February 3, 1905

CON
CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

We will take the statement of the Minister of Justice for what it is worth.

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LIB

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

Liberal

Mr. FITZPATRICK.

The hon. member for St. John knows all about it.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

It is the first time I have heard of it.

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LIB

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

Liberal

Mr. FITZPATRICK.

Ask the leader of the opposition. He has not forgotten it These general rules are sometimes very awkward.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

There are some principles of good government and righteousness which were observed in every province and throughout the Dominion but sometimes-

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?

Some hon. MEMBERS

Oh, oh !

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

Let me say anyway, in all earnestness that the sound principle, when appointing a judge, is to let it be known that he is appointed for life, and never to have any communications with him for the purpose of preferment, especially for the purpose of taking him from his judgeship and making him the head of a Railway Commision, which is to a certain extent quasi judicial. We should never in any case, when appointing a judge, appoint him under special arrangements. I am glad to hear that the Minister of Justice intends dropping the last clause of the resolution in which this condition is extended to judges of the Admiralty and Exchequer Court. I do not know7 who the judges of the Admiralty and Exchequer Court are. I suppose there are three or four. I would like to know if there is a possibility of a vacancy soon occurring in the Railway Commission and if so who is likely to get it. If my memory is right, there are only two judges of the Admiralty and Exchequer Court.

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LIB

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

Liberal

Mr. FITZPATRICK.

There are five.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

There is Mr. Anglin and there are a couple not filled yet. There are two in Ontario, Mr. Anglin and Mr. Hodgins.

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LIB

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

Liberal

Mr. FITZPATRICK.

Hodgins in Ontario, Routhier in Quebec, Macdonald in Nova Scotia, and Hunter in British Columbia.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

Just fancy calling this a commission which is to serve the farmers and give them speedy justice. I knew what the result would be of passing this Act. which, as my hon. friend from South York (Mr. Maclean) says, vests the chairman of the commission with more powers than are to be found given a judge by any other Act in the civilized world. We were told that this Act was for the purpose of doing justice between the farmers and the railway monopolies. We were told that its object was to give cheap and speedy jus-

tiee to tlae farmers. The result, X think, will be a disappointment. If the contrary should prove to be the case, I shall be very agreeably disappointed. The resolutions are the most extraordinary I have ever seen introduced into this House. They are for the purpose of carrying out a bargain made with a judge of the Supreme Court in order that he may consent to be removed from that court and placed in a better and more profitable position.

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CON

Samuel Barker

Conservative (1867-1942)

Mr. S. BARKER (Hamilton).

My hon. friend the Minister of Justice and my right hon. friend the First Minister have dealt with this matter as if the only question for the House to consider were the fitness of Mr. Justice Killam for the particular position to which he is to be appointed. But that point, it seems to me, is one that has the least possible bearing on the question with which we are dealing. By this resolution, we are not asked to vote the appointment of Mr. Justice Killam. It is simply a general law which we are called upon to enact, and which will place it within the competence of the government of the day to select any judge from any Superior Court in Canada and appoint him to this commission. It is quite possible that in a year, or even less, Mr. Justice Killam, if appointed, may see fit to withdraw from this commission. He may get some other appointment, and then we will have negotiations entered into by the government with another judge of the Supreme Court or some other court mentioned in the resolution we are asked to pass. The result will be that we will have our judges looking forward to the possibility of getting the handsome salary of $10,000 instead of the $7,000 which they receive as judges of the Supreme Court or the lesser sum they receive as judges of some other court. Therein it appears to me is the vice of this resolution. I am not for a moment questioning the fitness of Mr. Justice Killam. Not one word has been said against him in that regard. No one has ventured to cast a slur upon that gentleman in any sense whatever. We all respect him, we all know his capacity, his sterling character. Nobody says a word against him. The remarks that have been made in this connection would have been equally made no matter who should be the judge the government might see fit to select. Therefore we should deal with this resolution exactly as it is, namely, as a proposition on the part of the government to acquire the power by statute of taking any judge from any Superior Court in Canada and appointing him to this office. There is the objection. Judges are human beings and might consequently be influenced by the possibility of getting such a promotion. I do not think that when a gentleman goes upon the bench he alters his nature very materially. He is still subject to all the

human weaknesses that he had the day before his appointment; and if before his appointment he sought by political influence with the ministers-or worse still by political influence with gentlemen who have influence with ministers-to get an appointment upon the bench-and no one can doubt that sometimes such influences are used-that same gentleman would hardly hesitate to use similar influences to obtain a position which would give him a handsome increase in his salary. The very fact, as my hon. friend from Lanark (Mr. Hag-gart) points out, that negotiations have been going on in this case, shows the danger that may occur in other cases

A government having political questions before the Supreme Court for deccision- matters, perhaps, involving the fate of the government-might negotiate with a judge for his acceptance of the very handsome salary involved in this commissionership. Surely, that ought to be avoided. Surely, it will not be pretented that Mr. Justice Killam is the only competent man in this Dominion to occupy the position of chief commissioner. We had nearly a year's discussion on the Railway Bill? I do not think it was hinted or even thought of by any person that Mr. Justice Killam was the man of all men who should get the appointment to the chief commissionership. We never heard a suggestion that a man should be taken from the Supreme Court or any other court. But it happens that, at this moment, it is convenient for the government to appoint Mr. Justice Killam. He is a capable man, undoubtedly, and would probably be a fitting man to hold the position. But it will liai-dly be said that there is only one man in this whole Dominion fit to occupy that position. And, if there is another man anything like equal to Mi-. Justice Killam, surely the government should avoid the danger of appointing a judge from the bench, an appointment involving to him a very substantial increase of salary.

But, Sir, there is more, a good deal more, in the case. The resolution is proposed to enable the government to appoint a judge from any superior court in Canada. I presume that would include the judge of the Exchequer Court, Mr. Justice Burbidge. Now, very important questions are constantly coming before the Exchequer Court, cases between contractors and the government involving enormous sums of money. What would be said of the appointment of Mr. Justice Burbidge to this commissioner-ship ? What would contractors who had litigation with the government involving many thousands of dollars say, if a judge who might be seeking such a promotion from the government were asked to decide the questions between themselves and the government. Surely the very fact that such a man could be given a reward of that kind would detract from his usefulness. It

would create suspicion. Even if tie were not appointed, many people would be inclined to think that he would be influenced by the expectation that such a reward might come to Eim. I have as high a respect for Mr. Justice Burbidge as for Mr. Justice Killam. I do not mean to say that either of these gentlemen would be influenced by such a consideration. But it is essential that the people should respect and have confidence in the courts, and it is of the utmost consequence, I think the minister will admit, that there should not be even a suspicion against the integrity of our judges. Therefore, I think the government makes a great mistake when it brings in a resolution of this liind. which cannot fail, it seems to me, to cast suspicion upon any judge who might possibly be available for such an appointment.

There is another feature of the measure. The government does dot undertake always hereafter to appoint a judge from one of these superior courts. If they appoint a man, who is not a judge, whether a railway expert or a lawyer, or a combination of the two, that appointee may be a man equal in every respect or even superior, as the occupant of such a position, to Mr. Justice Killam. Yet, such a man, being appointed after this resolution is carried and becomes law, will be dealt with differently from a superior court judge. He will be dismissible by the government whereas an appointee from the Superior Court bench would not. Why such a distinction ? Why should a thoroughly capable man appointed from any rank in life, if fit for the position, be put in a worse situation than another simply because that other had been a judge? This, it seems to me, is an invidious and unnecessary distinction. This resolution speaks of a ' Judge of any Superior Court in Canada.' I do not know whether the Minister of Justice can refer us ,to any Act which defines the meaning of ' Superior Court in Canada.' I know that the Revised Statutes of Canada have a definition for these words and that definition would not include the Supreme Court. But, there may be another Act.

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LIB

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

Liberal

Mr. FITZPATRICK.

That point was considered in connection with the drafting of the resolution.

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CON

Samuel Barker

Conservative (1867-1942)

Mr. BARKER.

I can only say that it would have been better to use some other words than these, because, under the interpretation clause of the Revised Statutes, the expression ' superior court,' applies to certain courts in the various provinces. This might cast doubt upon the question whether the very gentleman sought to be appointed would not be excluded by the wording of the resolution.

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IND
CON

Samuel Barker

Conservative (1867-1942)

Mr. BARKER.

We do not want to pass a resolution which will not do what it is Mr. BARKER.

intended to do. I submit the point for the minister's consideration. My contention is, however, that there is no justification for the resolution unless the government tell us that throughout this whole Dominion they cannot find a man for this position without taking a man from the bench. Euless that is the case, the government should avoid interfering with the independence of the judiciary. It all comes to that, to my mind. I would not have any one suppose that I have any doubt of Mr. Justice Kil-lam's capacity and integrity. But, an injury will be done to the judiciary of this country, if this resolution is passed.

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CON

George Eulas Foster

Conservative (1867-1942)

Hon. GEORGE E. FOSTER (North Toronto).

I have a few observations to make, but I promise the House I will not occupy much time. In the first place, the very fact of bringing down a resolution of this kind to fill a vacancy which formerly was filled by nomination of the government, I think, called for at least this courtesy to the House, that either the minister who introduced it or the First Minister who spoke upon it should have given some reasons why this position became vacant. This resolution is introduced because of the resignation of the former chief of the Railway Commission. That gentleman was an appointee of the present government. He was an appointee of -the present government under somewhat peculiar conditions, and we must not forget to hold a government responsible for all its appointments, as well as for the grievances and losses which result from those appointments.

There was a peculiarity about the appointment of that gentleman to the head of the commission in its very inception. Here was a member of a government, on an equal plane with the other members of the government, who had charge of a special department, in the line of which department this appointment and this legislation lay. The members of that government had not sufficient confidence in their colleague, their representative, the Minister of the Railway Department, had not sufficient confidence in that minister to give him the place that he should have had in the inception, the negotiations and, I may say, the completion of certain business matters culminating in legislation which had to do entirely with that gentleman's department. Under those circumstances, no self-respecting man could have remained in the position which he occupied, and consequently there was a resignation. Now, this question arises, a pertinent question : If there were a Minister of Railways appointed because of his fitness for that position, because of his special knowledge with reference to railway matters, but who had so far forfeited the confidence of his colleagues that they would not entrust him with the negotiations of what fell particularly to his department, if must have been because they considered him

unfit to undertake these negotiations and carry them through to their fulfilment. If he were unfit for that, by what process of reasoning was he considered fit for taking the chairmanship of a great railway commission such as this ? Is the old evil the same evil to-day, that hon. gentlemen in the ministry look upon office, not as a sacred trust of the people, but as a plaster to bind up, and to heal, so far as they possibly can, the exigencies and the wounds of the party ? Now, I wish I could make that even more emphatic than I have. That parliament and that country are taking a step in a perilous direction when they lose sight of the fact that the offices of the country are a sacred trust for the good of the country, and are not simply means by which the exigencies of a party may be met and overcome. The initial difficulty in this appointment to that Railway Commission lay there, that it was to get the party out of a bad fix that they appointed to that office the man in whom they had declared their lack of confidence, that made him the chief officer of that commission, lauded him to the skies as the man especially fitted to take hold of it; and within a few months we find him equally under that old delusion that an office of trust and emolument in the interest, and to be carried out for the good of the people, was to be looked on as a pawn upon the board for the especial interest only of one man, the office holder.

It was incumbent upon the First Minister or the Minister of Justice to say to-day what circumstances intervened of such overshadowing and overwhelming importance and urgency, that the responsible commissioner, having heard cases which could not be decided unless he remained to give the decision, and having heard them by dozens and scores, perhaps hundreds, involving grievances of the people which, for seven months, had been exposed before the tribunal and all the evidence collected, and that then, without a thought as to the people, without a thought as to the gravity of the questions, without a thought as to the results which would take place if he hurriedly left that office, without having made arrangements with his co-commissioners, but simply looking upon the office as a private appurtenance, left his position and brought all this damage and harm upon the country. It was incumbent upon the First Minister, it is incumbent upon the government, to give to the House the especial, the overwhelming, the urgent reasons that made it necessary for the chairman of the Railway Commission to act in the way he did. Does the country know of any such reason ? Has the world turned upside down suddenly since that gentleman left the chairmanship of the Railway Commission ? We have not heard that he has been called to give advice to the Czar of Russia, or to the Emperor of Germany, or even to the King of Great Britain. We find that there is great public concern in

this matter. Why could he not have remained there for a fortnight, for three weeks, for a month, and done his duty ? That duty not being done, the fault for it not being done, is placed on the head of the mem who made the appointment. And yet, Sir, these gentlemen think that parliament is so much of a dumb show that they do not need to act as sensible men ought to act, sensible men representing the government, and give a reason for the action in this matter. Either they were wrong in their choice, and they, therefore, have to take the responsibility, or there must have been some urgent reason, and it would be easy for these gentlemen to give that reason if such reason existed. So I say I am here, and I think we ought to stand here and say that we need an explanation on this point, and that for all the damage, and loss, and delay, which have occurred, this government must be held responsible, because incurred through the action of their own appointee.

So much on that phase of the subject. There is another point I wish to touch upon. I am here to assert that, so far as I have been able to read the cool judgment of the country, the commission appointed by hon. gentlemen opposite did not come up to the importance of the duties which were to be performed by that commission, did not go so far as the country thought they ought to go. I listened whilst my hon. friend the Minister of Justice read the almost autocratic powers which are placed in the hands of that commission. From the inception of the incorporation of a railway company, the principles upon which it ought to be organized, the conditions which ought to be attached to it, until you get out into that wonderfully complex work of fixing rates and tolls upon the traffic of a country like this, with its diversity of sections, its long hauls and its short hauls, and everything in connection with that, it seems to me that there is no set of duties you can conceive of, which require abler, stronger, more experienced and better versed men than those duties which are imposed upon the three railway commissioners by the law passed in 1903, under which we are now acting. Now, I do not say anything personally of the commissioners ; but I do say that the formation of that board in the first place did not, in its selection, meet the exigencies of the case, and did not meet the reasonable and, I think, well warranted expectations of the business men of this country.

What have you ? You have a gentleman as one of the commission who, though very estimable,- perhaps, does not bulk before the public as being a man versed in large business affairs, in the great traffics of the country, in the currents of its trade and in all those complex problems of transport and distribution which meet the railway commissioners almost in every case. I leave

that to the sense of this House. But, there was another reason and a very good one. A colleague had to be provided for, a vacancy had to be made because there was some one else who wanted a vacancy made and between the government who wanted to make a vacancy and outside influences that wanted a vacancy to fill the unoffending and mild-mannered gentleman who filled the position of Minister of Inland Revenue at that time had to be got rid of and he could not be got rid of unless a place were found for him. There was a convenient place found and into it he went. Does any man sitting in this House believe really in his heart of hearts that you could not have gone through this country and found amongst its business men a better representative for this work than even that gentleman whom I personally respect very highly ? 1 will not pursue the personnel of the commission further. I will say this that it struck the country that men of expert knowledge, men thoroughly well versed in the business and trade currents of the country and in technicalities of railway administration, were not the kind of men who were appointed upon that commission. I am in favour of a railway commission. I acknowledge that this is one of the most complex, one of the most diflicult problems that ever was given into the hands of a set of men to carry out. It is not simply the farmers who have interests at stake but I have just as much solicitude in another way for the carriers of this country whose interests are at stake as well and when you come to adjudge between all the delicate questions, between the freight producers of this country far and wide and the freight and produce carrying portion of the community, when you come to adjust these delicate questions as to interests impigned, when all interests may be heard and equally as well all interests may be made better'and may be helped by this commission what is the principle that should guide you? The very first thing that should have been done was not to find places for political adherents, that two of these places were found for and nothing else. The exigencies of party, the desire to provide a place for a man that they no longer wanted to keep in the cabinet; and the desire to find a place for another gentleman whom they despised in their hearts, from whom they had withdrawn their confidence and whose influence and power they dreaded at the time of the coming election, caused them to make these appointments. So much for that branch of the question.

Now, I want to go to another. . I am not going to lay down any principle as to puisne judges, or county court judges, or promotions in any way. I am not an authority upon that subject. But, if I can give a common sense view I will leave it to the members of this House to say whether this Mr, FOSTER. *

principle is a good one to be adopted in this country. If from a junior county court judge up to the Supreme Court it is known that there is a possibility of promotion from the lowest to the highest, and that it can be got if you can bring the proper influence to bear upon the appointing party I want to know if that conduces to the stable and equable frame of mind that should characterize justice in this county ? Why. Sir. a lawyer who is appointed as a judge has to leave behind him all party and political considerations. They should never again enter into his judgment. He becomes the protector of the grievances and the innocence and the rights of the people of this country in the sacred name and in the majesty of the law. He should put aside from himself all thoughts of political preferment, should give his whole attention to his justice and his law and his equity, and if he has promotions in view they should be promotions which come only naturally within the sphere of his own proper administration of justice. How different it is ! If you establish one political office can you not establish another ? Is this a political office or is it not ? It is a political office. It is a political office just the same as a post office inspectorship is a political office, It is a political office just the same as the position of an officer of the Marine and Fisheries Department is a political office. Here you have a political office and you have the statement made to all these superior court justices that it is possible for any one of them at some time, if he can only bring the proper influence to bear to become the recipient of that office. Does that militate in favour of or militate against a proper and equitable administration of justice ? If you can create one you can create another and you may have a series of political appointments to which judges may look for a betterment of their salaries and their positions, provided they can make sufficient court in order to get the appointments from whom these appointments come. In the matter of judges and in the matter of the appointment of the judges it has been a credit to our country in the past, and I hope it will always be that politics do not enter as an overwhelming consideration into the appointments of judges. They have been appointed for their fitness. When they went on the bench they were supposed to be dead to all the currents and excitements of political and party work, to have gone into the serene, staid and steady atmosphere where justice is administered and the laws are interpreted to the people of the country. You can quote all the precedents you like for having judges translated from a lower position to a higher in his own court and in his own sphere, but it is outside of that entirely when you create a separate political office and make it possible for judges to look to that office for a betterment of their salaries and positions.

That is why I think it is not the best thing to do and will not have the best influence upon the judiciary and justice of this country- Now, I want to ask my right hon. friend (Sir Wilfrid Laurier), a question : Did he and the lion. Minister of Justice (Mr. Fitzpatrick) sit down together and approach the question something like this : We have lost our dear chairman of the Railway Commission.

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LIB

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

Liberal

Mr. FITZPATRICK.

By whose fault ?

Mr. FOSTER-If anybody knows the government ought to. He was their servant.

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IND

February 3, 1905