April 9, 1918

UNION

Thomas Mitchell March Tweedie

Unionist

Mr. TWEEDIE:

Is there any objection to allowing the Governor in Council to make these temporary appointments? In my opinion there is no need to pass legislation which will involve restrictions as to the appointments which may be made by the. Chief Justice of a province with the assistance of the Chief Justice of the Supreme Court of Canada. I think if the Governor in Council w'ould simply take the responsibility of making these appointments, in the same way that he makes permanent appointments, our troubles would be at an end.

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

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

Unionist

Mr. DOHERTY:

It is hardly proper to speak of these as appointments. It is simply calling upon somebody to perform duties of essentially a temporary character, and if, to meet that requirement, we legislate, as we would have to legislate, to empower the Governor in Council to appoint an ad hoc judge, we should create a situation where an assistant judge was appointed to a specific office and would hold that judicial office for only a limited period of time. I would submit to the committee that it is not desirable to have men act as judges for only a little while-men who are taken from the practice of the profession to sit as judges for perhaps a month or two, and then return to the practice of that profession. I think that would hardly be consistent with the idea, which is a very important and very fundamental one, that judges dealing with cases should be men whose entire work is of a judicial nature-* men set apart for that purpose. By the method we propose we secure that the men who will act are men who are already judges, and that the individual man will be designated by the man who is in the best position to judge which one of those judges can be spared to the best advantage, from the point of view of the ordinary business of his court. It is true we might by statute empower the Governor in Council to appoint a man and to select him from among the judges of the other courts, hut that would be putting in the hands of the Governor in Council the determination as to which judge in any

particular province could best be spared from the judicial work of that province.

If you put that power in the hands of the Governor in Council, acting, as it would seem to me he ought to act, if 'he wanted to act wisely, he would consult, I think, with the Chief Justice of the Court from which he was going to take a judge .away; that is one consideration. There is another consideration which I submit is 4 p.m. not * without importance, and it is this: I think it is undesirable to create a situation where we would have a particular class of appointments- appointments, it is true, not carrying with them any financial remuneration, but still implying the very high honour of being asked to sit in the Supreme Court of Canada- which would be in the hands of the Government of the day to make, and which the Government of the day would be constrained to make as among the judges. Personally I think thiat would create a situation where it 'might he suggested that the judges were liable to have ambitions for something which was in the gift of the Government. Anything tending to create that position is undesirable from the point of view of maintaining the principle which I think is oi great importance, that the judicial officer should be acting in a position of absolute independence and without anything before his eyes -as an object of ambition which is in the gift of the Government of the day. The question whether what is desired to be done had better 'be done by direct appointment of the Governor in Council or by some such method as ' we here propose, whereby we leave the designation of the individual who is temporarily to act to the Chief Justices, had very careful consideration before the Bill was introduced. I think that the proposed amendment improves what was originally contemplated, but as regards the choice between the Bill as now proposed to be amended, and a system by which the Governor in Council -would make the appointments from among the judges, I must confess that after the best consideration I have been able to give to it, though I would of course defer to the opinion of the committee, it seems to me the balance of advantage is in favour of leaving the selection of the individual to the judicial officer in the very best position to determine who, among the judges, can best be spared. I think that there is a further objection to the appointment of these men coming from the Governor General in Council. If the Governor General in Council designates a man to act as judge ad litoc, in the

Supreme Court, and the circumstances are such that he remains in that position for a term or two, and a vacancy then occurs,

I think, as human nature is constituted, he finds himself face to face with a gentleman who will think that in some way he has a claim, or a particular right, to be appointed to the vacancy that occurs. That is an undesirable state of affairs. In so far as it is humanly possible, when the Government is called upon to appoint a judge, and particularly a judge of the highest court in the country, it ought to be able to approach the question of who ought to be appointed as free as possible from any claims to preference upon the part of anybody. I have tried to put before the committee the reasons which, as the result of careful consideration, led us to the conclusion that it would be better to have the matter dealt with in this way through the intervention of the existing judges than by the direct action of the Governor General in Council. There are possible objections which may be suggested to the method originally proposed. I have tried to make clear to the committee-I am sorry if I did not make myself heard by everybody-the reason which led us to think that this modification would be an improvement on what was originally proposed.

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

Robert Lorne Richardson

Unionist

Mr. RICHARDSON:

(I woiuld like to know if the question of remuneration is dealt with in the. Bill and if there is any change in the remuneration which a provincial judge will receive when he is appointed?

Mr. DOHERTY. No, he will receive no additional salary. All be will receive will be his travelling expenses and living allowance just as he -would if he went from one city to another to, perform the duties of his own court. There is_ no remuneration attached.

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

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

There are five or six amendments before the Chair which means that the whole section is now being discussed as it was hist put before the House. I understand the first part of the remarks of my hon. friend the Minister of Justice, but not the last part. I suppose they were a repetition of the remarks made to my hon. friend from Calgary (Mr. Tweedie). The Minister of Justice knows very well that in the province of Quebec certain action ihas been taken to remedy our judicial system and I have been one of the prominent kickers as to the constitution of our Court of Review. My objection is based upon the fact that our Court of Review is composed of three judges and that these

three judges, when they sit in Montreal, are taken from among the judges of the Superior Court of the district of Montreal. Every time there is an appeal before them they have to pass upon the judgment of one of their confreres sitting on the same tribunal. If the appeal is from the judgment of the Superior Court of the district of Quebec, there are three judges chosen from the Superior Court of that district and these same judges for the time being sit as judges of the Appeal Court and have to pass upon the judgment of their confreres. I do not mention this because T have any suspicion about thehonpsty or righteousness of the judgments of those gentlemen sitting in review but there is a feeling about it among the public. I have often heard it said among business men that they could not understand how it was that these judges should be sitting in the same court. It is only natural that they should consult with one another when a case comes up. My honourable friend the Minister of Justice knows better than any one else, because of his long experience while practising at the bar and while occupying a position on the bench, that judges consult with each other at the court house when an intricate or a new question, comes before the court for decision. That being the case, the first objection I take to this Bill is because of the provision it makes with regard to a judge of the Exchequer Court. The Exchequer Court is a court of exclusive federal jurisdiction. It is a Federal tribunal and when you appeal from any decision of the Exchequer Court you go before the Supreme Court and the first man you want to appoint to the Supreme Court is the man whose judgments are subject to revision by that court.

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

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

Unionist

Mr. DOHERTY:

In that case the judge cf the Exchequer Court would be unable +o sit. If it is necessary we will put in a proper provision. He is not to be applied to if he is absent or unable to sit. If there is any ambiguity about that we will correct anything that would make it possible to ask him to sit in appeal on his own judgment.

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

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

I am sorry if my hon. friend has ever suspected that to be my view. I do not understand1 the Bill in that way and I do not believe that you would ask the Exchequer Court judge to sit on the bench to pass on his own- judgments. It is not the fact that he would expect to sit on his own judgments to which I take exception because I know he would not. He would not be a judge of the Exchequer

Court if he went so far, or if he were so wanting in self respect, to sit and pass upon his own judgments. But there is the idea of a judge of the only federal court in Canada with original jurisdiction sitting as a judge of an appeal court which has to pass upon his own judgments. I do not say that he will sit on a case upon which he has already passed but the fact of his being part of the tribunal is not absolutely right. There is a shadow of doubt about it. I have the idea but I cannot express it. Among the judges of a court, as I think my brother lawyers well know, there is a certain solidarity.

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

Andrew Ross McMaster

Laurier Liberal

Mr. McMASTER:

Camaraderie.

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

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

More than camaraderie because when they meet at the court house they consult upon any important or intricate question. Judge So-and-so has given a certain decision and a judge, of course, is anxious to justify his judgments and to have them confirmed by the higher court; therefore judges consult their confreres. There is a close relationship between the judges. I do not think that the judge of the Exchequer court ought to sit as a judge of the Supreme court.

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

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

Unionist

Mr. DOHERTY:

Would the suggestion of the hon. gentleman be that it would he better to eliminate the judge of the Exchequer court?

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

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

Certainly not; I do not mean to abolish the Exchequer court.

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

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

Unionist

Mr. DOHERTY:

But to eliminate him as a judge to be called upon to act as a judge ad hoc in the Supreme court.

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

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

What I mean is this:

instead of appointing a judge of the Supreme -Go-urt to investigate all t'he scandals of the late Government let that judge remain in bis own court and attend to the discharge of the duties which are imposed upon him by statute. If a judge falls ill, or the increase in- the business of the country demands it, why not increase the number of judges, the same as has been done in the district where ll reside? There owing .to the industrial growth, the litigation has been increasing, and the existing judges could not overtake the work, and therefore other judges were drawn- from Montreal, Artbabaslk'a, and other districts. If litigation is increasing rapidly the first remedy to apply is to return those jud'ges, who are now doing outside work, to the bench of their own court and make them stay there. The second remedy I would suggest is to appoint another judge of the

Supreme Court, if the volume of business is too great for the present staff. If that were done it "would give great satisfaction.

I am confining my remarks to the province of Quebec because I am not familiar with the constitution of the courts in other provinces. 'Taking that province let me say that there is not a case which goes to the Supreme Court which has not originated from- the Superior Court. If my learned friend (Mr. Doherty) is going to take a judge from the Court of King's Bench, the chances . are that the case has originated in the Superior Court, and from there has gone to the Court of King's Bench, and the appeal to the Supreme Court is from the Court of King's Bench. The possible exception may be a judge taken from the Circuit Court in Montreal, where the judges have Circuit Court duties exclusively and no other jurisdicion. In my opinion, what is proposed is not a proper way to deal with litigation; the judges of the highest court in the land should he kept absolutely apart from any influence or contact whatsoever with any matter which might weigh with them when they render their decision. In taking this position, however, I want the committee clearly to understand that I do not entertain the slightest suspicion about the character of any of the judges iwiho may he called upon to decide appeals coming before the Supreme Court. My hon. friend' from Calgary (M!r. Tweedie) stated a moment ago that he would' like to see an outsider appointed, by the Governor General in Council. Speaking for myself, I do not concur in that.

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

Thomas Mitchell March Tweedie

Unionist

Mr. TWEEDIE:

The hon. gentleman did not correctly gather the purport of my remarks.

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

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

I thought my hon. friend wanted an outside barrister appointed by the Governor in Council to act as Supreme Court judge ad hoc.

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

Thomas Mitchell March Tweedie

Unionist

Mr. TWEEDIE:

I said that the Governor in Council should take the responsibility of filling vacancies temporarily ( the same as they take the responsibility of making permanent appointments to the Bench, I do not care whether it be a barrister, or a judge of any Superior Court or Exchequer Court.

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

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

With respect to the appointment of an outsider, the Minister of Justice has answered that suggestion. If :t is proposed to appoint a judge of the Superior Court for the Supreme Court my position is the same whether he be appointed by the Governor in Council, by the Superior Court, or by the Chief Justice of the Court from which he is drawn. My idea is that Courts of Appeal should not be connected in any way, whether temporarily or otherwise, with any justice or any court of inferior jurisdiction upon whose judgment they have to pass. That is one of the defects I find in our Court of Review, and it is one of the pleas I have been making for a long time that we should have a special Court of Review, composed of three judges. Under the circumstances it will be possible to secure great improvement in the judicial procedure by wise thought and careful deliberation over this matter. Our tribunals ought to be organized in such a manner as to render justice to all litigants in this country. At the present time tnere may be circumstances which justify the Government in utilizing the knowledge and experience of certain judges in other directions, but such provision would only be temporary, whereas what is proposed by the present legislation is of a permanent character. Now, if it is proposed to enact permanent legislation 'because of prevailing extraordinary or abnormal conditions, we ought to think twice before we pass such a law. Mr. Justice Duff will conclude the consideration of these war-time appeals some day, and then he will revert to his normal position in the Supreme Court and stay there. Mr. Justice Brodeur will soon recover his health, I hope, and will be able to sit all the time, as heretofore, in the Supreme Court. If the Minister of Justice considers, from the reports made to him, or as a result of his own observations, that the business of the Supreme Court has increased to such an extent as to warrant it, why not do as is done in other courts where the business becomes too great for the judges who have to administer it-why not appoint another judge. That suggestion, I submit, is worthy of the consideration of the committee. I am perfectly indifferent in the matter because I shall not suffer very much whether my suggestion is carried out or not, but I think the principle proposed to be adopted is not -I will not say vicious because that implies a meaning contrary to what I have in mind-is not a correct one, to have a man pass upon the judgment of any of his colleagues who have been acting or sitting in a particular court.

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

Jean-Joseph Denis

Laurier Liberal

Mr. J. J. DENIS (Joliette):

I agree with the hon. member for Three Rivers in the opinion that it is a great mistake to have judges stepping from one jurisdiction to another. The hon. gentleman (Mr. Bureau)

has just mentioned that he is one of the kickers with respect to the Court of Review. Let me say that he is not the only one, but that practically all the lawyers that I know of in the province of Quebec, or in the district of Montreal, are also kickers with respect to that particular court. In French it is styled the Cour de Revision, but many have called it a Court of Confirmation, because its function is to confirm judgments. If we take the record of that court we will find that it allows appeals at the ratio of perhaps one in ten cases. This does not mean that the judgments of the Court of Review are bad. Nor is there any intention in this discussion, as my hon. friend (Mr. Bureau) has just said, of casting any reflection on the reputation of the Court of Review. But I maintain that when the Court of Review in Montreal hears from six to eight- or ten cases each day for three or four days in succession, the court cannot fully study the records and render to them the attention which they deserve. What is true of the Court of Review should be true of the other courts; but the main point is this: It is not right and proper that judges in one tribunal should sit as judges in another tribunal.

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

Jacques Bureau

Laurier Liberal

Mr. BUREALT:

Hear, hear.

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

Jean-Joseph Denis

Laurier Liberal

Mr. DENIS:

We know that such is the case 'to-day, and any lawyer who practises in the province of Quebec is aware of it also. It is only right that judges should consult among themselves. It is only right that the five judges of the Court of Appeal should consult, but I do not think it is right that the judges of the Superior Court should consult among themselves and after that that their judgments should be revised by other judges of the Superior Ccurt, because it is inevitable that it will often happen that when a judge of the Superior Court consults with his confreres about a case, the same case may come before the Court of Review, and one of the three judges of that court, who has been consulted before, would be sitting in the Court of Review. * I do not think that is right or fair. The same principle applies here. My hon. friend has said that this Government is well able to provide the country with judges. I think that if an advertisement were put in the newspapers we could get as many judges as we need; and I do not think that in order to get a supply such a step should be necessary. There are plenty of learned and well-read lawyers in the country out of whom the Government can make judges. I do not want to launch out too far, but perhaps I may go so far as to say that it is bad enough that

judges should be named for life, without taking a judge who is appointed for life and who has no account to render to anybody but his own conscience, and transfer him from one court to another. Consequently, Mr. Chairman, I follow the leadership of the hon. member for Three Rivers in the conviction that this Bill should not be accepted.

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

Georges Henri Boivin (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Laurier Liberal

The CHAIRMAN:

Is it the pleasure of the Committee to adopt subsection (1) as amended?

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

April 9, 1918