User:Mr Serjeant Buzfuz/References re Provincial Representation in the House of Commons

References re Provincial Representation in the House of Commons is a Canadian constitutional law decision relating to the allocation of seats in the House of Commons of Canada. The case began as two reference cases in the Supreme Court of Canada, and then went on appeal to the Judicial Committee of the Privy Council in London, at that point the final court of appeal for the British Empire.

The Supreme Court and the Judicial Committee both upheld the federal law in issue, which resulted in reductions in the representation of the provinces of New Brunswick and Prince Edward Island in the House of Commons.

In 1915, a constitutional amendment was enacted, which provides that each province is entitled to at least the same number of seats in the House of Commons which it has in the Senate of Canada.

Nature of the dispute
Section 8 of the Constitution Act, 1867 requires a national census every ten years. Following the decennial census, the federal Parliament is required to enact legislation to redistribute the seats in the House of Commons according to the formula set out in section 51 of the Act, using the most recent population statistics.

After the census of 1901, the proposed redistribution of seats would mean that the provinces of New Brunswick and Prince Edward Island would both lose seats in the Commons. New Brunswick would drop from fifteen seats to thirteen seats, while Prince Edward Island would drop from six seats to four seats. Both provinces opposed the redistribution, although on different constitutional grounds.

To resolve the matter, the federal government referred the issue to the Supreme Court of Canada, under the Court's reference jurisdiction. The federal government set two different references, one for New Brunswick and one for Prince Edward Island.

New Brunswick case
In the case relating to New Brunswick, the province of Nova Scotia joined as an intervener. The issue turned on the interpretation of section 51 of the Constitution Act, 1867, which set out the rules for redistribution of seats in the House of Commons. The original wording of section 51 stated that the "the Representation of the Four Provinces" would be determined by the rules set out in the section. New Brunswick and Nova Scotia both argued that this phrasing meant that the redistribution rule only applied to the four original provinces, and that the ratio of seats amongst them was set by the rule set out in section 51. The population of the provinces which joined later would not be taken into account to determine the seats held by New Brunswick and Nova Scotia.

The Supreme Court unanimously rejected this argument. In separate judgments, the Court held that when the later provinces joined Confederation, they were to be treated in exactly the same way as the original provinces. The reference to "four provinces" in section 51 therefore now meant the total population of all the provinces, not just the four original provinces.

Prince Edward Island case
The Prince Edward Island reference turned on a different point. The Attorney General for the province argued that in the Terms of Union, Prince Edward Island had been guaranteed six seats in the Commons, and was not subject to the redistribution rules. He argued that even at the time Prince Edward Island joined Confederation in 1873, Prince Edward Island's population did not justify the six seats it was given, and therefore applying the redistribution rules was not appropriate.

Decision of the Judicial Committee
Prince Edward Island and New Brunswick both appealed from the Supreme Court to the Judicial Committee of the Privy Council in London, at that time the final court of appeal for Canada within the British Empire.

Counsel for Prince Edward Island was Allen Bristol Aylesworth, KC, and Arthur Peters, KC, the premier and attorney general of Prince Edward Island. New Brunswick was represented by the attorney general of New Brunswick, William Pugsley, KC, and R.J. Parker, of the English bar. The federal government was represented in both cases by Edward Blake, KC, Rodolphe Lemieux, KC (Solicitor General of Canada), Edmund Newcombe, KC (Deputy Attorney General of Canada), and F. Russell.

The Judicial Committee heard the cases together. Counsel for the two provinces went first. The Committee did not call on counsel for the federal government, and later issued a single decision, dismissing both appeals.

Aftermath
The Representation Act, 1903, came into force on the dissolution of Parliament for the 1904 Canadian federal election in November 1904. The representation of both New Brunswick and Prince Edward Island was reduced accordingly in the 10th Canadian Parliament elected in that year. New Brunswick had thirteen seats, and Prince Edward Island had four.

In 1915, the two houses of the Canadian Parliament proposed a set of constitutional constitutional amendments, which were duly passed by the British Parliament as the Constitution Act, 1915. The 1915 Act addressed the issue of provinces losing representation in the House of Commons due to population shifts. Section 2 of the 1915 Act enacted s. 51A of the Constitution Act, 1867. That section provides that a province is entitled to at least the same number of seats in the House of Commons as it has in the Senate. This provision, sometimes called the "Senate floor rule" means that Prince Edward Island now has four members in the House of Commons, and New Brunswick now has ten members, the same as their respective Senate representations.

Section 51 has been amended several times since the decision in these cases, and no longer contains the reference to the four original provinces.