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209 AMENDING the BRITISH NORTH AMERICA ACT. Every 209 AMENDING THE BRITISH NORTH AMERICA ACT. Every Canadian should be inspired by the vision of the Fathers of Confederation in their conception of one vast nation of the British Provinces in North America, stretching from sea to sea, and by the ability and courage they displayed in putting their patriotic vision into practical effect. But the B .N.A. Act makes no special provision for its amendment and the suggestion is sometimes made that this point was overlooked. I believe the Fathers of Confederation assumed that any amendments to the Act would, as the occasion arose, be made by the Imperial Parliament . I can find no reference in pre-Confederation speeches to the amendment of the proposed Act, except that in the debates of the Canadian Parliament of 1865 the Hon . D'Arcy McGee said :- "We go to the Imperial Government, the common arbiter of us all, in our true Federal metropolis-we go there to ask for our fundamental Charter. We hope, by having that Charter can that only be amended by the authority that made it, that we will lay the basis of permanency for our future government." -"Canada Confederation Debates", (1865) page 146. There is a very substantial part of the Canadian Constitution outside the B.N.A. Act, which, following British precedent, grows. and develops. The B .N.A. Act, however, can only be amended by statute and, defining as it does the legislative power of the Dominion and provinces respectively, the question as to how it should be amended has of late years become a matter of increasing importance . The recognition, since the Great War, of Canada's status as a nation has given rise to the proposal that it should no longer be necessary to apply to the Imperial Parliament to amend the B.N.A. Act but that the Dominion Parliament should be given the power to amend that Act. It has also been proposed that, to meet the unusual condi- tions of the, present depression, the Dominion Parliament should be given more legislative jurisdiction in the interests of the nation as a whole. In reply to these proposals some of the provinces have put forward the contention that no amendment can be made to the B.N.A. Act without the unanimous consent of the provinces, bringing about an impasse that is viewed with concern by many thoughtful .Canadians. In. 1867 Canada, of course, had not the degree of autonomy she acquired through ,her "Great War" efforts, participation in the Peace Treaty and membership in the League of Nations. By concurring 210 The Canadian Bar Review. [No. 4 in resolutions passed at the Imperial Conference of 1926, the United Kingdom admitted that Canada was an autonomous nation within the British Commonwealth of Nations. In November, 1927, a Dominion-Provincial Conference was held in Ottawa at which were present Prime Minister King, the Dominion Cabinet and the Premiers of all the Provinces, with other provincial delegates. The Hon. Ernest Lapointe. Minister of justice, introduced the question of "Procedure in amending the British North America Act" by sub- mitting an opinion that "Canada, in view of the quality of status which she now enjoys as declared at the last Imperial Conference and in view further of the cumbersome procedure now required, should have the power to amend her own constitution and that legislation should be asked for from the United Kingdom for that purpose." -Sessional Paper No. 69, 1928. According to the official report of this Conference, there was a great difference of opinion regarding the proposal, its opponents pointing out that on no occasion had the Imperial Government refused a demand for amendment, and its supporters declaring that the change must come sooner or later if Canada were to keep abreast of her status. At the conclusion of a lengthy discussion the Minister of justice stated that the Government would carefully consider all the opinions on the subject, both pro and con.-Sessional Paper No. 69, 1928. There appears to have been no action taken as a result of this Conference, but on September 10th, 1930, when the proposed Statute of Westminster was about to be submitted to the Imperial Parliament, Hon . G. H. Ferguson, then Premier of Ontario, wrote a memorandum to the Right Hon. R. B . Bennett, Prime Minister of Canada, contending that the proposed Statute would confer upon the Dominion Parliament an unqualified power of amending the B .N.A. Act unless it contained some clause protecting the rights of the provinces. This memorandum contends that the resolutions adopted by the Quebec Conference were in the nature of a compact or treaty, and says that "No re-statement of the procedure for amending the con- stitution of Canada can be accepted by the Province of Ontario that does not fully and frankly acknowledge the right of all the provinces to be consulted and to become parties to the decision arrived at."-Toronto "Globe," Sept. 20th, 1930, p. 24. As a result of this and other protests, the Imperial Conference held in October and November, 1930, decided to give "an opportunity for the Canadian Government to take such action as might be appro- April, 1934] 'Anzending the British North America Act. 21 1 priate to .enable the provinces to present their views" regarding the proposed Statute of Westminster. See Summary of Proceedings of the Imperial Conference of 1930, page 17. The Prime Minister of Canada (Mr. Bennett) called a conference with the provinces, held in April, 1931, at which the provinces approved of the Statute of Westminster, subject to an amendment which was subsequently embodied in that Statute as follows:- "7(1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts 1867 to 1930, or any order, rule or regulation made there- under." Thus any implication that the Statute of Westminster conferred on the Dominion Parliament the power to amend the B .N.A. Act was expressly negatived. The Regina "Leader-Post" of April 8th, 1931, contained a Cana- dian Press despatch from Ottawa; which, after referring to the approval of the proposed Statute, reads :--- "The question of how the B .N.A. Act can be changed as the occasions for amendments develop is to be taken up at some further conference in which the Dominion and the provinces will take part. This was announced by Premier Bennett to-day. Many changes to the Act, which is Canada's Constitution, defining Provincial and Dominion rights, have been made from time to time, but the parties are for the most part in agreement that where a change of importance is to be made all the prov- inces must consent." In the Winnipeg "Free Press" of July 2nd, 1931, in a Canadian Press despatch from Ottawa announcing approval by the Canadian Parliament of the Statute of Westminster, Mr. Bennett is quoted as saying during the discussion :- "There will be a Dominion-Provincial Conference to deal with the question of power to amend the Canadian Constitution." In January, 1933, Mr. Bennett called a Dominion-Provincial Con- ference to discuss such amendments to the B .N.A. Act as might be necessary to promote the enactment by the Dominion Parliament of a measure of unemployment insurance, which a Committee of the House of Commons some time ago decided was a matter within the jurisdiction of the provinces. I am not here dealing with the merits or demerits of unemployment insurance, but the point is that, accord- ing to Press reports of this Conference, it stumbled on the objection of some of the provinces, notably Quebec, to any constitutional 212 The Canadian Bar Review . [No. 4 amendment by which the Dominion would acquire any of the rights over unemployment "now held exclusively by the provinces ."-Tor- onto "Mail and Empire," January 23, 19'33, p. 2. On January 26th, 1933, the Canadian Press reported that Premier Taschereau of Quebec officially made the following state- ment: in the Quebec Legislature regarding unemployment insur- ance :- "The provinces, in unanimity, refused to countenance amend- ments to the British North America Act proposed by the Federal Government, which would have permitted the establishment of a federal scheme of unemployment insurance . In this respect let me 'say the Province of Quebec will continue to defend the privileges which it at present enjoys through Confederation, believing that it must protect them as a heritage for future generations." However, some of the Press reports published while the Confer- ence was in session indicated that while Quebec, Ontario and the Maritime Provinces were against the proposed amendment of the B .N.A. Act, the Prairie Provinces and British Columbia were on the side of the Dominion. Ontario may possibly not now be as inclined as in 1930 to favour the necessity for unanimous consent of the provinces to an amendment, but if that is the official view of any province, it raises an issue which is probably one of the most embar- rassing since Confederation. The contention that consent of all the provinces is required before amending the B.N.A. Act is based upon the theory that the Quebec resolutions were or the B .N.A. Act was a treaty or compact between the provinces and the Act cannot be altered without the consent of all. The question is, is this theory tenable? Hon . G. H. Ferguson in his memorandum of 1930 (ante p. 2) quotes from speeches made in the Canadian Parliament of 1865 in which the Quebec resolutions were referred to as a treaty or compact.. These addresses were made when the (old) Canadian Parliament was considering the motion of Hon.
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