensent les Canadiens frangais qui m ’ecoutent: « Ah! Jusqu’ici, il nous donne 1’illusion d’une personne sympathique, et qui comprend un peu nos miseres et nos malaises. Mais, en fin de compte, c’est un Anglo-saxon comme les autres, un centralisateur, qui veut en realite nous avaler, qu’il le connaisse ou n o n » . Mais je n’ai pas encore termine. Nous venons d’examiner deux alternatifs: le separatisme, et le remplacement de notre Confederation actuelle par ce qu’on appelle « une vraie confederation «, chose qui ne signifie, pour moi, qu’un separatisme legerement modifie, ou, si vous voulez, manque. Reste a considerer un troisieme alternatif, que je veux maintenant esquisser. This third alternative, is, 1 think, the only one really open to us, unless we are prepared to go “ through hideous ruin and combustion down” not, indeed, “ to bottomless perdition,” but to annexation, the extinction of French Canada and Englishspeaking Canada alike. What is this third alternative? 1 think it can best be described as genuine Canadian Anglo-French partnership. If a good many French-speaking Canadians feel that the idea of the Canadian nation lacks substance, colour, life, they have some reason, and perhaps English-speaking Canadians ought to feel the same thing, though for different reasons. If we are going to give the idea more substance, colour and life, there are a number of things both groups will have to do. First of all, we have all got to get it firmly into our heads that this country has two basic traditions, French and British; that without those two traditions, it would not be Canada at all, just a poor, smudged carbon copy of the United States; and that this is precisely what the Fathers of Confederation deliberately refused to make us. They deliberately refused to make us a country of one language and one culture. They deliberately rejected Ameri­ can republicanism and chose British monarchy. They deliber­ ately rejected American congressional government and chose Brit­ ish responsible government. The Canadian tradition is much more than just French and British, but the French and British traditions remain basic. The French and English languages, French Civil Law and English Common Law, enjoy a status granted to no others. Our parliamentary institutions, essentially British, though adapted to our own needs and circumstances, are the indispensable framework of our whole common life. Canada is not something rootless, floating in space, and drawing nourish­ ment out of airy nothing. Nor is she rooted only in the Lauren­ tian Shield, and drawing nourishment only from the Aurora

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Borealis. She is rooted in her past, both French and British, and from that past she draws her nourishment. To talk of developing something “purely Canadian” which will be neither French nor British is literally nonsense: it makes no sense.18 Both groups must learn to feel the whole of Canadian history as their own history. As Professor Morton has written, in a book which I wish every Canadian would read on his knees, “ There are not two [Canadian] histories,.. .one French and one British, . . . but one history.. . . The history of Canada after 1760 is only a continuation and extension of the history of Canada before 1760.” 19 Second, each group has got to learn to respect the culture of the other. This will be hard, but salutary, for both. It will be harder for the English-speaking Canadians, first because so few of them know any French, and because they have, as a rule, so few chances to learn it properly or to practise it if they do learn; and, second, because a good many, perhaps most, of them have grown up in the assumption that there isn’t much in French Canada that is worth learning French to find out about. I’m afraid that most English-speaking Canadians have simply no idea at all of the brilliant, sparkling, and at the same time profound, intellectual, artistic, literary, philosophical, religious life that exists in French Canada. My own acquaintance with it is culpably superficial; but every time I meet my French-Canadian friends I feel stupid, ignorant, almost illiterate, even more so than when 1 am with a similar group of English-speaking Canadians. I don’t say that French-Canadian intellectuals are all geniuses, or that they are always right. But even when they are wrong-headed, they are usually wrong-headed in a far more literate way than their English-Canadian opposite numbers; even when they talk nonsense, they talk it beautifully; and often they put us to shame by talking and writing our own language far better than most of us do ourselves. More of us must learn French, and learn French Canada. We may make an awful mess of both, at first; but practice will make us not perfect, indeed, but a lot better. Even an inadequate knowledge of the language and the culture is bound to bring some understanding and some appreciation. If it can do it for me, a “ black Protestant,” solidly and stolidly English alike by ances­ try and cast of mind, it can do it for anybody. 18 This paragraph is taken almost verbatim from my encaenial address at the University o f New Brunswick, M ay 17, 1962. 19 The Canadian Identity (Toronto, 1961), 89.

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On the other hand, the French Canadians must learn to respect English-Canadian culture. I think a good many of them, even those who know English well, are inclined to think there isn’t any English-Canadian culture worth knowing. After all, the English Canadians they see most of, the English-speaking minor­ ity in Montreal, do not, perhaps, provide the most shining exam­ ple of what we have to offer. They have too often been too plainly interested in very little but money and power. Nonethe­ less, we are not all money-grubbers or power-grabbers. There is a respect-worthy English-Canadian culture. We too have our tradi­ tions, our principles, our beliefs, though we are perhaps, English fashion, rather diffident about mentioning them, let alone express­ ing them coherently. We are not just the uncivilized boors, the culturally boneless wonders, that some French-Canadian intellec­ tuals may sometimes take us for. Third, each group must get over thinking of the other as a monolith. French Canada is not just Quebec. There are also the Acadians, who do not even like being called “ FrenchCanadians,” though they are as devoted to their language and their institutions as any French-speaking Quebecer. Englishspeaking Canada is not just Ontario, a point on which I, as a Maritimer in pariibus infidelium, feel strongly (and if any French-speaking Canadian, or English-speaking “ Upper Cana­ dian” thinks I am just being funny at this point, let him go to the Atlantic provinces and see for himself; he might even meet, as 1 did once, someone intoning, with obvious fervour, “ How 1 hate Toronto!” a city which the lady in question had, I think, never even seen). 1 used to think, in my simple, English, Protestant way that all French Canadians thought alike. I never made a bigger mistake in my life. Some French Canadians may think we Eng­ lish-speaking Canadians all think alike (on anything of any conse­ quence, that is). If so, they never made a bigger mistake in their lives. There is a corollary to this: that no English-speaking Cana­ dian should assume that every time a French Canadian expresses an opinion, he is expressing “ the French-Canadian view” ; and, equally, no French Canadian should assume that every time an English Canadian expresses an opinion, he is expressing “ the English-Canadian view.” A good deal of wholly needless harm has been done by these assumptions. Quebec at present is a cauldron whose lid has just blown off. The boiling, bubbling mass within is full of excellent ingredients, and 1 think will certainly produce first-class results, worthy of the best traditions of “ la cuisine frangaise.” Meanwhile, however, it sometimes gives off some vapours which, if not actually noxious,

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at any rate are not pleasing to English-Canadian nostrils. 1 think we English Canadians have just got to make up our minds to this, be grateful for the excellent dishes which are going to be served up to us (dishes far more nourishing, and far more to our taste, than any we have ever had from Quebec before), and accept the vapours as the kind of thing that is certain to happen whenever too many people sit too long and too hard on this kind of lid. Our own cauldron is not bubbling so hard, and may not produce as many or as good “plats” ; but it manages to give off, sometimes, some pretty unpleasant smells. There is another thing that we English-speaking Canadians have to recognize and accept: that Quebec is not just “une province comme les autres,” a province like the others. It is not the whole of French Canada. But it is, and will remain, the very citadel of French Canada. It is the only province where the French Canadian is, within the limits of provincial powers-and they are very wide limits-and subject only to the minority rights of an English-speaking population which becomes less and less important, master of his own destiny. It is the only province where he can run things mainly his own way. Even when New Brunswick becomes predominantly French-speaking (as it may be already), Quebec will still be the only province big enough, rich enough, and French enough to support a genuinely French cul­ ture. That is why we must expect Quebec to go on insisting on the fullest autonomy it can get, the widest powers it can get. That is why we must be prepared to see it get special treatment which no other province claims or wants.;* Quebec, on the other hand, must, I think, be prepared to recognize that the rest of the country may want to do things which Quebec does not, which Quebec has every right to ask to be left out of, but which it has no right to veto for the other provinces. There may, for example, be parts of “property and civil rights in the province” which other provinces would be glad to hand over to the Dominion, as, indeed, at least some of them already can, under section 94 of the British North America Act, the Cheshire Cat of the Canadian constitution (nothing remains but the smile). That is why I think there is a good deal to be said for the principle of the proposals on delegation of powers in Mr. Ful­ ton’s draft amendment to the constitution. There are two other things I think Quebec must recognize: that it is not always at the bottom of the heap, and that not all the bad things that happen to it are the fault of the wicked “ English.” I have heard Dr. Chaput complain that Quebec’s unemployment is the worst in the country. It is not. Unemploy­

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ment in the Atlantic provinces is always far worse. I think I have heard the same gentleman complain that Quebec’s per capita personal income is the lowest in the country. It is not. Every one of the Atlantic provinces is lower, substantially lower. Moreover, the heavier-than-average unemployment, and the lowerthan-average per capita income in Quebec, are no more the fault of the wicked “ English" than the still heavier unemployment and still lower per capita incomes in the Atlantic provinces are the fault of the wicked “ Upper Canadians.” These' things result rather from the working of the mechanism of the market, and the mechanism of the market recks little what language the operators speak or where they live. The notion that everything would be lovely in French Canada if only all the industrial big shots spoke French instead of English, is as fallacious as the notion that everything would be lovely in the Atlantic provinces if only all these gentry came from Halifax or Saint John or Moncton or Sydney-or Bathurst! I don’t say nothing can be done about it. I don’t say it isn’t desirable to have far more French Canadians in the seats of industrial power in Quebec, or far more Maritimers in the seats of industrial power down there. But I do say, emphatically, that to blame everything on an English-Canadian or an Upper Canadian, or for that matter an American, personal devil is silly, and leads nowhere except to frustration. The real causes of poverty and unemployment, in French Canada or the Atlantic provinces, lie elsewhere. Finally, I think we English Canadians must get to work on what I am inclined to call nationalizing, or, if you prefer, bi-culturalizing, the Dominion government and all its departments and emanations. This involves a very strenuous effort to get more first-rate French Canadians into top positions in the Dominion civil service. I know this will not be easy: the competition from Quebec itself, from New Brunswick, and I hope from private business, will be keen, and will get keener. We could help by making French Canadians feel more at home in Ottawa. This might involve making Ottawa a federal district, with a thoroughly bilingual administration and bilingual courts; or perhaps the city and the province between them could accomplish the same end, the city by thoroughly bilingualizing its own administration, the province by bilingualizing its courts in the Ottawa area. Either would be a start. But merely getting more, even a lot more, first-rate French Canadians into high positions in the Dominion civil service (and they would have to be first-rate; no modern state can operate with anything less; I am not subscribing to any claim that exactly

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thirty per cent of all deputy ministers must be French Canadians or Acadians, regardless) would not be anything like enough. We must make the English-speaking officials, especially the top ones, as bilingual as we can as fast as we can. This is a large order, and a stiff one. But 1 don't think we can dodge it, if we really want to preserve and strengthen the Canadian nation we say we believe in. We have to make up our minds whether we really want a Canadian nation or only un-really want it. If we really want it, then we shall be prepared to pay the price. If we are not prepared to pay the price, then we don’t want it really, only un-really. Meme si les Canadiens anglais acceptent le principe d'une biculturalisation authentique, veritable, de l'etat central, la realisa­ tion du principe ne sera pas facile. J ’appuie fortement la proposi­ tion de M. Laurendeau pour une enquete royale sur le bilinguisme. Je suis d’accord que, si le gouvernement persiste a se refuser a un telle enquete, il faut que quelqu'entreprise privee s’en charge. Je suis egalement d ’accord avec M. Laurendeau que ce qui s’impose d'abord c’est « I’acceptation franche et formelle du principe; puis honnete discussion sur les realisations qu’impliquent le bilinguisme officiel, a Ottawa et dans toutes les provinces ou les Canadiens-frangais sont assez nombreux pour qu'il soit pose; ferme distinction etablie entre les mesures qui vont de soi et qui peuvent etre realisees sur-le-champ, et celles qui, meme si elles s’imposent, ne pourront etre adoptees que peu a peu. Pour ces dernieres mesures, etablissement d’un calendrier, et grande fidelite a le suivre».20 Je m’abstiens d’entrer ici dans les details; j ’ai deja retenu trop longtemps cet auditoire patient et bienveillant. Mais je voulais etablir les grandes lignes du dessein, et souligner qu’en ceci je prends la meme position que M. Lauren­ deau, chose qui puisse etonner, voire choquer, beaucoup de personnes des deux rives de l’Outaouais! I have dealt with this complex and all-important part of my subject very summarily. I feel scarcely competent to do more. I am convinced, however that if we English Canadians are willing to adopt this general policy, we shall meet with a ready and generous response. I am sure that, once French-speaking Canadi­ ans feel that the Canadian nation is, or even can become, their nation just as much as ours, they will realize how valuable it can be to them. For, though a strong Quebec is their indispensable citadel, it is far from enough to meet their needs. There are economic and social problems which Quebec alone cannot solve. There are rights of the French-speaking minorities, rights estab20 Le Canada, experience ra le e . . . on reussie? 82.

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lished and rights still to be won, in the other provinces, which Quebec alone cannot defend or win, even if it soon has a second French province to fight by its side. The interests of Quebec itself may lie in the most complete decentralization: the interests of French Canada may actually demand the strengthening of the central power so that it can, for example, guarantee not merely the rights of Roman Catholic minorities in education but also the rights of French-Canadian minorities, or guarantee the status of French as an official language in any province which has once made it so. Last but not least, there are international opportuni­ ties, international responsibilities, open to French Canadians only as Canadians. French Canadians, and all of us, will suffer if they adopt what Professor Bergeron has called “ une conception unijambiste,"21 “a one-legged concept,” of Confederation. Even in this long address, I have, all too obviously, only skimmed the surface of the great question 1 ask in the title. Some aspects of it I have not even touched. Scholars in the field, or any part of it, if they have listened to me, or if they read me later, will no doubt shake their heads over the omissions. They may also point out how ignorant I am on this aspect, how wrong on that, how feeble or how foolish on the other. All such criticisms 1 shall accept cheerfully. I have not been trying to do even a definitive summary of the subject; so rash, so presumptuous, an ambition never entered my head. I have been trying to raise problems which seemed to me important, and to suggest some ideas which might lead towards their solution. My main object has been to stir up minds purer, stronger, and better equipped than my own, to stab broad awake spirits more ardent and energetic. A Canadian Anglo-French partnership was the vision of Car­ tier and Macdonald. It is not obsolete. In the contemporary world of developing inter-nationalism, it is even more necessary than in the nineteenth century world of triumphant nationalism. For Canadian nationalism can be not a dividing, but a uniting rationalism. I say, “can be.” The Fathers wrought well, and laid our foundations deep and strong. But the building is still unfin­ ished, and parts of it have suffered some damage through the years. It does not need a bombing squad or a wrecking crew. But it does need alterations, repairs, additions, the expansion of cer­ tain rooms; and all of us have to be made to feel at home in it. /W e have to work out some new terms of the Anglo-French artnership in Canada. This will call for mutual respect, mutual 21 Le Devoir, le 14 m ai, 1959, 6.

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understanding, wisdom, justice, generosity; for patience and skill, tact and forbearance, sympathy, and imagination.22 The results are bound to be less than ideal. But they will be a great deal better than anything else we can hope for in this world, and they will enable us to play our part in the world, to make our contribution to its survival and progress, as we can do in no other way. 11 nous faut done etre a la hauteur de la tache difficile mais glorieuse, tache digne de la posterite de nos a'leux des deux meres patries.

21. Present Problems o f C onfederation: A n Engiish-Canadian View

Many years ago, in Montreal, I went to hear John Buchan speak on “ The Trend of Modern Literature.” Conceive my disappoint­ ment, disgust and fury when he announced that he was not going to speak on that subject at all, but on “ A Comparison Between the Great War and the American Civil W ar.” I hope none of you will be consumed by the same emotions when I say that I am not going to speak on “ Present Problems of Confederation;” for I am going to speak on one of those problems, the relations between French and English Canada. I have singled that out because, to my mind, it is crucial. If we can arrive at some tolerable settlement of that, all the others will fall into place. If we cannot, none of the others will matter, because there will no longer be any Confederation to have problems. I hope that does not sound like an echo of those loud detonations in a dense fog which issued from the Royal Com­ mission on Bilingualism and Bicuituralism a few months ago. It is not so intended. On the contrary, I hope to state with reasonable clarity and precision what I think is wrong and what I think can be done to set it right. What I say is bound to be inadequate, not only for obvious reasons but also because I do not know enough. Keeping track of even the main developments in this field is a full-time job; I can give to it only the shreds and patches of days spent mainly in struggling with the problems of Canadian trade union history. Still, I ought to know rather more about it than the average Engiish-Canadian, if only because, though “solidly and stolidly English, alike by ancestry and cast of mind,” I am also an elder and steward of a French-Canadian United Church. 22 This passage also is taken almost verbatim from my encaenial address at the University o f New Brunswick, 1962.

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This somewhat bizarre, if not ambiguous, position should give me some degree of detachment. Whether in fact it does, I cannot be sure: the last time I spoke on this subject, I got two very abusive anonymous letters, of which one said that I had sold out to the French-Canadians, the other that I was inspired by hatred of Quebec! Undeterred by either of these judgements, however, I propose to “ tell forth my tale, and spare it not at all,” hoping that you will find more than “two grains of wheat hid in two bushels of chaff.” The Fathers of Confederation faced a relatively simple prob­ lem of French-English relations. What was to become Quebec was then virtually synonymous with French Canada. At the last Census before Confederation, people of French origin made up only 2.6 per cent of the population of what was to be Ontario, and only 6.3 per cent of the population of Nova Scotia.1 For New Brunswick and Prince Edward Island, no figures are avail­ able; but, judging by the nearest post-Confederation Census, the proportion in New Brunswick cannot have been more than 16 per cent, or in the Island more than I0.2 In Newfoundland and British Columbia, it was certainly negligible. In what later became Manitoba, it was probably about half, but the total was very small. Moreover, as Professor Jean-Charles Bonenfant has pointed out, there is little or no evidence that the Frenchspeaking Fathers of Confederation, all of them from Canada East, either knew or cared much about the French-speaking people beyond the borders of that section of the Province of Canada.3 What made the problem even simpler was that French Can­ ada (using “ Canada” in either the pre- or post-Confederation sense) was overwhelmingly agricultural and rural, and relatively little interested in commerce or industry. Accordingly, the Fathers were able to work out, apparently without even much discussion, a very simple solution. In effect, they guaranteed to French Canada the specific rights which French Canada then felt to be indispensable to its survival and development: first, the use of its language in the legislature, Acts and courts of Quebec, and in the Dominion Parliament, Domin­ ion Acts and any courts Parliament might create; second, its own 1Census o f Canada, 1871, vol. v, p. 18. Census o f Nova Scotia, 1861, pp. 10-11. 2 Census o f Canada, 1871, vol. v, pp. 20-1; Canadian Statistical Record 1886 (Department o f Agriculture, Ottawa, 1887), p. 48. 3Culture (Quebec), vol. 25, decembre 1964, p. 307.

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Civil Law, including the legal right of the Roman Catholic Church to collect the tithe from its members in Quebec; third, complete control of its own educational system in Quebec, subject to certain guarantees for the Protestant minority; fourth, a fixed number of seats for Quebec in the House of Commons, with the representation of other provinces based proportionately on that number; fifth, a fixed number of seats for Quebec in the Senate, though the provisions for entry of other provinces made it plain that the original proportion of one-third of the total could not be preserved; sixth, approximately one-third of the members of the Dominion Cabinet for Quebec, with three-quarters of the Quebec Ministers French-Canadians. The first five of these were written into the British North America Act; the sixth was an unwritten understanding which became part of the conventions of the Con­ stitution. No special rights for the French language or French schools, let alone French Civil Law, were written into the Constitution for Ontario, the Atlantic provinces or British Columbia. No such rights appear to have been even asked for, for the simple and sufficient reason that the French-speaking population outside Quebec was so small, and seemed likely to remain so small, except in Manitoba, that no one even thought of it. Nor does there seem to be any evidence that the Fathers ever thought of giving the French language or French schools or the Quebec Civil Law any special position in the Northwest Territories, in whose Constitution bilingualism made its first appearance only in 1877, and then only as a result of a Senate amendment moved by a private member at the tail end of the session, and accepted by the Government only with manifest irritation.4 Whfcn the Dominion Parliament created Manitoba, it wrote into the Act the right to use the French language in the legisla­ ture, Acts and courts of that province. In 1890, the provincial legislature repealed these provisions, though with the curious proviso that the repeal was to operate only so far as it was within the legislature’s jurisdiction.5 What is most curious is the fact that' only one person appears to have made any attempt to challenge the Act in the courts,6 in 1916, and that failed. It has been authoritatively asserted that at Confederation the French Canadians got much more than this, and that it has since 4 Debates o f the House o f Commons (Canada), 1877, p. Debates o f the Senate, 1877, pp. 319, 437. 5 Statutes o f M anitoba, 1890, c. 14, sections 1-2. 6 M c G ill Law Journal, vol. 12, no. 4, 1966-7, p. 514.

1872;

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been taken from them; for example, that it was “guaranteed” that the two languages should be “ recognized afid used in all federal fields on an equal footing.” 7 This is pure fairy-tale. There is not one shred of evidence that such things as bilingual stamps, bilin­ gual money, bilingual cheques, were ever so much as mentioned till many years later. As for the language of administration: 1 have looked at the original of every Order-in-Council and every Minute of Council from July 1, 1867 to May 19, 1882, in the Public Archives (and there are thousands of them), and I have found not one single Order in French, and only one Minute: p.c. 756 of May 19, 1881. I have also looked at hundreds and hundreds of Orders and Minutes from 1882 to 1900, and have not come across one in French. This may be a deplorable state of things; but it disposes of the yarn that the wicked EnglishCanadians welshed on their agreement and the pusillanimous French-Canadian Ministers, Members and Senators at Ottawa let them get away with it. At Confederation, all the provinces, of course, were given exclusive power over a relatively modest list of specific matters, subject to the Dominion’s power to order Lieutenant-Governors to reserve provincial bills for the Governor-General’s (i.e., the Dominion Government’s) pleasure, and subject also to the Dominion Government's power to disallow any provincial Act within one year. All powers not explicitly given to the provincial legislatures belonged automatically to the Dominion Parliament. This set of arrangements was soon accepted by everybody, not always with enthusiasm (notably in Nova Scotia), but at least as something everybody could live with. When the Judicial Com­ mittee of the Privy Council modified it by giving the provinces far wider powers than the Fathers had ever intended, the changes were accepted with scarcely a murmur of dissent, and of course warmly welcomed by the provincial Governments, especially Ontario, which, till 1887, was the leader in the battle for provin­ cial rights. But even the Constitution as revised by these overseas Step­ fathers of Confederation still left most of the main powers in the hands of the Central Government and Parliament, and no one, until five or six years ago, seems seriously to have thought of anything else. Then things began to happen. Quebec had for some time been getting more and more industrialized, and industrialization had produced the usual stirrings and questionings, the usual loos­ 7 See below p. 314.

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ening of old ties, the/usual cracking of the crust of custom, the usual demands for change. While M. Duplessis lived, all this, or nearly all of it, was kept under. But when he died, the notso-quiet revolution began. Even his own lieutenant and successor, Paul Sauve, took as his watchword, “ Desormais!” “ Henceforth!” With his premature death, and the almost immediate collapse of his party, Quebec became like the young monk of Siberia in Father Ronald Knox’s limerick: “There was a young monk of Siberia, Who of fasting grew wearier and wearier. At length, with a yell, He burst from his cell. And murdered the Father Superior.” The “quiet revolution” did not, of course, go quite as far as that. But it showed prompt and unmistakable signs of wanting to pummel and pound, even pulverize, a variety of existing institu­ tions. Quebec suddenly insisted on a “great leap forward” into the twentieth century. It ceased to be satisfied with talk of an “apos­ tolic mission” in North America, and of the spiritual glories of working from dawn to dusk for meagre wages. Its people sud­ denly realized they were living in a modern industrial society, and they demanded their due share of its material benefits. The new technical and administrative middle class wanted big jobs in industry and public administration. The ordinary people wanted a twentieth century North American standard of living. And they wanted it all in French, or at any rate as much of it as they could by any means short of violence squeeze out of the predominantly English-speaking owners and managers of industry. Most of this most of English Canada would probably have welcomed, perhaps with the complacent feeling that the French-Canadians were at last becoming more like us (as, indeed, in many very important and fundamental ways, they are). It was the wanting it all in French that English Canada was inclined to balk at. For it soon became clear that, in practice, this meant wanting a great many more things under the direct control of Quebec, a whittling down of the powers of the national Govern­ ment and Parliament. This made more and more of us increas­ ingly uneasy, to put it mildly. Most of us with any appreciable knowledge of public affairs, recognized that changing concepts of the functions of government had made both the original provincial powers, such as those over education and health, and the newer, Judicial-Committee powers, far more expensive than the Fathers could ever have dreamt, and

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increasingly so, and especially for Quebec, which had much lee­ way to make up. Most of us realized also that the Judicial Committee’s decisions had not provided adequate extra revenues to meet these extra expenditures: the Dominion had untramelled power to tax, while the provinces’ taxing powers remained lim­ ited. Most of English Canada, however, was reasonably well satis­ fied with the system of Dominion grants-in-aid to the provinces for education and social services, the “shared cost programmes.” Quebec was increasingly dissatisfied with them, indeed increas­ ingly insisted on getting out of them and getting instead, without strings, the money she would have got with strings if she had stayed in. However, we had to admit that the fields concerned belonged, constitutionally, to the provinces; and if any province wanted to take back the management of its own constitutional property, we could not very well refuse. If it also wanted, from the general revenues, to which it contributed, the same amount of money it would have got if it had not “ opted out,” again we could not very well refuse. We might think Quebec was making a mistake, that its people would be better off if they did not opt out; but we could scarcely deny their right to do as they pleased with their own property and not to suffer financially for exercising that right. Nor would Engiish-Canadian acquiescence in the “quiet revo­ lution” have stopped there. Except for those English-Canadians in Quebec whose ox would be gored, very few of us would have raised, or would now raise, any serious objection to as much more use of French in Quebec commerce and industry, and Quebec government, as French Canadians wanted; nor to as many more French Canadians in big jobs in Quebec commerce and industry and government as French Canadians wanted and could get; nor to as high wages, short hours and ample fringe benefits as French-Canadian workers could wring from their employers either by collective bargaining or by legislation. But it was soon plain that a good many of the quiet revolu­ tionaries, even inside the Quebec Government, let alone outside it, wanted a great deal more. Quebec had become more and more predominantly French-speaking. In 1861, Montreal had been more than half English-speaking, Quebec City nearly half, eight counties overwhelmingly English-speaking, and several others had had large English-speaking minorities.8 By 1961, one county had * Census o f Canada, 1861, vol. I, pp. 4-7, 10-11, 14-19, 24-5, 28-37, which show a further six counties with non-French minorities o f 30 per cent or more.

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a bare English-speaking majority, a very few had Englishspeaking minorities of appreciable size, and all the cities (except nine municipalities within metropolitan Montreal) were over­ whelmingly French-speaking.9 Moreover, there had been a new flowering of French-Canadian culture in literature, art, philoso­ phy, theology, political thought; and this had coincided with the emergence of a whole host of new French-language states and with General de Gaulle’s restoration of France to the position of a major factor in European and world affairs. French-Canadians had a new sense of pride not only in the achievements of French Canada itself but in being part of a great, new French-speaking international community; and they felt a new self-confidence. They looked at Ottawa, and saw a Dominion administration predominantly unilingual and unicultural, with the most impor­ tant departments almost invariably headed by English-speaking Ministers, and with a disproportionately small number of French-Canadian senior civil servants. They looked at the other provinces, all, even New Brunswick, with well over a third of its population French-speaking,10 officially unilingual; they saw in all, except New Brunswick, large proportions of the FrenchCanadian or Acadian minorities losing their language, and with little chance of even holding their ground, let alone recovering lost ground, because of the lack of French schools; and they contrasted this with the situation in Quebec, with its official bilingualism and its ample provision for English schools. They looked across the seas at the new French African states. And a frighteningly large number of them concluded that it was no use expecting the central administration to be anything but predomi­ nantly unilingual and unicultural; that the French-speaking minor­ ities in the other provinces were done for, no matter what pres­ sure Quebec might bring to bear; and that if the French African states could make a go of independence, Quebec, with its far larger resources, both human and material, and its far higher level of education and economic development, could make a far better go. No doubt; but at what standard of living? The whole of Canada finds it hard enough to maintain full employment and a tolerable balance of international payments. Quebec would almost certainly find it harder, especially if outside capital took fright, as it well might. The French African states have been able to rely on massive aid from France; an independent Quebec would be very 9 Census o/ Canada. 1961. Bulletin 1.2-5. pp. 37-7, 39-2-3: Bulletin 1.2-9, pp. 66-7, 70-2-3. 10 Census o f Canada, 1961, Bulletin 1.2-9, p. 66-3.

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unlikely to find any similar fairy godfather; and the mere business of disentangling the Quebec economy from the Canadian, and dividing up the assets and liabilities of the Dominion between the two Succession States, would cause staggering dislocations and problems. Some realization of facts like these has caused other Quebec Nationalists to propose, instead of outright separation of French and English Canada, the establishment of two States, separate indeed, but Associated. The St-Jean Baptiste Society of Montreal has presented to the Quebec legislature’s committee on the Con­ stitution a relatively specific outline of such a scheme, which appears to command enough support to make it worth examining in some detail___ 11 Neither the outright separatists nor the partisans of the Asso­ ciate States are by any means negligible. But, as far as I can judge, a much larger and more influential body of Quebec opin­ ion favours a course which can perhaps best be described as in-and-out-ism. Essentially it involves stripping the Dominion of most of its powers in the territory of Quebec and transferring them to the province (a process which, in the Newspeak beloved of some members of the Quebec Cabinet, is called “repatriation” or “recovery” of powers which Quebec never had), yet leaving Quebec Ministers, Members and Senators at Ottawa with as big a voice as ever, or bigger, in decisions which, under the new dispensation, would affect only the other nine provinces. Professor Jacques-Yvan Morin is perhaps the chief prophet of this faith. Over Quebec, the Dominion Parliament’s powers would be reduced to external affairs, (except on matters within the-vastly widened-jurisdiction of Quebec internally, where Quebec would make its own treaties), defense, interprovincial trade and transportation, monetary policy, the tariff, equalization grants to the poorer provinces, unemployment insurance, and broadcasting (this last not in the original version, but added when it appeared that the maintenance of coast-to-coast French net­ works would be beyond Quebec’s means). Others of this school 'would insist on Quebec getting the whole social security field, including unemployment insurance and family allowances. The Dominion would be given "access to precise sources of revenue” (unspecified) “ in accordance with its actual needs” (does this include surplus and deficit financing for the purpose of controlling inflation and stimulating economic growth?). Over the rest of the country, Parliament’s jurisdiction (including its taxing power?) 11 See below, pp. 284-8, for a fuller statement o f the passage omitted here.

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would be as wide as now, or wider. On the few subjects where Parliament would still retain jurisdiction over Quebec, there would be “binational” (half French-Canadian, half EnglishCanadian, that is) boards “ which would participate” (precisely how?) “ in the policy-making process.” There would also be a “binational” Senate, elected half by the French-Canadians, half by the rest of us, which would have power (how much?) to deal with “the rights of minorities, approval of treaties, and appoint­ ment of ambassadors and federal judges,” “radio, television and discussion of constitutional amendments at the federal level.” 12 The Senatorial power over treaties, be it noted, would give the French-Canadian Senators a veto over treaties which concerned the other nine provinces only, as well as treaties affecting the whole country. What would happen if the half-and-half Senate turned down a treaty of either category which the Government was committed to? Would the Government resign and make way for another Government in the existing Parliament (which might turn out to be impossible)? Or would there be a general election? If there were, and the pro-treaty Government were returned, then what? No answer. Nor is this all. The Quebec Ministers in the Dominion Cabi­ net, the Quebec Members of the House of Commons, would still be there. How would they fit in? Would there still be nine Quebec Ministers out of twenty-six? Would Quebec Ministers preside over departments dealing exclusively with the affairs of the other nine provinces? Or would they be eligible only for the portfolios of External Affairs (dealing largely with matters affect­ ing the nine other provinces), Finance, Defence, Trade and Com­ merce, Transport and National Revenue (which would reduce their number to six)? Would English-Canadians be content to see all these portfolios go to Quebecers? When the Cabinet was considering matters exclusively the concern of the nine other provinces, would the Quebec Ministers withdraw, or otherwise refrain from taking any part in the decision? What would a Prime Minister from Quebec do? All these questions I have put to Professor Morin, publicly. As far as 1 know, neither he nor anyone else has ever answered. And when a matter affecting only the nine other provinces came to the House of Commons, what would the Quebec Mem­ bers do? Speak, but not vote? Speak and vote? Under the in-and-out scheme, the rest of us would be strictly forbidden to 13 Canadian Forum (Toronto), June, 1964, pp. 64-6.

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touch anything reserved to Quebec; but would this work both ways? I asked Professor Morin that question, publicly; his reply was, first, that the prospect of Quebec Members voting on mat­ ters which, under his Constitution, would be none of their busi­ ness, seemed to “frighten” me; second, that “ it could always be provided . . . that Quebec members must abstain from debates and votes which involve only the nine provinces;” 13 “could,” note, not “would.” Whether the rest of the in-and-outers would go as far, I do not know. What 1 am perfectly certain of is that English Canada would not accept any scheme under which Quebec Mem­ bers could vote on matters concerning only the other nine prov­ inces. Why on earth should they? Behind all these schemes, separatism, Associate Statism, in-and-outism, lies a mystique about the French-Canadian “nation” (which, incidentally, sometimes includes the Frenchspeaking in the other provinces, sometimes not). That French Canada is a “nation” in the same sense as Scotland or Wales, (ethnically, sociologically, culturally), no one, I think, can deny; nor have I ever heard any Engiish-Canadian so much as question it. But most of the French-Canadians who use the term use it without qualification, and proceed to argue that French Canada must have the rights of a (political) nation, limited only, in the Associate States or in-and-out schemes, by certain considerations of convenience. A nation must have this, a nation must have that, a nation must have the other thing; and of course, if you are talking about a political nation, so it must. In other words, the logical conclusion of the “two nations” theory is unmistakably two totally separate States; and in fact this would be the practical outcome of Associate Statism or in-and-outism, for two reasons. One is that the Associated State of Quebec, and the crypto-Associated State of in-and-outism, would both, inevitably, be irredentist: there would be constant complaints of the sad fate of the Volkslaurentisch beyond the borders of Quebec, and a growing demand that at least the contiguous French-speaking areas of Ontario and New Brunswick should be annexed to Quebec. The other reason why neither the Associate States nor in-and-outism would last is that they presuppose not only a French-Canadian nation but an Engiish-Canadian nation to match it. But, as Principal LePan has recently pointed out, we, English-Canadians, “are not a nation and have never thought of 13 Ibid., September, 1964, p. 122; February, 1965, p. 257.

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ourselves as one.” 14 Nor, 1 may add, do we want to be one. This may make the Royal Commission or its staff very cross, but it is a fact. If, however, circumstances force us to be one, 1 am confident that we shall want to go the whole hog, with no ifs or buts or ands, no strings, no fancy Confederal Chambers or Supreme Councils or half-and-half Senates. If separate nation­ hood is forced down our throats, we shall take it neat, thank you. Does this mean simply keeping things as they are? By no means. For one thing, it does not in the least rule out separation. If Quebec really wants independence, we have neither the right nor the means to stop her. All we can do is sit down and do some very hard bargaining on the terms. Second, if Quebec really wants to divide the country into two Associate States, or an in-and-out polity, or an “alliance” (a la Gerin-Lajoie),15 or a twentieth century North American version of the Holy Roman Empire or the Austro-Hungarian Dual Mon­ archy, then I think all we can or will do is say good-bye. These half-way houses would be built on sand. Third, there are certain powers which Quebec can have only if it becomes an independent State. If it really wants these, then it will have to get out, for if it got them the Canadian Economic and Political Community would disappear. Some people in Quebec seem to think it is possible to have, as I have said elsewhere, “dry water, boiling ice, sour sugar, stationary motion.” It is not. You will note that I keep saying “ really wants.” That means, wants enough to be prepared to pay the price for them. I suspect that some Quebecers are asking for things they only i/nreally want; that if they realize what the price is, notably in a reduced standard of living, they may cry off. Now for the other side. First, we English-Canadians have got to get it firmly into our heads that this country never was and never will be a country of one language and one culture. The French language and the French-type Civil Law always have had a special position, and always will, as long as Canada survives. French is not a “foreign language” in Canada. French Canadians are not just one among M “ The O ld Ontario Strand,” Speech to Charter Day dinner, October 14, 1965, Victoria College, University o f Toronto, p. 4 o f m im eo­ graphed text. 15 Convocation Address, Carleton University, Ottawa, May 21, 1965, mimeographed text, especially pp. 3-4.7.

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many ethnic groups, or even the largest among many minorities. Second, Quebec is not just “one province like the others.” It 'always has had a special position, a special status. It alone is officially bilingual. It alone has a separate Civil Law. It alone cannot divest itself of its power over property and civil rights. Third, we cannot simply maintain the Confederation settle­ ment; the Judicial Committee overturned a good deal of it long ago. We cannot even simply maintain the revised Constitution the Judicial Committee gave us. The industrialization of Quebec, its cultural renaissance, the expansion of French Canada far beyond the borders of Quebec, all call for adjustments, though not neces­ sarily for the return to 1860 which some people are in effect proposing. Then what can we do? First, sit down with our French-Canadian fellow-citizens and look at every single section of the British North America Act; ask them whether they are satisfied with it; if not, how it hurts them, and what precise changes they would like, and why; if we are satisfied with it as it is, tell them why; if we think it ought to be changed, tell them why and how. If both sides do this honestly, on the basis of facts, and using their heads, I suspect we may end up finding ourselves closer together than we had expected, and able to agree on amendments which, though not ideally satisfac­ tory to either party would at least give us a revised Constitution we could all live with; grumblingly; perhaps, but without any hardship comparable to what separation or hemidemi-semi-separation would bring. O f course we might find our­ selves so far apart that there would be no alternative to separa­ tion. But even if we reached that melancholy conclusion, we should at least know better why, and march forward into that grim future with our eyes wide open, instead of stumbling into a minefield in a rosy haze. Most French Canadians, I think, want two things: more power for Quebec, and a much bigger share for French Canadi­ ans in running the whole country. The kind of detailed examina­ tion of the Constitution I am suggesting would deal with both. Within limits, I do not think they are incompatible. I would go farther: I think the larger the share French Canadians have in running the whole country, the less of the central power they will try to have transferred to Quebec. One of the troubles now is that they seem more and more to feel that Dominion power is really pretty much a synonym for Engiish-Canadian power: the Govern­ ment of Canada, the Parliament of Canada, is “ them,” not “ us.” If we can give them the feeling that the whole country is their

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show as well as ours, then it should be possible to discuss which authority, Quebec or the Dominion, should have a particular power on the same basis as we discuss whether a particular industry should be run by private or public ownership: “ Which is likely to do the better job in this particular field at this particular time?” 1 do not myself see how Canada could survive if the powers of the central Government and Parliament were substantially reduced; but I am open to conviction, by rational argument, based on facts; and I think we all should be. I do not think we should be ready to capitulate to ultimatums. The only way we can get French Canadians to feel that the whole country is their show as well as ours is to make it so, make it both English-Canadian and French-Canadian. If we want, as I believe most of us do, “one Canada,” Cartier’s “political nation­ ality,” a viable Canadian Economic and Political Community, then we must give the French-Canadians outward and visible signs that we really want it, that we are prepared to pay the price for it. In concrete terms, I think that means a number of things. First, bilingualizing the central administration as completely and as quickly as we can. Second, giving French-Canadian Ministers more of the important portfolios. Third, bilingualizing the New Brunswick administration just as far and as fast as possible. Fourth, doing the same in municipal government and the courts wherever there is a substantial French-speaking minority that wants it. Fifth, providing French education for French-speaking children wherever the parents want it and there are enough such children to make it possible. I know this will be far from easy; I know it will cost something, in money and efficiency, at least in the short run. But I think we must be prepared to pay a reasona­ ble price to keep our country from breaking up, and I do not see how the price can be much less than what I have just suggested. However, I am in no position to be dogmatic either on any one item or on the whole bundle. The essential thing is that we should be willing to discuss the matter with our French-speaking fellow-citizens, find out what they think is needed, see precisely what the difficulties are and how far they can be overcome, see what alternative proposals might do the job. The possibilities of success in this very difficult task will be much improved if we start with specifics rather than with general principles. General principles are a double trap for the unwary. First, a general principle that looks the embodiment of sweet­ ness and light can lead straight to the wildest impracticabilities. Take the proposition that both languages should be official in

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every province. What could look fairer than that? But it means that all the records, journals and documents of the legislature and courts in, for example, Newfoundland, would have to be put into French, which is utterly impossible, and would do no good to anybody under the sun. ' French Canadians, because of their training in scholastic logic, are less likely than we to fall into this trap. But they could just as easily fall into the other, which can be illustrated by the two opposite general principles that Quebec must, and Quebec must not, have a “special status.” If the Quebec claims for special powers, which in concrete terms might be very modest, are pre­ sented as a demand for “special status” (undefined), then English-Canadians may reject them out of hand, in the belief that they involve something close to the Associate State. If, on the other hand, the Engiish-Canadian view that anything like the Associate State is impossible is presented as a refusal to consider any “special status” (again undefined) for Quebec, then French Canadians may think that the Engiish-Canadian position is far more rigid than in fact it is. Everything really depends on how “special,” special in what ways? It is only when we get down to something concrete that we know what is really being asked or refused. But this itself may be difficult. For French Canadians, thanks again to their training in scholastic logic, love general principles and a priori reasoning (though the “quiet revolution” is likely to make this less and less true), while people of the English (though not the Scots) tradition instinctively recoil, always ready, like Mr. Brooke in Middlemarch, to meet any statement of general princi­ ple with “ Up to a point, you know, up to a point.” Also, there are certain matters where our respective attitudes are at opposite poles. For instance, in any discussion of changes in the Supreme Court of Canada, we are likely to run into a French-Canadian belief that judges are, in effect, representatives of the authority that appointed them, and that therefore judges appointed by the Dominion cannot give an impartial decision in any legal dispute between the Dominion and Quebec; an idea which leaves anyone of the English Common Law tradition simply open-mouthed, in unbelieving astonishment and horror. We may also find ourselves at opposite poles on the method of amending the Constitution. Even if the Fulton-Favreau for­ mula goes through, which looks doubtful, we shall still face demands from Quebec for a method of amendment which will give that province the same iron-clad guarantee of what it now has (unanimous consent of the provinces to any change), but

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which will also allow Quebec to get any extra powers it wants simply by obtaining the consent of the Dominion Parliament. I doubt very much whether English Canada would be ready to give a chance majority in the Senate and House of Commons power to upset the whole balance of the Constitution and cripple or destroy the Canadian Economic and Political Community. For certain changes in Quebec’s powers which have been proposed would do precisely that. They would not be just Quebec’s private business: they would vitally, or perhaps I should say mortally, affect us all. A Parliament perhaps elected on a wholly different issue, perhaps (as now) on a scandalously outdated distribution of seats, perhaps already nearing the end of its maximum five years’ duration - in short, a Parliament which might be thoroughly unre­ presentative of public opinion on this issue-, such a Parliament might be a most inadequate guardian of the national interest. I have left out a great deal. I have left unsaid many things that I have said on this subject elsewhere, not because I have changed my mind (for I have not), but because the particular things I have tried to deal with to-night seemed to me more urgently to need saying at this moment and to this audience. I might add that, though I may not have sounded like it, I have deliberately tried to pitch what I had to say in a rather low key, deliberately resisted the temptation to speak my mind in much more vivid, even lurid, language. I have only one final word. In the whole evening, I have not said one syllable about the “third force”, the Canadians who are neither British nor French. This does not mean that I am relegat­ ing them to second-class citizenship. The simple historical fact is that, when this nation was founded, almost ninety-nine years ago, the British and French were here, and the others were not; and our institutions therefore, naturally and inevitably, took the imprint of those who were here, not of those who were not. The English and the French languages, English and French law, were given positions which no other languages and no other systems of law enjoy; there is not the slightest suggestion, let alone the slightest prospect, that any other languages or systems of law will be given any official status (though seventy-odd years ago an eccentric Senator did propose that Gaelic should be made a third official language!);16 and people of other languages and cultures have in fact no choice but to adapt themselves to the language and legal and political institutions of one or other of the “found­ 16 Hon. T. R. Mclnnes, Debates o f the Senate, 1890, pp. 113, 229, 233-4, 295-311.

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ing peoples” . It is within that framework that they have already made their immense contribution to Canada; it is within that framework that we all must make our contributions if Canada is to survive.

22. Memorandum on the Associate States The nearest thing to a specific proposal for this sort of solution to our constitutional problems is the memorandum of the SaintJean-Baptiste Society of Montreal to the Quebec Legislature’s Committee on the Constitution, May 15, 1964. The present Canada would disappear. It would give place to two nations, “ English Canada” and “Quebec,' each embodied in a sovereign “ National State” ; and the two would “associate themselves” to form "the Canadian Confederation.” “ English Canada” would be composed of “ the EngiishCanadian provinces.” The repetition of the word “ English throughout the document, and the total ignoring of the Frenchspeaking minorities in the “ English” provinces, are noteworthy. There is not one syllable about any provision for their rights. On the contrary, there is the explicit statement that “the Associated State of Quebec and the Associated State of English Canada, including its several provinces,” would each "decide on its official language or languages.” Moreover, while there is provision for a Bill of Rights in Quebec, there is nothing about a Bill of Rights either in “ English Canada” or in the “ Confederation” as a whole. And, as if to drive the point home, “ English Canada’s” opposite number would be not “ French Canada” but "Quebec. Having made it plain that the "National State” of the nine provinces would be thoroughly, totally, "English , the Society might have been expected to leave that National State’s Constitu­ tion to be determined by the people concerned. But it does not. Instead, it lays down firmly that “ the Engiish-Canadian provinces will continue to form a federation,” and that this federation s Constitution “will recognize the delegation of powers between Ottawa and the provincial governments.” It graciously concedes that “the number of provinces” of the Engiish-Canadian “federa­ tion” could be “ reduced.” It says the “ Engiish-Canadian nation would have “freedom to give its national government all the powers necessary to discharge the responsibilities” which that nation “thinks fit to confer on it” . But apparently the “ EngiishCanadian nation” would not be allowed to set up a unitary state. The other “sovereign state” would be “ Quebec” , which, if its electors, by referendum, so decided, would be a republic. The

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President would be elected by “all the members of the Quebec Parliament” plus an equal number of “grand presidential electors chosen by the municipal councils.” The President would “sign all the laws adopted by the Quebec Parliament,” which would be made up of a “Chamber of Deputies and a Chamber of Council­ lors,” both “elected by the people.” Each “ National State” would, “ in principle,” have “all the powers of a sovereign state.” In practice, their sovereignty would be “ limited” in two ways. First “certain powers” (not specified) would be “exercised jointly by the governments of the Associated States in virtue . . . of a treaty concluded between the two States,” which would be “ revised every five years.” What this means, there is not one word to explain. Second, certain other powers would be given by the two States to the “ Confederation,” under the “ Confederal” Constitu­ tion. The Confederation would have a unicameral Legislature to be known as the “Confederal Chamber.” The National Government of each State would “ itself determine the method of election and the term of office” of its representatives in the Confederal Cham­ ber, and “their electoral districts.” This last seems to imply that the members of the Chamber would have to be directly elected, and could not be chosen either by the National Parliament of either State or, in the case of “ English Canada,” by the provin­ cial legislatures. No law could be passed by the Confederal Chamber unless it obtained a majority vote from the representatives of each Asso­ ciated State. And on what matters could the Chamber legislate? Total silence. The explanation seems to be that the real power in the Confederation would reside not in its Legislature but in its Execu­ tive, the “ Supreme Council of the Confederation.” This “ Supreme Council” would be made up of “ the Govern­ ments of each Associated State.” Each Government could “dele­ gate an equal number of Ministers to this Council,” which would be chaired, turn and turn about, “ by the Prime Minister of each Associated State.” The Supreme Council would “direct the foreign policy of the Confederation.” Nothing is said about what “foreign policy” would in fact include: an astonishing omission, in view of the very sweeping claims advanced for Quebec in this field under the present Constitution (notably by M. Gerin-Lajoie in his cele­ brated speech to the Montreal Consular Corps in April, 1965). The Supreme Council would also “ have the responsibility of

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supervising the execution of laws passed by the Confederal Cham­ ber" (on the totally unspecified subjects on which it would be empowered to legislate); of appointing the Confederal civil serv­ ants; and of “establishing a close co-operation between the two Associated States in the fields where they have common interests: economic planning, monetary policy, customs, financing of the Confederal administration, continental transport, etc.” Apparently, economic planning, monetary policy, customs tar­ iffs, financing of the Confederal administration, continental trans­ port and whatever may be covered by the majestic sweep of that “etc.,” would not be dealt with by the Confederal Chamber but by arrangements arrived at between the two sets of ministers. The Supreme Council would also “create the Confederal Court to hear all cases to which the two Associated States were directly or indirectly parties.” This High Court would have two annual sessions: one in the capital of the “ Engiish-Canadian Federal State” (note, once more, “ Engiish-Canadian” and “ fed­ eral” ), “the other in the capital of the State of Quebec.” In view of the numerous demands from Quebec that the Supreme Court of Canada ought to be provided for in the Constitution itself, not by a mere Act of the central Parliament, it is surprising that the Saint Jean-Baptiste Society is prepared to leave the constitution of the Confederal Court to a mere decision of the Confederal Executive. One would have thought that if the matter was not to be dealt with in the Confederal Constitution itself, at least it would be entrusted to the Confederal Chamber. It is difficult to resist the conclusion that the Chamber’s functions can be summed up in Flecker’s lines: Give all thy days to dreaming, And all thy nights to sleep. Let not ambition’s tiger Devour contentment’s sheep. This is perhaps just as well, since it is equally difficult to resist the conclusion that the number of laws which would get the required double majority would approach zero. How would the Supreme Council itself arrive at its decisions? Silence again; but one can scarcely doubt that, as in the Confed­ eral Chamber (if it ever had a chance to pronounce on anything), any decision would require a double majority. Given the principle of collective responsibility of each of the two Cabinets, this would in fact mean that nothing could be done except by unanimous vote. “ French and English” would be “ the two official and obliga­

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tory languages of the Confederal State in all its organisms and in the exercise of all its legislative, executive and judicial powers.” One would be grateful for some precision here, but none is forthcoming. “The assets and liabilities of the Canadian State,” says the Society, would be “divided between the State of Quebec and the National State of English Canada in proportion to their respec­ tive populations, allowing for the federal property actually situ­ ated on Quebec territory which would of course fall to the State of Quebec. Th-is latter would thereafter transfer to the Confederal administration the properties deemed necessary for its proper functioning.” There are two ambiguities here. First, who would do the “deeming”? The State of Quebec or the Confederation? Second, what is meant by “allowing for the federal property situated on Quebec territory”? Does this mean that Quebec would get all such property, and that the remaining assets of the Dominion of Canada would be divided between the two Asso­ ciated States in proportion to population? Or does it mean that all the assets would be divided in proportion to population, Quebec’s share to include all those actually situated on Quebec soil? It sounds remarkably like the former. Finally, there would be a procedure for amendment, “protect­ ing the freedom of each Associated State.” What this means is anybody’s guess. “This,” said Hurrell Froude at the end of his biography of St. Neot, “ is all that is known to men of the life of the Blessed St. N.eot, but not more than is known to the angels in Heaven.” What has just been outlined is all that is known to men of the Saint Jean-Baptiste Society’s proposal for a Canadian Confedera­ tion of two Associated States; and the angels in Heaven are not available for our further enlightenment. The Society itself seems to have suspected that some people might want something rather more precise; but all it offers for their satisfaction is a couple of final paragraphs which dispose of all the real problems by an airy: “ We leave to the experts in constitutional law, economics and political science the task of drafting the Constitution of the Asso­ ciated State of Quebec and of the Canadian Confederation. We have simply set forth the principles which should guide the authors of this Constitution, and described rapidly the principal institutions to which they will give birth.” It is difficult to believe that the other nine provinces will ever agree to buy such a very large pig in such a very thick black

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poke. If they did, they would almost certainly find, when they opened the poke, that the pig was paralyzed. If any such propos­ als are brought forward, either in a Dominion-provincial confer­ ence or anywhere else, the representatives of the other nine provinces should insist on very precise explanations on every one of the “ principles” they are asked to subscribe to, and on the functioning of every one of the “ principal institutions to which they would give birth.” The “experts in constitutional law, eco­ nomics and political science” should be called upon to stand and deliver. Only when they have done so will the governments of the nine provinces, and their people, not to mention the people of Quebec, be in any position to say whether they will accept such a scheme. The prospects of the nine provinces accepting this scheme are, in my judgment, nil; so are the prospects that, if they did by any chance go into the thing, they would stay in it for any period much longer than half an hour. But whatever happens, their governments, and the government and people of Canada, must know exactly what it is they are being asked to accept. The great danger is that in a mood of saccharine amiability, the governments will shut their eyes, open their mouths, and swallow, and Canada will die. (In my Champlain Lecture, I was more optimistic about the possible response of English-Canadians to the St-Jean-Baptiste Society proposals: “ How anyone in his right mind could for a moment suppose that English-Canadians would ever accept this. ‘Through The Looking Glass’ concoction, this recipe for total paralysis in every­ thing relating to those ‘common interests’ which even the St-Jean-Baptiste Society admits, passes all understanding. There is not, and never will be, any Engiish-Canadian public man stupid enough to get himself tangled in this net; some of them may be mugs, but none of them are such mugs as all that. “ ‘Will you walk into my parlour?’ says the spider to the fly.” Or, to quote a more exalted authority: “ Surely in vain the net is spread in the sight of any bird.” )

23. C a n a d a , 1967

In the last few months, and especially in the last few weeks, as I contemplated the title of this lecture, “ Canada, 1967,” I have wondered, more than once, whether the words should not be

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followed by a question mark. Last Wednesday evening, as I began my course at Carleton University on the government of Canada, I wondered whether it might not, by the end of the academic year, be a post mortem. The victory of the Union Nationale in the Quebec elections, and, still more, M. Daniel Johnson’s declaration of war on Canada, at the Dominionprovincial Conference, seemed to confirm the gloomiest of the fears for the future of this country which have been growing in my mind over the last five years. I have not yet given up hope that Canada will survive. I feel fairly sure it will survive at least till the Montreal World Exposi­ tion is over, and paid for. I am certainly not ready to give up, and let the purveyors of “veiled treason” and sheer nonsense destroy this country. But I think the situation is deadly serious. The air is thick with the voices of those who assure us soothingly that we need not really worry about what M. Johnson is saying; that, to adapt an old phrase, it is all just “pretty Danny’s way;” that he doesn’t really mean it; that it is just a vote-catching gimmick; that indeed M. Johnson is really an improvement over M. Lesage, because is is so quiet and well-mannered, and does not shout or bang the table; that, having used extreme Quebec nationalism for his own purposes, he can then turn the thing off like a tap. 1 don’t believe it, and I think most of the people who are saying these things are just whistling to keep their courage up. I venture to suggest that we should all do better to stop whistling and start using our heads; asking ourselves whether Canada is worth saving; whether it can be saved; what we mean by Canada, and whether what we mean is worth saving and can be saved; whether, if the kind of Canada some of us believe in is destroyed, anything worth while can be salvaged from the wreckage. 'I think Canada is worth saving. So, apparently, does M. Johnson: you can find passages in his speech to the Dominionprovincial Conference to prove it. I think it can be saved. So, very clearly, does M. Johnson. Again, you can find passages in his speech to prove it. Then what is there to worry about? Surely we are both singing to “one clear harp in divers tones”? No, we are not. We are talking about two totally different things. M. Johnson’s Canada and mine are as different as steel and cobwebs; and I venture to think that mine is a good deal nearer to what most people in English-speaking Canada believe in and are pre­ pared to accept. Before I go any farther, let me make two things as clear as I can. First, I am not an English-Canadian Colonel Blimp. Every

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now and then, when I have been bold enough to say publicly that I think some particular statement by some particular French Canadian is nonsense, and say why, someone telephones me to tell me, in effect, how delighted he is to find that 1 agree with him that all French Canadians should be boiled in oil. When 1 reply that I have said nothing even remotely like this, and that, on the contrary, 1 think certain things French Canadians are asking for are perfectly reasonable, he comes back with (for example): “ But surely you don't believe in bilingual street signs in Ottawa, or more bilingualism in the Dominion civil service, or French education for French-Canadian children outside Quebec?” I say, “ Yes, I believe in them all.” This usually produces some­ thing like an apopletic fit at the other end; whereupon I adminis­ ter the coup de grace by adding: “ I think you may be under a misapprehension about my position. Perhaps 1 should tell you that I am an elder and steward of a French-Canadian United Church.” That usually puts an abrupt end to the conversation, but leaves me ramping heraldically around my office, shouting, “ These infernal English are hopeless! They never will understand anything! I'm going to apply for membership in the Rassemblement pour l’lndependance Nationale.” O f course reason soon returns to her throne, at least in a measure, or so I hope! But the point is that I can, and often do, get as furiously exasperated with some English Canadians as I can, and often do, with some French Canadians, and for exactly the same reason: that they appear to me to be talking nonsense, and sometimes pernicious nonsense. (I may add, parenthetically, that some of the English-speaking Canadians who talk the worst nonsense are not the Colonel Blimps or the antediluvian Orange bigots, but the amiable mugs, usually highly intelligent and highly educated, who lie down on their backs with all four feet in the air, and urge all the rest of us to do likewise, and to join them in inviting the wildest Quebec nationalists to dance on our stomachs. I shall have something more to say presently about these “tem­ perate statesmen,” as they think themselves.) Second, I am not going to argue that we can or should maintain the status quo ante any particular date. We certainly cannot maintain the division of legislative powers which the fathers of Confederation gave us, because the Judicial Committee of the Privy Council long ago turned a great deal of that inside out and upside down. Nor shall I argue that we can, or should, preserve the division of powers which the Judicial Committee gave us. Some of that we have already changed, and more of it perhaps we ought to, though not necessarily, as most people are

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apt to assume, by giving any province, or all of them, more powers. Certainly I am not going to argue that we should pres­ erve the precise degree of official bilingualism provided for in section 133 of the British North America Act. We have long ago gone beyond it in practice; we are going farther beyond it every day; and 1 believe we can and should go farther still, though there are limits beyond which any further extension becomes totally impracticable. Nor shall I argue that all provinces must have precisely the same powers. Seven of the ten already have a special constitu­ tional position in certain respects. Quebec has, and always has had, in at least two: it is the only province with official bilingual­ ism,1 and the only one that cannot divest itself of its power over property and civil rights.- Both Quebec and Ontario come under special constitutional provisions for their Dissentient and Separate Schools respectively.3 Manitoba comes under one modified form of section 93 of the British North America Act, safeguarding certain educational rights and privileges of its Protestant and Roman Catholic minorities;4 Saskatchewan and Alberta come under yet another modified form of that same section;5 New­ foundland does not come under anything like it, educational rights in that province being governed by a wholly different provi­ sion.6 New Brunswick was specifically left, in 1867, with power to levy certain lumber dues forbidden to other provinces.7 So 1 cannot see why some further special provision for one province, ) Quebec or any other, must be ruled out simply because it does not apply to all of them. J Putting it positively: I think we should be perfectly prepared to sit down with our French-Canadian fellow-citizens and discuss, on the basis of facts, and in the light of reason (or as near to it as we can get) any specific changes they, or we, may consider needed, no matter how drastic. On the basis of what I know now, I am not convinced that any fundamental or very substantial changes are needed. But if anyone, English-speaking or Frenchspeaking, gives me facts and arguments to show that a particular change is necessary and practicable. 1 am perfectly ready to act 1 British North America Act, 1867. section 133. : Ibid., section 94. 1Ibid., section 93 (2). 4 M anitoba Act, 1870, section 22. 5 Saskatchewan and Alberta Acts. 1905, section 17. ''British North America Act. 1949 (N o. 2), Schedule, Term R .S .C . 1970, Appendices, N o. 30, pp. 420-1. 7 British North America Act, 1867, section 124.

17:

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accordingly; and I think we all, English-speaking or Frenchspeaking, ought to be. I do not think any of us, English-speaking or French-speaking, should be presented with a set of cutand-dried proposals, and told to sign on the dotted line, and sign quick, on pain of secession or expulsion. That is a long preliminary to the main things I want to say. But sad experience has convinced me that it is necessary. After one speech of mine on this subject, I received two anonymous letters. One accused me of being inspired by hatred of Quebec, the other of having sold out to the French Canadians. To cap that, the president of the Students’ Society at one of our great English-language universities told me she thought the first letter was right! And to cap that, a writer in a well-known FrenchCanadian magazine, commenting, kindly, even flatteringly, on the same speech, said it was perfectly clear that I was not prepared to budge an inch on anything of importance. Now, what exactly is M. Johnson, the head of the Govern­ ment of Quebec, asking for, and, undoubtedly, with the support of a great many people in Quebec, though not necessarily quite as many as he makes out? I am not going to discuss the demand for 100 per cent of certain direct taxes, though on that, for once, I am in Mr. Pearson’s and Mr. Sharp’s corner. I want to discuss the much more basic question of the constitutional framework in which M. Johnson has deliberately, and candidly, set his taxation proposals, and against which he rightly says those proposals must be viewed. I am going to rely almost wholly on the official French text of his speech to the Dominion-provincial Conference, so that there can be no question of misquoting, or, I hope, of what can be worse, wrenching something out of context (like the man who contended that the Bible justified suicide, since it indubitably said, “Judas went out and hanged himself,” and also said, “ Go thou and do likewise” ). The first proposition M. Johnson laid before the Conference was this: “ We believe that there exists in Canada, in the sociolog­ ical sense of the term, a nation of French speech, whose home is Quebec.” 8 That there is, in the sociological sense, a French-" Canadian “ nation,” as there is a Scots “ nation,” and a Welsh “nation,” who would deny? Who ever has denied? Who wants to deny? Whether its “ home” is exclusively Quebec is another mat“ This and other quotations are from the pamphlet distributed at the time. The wording in the printed volume. Federal-Provincial Tax Structure Committee, Ottawa. 1966, is slightly different. The pages cited are from the printed volume. This first quotation is from p. 49.

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ter. There are well over a million Canadians of French origin, and close to a million of French speech, outside Quebec. M. Johnson, of course, knows this. He knows also that he is Premier of Quebec, not of French Canada; that the million or so French Canadians outside Quebsc had no more to do with elect­ ing him than I had. But he wants to speak for French Canada. So he quietly drops the word ‘foyer,” “home,” and substitutes “point d’appui,”9 which my dictionary translates “base of opera-" tions.” (Later, it becomes “the chief home” of the sociological nation.) Then he proceeds to tell us “what Quebec wants,” Quebec as the “point d’appui” of the sociological nation. It wants to be “master of its decisions” in education (it is already, subject to certain safeguards for the Protestant minority); “all forms of social security” (this would mean the transfer of old age security and unemployment insurance to the province); “all forms of health” (little, if any, change here); “the power to set in motion all the economic and financial instruments which it thinks neces­ sary to its economic affirmation” (a delightfully open-ended clause, which could include tariffs, monetary policy, almost any­ thing); “arts and letters” (this would push the Canada Council right out of Quebec); “the French language” (this could mean the disappearance of English as an official language in Quebec); and “the ‘rayonnement’ [I find this hard to translate, but it doesn’t much matter, because just see what’s coming] of the Quebec community [not French Canada, this time] in relations with certain countries and certain international bodies” 10 (which, again, is delightfully open-ended, but could mean almost any­ thing, including a separate diplomatic service and separate mem­ bership in the United Nations). Some of this is, admittedly, vague, though none the safer for that. But this is only the beginning. So far, the French-Canadian “ nation” is purely “sociological.” On the very next page of the speech, however, comes this: “The new Government of Quebec has set itself a fundamental task: that of getting recognized, juridically and politically, the French-Canadian nation.” On page 2, the "nation” is “sociologi­ cal;” on page three, hey! presto! it is “juridical and political.” 11 “ God bless the King: our and the Faith’s Defender! 9 Ibid., p. 51, which uses the word “ heartland.” p. 50 says “ m ain­ stay.” 10 Ibid., p.50, which speaks o f "presence abroad.” 11 Ibid., p. 50.

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God bless (no harm in blessing) the Pretender! But who Pretender is, and who the King, God bless us all, that’s quite another thing!” The “sociological nation” is whisked off the stage, and a “jurid­ ical and political nation,” “quite another thing,” whisked on in its place; and this is to be “juridically and politically recog­ nized” by, “among other means,” a “new Constitution,” which will grant “equal collective rights to Canadians of English speech and Canadians of French speech.” 12 Note the word “ collective” , and note what the collectivities are to be: English-speaking Canadians and French-speaking Canadians. And then, the master conjurer’s next pass: “ and which will give Quebec all the powers necessary to safeguard the Quebec ident­ ity.” 13 French Canada disappears up one of M. Johnson’s sleeves, and Quebec pops out of the other. And then, on page 4, another passe-passe, and lo! Quebec has become French Canada! “ For a province,” we are told, “the joint programmes” may be well enough; “ for a nation, like ours,” they just won’t do. And, by way of foreshadowing what is to come later, M. Johnson adds that, after Quebec has opted out of all the joint programmes (getting, of course, from the Dominion, without strings, all the money it would have got as part of those pro­ grammes) it would “ remain nevertheless willing to take part in the federal-provincial conferences which . . . might be summoned to discuss questions relating to those programmes.” 14 In other words, “The programmes will no longer apply to us, or touch us in any way; but we shall be quite willing to help decide how they will apply to you.” As Florence Nightingale said when the King gave her the Order of Merit. “Too kind, too kind!” Already we can discern the shadowy outlines of another “ nation,” an Engiish-Canadian nation, which is to be created for us by M. Johnson and his friends (who, in this context, include a surprising number of English-speaking Canadians), and imposed on us, willy-nilly, by their “ new constitution.” The outlines become a little clearer as M. Johnson goes on to warn the Dominion Government not to bring the joint programmes to an end in the other provinces, which, after all, are only provinces, while Quebec is “ the chief home of a nation.” 15 Next: while waiting for the “ new constitution” which is to Ibid. " Ibid. 14Ibid. "Ibid., p. 51.

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give Quebec (or French Canada; it is not always easy to be sure which of them M. Johnson is talking about at a given moment) equality with the other nine provinces taken together, Quebec must not only have complete enjoyment of the full rights which the present constitution confers on it and on the mere provinces alike, but “ we must proceed, without delay, to a reassignment of resources and functions between the federal Government and the Quebec Government.. . . The Government of Quebec would gradually become solely responsible on its territory for all public expenditure relating to education in all its forms, old age security, family allowances, health, employment services, technical educa­ tion, regional development,. . . aid to municipalities, research, fine arts, culture, and, generally, every other service of a socio­ cultural kind which comes under our jurisdiction by virtue of the present constitution.” 16 Out goes the National Research Council, on the heels of its younger brother, the Canada Council; out goes the National Employment Service, which, under the present con­ stitution is a matter of exclusive Dominion jurisdiction. Existing Dominion plans in all these fields, M. Johnson adds, would be “taken over by Quebec, which, if need be, would maintain their portability” (how is not stated). And all this not under the “new constitution,” but ahead of it; as M. Johnson explicitly says, “ to prepare the way” for it. And what kind of constitution will it be? M. Johnson, under­ standably, since he was speaking at a fiscal, not a constitutional, conference, did not go into detail. But he and others, elsewhere, have given us a pretty clear idea of the foundations and some of the superstructure. First, it must “ recognize, politically and juridically,” the “two nations,” French-Canadian and English-Canadian, and must give them “equal rights.” Second, it must give the province of Quebec a status so special as to be nearly indistinguishable from that of a sovereign state. Third, if there is no “ English-Canadian nation” for the “ French-Canadian nation” to be equal to (and there isn’t), it must be created. Don’t laugh! M. Johnson didn’t say so; but others have. Listen to this, from an English-speaking professor, quoted, with whoops of enthusiasm, by a prominent Englishspeaking member of the Ontario legislature: “The French Canadians often say to us, ‘We French Canadi­ ans know that we are a nation. Whether you English Canadians

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are a nation is for you to decide.’ It is time for us to take up the challenge. If are willing to make use of it for our own purposes, French-Canadian nationalism can help to create a true Eng­ lish-Canadian nationalism . . . . The fact that the French Canadi­ ans tend to think of us as an English-Canadian nation . . . and address their demands to us as if we were such a nation, may encourage us to respond to their demands in their terms. French-Canadian nationalism can help to beget English-Canadian nationalism.” This is part of what the m . l . a . described as “the most brilliantly succinct analysis of the crisis in Canadian Confed­ eration.” (There is more of it, which I shall come to in a moment.) The m . l . a . himself added that “ Ontario’s leadership could inspire the will to nationhood [not Canadian nationhood: perish the thought! £/;g//.v/?-Canadian nationhood] which English Canada has lost,. . . the identity which English Canada lacks in contrast to French Canada.” And here's another Englishspeaking professor: “ We lack, in English Canada, the will to evolve our national direction, at the very moment when Quebec is going forward in so dazzling a fashion.” 17 English Canadians do not consider themselves a nation. They never have. They do not want to: even the gentry I have just quoted admit that. Why should they be hectored or bullied into becoming one? Why should they be “helped” to “beget” a child they don’t want? (Incidentally, it does not seem to have occurred to the “helpers” that if they succeed in forcing English-speaking Canadians to “ beget” an “ English-Canadian nation,” the par­ ents, or the child itself, may insist on being thoroughly English Canadian, bigotedly English Canadian. The results of forced par­ enthood might be disconcerting.) Logically, of course, the “two-nations” theory can only mean either two totally independent, sovereign states, as separate as Britain and France; or two states completely independent except for certain common services administered by a joint authority in which the two are represented by equal numbers of delegates, Ministers and civil servants. The first would make citizens of Quebec foreigners in English Canada, and citizens of English Canada foreigners in Quebec. The second might, or might not, provide for common citizenship, might or might not provide special rights for citizens of Quebec in English Canada and citi­ zens of English Canada in Quebec. It would not necessarily 17 Debates, Legislature o f Ontario, 1966, pp. 785-6: the author o f the other quotation I cannot now recall: “ O insupportable and touching loss!’’

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provide any special rights for people of English speech in Quebec or people of French speech in English Canada. For most pur­ poses, the two states would be completely separate. The two would have an absolutely equal say in the running of the few common services; neither would have one syllable to say in how the other ran its affairs outside the common services. Logically, let me repeat, the two-nations theory can lead nowhere except to independence or associate states. Logically, therefore, it must lead to the total disappearance of the central Government and Parliament. The separatists and the associate staters accept this. Most of the two-nations people, Frenchspeaking and English-speaking, do not. I am pretty sure M. Johnson does not; I am perfectly certain the English-speaking professors and the Ontario Assemblyman I have quoted do not. They want to have an almost completely separate Quebec; but they also want to keep a central Government and Parliament. Incredible? Listen to this, from one of the English-speaking pro­ fessors: “The obvious solution to Canada’s difficulties would appear to be a federal government which is weak in relation to Quebec but strong in relation to the other provinces.” 18 And thal is just an Engiish-Canadian echo of the very influential Professor Jacques-Yvan Morin of the University of Montreal, who would keep the central Parliament and Government, with the full Quebec representation in the House of Commons (and, as far as I know, in the Cabinet), and with a fifty-fifty Senate, half its members elected by French Canada, half by English, but would cut their jurisdiction in Quebec to defence, interprovincial trade and transport, mometary policy, the tariff, equalization grants to the poorer provinces, broadcasting, and a small part of external affairs; and all these hedged round by an elaborate apparatus of “ bi-national,” fifty-fifty “ boards” of unstated powers, and vaguely stated special powers for the fifty-fifty Senate. Over the rest of the country, the central Government and Parliament would have just as much power as they have now, or more.19 Now just look what this means. The rest of the country would have almost nothing to say about what went on in Quebec; but Quebec would have a great deal to say about what went on in the rest of the country. The Quebec Ministers, at present about a third of the Cabinet, would help frame policy on everything, including policy on matters which would be, constitutionally, the I cannot now recall who this was. and have been unable to trace the quotation: another "insupportable and touching loss!” 19 Canadian Forum, June. 1964. pp. 64-6.

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sole concern of the other nine provinces; but the Ministers from the other nine provinces would not be able to utter so much as one squeak on matters which, constitutionally, would be the sole concern of Quebec. The Quebec members of the House of Com­ mons and the Senate would be able to speak and vote on bills which, constitutionally, were the sole concern of the other nine provinces; but the Members and Senators from the other nine provinces would be able to speak and vote on nothing which, constitutionally, would be the sole concern of Quebec. To give a concrete example: Quebec would have its own banking system, under the sole jurisdiction of the Quebec Legislature; and of course the Dominion Ministers, and the members of the House of Commons and Senate, from the other provinces, could have nothing to say about Quebec banks. But the Quebec Ministers, the Quebec Members and Senators, would have full power to speak and vote on banking legislation for the other nine prov­ inces. “ You keep out of our affairs; but we stay in yours. We will have our national Government and Legislature for Quebec, in which you shall have neither voice nor vote; you shall have your national Government and Legislature for English Canada, in which we will have fu ll voice and vote." Quebec Ministers, Members and Senators would lose almost all power to speak for Quebec, and be left with little more than the power to plague the rest of the country by interfering, perhaps decisively, in its affairs. M. Johnson seems to think this would lead to “harmony.” 20 1 doubt it. You may find it hard to believe that grown-up men, highly intelligent men, highly educated men, can have seriously proposed the kind of thing I have just been describing, let alone called it “the obvious solution” to our problems, or “ brilliant analysis of the crisis in Canadian Confederation.” 21 But they have: 1 can produce chapter and verse for almost every word of it. What is much worse, there seems every reason to believe that this is almost exactly the kind of thing the present Quebec Gov­ ernment, with the support of a good many of its political oppo­ nents in that province, will demand that we accept. (For it is not simply the new Quebec Government that talks this way. M. Gerin-Lajoie, in his famous speech to the consular corps in Montreal, and his Convocation Address at Carleton University,22 20 Federal- Provincial Tax Structure Commit lee, 1966, p. 57. 21 Debates Legislature o f Ontario, loc. cit. 22 Le Devoir. 14 et 15 avril 1965; for the Convocation Address, see above, p. See also Le Devoir, 23 avril et ler mai 1965.

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and M. Rene Levesque repeatedly, delivered themselves of the same sort of highfalutin’ nonsense.)23 What is worse still, it is perfectly evident that a considerable number of amiable, kindly, intelligent, educated English-Canadians, impervious to facts, impenetrable to logic, deaf and blind to reality, will ardently support it. And it will all be presented as “ moderate,” as “preserving Canada,” a “ new Canada,” but still “Canada.” It would be “ moderate,” in the same sense that a proposal that I should jump off the roof of a ten-storey building instead of a thirty-storey one is “moderate.” It would indeed preserve some­ thing labelled “Canada;” but it would be a hollow shell, a Com­ mon Market (if that), not a country. The two-nations people in Quebec propose it because they think it would give them a maximum of the advantages of separatism with a minimum of its disadvantages. They think English-Canadians can be persuaded to accept it, first because we’d love the label, and second because we love them so much that we would do almost anything to preserve even the most tenuous of connections with them. I think this is a dangerous delusion. I think their scheme would give us all the disadvantages of separatism and a carload of extra, and intolerable, headaches. 1 do not think English Canadi­ ans will accept any new constitution which would leave Canada hardly more than a geographical expression, a political monstros­ ity unique in history, whose only anthem would have to be something like this: “ O Canada! We don’t know what you are. Nation, we thought, but that Quebec doth bar. And a colony you have ceased to be. So we know what you are not; And we stand on guard, Though it’s rather hard. When we’re not quite sure for what. O Canada! Great Undefined! O Canada! Can't you make up your mind? O Canada! Can’t you some status find?”

j

It could have a highly “distinctive flag” too: two jackasses eating the leaves off one maple tree. I used to say that no Engiish-Canadian politician would be mug enough to take office under any such scheme. Now, I am not so sure. But I still find it hard to believe that he could recruit -3In his pre-separatist days.

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as many as half-a-dozen colleagues except from institutions which it is kinder not to specify. I have been brutally candid, because I think the time has come to make unmistakably clear to the two-nations theorists, other than the separatists and the associate staters (who are not our imme­ diate problem) just what they may be heading into. If they really insist on the kind of constitution I have been describing, I think the answer of English Canada will be, “ No.” If they then threaten to secede, I think the answer of English Canada will be, “ Do.” To secede legally and constitutionally, the province of Quebec, which was created by an Act of the British Parliament, would have to get another Act of the British Parliament, which, by constitutional usage, would be passed only at the request of the Parliament of Can­ ada; and, again by constitutional usage, the Parliament of Canada would make such a request only with the consent of all the prov­ inces. In the circumstances which would then exist, the other nine provinces might well give their consent, though probably only after some pretty hard bargaining about the division of assets and liabili­ ties, the control of the St. Lawrence Seaway, access for the Atlantic provinces to Ontario and the west and vice versa, and perhaps other matters. If the consent were not forthcoming, Quebec might take a leaf from Mr. Ian Smith’s book, and declare unilateral independ­ ence. Canada, in its turn, might take a leaf from Mr. Harold Wil­ son’s, and apply sanctions, in an effort to get the illegal Quebec Government to negotiate arrangements which would reduce, as much as possible, the enormous damage which separation would inevitably do to both Succession States, especially the weaker. I doubt very much whether most of the two-nations people are really willing to face the consequences of separation. As I have just said, they would be much harder on Quebec than on Canada. (Here, I deliberately do not say “ English Canada,” because the nine provinces include a large number of Frenchspeaking people, notably in New Brunswick, where, within a decade or so, they may well become a majority; and I hope that Canada-minus-Quebec would not be “ thoroughly and bigotedly English,” but would preserve and even expand the rights of its French-speaking citizens.) Quebec would be bound to suffer eco­ nomically, almost certainly very heavily. It might also suffer a drastic reduction in human rights and freedoms; not only because it might be something close to a siege economy, in which individ­ ual freedoms never flourish, but also because there is, in Quebec political thought, of the Right or of the Left, a strong and persistent strain of authoritarianism. I lived in Quebec in the days of Duplessis. I have often wondered how much freedom would

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have survived under his regime if Quebec had not been part of the Canadian federation. The bases of the old authoritarianism have been eroded. But all you have to do is substitute a new set of basic assumptions, and people trained to draw the logical conclusions from the old assumptions will, with equal docility, and equal rigour, draw the logical conclusions from the new. I am no psychiatrist, and I am not going to venture on to ground which I am not qualified to tread. But there are passages in Jung's The Undiscovered Self which could be fr ighteningly relevant to our situation. 24 And let us not forget that, here, in the central provinces, you people tried a fo rm of two-nations state under the Act of Union, 1840- 1867; and it broke down, hopelessly: and you had to get the help of the Maritime provinces in building a new, highly centralized, federal state, the only alternative being a purely "Canadian," central Canadian, federa l state, again highly centralized. History presents ma ny odd ities, but surely nothing more astonishing than the spectacle, which we can see every day, of people who style themselves " progressives" trying to rally supporters, in 1966, with what amounts to the slogan, " Back to 1860!" I am not going to waste any time over the associate states, because I just can't imagine that anyone outside Quebec could see in it anything worth a brass farthing or a wooden nickel. Anybody in the rest of Canada who would swallow associate states would swallow separatism with equal ease and gusto. If we English-speak ing people don't want separatism (and I don't think any of us do), and if we can't take associate states or Professor Morin's hemi-demi-semi-separatism, what can we do to ensure that there will be, in 1967 and long a fter, a real Canada, not just a cobweb? Simply sit tight and keep saying, " Th us far and no farther"? No. I think there is a positive and practicable alternative, which has at least a cha nce of preserving Canada, a nd which will a lso serve the real needs of French-Canadians, and of the people of Quebec, and of their "quiet revolution,". far better than any Quebec Reserve or chilly banana republic. This is where I part company, regretfully but decisively, with my old, much valued, much respected friend , Professor Donald Cre ighton . Most of you have probably read his recent article in Saturday Night, "The Myth of B i cu l tu ra l ism ."2 ~ If you haven't, I hope you will. Every Canadian should. For it does a badly needed j ob of intellectual slum clearance, a nd does it, of course, 24

(New American Library, New York, 1964), pp. 11- 16, especially p. 16. ~ s Saturday Night. vol. 8 1, September 1966, pp. 35-9.

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superbly. I go a ll the way with Professor Creighton on his history (which, if he ever reads this lecture, may prompt him to com ment as Carlyle did on the lady who sa id she "accepted the universe" : " G ad! She'd better!"). But I think the advice he gives us for the present and future won't work . I don 't think we can keep "one Canada," Cartier's " political natio nality," unless we can convince French Canad ians, a nd especially Quebec French Canadia ns, that the whole country is the ir show as well as ours. A nd I don't see how we can convince :hem except by action. What action? First, mak ing sure there are no obstacles we can remove to thei r playing their full pa rt in running the whole country. I don' t mea n guaranteeing them ha lf the power or half the j obs. Thirty does not equa l seventy. Nor do I mean guaranteeing them thirty per cent of the power or the jobs . By " full part" I mean as big a part as they are capable of assuming. Make sure everybody has a fa ir fie ld, and may the best man win. Second (a nd this is part o( the " fair field ") bilingualizing the centra l administration as fast and as far as possible. Note the words " as possible." Th is will be difficult. It will be expensive, in money, and probably a t least at fi rst, in efficiency. But I think that if we rea lly want to keep Ca nada whole, this is part of the price we must pay. Thi rd, providing French educa tion for French-speak ing children a ll over the country, wherever the parents want it a nd there are enough of them to make it feasible. Professor Creighton th inks this will handicap the ch ildren, on a ma inly Englishspeaking continent. Perhaps it will. But I th in k we must let the parents decide that. That's what I' d want myself, if the shoe were on the other fo ot. I doubt very much whether any substantial body of pa rents a nywhere will insist on giving their children an ed ucation which would seriously handicap them; I doubt, therefore, whether a ny very la rge number of French-Canad ian parents outside Q uebec will insist on giving their children a wholly French ed ucation, or even one in which English is seriously neglected. But, whether or no, I don't think we EnglishCanad ians have any business trying to fo rce French-Canad ians to do what we think is best for their children. Fourth, extend ing official b ilingua lism to other provinces besides Q uebec, wherever practicable. Note that last phrase. I am not a rguing that a ll the provinces should be made officia lly bilingual. I don' t th ink that can or will be done, unless there is a mass migra tion of French-Ca nad ians to other provinces. I do mean that official bilingua lism seems both proper and practicable in

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New Brunswick, and in certain parts of eastern and northern Ontario (and anywhere else where the local French-speaking peo­ ple want it and there are enough of them). Some of the English-speaking mugs to whom I have several times paid my respects this evening seem to be under the impres­ sion that translation of government documents is easy, that good translators grow on every tree, and that they come cheap. They never made three bigger mistakes in their lives. When any of them tell me, as one did a year or so ago, that it would be a “ nice gesture” if my native province of Newfoundland (which has perhaps four thousand French-speaking people in a population of close to half a million) were forced to put all the journals, records and documents of its Legislature into French, and to give French the same status in Newfoundland courts as English has in Quebec courts, I am tempted to tell them to go home and let their hair grow. And what is true of Newfoundland in this respect is true of most of the other provinces. Fifth, extending French radio and television to every part of the country where it is needed: and if we succeed in substantially bilingualizing the central civil service, French radio and television may be needed even in places where there are few French Cana­ dians, in order to help educate English Canadians to compete effectively for the higher jobs in the civil service and in the increasingly large part of private industry where bilingualism will be necessary. That is the kind of Canada 1 believe in, the kind I think is worth saving, the kind I think can be saved. It is also, as I said a few minutes ago, the kind of Canada that will serve French Canadians, the people of Quebec, and their "quiet revolution,” far better than any Quebec Reserve. It will serve French Canadians better if only because it won’t leave the French-speaking people outside Quebec out in the cold. It will serve the people of Quebec better for several reasons. First, it will give them the best chance of the North American standard of living they want. Penned up inside Quebec, how could they expect to get anything like the full benefits of a continent-wide economy in which they could move freely, in which jobs and markets on a continent-wide, not merely prov­ ince-wide, scale would be open to them? Second, it will give them as much of this in French as they have any reasonable chance of getting. A totally, or almost totally, French Quebec would still have to conduct most of its business outside its own boundaries in English. If it insisted on

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trying to do business with Wall Street or Bay Street in French, it would not get very far in borrowing the outside capital it would need. If it tried to sell its exports in French in the United States or in the rest of what had once been Canada, it would find its markets sharply reduced. In the kind of Canada I believe in, Quebec within its provincial boundaries could be just about as completely French as it pleased; but it would not be cutting itself off from the very profitable contacts it can have with the rest of North America as part of Canada; and French-speaking Quebec people would not be cutting themselves off from the job oppor­ tunities, and the influence, they can have as citizens of Canada. Third, they would not be risking the loss of their civil liber­ ties. And these are the reasons why the kind of Canada I believe in will best serve Quebec's “ quiet revolution.” For the essence of that revolution is that the French Canadians of Quebec want to be twentieth century North Americans, and French. (And why not?) In an independent, or near-independent, Quebec, they would still be French; but they would be a very second-class kind of twentieth century North Americans. But in the kind of Canada I believe in, they could be at least as much twentieth century North Americans as the people of the more prosperous of the other provinces; and they would really be better able to preserve and develop their French culture than under independence or near-independence, because they would be richer and stronger. What about constitutional change? First, I see no need for a new constitution. The one we have may need some changes. But we shall get much farther by work­ ing hard, and thinking hard, on specific changes to meet specific needs than by trying to start all over again from scratch. And “scratch” is probably the right word. The thing would almost certainly develop into a Donnybrook, especially as some of the cranks who would flock to the fair would certainly throw into the proceedings some of those general principles which are the fruitful parents of discord. Writing a new constitution would be a perfect recipe for getting otherwise quiet, decent people fighting mad over things that need never trouble them. Second, if we can succeed in convincing the FrenchCanadians that this whole country is theirs as well as ours (and few, if any, of the measures I have suggested for this purpose involve any constitutional change whatever), our chances of get­ ting such constitutional changes as we really need will be vastly improved. For we shall then be able to look at the various proposals purely in the light of the job that needs doing, and

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whether the Dominion or the provinces could do it better; instead of getting the whole business cluttered up with irrelevant consid­ erations of Frenchness or Englishness, and whether any particular change would give the “ English” or the “ French” an edge. This is important. For there is one threat to our national existence which gets less attention than it deserves: the growing strength of the provinces, the growing weakness of the Dominion. The excuse for giving the provinces more and more power and money is that, under the constitution the Judicial Committee gave us, the jobs the provinces have to do are so important and expensive. Practically nobody dares to ask whether some of the powers the provinces now have ought not, in the twentieth cen­ tury, to belong to the Dominion. Practically nobody dares suggest that if the provinces haven’t the resources to do the national jobs the Judicial Committee saddled them with, the remedy is to give the national jobs to the national government. O f course one reason no one even whispers this obvious and simple remedy for a preposterous state of affairs is that most provincial Premiers enjoy behaving like rulers of the mediaeval German principalities who reduced the Holy Roman Empire to a shadow. But another, and more formidable, reason is that people are scared to suggest greater powers for the national government lest they be branded “anti-French-Canadian.” 1 am not saying that only constitutional changes which would give more power to the Dominion are desirable. Perhaps there are spheres where the provinces should have more power than they have now, others where they should have less. 1 am merely protesting against the dreary and destructive taking-for-granted that all amendments must give the provinces more and the Dominion less; and also saying that we could consider the whole matter much more rationally if we could so manage our national affairs that French-Canadians would not always suspect that more Dominion power meant more “ English” power. Just three final points. First: Engiish-Canadian resistance to a practicable degree of bilingualism is often quite irrational. But there would be less of this; more willingness to see bilingualism as an asset, not a liability; more Engiish-Canadian appreciation of the French tradi­ tion, the “ French fact,” in Canada, if French-Canadian demands for their rights were less often coupled with loud contempt for the British tradition, the British fact, in Canada (which, incidentally, saved the French Canadians from being swallowed by the United States, and gave them the democracy they now enjoy), and with demands that we throw our tradition overboard. Spitting in a

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man’s eye is not the best way to put him in a receptive, under­ standing, appreciative, conciliatory, accommodating frame of mind, mind. Second: If Quebec insistence on independence or nearindependence, or English-Canadian refusal to consider any prac­ ticable alternative, breaks this country in two, can Canadaminus-Quebec survive? I used to say “probably not.” I have changed my mind. I think the answer is “ Yes.” I don’t think our Succession State need collapse, or fall into the maw of the United States; so I don't think we need allow ourselves to be scared into “ bi-national” paralysis by dire warnings that otherwise the Amer­ ican bogeyman will get us. Finally, if anyone feels inclined to say, “ All this is easy enough to set forth in London, Ontario; I’ll bet he wouldn’t repeat it in Quebec,” the answer is “ Yes, he would, every scrap of it, and in French; intelligible French, too.” Canada has suf­ fered immeasurably from people who talked one way in Ontario, another in Quebec, one way in English, the other way in French. In that, at least, M. Johnson has set us a good example. I hope it will be followed. Without plain speech, I see no hope of preserv­ ing our country. With plain speech, common sense, backbone, and a reasonable effort to understand other people’s needs, opin­ ions and feelings, I see substantial hope. But our motto should be, “ Work (and think), for the night is coming!"

24. O u r Present Discontents

“ Our Present Discontents” is a title wide enough to cover almost anything, or at least anything disagreeable. But . . . I shall confine myself to the discontents many people now feel with our Consti­ tution. I shall not give . . . a detailed list of them . . . , nor offer . . . specific amendments to remedy them, still less even an outline of a new Constitution. These will be the tasks of [a series of]. . . Conferences of Governments. What I shall attempt here is some­ thing more modest; first, a statement of the main discontents as I see them: second, certain basic principles we must follow, if the Conferences are not to end in chaos and old night; third, some things we can do, in the light of those facts and those principles. The main discontents may be summed up under three heads. First, all the provinces want more money, and at least the larger ones would like to get more of it by a re-division of taxing powers. At present, the Dominion’s taxing power is unlimited

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while the provinces can impose only direct taxes for provincial purposes. True, the Courts have widened this by declaring that provincial sales taxes are “direct” (which, to the plain man, recalls Mr. Bumble). But even so, with the Dominion pre­ empting most of the income tax, the provinces’ resources are plainly inadequate. The responsibilities assigned to them by the British North America Act, notably roads and education, are far more expensive than anyone could have dreamed a century ago; and the Judicial Committee of the British Privy Council, by its interpretation of the Act, has conferred, or imposed, on them further responsibilities, notably most of social security, which are also enormously expensive. There are two ways of meeting this difficulty without chang­ ing the Constitution. One is conditional Dominion grants, in aid of approved provincial expenditures, the so-called “joint pro­ grammes.” The other is unconditional Dominion grants: the tra­ ditional subsidies, and the equalization payments. One is grants with strings; the other grants without strings. The grants with strings are now on the way out. Quebec wants to get rid of nearly all of them, and resume the full management of what might be called her own constitutional prop­ erty. Several, if not most, of the other provinces dislike the pressure to accept the Dominion's scale of priorities which grants-in-aid involve. And the Dominion itself is anxious to get out of the whole thing as fast and as far as it can. Every province seems willing to accept the unconditional grants. Quebec would like to see them replaced in large part, and soon, by a massive transfer of taxing power from the Dominion to that province. Most, or all, of the other provinces apparently regard them as a permanent feature of Canadian federalism. But at least the larger and richer of the other nine provinces would probably also like to see a considerable transfer of taxing power from the Dominion to themselves. The smaller and poorer ones are, 1 think, less insistent on this: they have so much less to tax. The second main constitutional discontent is the discontent of French Canada with its constitutional position. Note that I say “ French Canada,” not “the province of Quebec.” “ French Can­ ada” and “Quebec” are not synonymous. There are upwards of a million French-speaking Canadians outside Quebec: and the con­ stitutional position of even the French-speaking Canadians inside Quebec is not the same thing as the constitutional position of that province. What is at issue here has, in fact, nothing to do, directly, with the constitutional position of Quebec; indeed, more power for Quebec could very well mean less for French Canada.

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We shall come to Quebec presently; for the moment, 1 am concerned with the very different question of the rights of French-speaking Canadians in the other nine provinces, and with the share of French-speaking Canadians in running the whole country. On both counts, French-speaking Canadians are dissatis­ fied with our existing arrangements; on both, they want changes, whether in the written Constitution, or in the way it is worked, or in both. The third main . . . discontent is . . . [that] of Quebec, or at least. . . its Government, its official Opposition, and a highly vocal section of its people, with the constitutional position and powers of the province. Some of them want complete independ­ ence. Some want “political sovereignty” for Quebec with a “com­ mon market” or “economic integration” or some joint services with the rest of Canada. Some want two “Associate States,” Quebec and Canada, each “ independent,” but with some joint organs: a sort of twentieth-century North American AustriaHungary. Most profess to want a “special status” within Confed­ eration, with a more or less-usually more-massive transfer of power, in Quebec, from the Government and Parliament of Can­ ada to the Government and Legislature of Quebec. Scarcely any voice in Quebec seems satisfied with the status quo. O f the three constitutional discontents, the last is much the most dangerous to the continued existence of this country, and to the welfare of its people, French-speaking as well as Englishspeaking; and very dangerous it is. It is possible that satisfactory remedies to the other two discontents might blunt the thrust of Quebec nationalism, and that is an additional reason why we need to consider them very seriously. It is also possible that Quebec nationalism will be indifferent to any remedies for the first two discontents and satisfied with nothing less than the destruction of Canada, either at one fell swoop or by instalments. Now for those “basic facts and principles.” The first basic fact we must get clear is that our existing Constitution is not a piece of old furniture, or an old top hat, or a Victorian system of plumbing. It is something which grew out of the needs of the pre-Confederation colonies, which gave us life as a people, which has shaped our life as a people, which has adapted itself to our changing needs as a people. It has not remained what it was in 1867. It has grown, in some respects almost out of all recognition: a little by formal amendment; much by judicial interpretation; most of all, perhaps, by the develop­ ment of new habits, new customs, new “conventions,” new administrative arrangements, especially inter-governmental

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arrangements. Perhaps it now needs further formal amendment. But let us never forget that, because a Constitution is what it is, pervading and shaping the lives of every human being in the community, changing it by formal amendment is an immensely serious business. It is not like getting a new hair-do, or growing a beard, or buying new furniture or new clothes, or putting in a new bathroom. It is more like marriage: “ not by any to be enterprised, nor taken in hand, unadvisedly, lightly, or wantonly, . . . but reverently, discreetly, advisedly, soberly, and in the fear of God.” What we are dealing with in constitutional change is not paper or things. It is human lives. A second basic necessity for wise constitutional change is to get our history straight. We are sometimes told now that history doesn’t matter. To those who say this, my reply must be a Johnsonian: “ This is cant. My dear friends, clear your minds of cant.” Canada is not just a piece of real estate. It is a human community, rooted in time as well as space. We cannot disregard our history. If we try, the most we shall succeed in doing is to get rid of real history and leave our heads swept and garnished for the seven devils of pseudo-history. Here they are: 1) The British North America Act was designed by British overlordsfrom which it follows, o f course, that we must now scrap it and give ourselves a home-made one. Rubbish. The Act is nearly one hundred per cent home­ made. It was designed by Conferences in Charlottetown, Quebec and London made up wholly of British North Americans. Not one representative of the British Government was even present. The Colonial Office was uneasy about the absence of any provi­ sion for overcoming a deadlock between the Senate and the Commons; and the Foreign Office was alarmed lest the Ameri­ cans take umbrage at our delegates' proposal to call the new nation “ the Kingdom of Canada.” But, even on these points, though our delegates had to give ground, they insisted on drafting their own provision for swamping the Senate, and produced their own substitute for “ Kingdom” : “ Dominion.” 2) The monarchy was imposed on us, or, at best, we accepted it grudgingly, absent-mindedly, or because we dassn't do anything else. Fudge. Sir John A. Macdonald took great pains to emphasize 1

Jay W alz, “ Canada: A Holiday from Tensions.” New York Times, July 9, 1967, p. b 7.

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that the delegates had been perfectly free to cut loose from Britain, and therefore, of course, from the monarchy, completely, but that not one had so much as suggested it;2 Sir George Cartier’s speech in the Confederation Debates is full of ardent monarchism;3 and, when the Fathers were forced to give up the title “ Kingdom,” they substituted “ Dominion,” explicitly, as Lord Carnarvon told the Queen, “as a tribute to the Monarchical principle which they earnestly desire to uphold.”4 The monarchy, then, is our own. We chose it ourselves, unanimously, deliber­ ately, and with our eyes wide open. It was not imposed on Canada by Britain, nor on French-Canadians by EnglishCanadians, nor on anyone by anyone. 3) The British North America Act is a Constitution fo r a "horse-and-buggy" age. This looks obviously true (though it would be more accurate to say a “ railway age” ). In fact, it is glaringly untrue. The Fathers, recoiling from the horrors of “ States’ rights,” deliber­ ately framed our Constitution so that every power not distinctly and exclusively conferred on the provinces would belong automat­ ically to the Dominion. So everything not mentioned must fall to the Dominion, unless it was unmistakably a merely local and private matter in a single province. And the Fathers themselves, in the new Dominion Parliament, drew exactly this conclusion. Trade unions were not mentioned; and the Dominion Parliament, in 1872, passed a Trade Unions Act. Factory legislation was not mentioned; and in the early 1880’s Sir John A. Macdonald’s Government placed three successive Factory Bills before the Dominion Parliament.5 Trade unions and factory bills were not new, just unmen­ tioned. . . . A fortiori, anything unforeseen, being of necessity unmentioned, must also fall within Dominion jurisdiction, again unless. . . unmistakably a merely local or private matter in a single province. The Judicial Committee of the Privy Council, the Stepfathers 2 Parliamentary Debates on the Confederation o f the British North American Provinces (Hunter, Rose and C o., Quebec, 1865), pp. 33-4 3Ibid., pp. 59-60, 62. 4 Letters o f Queen Victoria. Second Series. (John M urray, London, 1926) Vol. I. p. 394. 5 R.S.C . 1970, c. T -II: E. A . Forsey, “ A Note on the Dom inion Factory Bills o f the Eighteen-Eighties," Canadian Journal o f Eco­ nomics and Political Science, vo. 13, no. 4, November 1947, pp. 580-3.

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of Confederation, turned a good deal of the Fathers’ work upside down, and, in effect, handed most of labour legislation and social security, and much of the regulation of trade and commerce to the provinces. But even after the havoc they wrought, a good deal of the original division of powers still remains. And a good many new things - interprovincial and international highway motor traf­ fic, interprovincial and international telephone lines, radio, televi­ sion, air transport - have in fact gone to the Dominion. Even the not-so-new grain trade, which a court decision fatuously assigned to the provinces, was rescued by means of the Fathers’ far-sighted provision in section 92, head 10, paragraph (c) of the B.N.A. Act, by which the Dominion Parliament can assert exclusive jurisdiction over any local “work” simply by declaring it to be “ for the general advantage of Canada or of two or more of the provinces.”6 The Fathers, in fact, gave us a Constitution marvellously, almost incredibly, well fitted to meet the needs of a technologi­ cally advancing society. It is the Stepfathers who imposed on the provinces burdens grievous to be borne, to which the fiscal resources provided for their original, very limited, responsibilities, are, inevitably, woefully inadequate. Ironically, it is usually the very people who say that our present Constitution is unfitted for the age of the jet and the sputnik, who urge us to adopt a more decentralized one: to go back, constitutionally, to the age of the ox-cart. 4) Confederation was a "pact,” "agreed in Charlottetown and finally in Quebec" between representatives o f "two founding peoples," English Canada and "French Canada"; "two groups .. . relatively evenly balanced"; " Quebec, the former Lower Can­ ada, [which] grouped the people o f French origin," and "the other three provinces, or the other two plus Upper Canada, [which] grouped those who had English as their common lan­ guage and similar cultural traditions." (I am quoting a former Minister o f Justice.) In other words, the Charlottetown and Quebec Conferences and the London Conference after them, were, in effect, bilateral negotiations between these two. approxi­ mately equally numerous, linguistic groups.1 This is a fairy-tale. In the first place, the “two groups” were not “ relatively evenly balanced.” Canada East, the future Quebec, had little 6 7

Statutes o f Canada, 1925, c. 33. Hon. Guy Favreau, Globe and M a il M agazine (Toronto), May, 1964. p. 12

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more than half as many people as Canada West, Nova Scotia, and New Brunswick combined, let alone Canada West plus all four Atlantic colonies; and about 24 per cent of the population of Canada East itself was English-speaking. For the whole four provinces of the original Dominion together, the proportion of English-speaking to French-speaking was about two to one.8 In the second place, I cannot find the slightest evidence that at Charlottetown, Quebec, or London the delegates lined up on linguistic lines. If they had, the French-speaking would have been hopelessly outnumbered. At Charlottetown, there were two French-speaking delegates out of 23; at Quebec, four out of 33; at London, two out of sixteen.9 There seems to have been little, ifany, discussion of bilingualism, and the arguments over other matters seem to have been rather between the “ Canadians” as a whole and some of the Maritimers, than between “ English” and “ French.” 10 I cannot resist the conclusion that most of those who talk about the “pact” between two “equal founding peoples” are unconsciously equating Canada East with French Canada, and the /^-Confederation Province of Canada with the postConfederation Dominion of Canada. Canada East was “ relatively evenly balanced” with Canada West: their 1861 populations were about 44 to 56. But almost 24 per cent of Canada East was English-speaking, and the Dominion of Canada, even in 1867, was not a mere continuance of the old Province of Canada, nor the old Province writ large. Only on the basis of the double confusion does the “pact” between an approximately equal “ English Canada” and “ French Canada" make any kind of sense. Grant the unfounded assump­ tion, ignore the proportions of membership in the Conferences, disregard the evidence of what was said and who said it, and the British North America Act becomes simply a cosy arrangement between the French-speaking delegates from Canada East on the one hand, and the English-speaking delegates from the two Cana­ das on the other, with the delegates from the Maritime (or Atlantic) provinces merely sitting on the sidelines, smiling sweetly, murmuring occasionally “and of course the Intercolonial Rail­ way,” and then signing on the dotted line what the “ Canadians” had already settled. * Census o f Canada, 1861, vol. I. pp. 42-3, 78-9: Census o f Canada, 1871, vol. I. p. 83. 9 Browne, op. cit., pp. 35: 55-8, 201: J.M .S . Careless. Brown o f the Globe (Macm illan, Toronto, 1963), vol II, p. 153. 10 Browne, op. cit., pp. 55-152. 201-30.

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But the fact is that both at Quebec and London, the Mari­ time delegates were very far from being yesmen or nodders. On both occasions they had a great deal to say, and said it, fortissimo and at length. The admittedly incomplete records, indeed, show that they took up considerably more time than most of the “Canadians,” and far more than the French-Canadians, and by no means all on specifically Maritime interests. In short, there is not, as far as I can discover, the faintest ( evidence of any “ pact,” agreement or bargain, in the Charlotte­ town, Quebec, and London Conferences or out of them, between ^ two linguistic blocs. Anything of this sort that took place must \ have taken place within the Cabinet of the Province of Canada/ before its delegates ever left for Charlottetown. The Maritime provinces, and, later, Newfoundland, seem (and very naturally) to have accepted without question, and apparently without discus­ sion, the arrangements the “ Canadians” had arrived at about their purely local affairs: if they wanted the future Quebec to be officially bilingual and the future Ontario unilingual, that was their business, and no skin off any Maritime nose. The Maritime delegates seem also to have accepted without question, and with­ out discussion, the justice, the practical necessity, the inevitability, of the French-Canadians having the right to speak their own language in the Dominion Parliament and in any Courts it might create, and to have the Acts and records of Parliament, and certain documents of Dominion Courts in French as well as English. The influential Hon. Joseph Cauchon, a convert to Con­ federation, in a contemporary booklet on the subject, devoted exactly two of his 154 pages to the language question; and the burden of what he said was, first, “ How fortunate we are, com­ pared with our poor brethren in Louisiana!” and, second, “ How splendid it is that we did not even have to ask for our rights: our English-speaking fellow-citizens are so enlightened and broad­ minded that they never even raised a question on the subject!” 11 5) Canada was intended to be, in some sense, "two nations." It was certainly not intended to be two political nations, or j anything like two political nations. That is unmistakably plain. The Province of Canada had had something approximating two political nations, in constitutional practice, though not in law, under the Union of 1840-1867; and it had broken down so completely that the “ Canadians,” in the 1864 sense of the word, came all the way to Charlottetown to ask the Maritime provinces to help them out of the mess they’d got themselves into. And " The Union o f the Provinces o f British North America (Hunter, Rose and Co., Quebec, 1865).

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over and over again, one after another, in Charlottetown, in Halifax, in Saint John, in Quebec, in Montreal, the “ Canadian” Fathers of Confederation, French, English, Irish, Scotch, declared emphatically, and in both languages, that they were creating “a new nation,” “a new and great nation,” “ une nouvelle nation,” “une seule et grande nation;” or in Sir George Cartier’s phrase, “ a new political nationality.” 13 The French-Canadians got, cer­ tainly, guarantees for the survival of their own culture, their own “nationality,” as, along with the English, the Scotch, and the Irish (the last, incidentally, far more numerous than the other two), it was then generally called. But that it was to be survival within the framework of the single new political nation, no one seriously questioned. 6) 11 was agreed, in 1867 [to quote again the former Minis­ ter o f Justice] that French "was to be recognized and applied in a ll federal fields on the same footing as" English; and "Quebec believes that the contractual provisions. . . that guarantee French as one o f Canada's two official languages fo r affairs o f stale, for a federal Parliament, and fo r the federal courts. .. have been allowed to lapse."" This is perhaps the wildest piece of pseudo-history in the whole lot. An agreement that French was to be recognized and applied on the same footing as English in all federal fields would cover, presumably, money, stamps, cheques, and the writing of Orders and Minutes of Council in both languages. Is there one syllable about any of these things in the b . n . a . Act? There is not. Is there one line of evidence, one sentence in a speech or letter, to show that anything of the sort was ever promised? If there is, I have never heard of it, and I have repeatedly challenged anyone to produce it, but in vain. Were the questions of bilingual money, bilingual stamps, or bilingual cheques ever even raised till long after Confederation? Not that I have been able to discover. Were there any bilingual Orders or Minutes of Council in the early years after Confederation? [No. But],. . . in the thousands passed between July 1, 1867 and May 19, 1882, [there was one in French]: P.C. 753 of May 19, 1881. If the agreement about the use of French was really as See, for example Parliamentary Debates on the Confederation o f Brit­ ish North American Provinces, pp. 27, 43-4. 55-6, 59-60, 125-6. 363. 369,372. 275 13 Favreau, Speech. January 25, 1964, to the York-Scarborough Liberal Association, pp. 4. 5-6. 13

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comprehensive as the ex-Minister suggested, it is odd that Car­ tier, Langevin, and Chapais, all Fathers of Confederation and all members of the first Dominion Cabinet, should have tamely submitted to such flagrant breaches of it. It is scarcely less sur­ prising that their successors, in Mackenzie's Government, or in Macdonald’s second Government, men like Dorion, Laurier, Masson, Caron, should have done the same. Odd? Surprising? It is incredible. And the “contractual provisions . . . that guarantee French as one of Canada's two official languages,” and which “ have been allowed to lapse:” what are they? Here is what the Act says: “ Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.” 14 Nobody will have the hardihood to say that the provisions of this section for the use of French (or, for that matter, English) in the Legislature and courts of Quebec have been allowed to lapse. What about the Dominion? Is French still spoken in both Houses? It is. Has there ever been a year in the last hundred when it was not? I strongly doubt it. Are the records and Journals of the Senate and House of Commons still printed in French as well as English? They are. Have they ever not been? No. Is French still used in pleadings and processes in the Supreme and Exchequer Courts of Canada whenever a litigant asks for it? If not, when did this right lapse? Are the Acts of the Parliament of Canada still printed in both languages? They are. Have they ever not been? No. I am not arguing that the rights of the French language as set forth in the b . n . a . Act ought to have been, even then, precisely what they were, let alone that they should now be only what was laid down in 1867. They are now much wider than they were in 1867, and I am glad of it. I am heartily in favour of the general lines of the present Government's policy on bilingualism in the Dominion Public Service. I am in favour of as much bilingualism all across the country as is practicable. But all this is quite different from saying that what, in my judgment, ought to be 14 British North America Act. 1867, section 133.

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done now was in fact laid down in a statute, or in any extra-legal understanding, a hundred years ago. Let me illustrate the difference by an experience of my own six years ago. One of my trade union colleagues made a speech in which, among other things, he said that English-Canadians, in 1961, still only “grudgingly conceded the rights promised to French-Canadians by the Treaty of 1763.” He invited my com­ ments, and got them. I said: “ Do you know what rights were promised the French Canadians by the Treaty of 1763? I’ll show you, in the pages of Dr. Maurice Ollivier’s British North Amer­ ica Acts and Selected Statutes. First, the right to worship 'according to the rites of the Romish Church, so far as the laws of Great Britain permit;’ second, the right of any of His Majes­ ty’s new subjects to return to France, with their movable goods, and the proceeds of the sale of their immovables (provided the sale was to a British subject) within eighteen months of the ratification of the Treaty. Do you seriously mean to tell me that, in 1961, English-Canadians, a large proportion of whom are now them­ selves Roman Catholics, still 'only grudgingly concede’ Claude Jodoin’s right to go to Mass? Do you seriously mean to tell me that, in 1961, English-Canadians still ‘only grudgingly concede’ the right of the French Canadians of 1763, the last of whom must have been buried a hundred and fifty years ago, to go back to France, with their movable goods and the proceeds of the sale of their immovables, some time in 1763 or 1764?” “ Oh! So you think they’re entitled only to what they were promised by the Treaty!” “ I don’t think anything of the sort. I think they are entitled to vastly more; they have got vastly more; and I am in favour of their getting more still. But the statement you made is simply not true.” 7) French schools outside Quebec were guaranteed in 1867. They certainly were not guaranteed by anything in the British North America Act. Nor are they guaranteed by anything in the Manitoba Act of 1870, the Saskatchewan and Alberta Acts of 1905, or the Terms of Union with Newfoundland in 1949. There is not one syllable about French schools in any of these statutes. Denominational schools, yes; schools for “the Protestant or Roman Catholic Minority of the Queen’s Subjects,” yes. French, no. To this, I have heard two answers. The first is that in this, as in other matters the Fathers were not very bright, scarcely, indeed, better than a lot of mixed-up. kids; that when they said “ Protestant” and “ Roman Catholic,” they meant “ English” and “ French.” But the provision in the Quebec Resolutions “saving the

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[educational] rights and privileges” of the “ Protestant and Roman Catholic minority in both Canadas” (that is, Ontario and Ouebec) was inserted at the instance of Thomas D ’Arcy McGee, a Montreal Irish Roman Catholic.15 It would be a very peculiar Montreal Irish Roman Catholic, then or now, who would say “ Roman Catholic” when he meant “ French.” The wider provi­ sion in the London Resolutions, and in the Act, extending the saving clause to all the provinces and providing for Remedial Orders and Remedial Acts, was inserted at the instance of Alex­ ander Tilloch Galt, a Scotch Protestant from the Eastern Town­ ships, egged on by Thomas L. Connolly, the Irish Roman Catho­ lic Archbishop of Halifax.16 It would be a very odd Scotch Protestant, then or now, who would say “ Protestant” when he meant “ English.” and a positively freakish Halifax Irish Roman Catholic Archbishop who would say “ Roman Catholic” when he meant “ French.” Second, I have been authoritatively told that in the 1860's, in education, “religious and linguistic were synonymous.” 17 They were not. There were large, and politically important, Irish Roman Catholic communities in every one of the colonies: Newfoundland, Prince Edward Island, Nova Scotia, New Bruns­ wick, and both Canadas. In 1871, outside Quebec, the nonFrench Roman Catholics outnumbered the French more than two to one, and made up 27 per cent of the total Roman Catholic population of the whole country.18 It is also worth noting that at the Quebec Conference, there were three Irish Roman Catholic delegates to four French.19 1 could add an eighth devil of pseudo-history: the flat asser­ tion I encountered last year, at a large Ontario university, that when Manitoba abolished its separate schools, the Dominion did “nothing.” This was maintained so stoutly, so positively, so stri­ dently, that I was finally obliged literally to shout down, and metaphorically to shoot down, the pseudo-historians with this: “ Was there a Dominion Government Remedial Order to Mani­ toba to restore the separate schools? There was. I have read it. When Manitoba refused, did the Dominion Government intro­ duce a Remedial Bill to restore the separate schools? It did. I Browne, op. cit., pp. 150-1: D o nald C reighton, The R o a d to C on­ federation. p. 175. 16 Browne, op. cit.. pp. 206-07: Creighton, op. cit., pp. 410-12. 17 By a professor o f law. no less! 18 Census o f Canada. 1871. pp. 247. 332-3. (This assumes pretty well all French-Canadians were Rom an Catholics) 19 Browne, op. cit., pp. 57-8. 15

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have read it. Did Sir Charles Tupper make a real effort to get the bill through? He did: he kept the House sitting day and night, bar Sundays and dinner recesses, for almost two weeks, and gave up only when Liberal obstruction, and the imminent demise of Par­ liament by efflux of time, made it plain that the bill had no chance of passing before Parliament came to an end.”20 Why do 1 make such a song about these errors, learned or vulgar? Why do 1 call them “devils”? For four reasons. First, they cloud the real issues and befuddle people’s minds. Second, some or all of them have been widely accepted by many of the English-speaking “ intelligentsia,” at least among those 1 have met in Ontario and Quebec; and they have given these gentry a guilt complex about French Canada, and Quebec, which makes it impossible for them to see straight, and induces in them a compulsive urge to try to make the rest of us see crooked. Confessing one’s own real sins, and trying to make amends, is good. Confessing other people’s imaginary sins, and trying to get them to make a burnt offering of their country for misdeeds they never committed, is well-meaning, but dangerous. Third, you cannot build a house on the foundation of bad dreams or sick fancies. Fourth, most, if not all. of these errors deserve the name of devils because they bedevil, they envenom, the discussion of difficult, delicate, and complex problems on whose solution the very life of this country may depend. It is one thing to argue that English-Canadians ought, now, for good and sufficient reason, to accept constitutional changes which would widen FrenchCanadian rights. It is quite another thing to base the whole argument on unfounded allegations of bad faith and breach of agreement. It is wrong, and I am convinced that it is also selfdefeating. Most English-Canadians will not join in the selfflagellation of the “ intellectuals;” they will just get angry, and refuse to listen to facts, and to rational arguments for change, which they ought to hear and be ready to act on. I may add that the undoubted sincerity of the purveyors of all this dangerous nonsense makes it not one whit less nonsensical and only more dangerous; and when they are learned men, as they often are, it is more dangerous still. 20

Seasonal Papers (C anada) 1895, N o . 20: Debates o f the House o f Commons (Canada), 1896. First session, cols. 1511-15, 2095-6, 2719-3046, 3112-3239. 3274-3468. 3471-3596. 3671-3814, 38164 3 7 4 , 4448-4554. 4781-6, 4919-5049, 5224-5342, 5349-6110. 61206499.

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A third thing we had better get clear, if the constitutional conferences are not to send our country reeling through hideous ruin and combustion down To bottomless perdition, is that our Constitution is not a toy for politicians or professors to play with; or a canvas on which they can plaster constitutional surrealism or modern abstracts or pop art. Nor is the amending or re-writing of it an opportunity to show how much they know and how clever they are; nor an exercise in providing school children with inspiring memory work, nor a chance for constitu­ tional tailors to fashion for us something rich and strange out of a rag-bag of bits and pieces from other Constitutions. A Constitu­ tion should be a working plan for governing a community, and the emphasis is on “working.” The constitutional draftsman is an architect, not a painter. A Canadian Constitution should be a working plan for the peace, order, and good government of the Canadian community. The most important thing about it is not that it should be pretty, or incorporate the latest thing from Paris or Moscow or Bonn or Westminster or Brasilia or Canberra, but that it should work, and work for Canada. We should certainly be ready to learn from other countries, and to borrow and adapt from their Constitutions anything which will fit our needs (as indeed we have done, abundantly, from both Britain and the United States, and may soon be doing from the Scandinavian countries). But it is no argument for sticking something new into our Constitution simply to say that they already have it in West Germany or the Soviet Union or the Romanian People’s Repub­ lic, or that they had it in the Roman Empire or the Kaiser’s Germany or Austria-Hungary. ([Anyone]. . . who . . . [heard]. . . Professor Jacques-Yvan Morin’s travelogue at the Canadian Pol­ itical Science Association meetings. . . [in June 1966]... will know that this is not as fanciful as it sounds.) Mediaeval Poland had a liberum veto; it does not follow that Canada should do likewise, as one proposal for reconstituting the Senate would have it. We hear a great deal, most of it pretty silly, about our lack of a “ Canadian identity.” Anyone who compares our Constitution with any other will soon discover that, constitutionally at least, we unmistakably have an identity: our Constitution differs markedly from any other, as, indeed one might expect, and as it should, since it is intended to govern us, not some other people; and we differ markedly from even those from whom we have inherited, or borrowed, or absorbed, most: the British, the French and the

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Americans. I cannot for the life of me see how we shall enhance our identity by trying to make ourselves look more like somebody else. We might only produce an object resembling a dog friends of mine once had: “an Alsatian body on a dachshund chassis.” . . . 1 now want to address myself to certain things that we English-speaking Canadians need to have a firm grasp of. First. . . we must try to understand the position of French Canada as a tiny island of people who speak French in a vast North American sea of people who speak English and an island upon which that sea beats incessantly and thunderously. We should try to imagine what it would be like if we were the island and they the sea; if, let us say, the province of Ontario, with certain adjacent parts of Quebec and Manitoba, and a few pock­ ets in Newfoundland, Nova Scotia, and British Columbia, were the only English-speaking area in an otherwise French-speaking North America; and if, moreover, our ancestors had been in this territory long before the French, and had explored much of the rest before the French; and if we were told, by the Frenchspeaking Canadians that the whole of Canada was our country and the whole of Canada ought to command our loyalty. Suppose that the national capital was in Hull, not Ottawa; that Hull and adjacent counties had a considerable English-speaking population: that, though our language had certain rights in the Dominion Parliament and Dominion Courts, it had none whatever in the Legislature and Courts of Quebec or any other province; and that even the street signs in Hull, the national capital, were all in French. Suppose, further, that we found our English-speaking people spreading out into parts of Quebec and other predomi­ nantly French-speaking provinces, where English had no official status and English schools no constitutional guarantees. Might we not be asking for wider rights for the English language, and guarantees of English education for Englishspeaking children wherever the parents wanted it, and there were enough such children to make it feasible? Mightn't we perhaps feel that Ontario was not a province like the others; that it was the citadel of English-speaking Canada, and as such had to have certain special powers? Mightn’t we even have an Englishspeaking separatist movement? At this point, I can imagine some of you saying, “ Oh! Here we go again! The familiar slush about the poor, down-trodden French-Canadians, the familiar attempt to soften us up to give them anything they ask for, the familiar invitation to Englishspeaking Canadians to array themselves in sackcloth and ashes and set the welkin ringing with cries of ‘Mea culpa, mea maxima culpa!’ ”

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Not at all. With any such attitude I have less than no sympathy. But 1 have already said that there are basic facts of the whole Canadian situation which we must a ll recognize. What I am now saying is there are basic facts of the French-Canadian situation which £>jg//'j/?-Canadians must recognize. In my judge­ ment, these facts by no means support all the claims that any particular French-Canadian may make; any more than, if the situation were reversed, the reverse set of facts would support all the claims that any particular Engiish-Canadian might make. Just what claims the facts do support is one of the central questions which need rigorous, if sympathetic, examination and rational discussion. I would go this much farther: that a satisfied majority, just because it is a satisfied majority, has a special obligation to try to understand the situation of a dissatisfied minority. We are the predominant partner; we are, by and large, satisfied with the present terms of the partnership; the other partner is not. If we want the partnership to continue, then we must try to understand why the other partner is dissatisfied, so that we can see whether there are changes in the terms which will satisfy him without reducing the partnership to a cobweb or destroying it altogether. If it turns out there are not, then we shall have to start thinking about the terms on which to end it. But while there is an obligation on us to try to understand the French-Canadian situation, and to listen to what FrenchCanadians have to say, there is also an obligation on them, to understand our situation and listen to what we we have to say. We hear a great deal about the necessity of a “dialogue.” My dictionary says “dialogue” means “a talking together, a conversa­ tion.” But for a good many of those who are now using the word so freely, both French-Canadians and their Engiish-Canadian supporters, it seems to mean, “ I’ll talk; you listen;” or even Mussolini's, “ Hear, believe and obey.” The constitutional conferences ought to be a dialogue, but a real dialogue, not the Mussolini kind; and English-Canadians ought to go into them ready to listen but also to speak. We have plenty to say, and plenty that is worth saying. The FrenchCanadians have their history, their traditions, their culture; and we know too little of them. But we have our history, our tradi­ tions, our culture; and they know too little of that. A few years ago, in our French United Church paper, a young French-Canadian student wrote that the French-Canadians were the only Canadians who, in any appreciable degree, had a “culture;” the rest had really nothing worth mentioning. I pro­ tested. I pointed out that he implied English-speaking Canadians

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had no art, no literature, no music; which was simply not true. Granted, not all our artists, poets, novelists, and musicians were geniuses, or their works masterpieces; but were all the FrenchCanadian artists, poets, novelists, and musicians geniuses, all their works masterpieces? Surely, in both cases they were a mixed bag. A week or so later, I happened to be breakfasting with a very intelligent and well-educated French-Canadian colleague, to whom I told the story with some amusement. To my utter aston­ ishment, his reply was: “ Ah! M. Forsey! You do not understand French.” (Our whole conversation was proceeding in French.) “ You think this young man was saying that there are no cultured English-Canadians. That is not what he was saying at all. We all know that there are many cultured English-Canadian individuals. All he meant was that there is no English-Canadian culture.” I replied: “Thank you very much, M. Un Tel. But, deficient as my French may be, that is exactly what I understood him to mean, and exactly what I was protesting against, as both untrue and insulting.” It was his turn to be astonished. If I had told him the Pope had joined the Orange Order, he couldn’t have been more staggered. Clearly, it had never struck him that we had so much as a single English-Canadian painting or sculpture or poem or novel or symphony or composition of any kind. He could only stammer out, “ But surely your art and literature and music are very heavily influenced by English and American art and litera­ ture and music?” I said, “ Yes, of course they are. And are yours not influenced by French art and literature and music? But they still exist, and they are quite distinctly yours. I agree that Eng­ lish-Canadian ignorance of your culture is deplorable; but you do not remedy a bad situation by turning it upside down.” I said, a few moments ago, “our history.” And let us make it quite clear that it is our history: not the history of our forebears in England, Scotland, Ireland, Holland, or any other of the old countries, but our history in this country. I have sometimes noticed a patronizing tendency in some French Canadians to talk and act as if the rest of us were just commuters from London or Dublin or Edinburgh, or, at best, Englishmen, Irishmen, Scots­ men who happened to be living on Canadian territory, but who had no roots here, and no loyalty except to England, Ireland or Scotland. This is not so . . . [Newfoundland, Nova Scotia]. . . New Brunswick . .. [Prince Edward] . . . Island (and even Ontario!) have been here a long time. The roots of most of their people go deep into Canadian soil. Most of my ancestors, and most of yours, were in this country close to two hundred years ago, some of them more; and some of them had been on this

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continent for more than a century before they came, or were driven, here (we can match the expulsion of the Acadians with the expulsion of the Loyalists). I do not mean by this to dispar­ age those who came later, and who are often better Canadians than some of the older stocks. They, or their fathers, chose to be Canadians, which may be one reason why they are prouder of their Canadianism, and more energetic about it, than some of us who are what the Quakers might call “ birthright Canadians.” We English-speaking Canadians are Canadians. Those of us who are of British ancestry are, or ought to be, proud of that heritage, “and of the Imperial fountain of our freedom;” all of us, I hope, feel a pride in, and attachment to, our world-wide, inter-racial Commonwealth (to whose development, incidentally, such French Canadians as Laurier, Lapointe, and St. Laurent made a series of decisive contributions). All of us, I hope, feel also a pride in, and attachment to, the historic provincial com­ munities we belong to. But first and foremost we are Canadians; that is where our primary loyalty lies. I notice that some French-Canadians, recently, have accepted, and even with enthusi­ asm. General de Gaulle’s description of them as “ Frenchmen of Canada.” I doubt if you could find a baker’s dozen of Englishspeaking Canadians who would put up with anyone’s calling them “ Englishmen of Canada;” and I am perfectly certain that if Harold Wilson tried it, or came here and shouted from a balcony in Toronto, “ Long live free English Canada,” with an assurance that England would stand behind “you Englishmen of Canada in your struggle against French domination,” or anything of the sort, he would be sent home double-quick, with a flea in his ear. The French Canadians have made their massive, their invalu­ able, contribution to this country. But so have we. Our most notable contribution has been the basically English . . . constitu­ tional law' and practice of the whole country and of every prov­ ince: the system of parliamentary, responsible Cabinet govern­ ment. The French-Canadians have made a notable contribution to the development of the specific Canadian variety of that genus; but so have we. When we go into the Conferences, we should never forget that we are mortal, fallible, human, imperfect; that, like every­ body else, in many instances “we have left undone those things which we ought to have done, and done those things which we ought not to have done and there is no health” (that is, no wholeness) “ in us.” But I see no reason why we should act as if we had a double dose of original sin, still less why we should assume that the representatives of French Canada have stepped

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straight from the angelic choir, and that anything they say auto­ matically becomes a part of divine wisdom. They are just as mortal, fallible, human, imperfect, as we are; and error is still error, folly is still folly, nonsense is still nonsense, whether it is uttered by an English-Canadian, a French-Canadian, a Dutch­ man, or a Tanzanian, and whether spoken in English, French, Italian, Spanish, or Swahili. And if you think that is a platitude, you just ought to see and hear and read some of the Englishspeaking “ intellectuals” I hear and see and read almost every week of the year. We should go into these Conferences without prejudices, as far as we can, but not without convictions; without arrogance, but not without self-respect; erect, not on all fours; to play the parts of men, not lumps of putty or nodding plaster images. We should not stick to the old merely because it is the old, but neither should we be seduced by the fallacy that all change is progress. We should be inspired by Christian love, not a sickly desire to be loved. Christian love is not witless amiability, or absolute unselfish­ ness. “ Thou shalt love the Lord they God . . . with all thy mind"; or, as our French Protestant Bible says, “ Tu aimeras l’Eternel ton Dieu . . . avec toute ta pensee,” all thy thought. “ And the second commandment is like unto it: thou shalt love thy neigh­ bour as thyself" "comme toi-meme.” If, then, our love of our neighbour is to be “ like unto” our love of God, it must be a love in which we use our minds, in which we think; and if we are to love our neighbours as ourselves, we must love ourselves, respect ourselves. We must will the good of our neighbour, which involves using our heads to discover what that good is. This does not, of course, mean that we must proceed to impose on him what we think is good for him. But neither does it mean that we must incessantly, instantaneously, invariably, give him anything he happens to take it into his head to want. Nor does it mean that if he dislikes our faces, we must undergo plastic surgery. That would not be Christianity, just appeasement. If our ethic is simply to give our neighbour everything he fancies, if his mere likes and dislikes become our rule of conduct, the only result can be the flight of reason from human affairs; the triumph of the egotistical, the grasping, the brutal; and, in the life of the community, the dictatorship of whoever can shout the loudest, or shake the biggest fist, or make the biggest nuisance of himself. I used the word “appeasement” advisedly. The drama of appeasement is being played out again on the domestic stage right under our noses. Dorothy Sayers. . . [in her book. Unpopular

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Opinions] . . . has a chapter on Britain between the wars, and what made British politicians and the British people behave as they did. The chapter is headed, “ They Tried to be Good,” and it describes how “ the Voice of Enlightenment,” “ the good and intellectual peo­ ple,” led “the Flight from Reason,” and till almost the very out­ break of war, persuaded the British people that resistance to Ger­ man demands was “ naughty;” until at last it looked as if Britain had become “blind, deaf, dumb, paralytic and imbecile, without hope of recovery.” 21 The same kind of people have been doing the same kind of thing here, and with a frightening degree of success. We have plenty of Runcimans, plenty of would-be Chamberlains; we shall be very lucky if we escape a Canadian Miinich, which will accept, for example, the proposals of the Quebec provincial Liberal party’s constitutional committee (the committee itself says frankly that it expects this); a Canadian Miinich that would produce an agreement which would be hailed as a triumph of goodness, realism, moderation and sweet reasonableness, and which would last just about as long as the original Munich agreement. But, even at this eleventh hour, this need not happen, if we will use our heads and show what Sir Robert Borden called “ nerve and backbone.” 22 French-Canadians, even Quebec French-Canadians, are not unanimously behind the demands for separatism, or Asso­ ciate States, or the hemi-demi-semi-separatism of the Quebec pro­ vincial Liberal party’s constitutional committee. And the FrenchCanadians who see just what such proposals would mean for the ordinary Quebec worker and farmer and fisherman and miner, and for the French-speaking minorities in the other provinces, are resist­ ing: speaking for Canada, fighting for Canada. They need to have us speak for Canada and fight for Canada too. They need to have visi­ ble and audible evidence, from us, English-speaking Canadians, that we are not prepared to cut off our arms, our legs, and ultimately our heads (through in some cases that might hardly be noticed) to please people in a state of psychological disturbance; people who, if they got what they wanted, would (though with the best intentions) gravely injure, first and foremost the ordinary citizens of Quebec, then the French-speaking minorities outside Quebec, last and least the English-speaking population of Canada. There are other things we must be on our guard against in our constitutional discussions. One is magic words and phrases. Perhaps the most notable of the magic words is “ moderate.” 21 Unpopular Opinions (Gollancz, London, 1946), pp. 97-101, 103. 22 Robert L a ird Borden: H is M em oirs (M a cm illan , T oronto, 1938). p. 587.

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Over and over again, I have been told that Mr. X ’s hair-raising pro­ posal is “moderate,” because it is rather less hair-raising than Mr. Y ’s. Specifically, I have been told, times without number, that this or that proposal is “ moderate” because if does not involve immedi­ ate outright separation of Quebec from the rest of Canada. Well, as my friend Professor Donald Creighton once remarked, the man who asks me to jump out of a third storey window can, I suppose, be described as “moderate” by comparison with one who wants me to jump from the seventh storey: but in either case I shall be dead. Let us expunge from our vocabulary, for these constitutional discussions, this misleading and irrelevant word. Let us ask, of any proposal not, “ Is it more, or less, crazy than some other?” but “ Is it sensible? Will it work? Is it the proposal which will best serve the purpose its advocates have in view? Will it do good, or harm; and, if it is likely to do both, will it do more good than harm, or less?” Second, let us not be bamboozled by statements that we “do not understand French,” and that if only we did, we'd realize that what looks to us like a sabre-toothed tiger is really the gentlest of tabbies, asking only to be allowed to lie purring on the family hearth, obli­ vious of a possibly impending divorce. Two examples of this gambit will suffice. The first comes from a small meeting I attended last year. Among those present was a high Quebec personage who must remain nameless, but who had been held up to me beforehand as the very model of learning, wisdom, responsibility, and, of course, “moderation.” At a very early state in the proceedings, this gentle­ man undertook to straighten us out on our “ misunderstanding” of the word “ auto-determination,” which he translated “ selfdetermination.” “ Now, to you English-Canadians, this means ‘sep­ aratism.’ But this is not so at all. All it means is that in the new Constitution” (note the bland, question-begging assumption that there is going to be “ a new Constitution” ) “there should be an Arti­ cle, let us say. Article 26, which will give Quebec the legal right to secede. That is all. This is not separatism. We are not saying we will secede: all we want - and this is not an official demand” (pause, and a roguish twinkle) “yet! - is the right to separate if we see fit.” The second example of the “you do not understand French” gambit is, of course, the famous, or infamous, "deux nations,” “two nations.” We are told, ad nauseam, that the French word “ nation” means only “a cultural and sociological group;” and who could object to recognizing that the French-Canadians are a distinct cultural and sociological group? But the French word “nation” does not mean only a cultural and sociological group. It is all very well to tell me, and perhaps most of you, that we do not understand French. But it will hardly

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do to tell General de Gaulle that he doesn't. Yet General de Gaulle told Mr. Pearson, on January 16, 1964, that he wanted Canada to be “une nation forte et unie.” 23 “a strong and united nation.” Did he mean that he wanted Canada to be a strong and united cultural and sociological group? If so, he was expressing a wish that either French Canada or English Canada should disap­ pear, which would be blatant nonsense. The fact is, of course, that “ nation” or “ nation” has at least two meanings in both lan­ guages; and what some of our learned men, and the poor inno­ cents who follow them, apparently cannot get into their heads is the fatal ambiguity of the unqualified phrase “deux nations” or “two nations,” and the ease with which a skilled verbal conjuror (and Quebec is full of them) can make it mean at his convenience, either cultural and sociological “ nations” like Scotland, Wales, England, Wallonia, or Brittany, or political “nations” like the United Kingdom, France, and Canada. M. Daniel Johnson, in his September, 1966, brief to the Dominion-provincial Fiscal Conference, actually performed this sleight-of-hand within the space of two pages. On page 2, French Canada was “a nation, in the sociological sense of the term;” on page 3, he was demanding that this sociological “ nation” should have “juridical and political recognition in the new Constitution.” As long as we allow ourselves to be fooled by this kind of verbal juggling, we shall be sitting ducks for every separatist, or hemi-demi-semi-separatist in the country. We shall find ourselves, for one thing, agreeing that Quebec has a clear right to member­ ship in the United Cultural and Sociological Groups, commonly known as the United Nations. Another magic phrase is, “a true federalism,” “a genuine federalism,” “ un federalisme authentique.” The present Supreme Court of Canada, for example, won't do because its judges are all appointed by the Dominion. In a “true federalism,” they would not be. Indeed? So the United Slates is not really federal? Besides, who says what “a true federalism” is? And who says this country must have a Constitution which conforms to this or that theoretical notion of “ a true federalism”? Our Constitution should meet our needs, not be hacked and chopped to fit some text-book writer’s Procrustes' bed. This appetite for general principles, from which all the rest of a constitution can then be deduced with rigorous scholastic logic, is very strong in contemporary French Canada (though the French-Canadian Fathers of Confederation seem to have been completely free of it, perhaps because to them it seemed fraught 23 Le Devoir. 17janvier 1964

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with all the horrors of the French Revolution). It is something we shall have to take account of, something to which we may have to make certain concessions. But they had better be “certain” : pre­ cise, carefully thought out, agreed to only after we are quite sure what practical consequences they involve. It is altogether too easy to fall into th trap of accepting some innocent-looking general principle, only to find that, worked out to its logical conclusion, it will deprive us of our shirts, trousers, shoes and socks, leaving us with only our underclothes and our neckties. Last spring, for example, at the Canadian Political Science Association, we were told that we must “accept” the “principle” of a “special status” for Quebec. The proponents of “special status” in Quebec itself were not, indeed, quite sure just what it would contain, which specific powers would have to be handed over by the Dominion to the province. But we must accept the principle; later they would decide what it was to mean in practice. There were cries of outrage when I said this was asking us to sign a blank cheque. But what else is it? And why should we? A few months later, in a public discussion, an eminent English-Canadian lawyer said it was not a blank cheque but simply a “ bargaining position;” adding, to the delight of the audience, that he was surprised that I, with my trade union experience, should be so perturbed by a “ bargaining position." I was not quick enough to think of the obvious answer at the time, but I did some days afterwards, and wrote him. Had he ever heard of a union going into negotiations with an employer with this proposi­ tion: “ We are not sure yet what, precisely, our demands will be. We may ask for a 50 per cent increase in wages; or a four-hour, two-day week; or a six-months’ annual vacation; or a hundred paid statutory holidays per year; or pensions of $500 a month at age 50; or some combination of any or all of them. But you must first accept the demands; then we'll let you know what they are”? I got a very courteous answer to my letter, but none to my question. Let me add at once that I am not saying that there is no room for specific further special powers for Quebec, or any other province. Quebec already has a “special status” in the existing Constitution, in a number of ways. It is the only province with official bilingualism; it is the only province which cannot divest itself of its jurisdiction over property and civil rights; it is the only province with any constitutional restriction on its power to redis­ tribute the seats in its Legislative Assembly. At least seven other provinces also already have, in one way or another, a “special status” under the b . n . a . Act; and I can see no objection to giving any province a particular power or powers merely on the ground

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that this would make it different from the others. But I want to know first what power or powers, and why, and what the effect would be on the rest, and on the country as a whole. If someone can prove to me that he needs fifty dollars, and if it seems clear that my giving it to him will help him and hurt no one else, or at least help him more than it will hurt me, or anyone else to whom I might otherwise have given the money, well and good. But there is all the difference in the world between that and handing him a blank cheque, especially as, if he fills it in with a big enough figure, he will find it’s n . s . f . Now having uttered my warnings about the attitude with which we should enter the constitutional conferences, and the booby-traps we should beware of, what do I suggest we should do? First, be ready to examine, and discuss, thoroughly, meticu­ lously, any specific proposal, bar none, on any subject; “examine" and “discuss,” in the light of the facts, and by the light of reason as near as frail mortals can get to it. Second, we should also be prepared to put forward our own proposals, and have them subjected to the same rigorous exam­ ination and discussion. We should, moreover, be ready to adopt any proposals which can prove themselves. We don’t want to spoil the ship for want of a ha'p’orth of tar, but neither do we want to punch holes in it to please people who prefer to put to sea in a sieve. And in all the discussion, we are just as much entitled to say that something is “ not negotiable” as the French-Canadians are to say that some demand, or bundle of demands, of theirs is “ m inim um .” I gather, from the press reports, that at the Con­ servative Montmorency Conference, “ minimum” was respectable and “ non-negotiable” was not. This is intolerable nonsense. Third, we English-speaking Canadians must be ready to pay the price of the “one Canada” I hope most of us want. My old Scotch tutor at Oxford used to say there were two ways of wanting a thing: “really wanting it” and “ un-really wanting it.” If you really wanted it, you were willing to pay the price for it; if you were not willing to pay the price, then you only H/z-really wanted it. I think the price is, briefly, something like this: (1) bilingualizing the Dominion administration just as much and as fast as possible; (2) making as sure as we can that FrenchCanadians get their full share, just as big a share as they show themselves willing and able to take, in running the business, public and private, of the whole country; (3) providing French education for French-speaking children all across the country, wherever there are enough of them and the parents want it; (4)

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extending French radio and French television all across the coun­ try wherever there is any need for it (and, if we succeed in substantially bilingualizing the Dominion administration, it might be needed even in overwhelmingly English-speaking areas, to help English-speaking children prepare themselves for careers in the Public Service of Canada); (5) extending'official bilingualism to other provinces where, and as far as, necessary and practicable. 1 interrupt my main argument here to emphasize two things. First, that the more “special” the status Quebec gets, the nearer it gets to making itself a foreign country, the less French-Canadians can expect in the way of representation in the Dominion Cabinet, bilingualism in the Dominion Public Service, and French radio and television all across the country. I should hope that even a Canada from which Quebec has seceded would give its French-speaking citizens at least the language rights they already enjoy in the Dominion Parliament and Courts, French education for their children wherever there were enough of them and the parents wanted it; French radio and television wherever it was needed; their due share in running the business of the whole country; and official bilingualism in any of the remaining prov­ inces where, and as far as, necessary and practicable. I should certainly fight for such rights. But, manifestly, much that is appropriate and reasonable in a country where French-speaking people make up 28 per cent of the population would be neither appropriate nor reasonable in a country where they made up only 7 per cent. To put it bluntly: I think the English-speaking people of Canada can be sold a policy of “bilingualism and bicuituralism” (within the limits of practicability) “ or bust." 1 do not think they can be sold a policy of “ bilingualism and bicuituralism and bust.” The nearer Quebec takes us to “ bust,” the farther it will push us from bilingualism and bicuituralism. Second, I hope you notice how often 1 have said “ possible” or “practicable,” or the like. Some of those who genuinely want one Canada, with the French-Canadians playing the fullest part in it, have gone so far as to suggest that all the Legislatures and Courts of all the provinces should be made officially bilingual; which, of course, would mean, among other things, that all the Acts, records and Journals of all the Legislatures would have to be in both languages. This is something that cannot be done, except in New Brunswick and just barely possibly in Ontario, though this latter I strongly doubt. You simply cannot get the translators. There are too few of them, even if you scour the world; they are in great and increasing demand, especially in this country; and, accordingly, they come very high. If we undertake

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to make all the provinces officially bilingual, we shall be promis­ ing what we cannot perform, and I can think of nothing more dangerous. It is better to promise two thousand and pay it, than to promise ten thousand and pay ten cents on the dollar. To be less than frank with our French-Canadian fellow-citizens, in this and other matters, is to treat them not as equals, not as grown-up, reasonable men and women, but as spoiled children. It is also to treat them as children so stupid that they won’t realize they’ve been fooled until the promised goodies fail to appear, and will then just utter the French equivalent of what an old Newfound­ land relative of mine used to say: “Thus 'tis, me dear, and couldn’t be no ’tizzer.” To return to my main argument: I think we ought also to be ready to consider not merely transferring Dominion powers to the provinces, but the opposite as well. A very fair case could be made out for a paraphrase of Dunning’s celebrated motion: “That the powers of the provinces have increased, are increasing, and ought to be diminished.” The unquestioning assumption of the contrary is certainly irrational. Perhaps, on examination, it may turn out that all, or most, of the changes should be in favour of the provinces. But perhaps not. Perhaps the financial burden of the provinces could be lightened by relieving them of some responsibilities which could be more efficiently discharged by the Dominion. I suggest we could, with advantage, revive the Fathers’ original criterion for deciding where jurisdiction ought to be: general interest and local interest. This may be a counsel of perfection; I sometimes feel that provincial Premiers do bestride our narrow Canadian world like Colossi; but I am still not without hope that they may rise to the height of that great argument in which they are about to engage. I have one piece of advice to give the French-Canadian participants in the Conferences, or at least those of them who want to preserve a real Canada. They will find English-Canadians much more willing to take pride (as I do) in our dual tradition; much more willing to see bilingualism as an asset (as I do), not a liability; much readier to appreciate the French tradition, the “ French fact” in Canada, if French-Canadian demands are less often coupled with loud contempt for the British tradition, the “ British fact” in Canada (which, incidentally, saved the French-Canadians from being swallowed by the United States, and gave them the democracy they now enjoy), and with demands that we throw our tradition overboard. Spitting in our eye is not the best way to put us in a receptive, understanding, appreciative, accommodating frame of mind. Finally, I hope Canada, one Canada, including Quebec, will

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survive the present slurm unci drang. It will certainly not survive the kind of “special status” that is now being widely demanded for Quebec, in which that province would become for most purposes a foreign country, but would retain its full representa­ tion in the Canadian Cabinet and the Canadian Parliament, and therefore a powerful, often a decisive voice in what, by Quebec’s own will, would have become the purely domestic affairs of the other nine provinces. That would be a form of neo-colonialism from which the other nine provinces would speedily demand release. Better, far better, complete separation. This would be a sad end to a great enterprise; for me, and for many others, French-speaking and English-speaking, it would be an inexpressi­ ble personal tragedy. But the hemi-demi-semi-separatism which both Government and Opposition in Quebec now seem to want would only prolong the agony. A half, or three-quarters, or seveneighths, independent Quebec, would be only a moving tent, nightly pitched a day’s march nearer the home of complete separation; and it is not worthwhile braving the chill winds that would whistle through it. But could Canada without Quebec survive? I used to say, “ Probably not.” I have changed my mind. I do not think our Succession State need collapse, or fall into the maw of the United States. It would still have plenty of reason to exist: Quebec is not the only thing that makes this country different from the United States, not by a long chalk. There is no need whatever to allow ourselves to be scared into a “ bi-national” paralysis by dire warnings that otherwise the American bogeyman will get us. Let us make every reasonable effort, every reasonable concession, to keep Quebec as part of a single Canadian political nationality; every reasonable concession: we cannot provide the dry water, sour sugar, boiling ice, stationary motion, which most of the “special status” proposals demand. But if the effort fails, as I am afraid it well may, let the rest of us, English-speaking and French-speaking, face the future without Quebec, in a Canada truncated, indeed, but viable, united and free: One equal temper of heroic hearts. To strive, to seek, to find, and not to yield.

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