February 3, 1905

LIB
LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

He does get a larger salary. He gets $3,000 a year more, but at the same time he forfeits the right to his retiring allowance under the law as we now have it. I trust I have made my meaning clear. The intention is to make it possible for Mr. Justice Killam to accept the position which is now offered to him without in any way forfeiting the right to the retiring allowance which he has as a judge of the Supreme Court.

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN (South York).

Mr. Speaker, the hon. Minister of Justice (Mr. Fitzpatrick), in presenting this resolution has pointed out to the House what he says the main object of the resolution is, namely, to widen the field from which the Chief Commissioner can be drawn. I think I shall be able to show the House that the main intention of this resolution is to circumscribe the powers of the commission, and to bring to the attention of the House just what the situation is to-day, I propose to read an extract from the ' Weekly

'Sun ' published in the issue of last week. It is to the following effect:

Time Judgment was Rendered.

It is now seven months since various farm organizations presented before the Railway Commission, at a meeting held at Toronto, a statement of some of the grievances which farmers have to complain of in the matter of freight rates. The statement included complaints as to the rates on small fruits, apples, beans, cattle, and the rate on grain, as compared with grain nroducts.

A short time after the hearing, the railway

companies voluntarily conceded a good deal of what had been contended for in regard to the rate on small fruits ; a small concession was also made on apples in boxes, and on pears when mixed with apples, and these concessions were subsequently approved by the Railway Commission. But nothing whatever'has yet been done to the question of the rate on apples in barrels, and the vastly greater grievances (because a larger number are affected by them), in the rates on beans, grain, and cattle. The decision in regard to these more important matters should have been rendered long since. The resignation of Mr. Blair, whilst it upset the work of the commission in dealing with some cases, did not directly affect these, because all three commissioners heard the complaints entered at the Toronto meeting, and the two commissioners still on the board are legally competent to pronounce upon the same.

One great advantage that was hoped for from the appointment of the Railway Commission was that the new court, being a movable body, would be easily reached by the common people. That advantage certainly has been secured. The commission is easy of access. The hope was also entertained that the commission would be more prompt in rendering its decisions than the old Railway Committee of the Privy Council.

That hope is being rapidly dispelled, and if there is much longer delay in the cases mentioned it will be altogether dissipated. Justice to the farmers affected and justice to the Railway Commission itself demands a prompt decision og, the farmers' cases heard at the Toronto sitting.

In other words a newspaper which represents the great farming interest of this country has pointed out that the farmers are disappointed with the workings of this commission and most of all that they are disappointed in the slowness with which it has acted and the slowness with which the vacancy created over three months ago has been filled. I think I shall be able to show that it will be in the interests of the country that the government should not go on with this measure, but that they should actually abandon it and forthwith proceed as the" law now stands to appoint a commissioner. The other day the Prime Minister, when speaking to a Bill that was up in the House dealing with railway matters, or rather dealing with this very important question, said that the government were lie-, gotiating with a gentleman on the Supreme Court who was to take the position, and that the main cause of delay was that the judge wished to finish his judgments before he would undertake to work on the commis-

sion. It would have been a good thing if the late chief commissioner, the late chairman of the commission, had been guided in the same way and had finished up his judgments before abandoning his position. I do not think the prime minister told us all the facts when he made that statement; he neglected to tell us that the judge not only wished to finish his judgments, but that he wished to make special terms with the government before taking the position. These special terms are contained in this resolution.

What does this resolution propose ? In substance it proposes to abandon the good old principle that no judge in this country should be promoted. The Minister of. Justice (Mr. Fitzpatrick) is on record as always advocating that there should be no promotion of judges, ' once a puisne judge, always a puisne judge,' and his colleagues in the government have always supported that in theory and avoided it in practice. The result is that the judges of this country are beginning to think that they can so conduct themselves on the bench as to earn promotion and they are looking for promotion. Promotion of judges seems to be the order of the day. We are getting away from the old practice and holding before the judges the idea that they can in some way merit political preferment. Another way in which the sanctity of the bench is being violated is by the appointment of judges on political commissions. We had a commission of this kind in Ontario and a very fitting comment on it was passed by a newspaper the other day. This comment on the Gamey case is an example of the criticism to which the judges are exposed.

Gamey vs. Stratton

Ontario reverses the judgment of Boyd, chancellor, and Falconbridge, chief justice.

That was a case where judges were taken from the bench and asked to try a political case. They gave their decision and the result is that the people think a great deal less of the bench for their being employed in these cases. Caustic criticisms such as I have just read are passed on the conduct of judges, and in that way the respect that we all ought to have for our bench is reduced. Judges have to try a great many political cases connected with elections in this country and they will see as everybody will see -and judges are not more infallible than any one else-that in trying these political esses they are subject to the temptation, at least people will say they are subject to the temptation, of looking out for themselves and earning preferment or promotion if they can see a way of making their decisions suit the views of the party that may be in power. Once a puisne judge always a puisne judge is a good principle ; a judge ought not to be looking for promotion to be the subject of special agreements and special legislation in his interest when it is pro-Mr. W. F. MACLEAN.

posed to translate him from one position to another. I am in favour of the judges of this country being better paid, and if the government had brought forward a resolution of this kind and at the same time had proposed to reduce the number of county judges in Ontario it would have met with my support, but I can only say this to the judges of this country that in the meantime while their salaries are so low as they are to-day, they will be much better occupied in giving their sole attention to the judicial cases that may be brought before them, trying to live within their incomes, leading the simple life and not at all hoping to get preferment by any conduct of their own on the bench. Unfortunately, after all the promises that have been made, with special legislation of this kind coming down, the feeling is becoming general in this country that every one has not the confidence in the bench that they ought to have by reason of these promotions, and if this is the case something wrong has taken place. Respect for the bench is being broken down by a political party that seems to be trying to advance its interests through the bench. Let them employ everything else they care to, but let the administration of justice be removed from political influences, and above all let there be no hope held out to the judges that better terms await them if they should happen to please that political party. If a judge sees fit to come down from the bench, as this judge who has been named here to-day is doing, among the common herd, let him take the chances of the common herd. Why should special legislation be passed for any man who comes from the bench among ordinary people and takes up an ordinary occupation ? Here we have another case of class legislation on behalf lof a man who comes from the bench. If y ou pass special legislation and make special provision for the chief of the commission, does it not follow that the same terms must be awarded to his colleagues on that commission ? If this commissioner's pension is to be provided for, if he is to be made nonremovable from office, why was it not proper for the second and third commissioners to be treated in a similar way ? Who is a lawyer in this country that he should have special legislation either with regard to his removal from office or any other matter in which he may be concerned ? The lawyers and judges have enough privileges in this country, and when judges come down among the common herd, in the ordinary rut, there should be no special legislation in their interest.

This brings me to the worst aspect of this proposal. Let me read clause 1 out of the proposed resolution :

Resolved, That if a judge of any Superior Court in Canada is appointed chief commissioner of the Board of Railway Commissioners for Canada he shall not be removed at any time by

the Governor in Council except upon address of the Senate and House of Commons.

Let us see what illustration of that proposal can he found in the record of the debate when we passed this Bill. The then Minister of Railways and Canals (Mr. Blair) at page 3,855 of ' Hansard ' of 1903, speaking on the Railway Bill and on this very point, says :

The opinion of Council, in going over the Bill, was that it would be desirable to place the members of the commission very much in the same position as lieutenant governors under the British North America Act. It is a very cumbrous proceeding to invite the action of the Senate and House of Commons by an address. Cases might arise in which it would be very important and desirable that prompt action should be taken without waiting for a session of parliament.

Now, the serious thing in this Bill is that the chairman of this commission is to be put outside of the jurisdiction of parliament, where he was put by that Act. The great argument held out to the country from one end to the other in favour of the Act was that we were to have a chairman on that commission who could be removed from office by the Governor in Council, whose conduct could be discussed in tbe House, and who, if tliat conduct were found to be not in the public interest, could be removed from office forthwith by the government of the day. And yet, a year after all these assurances were given to the people, a Bill is introduced, the first clause of which proposes to put the chairman of this commission beyond the possibility of removal by tbe Governor in Council and be-vond the control of parliament. That is tbe main object of this Bill. Its object is to emasculate tbe Act passed two years ago. And just to show you how powerful that measure is, let me read what Mr. Blair said on this point when he was dealing with the measure. He said :

When you come to read some of these clauses it may seem that the powers that are given-if they are pressed to the extremity of their literal meaning ; if an interpretation is going to be given to them by the board right up to the limit which their language would bear-it might seem that you are giving to the Railway Commission power which would enable them to crush the railways, or to do serious injury to the business interests of the country.

These great powers were given to this Railway Commission ; but now an effort is being made to put a man into the position of chairman of that body wbo will or will not exercise these great powers without being amenable to the criticism of parliament, or even the criticism of the Governor in Council. The powers of the commission are immense, I grant. There never was a tribunal so empowered as this one is ; but that being so, its powers ought to be kept under control, and it ought to be where parliament could regulate it and enforce the performance of its duties. But, instead of that, we

have before us a proposal to put these great powers into the hands of a man

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CON
IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN.

A Czar who will not be amenable to parliament or to the Governor in Council, who can only be removed by an address from the Senate and House of Commons, which the man who created the commission said is a cumbrous method and hard to carry out, which, in fact, cannot be carried out. Here is the object of this Bill unfolded to us-not to widen the limits from which the chairman of the commission may be drawn, but to nullify what was expected to result from the passing of the Bill. When Mr. Blair brought down the Bill he also said this :

The Bill which we submitted last year contained, and the present Bill, when printed, will be found to contain a clause providing that the members of the commission are only removable on an address of both Houses of parliament to the Governor General. This, on full consideration, we concluded to change, and although the BUI when it is distributed will contain such a clause, it is an oversight which will he remedied in the committee. We propose that the members of the commission shall be removable in the same manner as the lieutenant governors of the provinces, namely, by the Governor General in Council for cause.

This vital principle of the Bill it is proposed, one year after it has been tbe law, to wipe out and abandon altogether.

Then the question comes up, in whose interest is this proposal made ? Why this change in policy ? Is there any possible doubt what the reason of it is ? The railways of this country have found out at last what the great powers of this commission are, and they have set about, in a very clever way, to have them ' cribbed, cabined and confined'-to have the powers of the commission reduced ; and they are out now looking for a judge, if they can get this amendment passed, to go on that bench who will be friendly to them. In tbe lobby here to-day, whom do you see ? You see the twin railway lobbyists, Mr. Charlie Drink-wright and Mr. Willie Rainwater, as I heard them called the other day. These are the two men who are to select a man to fill this position. They are the men who are engineering the lobby here to-day, to have a judge put on the commission who will not be amenable to parliament or to the Governor [DOT]in Council, and who can only be removed from [DOT] that position by an address of the Senate and House of Commons, which the late chairman of the commission said is a very cumbrous method. I want to tell the new men who have come into this House, especially the men from the west, that the promise made to the farmers and business men of this country was that this tribunal would be speedy in its methods and simple in its procedure, that the men in charge of its administration would be easily removed from office, and that absolute justice would

be done. Instead of that we are to have a chief commissioner who cannot be removed -who will be selected on the advice of the railway companies, as I believe, because they are the dominating influence in this country. There are no twenty men in this House who have the influence of a Drink-water or a Wainwright in matters of this kind. I regret to say it, but these men have found out, on the advice of their solicitors, that this Railway Act does contain a large measure of protection to the people, and they have set about in this peculiar way to try to offset the merits of that Act. I say to the men representing the farmers, whether of the west or of Ontario, and the men representing the business interests of . this country, that an effort is being made today by these resolutions to stifle that great piece of legislation, which ought to stand to the credit of the Liberal party, but which to-day, one year after its birth, they are proceeding to strangle. Now let me read what Mr. Blair's promises to the farmers were :

In considering this, hearing in mind that it is the strength and pressure ot the public opinion which has been aroused by what the farmers of the country have felt to be their particular grievance ; having regard to the enormous extent of these interests, not only in eastern Canada, but growing with such tremendous rapidity in our great west, I am satisfied that I speak with the approval of all my colleagues when I say, that the selection which we will make to occupy ar place on this board, particularly in respect to the business interests of this country which are connected with transportation, will be such a selection as will commend itself heartily to the approval of the farming community, and will promote and further their interests.

If you want to tell me that the business aud farming interests are to be protected and get speedy justice from the Railway Commission, by putting a man at the head of that commission who can only be removed by an address from parliament, you are asking the farmers to accept something they will not accept. What we want is a court which will render speedy justice, which will not be paralyzed by cumbersome procedure, and which will be composed of men responsible for what they do. Speaking on the question of responsibility, Mr. Blair made this statement, which will be found at page 3S58 of the Official Debates of 1903:-

I think that having declared that no commissioner shall hold these things, we can rely upon the Governor in Council enforcing it. It seems to me that- the control of the government would be more effective than any other.

And be made that an argument in favour of the Bill, but now this control by the government is to be abandoned. What will the farmers think of this proposition when they recollect what they were promised ? Besides just look at the great powers vested iu the chairman of this commission. He lias not only the privileges I have men-Mr. W. F. MACLEAN.

tioned, but In clause 8 still further powers are given him-powers that I have tried to have restricted, but so far have tried in vain. Clause 10 says:-

Not less than two commissioners shall attend at the hearing of every case, and the chief commissioner, when present, shall preside, and his opinion upon any question, which, in the opinion of the commissioners, as a question of law, shall prevail.

Not only is he to be not removable by the act of the government and placed beyond criticism in parliament, but he is to be the sole judge ou questions of law', and thus is to be more than equal to his two colleagues. The government are not even proposing to remove that power but are instead increasing the powers of this irresponsible man, and are placing the people in such a position that they will have no effective control. An lion, member the other day spoke of the procedure before this court and showed that it was very much like that followed in other courts. You will have to file your petition and there will be joinders and rejoinders and all that sort of thing which create indefinite delay. The Minister of Justice told us in reply that the chairman will have power to prevent any unnecessary delay, but who is to compel this irresponsible man to administer the law in such a way that it will be speedy and effective, if be cannot be removed. It may be bis duty to do this, it may be his duty to see that the lives of the people are protected, but how is he to be compelled to do his duty? Hou. members are aware of what happened only yesterday at one of these railway crossings in the United States. Ten women were killed in one sleigh by reason of a bad crossing, and similar accidents are happening here every day, yet we are told that the chairman of this commission is to be made an irresponsible official and that the government, instead of proposing wiser legislation, intend putting the whole administration of the Railway Act in the hands of this irresponsible man, in whom is vested this extraordinary power of overruling his two colleagues on questions of law. What the intention of the government is was very fairly brought out the other day. We had the Minister of Railways and Canals and the Minister of Justice both telling the House that they considered all these matters affecting the safety of the people and their protection from railways should be left to tlie commission to decide, that parliament should wait and not interfere, and that this commission would do everything. And three days later they come down with a proposal to emasculate the Bill and give the head of the Railway Commission special powers over everybody else. I have not a word to say against Judge Killam as a man, a citizen aiyl a judge; but I do object to the Railway Act being emasculated iu this fashion, and I do not believe that such a

proposal will meet with the endorsement of the people.

Before this discussion is through, I intend to go into another feature of it, and that is the peculiar circumstances under which the late chairman gave up his place. If ever there was a shameful act committed in this country, it was the act of that man who himself had that law put through creating this Railway Commission, who subsequently resigned his cabinet position on account of some difference with his colleagues, and whom the government, we are told, with some idea of benevolence or conciliation, made chairman of the commission. They asked us to vote, and we voted readily some $50,000 to $75,000 to pay for the organization of that commission. It will cost at least $100,000 a year. We are paying about $4,000 or $5,000 rent to house that commission. We voted last year $22,000 to buy a special car in which this commission could travel about the country administering justice. Then, all at once, this man abandoned his office and left unsettled a lot of cases which were pending before it-If ever there was a disregard of public interest, it was that. If ever there was a man to whom ought to be meted out some kind of punishment, who deserves particular ignominy, it is that man who abandoned his office and refused to decide the cases that had come before him, and in which consequently to-day all the procedure will have to be gone over again. That was the most shameful act I know of in connection with the history of this country; and not a word of explanation has the government condescended to give us of that incident. I do not know the reasons which actuated Mr. Blair. I have my own suspicions, but is there anything worse in our history than such conduct, and then to have no explanation made of it, to have no reason given us why he left that commission in the manner he did without the slightest regard for the public interest? The government to-day should be engaged rather in making provisions to avoid a similar occurrence in the future. They should be engaged in framing some law which would prevent any man, who may in the future hold that position, from abandoning office and leaving a host of cases unsettled, as was done in this case. Instead of trying to pass this Bill through the House, the government should at once abandon it. They should rather seek, not on the bench, some competent man who will take the chairmanship of that commission, without requiring any special legislation to divest him of all responsibility. Let them man that commission properly and let judgments be given in those cases that are pending without further delay and thus do justice to the people. That is a reasonable proposition. But instead of that, they propose to emasculate the Act by making the man

who is to be head of the commission utterly irresponsible to the government and the country. It may be all very well for hon. gentlemen in this House to be parties to legislation of this kind.

It is very fine to sacrifice public rights to corporation interests, which seems to be the impelling force in this matter; but, if anything has been proven by recent events, it is that the people do rise when they find that corporation interests are being placed ahead of public rights. The greatest assertion of the public determination to defend its own rights was that in the province of Ontario the other day. True, the people voted for cleaner methods in elections and in favour of cleaner public life and better conduct on the part of ministers of the Crown and other representatives. But it was also a rising of the people against a government that had abandoned public rights. Hon. gentlemen opposite may think that, just after an election and at the beginning of a new parliament, they can afford to strangle this law for the adoption of which they have taken so much credit. But the people will hold them responsible. And I want to tell hon. gentlemen who are new members of this House, on whichever side of the House they may be that they will be held responsible by the people if they support a measure of this kind. And I want to tell them also that, after the decision in Ontario there are no safe seats in this country for men who turn their backs upon the rights of the public. An hon. friend behind me asks me, how about North York. Did you ever see such a revolution as there was there ? Was there ever such a condemnation as that of a minister of the Crown who had been the constant foe of public rights ? And Hon. J. M. Gibson, formerly Attorney General, the man w-liose office above all others was consecrated to the maintenance of public rights and municipal rights, was snowed under. Five ministers identified with the attack upon the rights of the people were buried under the landslide. A great, a dominant party, was swept from power because they had forgotten the rights of the people. I call upon the men here who represent the farmers, I care not whether of the maritime provinces, Quebec, Ontario or the west, to stand for public rights, and I tell them that if they have the hardihood to vote for such a Bill as this, a Bill that emasculates the law by placing at the head of the commission an irresponsible appointee, and makes provision for him above all others in the community, they are not acting in the interest of the people who sent them here.

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Mr. W. A.@

GALLIHEIl (Kootenay). My hon. friend from South York (Mr. \V. F. Maclean) in his usual energetic way, has discussed this resolution at some length and with some warmth, and has held up certain bogeys with which he hopes to" frighten

new members of tbe House. He speaks of this measure as being in tbe interest of corporations and against public rights. From his own argument I fail to see any justification for that conclusion. He knows little, personally I presume about Mr. Justice Kil-lam. I have had the opportunity of practising at the bar with that gentleman, and I have had the honour of practising before him when he occupied the prominent position of a judge of the Supreme Court of Manitoba. I know his personal worth, and I know that as a lawyer he was considered among the first in the Dominion. As a judge he has been noted for his fairness and ability. That, I think, will not be dis-phted by any one who knows him. That he will be influenced in his new position in favour of the interests of corporations, I emphatically deny, basing that denial upon my personal knowledge of his character. Why my hon. friend (Mr. W. F. Maclean) has termed this proposed new appointee an irresponsible head of the commission I fail to see. It is true that if this Bill passes, his removal is taken out of the hands of the government. But it is put in the hands of what I consider a higher tribunal, the parliament of Canada. To appoint one under these conditions is hardly to make him the irresponsible head of the commission. If, as we all admit, we need at the head of this commission a man of ability, a man of honesty, a man of fairness, we have in this gentleman, if he is placed in that position, a man who fills the bill in every one of these respects. If he receives this appointment and performs his duties with equity and impartiality, in what way can the public interests be said to be sacrificed by the change proposed in this Bill ? It is well enough to raise the cry that public interests are being sacrificed for the benefit of corporations but, for my part, I would certainly require more than the statement of my hon. friend from South York to convince me that that cry was justified. The hon. gentleman again raises the old cry that the chief commissioner has more power than the other two put together, because he is the judge of the law. Well, the object of appointing to this position of chairman of the commission a man learned in the law is that he may, in that position determine, in all cases in which the law is involved, what tbe law is. A layman however cognizant of facts or capable of marshalling facts, yet, when it comes to deciding what the law of the subject is, can hardly be expected to do the work of one trained in the law and experienced therein. The other two members of the commission have their duties to perform. A majority of the court must agree upon the facts of the case. That is an important point to remember. The majority have agreed upon the facts, it is right, in my opinion, that questions' of law should be decided by the Mr. GALLIHER.

man who is capable of deciding what the law is. My hon. friend (Mr. W. F. Maclean) has referred to the late commissioner abandoning his office on pretty short notice. I agree that it was deplorable that, after all the trouble and expense gone to in making investigation into certain matters by the late chairman and his colleagues, those matters were left in an unfinished condition on his resignation. But I hope that my hon. friend does not blame the government for that gentleman resigning his position. It was quite within his right, if he saw fit, to retire from his position at any time, and the government could not prevent him from doing so. I agree with my hon. friend that it is something that ought not to have been done, and, in some respects I would go as far as he does in commenting on the facts. However there is another point in connection with it. We must remember, as I have suggested, the importance of having at the head of the commission a man in whom not only the government but this parliament and the people have confidence. Such a man is Mr. Justice Killam.

That gentleman occupies at the present time a seat on the Supreme Court bench. I agree with my hon. friend in his objection to the preferment of judges from one place to another, I object to that principle as thoroughly as he does. For instance, I deprecate holding forth an inducement to a judge on the bench that he may at some future time be promoted to a higher position on another bench. I agree with the hon. gentleman in that respect. But it is to be remembered, Mr. Speaker, that we are desirous of obtaining the best possible talent for the position of chief commissioner on that board. We believe, at all events, I do, knowing that gentleman well, that he possesses the highest qualifications, and I am sure the majority of us recognize his abilities, and believe that if Mr. Killam is appointed to that position we will have a man in every respect fitted for it. He will be abandoning what we all recognize as a life long position to take a position on the Board of Commissioners which may not be a lifelong position.

Now as we all know, a judge holds his position practically during life, or good conduct, and at a certain period he can retire and receive an allowance proportionate to the salary he has been getting. It is therefore a serious matter for a judge on the bench to consider whether he shall step down from that position and accept another position which may only last for a short time. I think it is not unreasonable to ask that some provision should be made for him in that regard. It is not a question of whether Mr. Killam or any other judge can be dismissed, for he can be dismissed. He cannot be dismissed perhaps, in as summary a manner ns he could under the Act in its present form, but he can be dismissed by this parliament if his conduct as commis-

sioner is not fair, or if he is found incapable of performing his duties. Therefore, looking at the matter as I do, knowing this gentleman as I do, knowing his ability and his absolute fairness, I have no hesitation in saying that I believe he will fill that position, if appointed, both to the satisfaction of the farmers whose interest my bon. friend so laudably champions, and to the satisfaction of the country generally. For these reasons X shall have no hesitation in supporting the resolution.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. T. S. SPROULE (East Grey).

It has always seemed to me, since parliament met, that some explanation was due this House regarding the vacation of the position of Chairman of the Board of Railway Commissioners by the gentleman who held that post, but up to the present time we have had no explanation in this House. I think parliament was entitled to it, and especially so when this resolution was proposed. That appeared to me to be the proper time and opportunity to make an explanation. But the government has not vouchsafed the House any explanation; in fact, so far as parliament was entitled to it, they have treated parliament with contempt. Now I think that the government is not doing its full duty iu keeping us in the dark in regard to that incident, so long as it persists in withholding an explanation.

I have nothing to say with regard to the qualifications or non-qualifications of Judge Killam, except this : that when it was first contemplated to appoint a railway commissioner, we were told that it was a sine qua non that the commission should be composed of three men, one of whom should be a railway expert. Now Mr. Justice Killam cannot fill the bill in that respect. Another member of the board was to be well versed in law, one whose qualifications and experience would enable him to perform satisfactorily his duties on that board. The third was to be a man of common sense. How far Mr. Justice Killam will come up to that standard, I do not know. But at any rate he is not a railway expert. Now one of the strong reasons why the government justified their selection of Mr. Blair for a commissionership, was that he was a railway expert in the highest sense of the term. We recognized all over the country that he was a man of experience, versed in the law, and one acquainted with parliamentary usages and parliamentary life. Now if these were essential qualifications for the chairman of that commission, certainly Mr. Justice Killam does not possess the whole of them.

But what chiefly strikes me in the government making this appointment is that they are weakening and lowering the dignity of the bench, and destroying the respect of the country in the judiciary, there is no doubt about that. If you have to take men from the bench to fill positions that can only

be filled by a party government, the result will be to lessen the respect of the people for the bench. As my hon. friend from South York (Mr. W. F. Maclean) has said, you offer a temptation to those who are on the bench, and who are always looking for promotion to a situation with higher emoluments or something else, and when that promotion can only be made by the party in power, it seems to me you are holding out a temptation for the bench to pander to the political party in power. Now I think that is wrong. We have always been led to believe in the past, and the late Sir John A. Macdonald emphasized that principle in the strongest possible way, that when a man was raised to the bench he was put there, so long as he performed his duty, for the rest of his life. We should always respect the bench and look upon its occupants as the very embodiment of fairness, for that reason, if for no other. Well, then, what becomes of that principle in this case ? It is a total abandonment of that principle, and the consequence I say, must result in lessening the respect we have for the bench.

Then this is legislation for one special class, the judges. Why don't we make a provision that this position may be filled from any other class in the community? But here we make a special provision for only one class in the community, the judges. We take a judge from a bench where he is entitled to a superannuation allowance after he is worn out in the service of the country, and where he is given a salary, perhaps, lower than he would otherwise get because of that superannuation allowance which he is to receive after he is worn out. But we put this gentleman in a position where there is a larger salary and a large superannuation allowance as well. I do not think that he is entitled to either the one or the other. If he abandons the bench to take a lower position he should be satisfied with the emoluments that go with that position, and not expect those that accrue to another position, not only* accrue to it by virtue of the law now on the statute-book, but which would accrue to it-in the event of an amendment to that law giving a larger salary to judges and with a larger superannuation. This gives him the advantage of both, and it is only for the purpose of one class, the judges. Now I think in that respect the principle is wrong, it is making a specialty of that one class, taking them out from the rest of the community, and holding out inducements to them that are not offered to any other class.

Then it deprives parliament of the right to remove these men. It is true they can be removed at the end of ten years, because the term of office expires at the end of that period. But it deprives parliament of the right to remove them except by impeachment, on an address from both Houses of parliament. Now, that cannot be done. In

the experience of Canada I do not know whether it has ever been done or whether any judge of this country has been called' to account. At the present time I have no remebrance of it ever having been done, remembrance of it ever having been done, a position that parliament will not or cannot remove them, no matter whether they do their duty faithfully and properly or" not. There is practically no redress and they remain in power for ten years or until the expiration of their term. The government take away that supervision that parliament only a few years ago regarded as one of the essential powers to be exercised as a controlling influence over the party who occupies that position. I think it is wrong. Then again, I would like to ask why it is found desirable or proper that service in the admiralty court should count in this case.

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN.

Some gentlemen want to be called ' judge,' or ' your lordship.'

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LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

No, I do not think it is at all necessary for the purpose of making the resolution applicable to the judges that this is introduced. When the resolution goes into committee I intend to drop that clause.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

I think that makes it a little less objectionable. That is subsection 5.

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LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

I think when we discuss this resolution in committee and my hon. friend (Mr. Sproule) thoroughly understands it he will see it is not objectionable.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

These are my main objections to the resolution. I do not think the principle is a good one, and I do not think that by adopting the resolution we will be making the commission more effective than it has been heretofore.

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Right Hon. S@

Mr. Speaker, .1 have heard upon the floor of this House more than once some extraordinary doctrines enunciated by my hon. friend from South York (Mr. W. F. Maclean)-but I think on this occasion he has fairly excelled himself. He has presented a doctrine which I think be has never heard before, which he has attributed to one party, but which he cannot justly attribute to either party in this country. The hon. gentleman has stated that it is a vicious principle that judges should be promoted from their first sphere of action, that it is a vicious principle that judges should ever be removed from positions to /which they are first appointed. On.ce a puisne judge always a puisne judge. If we appoint a man to be a puisne judge then it is shut out from the government to appoint him the chief justice of the court of which he has been a member. If we appoint a man to be a judge in a lower court it is shut Mr SPROULE.

out from the government to appoint him to a higher court. I do not think that such a principle was ever proclaimed by any party in this country. I do not think that it should be admitted by any party, because I think it is a vicious and a wrong principle. If a man is appointed to the bench and if he is found to be a fit and proper person for a higher position, why in the world should he not be placed in the position for which he is fitted ?

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN.

Because he will look for preferment.

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LIB

Romuald-Charlemagne Laurier

Liberal

Sir WILFRID LAURIER.

Is there any reason why a judge should be prevented from looking for preferment ? Is there any reason why a judge should not look forward to be the chief justice of the court of which he is a member ? Is there any reason why a deserving man should not be rewarded whether he sits on the bench or occupies any other position ? Or, is a judge to be the only__man who is to have no incitement to do good ? Shall virtue be his reward and his only reward ? Has that principle ever been supported? On the contrary, Sir John Macdonald made it a boast that he would select the best men for the positions he had to fill, and we shall see how he did it. Let us take some examples from the courts. The government of Sir John Macdonald promoted Mr. Justice Casault to the chief justiceship of the Superior Court of the province of Quebec. It was also the government of Sir John Macdonald which made Mr. Justice Stuart chief justice. Could any fault be found with the government of Sir John Macdonald on either occasion ? Could better men have been selected V When Mr. Justice Casault was appointed chief justice of the Superior Court of the province of Quebec, could any other man have been found who was preferable to him ? According to the doctrine of my hon. friend which we have just heard and which has been endorsed to a certain extent by my hon. friend from East Grey (Mr. Sproule), though air. Justice Casault was the best man for the position, though he had proven by intelligence, fairness, education and experience that he was the best.man for the position, yet once a puisne judge always a puisne judge. If that principle had been adopted the province of Quebec would have been deprived of the services which have been rendered on the bench by a most useful man in his sphere. Then, again, take another example which was afforded at the time the Supreme court was established. True, it was not established by Sir John Macdonald, it was established by Mi-. Mackenzie, but the men who were appointed to the bench or most of them were taken from the benches of the provincial courts, Mr. Justice Taschereau was taken from the bench of the province of Quebec, Mr. Justice Strong from the bench of Ontario, Mr. Justice Richards from the bench of Ontario and Mr. Justice Henry

from the bench of Nova Scotia. They were all on the benches of these different provinces. Then, later on Mr. Justice Richards, upon having completed a career of great usefulness on the bench of the supreme court, was replaced. By whom was he replaced ? Did Sir John Macdonald, who had named Mr. Justice Richards as chief justice of the supreme court, go out of the supreme court for a new chief justice? Did he go out amongst the bar ? Sir John Macdonald chose as the successor of Chief Justice Richards, Mr. Justice Ritchie of the supreme court promoting him from the position of a puisne judge to that of chief justice. Late.r on Chief Justice Ritchie himself was removed and then another appointment was to be made. I forget whether it was made by the government of Sir John Macdonald or not ; at all events it was made by a government of the Conservative party who promoted Mr. Justice Strong to the position of chief justice. I am able to say, and everybody will admit that all these gentlemen were eminently fitted for the promotion which they received, and I have heard for the first time that either the government of Mr. Mackenzie or of Sir John Macdonald, ever did anything wrong when they selected men whom they thought best fitted for the positions and promoted them from the positions which they then adorned.

But, I go farther. My hon. friend stated also that judges should not be appointed on commissions ? Is that a principle of British (justice ? Is it the position taken by my hon. friend that no judges may be appointed to be commissioners if there are facts to be investigated ? Let me refresh his memory with some facts which he has forgotten. When the Parnell commission was appointed to investigate a most important affair, who were the members chosen ? There were three judges taken from the bench and they were Mr. Justice Hannen, Mr. Justice Day and Mr. Justice Smith. I do not think in the face of these precedents that the position taken by my hon. friend is maintainable for a single moment. Then again, there was another case. We had thirty years ago a most important question, known as the Pacific scandal, to be investigated, and a commission was appointed by Sir John Macdonald. It was a political affair, the commission was organized to judge and to try a political offence, and who were the commissioners appointed? They were all taken, two of them, at all events were taken from the bench of the superior courts-Mr. Justice Pollette from the province of Quebec, Judge Gowan who was the judge of the county court in the province of Ontario and Mr. Justice Day was a retired judge. Not only that, but I would say to my hon. friend from (East Grey, who also thinks that in these matters the example set by Sir John Macdonald was an example that we should always follow, that Sir John Macdonald went much farther. I remembav, everybody re-17

members and hon. gentlemen on the other side of the House have not forgotten, they have no reason to forget-on the contrary they have good and sufficient cause to remember-that an eminent judge of the province of Nova Scotia on a certain occasion was promoted to be what ?-to be chief justice ?-no, Sir, but brought here as a member of the government of Sir John Macdonald, brought here as Minister of Justice. The late Sir John Thompson was a member of the superior court of Nova Scotia and he was taken from the bench and brought here to be a member of the government of Sir John Macdonald. Under all these circumstances I do not know whether the party then in power made a mistake, but, now, because it suits an hon. gentleman opposite to put a slur upon a most honourable man, the hon. gentleman wants to put forward a doctrine of this kind.

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN.

Mr. Speaker, I rise to a question of order. The right hon. gentleman (Sir Wilfrid Laurier) says I have cast a slur on somebody. I have cast a slut-on no one.

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LIB
IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN.

I said that the lobby would see that they got a judge, and would use their interest with the government to get a judge appointed.

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LIB

Romuald-Charlemagne Laurier

Liberal

Sir WILFRID LAURIER.

This is what I call putting a slur upon a most honourable man. Mr. Justice Killam has been for twenty years on the bench ; he was not appointed by the party now in office, but by the party of the hon. gentlemen opposite. He was appointed to the Supreme Court of Manitoba, and he was an ornament to the Supreme Court of that province. Nobody ever said a word against him. He was promoted by this government to be a judge of the Supreme Court, and I think it was a good 'promotion and a well deserved promotion. I think it was a wise action on the part of this government to bring him here to be a member of the highest court of the land, and nobody until this moment ever said a word against him. But, Sir, the hon. gentleman (Mr. Maclean) has propounded extraordinary doctrines to-day. Because we looked about to secure a good man to fill the place of chairman of the commission- the hon. gentleman will agree, I suppose, that there is no more important position in this country than that of chairman of the Railway Commission, and that we want a man of good character, a man of ability, a man of experience, to fill that position-because we looked all over the land to find such a man, the hon. gentleman criticises us. We thought that we had found such a

man in Mr. Justice Killam ; we think so still, and I do not believe any one in this House or out of it will bring a charge and say that this is not a good appointment. But Mr. Justice Killam had to abandon a most important position, a position in which he had greater opportunities than he has now ; he is a man like everybody else, he has a family to look after, and no one expects that while serving the country he should give up any advantage he now enjoys in order to make a change. Therefore, we introduce this resolution which provides, what ? That he shall lose nothing by the change, that he shall continue to have the advantages he has to-day. Yet the hon. gentleman (Mr. W. F. Maclean), in his extraordinary logic, tells us that the farmers of this community will be less secure than they are at the present time, because, as he says, the chairman of the Railway Commission shall not be removed by the government, but by parliament. This is an extraordinary doctrine for a man who poses as a radical. My hon. friend says that to-day, because the chairman, under the law which we propose to amend, is removable by the will of the government-for we have only to pass an Order in Council to remove him-because we propose to put around him more security, more independence, and to say that he shall be removable solely on an address of both Houses, my hon. friend says we have emasculated the commission. This is extraordinary logic. By the enactment we now propose, the new chairman of the Railway Commission will be more secure, more independent of the government, more independent of everybody and more distinctly liable only to his own conscience than before. We thought last year, when we made the appointments to the commission, that it would be safe to have the members removable, as lieutenant governors are, simply by action of the Governor General in Council. We think yet that perhaps that is sufficient, but we say if we appoint a gentleman from the bench, then, in order to have the public possess the same confidence, and more, in that man, he should continue to have the same privileges that he would have if he remained a member of the bench. If we find a man, as Mr. Justice Killam is, eminently fitted for the position, and go to him and say : We want to appoint you to that position, and he says : But I have a good position, why should I leave it ? I can serve the country in my present safe and secure position, in which X give satisfaction to the public ; why should I go and try a new position that holds out no inducements to me ? We come to parliament and say we have selected the man whom we think best for the position, and ask parliament to see that he shall be as secure in the new duties that he is to discharge as he was in the duties he is now discharging, and I am sure that parliament will agree to that very reasonable proposal.

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LIB

Romuald-Charlemagne Laurier

Liberal

Sir WILFRID LAURIER.

Then my hon. friend (Mr. W. F. Maclean) says that this is emasculating the Act, and is lessening the security which the farmers and the public generally have. If there was a scintilla of reason or common sense

if he will pardon the expression-in his argument, I could understand him, but if he will reflect a little he will agree with me that there is not a scintilla of common sense in his argument. If a man is removable by the government to-day and if he will be removable next year, after this law is passed, not by the government, but by the joint action of the three branches of the legislature of Canada, then certainly he has far more security for himself under the new condition, and if we pursue the logic of the thing to the end, we will see that the people themselves have more protection than they have at the present time. We thought last year that with our mode of dealing with the commission the public were amply protected, but nobody can find fault if today we make the protection still more secure.

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February 3, 1905