February 3, 1905

CON

George Eulas Foster

Conservative (1867-1942)

Mr. FOSTER.

In what way would both Houses of parliament remove the commissioner ? What would be the method ?

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LIB

Romuald-Charlemagne Laurier

Liberal

Sir WILFRID LAURIER.

The method would be the same as in similar cases ; there have been cases of impeachment before. A petition would be brought to this parliament, and this House, after having the matter investigated, would pass an address and, the matter being taken to the Senate, an address would be passed in the Senate.

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CON
LIB
IND
LIB

Romuald-Charlemagne Laurier

Liberal

Sir WILFRID LAURIER.

Am I to believe that gentlemen on the other side of the House have come to this, that they have no more faith in parliamentary institutions? Are we to understand that because, possibly, a complaint is brought against a judge, and the two Houses disagree as to his impeachment, that we are to abandon that safeguard ? Are we come to this, that the safeguard we give to the judges, that they are to be removed only by addresses of both Houses of parliament, is not a good and safe remedy to the public, because, forsooth, there may be disagreement ? If this is the policy of hon. gentlemen opposite, it is not my policy. I believe, on the contrary, that the system which has prevailed in England, and which prevails here to-day, is the best possible policy to guarantee the independence of the judges, and I do not believe that hon. gentlemen will seriously advance any other opinion. These are the reasons why we have introduced this legislation, and I believe it will commend itself to the good sense and good judgment of gentlemen on both sides of this House.

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CON

John Graham Haggart

Conservative (1867-1942)

Hon. JOHN HAGGART.

Mr. Speaker, as to the appointment intended to be recommended by the government under this Bill I have no objection to raise. I know the gentleman perfectly well ; he was a judge In Manitoba and afterwards became a judge of the Supreme Court of Canada. He is a gentleman against whose honour, whose integrity and whose ability, no man says a word. But that is not the question before the House at the present moment. The question before us is the consideration of this resolution. The Prime Minister seemed to be astounded by the doctrine laid down by the hon. member for South York (Mr. W. F. Maclean) as to the position the judges should occupy in this countryThe position of a judge in the old country is this : Once he receives his appointment, if it is a county court judgeship or a puisne judge ship, to follow the words of the Minister of Justice, quoted by the hon. member for South York (Mr. W. F. Maclean), he always remains so. That was the doctrine advocated by Sir John Macdonald. I have heard him impress it on this House again and again.

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LIB

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

Liberal

Mr. FITZPATRICK.

Lord Alverstone is an exception.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

It is true that the practice was more honoured in the breach than In the observance, but I maintain that it is the principle which is followed in the great country which we admire so much, and whose record we regard with so much attention.

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LIB

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

Liberal

Mr. FITZPATRICK.

I may say that the same rule applies in England as applies here. The present Chief Justice of England was formerly Master of the Rolls, and the late Chief Justice Russell was a Lord Justice of Appeal when he was promoted.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

Sometimes a judge in England receives a promotion to the chief justiceship of the court to which he belongs ; but the hon. Minister of Justice cannot mention an increase in wrhich a county court judge or a judge of an inferior court, has been promoted to a higher court. The rule in England is that once a man is appointed to a judgeship, he must make up his mind to remain there for the rest of his life, unless he receives promotion for seniority, as I think it ought to be, or for some exceptional cause, in his own court. The rule is a good one. A judge, once appointed by His Excellency the Governor General, is not removable except by impeachment of the Senate and House of Commons. He is placed in that position in order to be independent of any influence, especially from the Crown, that could possibly affect his judgment. The people of Great Britain are so careful to protect the rights and liberties of their judges against any encroachment of the Crown that they insist that no communication shall take place 17 J

between the government of the country and a judge of any of the courts. What do we meet with here to-day ? A set of resolutions showing that bargaining has been going on for a couple of months between a judge of the Supreme Court and the government of this country. The judge is offered the position of chief commissioner. He refuses to accept it unless certain conditions are agreed to. These conditions are set forth in these resolutions. I do not blame the judge. He occupies an important position Upon the bench. In that position he is entitled to retiring allowance, and from it he cannot be removed, except by impeachment from this House and the Senate. He tells the government that under the conditions attached to the appointment of a commissioner he will not accept the position, notwithstanding the increase of salary offered. It is a matter of agreement, then, between the government and the judge. Is that pardonable in this country ? Is it pardonable or just or in the interest of freedom, that negotiations should be carried on for a couple of months between the government of this country and a judge who is perhaps trying cases in which the government are interested ? In Great Britain such a thing would not be allowed ; there resolutions of this kind dare not be introduced. As my hon. friend from South York has pointed out, the chairman of the commission has a different position from that of the other two commissioners. They are removable by the Governor in Council for cause, while he is not at all amenable to the government or to this House except under the cumbrous form of a charge being made against him ; and that charge must be either that some corrupt influence has affected his judgment or that he has not sufficient intelligence to conduct the business of the court over which he presides. These are the only two reasons for the impeachment of a judge. Under the British North America Act a judge can be removed only by impeachment of both Houses. That is a part of our constitution which we have not the power to alter. I suppose that we would have the power at some future time to alter these resolutions if we thought proper or to make the conditions under which the chief commissioner is appointed, the same as those which apply to the other commissioners. But here is the odd thing about this matter : one commissioner holds his office on different conditions from the other two. Two are removable for cause by the Governor in Council, while the other one is removable only by impeachment of both Houses. Why should there be this distinction ? As my hon. friend from South York says, if the government want to improve the commission, iet them alter that provision which makes the chief commissioner virtually the dictator in two out of every three cases that come before them. Most of the questions are legal questions, and on these he has the sole

decision. But what I rise particularly to protest against is the fact of arrangements being made between the government and a judge for the purpose of taking him from the highest court in the land in order to make him the chief commissioner. As I said before, nothing can be said against the gentleman who is to be recommended for the appointment. He is capable in every respect of filling the position, because I have heard his brother judges and uttiers speak of him as a man of noted probity, intelligence and knowledge of the law ; and I have no doubt that if he is appointed to the position, he will fill it with dignity and with satisfaction to the country. But that has nothing to do with the question under discussion. I never before heard of resolutions such as those before the House, on which the government intend to introduce a Bill for the purpose of carrying out the bargain which they have made with the judge. That bargain is a bad one on principle. The true principle is that no judge, once he is appointed, should ever hope for promotion from one court to another. Once you depart from that principle you render a judge susceptible to political influence. I heard Sir John Macdonald give that as a reason for the non-promotion of Senator Go wan and Judge Clark, both of whom were perfectly qualified for positions in the Superior Courts. Once you depart from this principle, you will make every judge in the country use his political influence in order that he may be promoted rather than give his undivided attention to the honest fulfilment of the duties of his office.

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LIB

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

Liberal

Mr. FITZPATRICK.

If that was the rule laid down, why then was Judge Landry promoted from the county court of New Brunswick to the High Court?

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CON
LIB

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

Liberal

Mr. FITZPATRICK.

By Sir John Macdonald.

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CON
LIB

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

Liberal

Mr. FITZPATRICK.

The appointment was made by a government of which my hon. friend was minister.

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CON
LIB

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

Liberal

Mr. FITZPATRICK.

But you were alive.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

It is the first time I have heard of it. I understood the Minister of Justice to say that Sir John Macdonald did it.

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LIB

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

Liberal

Mr. FITZPATRICK.

That was my impression and I am sending for the book. At any rate he was created a -county court judge, and afterwards was appointed by the government, of which my hon. friend was a minister, to the High Court of New Brunswick. <

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February 3, 1905