More distraction to real and vital change.

CANADA

A
COUNTRY
WITHOUT
A
CONSTITUTION

A Factual Examination Of
The Constitutional Problem


By
Walter F. Kuhl
Member Of Parliament
Jasper-Edson 1935-1949


January 1977


"It is therefore easy to see why Canada is
not a confederation............."
[Dr. Maurice Ollivier, K.C., Joint Law Clerk,
House of Commons, before the Special Committee
on the British North America Act, 1935


"I have always contended, for reasons too long to enumerate here,
that it [Canada] has not become either a confederation
or a federal union."
[Dr. Ollivier, in a personal letter to Mr. Kuhl, May 30th, 1936]


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FORWARD


There is probably no political issue in Canada upon which there is a greater
lack of information and more mis- and dis-information than on the
constitutional question. The stalemate and the impasse which the governing
authorities in Canada have reached on this question seem to indicate that
there is and has been something very fundamentally awry in Canada's
constitutional history.

For almost half a century this controversy has been raging, and a
satisfactory solution has NOT been found. Many Canadians, myself included,
have had enough of this bickering between politicians and are determined to
do something to bring this internecine strife to an end.

The purpose of this booklet is to indicate in some measure what I, as a
member of the House of Commons and as a private citizen, have attempted to
do to bring order out of the constitutional chaos in which Canada finds
herself. Democracy is successful only in proportion to the knowledge which
people have with respect to their rights and privileges. It is my hope that
the information contained in this brochure will assist Canadians to that
end.

Immediately following the recent Quebec election, I sent to Mr. Rene
Levesque a personal letter in which I indicated my conception of the
constitutional rights which the provinces of Canada enjoy at the moment. At
the conclusion of this booklet will he found a reproduction of this letter.
Included with this letter was the additional material found in this booklet.
A copy of my letter to Mr. Levesque, along with copies of the additional
material, was subsequently mailed to each of the premiers of the provinces
of Canada.

I desire to express my gratitude to Mr. R. Rogers Smith, who as my private
tutor for almost the entire fourteen years during which I served as a member
of the house of Commons, brought to my attention facts from the statutes at
large, from the Archives and from original historical sources, the material
upon which this brochure is based.

Walter F. Kuhl


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Copy of the first page of the BNA Act (1867). This page was not part of
that private members bill that was passed by the British Parliament



On the left is the preliminary draft by the Colonial Office. This means the
Domination of the Colony, or the uniting of the Colonies into one Dominion.
This is the basis of the British North American Act.
Notice how they stroked out "for the purposes of Government and
Legislation", and left the emphasis on "colonies"

On the right is the desire of the Provinces to unite into a Federal Union;
which means freedom. Drafted by John A. MacDonald before he received his
title. One draft is diametrically opposed to the other. The hand written
text:

"Whereas the Provinces of Canada (Upper and Lower - Ontario and Quebec),
Nova Scotia and New Brunswick have expressed their desire to form a Federal
Union for the purposes of government and legislation based on the principles
of the British Constitution, and..."

This is a copy of a page from "Inside Canada", a publication by R. Roger
Smith.


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Memo of support from Dr. Beauchesne, Parliamentary Secretary


Text: "Dear Mr. Kuhl, I see you are still forming a good policy. The idea is
progressing. The only thing wrong with it is that it has not been proposed
by a Cabinet minister." Dr. A. Beauchesne Dated: June 28, 1940. and sent in
response to a speech made by Mr. Kuhl on Canadian constitutional problems on
June 25th, 1940.

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CONFEDERATION A MYTH by Elmer Knutson
Author of: Confederation or Western Independence

In my search for truth, I found several handwritten articles, written in
very large script by Lord Monck on sheets of paper 11 x 14. As that is much
larger than the pages of this book I have reduced them in size, which makes
them unreadable without a magnifying glass. So I have typed the contents of
each page for your convenience.
Lord Monck was the Governor of Quebec, and he also became the first Governor
General of Canada. He sat in on all the discussions during the Quebec
Conference of 1 864, he knew what the drafters of the Quebec resolutions
intended and wanted, and as such was intimately acquainted with the thoughts
and wishes of the delegation which went to London in December 1 866. He
reported in the first six pages of his dispatch his personal observations of
the "scheme" to his superior the Right Honorable Edward Cardwell M.P. in
charge of the Colonial department, the eventual author of the B.N.A. Act.


***********************************************

Confidential
25NOV64
Government House
Quebec
Nov. 7,1864

The Right Honourable Edward Cardwell M.P.

Sir,

In another dispatch of this date I have had the honour of transmitting to
you the resolutions adopted by the representatives of the different colonies
of British North America at their late meeting at Quebec in reference to the
proposed Union of the Provinces.

I propose in this dispatch to lay before you some observations of my own on
the proposed scheme which I think it would be judicious for the present at
least, to treat as confidential.

I must in the first place express my regret that the term "Confederation"
was ever used in connection with the proposed Union of the British North
American Provinces both because I think it an entire misapplication of the
term and still more because I think the word is calculated to give a false
notion of the sort of union which is desired. I might almost say which is
possible, between the provinces.

A Confederation or Federal Union as I understand it, means a union of
Independent Communities bound together for certain defined purposes by a
treaty or agreement entered into in their quality of sovereign states, by
which they give up to the central or federal authority for those purposes a
certain portion of their sovereign rights retaining all other powers not
expressly delegated in as ample a manner as if the Federation had never been
formed.

If this be a fair definition of the term Federation and I think it is
applicable to all those Federal Unions of which history gives us examples,
it is plain that a Union of this sort could not take p/ace between the
provinces of British North America, because they do not possess the
qualities which are essential to the basis of such a union.

They are in no sense sovereign or independent communities.

They possess no constitutional rights except those which are expressly
conferred upon them by an Imperial Act of Parliament and the power of making
treaties of any sort between themselves is not one of those rights.

The only manner in which a Union between them could be effected would be by
means of an act of the Imperial Parliament which would accurately define the
nature of the connection, and the extent of the respective powers of the
central and local authorities, should any sort of union short of an absolute
Legislative Consolidation be decided on. (Elmer's note: the BNA Act was just
that)

The Sovereignty would still reside in the British Crown and Imperial
Legislature, and in the event of any collision of authority between central
and local bodies there would be the power of appeal to the supreme tribunal
from which all the colonial franchises were originally derived and which
would possess the right to receive the appeal, the authority to decide, and
the power to enforce the decision. (End of Lord Monck's letter)


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Delivered in the House of Commons
on Thursday, November 8, 1945


A Distinctive National Flag

And

Constitutional Problems In Canada


***********************************************

Mr. W. F. KUHL (Jasper-Edson): This resolution urges the expediency of
Canada's possessing a distinctive national flag. I agree that an anomaly
exists with respect to the matter of a Canadian flag, and I, and my
associates in parliament are in favour of removing this condition. But
personally I consider that under the constitutional conditions prevailing in
this country at the moment such action is premature. There are other and
more important actions to be taken before it is appropriate to adopt a new
flag.
The flag question is just one of the many anomalies which exist in Canada's
constitutional position. Some of these have' been referred to this
afternoon. One of them, the matter of Canadian citizenship, is intended to
be dealt with at this session. There are others, such as amendments to the
constitution, appeals to the privy council, the power of disallowance, the
matter of a federal district proper - and doubtless there are others. All
these anomalies ought to be dealt with, and I am personally in favour of
dealing with them at the earliest possible opportunity. But I consider that
the present piecemeal method is improper as well as undemocratic. I contend
that the people of Canada are not being consulted in the manner in which I
believe they ought to be concerning their rights in these questions.

To Account For Anomalies

I wish to indicate, Mr. Speaker, my reasons for contending that the method
that is proposed to attempt to remove these anomalies is improper and
undemocratic. Then I wish to indicate what I consider to be the proper
method to use. To do this I first wish to endeavour to, account for the
constitutional circumstances in which we find ourselves at the moment.

The question which must occur to every hon. member of this house and to
every other citizen in this country is, why do such anomalies exist in our
constitutional position? How did they come about? There must be something in
Canada's constitutional history that accounts for the circumstances in which
we find ourselves. No other part of the British Empire finds itself in the
same circumstances. Why are these conditions peculiar to the people of
Canada? In endeavouring to answer these questions, and in suggesting what I
consider to be the proper remedy for them, I am not posing as a
constitutional expert, although I may say it is now ten years since I began
my studies on this subject, and I trust, I shall not be considered
presumptuous in claiming to have added a little to my knowledge in that
time.

The matters which I wish to discuss are those with which every public school
child in the seventh and eighth grades, every high school student, and
certainly every voter, should be thoroughly familiar. Every citizen in the
land should know by what authority we do things in this country. On several
occasions during the past two parliaments I have argued the case I am about
to introduce, but very little attention was paid to my statements either in
the house or out of it. On this occasion I intend to be heard, and if not, I
demand to know the reason why. I consider that the situation which I shall
discuss is of such importance that a reply or a comment should certainly be
forthcoming from the Acting Prime Minister (Mr. Ilsley) the Minister of
Justice (Mr. St. Laurent), and for that matter, from all hon. members of the
house. I and the people who have sent me here have a right to know whether
there is, or is not, a basis in fact for my contentions, and if there is,
they have the right to know what is going to be done about it.

Submit Reasoned Argument

I propose to make a reasoned argument supported by the best evidence I have
been able to secure. If my argument is to be controverted, I demand that it
be met with a reasoned argument and not with personal abuse and statements
which are wholly irrelevant. I expect a more intelligent criticism of my
argument than was exhibited by a certain hon. member when I discussed this
subject in a previous parliament. In Hansard of April 8, 1938, at page 2183,
this little exchange took place between myself and the hon. member for
Selkirk, Mr. Thorson:

Mr. Thorson: Would the hon member indicate where he gets these queer ideas?

Mr. MacNicol: He has queer ideas of his own.

Mr. Kuhl: I continue:

Mr. Kuhl: I placed on Hansard on February 10 a clear outline of the reasons
for my statement. If the hon. member wishes to refute any of the facts or
arguments which I placed before the house, I shall be pleased to hear the
refutation.

Mr. Thorson: Why battle against windmills".

I submit that the subject matter and the arguments which I presented on that
occasion were worthy of more intelligent criticism than was exhibited by
that hon. gentleman. I have long ago learned that when an individual has a
weak argument, or no argument at all, he usually resorts to personal abuse
of his opponent. If hon. members have not a better argument to make than Mr.
Thorson made on that occasion, I suggest that they hold their peace.

In submitting my argument, Mr. Speaker, I wish to assure you that I am
actuated by the highest possible motives. We proudly proclaim our faith in
democracy; we proclaim it from the housetops. I wish to urge that we
practice what we preach. Let us demonstrate democracy instead of merely
paying lip service to it.

It is my desire to see the people of Canada consulted where their
fundamental rights are concerned. I wish to see government of the people by
the people. These are the motives which actuate me in what I have to say on
this resolution.

In presenting the special case I am about to discuss I am not necessarily
speaking as a member of the Social Credit group; I am speaking as a native
of Canada. The matters on which I am to speak are of fundamental concern to
every citizen of Canada regardless of his or her political persuasion. They
are among the most serious matters upon which a citizen can be called to
think; they are the bed-rock considerations of human government.

Basic Premises

In order to endeavour to account for the contradictions in Canada's
constitutional position and to suggest a remedy therefor, I wish to lay down
some fundamental premises on which I shall base my entire argument. Locke is
credited with saying:

"Men being by nature all free, equal, and independent, no one can be put out
of this estate and subjected to the power of another without his consent.
The only way whereby anyone divests himself of his natural liberty and puts
on the bonds of civil society is by agreeing with other men to join and
unite into a community."

Jefferson, in the declaration of independence states:

"We hold these truths to be self-evident: that all men arc created equal;
that they are endowed by their Creator with certain inalienable rights: that
among these are life, liberty and the pursuit of happiness; that to secure
these rights governments are instituted among men, deriving their just
powers from the consent of the governed."

Federal Union Defined

In addition to that promise, I wish to indicate the definition of a federal
union. What is a federal union? Bouvier in his law dictionary defines
"federal government" as:

"a union or confederation of sovereign states, created either by treaty, or
by the mutual adoption of a federal constitution."

Doctor Ollivier, joint law clerk of the House of Commons, on page 85 of the
report of the special committee on the British North America Act, said:

"A confederation is a union of independent and sovereign states bound
together by a pact or a treaty for the observance of certain conditions
dependent upon the unanimous consent of the contracting parties, who are
free to withdraw from the union."

A. P. Newton, in his book entitled "Federal and Unified Constitutions," at
page 5 says:

"A federal state is a perpetual union of several sovereign states based
first upon a treaty between those states or upon some historical status
common to them all, and secondly upon a federal constitution accepted by
their citizens."

Two points stand out prominently in these definitions. The first is that the
states which form the union must be sovereign, free and independent before
they federate; the second, that the federal constitution which forms the
basis of the union must be accepted by the citizens of the federating
states. I think it worth while in this connection to point out that when the
states of Australia federated, the people of Australia were provided with
two opportunities of voting on their constitution. I should like to quote a
paragraph from a history of the Australian constitution by Quick and Garran.
This paragraph is on the meaning of the words "have agreed" in the
constitution, and it states:

"These words make distinct and emphatic reference to the consensus of the
people arrived at through the procedure, in its various successive stages,
prescribed by the substantially similar enabling acts adopted by the
legislatures of the concurring colonies. In four of the colonies acts were
passed enabling the people to take part in the framing and the acceptance or
rejection of a federal constitution for Australia. Through those acts the
people agreed, first. to send representatives to a federal convention
charged with duty of framing for Australia a federal constitution under the
Crown in the form of a bill for enactment by the Imperial Parliament, and,
secondly, they agreed to pronounce their judgment upon the constitution at a
referendum, which in each colony was arranged to follow the convention. In
all the colonies, the constitution was eventually referred to the people. At
this referendum, each voter was eligible to vote by ballot "yes" or "no" on
the question asked on the ballot paper, "Are you in favour of the proposed
federal constitution?"

In this manner, there was, in four colonies, a popular initiative and
finally in all the colonies a popular ratification of the constitution,
which is thus legally the work, as it will be for all time, the heritage of
the Australian people. This democratic method of establishing a new form of
government may be contrasted with the circumstances and conditions under
which other federal constitutions became law.

Federal Union Desired In 1867

Now I should like to ask a few questions concerning our position in Canada.
Did the provinces of Canada desire federal union? The Quebec resolutions,
the London resolutions, and the draft of the bill by the London delegates
all indicate that the provinces of Canada desired federal union. The
preamble to the Quebec resolutions reads:

"The best interests and present and future prosperity of British North
America will be promoted by a federal union under the Crown."

Clause 70 of the Quebec resolutions indicates that whatever agreement was
arrived at by the delegates would be submitted to the provinces for their
approval. It reads:

"The sanction of the imperial and local parliaments shall be sought for the
union of the provinces, on the principles adopted by the conference."

Furthermore, a bill drafted in London by the Canadian delegates contains the
same preamble that appears in the Quebec resolutions, and this draft bill
also contains a repealing clause which hon. members can find on page 179 of
Pope's "Confederation Documents". It reads:

"From and after the union, all acts and parts of acts passed by the
Parliament of Great Britain, the Parliament of the United Kingdom of Great
Britain and Ireland, the Legislature of Upper Canada, the Legislature of
Lower Canada, the Legislature of Canada, the Legislature of Nova Scotia, or
the Legislature of New Brunswick, which are repugnant to or inconsistent
with the provisions of this act shall be and the same are hereby repealed."

Canada Not Federated Under B.N.A. Act

The next question is: Did Canada become a federal union under the British
North America Act. I submit that the manner in which the bill was drafted
and the manner in which it was enacted throw much light on the answer to
this question. The act was drafted by the law officers of the Crown attached
to the colonial office. Lord Carnarvon, Secretary of State for the colonies,
was the chairman of the conference. Sir Frederick Rogers, Under-secretary
for the colonies, in Lord Blachford's Letters, is quoted as saying at page
301:

"They held many meetings at which I was always present. Lord Carnarvon was
in the chair, and I was rather disappointed in his power of presidency."

In reading accounts of the times, it is quite obvious that the bill which
was drafted by the colonial office seems to have prevailed over that which
was drafted by the delegate from Canada. The title and preamble of the bill
drafted by the Colonial Office read:

"The union of the British North American colonies, and for the government of
the united colony. Whereas the union of the British North American colonies
for the purposes of government and legislation would he attended with great
benefits to the colonies and be conducive to the interests of the United
Kingdom;-"

That is the preamble of the draft bill submitted by the colonial office,
whereas the preamble of the bill drafted by the Canadian delegates read:

"Whereas the provinces of Canada, Nova Scotia and New Brunswick have
expressed their desire to form a federal union under the British Crown for
the purpose of government and legislation, based upon the principles of the
British constitution;"

I submit, Mr. Speaker, no evidence is to be found to show that the preamble
which we find in the printed copies of the British North America Act in
Canada was either discussed or proven in the British Parliament. This
preamble reads:

"Whereas the provinces of Canada, Nova Scotia and New Brunswick have
expressed their desire to be federally united into one dominion-"

Lord Carnarvon, who introduced the bill on February 19, 1867, used these
words as reported at page 559 of the British Hansard:

"The bill opens by reciting the desire of the several provinces to be
federally united."

Furthermore Lord Campbell, speaking to the bill on February 26 of the same
year, is reported at page 1012 of the British Hansard as having said:

"The bill is founded, I believe, on what is termed the Quebec scheme of
1864. When the resolution, which alone engages the Nova Scotia Parliament,
was in debate, its whole tenor, as our papers show, were against that
project. The leader of the government was understood distinctly to renounce
it. Our lights. indeed. may be imperfect upon this part of the subject, and
I will not dwell upon it. But one thing is clear, the preamble of the
resolution comes before us in full and perfect authenticity. The preamble
lays down the expediency of confederating British North America."

I submit it should be evident from these quotations that the preamble which
was discussed was that to be found in the Quebec resolutions, not the one we
find in the printed copies of the British North America Act in Canada.

A pertinent question to ask at this point would be: When was the present
preamble placed in the British North America Act? Why was it not discussed
in the British Parliament, and, furthermore, what is the significance of an
act bearing a preamble which was not even discussed, let alone proven?
Another point of significance in connection with this, I believe, is the
undue haste with which the bill was passed through the Imperial Parliament.
When second reading was called for, the bill was not even printed. At page
1090 of British Hansard for February 27, 1867, we find these words:

Mr. Hatfield said he rose to ask the government why it was the second
reading of this bill had been fixed for to-morrow. It was one which affected
4,000,000 of people, and upon which great doubts and differences of opinion
were entertained. It was not yet printed and was of so important a character
that he thought some little time ought to elapse after it was in the hands
of the members before it was introduced in order that some little
consultation should take place upon it. He was not at all sure that he
should be opposed to it, but he certainly required more time to consider it.

Later, on page 1195, on February 28, we find this:

He (Mr. Hatfield) thought that a bill of such great importance ought not to
be passed through parliament with such haste. It was read a third time in
the House of Lords only on Tuesday night and two days after they were called
to give it a second reading in that house (Commons) that was a bad precedent
to establish and might produce ill effect at another time. If the bill had
been delayed only for a few weeks, the people of Nova Scotia would have been
able to express an opinion upon it. He had not had time to consider either
the bill itself or the papers on the subject which had been put into his
hands.

Another significant statement is that by John Bright, which we find at page
1181 of British Hansard for February 28, 1867, as follows:

"I have heard there is, at present in London, a petition complaining of the
hasty proceedings of Parliament and asking for delay signed by 31,000 adult
male, of the province of Nova Scotia; and, that petition is, in reality,
signed by at least half of all the male inhabitants of that province. So far
as I know, the petition does not protest absolutely against union but
against the manner in which it is being carried out by this scheme and bill,
and by the hasty measures of the colonial office.

Nobody pretends that the people of Canada prefer a nominated council to an
elective council. I regret very much that they have not adopted another
system with regard to their council or senate, because I am satisfied - I
have not a particle of doubt with regard to it - that we run a great danger
of making this act work ill almost from the beginning - - -

For my share, I want the population of these provinces to do that which they
believe to be the best for their own interests - remain with this country if
they like, or become independent states if they like."

Conclusions

From the evidence which I have thus far submitted, I draw the following
conclusions:

1. The provinces of Canada desired a federal union.
2. The Quebec resolutions provided for a federal union.
3. The bill drafted by the Canadian delegates at the London conference, also
provided for a federal union,
4. The colonial office was not disposed to grant the provinces of Canada
their request for a federal union.
5. The British North America Act, enacted by the Imperial Parliament,
carried out neither the spirit nor the terms of the Quebec resolutions.
6. Canada did not become a federal union under the British North America
Act, but rather a united colony. The privilege of federating, therefore, was
still a future privilege.
7. The Parliament of Canada did not become the government of Canada, much
less a federal government. It became merely the central legislature of a
united colony, a legislative body whose only power was that of aiding and
advising the Governor General as agent of the Imperial Parliament.
8. The British North America Act, as enacted by the Imperial Parliament, was
not a constitution, but merely an Act of the Imperial Parliament which
united four colonies in Canada into one colony with the supreme authority
still remaining in the hands of the British government.
Further Evidence

As further evidence that the British North America Act was not a
constitution, and that Canada did not become a federal union, I refer to the
definition of the term "dominion" which is to be found in section 18,
paragraph 3 of the Interpretation Act of 1889. It reads as follows:

"The expression 'colony' shall mean any of Her Majesty's dominions,
exclusive of the British islands and of British India; and where parts of
such dominions are under both a central legislature and local legislatures,
all parts under the central legislature shall, for the purpose of this
definition be deemed to be one colony."

Excepting Canada, no country in the empire had a central legislature and
local legislatures. Therefore, according to this definition made twenty-two
years after the enactment of the British North America Act, Canada is deemed
to be one colony.

To show that I am not alone in my conclusions I quote some of the statements
of recognized Canadian constitutional authorities before the special
committee on the British North America Act in 1935.

Doctor W. P. M. Kennedy, Professor of Law in the University of Toronto, at
page 69 of the report~states:

"I think we have got to get away from the idea that the British North
America Act is a contract "or treaty". I do not want to go into that, but it
is true neither in history nor in law. The British North America Act is a
statute, and has always been interpreted as a statute."

Professor N. McL. Rogers, of Queen's University, at page 115 of the report
states in reply to a question by Mr. Cowan:

Mr. Cowan: You do not subscribe to the belief that this was a pact or
contract?

Mr. Rogers: I am thoroughly convinced it is not, either in the historical or
the legal sense.

Then I would quote Doctor Beauchesne, Clerk of the House of Commons, who at
page 125 states.

"It is quite true that if we apply to the British North America Act the
principles followed in the interpretation of statutes, it is not a compact
between provinces; it is an act of parliament which does not even embody all
the resolutions passed in Canada and in London prior to its passage in the
British Parliament where certain clauses that had not been recommended by
the Canadian Provinces were added."

The evidence which I have submitted establishes to my satisfaction that
there has been at no time in Canada any agreement, pact or treaty between
the provinces creating a federal union and a federal government. The
privilege to federate therefore was still a future privilege for the
Provinces of Canada.

Provinces Completely Sovereign

Since the condition of sovereignty and independence must be enjoyed by the
Provinces before they can federate, it was necessary that the British
government relinquish its authority over them. This was done through the
enactment of the Statute of Westminster on December 11, 1931. By section 7,
paragraph 2, of this statute, the Provinces of Canada were made sovereign,
free and independent in order that they might consummate the federal union
which they wished to create in 1867, but were not permitted to do so.

Since December 11, 1931, the Provinces of Canada have not acted on their
newly acquired status; they have not signed any agreement, they have not
adopted a constitution, and the people of Canada have not ratified a
constitution. Such action should have been taken immediately upon the
enactment of the Statute of Westminster. It is by reason of the failure of
the Provinces and of the people of Canada to take this action that all the
anomalies in our present position exist. We have been trying since 1931 to
govern ourselves federally, under an instrument which was nothing more than
an act of the Imperial Parliament for the purpose of governing a colonial
possession.

Not only has this anomalous condition obtained since 1931, but it has done
so without any reference whatsoever having been made to the Canadian people.
They have not been consulted on anything pertaining to constitutional
matters. Before there can be a federal union in Canada and a federal
government, the Provinces of Canada must be free and independent to
consummate such a union. They have been free to do so since December 11,
1931, but they have not done so.

Canada Without A Constitution

I therefore pose this question: Whence does the Dominion Parliament derive
its authority to govern this country? The Imperial Parliament cannot create
a federal union in Canada or constitute a federal government for the people
of Canada by virtue of the British North America Act or any other act. This
can be done only by the people of Canada, and they have not yet done so.

Since December 11, 1931, as an individual citizen of this country I have had
the right to be consulted on the matter of a constitution. I have had the
right along with my fellow citizens to ratify or to refuse to ratify a
constitution, but I have not been consulted in any way whatsoever. I assert
therefore that until I, along with a majority of Canadians, ratify a
constitution in Canada, there can be no constitution, and I challenge
successful contradiction of that proposition.

Mr. POULIOT: Were you born in 1867?

Mr. KUHL: Not that I recall.

Mr. JOHNSTON: Were you?

Mr. POULIOT: No.

Mr. KUHL: Those who were in charge of Canadian affairs in 1931 were under
obligation to acquaint the people of Canada with the constitutional position
obtaining at the time and to prepare them so that they would be able to act
upon their altered status.

Mr. JAENICKE: What about section 7 of the Statute of Westminster?

Mr. KUHL: I have already answered that. I have indicated the position of the
British North America Act, and have pointed out that it has not been
accepted as a constitution by the people of Canada.

Mr. JAENICKE: The Statute of Westminster made the provinces autonomous?

Mr. KUHL: Yes.

Mr. JAENICKE: What about section 7 of the Statute of Westminster?

Mr. KUHL: Which one?

Mr. JAENICKE: Amending the British North America Act.

Mr. KUHL: Just exactly as I have said, there can be no constitution in
Canada, whether it is on the basis of the British North America Act or any
other act, until the people of Canada accept it. They have not accepted it.

Mr. COLDWELL: We have been acting under the British North America Act since
1867.

Mr. KUHL. That does not alter the situation.

Mr. JAENICKE: What are you going to do about it?

Remedy For Condition

Mr. KUHL: Before I resume my seat I shall indicate definitely what to do
about it. The people of Canada have not acted on the altered constitutional
status; hence the deplorable constitutional position in which we find
ourselves in this country. I know of no country which is in such shocking
constitutional circumstances as Canada. As a native of this country it is
most humiliating to me to be obliged to continue to accept this position,
and I am determined to do my part to rectify that position.

Legally, Canada is in a state of anarchy, and has been so since December 11,
1931. All power to govern in Canada since the enactment of the Statute of
Westminster has resided with the provinces of Canada, and all power legally
remains there until such time as the provinces sign an agreement and ratify
a constitution; whereby, they delegate such powers as they desire upon a
central government of their own creation. Since December 11, 1931, the
Parliament of Canada has governed Canada on assumed power only. It is
imperative that this situation be dealt with in a fundamental way. Patchwork
methods will not suffice.

Obviously the first act is that the provinces of Canada shall sign an
agreement authorizing the present parliament to function as a provisional
government. That is number one in answer to my hon. friend. Secondly, steps
must then be taken to organize and elect a constituent assembly whose
purpose will be to draft a constitution which must later be agreed to by the
provinces and then ratified by the people of Canada. The dominion-provincial
conference is to reconvene in the near future. This would be a most
appropriate time and a most appropriate occasion on which to initiate action
of this kind. I trust that the delegates to this conference will not
disappoint us in this matter. I shall observe with much interest what will
be said in this conference on constitutional relationships in Canada.

Proposals Endorsed

To show that I am not alone in my proposal I quote Doctor Beauchesne from
the evidence of the special committee on the British North America Act in
1935. On page 126 of the evidence he is credited with saying:

"-the Statute of Westminster has altered our status. The time has come, in
my humble opinion, when the British North America Act, except as to minority
rights, should he transformed and a new constitution more in conformity with
present conditions should be adopted. Amendments here and there would be
mere patchwork which could not last. The people of 1935 are different from
those of 1867. What we want is a new constitution. The new constitution must
leave nobody with a grievance. A spirit of conciliation should predominate.
For these reasons, the task must be entrusted to an independent body in
which all the elements of the country will be represented. I, therefore, beg
to suggest an imposing constituent assembly formed of eminent men coming
from all parts of Canada. Provincial conferences, attended by a few
ministers meeting behind closed doors, would hardly satisfy public opinion.
The debate should be public. I want the assembly to sit in a city in the
west. It would not be necessary for a delegate to be a member of Parliament
or of a provincial Legislature."

And on page 128 Doctor Beauchesne is reported as follows:

"I would suggest that the assembly do not sit in Ottawa, in order that it
may not have the appearance of being dominated or even influenced by the
dominion power; and as the western provinces are of such paramount
importance in the country, I suggest the best city for the representatives
to gather in would be Winnipeg."

And again on page 131:

"There have been many disputes about provincial rights since 1867 and it
seems certain that when a new constitution is drawn up, the distribution of
federal and provincial powers will have to be modified."

And page 135:

"I think the time is ripe for a change in the constitution. I do not think
you would need much publicity in order to draw to the attention of the
people of this country that the British North America Act is inadequate."

And finally on page 129:

"Whether our country should be changed from a dominion to a kingdom is also
a subject which might be discussed. I would suggest that the country should
be called "the federated states of Canada."

I should also like to quote in this connection a resolution which was
adopted at a convention of Social Credit supporters and
monetary-reform-minded people held in the city of Edmonton in 1942. This
resolution is to be found at page 59 in the publication "Prepare Now,"
issued by the Bureau of Information, Legislative Building, Edmonton. It
reads as follows:

"Whereas the statute of Westminster, in granting complete sovereignty and
equality with Great Britain to Canada and other nations of the British
Commonwealth, has changed the relative positions of the provincial and
federal governments as provided in the B.N.A. Act;
and, Whereas it is desirable and expedient in the interests of national
unity that an interprovincial conference of appropriate representatives of
the Canadian Provinces be held for the purpose of reviewing and adjusting
the constitutional relationship as between the Provinces and their central
government with a view to providing effective democratic government in
Canada;
Therefore be it resolved that without in any way prejudicing or jeopardizing
the rights and privileges of any minority group in Canada, a comprehensive
conference of representatives of the Provinces be held for the purpose of
considering:
1. The existing legislative and administrative organization in the
provincial and federal spheres.
2. A more expedient allocation of powers as between the provincial and
federal authorities.
3. Ways and means of facilitating the drafting, the adoption and the
implementation of a Canadian constitution in keeping with the rights granted
in the Statute of Westminster.

I contend, Mr. Speaker, that such are the actions which should be taken
before it is appropriate to adopt a distinctive national flag. I submit that
the adoption of a new flag of our own designing should be the crowning act
to putting our constitutional house in order.

I believe that the statements which I have placed upon the record are
historical facts. I believe that the conclusions which I have drawn from
these facts are the only ones which can be drawn from them, and I believe,
consequently, that the solution which I have suggested is the only one
adequate for the circumstances. If hon. members of this assembly can
successfully dispute either the facts which I have submitted or the
conclusions which I have drawn therefrom, I shall be prepared to withdraw
those conclusions, but if they do not do so, I believe the people of the
country have a right to know what they propose to do in the circumstances.

It was my intention to move an amendment, but as one has been moved already
I shall refrain from doing so until the amendment already moved has been
dealt with. So far as the substance of that amendment is concerned, I repeat
what I have previously indicated. I think it is premature to consider any
flag, either the one suggested in the amendment or any other. There are
other and more important actions to be taken before we can consider the
adoption of a new flag.


_______________________________________________________________________

Ottawa: Printed by Edmond Cloutier, Printer to the King's Most Excellent
Majesty, 1945

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Explanation of the Statute of Westminster

By Walter Kuhl


The Parliament of a Dominion in Section 2 does not refer to the legislative
body sitting in Ottawa on December 10, 1931. The legislative body sitting in
Ottawa the day before the Statute of Westminster was passed, according to
the Interpretations Act of 1889, Sec. 18, Par. 3, was the Central
Legislature of a United Colony, whose only function and authority was to aid
and advise the Governor General as the agent of the British Government.
Section 2 does not validate the Central Legislature of a United Colony as
the Federal parliament of a Federal Union. A Federal Union in Canada can be
created only by completely independent and autonomous provinces, which
section 7 (2) provides for.

As a consequence of Section 11, the term, Dominion, can now be applied to a
Federal Union, and the term, the Parliament of a Dominion can now be applied
to a Federal Parliament and not be inconsistent insofar as a definition is
concerned. However, the British Government can no more convert the Central
Legislature of a United Colony into the Federal Parliament of a Federal
Union, by changing definitions, than it can turn water into wine.

The only validity which the B.N.A. Act has since December 11, 1931, is as a
guide to the creation of a Federal Union which only the provinces can bring
about. The provinces of Canada are free to use it as a guide in the creation
of a Federal constitution, or they may reject it completely in favour of a
constitution of their own making.

As an analogy, it might be said that the relationship into which the
original provinces entered under the B.N.A. Act was a sort of shot-gun
marriage; they were forced into a United Colony against their will. The
Statute of Westminster gave the provinces their independence so that they
could consummate a voluntary marriage, but they have not yet done so. Ever
since December 11, 1931, the provinces have been living common-law with
Ottawa and have the right to terminate this arrangement at any time they
wish. End


***********************************************
PERTINENT CLAUSES FROM

THE STATUTE OF WESTMINSTER

AND THER STATUTES


2. (1) The Colonial Laws Validity Act. 1865, shall not apply to any law made
after
the commencement of this Act by the Parliament of a Dominion.

(2 ) No law and no provision of any law made after the commencement of this
Act by the Parliament of a Dominion shall he void or inoperative on the
ground that it is repugnant to the law of England, or to the provisions of
any existing or future Act of Parliament of the United Kingdom, or to any
order, rule or regulation made under any such Act, and the powers of the
Parliament of a Dominion shall include the power to repeal or amend any such
Act, order, rule or regulation in so far as the same is part of the law of
the Dominion.
4. No Act of Parliament of the United Kingdom passed after the commencement
of this Act shall extend or be deemed to extend, to a Dominion as part of
the law of that Dominion, unless it is expressly declared in that Act that
that Dominion has requested, and consented to, the enactment thereof.

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 thereunder.


(2) The provisions of section two of this Act shill extend to laws made by
any of the Provinces of Canada and to the powers of the legislatures of such
Provinces.
(3) The powers conferred by this Act upon the Parliament of Canada or upon
the legislatures of the Provinces shall he restricted to the enactment of
laws in relation to matters within the competence of the Parliament of
Canada or of any of the legislatures of the Provinces respectively.

11. Notwithstanding anything in the Interpretation Act, 1889, the expression
"Colony" shall not, in any Act of the Parliament of the United Kingdom
passed after the commencement of this Act, include a Dominion or any
Province or State forming part of a Dominion.

THE INTERPRETATIONS ACT, 1889

Sec. 18, Par. 3, - The expression "Colony" shall mean any of Her Majesty's
Dominions exclusive of the British Islands and British India, and where
parts of such dominions are under both a Central Legislature and Local
Legislature for the purposes of this definition shall be deemed to be one
Colony.

THE COLONIAL LAWS VALIDITY ACT, JUNE 29th, 1865.

Sec. 6, - Any proclamation purported to be published by the authority of the
Governor, circulating in any newspaper in the Colonies, signifying Herr
Majesty's assent to any Colonial law or Her Majesty's disallowance of any
such reserved bill as aforesaid, shall be prima facie evidence of such
disallowance or assent.


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Spruce Grove, Alberta., R.R. I,
November 23rd, 1976.
The Hon. Rene Levesque,
Premier-elect,
Province of Quebec,
Quebec, P.Q.

Dear Mr. Levesque:

Congratulations on your magnificent personal victory and that of your Parti
Quebecois in the recent Quebec election.

As a student of Canadian constitutional history and of Canadian
constitutional problems for some 40 years, I am tremendously interested in
the constitutional implications of your recent political victory.

For 14 years, from 1935 to 1949, it was my privilege to serve as a member of
the House of Commons, from the province of Alberta. The withholding of
assent to some Alberta legislation in those years by the Lieutenant-Governor
and the disallowance of other Alberta legislation by the people at Ottawa,
set me to investigating how these things could be. I was assisted in my
studies by R. Rogers Smith, who was personally acquainted with a onetime
private secretary to John A. MacDonaId at the time when the B.N.A. Act was
being enacted. Through this source I have become acquainted with much
information concerning the history of the B.N.A. Act which is not to be
found in text books.

All this information has led me to the conclusion that the existing
constitutional circumstances are shocking to the point of unbelief. However,
in my considered opinion, after 40 years of intensive study, these existing
constitutional circumstances are of such a nature that they can be of
extreme advantage to you in governing your province.

I am enclosing copies of some of the addresses which I delivered in the
House of Commons on the subject, as well as copies of a pamphlet by Mr.
Smith, dealing with the same subject. If you have not already been made
acquainted with this material, I trust it will prove enlightening and
helpful to you in the constitutional considerations in which you obviously
are going to become involved.

Although the enclosed material should give you a clear outline of what I
conceive to be your present standing constitutionally as a province, 1 would
like to give you a brief summary of what I believe to be your present
position.

So far as separation. is concerned, rather than it being necessary to seek
separation rights through a referendum, THE PROVINCE OF QUEBEC IS ALREADY
COMPLETELY CONSTITUTIONALLY SEPARATED FROM THE REST OF CANADA ! ! ! ! This
is equally true of every other province in Canada and has been so since
December 11, 1931, through the Statute of Westminster.

HOW CAN YOU BE DIVORCED IF YOU HAVE NEVER BEEN MARRIED?

In other words, ever since the enactment of the Statute of Westminster in
1931, by the British Govemment, each of the provinces of Canada has been a
completely sovereign and independent state, and because the provinces have
signed nothing since then constituting a Federal Union and a Federal
Government, and because no such treaty has been ratified by the people of
Canada, the provinces still enjoy the status of sovereignty and are
privileged to use it in any way they see fit.

As you will observe from the enclosed addresses, I quote eminent Canadian
constitutional authorities as suggesting that the only and logical solution
to the existing constitutional circumstances is the drafting and the
adoption of a proper federal constitution in which the provinces can reserve
for themselves any and all powers necessary to enable them to govern their
provinces successfully.

I am sure you can appreciate that if this were done, you could solve your
economic and other problems in Quebec without resorting to separation. I
feel sure that having the ability to solve your problems and still remain
constitutionally part of the country of Canada, would be much more
satisfactory to your supporters as well as to others within your province.

The following is a summary of the reasons for the things I have just stated:


1. At the time of Confederation movement in Canada, the Provinces of Canada,
Nova Scotia and New Brunswick desired to form a Federal Union.
2. The Quebec Resolutions of 1864 provided for a Federal Union.

3. The Bill drafted by the Canadian degates at the London Conference in 1866
also provided for a Federal Union.

4. The Colonial Office of the Imperial Parliament was not disposed to grant
the Provinces of Canada their request for a Federal Union.

5. The British North America Act enacted by the Imperial Parliament carried
out neither the spirit nor the terms of the Quebec Resolutions.

6. Canada did not become a Federal Union or a Confederation under the
British North America Act, but rather a United Colony. The privilege of
federation, therefore, was still a future privilege for the provinces of
Canada.

7. The Parliament of Canada did not become the government of Canada, much
less a federal government; it became merely the central legislature of a
United Colony, a legislative body whose only power was that of aiding and
advising the Governor-General as agent of the Imperial Parliament.

8. The British North America Act, as enacted by the Imperial Parliament, was
not a constitution but merely an act of the Imperial Parliament which united
four colonies in Canada into one colony, with the supreme authority still
remaining in the hands of the British government.

9. The privilege of federating became realizable for the provinces of
Canada, only through the enactment of the Statute of Westminster on December
11, 1931. Through this statute, the Imperial Parliament relinquished to the
people of Canada their sovereign rights, and through them to their
Provincial governments as their most direct agents.

10. Since December 11, 1931, the Provinces of Canada have not acted on their
newly acquired status in the forming of a Federal Union, nor have the people
of Canada ratified a constitution. Therefore, the original proposition,
namely: that all power to govern in Canada resides at the moment, with the
Provinces of Canada; and, that all power legally remains there until such
time as the Provinces sign an agreement and ratify a constitution whereby
they may delegate such powers as they wish to a central government of their
own creation. In the meantime, Canada exists as ten political units without
a political superior.

Should you consider that there is merit in the information which I have
given you, I would be very happy to meet with you personally to discuss in
greater depth the implications of the unprecedented constitutional
circumstances prevailing in Canada.

Yours for a better Canada,



Walter F. Kuhl
[Member of Parliament for Jasper-Edson, 1935-1949]


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An added note on the question: What right or authority does the Queen of
Great Britain have in calling herself the Queen of Canada? What right does
she have in being the plaintiff in charges made in the name of the Crown
against a Canadian citizen?
The BNA Act (1867) section 2: The provisions of this Act referring to Her
majesty the Queen extends also the heirs and successors of Her Majesty,
Kings and Queens of the United Kingdom of Great Britain and Ireland.

The Imperial Parliament repealed section 2 of the BNA Act (1867) by the
Statutes Revision Act of 1893. Under what authority did the successor to
Queen Victoria, or successors to the British throne since, continue to rule
Canada as the Crown of Canada?

Where is the "CROWN OF CANADA"???? Where is the "THRONE OF CANADA"????