April 9, 1918

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Mr. D@

I do not think that it is a good principle to adopt that the Government should appoint a judge or judges in special cases when the properly constituted judges are unable to sit. The people would complain of these appointments; they would certainly be displeased, and would not believe it to be a good principle. Moreover, the principle of the Bill in every way is wrong. I support very strongly the suggestion of the member for Three Rivers; let us appoint another judge of the Supreme Court, if necessary. The minister knows well the position 0* the Superior Court in the province of Quebec; we have no judges to spare, and if any move in the matter of appointment is to be made, a good move would be to appoint someone to that Superior Court. The business of the Quebec courts is suffering, especially during certain months, and I suggest that the Minister of Justice look into the matter. -

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

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

Laurier Liberal

The CHAIRMAN:

Shall the amendment carry?

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

Hugh Boulton Morphy

Unionist

Mr. MORPHY:

No.

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 do not wish to be understood as having stated that if any judge was to be taken from any Superior Court or inferior tribunal to sit ad hoc in the Supreme Court, he ought to be appointed by the Governor in Council. I say that judges should not be taken from their jurisdiction. The appointment of judges in such cases

by the Governor in Council would be radically bad. The chief justice would at least be able to tell what judge he could dispense with or what judge would have more time to spare than another; while the Governor in Council could not possibly be familiar with any of these conditions.

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

Emmanuel Berchmans Devlin

Laurier Liberal

Mr. DEVLIN:

I am heartily in sympathy with the measure brought down by the Minister of Justice. I feel that no man is more competent to express an opinion as to what men should be chosen to sit on cases in the Supreme Court than the chief justice of the court to which the application is made. From the experience which the chief justice has had in dealing with the particular judges of the court, he is, it seems to me, in a position to know who has the most talent, who has the most experience, who is the best versed) in law. I readily support the Minister of Justice'.

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


L LIB

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

Laurier Liberal

The CHAIRMAN:

Mr. Lemieux moves

to further amend clause 1 by adding to line sixteen, after the word "judge" the foil-owing words "or the assistant judge." The clause "will then read:

-as an ad hoc judge, for such period as may he necessary, of the judge or the asistant judge of 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:

I do not want to appear as being in the position of criticising in any way or suggesting that the assistant judge of the Exchequer Court is not, speaking of him as an individual, in every way thoroughly competent, but I do think it is incongruous that, when we are dealing with providing a judge for the ultimate appellate court of the country, we should, in preference to the chief justices and the judges of all the higher courts of the provinces, call in a gentleman who, however high his qualities, does hold the position of assistant judge in the court to which he has been appointed. I do not wish, as I have said, to suggest that that implies any lack of qualification upon his part, but at the same time it does not seem to me to be desirable that we should take an assistant judge of any court and place him in the position of sitting in the ultimate tribunal. There is also this that might be pointed out as a practical consequence, namely, that you will create, a situation in which, although the letter and the spirit of the law is that you f-ully meet the special system of law in Quebec by providing two judges from that province, you will, in every case, even in cases coming from other provinces, where you need an ad hoc judge

-if the judge lacking is from some other province and the cases come from some other province-be compelled to have three judges sitting from the province of Quebec. While we all want to see that the statutory rights are recognized, on the other hand, there is this ito be considered from the point of view of the other provinces, that we should not impose upon them the possible absolute necessity of trying the cases in that way. I would suggest to the hon. gentleman that there is not anything of sufficient importance involved in his suggested amendment that should prevent him from reconsidering the desirability of insisting upon it.

Mr. LElMIE.UX: I am not at all converted by the argument of the minister. It seems to me that the judges of the superior courts of the provinces should, only in exceptional circumstances, be called upon to sit as judges ad hoc in the Supreme Court of Canada. The first call of the chief justice of Canada-and in such case he would have to exercise his own judgment-should be at the Exchequer Court where he has two judges who heretofore would have been members of the Supreme Court; that is to say, under the old system that prevailed they would be members of the Supreme Court, the Exchequer jurisdiction being exercised by the Supreme Court. There he has two judges with exactly the same jurisdiction, except that the one is junior and the other is senior. Having those two men available, you provide for all contingencies and emergencies, and it sterns to me, that in the interest of justice, without any additional cost, without any travelling expenses, the chief justice of the Supreme Court should call uipon the one or the other. 'It may be that to-day Sir Walter Oassels is in British Columbia or Mr. Justice Audette is in Prince Edward Island, but at all events there is always one of the two in Ottawa, and the chief justice can call upon either of them to sit as ad hoc judge. It is only under extraordinary circumstances that we should rely on the Superior Courts of the provinces* We should not deprive the provinces of their judges, because, as the minister knows, the courts are generally congested, and they will he congested for a long period of time. The Exchequer Court is sitting in Ottawa. It is admitted that the two judges have equal jurisdiction. It seems to me, therefore, they should he called upon to sit, the one as well as the other. Why should we make this invidious comparison between the chief justice and his assistant? While one is the senior and the other is the junior,

34i

they have exactly the same jurisdiction; they hear exactly the same oases; they interpret exactly the same statutes. By permitting the appointment of either of them as ad hoc judge, you woiuld save money and you would save time in emergencies. Let us take a case in point. The minister informed the committee a moment ago that the legal fraternity could not proceed to-day before the Supreme Court because one or two of the judges are away. Mr. Justice Duff is sitting as Central Appeal Judge, and Sir Louis Davies is, I think, ill. The dourt, therefore, cannot sit. According to this first section, if it is not amended, the chief justice would have to inform, let us say, the chief justice of Ontario, that he is deprived of two of his brother judges on the bench. This would entail shine correspondence, and the chief justice of Ontario would have to select two of his judges to sit in the Supreme Court. This means a lot of correspondence and delay, whilst the chief justice of the Supreme Court of Canada can, by pressing a button in his office, send for one of the two judges of the Exchequer Court and have him sit on that very day. The matter is so clear I am surprised that my good friend the Minister of Justice doer not yield to my appeal.

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

Emmanuel Berchmans Devlin

Laurier Liberal

Mr. DEVLIN:

I am afraid I would make a poor member of a Union party. Just a moment ago I agreed with the Minister of Justice in saying that I believe the chief justice of the province was the better man to choose the judge. I now find myself in the (position of differing from him in his idea of ostracizing one of the two judges of the Exchequer Court. I know the Minister of Justice is not doing this because he feels one is less competent than the other, but simply because the one is the assistant of the other. I support the amendment of my hon. friend (Mr. Lemieux) because in choosing one of the members of a certain bench to sit in special cases of the Supreme Court, I do not think it is right to cast the stigma on the other judge on that same bench that, simply because he is assistant judge, he is not qualified to sit with his brother judge and try the cases.

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:

I am very sorry indeed that one of my hon. friends should look upon this as being invidious, and the other as casting a stigma or ostracizing. Certainly nothing was farther from my mind. I must confess I fail to grasp why it is considered that there is any ostracism or any reflection whatever cast on the capacity of

an individual gentleman, when in enacting a statute it is provided that a man holding another and a different office from his shall be the person called upon to do a particular work. I do not think there is any reflection upon a gentleman because he is an assistant judge while someone else is the judge, nor any reflection because one may be a puisne judge and somebody else a chief justice. It might appear proper, and there are not wanting instances where powers and functions are conferred upon the chief justice as such. Does anybody say that that iis a reflection on any one else? I entertain the highest respect for Mr. Justice Audette, and I am very sorry it should be insisted upon that this is in any way intended to cast the slightest reflection upon him. It is not a question of personality at all. Parliament in its wisdom thought it was right that there should not be two judges on absolutely the same footing in the Exchequer Court. Parliament so provided, and the gentleman who holds the position of assistant judge accepted that office and accepted that decision of Parliament. I am very sorry the personal equation should be introduced in a matter in which there is nothing personal at all. Whatever the distinction was that Parliament intended to create between a judge and an assistant judge, when we are dealing with the question whether it is wiser and better for us to call upon someone in some other court to sit in the Supreme Court of Canada, and not to call upon the gentleman who holds the position of assistant judge of the Exchequer Court, I repeat, I am sorry it should be insisted that we are casting any reflection on the assistant judge. For my part there is no reflection intended.

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

Herbert Macdonald Mowat

Unionist

Mr. MOWAT:

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

As I understand it, the amendment proposes to insert after the word "judge" in line 16, the words "or assistant judge," and to make a change in the next line by saying "or should they be absent." It seems to me to come down to this: These changes would render almost useless the following language in the section, for as I understand it, either the judge of the Exchequer Court, or the assistant judge thereof is always present in Ottawa, and in consequence no other ad hoc judge would be designated. I think that would be undesirable, because you might get a case like this-in an appeal from the province of Ontario, two regular judges of the Supreme Court might be unavailable; you would then require an ad hoc judge. The judge of the Exchequer Court might be absent, in which case the assistant judge, Mr. Justice Audette, would be called upon to preside. You might then have the Supreme Court constituted of three judges from the province of Quebec trying an appeal from the province of Ontario. I do not think that would be any more desirable than having three or more judges from the province of Ontario, or some province other than Quebec trying an appeal from the province of Quebec. It seems to me that the section as worded is more desirable than -as proposed to be amended by my hon. friend from Maisonneuve.

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

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

If the amendment proposed by my hon. friend from Maisonneuve (Mr. Lemieux) were to have the consequences which have just been pointed out by my hon. friend (Mr. Boys)

I would altogether agree with him. This takes us back to the formation of the court. Section 6 of the Supreme Court Act reads as follows:

Two at least of the Judges shall be appointed from among the judges of the Court of King's Bench, or of the Superior Court, or the barristers or advocates of the Province of Quebec.

What is the reason of that exceptional provision? When the Act was passed in 1875 establishing the Supreme Court there was great objection in many of the provinces, in Quebec particularly, to having the Supreme Court constituted as a court of appeal to pass upon provincial laws. Many held, as I did myself-I was a young member then-that it would be better to. have a court of appeal, to be known as the Supreme Court, to pass upon the laws of the Dominion alone. But a contrary opinion prevailed and it was made a court of appeal for all the provinces. The province

of Quebec, not being under the common law but under the civil law, it was thought fair that two judges of the court should at least be versed in the civil law and not in the common law only. That, I think, was a wise provision. If the effect of this amendment were to be that three judges versed in the civil law would have to pass upon a case from the province of Ontario, which is under the common law, it would be very unfair. If that should be the consequence I would advise my hon. friend on my right (Mr. Lemieux) not to press his amendment. But, let us look at the Bill. The Bill provides that if there is a judge ad hoc to be appointed, the first choice should fall upon a judge resident in Ottawa. Everybody can understand the advantage wf having a judge resident in Ottawa. There come here lawyers from all parts of the country, from Prince Edward Island to British Columbia, their time is precious; of a sudden a judge cannot sit, the court has no quorum and it is indispensable that the quorum should be filled at once so that it can go on with its business. The first thing that happens is that the judge of the Supreme Court takes a judge sitting in Ottawa-the judge of the 'Court of Exchequer. If there is no judge in the Exchequer Court available, the chief justice of the Supreme Court, or in his absence the senior puisne judge, has to seek one elsewhere. If you say that the Chief Justice of the Supreme Court shall have the power to address himself, first, to the judge of the Exchequer Court, or, if for any reason he is unable to act, then to the assistant judge or to a judge of any provincial Superior Court, leaving a discretion open to the Chief Justice to call either for the Exchequer Court judge or the assistant judge or for a judge in any of the different provinces, the difficulty is obviated.

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

William Alves Boys

Unionist

Mr. BOYS:

That is not the wording of

the section as amended by the hon. member for Maisonneuve.

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

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

Hear, hear. I agree, but I repeat what I said at the beginning: If the wording is such that the

possible consequence might be that three judges from the province of Quebec could not be avoided, or if we should have to take the judgment of three judges from that province, I would advise my hon. friend, (Mr. Lemieux) not to press his amendment because it would not be fair nor in accordance with the principle which was embodied in the Supreme Court Act.

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

William Alves Boys

Unionist

Mr. BOYS:

I understand that the chief justice of the Exchequer Court is away

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


most of the time which would mean that the assistant judge would he called upon to act as the ad hoc judge.


L LIB

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

It would be

sufficient to say in the Bill that-the judge of the Supreme Court should have discretion to call either the judge of the Exchequer Court, or the assistant judge or a provincial judge. I am sure that the judge of the Supreme -Court would always see that there were not more than two judges from the province of Quebec on the bench. If we would not trust to his discretion in that regard it might easily toe provided for tout I do not see why there should be that exclusion, mentioned by the Minister of Justice and by my hion. friend from Simcoe, of the assistant judge of the court of exchequer.

Topic:   * COMMONS
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UNION

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

Unionist

Mr. DOHERTY:

I do not think it is

susceptible of question that, with the amendment in, the provision will reach the results pointed out toy the hon. member for Simcoe because, if we leave it as it stands now and add the amendment of the hon. member from Maisonneuve, it will be imperative fo-r the chief justice of the Supreme Court, before he asks for any provincial judge, to take either the judge of the Exchequer Court or the assistant judge of the Exchequer Court. If the judge of the Exchequer Court be -away it will be imperative upon the chief justice to take the assistant judge. If the absent judge who had to be replaced was a judge from *a province other than Quebec you would have three gentlemen, all of them originally versed in the civil law of Quebec, sitting. If I seized rightly the suggestion of the leader of the Opposition it was that we should remove from the chief justice the obligation in any case of taking the Exchequer -Court judge and leave to him freedom to say whether he will call on the Exchequer Court judge or whether he will call upon the assistant judge, or whether he will call upon the chief justice of a province to give ihim a judge. As the Bill stands now, with the amendment as suggested this afternoon, it has the effect of leaving the chief justice no choice as to the individual judge. His duty is to call upon -the Exchequer Court judge. If the Exchequer Court judge is not .available then it becomes his duty to call upon the chief justice of one of- the provinces to furnish him with a judge. If we accept the suggestion of the leader of the Opposition we put the chief justice of the Supreme Court in this position: the judge of the Exchequer court is here and the assistant judge is '

here. If for any reason the chief justice would rather have .a provincial judge he will be put in the position of having to make an invidious distinction by having it placed in his hands to select either of these two judges or by passing them over to ask for a provincial judge. I hardly think it is fair to put the chief justice of the Supreme Court in the position of having to decide as between individuals. As it stands at the present time.his duty is all marked out for him. Hs asks for the judge of the Exchequer Court. It is not because he wants to do it but because the law says he has to do it. Failing him, he has to ask the chief justice of a province to furnish him with a judge.

Topic:   * COMMONS
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April 9, 1918