April 9, 1918

L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

Those words will be inserted at the beginning of subsection (2) , before the word " unless "?

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

Instead of section (2) we will have a proviso to the first subsection. I desire further to amend it by substituting in the second line of the subsection, before the words " ad hoc," the word1 " the," instead of " an."

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

Striking out the wbrds

" ad hoc? "

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

No, but substituting the definite article ' the " for " an." I wish

also to amend the third line of the present section (2) by striking out after the word " judge " the words " from a provincial court." The effect of this modification would be to make the requirement that where one of the two judges who is absent or ill, and who is to be replaced, is one of the two judges which by the statutes are required to be judges of the province of Quebec, that in this case application should be made for the judge of the provincial court wherever it is a matter of cases coming from the province of Quebec.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

It would be a King's Bench judge?

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

Yes, or if the Chief Justice chose to designate a judge of the Superior Court, I do not think he would be limited in that regard. The application would go to the Chief Justice of the provincial court. .1 presume he would designate a judge of his own court, I think it would be probably the proper action on the part of the Chief Justice. Of course, there might be cases where it wbuld be difficult to do that, because an appeal might be from the judgment of that very court of appeal in which possibly one of the judges of the appeal court might have sat.

II would beg further to amend subsection

(2) which, if my amendment carries, becomes the proviso, by adding at the end thereof the words " designated as above provided," so that the provision would be that he " shall be a judge of the court of King's Bench or a judge of the Superior Court of that province designated as above provided."

Of beg further to amend subsection (3). This is also an amendment consequent upon the previous change to amend subsection

(3) of section 1, in the first place, by substituting the figure (2) for (3) and in the second ipla-ce by inserting in the second line, after the words "senior puisne judge," the words " 'and where a judge of the provincial court is designated to act, of the letter designating him." That particular subsection made the requisition of the Chief Justice the proof of the authority of the sitting judge, whereas in virtue of the proposed change it will be necessary to have not only a requisition of the Chief Justice but a designation by the Chief Justice of the province to complete the proof of t'he authority. It would be proper, at all events, to provide that, the requisition and the designation shall be the proof of the authority.

Also, following upon the proposed change in .subsection (1) I beg to move to amend subsection (4) by substituting the figure (3) for 'the figure (4), and by inserting after the word " requested " in the second line of the subsection the words " or h.as been so designated," to- provide for the case of the judge who is properly requested, and the case of the judge who is designated.

I beg further to move to amend section (5) hy substituting (4) for (5), and by inserting in the second line of the subsection, after the word " request," the words " or upon such designation." And, finally, to amend subsection 6 by substituting (5) for (6)

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
?

Mr. D@

I understood from the minister during the previous discussion on this Bill that he would have no objection to calling upon the second judge of the Exchequer Court in such cases.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I should have no objection to allowing the second judge to sit, but as we are dealing with the final Court of Appeal of Canada it seemed to me that we should not provide for the sitting of a judge who, in the particular court to which he belongs, is the assistant judge. The reason why it had been considered desirable that the assistant judge should sit was in order to have, in cases from Quebec, and in cases where the absent judge was a Quebec judge, a judge versed in the law of that province. That object is attained hy the provision that where the absent judge is one of the two judges required by the statute to be judges of the province of Quebec, and where the case to he dealt with is a case from that province, there shall be asked for and designated a judge of the Superior Court or Court of the King's Bench of the province of Quebec. So that the provision as it now stands, with the amendment, meets the necessity of having at all times, in cases from Quebec, the statutory number of Quebec judges. It did not seem, therefore, desirable that we should specify or designate the assistant judge of the Exchequer court when we had open to us the entire field of provincial judges.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Hugh Boulton Morphy

Unionist

Mr. MORPHY:

A Bill of such importance as this cannot be properly considered until it is printed in the form which it will assume with the amendments. Five or six amendments have been proposed and discussed; 'some members have not heard them, and some cannot understand them. Moreover, a large number of members have not heard the remarks of the minister, and I suggest that he have the Bill referred

back and reintroduced in proper form so that we may consider it intelligently.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

Under ordinary circumstances I should be glad to meet this suggestion, but I should like to point out that the Supreme Court is prevented from carrying on its business at present because Mr. Justice Duff Js engaged in the hearing of appeals under the Military Service Act, and, by reason of the illness of one of the other judges, it is not possible for five judges to sit in court. Accordingly, they adjourned their Court until April 15 in the hope that this measure would be adopted in time to enable them to proceed with the business. The situation is, perhaps, peculiarly urgent because of the fact that in the last term they were suffering largely from the same difficulty, and were in a position to hear only those cases in which the parties were wdl-ing to proceed with four judges. Though the amendments are numerous, they are all, with the exception of a slight modification making subsection 2 a proviso instead of a subsection, the consequence of one change, which is as follows: under the Bill as introduced it was provided that where there was need for an ad hoc judge the chief justice or senior puisne judge of the court could himself select that judge. The effect of the amendment is that where there is need for an ad hoc judge, the Chief Justice of the Supreme Court may address himself only to the Chief Justice of any of the provinces, asking him to provide an ad hoc judge. The Chief Justice so applied to would thereupon, no doubt in consultation with his judges, designate the particular one who was to act. That is the entire effect of the proposed amendment. The others, with one exception, are the necessary consequences of making that change. Then there is an amendment merely to meet what was suggested the

other evening: that in cases coming from Quebec you might not have a court constituted in compliance with the express requirements of the statute, which makes it necessary that there shall be two judges taken from the bar of the province of Quebec. The amendment provides that in such a case a judge shall be applied for rather than a judge of the Exchequer Court taken. I should be glad, therefore, if the committee could see its way clear to deal with this matter to-day. If, of course, hon. gentlemen feel that they have not had proper opportunity of fully grasping the effect of the amendments, we must meet that; I would not ask the committee or the

House to pass a measure without having ample opportunity of becoming thoroughly familiar with its provisions. But I may add that if the measure is to enable the Supreme Court to proceed on the 15th, it will have to go through the Senate as well as through this House and receive the assent of the Governor General during the present week.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Hugh Boulton Morphy

Unionist

Mr. MORPHY:

I appreciate to the full the argument of the Minister of Justice, but I still feel like adhering to the request I have made, that the Bill be brought back printed as it will appear with the amendments, for further discussion. The minister has told us that through his importuning all the Superior Court judges of the province of Quebec are sitting on the tribunals. I suggest that he take the balance of the Supreme Court judges that are here and put them with Mr. Duff in order that the work may be speeded up. In the meantime, the Supreme Court work can be postponed for a little while, notwithstanding the great importance of the cases that may be awaiting trial.

I am pleased that my main objection, about which I purposed saying a word, was removed by the amendment striking out the name of the Chief Justice in section 1. Nevertheless, the measure is a very far-reaching one; it extends over the jurisdiction of the whole country, and there may be some points to ibe raised even as the Bill stands now. I do not think it is fair to ask the House, on such an important measure as this, to take absolutely the iword of the Minister of Justice for everything. As we are supposed to be individuals here, we are surely entitled to consider for ourselves the full effect of any measure that is brought before the House, I again request the minister to have the Bill referred back, reprinted and introduced' in the proper form, even although that may cause some delay.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
L LIB

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

I, for my part, take very strong objection to the suggestion of my hon. friend from North Perth (Mr. Morphy). The Bill has 'been introduced and is in the possession of the House. When it has gone out oi Committee, it can be reprinted'. But I do not think it is in the power of this Committee to order that the Bill be reprinted with amendments that have not been accepted by the Committee. There may be some discussion on the amendments, and objections may be taken to them. I think, therefore, before we order the reprinting of the Bill, we must discuss the

Bill as it stands, and then -when it is accepted by this Committee, it may toe reprinted.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Thomas Mitchell March Tweedie

Unionist

Mr. TWEEDIE:

I regret very much that I have not heard the remarks of the Minister of Justice in regard to this Bill. While it is a very short Bill, it is very important, and it lays down a principle in connection with the judiciary of this country which should receive very careful consideration before any change is made in the general practice. Under this Bill, we give the Government power to fill temporarily vacancies which may toe caused toy the illness of members of the Supreme Court of Canada; but when we do that, we should not go any further, and the Governor in Council should perform its function in connection with temporarily filling these vacancies just as it does -in connection, with a permanent appointment to the bench. It is perhaps unfair to this country to place such a power-as would toe- done under this- Bill as originally printed, or as it is proposed to toe amended by the Minister of Justice-in the hands of the Chief Justice of Canada or the Chief Justice of .the Supreme Court of any province. Perhaps it would be wise if the Government would adhere to the original practice, and have these appointments made, even although they are made temporarily, toy an Order in Council, for which the Government shall toe responsible. As to delay in having these amendments printed, I call the attention of the House to the fact that, prior to the calling together of the House of Commons, there was dislocation of the work of the Supreme Court of Canada. About a month before Parliament assembled the Supreme Court of Canada had to adjourn its sittings by reason of the illness of two of its members. If there had been absolute necessity for haste this matter might have been disposed of much earlier in the session than now. Personally, I am desirous of seeing in type the amendments which the Minister of Justice proposes to make to this Bill, and then I shall be able to vote intelligently on it.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
L LIB

Rodolphe Lemieux

Laurier Liberal

Mr. LEMIEUX:

I wish to press once more the suggestion I made the other day to the Minister of Justice about the assistant judge of the Exchequer -Court. The minister will remember that when the Supreme Court was constituted Exchequer work was done by the Supreme Court. It was only in after years that a separate jurisdiction was created, and that the Exchequer Court came into existence. At first there was only one

judge of the Exchequer Court, Mr. Justice Burtoidge. Then the present incumbent, Sir Walter Cassels, wa-s appointed, and an assistant judge was appointed with the same jurisdiction, the only difference toeing that one was the senior judge and the other the junior. My hon. friend is right in -stating that the -Chief Justice of the Supreme Court may request the Chief Justice of any Superior Court to delegate some one to act as judge ad hoc. Would it not -be more proper and more in the interests of the litigants, inasmuch as iit would save time, for the chief justice to request the judge of the Exchequer Court, who originally had the same jurisdiction as he has, either to give his services as judge ad hoc or to ask his assistant to act in his stead? The reason is obvious, because it may happen that the Chief Judge of the Exchequer Court may be away. The Exchequer Court judges travel from one part of the country to another. Sometimes you have Mr. Justice Audette or Sir Walter iCassel-s in Prince Edward Island, or Quebec or Nova Scotia. One of the two is generally in Ottawa. There is no distinction as between their jurisdiction; it is the -same except that the one is Chief Judge and the other is Assistant Judge. It seems to me it would serve the ends of justice, and it may on many occasions save time to get right in the same building the very man whom the Supreme -Court would like to have to fill a gap. I shall, under these circumstances, give notice of an amendment to add to line sixteen, after the word " judge," the words " or the assistant judge."

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I appreciate what the leader of the Opposition has pointed out as to the impossibility, so far as I can see it, of our reprinting the Bill -at this stage with the amendments in the position in which they now stand. At the same time, I have every desire in the world that the measure should not be dealt with, without every hon. member feeling he has had every opportunity to grasp its full effect and significance. Under those circumstances, we might proceed to-day in committee, and if, after we -have got through the committee stage of the Bill, hon. members still feel they desire -further time for consideration, we might perhaps not press the Bill further to-day. It might still be possible, if we get this Bill through this House to-morrow, to attain the result, which I think is desirable, of having the measure passed, if the House desires it should be passed, in time to put the court -in a position to act next week.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

The Bill can be printed after it has gone through committee and before the third reading.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

We could have the Bill reprinted before it goes to third1 reading, and then everybody will have an appor-tunity to grasp its meaning and effect.

Mr. TWEEDIiE: Will it be brought back into committee again after it is reprinted so that we may see the amendments? I have not heard a word the Minister of Justice has said to-day and I am particularly interested in the first clause of the Bill.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

I understand

that the Minister of Justice proposes to amend the Act by requiring the Chief Justice of the Supreme Court of Canada to ask the Chief Justice of a provincial court to designate a judge of his court who can be spared for the purpose of attending to the duties of an ad hoc judge in the Supreme Court olf Canada, and thereupon it will become the duty of t'he Chief Justice of the Provincial Court to designate sudh a judge. When so designated, he becomes an ad hoc judge for the purpose of this Act.

Mr. TWEED!E: What limitations are

there as to the particular province in which the Chief Justice shall be requested1 to make an appointment?

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

If the judge is to .supply the place of one of the judges from the province of Quebec, the application will be made to the Chief Justice of the province of Quebec. If the judge is to supply the place of one of those who' have been selected in the other provinces, the Chief Justice of the Supreme Court would apply to the Chief Justice of the highest court of the other province.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mir. DOHERTY:

It" is only in the one

exceptional instance where these two things combine, namely, that the judge to be replaced is a judge originally from the province of Quebec, and secondly, that the case to be dealt with came from that province, that it is imperatively required that the Chief Justice shall go to a particular province. The reason for that is obvious: We have to meet the statutory requirements that there shall be two judges appointed from the province of Quebec. With regard to. the other provinces, as the Act stands at present, the Chief Justice of the Supreme Court might apply to the Chief Justice of any province. It might be desirable to provide that where the judge who had to be replaced came from some province other than Quebec, and the case it-

self came from some other' province than Quebec, in that case the Chief Justice should address himselif to the Chief Justice of some of the other provinces. That was wfhat I had in mind. I am not quite certain if that is made absolutely clear in the Bill, hut I shall be very glad to make it quite clear , if, in the judgment of the com mittee, that method is thought the most desirable.

Topic:   SUPREME COURT ACT AMENDMENT.
Subtopic:   PROVISION FOR APPOINTMENT OF A JUDGE AD HOC.
Permalink

April 9, 1918