Speech before the House of Commons, March 6, 1893
Sir JOHN THOMPSON: I do not think that my hon. friend who has just taken his seat should have complained that the hon. member for L'Islet had disappointed us. He chided the hon. member for L'Islet with having promised us a good deal of fun and surprise, and while it may be possible that the fun was wanting, the surprise was given in a manner I never before paralleled in this House, by the extreme and striking contrast between the speech of five hours length and the resolution which followed. It was perfectly obvious to every one that the speech was dictated by one person and the resolution drawn by another, and that the two minds had never agreed on any part of the policy. The hon. gentleman insisted, at considerable length, that his compatriots in Manitoba had been unjustly treated with regard to their language. The resolution which he has submitted to the House contains not one word upon that subject. The hon. gentleman made the most forcible part of his argument and the most forcible part of his attack, on the ground that the Acts of 1890 ought to have been disallowed. Upon that subject he spoke about an hour, but I look in vain in the four corners of his resolution to find the subject of disallowance mentioned at all. He entreated the House not to come to a vote upon the Manitoba question until the Government should candidly declare what it intends to do, should the courts of the country decide that the Government have power to do anything, and yet the hon. gentleman himself is the only one so far who has asked a vote or proposed to put a resolution to the House. The hon. gentleman
above all things declared that he approached this subject not in a party spirit, and entreated the House to come to its decision in a calm and judicial manner, and the only point of his resolution is a censure upon the Government for having treated it in a judicial spirit. In stating, as briefly as I can, the policy which the Government has to propose with regard to this question, I am conscious that I shall have to trespass upon the forbearance of the House, because to many of us it is not a new subject, and it is a tedious one, involving many details which some of us are very familiar with, and which others, perhaps, care very little about. The question arises, in the first place, under the ninety-third section of the British North America Act, which defines the provincial powers with regard to the subject of education. We have been so frequently told within the last few months that the vital question involved in the consideration of this subject is the rights of the provinces, we have been so repeatedly told in every quarter of the country that there exists in the policy of the Government a scheme for throttling a province, for depriving a province of its rights, for trespassing upon the undoubted powers of a province, that I must, at the risk of repeating what is very familiar, ask the House to listen, for a moment, to what the definition of provincial powers with regard to the subject of education is. The popular impression sought to be intensified by the controversy which has taken place in regard to this question, is that the subject of education is exclusively one of provincial concern. But taking the British North America Act -- and I will consider by and by what the difference between that Act and the Manitoba Act is with regard to education -- taking, for convenience, the British North America Act, first, I find that by the ninety-third section, while the powers with regard to education are given the provinces, there are most important limitations by which this whole controversy is to be decided. The first of those limitations is that:
Nothing in any law which a province may pass shall prejudicially affect any right or privilege with respect to denominational schools which any persons have by law in the province at the Union.
I take it that the principle is well settled now and well agreed upon by both parties in this country, as well as by lawyers and tribunals of justice, that that provision, that qualification, nullifies any Act of a provincial legislature which conflicts with it, and that the legislature of a province, while, to a great extent, its powers are exclusive with regard to education, steps beyond its power and enacts a void enactment when it enacts a law which prejudicially affects any right or privilege with respect to denominational schools, which any class of persons had by law in any province at the time of the Union. Then there is a special provision with regard to the provinces of Upper
and Lower Canada, and there is then this provision, on which the appeal has come to us:
Where in any province a system of Separate or Dissentient Schools exist by law at the Union or is thereafter established by the Legislature of the province, an appeal shall lie to the Governor-General in Council from any act or decision of any provincial authority affecting any right or privilege of the Protestant and Roman Catholic minority of the Queen's subjects in relation to education.
And the final subsection in that section is that:
In case any such provincial law, as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section and of any decision of the Governor-General in Council under this section.
Now, the province of Manitoba commenced existence in 1870, and the first question which arises in connection with the rights of the minority in that province depends for its solution on the condition of education in that province at that time. It was apparent to everybody then, inasmuch as the residents in that country had no fixed system of law, certainly no system of educational law, that there was no system of separate or dissentient schools existing by law at the Union, or, in other words, at the formation of the province. In consequence of that, this Parliament, in passing the Manitoba Act, in framing it for the Imperial Parliament to pass, provided that the same privilege should be given where separate schools existed by law or by practice at the time of the Union. So we had it distinctly provided by the constitution of Manitoba in 1870, that if a system of separate or dissentient schools existed either by law or by practice at the time of that Union it would be beyond the power of the Provincial Legislature to impair the rights of the class of persons who controlled those schools or enjoyed them. Now, Sir, in 1871, the year following the organization of the provinces, a public schools system was adopted for the province, including within its provisions not only what is generally known as a system of public schools, but providing liberally and fully for a system of separate schools within that province, and for twenty years that statute, with various modifications tending to its more efficient execution, existed on the Statute book of that country and was carried on and operated continuously. By the two statutes of 1890, which are complained of, that system of both public and separate schools which had existed for over twenty years was cut up root and branch, and a number of persons connected with the minority in that province immediately petitioned the Governor in Council for redress under the
provisions of the subsection which I have cited. There were something like eight or ten petitions presented, and every one claimed this position of things -- that the right which the Roman Catholic minority held at the time of the creation of the province had been invaded, and that for that reason the statute was ultra vires of the Provincial Legislature and void. They all stood upon that principle, but they asked for various kinds of remedies. One of these petitions, the one which came from the Separate School Board or the Roman Catholic School Board I think it was called, asked that in consequence of that grievance the Acts should be disallowed. Every one of the others asked, not that the Act should be disallowed, but that we should give redress by hearing an appeal under the provisions of subsection 3, of section 93, of the British North America Act, or the corresponding provisions of the Manitoba Act. Now, Sir, these petitions came before His Excellency in Council, and the next step in the history of these proceedings was the report which was made in 1891, by myself, and approved in the month of April. Now the position which the report took, and which the Government took, with regard to the prayer for disallowance was this: that, inasmuch as the contention made in these petitions, and on which the prayer for disallowance was based, was that the rights of the Roman Catholic minority in a system of separate, dissentient schools existing at the time of the formation of the province had been interfered with, the Act was ultra vires of the Provincial Legislature and null and void, it was our duty, or the duty of some one we will say for the present, to ascertain whether the Acts of 1890, of which disallowance was sought, did interfere with the system of separate and dissentient schools existing by law or by practice at the time of the Union. The principle had been well settled in this Legislature time and again that no statute regarding education passed by a province ought to be destroyed by disallowance. On the contrary, if it were ultra vires of the Legislature, that fact ought to be ascertained and established by judicial decision. I shall refer in a few moments to the precedents by which that was well laid down and well established. But it was obviously, from start to finish, a principle which would commend itself to the common sense of any Government and any Legislature. Why should we, by the exercise of the strong hand of disallowance, destroy a provincial statute on the ground that it was null and void, and thus invoke an immediate conflict with the Provincial Legislature upon a subject and for a reason which could be dealt with by a tribunal in which the people of the province would have confidence, when they might not have confidence in the executive of the country, actuated, as it might appear to be, by political motives or religious sympathy? We therefore said, as regards the prayer for disallowance on the ground of the Act being "ultra vires" -- and no other ground, I repeat, was put forward in any of
the petitions -- that that was a fact which ought to be decided by the courts of the country. Sir, we were in this position, that, inasmuch as the Manitoba Act differed from the British North America Act in allowing these rights to be proved and established by practice before the Union, we had questions of fact involved in the inquiry as well as questions of law. And, for the purpose of getting these questions before the courts for decision, a suit was brought by a citizen in the city of Winnipeg, who claimed that he ought not to be subjected to taxation under the Acts of 1890, because they were "ultra vires" of the Legislature as having interfered with the system of separate and dissentient schools existing at the time of the Union. Now, Sir, that suit went on from time to time, and was decided in the year 1892. I desire to call the attention of this House to the precedents by which our course in that respect was justified. I have seen it stated that we were guilty of some wrong-doing in thus sustaining a suit for the purpose of trying a question of that kind. I deny that we were guilty of any wrong-doing in that particular. We were endeavouring to ascertain the exact rights of the minority, as existing at the time of the Union. We were endeavouring to ascertain just what those rights were in respect of which our protection was being claimed. In 1890 our policy was stated in this House, it was stated in debate here that this suit was being carried on for the purpose of having that question determined. In 1891, in the month of May, I was asked a question by Mr. Watson, then the member for Marquette, as to this litigation, and I answered the question in my place in the House. In May, 1892, the question was asked what sum we had paid out in connection with the litigation, and the House was then informed what the sum was; and so from step to step the House was well informed of the policy of the Government, what we were doing and how we were trying to arrive at a judicial determination of those questions. I mention that, by the way, to show that this is not a question which has developed lately or on which the information has been given to the House recently. The facts were made known to the House from session to session, every session during which the litigation was pending. Now, Sir, to come to another point with regard to the precedents which were established upon that subject, I desire to call the attention of the House to what was done with regard to the New Brunswick school case. A complaint came from the province of New Brunswick to the effect that the repeal of a parish school Act, which had existed years before the Union, had prejudicially affected the rights of the minority with regard to education, and that the repealing Act was, therefore, ultra vires of the Provincial Legislature. That question came before this House; it came on a motion favouring the disallowance of the repealing Act; and I assert at
the beginning of my comments upon that precedent, that this House deliberately laid down the principle that the question ought not to be settled by the power of disallowance, but it ought to be determined by a judicial decision of the courts, obtained at the instance of the Government from the highest tribunal of the Empire. A resolution was offered by my hon. friend the present Secretary of State; and he stated the case of his fellow-countrymen and his co-religionists on that occasion, and asked this House to adopt the resolution favouring the disallowance of that Act before the time for disallowance had expired. It is important to observe the grounds for the opinion of the leading men of both parties upon the policy that ought to be pursued in such cases ; and I shall take for the present, the statements which were uttered by the leading statesman of the province of Quebec, from which the hon. member for L'Islet comes, a man of venerated name, and of the highest position in this country, Sir George Cartier. The view which he put forward then, representing, surely, as fully as the hon. member for L'Islet does, the people of that great province of Quebec, was this;
No doubt the mover was actuated by the best possible motives, but if all the wording of the address were correct, even the fate of the Catholic minority of Quebec would have to be decided by the Dominion Parliament. The clauses of the Act of Confederation had been drawn up after the most mature deliberation, and with every regard to the delicacy of the question. The address tended to place the rights of the Catholics of the Dominion in the hands of a Protestant majority. Was that right? Was that wise? The Protestants of Lower Canada had no cause for complaint, and never would have so long as the Catholic majority were actuated by their present liberal sentiments ; but if the motion was right with regard to the Catholic majority of New Brunswick, the Protestant minority of Lower Canada might come and say "repeal the last education law passed in Quebec."
The report goes on to say:
The proposition involved in the motion for the address was not correct. He went on to say that the law was unjust and caused great uneasiness among the Catholics of Canada, and might produce great mischief, and therefore they prayed for the disallowance of the bill. If this was affirmed, the principle must be extended to other provinces, and as a Catholic of Lower Canada, he could not assent to it."
Again, he quoted the clause giving jurisdiction of matters of education to the Local Legislature:
He had pressed this at the time of Confederation, because he wanted the power to be enjoyed by Quebec. There were conditions that no right enjoyed at Confederation should be interfered with, and that the privileges enjoyed by the Catholics in Ontario should be extended to the Protestants of Quebec; and that any system of separate schools should be maintained. In case of infraction of the latter condition, there was an appeal to the Governor in Council, and this was because it would not have been right to submit the Catholic minority of Quebec to the Protestant majority of the Dominion Parliament; whereas an appeal to the Governor in Council must be settled in the
spirit of justice with regard to the interests of both parties.
I commend especially the closing words of that paragraph of Sir George Cartier's speech to those gentlemen who are in sympathy with the motion condemning the Government for having undertaken to assume judicial functions with regard to this question, a passage in which that statesman declared that this was not a question to be decided by the force of numbers, but was to be settled in a spirit of justice with regard to the interests of both parties. Now, Sir, I propose to show you that that view was concurred in fully by gentlemen of the other political party. The Hon. Mr. Blake is reported thus:
He quoted provisions giving Parliament the right to make remedial laws when necessary, and this, he maintained, could be done, although twelve months had elapsed.
Finally, the last amendment which was moved, and which was carried in this House, was a resolution moved by the Hon. Mr. Mackenzie, by which it was decided that this question, instead of being disposed of by the rough and ready method of disallowance, was to be left to the courts, and in the first place the opinion of the Law Officers of the Crown was to be obtained, and, if possible, the opinion of the Judicial Committee of the Privy Council:
This House regrets that the School Act recently passed in New Brunswick is unsatisfactory to a portion of the inhabitants of that province, and hopes 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 exists; and this House deems it expedient that the opinion of the Law Officers of the Crown in England, and if possible, the opinion of the Judicial Committee of the Privy Council, should be obtained as to the right of the New Brunswick Legislature to make such change in the school law as to deprive the Roman Catholics of the privileges they enjoyed at the time of the Union in respect to religious education in the common schools, with the view of ascertaining whether the case comes within the terms of the 4th subsection of the 93rd clause of the British North America Act of 1867, which authorizes the Parliament of Canada to enact remedial laws for the due execution of the provision respecting education in said Act.
Now, Sir, I need hardly remind the members who were in the House at that period, what the result of that application to the law officers was. There was no provision then by which the Government could have the case carried to the Judicial Committee of the Privy Council. Her Majesty's Government did not think that it should be referred there, but they obtained the opinion of the Law Officers of the Crown in England, and that opinion was to the effect that the rights of the Roman Catholic minority, although, perhaps, their schools had been sustained by public grants from time to time before the Union, had not been established by law at the time of the Union, and therefore, were not within the saving terms of the section which made an Act interfering with those rights "ultra vires" of
the Legislature. Then there was a case in 1877 coming from the province of Prince Edward Island, when hon. gentlemen opposite were in power, and the conclusion at which they arrived with regard to that subject was precisely to the same effect, that the Act complained of by the Roman Catholic minority of the province, was not to be interfered with by disallowance. That case was obviously parallel to the New Brunswick case as to the want of sanction of law, for the privileges which Roman Catholics enjoyed at the time of the Union, and therefore the repealing Act was declared to be "intra vires" of the Provincial Legislature, and not to be interfered with. The complaint of the Roman Catholic minority of Prince Edward Island was as strong as the complaint from the province of Manitoba. Now, coming down to the terms of our report on the petitions, and the terms of that report have been criticized to-night by the hon. member for L'Islet in most extraordinary and unwarranted language -- I shall ask the House to consider what the terms of that report are. There were the two sets of petitions to be reported upon, the petition that asked for disallowance on the ground that the rights of the minority existing by law or practice at the time of Union had been invaded; and the much more numerous set which declared that even though the Acts were not "ultra vires," on account of its invading the rights existing at the time of Union, they were subject to an appeal to the Governor in Council on the ground that they invaded rights which Roman Catholics had acquired under the Educational Act of 1871, in that province. We said in answer to those petitions, and the substance and effect of the report which has been to strongly commented on by the hon. member for L'Islet (Mr. Tarte) was this: Cease the application for disallowance as regards those statutes of 1890 as being "ultra vires;" that question ought to be left to the courts and when the courts have decided on that question, if they have decided that the Acts are "intra vires" of the Legislature and therefore valid and effectual, the time will have come for His Excellency to take up the other set of petitions and consider whether any, and if so what remedy shall be given to the minority of that province, by way of appeal asserted under subsection 93 of the British North America Act. That was precisely what the report said. That is precisely the tenor, the effect, the language of the report itself, and the section which the hon. member for L'Islet has read as the basis of a most extraordinary charge against the Government, a charge which he stated in coarser language a little while ago, but which was strong enough to-night, is simply this:
If the legal controversy should result in the decision of the Court of Queen's Bench being sustained the time will come for Your Excellency to consider the petitions which have been presented by and on behalf of the Roman Catholics of Manitoba for redress under subsection
2 and 3 of section 22 of the "Manitoba Act," quoted in the early part of this report, and which are analogous to the provisions made by the "British North America Act," in relation to the other provinces.
I defy any fair-minded man to read that report and arrive at any other conclusion than this, that His Excellency was informed that those petitions were of two classes; one claiming disallowance, and one of them asserting, in claiming disallowance, that the Acts were "ultra vires." My report said: "Lay them aside until this litigation is determined. There is no occasion for disallowance in the meantime, because, if the Acts are "ultra vires," they do not need to be disallowed; if they are "intra vires," they should not be disallowed. Lay aside, until the conclusion of that litigation the petitions which ask that remedial legislation shall be given, because the first question to be ascertained is whether these Acts have any force at all. If they have no force, no remedial legislation is necessary and no appeal should be carried forward; when we ascertain that these statutes of 1890, which are complained of, are legal and operative, it will be time enough then to consider that set of petitions which claim remedial legislation and redress." And yet the hon. gentleman has declared in this House that we have there most solemnly promised to give remedial legislation, and the hon. gentleman has at some time, I think, gone so far as to assert that we have induced the representative of the Crown to make a pledge which has not been redeemed and which places us in the position of having violated the Royal word. I repeat that by no fair construction whatever can any man assert that the report contains any promise whatever for remedial legislation or pledges the Crown to any action on those petitions whatever. It may well be, and I do not want to assert the contrary, or have the contrary implied from what I am saying now, that there is a strong claim for remedial legislation; but I say that the report was silent on that question, except to intimate to His Excellency that the time had not come for taking it up. While dealing with that report, both as to the way we treated that question and as to the question of administration, I desire to make some observations as to what the hon. member for L'Islet has said to-day with respect to negotiations with a prelate in Manitoba. In the first place, I wish to repeat the hon. gentleman's expression, because I am pretty confident I have it right, but I wish to be perfectly sure. He said that Sir John Macdonald would have disallowed the law if Archbishop Taché had insisted on that course. I have the best reason for knowing, and I do know, that there is not a fragment of foundation for that statement, and that after the precedents which had been established in the case of New Brunswick and followed in the case of Prince Edward Island and after the discussion which had taken place in this House in 1890, to which I shall
have to call the attention of the House more particularly in a few moments, there was no member of this Government who would have agreed to the disallowance of these education statutes, there was no member of the Government, who, under any circumstances, would have followed any other policy than that of asserting what the legal rights of the province were and what the duties of His Excellency and his Council were with respect to the appeal that had been asserted. The hon. member has stated that Mr. Chapleau, who is no longer our colleague, was sent to Archbishop Taché, delegated to go there to promise him remedial legislation. I deny that Mr. Chapleau or any other minister or any other agent or any living person was sent or delegated or authorized by the Government of Canada to go on any such mission. I deny that any such promise was made by the Government, and that any person whatever was authorized to make any such promise. The hon. gentleman has stated that Archbishop Taché was deceived. The hon. gentleman has stated that Archbishop Taché was unwilling to accept Mr. Chapleau's assurance, and the elections being urgent and it being necessary to secure the good will of that prelate, His Grace insisted on some official promise, and therefore my report was penned, making this so-called official promise. I have pointed out just now that it makes nothing of the kind ; but a significant circumstance against the hon. gentleman's theory is this, that the report was not penned until weeks after the general election was over and not submitted to His Excellency until April, 1891. We who were colleagues of Mr. Chapleau and must have known of any such mission, must have known of any such proposition, must have known of it in order to be bound by it, have heard to-night that assertion for the first time, although it has been insinuated in various quarters before. I deny that in any respect Archbishop Taché was deceived. I admit that His Grace would have been personally gratified if we could have seen our way clear to the disallowance of those statutes which he considers exceedingly oppressive to his people ; but His Grace knew just as well as we did, the folly of exercising disallowance in such a case. He knew, just as well as we knew, that not only, as the hon. member for Marquette (Mr. LaRivière) has said, would the Local Legislature have re-enacted the disallowed statute, but they would have made an appeal to the people of the province on the ground that their autonomy had been violated. They would have raised an agitation deeper and stronger than that which has existed unfortunately for the last year or two. They would have appealed with every probability of success to the people of that province in that struggle to sustain the Education Acts of 1890. There would have been no legal decision to back us, to create respect in the minds of people of the province for the action of the Federal executive. And in the meantime what would have become of
the Roman Catholic schools of the province ? His Grace was wise enough and possessed sufficient experience to know that the power of disallowance, while looking like a strong and ready remedy would be weak and inoperative as regards giving any effective redress for the grievances under which His Grace and his people were suffering. I say, therefore, that, from first to last, there is no foundation whatever form the statement that His Grace was deceived, that His Grace was misled, that His Grace was used for political purposes. I gave the hon. member for L'Islet (Mr. Tarte) credit for sincerity in his assertion, which sounded strangely to me, that his report contained an absolute promise of remedial legislation, or was so understood by the minority in the province of Manitoba, because he told us afterwards the reason which prompted that interpretation of the report. He had heard the story : That we had had promised then Archbishop of St. Boniface that if he did not press for disallowance we would carry on the suit to have the Act nullified; that if we failed in that we would give him remedial legislation; and that His Grace, not satisfied with that, had demanded an official promise; and the hon. member thought he saw here, what he otherwise would not have dreamed of seeing, between the lines or in the words of that report, a distinct promise that a certain course would be taken after the decision on the validity of the statute. As I said a few minutes ago, we adopted the policy of testing the validity of these two Acts of 1890, and, as I have stated, we were following then the precedent which was established in regard to New Brunswick. Some hon. member may ask me whether the decision in the case of New Brunswick was not enough, and why should we again move to litigate with regard to the same question as to Manitoba ? The reason is, because the rights of the minority in the two provinces rested on different statutes. If they had had the same statute in New Brunswick as they had in Manitoba, the minority might have prevailed, but the New Brunswick minority had to show that their rights had been established by law, and the Manitoban minority only had to show that their rights had been established by law, and the Manitoban minority had only to show that those rights existed in practice. There was a mixed question of law, and fact, and the question was submitted, as everybody knows, to the courts of the country with varying success, until it came here, and the Supreme Court of Canada pronounced against the validity of these Acts, and the Judicial Committee of the Privy Council reversed that decision and declared these Acts to be "intra vires." I wish to call the attention of the House to the state of the Supreme Court Acts of that time. We have now an amended provision in this Act, by which a question of law relating to education, involving questions of fact also, shall be submitted to the Supreme
Court of Canada for determination, and that court may take evidence upon the question of fact, as well as hear arguments upon the question of law. At the time of which I speak, the Supreme Court Act was not so framed, and, therefore, the litigation had to begin at the beginning, begin before a judge of first instance in the province of Manitoba in order that evidence might be taken to establish what rights the Roman Catholic minority of the province enjoyed by practice at the time of the Union. The course that was pursued in that case, Mr. Speaker, was not different from that which was pursued in the case of New Brunswick; and, again, in this respect, that in the New Brunswick case, by a vote of this House, the House provided the expenses for carrying on that litigation. It has been said that, in recommending that course to be pursued with regard to the claims of the Roman Catholic minority of Manitoba, my course was inconsistent with that which I pursued in another case. I wish to dwell on that for a moment or two, for although it has not been mentioned by the hon. member for L�Islet (Mr. Tarte), I am quite conscious that this question is not a question upon which the hon. member for L�Islet (Mr. Tarte) expresses the only view in opposition to the Government. I believe that other views will find expression before the termination of this debate, and it would have gratified me very much indeed if I could have heard these views expressed before I addressed the House, feeling, as I am sure, that they will essentially differ from those of the hon. member for L�Islet (Mr. Tarte), although, perhaps, in accordance with the resolution which my hon. friend moved, it would have been perhaps, not reasonable for me to expect that that would be possible. Three or four years ago a citizen of this country approached His Excellence by petition, claiming that an Act which had excited a great deal of feeling in this country, known as the Jesuits Estates Act, of the province of Quebec, should be referred to the courts for determination as regards its validity. That application was declined, and declined on my advice, and when I state the ground on which it was so declined, I will state the distinction between that case and the present one. It was declined on the ground that we should only avail ourselves of that provision of the Supreme Court Act which entitled us to ask the opinion and instruction of the court when some duty in relation to the challenged Act devolved upon His Excellency or upon his Excellency�s officers. It was held that it was not for His Excellency to submit an academic question to the court, as regards the validity of an Act with which His Excellency had no particular concern, but that if His Excellency had a duty to discharge, or if his officers required instruction, it would be a proper function to submit the case for adjudication. In that case, the time for disallowance had expired, but announcement
had been made that the Act would not be disallowed, and the proposition of Mr. Graham, the petitioner, was, simply that for the purpose of gratifying curiosity, or for the purpose of satisfying doubts in the public mind, the Act should be sent to the courts for adjudication. The words in which the whole ground is put on which that application of his was refused, appear in this passage of my report:
As to this the following considerations are respectfully submitted: The provision which confers that power on Your Excellency was undoubtedly intended to enable the Governor-General to obtain an opinion from the Supreme Court of Canada in relation to some orders which his Government might be called on to make, or in relation to some action which his officers might be called on to adopt. For the guidance of Your Excellency or of your officers the provision may be a valuable one, but used as a means of solving legal problems in which the Government of Canada has no direct concern, however much they may interest or excite the public mind, as the petitioner seems to propose, or used to compel an adjudication on private rights and interests, it would be perverted, the undersigned humbly submits, into an arbitrary and inquisitorial power, anticipating and interfering with the ordinary course of justice.
What was the difference between that and this Manitoba case? Simply this: that we have two sets of petitions here claiming that His Excellency should hear the appeal, and should give remedial legislation to the minority, and it was necessary before he should come to the hearing of that appeal, or be advised as to the rights of the petitioners to have remedial legislation, that he should know whether these Acts were valid or invalid; whether they required remedial legislation, or whether the statutes against which the minority appealed were simply worthless paper. But another phase in that discussion with regard to the Jesuit Estates Act, we did approach a period when an appeal was about to be asserted, and when the necessity of adjudication by His Excellency in Council would have come. Late in the day, long after the time for disallowance had expired, the president of the Protestant School Board of the province of Quebec, asserted the appeal to His Excellency under this very subsection. I have no hesitation in saying that if the appellants had come forward, as we invited them to do, a case would have been stated at their instance, if they so desired, for the opinion of the courts of the country. We named a day on which they and their counsel should be heard; they asked that that appointment should be posponed to a later day; their request was complied with; and, in the meantime, they made application to the executive of the province of Quebec, got their redress there and abandoned the appeal here. So far, I claim, there was nothing that was inconsistent with the action of the Federal Government of that period in the course we adopted in referring the validity of the Manitoba School Acts of 1890 to the courts for decision. I am sorry
to find, Sir, that in some minds there is likewise an impression that our action in thus promoting litigation in order to obtain a decision of that question involved a want of impartiality on the part of us who were eventually to decide the question. I submit that that impression must disappear on a second glance at the subject. We had no other method at that time, in consequence of the state of the Supreme Court Act, than to promote litigation, before, as I said, a judge of first instance, to have the case eventually carried to the highest court of appeal in the Empire; and we were far from being influenced by any desire to assail the province or its legislation. We had simply the duty devolving upon us of getting a legal determination of the constitutional rights of the educational minority in that province. Now, Sir, the case, as is well known, resulted in a complete decision of that question by the Judicial Committee of the Privy Council. But the question which went to the Judicial Committee of the Privy Council, the litigation from first to last, was upon the subject of the validity of the statutes complained of. The question as to the rights which the minority of the province might have in an application by way of appeal to the Governor-General for redress, had nothing to do with the questions which were decided there, and the litigation had nothing to do with it. There are strong expressions in the judgement itself. There are strong expressions, for example, that no right or privilege of the Roman Catholic minority was affected by the legislation of 1890; but the judges are careful to show, by the whole language of their report, that those expressions refer to the rights existing at the time of the Union ; and indeed it was unnecessary for them to make that plain -- although they have made it so -- because they could decide upon nothing else, and their decision would have been obiter in so far as it extended to any other question than the one before them. The impression exists, and has been assiduously cultivated in the public mind, that the words of the decision of the Privy Council are so sweeping that it denies that any rights acquired even after the Union were invaded; but I repeat that not only nothing of the kind is to be gathered from the judgement itself, but that it would be absolutely perverting the judgement to say that the Judicial Committee decided on a question which was not before them, and on which they had heard no argument and no evidence. The language which the decision contains is this:
The result of the controversy is of serious moment to the province of Manitoba, and a matter apparently of deep interest throughout the Dominion. But in its legal aspect the question lies in a very narrow compass. The duty of this board is simply to determine as a matter of law whether, according to the true construction of the Manitoba Act, 1870, having regard to the state of things which existed in Manitoba at
the time of the Union, the provincial legislature has or has not exceeded its powers in passing the Public Schools Act, 1890.
Again, Sir, in order to show clearly what the question was that was before them, and that it did not extend to any inquiry as to the rights of the minority by reason of the legislation of 1871, establishing separate schools in that province, but was confined to the question as to the existence of rights at the time to the Union, the decision goes on to say:
Such being the main provisions of the Public Schools Act, 1890, their lordships have to determine whether that Act prejudicially affects any right or privilege with respect to denominational schools which any class of persons had by law or practice in the province at the union. Notwithstanding the Public Schools Act, 1890, Roman Catholics and members of every other religious body in Manitoba are free to establish schools throughout the province; they are free to maintain their schools by school fees or voluntary subscriptions; they are free to conduct their schools according to their own religious tenets without molestation or interference. No child is compelled to attend a public school. No special advantage other than the advantage of a free education in schools conducted under public management is held out to those who do attend. But then it is said that it is impossible for Roman Catholics, or for members of the Church of England (if their views are correctly represented by the Bishop of Rupert�s Land, who has given evidence in Logan�s case) to send their children to public schools where the education is not superintended and directed by the authorities of their church, and that therefore Roman Catholics and members of the Church of England who are taxed for public schools, and at the same time feel themselves compelled to support their own schools, are in a less favourable position than those who can take advantage of the free education provided by the Act of 1890. That may be so. But what right or privilege is violated or prejudicially affected by the law? It is not the law that is in fault; it is owing to religious convictions, which everybody must respect, and to the teaching of their church that the Roman Catholics and members of the Church of England find themselves unable to partake of advantages which the law offers to law alike.
And then further down:
They (their Lordships) doubt whether it is permissible to refer to the course of legislation between 1871 and 1890, as a means of throwing light on the previous practice or on the construction of the saving clause in the Manitoba Act.
There the principle is most distinctly laid down that even for the purpose of throwing light on the state of affairs which existed at the time of the Union, it was not competent to the Judicial Committee of the Privy Council to consider what the legislation in 1871 and downwards was. But when that decision was pronounced the Roman Catholic minority came to His Excellency in Council and said: That question of "ultra vires" has been disposed of; that request of ours for disallowance or redress on the ground that the Acts were "ultra vires" is disposed of, and the time indicated by your report has come for considering the appeal which we asserted in 1890, and which we reassert now. And it was under these
circumstances that the policy of the Government was framed which is under trial in this House to-night. Now, it is necessary for me, in order to justify that policy, to call the attention of the House to the question which arises with regard to the remedial legislation which is claimed by that appeal. In the first place, I have read to the House what the terms of the British North America Act are which give the appeal. The terms of the statute of Manitoba are different -- considerably different in the words which seem to affect this question of right acquired after the Union by the Roman Catholic minority, and I propose to call the attention of the House to them for the purpose of convincing the House, if I shall be able to do so, that there are still grave questions of law affecting the second branch of the inquiry, and questions which require judicial determination just as much as the first set. Now, Sir, the language of the Manitoba Act and the language of the British North America Act are different in this material respect : that the British North America Act, applicable, of course, to all the other provinces, contains this provision, that:
Where, in any province, a system of separate and dissentient schools exist by law at the time of the Union or is thereafter established by the Legislature, an appeal shall lie to the Governor-General in Council from any act or decision of any provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen�s subjects in relation to education.
The words which are there, if they are applicable to Manitoba, according to the contention of the minority, completely suit their case, because they say that the expression "or is thereafter established by the Legislature" preserves the system which they established under the Act of 1871, giving separate schools, and that, therefore, they have the right to assert their appeal to have that system subsequently established by law protected, even though the Judicial Committee of the Privy Council determined that they had no redress by reason of rights which existed at the time of the Union. We find, however, that the terms of the Manitoba Act are as follows:
Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law or practice at the time to the Union.
The Manitoba Act does not contain the provision in favour of an appeal where a system of separate or dissentient schools has been thereafter established -- that is, after the Union. Now, one important question which arises at the threshold, therefore, of the appeal, is whether the appellants are able to avail themselves of the terms of the British North America Act, when they have provisions in the Manitoba Act of a different character relating to the same subject. There is a general enactment in the Manitoba Act, that,
except where provision is otherwise made, the terms of the British North America Act should extend to that province. I do not mean to say that the terms of the British North America Act do not extend, but it is warmly contended that no provision exists, with regard to Manitoba, for the protection of the system of separate or dissentient schools, created by the Legislature after the Union. That is a most important question, one fully open to argument, and a question upon which, I may say, the judges who heard the case of Barrett differed in opinion. Then, again, it was urged before us by counsel for the appellants, that they did not need to avail themselves of the terms of the British North America Act preserving any system of separate schools created after the Union, because the terms of their own Act, notwithstanding the omission of these words, are wide enough to cover the case. Well, the there were developed in the course of the argument before the Judicial Committee of the Privy Council other important questions as well. One of them was that the system of separate schools was established by the Act of 1871 in Manitoba, was not a system of separate or dissentient schools within the terms of that section of the British North America Act. Another question, and one I dare say we shall hear contended for, one which has been abundantly contended for in the press, is the statement, in which I am not able to agree, for the reasons I have given, that the decision of the Judicial Committee of the Privy Council covers the case and prevents an appeal, just as it establishes the validity of the Acts of 1890 of the province of Manitoba. Then there is the question as to the power of His Excellency to grant the orders which are asked for by the petitioners. They ask for remedial legislation by their later petitions in a specific form. They ask that the province of Manitoba shall be ordered to re-enact certain enactments, they ask certain exemptions, and make various specific applications, as to our power to grant which there may well be question, and there certainly would be argument. Now, then, let me ask the House to consider what the obvious duty and the plain common-sense way of proceeding was, as regards these questions. We had to face then, of course, as regards the public, as we have to face now, the suspicion on the part of some, that we are trying to get round the decision of the Privy Council in some way. We have to face, on the other hand, the suspicion, the contention raised by our opponents, that we are endeavoring to get time by promoting litigation and leading the appellants a dance through the courts. But we had it perfectly apparent to us, that if we were able to deal sincerely and honestly with this question, these legal points must be determined before any action could be taken, as regard remedial legislation, if it
was to be taken. Because let no man in this House hide from himself the fact that these legal questions will inevitably come before the courts, whether they are sent there by the Government or not, and if we were to do as the hon. member for L�Islet (Mr. Tarte) wishes us to do, if we were to make the order for remedial legislation, and invite this House to pass a statute upon that subject, every word of that statute, every act, every proceeding, every word of our order, every taxation, every right, every appointment under it, would be liable to be challenged on the ground that these legal questions lying at the root had been disregarded by us, or improperly determined by us, and that we had no jurisdiction in the premises at all. What condition should we then have put this country in, if, in dealing with this difficult and delicate Manitoba question, we had made such remedial orders; had asked this House to pass remedial legislation, and, after all that had been done, it was found we had simply bungled our work. The province would laugh at us and defy us and disregard our authority, and it would be established definitely by the courts that all we had tried to do to relieve the grievances of the minority in Manitoba was a mere nullity? We would simply have thrown the province into confusion and made hostility between the two classes greater than it was before. Those who are in favour of remedial legislation fear the result of another appeal to the Judicial Committee of the Privy Council, and who say to us, if not in the language used to-night, in language used elsewhere and implied here to-night : "You are sending us before an unfriendly court, which ruled against us once already" -- these must remember that that is the tribunal which eventually must decide, whether it decides first or last, and it is a question of policy, prudence and principle, whether we shall not have this question settled and out of our way, or whether we shall promote confusion and disaster and disgrace to ourselves by endeavoring to interfere in matters over which perhaps, it will be found we have no control. One set of persons, therefore, contend, as did my hon. friend from L�Islet (Mr. Tarte) this afternoon and evening, that it was our duty, without inquiry, without precaution, without having got these legal questions out of the way, to have given remedial legislation, while on the other hand, another section opposed to our policy contend, with greater vehemence still, that our duty was to have dismissed the appeal at the outset and taken no action whatever in regard to it. I would ask if we could reasonably be expected to adopt that course of throwing out the petition, without any determination as to whether the petitioners had wrongs to be redressed or not ? Would it be reasonable that we should throw out the petition simply of our own motion, when, by the terms of the sections with regard to education which I have read, if the minorities in the provinces have rights, we
are constituted the guardians and trustees of those rights, and are bound not to regard simply the wish and the desire of the majority," and are protectors, not of the majority, but of the minority. Sir, it was our absolute duty, in our judgment, to obtain a judicial determination of the questions in the interest of both parties, and especially in the interest of peace and good government in the province of Manitoba. I desire now, at the risk of wearying the House a little, to call attention to what was done here upon that subject in the year 1890. The existence of this very Manitoba difficulty, this very stage of it, was brought to the notice of the House by the Hon. Mr. Blake, and he moved a resolution which, in 1891, after he had left, was embodied in a statute, enabling us to refer such questions as this to the determination of the court. Let me read a few of the remarks of Mr. Blake with regard to that subject, because they are as cogent and as pertinent to this very case as if they were uttered upon this floor this very night. I read this first passage to show that Mr. Blake had in his mind this very difficulty in regard to Manitoba, and that he put it forward as one of the reasons for adopting the resolution which he had moved:
I would say that recent current and impending events have combined to convince me that it is important in the public interest that this proposition should receive attention during this session.
In another place he says :
Yet, Sir, no legislature or executive can, any more than any private individual, act at all without considering, and in a sense deciding for itself the legality of its acts and so in some sort of entering upon the judicial department, but not upon the domain of the judicial power, because our opinion that our acts are valid does not make them so, their validity depends upon the decision of the judicial authority and upon that alone.
I commend that to the consideration of those gentlemen on both sides of this question who undertake to say we have usurped judicial power -- an unwarrantable conclusion, as I shall ask the House to declare, on the report upon which that criticism is founded, one that was not sanctioned in 1890, when Mr. Blake used almost the same language contained in the report that in coming to a judgement upon this question we were to a certain extent "entering upon the judicial department, but upon the domain of the judicial power." The hon. member for L�Islet (Mr. Tarte) in the latter part of his speech, challenged the propriety of our course and the consistency of it, when he declared that in one part of the report we were declaring that our functions were judicial and at the same time, instead of exercising judicial functions we were referring the question to the judges. That is precisely what Mr. Blake explained when he declared that we were entering upon the judicial department, but not upon the domain of judicial power. That is a distinction which the critics of that part of the report have not considered and which
I think they will do well to consider if they desire to do justice to the Government in this matter, instead of making a party advantage out of it, which I am sure many of them do not desire to do. Mr. Blake went on to say:
There can be no doubt that the absolute union of these departments
that is of the executive, the legislative and the judicial
Is neither more or less than absolute despotism.
He is calling attention to the functions which would be exercised by a Government and Parliament deciding upon legal questions affecting the rights of others without a judicial determination of them, and he says that to do so would be absolute despotism. He goes on:
United in one hand, I care not whether it be the hand of an autocrat or the hand of a council, the power of legislation, the power of interpretation, and the power of administration, and you make the most absolute despot that is conceivable. The separation therefore, the degree to which without over weakening or over complicating the action of the machine, you can separate them, marks the degree to which, in this aspect of a constitutional system, you have attained perfection.
He goes on to say:
The first of the two cases to which I allude is that in which the proposal comes before the Executive, to disallow an Act of a Provincial Legislature on the ground that that Act is ultra vires. If it be so, the Act is void ; and I think I may say, that it is now generally agreed that void Acts should not be disallowed, but should be left to the courts. It is yet, and I think with sound reason, contended, that cases of great general inconvenience or involving difficulty, delay, or the impossibility of a resort to law, may justify the policy of disallowance, even in cases in which the Act is ultra vires, and therefore void. In that view there would arise two questions, the question of policy, and the question of legality, because, the question of legality leaves untouched the question of policy. If the Act be void, shall it be disallowed or no? The other case to which my motion alludes, is that of the educational appeal, which arises under section 93 of the Constitutional Act, and under the analogous provision of the Manitoba Constitutional Act. Under these clauses a limited power to make educational laws is granted to a province, provided, amongst other things, that nothing therein contained shall prejudicially affect any right, or privilege, with respect to denominational schools which any of the provinces had by law, or, in the case of Manitoba, by practice at the Union. There is another class of restrictions, which I do not in terms touch here, but to which, in cases in which an appeal is raised upon them, my observations would equally apply. This limitation upon the power of a province is made more effectual by a special provision giving appeal to the Executive from any Act or decision of the Provincial Legislature or authorities affecting any right or privilege of the Protestant or Roman Catholic minority in relation to education, and when also in case of the non-execution by the province of the decision of the Executive, this Parliament may make remedial laws for the purpose of affecting that decision. Those members who have long been here will well remember the New Brunswick school case, which was agitated for many years, and in the course of which agitation I hoped that some political aspects of that
and of analogous questions were finally settled -- settled, at all events, for the party with which I acted, and for the humble individual who is now addressing you. I regard it as settled, for myself at any rate, first of all, that as a question of policy
And I commend this to the consideration of the hon. member for L�Islet
there shall be no disallowance of educational legislation, for the reason that, in the opinion of this Parliament, some other or different policy that that which the province has thought fit to adopt would be better. I hold it to be settled, in the second place, that no Address to the Crown shall be passed by this Parliament asking for a change of the Constitutional Act as affecting any province, against the will of that province in particular; and I hold it to be settled, perhaps obviously, from these two propositions, that the only questions which can practically arise within our domain are such questions as may be raised under section 93 and the analogous section of the Manitoba Act by way of appeal. The events which took place in connection with the New Brunswick school case afford, at all events to myself, a strong proof of the expediency of what I now propose. Let me enforce the three or four propositions I have stated by a brief reference to the votes upon that occasion. In part those votes were taken when hon. gentlemen opposite were in power, in part they were taken when the Liberal Party were in power, the first stage in the transaction occurred when hon. gentlemen opposite were in power, and in May, 1872, I voted with the majority of the House against a motion to regret that the New Brunswick school law had not been disallowed by the Government, to which I was opposed, although I was and so expressed myself, of the opinion that some of the changes which had been made by that Provincial law were harsh changes. At the same time, I seconded a motion, which fortunately also prevailed.
Then he cites the resolution of Mr. Mackenzie:
That this House desirous to express, deems it expedient that the opinion of the law officers in England and if possible of the Judicial Committee of the Privy Council, should be obtained as to the right of the New Brunswick Legislature to make such changes in the school law as deprived Roman Catholics of the privileges which they enjoyed at the Union, in respect of religious education in the common schools, with a view of ascertaining whether the case comes within the terms of subsection 4 of section 93 of the British North America Act of 1867, which authorized the Parliament of Canada to enact remedial laws for the due execution of the provisions respecting education in the said Act.
He goes on to say:
At that time I need hardly remind the House there was no Supreme Court in existence. The advice of the law officers was obtained, and it was, as it had been before, and I am afraid, if I may judge by a notice on the paper, it has been since, not perhaps very satisfactory; and there was no approach apparently to the Judicial Committee. In the end we had to get up a suit some way or other, about some assessment or other, in order to obtain, by a clumsy and expensive process, a judicial decision, not reached for some years afterwards, of the question involved and stated in the motion which I have just read.
He said late on:
That the legislation which was the subject of agitation was in some particulars harsh, and might better have been otherwise. Now, sir, in the exercise of this power of disallowance by the Government, political
questions will arise, or at any rate they may arise. Questions of policy may present themselves, that is questions of expediency, of convenience, of the public interest, of the spirit of constitution or of the form of legislation. All these are clearly, exclusively for the executive and legislative departments of the Government. They are for the political department, but it is equally clear that when in order to determine your course you must find whether a particular Act is ultra or intra vires, you are engaging in a legal and a judicial function.
I ask the House again to observe that expression which is almost the one adopted in this report, and the one censured by the resolution now on the Table of the House. Mr. Blake declared that in exercising that jurisdiction as to the Act being "ultra vires" or "intra vires," we were engaging in a legal and judicial function.
What do you do -- you proceed to interpret the Constitutional Act and to declare its meaning; you proceed to interpret the Provincial Act under consideration and to declare its meaning; you proceed to compare the two statutes so interpreted and declared, and you proceed, finally to conclude whether the law conflicts with, or transcends the powers which are conferred upon the Legislature which passed it. Nothing that can be stated partakes more exclusively of the character of a legal operation than that which I have just described. Again, when you deal with the appellate clauses, as, for example, in the case of Manitoba, the very case which is now in a sense pending, as to whether recent legislation be within the limits of the rights of the Provincial Legislature, and whether any relief is due under the appellate clause to those who claim, you have a legal question, or rather, in this case, a mixed question of law and of fact, which circumstance it was that induced me to interject the word "fact" in my motion, conscious as I was that it was only on the rarest occasions that any references of that description would be necessary. It seemed to me that, in this particular instance, I was pressed with an example which may arise. Now, what is the process to be gone through with in order to reach a conclusion? The first is that very question of fact, or mixed question of law and fact. You have to find whether any class of the population had by law or practice any right, at the time of the Union; and, if so, what right or privilege had they with respect to denominational schools. Secondly, if so, you have to find whether that law or privilege has been affected, and how it has been affected, by the legislation complained of; and thirdly, if so, you have to find what legislative action is required to redress the wrong. The first two questions at any rate are legal and not political at all. I aver that in the decision of all legal questions, it is important that the political executive should not more than can be avoided, arrogate to itself judicial powers; and that when, in the discharge of its political duties, it is called upon to deal with legal questions, it ought to have that power surrounded by such solemnity and importance as may be thought expedient. It should, I say, have the power to call in aid the judicial department in order to arrive at a correct solution. The decision that an Act is ultra vires, and its consequent disallowance by the Executive is peculiar in practice to ourselves. It does not exist in the great example of the Republic to the south of us at all.
Not to weary the House too much, I forbear to read from that report a great deal more in the same line, establishing in the first place that, in dealing with questions of this character -- and hon. gentlemen will see,
if they read that speech, by many other passages which I have marked, that the argument of Mr. Blake is quite as applicable to what should be done with regard to an appeal as with regard to questions of "ultra vires" or "intra vires," and that, not only is his principle applicable to the second class of questions, as well as to the first, but his express language and argument apply more to the solution of questions arising with regard to the determination of the rights of minorities asserted on appeal, that to the mere decision of whether the statute is "ultra vires" or "intra vires." Sir, that resolution was accepted by the leader of the House, Sir John A. Macdonald, in the spirit in which it was put forward by Mr. Blake, and Sir John took pains to declare that, while the terms of that resolution, taken alone, might seem to be ambiguous, he accepted it in the sense in which it was put forward in the lucid argument by which Mr. Blake had supported it in the House; and he expressed the hope, that in subsequently framing a statute we would be guided by the argument which Mr. Blake had advanced, as well as by the words of his resolution. Well, that resolution passed this House unanimously, and I humbly submit that, after the passage of the resolution, we had the mandate of this Parliament in dealing with any question that might arise by way of appeal as to an educational statute being "ultra vires," or as to a claim for remedial legislation; we had the mandate of the House that all such questions, so far as they involved disputes as to law or fact, should be sent to the courts for determination; and it is because we have obeyed that mandate of this House, obtained at the instance of the leader of the Opposition at that time, acquiesced in by the leader of the Government, that we are assailed by the terms of this resolution to-night, terms which conflict with the expression used by Mr. Blake in his speech, and with the speech by which Sir John A. Macdonald declared that he adhered to this principle. I submit that not only may we claim that we have the mandate of this House, but we may claim to have the mandate of the whole Parliament on this subject, for in the following session we amended the Supreme Court Act in this way adopting the very language of Mr. Blake�s resolution. We placed thus among the subject which the court should investigate and have power to determine:
Important questions of law or fact touching provincial legislation, or the appellate jurisdiction as to educational matters vested in the Governor in Council by the British North America Act, 1867, or by any other Act or law, or touching the constitutionality of any legislation of the Parliament of Canada, or touching any other matter with reference to which he sees fit to exercise his power, may be referred by the Governor in Council to the Supreme Court for hearing or consideration, and the court shall thereupon hear and consider the same.
So that, by the very text of that statute, His
Excellency is given power to refer, not only questions connected with the constitutionality of these Acts of 1890, which are complained of, but all questions of law or fact which arise with regard to an appeal under section 93 of the British North America Act of 1867, or any other Act or law of a like character. Then, there is a provision inserted for the first time, that:
The court shall certify to the Governor in Council for his information, its opinion on questions so referred, with the reasons therefor, which shall be given in like manner as in the case of a judgement upon an appeal to the said court.
And there is a provision which enables the decision of the court in any such case to be treated as a final judgement, so that there may be an appeal from the Supreme Court to the Judicial Committee of the Privy Council. I claim that the machinery which we have used here, of sending this question to the courts, was adopted for the purpose by this Act, because Mr. Blake avowed that he put it forward to meet this very educational question, which had arisen in the province of Manitoba ; and yet, Sir, the assault which has been made upon us to-night, is for having followed the very terms of that resolution carried in this House, and of a statute of this Parliament passed no longer ago than 1891. There has been a great deal said about an expression which is used in the report, and about which, I humbly conceive, there has been either a complete misapprehension or a great deal of hypercriticism, and the misapprehension or hypercriticism finds its way into the language of this amendment, which reads:
That, Mr. Speaker, do not now leave the chair, but that the House resolves its disapproval of the action of the Government in dealing with the Manitoba school question, and in assuming to be possessed of judicial functions conflicting with their duty as the constitutional advisers of the Crown, which assumption is wholly unknown to law, and, if now acquiesced in, will be entirely subversive of the principle of ministerial responsibility.
I might fairly call the attention of the House at some length to the origin and source of this particular provision in our Constitution providing for an appeal to the Governor-General in Council. I will do so very briefly, because, if I were to dwell on it, the public, at all events, if not this House, might suppose that we were making a technical defense with regard to those words which are contained in the report and which are censured in this resolution, whereas our defense is not in that line at all. But, in passing, I may refer to the fact, that in constitutions of recent years there is no analogous provision, that I have been able to find, constituting the Governor-General in Council a tribunal of appeal from a provincial authority, with power to make decisions, and placing power and jurisdiction in the Federal Parliament to carry out any decision which may be disobeyed by the provincial authorities. But in early times, in
times which preceded the period when responsible government assumed full strength, that was well known in all the provinces of Canada at least, for in nearly all was there a judicial power vested in the Governor in Council; the Council formed a court of appeal with respect to many subjects; and it had power to issue writs of error. As late as 1873, a statute of Prince Edward Island recognized -- it was subsequently ascertained that it was passed under a mistaken assumption of the law -- the existence of jurisdiction in the Governor in Council as a legal tribunal. At one time, of course, Parliaments themselves were courts of law. Subsequently, the executive authority exercised that jurisdiction, and latterly the two jurisdictions have grown apart as people became conscious of the principle which Mr. Blake has explained so well in the speech which I have just quoted, conscious that a union in one hand of the executive, the legislative and the judicial authority, constituted the greatest despotism that any country could possess, while the separation of these functions was the best guarantee of constitutional freedom. However, that is only by the way. What I wish to call attention to is the extraordinary manner in which our report has been misinterpreted, the report of the sub-committee with respect to this question. This was our observation:
With respect to the functions that devolve upon Your Excellency�s advisers, with regard to this appeal the application came before Your Excellency�s advisers in a manner different from the applications which are ordinarily made under the constitution to Your Excellency in Council.
Surely the functions which devolve on His Excellency under this clause of the constitution are not only peculiar to this constitution, not only exceedingly difficult and delicate to exercise, but they are different from any other functions given to the executive by the terms of the British North America Act. In the opinion of His Excellency�s advisers the application is not to be dealt with at present as a matter of political character or involving political action on the part of His advisers. That has been put forward, and is put forth in this resolution, as showing that we are endeavoring to free from political responsibility the executive who should be responsible in regard to what advice we may give. It means nothing of the kind; it would be nonsense if it conveyed anything of that kind. I will show the House what interpretation it does fairly bear, and what interpretation was intended by those who framed it. The report reads:
It is to be dealt with by Your Excellency in Council regardless of the personal; views which Your Excellency�s advisers may hold with regard to denominational schools and without the political action of any of the members of Your Excellency�s Council being considered as pledged by the fact of the appeal being entertained and heard. If the contention of the petitioners be correct, that such an appeal can be sustained, the enquiry will be rather of a judicial than
of a political character. The sub-committee have so treated it in hearing counsel, and in permitting their only meeting to be open to the public.
Out of all that has come all this criticism that we are claiming to be possessed of judicial functions, conflicting with our duties as constitutional advisers of the Crown, that this is an assumption wholly unknown to law, and if now acquiesced in will entirely subvert the principle of ministerial responsibility. The expression that our functions with respect to this appeal are judicial rather than political, is not said of our functions with respect to the whole appeal; but the report states that at this stage, and in regard to simply hearing the appeal our functions are judicial rather than political. That assertion is based on these grounds: That a special duty is devolved on His Excellency�s advisers by that section of the British North America Act, different altogether from the functions which are exercised otherwise, and we use an expression, the expression judicial, which almost every paragraph of Mr. Blake�s speech of 1890 applies to those who sitting in the executive have to deal with questions of that kind. The same expression was used, or a similar one, in the House tonight, when we were asked to come to the consideration of the subject, not in a party spirit, but in a spirit of judicial fairness. Time and time again in considering questions involving the rights of members or the rights of persons who have stood at our bar or who were to be affected by our decision, I have heard the leaders of both sides declare that the investigation ought to be approached with political and party spirit, as the House was exercising judicial functions in dealing with the questions before it, and in committees of the House the term is used when people are summoned and interrogated, and personal rights are to be affected by the decision. The functions which devolve under that clause of the constitution on the executive are judicial rather than political in this sense; not by any means, however, let me promise, in the sense that we are free from responsibility from any act or word, not by any means in the sense that we are judges, not by any means in the sense that we are a court of justice, but in the sense which applies to men who are dealing not with matters in which they can exercise a personal preference and a personal choice, or in which they can be guided by the sense of what is best for the party, or by the sense of what is best for other interests of the country, or by a sense even of what is best for the country as a whole, but in ascertaining the rights of others, not what is best for the majority but as to the rights of the minority. We are required by the terms of the British North America Act to give a decision; that decision is to be communicated to the province ; if the province disregard our decision, this House has jurisdiction to make an enactment to enforce that decision. I am using the very
words of the Act, and was it straining a point to use the metaphor which refers to the judicial rather than the political authority with respect to all these questions? Why, Sir, a politician advising His Excellency in ordinary matters is bound to give his personal predilections weight; is bound to give his personal and private opinions for the benefit of his colleagues and for the benefit of His Excellency. He is bound to do what is best for the interests of the country as a whole. He is bound to consult the welfare of the majority, if the interests of the majority and the minority cannot be reconciled; but with regard to the questions which come up in this appeal, that course of action has to be reversed, and while, as I admit, we are perfectly responsible for everything which we will do, we have to be guided in some degree, at least, by the judicial rather than by the political sense in ascertaining what the rights were of those who appeal, and how they should be dealt with, because those rights are entrusted to our safe keeping by the constitution. Now then, let me inquire for a moment whether this is anything unusual. I have already referred the House to expressions which are used when we come to deal with rights, with property, with the rights of the individual members of this House, and with the rights of constituencies. Every time such questions come up the House is invited, and properly invited, to come to the determination of these questions in a judicial spirit, and to deal with them judicially, whether we always succeed in doing so or not. When this question with regard to the separate schools of Manitoba came before the council, everybody knows that there sat there men strongly in favour of separate schools, and every one knows that there sat there men opposed to separate schools. Was the private and personal opinion as to whether there should be separate schools or not, to govern members of the executive thus sitting? Would those who are opposed to separate schools have done right in leaving their seats in council and walking out, on the ground that separate schools were against their conscience? No, Sir; they had the duty devolving upon them, at least to hear the appeal, and that duty was not a political duty; but it took to a very great extent of the character of a judicial duty, and so they have heard the appeal in so far as it has progressed now. Surely it was not out of place at least to use the metaphor which refers to the judicial authority for the purpose of explaining to the public that we were not sitting there in the exercise of our ordinary duties; but sitting there in discharge of a peculiar duty, in respect to which the rights of other people were dependent upon our action. That Sir, is the only foundation for the extraordinary motion with which the hon. member for L�Islet (Mr. Tarte) concluded a speech upon different matters altogether; a motion which
declares that we have assumed judicial functions, and that that is entirely inconsistent with ministerial responsibilities. Sir, I do not hesitate to affirm as my belief and as true constitutional doctrine, that for everything a Minister does he is responsible to Parliament as well as to the people. If a Minister is called upon to decide a case between two parties just as we were called upon here to decide a case between two classes of the community; if he has to decide upon the rights of property of a man who is before the Council, just as we had here to decide upon a claim to the school property and the school moneys of Catholic sections and of Protestant sections, the Minister is responsible to the House for every step he takes and all he can claim is the forbearance and charitable judgement of the House, in view of the delicate functions he is obliged to perform in that regard. That is the only claim we make here. We claim, not the charity, but the fair consideration of the House in view of the difficult and delicate functions we had to discharge on a question irritating large bodies of the people, and entering to some extent into their religious privileges, their religious beliefs, and their religious practices. Now, let me call the attention of the House to some classes of questions, which we are now told are not of a judicial character at all, and as to which it is said that to recognize them as in any sense judicial would be subversive of the principle of ministerial responsibility. I will take one illustration; but there are many. We have duties devolving upon us by Act of Parliament as members of the Railway Committee of the Privy Council, and although we sit there as Ministers, we sit discharging precisely the functions which are exercised in other places by judges, and which are judicial rather than political. We had to deal with a case in that Committee some four or five years ago, in which the rights of a province seemed to be involved. A railway constructed under the authority of the Manitoba Government claimed the right to cross a railway constructed by the Federal Government, and the constitutional question was raised as to their right to force a connection with a railway which was under the authority of this Parliament by the terms of our statute. We did, with regard to that, just what we are doing here with regard to the Manitoba educational question. It was then the Manitoba Railway question now it is the Manitoba Educational question, and what we did was to submit to His Excellency that he should lay before the court a case upon which the rights of all parties concerned should be decided before we made any rule, or before we made any decision. We might have pursued the course recommended by the hon. member for L�Islet (Mr. Tarte). We might have made an order for the crossing; we might have put bodies of armed men in motion for the purpose of effecting the crossing; we might have left the crossing difficulty to be decided afterwards; but every man,
when the dispute was over, admitted that we took the safer course; that we avoided confusion and perhaps bloodshed; at any rate, that we avoided confusion and heart-burnings. We submitted the question of the rights of the parties to the courts first, and acted on the decision which we procured from the courts. I admit, Sir, that with regard even to that question that we were subject to ministerial responsibility, and that it was the perfect right of any member of this House, while that case was in progress, to move a resolution declaring that we should not submit it to the courts, or declaring, after it came from the courts, that we should have evaded the instructions of the courts, or acted on the authority which the courts said we had. Therefore, on behalf of my colleagues and myself, I disclaim in the strongest manner any attempt to evade ministerial responsibility, and I again assert that the criticism which is contained in this resolution and which is made elsewhere, is a criticism which carves words and splits hairs, and that the metaphor which we did use, and which related to a judicial rather than a political subject, was fully justified by the language used in this House in 1890, when the principle on which we were acting was adopted. There occurred to my memory this moment an observation which was used in this House a few days ago, with regard to the office of Lieutenant-Governor. A leading member of the House, challenging the propriety of our action with regard to the tenure of office of a Lieutenant-Governor in one of the provinces, said that it detracted from the independence of his office, and that it was important that that independance of the office should be observed because the Lieutenant-Governor was a quasijudicial officer acting as between parties. The expression was perhaps an appropriate one, in that case; but not half as appropriate as was the allusion to the judicial authority and the judicial function in this report of the sub-committee. In passing now, Mr. Speaker, as I think I may, from the terms of this report of the sub-committee, I wish to make one observation in regard to the allusion which the hon. member for L�Islet (Mr. Tarte) made to one of our late colleagues. He referred to his having gone into retreat, and making an analogy, I suppose in his own mind, between his retirement from the political scene -- to the demise which is to come to us all -- the hon. member declared that Mr. Chapleau had made his last will, in a speech at Hochelaga some weeks before his retirement from the Government. I beg to say in answer to the playful allusion of the hon. member for L�Islet, that that last will is no good because we have a later one, the name of Mr. Chapleau is appended to this very report which is made the subject of censure by the hon. member for L�Islet. For the purpose of asking the forbearance of the House as to our treatment
of this question -- not the forbearance of the House exactly, but the fair and impartial judgment of the House, as distinguished from the bias which we sometimes feel in regard to matters in which the fate of the Government is involved, I want to ask the House to consider the gravity and delicacy of the position in which we are placed. I mean in which this country is placed; I mean in which this Parliament is placed, as well as in which the executive is placed with regard to this religious and educational question in the province of Manitoba. Let us look for a few moments at a country with a somewhat analogous constitution alongside us; let us inquire how long the wonderful union between the states in the United States of America would have lasted if the statesmen of that country, the governors and presidents of that country, had acted on the impulsive notions of the hon. member for L�Islet, and had torn up State Acts and Federal Acts by the power of veto. That subject has been well investigated, and the great author who has treated of "The American Commonwealth" has made some observations upon the feature of the constitution which gives to the judiciary such control over legislation as to questions of "ultra vires" and "intra vires." Speaking of the apparent difficulty of working such a system, in which the judiciary surmounts for certain purposes the executive, he says:
It is nevertheless true that there is no part of the American system which reflects more credit on its authors or has worked better in practice. It has had the advantage to relegating questions not only intricate and delicate, but peculiarly liable to excite political passions, to the cool, dry atmosphere of judicial determination. The relations of the central federal power to the states, and the amount of authority which Congress and the President are respectively entitled to exercise, have been the most permanently grave questions in American history, with which nearly every other political problem has become entangled. If they had been left to be settled by Congress, itself an interested party, or by any dealing between Congress and the state legislature, the dangers of a conflict would have been extreme, and instead of one civil war there might have been several. But the universal respect for the Constitution, a respect which grows the longer it stands, has disposed men to defer to any decision which seems honestly and logically to unfold the meaning of its terms. In obeying such a decision they are obeying, not the judges, but the people who enacted the constitution. To have foreseen that the power of interpreting the Federal Constitution and statutes, and determining whether or no State Constitutions and statutes transgress federal provisions, would be sufficient to prevent struggles between the National Government and the State Governments, required great insight and great faith in the soundness and power of a principle. While the constitution was being framed the suggestion was made, and for a time seemed likely to be adopted, that a veto on the Acts of State Legislatures should be conferred upon the Federal Congress. Discussion revealed the objections to such a plan. Its introduction would have offended the sentiment of the States, always jealous of their autonomy; its exercise would have provoked collisions with them. The disallowance of a State
statute, even if it did really offend against the Federal constitution, would have seemed a political move, to be resented by a political counter move. And the veto would often have been pronounced before it could have been ascertained exactly how the State statute would work, sometimes, perhaps, pronounced in cases where the statute was neither pernicious in itself nor opposed to the Federal constitution. But by the action of the courts the self-love of the States is not wounded, and the decision annulling their laws is nothing but a tribute to the superior authority of that supreme enactment to which they were themselves parties, and which they may themselves desire to see enforced against another State on some not remote occasion.
Precisely the same is the case, Mr. Speaker, with regard to the province of Manitoba. To have disallowed, after the decisions of this Parliament on the cases of New Brunswick and Prince Edward Island, would have created a feeling of great uneasiness throughout this country. Why, Sir, the very dread that her educational powers are intended to be assailed out of religious sympathy on the part of some of us, or from political hostility to the Gvernment and Legislature of the day in Manitoba by some of us -- the very suspicion that we intended to interfere with her rights caused an outcry in Manitoba, and all the Dominion has been filled with the cries of her alarm. When the questions which surround her case have been decided by the courts, there will be no suspicion on the part of that province that either from religious or political antipathy or sympathy her legislation has been interfered with or her rights invaded; and when the hon. member for L�Islet challenges me, as he surely had no right to challenge me, to state in advance what the policy of the Government would be if such and so should happen, I tell him that the answer I can give him now and the answer I shall be able to give him, if that event should happen, would be this, that the province of Manitoba is a constitutional province, and that whether it be in the hands of legislators opposed to us or in the hands of legislators in sympathy with us, we have every reason to believe and to rest assured that she will obey the dictates of the highest tribunals in this Empire as to what the constitution is, regardless of consequences, regardless even of the displeasure of the majority if the decision should be against the majority; and that, so far as the disposal of this appeal is concerned at any rate, the minority must bow to that decision, and the Federal executive will advise His Excellency accordingly.
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Source: Canada. Parliament. House of Commons. Debates of the House of Commons of the Dominion of Canada. 7th Parliament, 3rd session (January 26, 1893: April 1, 1893). Ottawa : S.E. Dawson, 1893. Pages 1790-1820.