April 5, 1921

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An hon. MEMBER:

He is too poor.

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LIB

William Cameron Edwards

Liberal

Mr. EDWARDS:

I venture to say that if you will fly in the face of public opinion to the extent of increasing the sessional indemnity of hon. members to $15,000, we will all be willing to pay income tax on that amount. Why in the name of reason is the chief justice of Canada to be exempted from paying income tax on his salary of $15,000?

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?

An hon. MEMBER:

Shame.

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LIB

William Cameron Edwards

Liberal

Mr. EDWARDS:

I am only a layman, but for the life of me I cannot see any

rhyme or reason in any proposal of this kind. The minister says that really no increase was made to the salary, that the $5,000 was added to the $10,000 salary of the chief justice to cover his expenses for acting as Deputy Governor General of Canada. Was anything more ridiculous ever uttered on the floor of this Parliament? Let us have done with this subterfuge and camouflage. Every hon. gentleman knows that it does not cost the Chief Justice of Canada $5,000, or $500, to come to this Parliament now and then to act for the Governor General. It does not cost him $5,000, or $500, occasionally to write his name on a document as Acting Governor General. The thing is absolutely ridiculous. If you want'the salary of the Chief Justice of Canada to be a certain sum, fix it at that sum and be done with it. The principle is unsound, Mr. Chairman; a man who receives a salary of $15,000 a year should not be exempt from income tax. I for one will vote against this motion.

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UNION

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

Unionist

Mr. DOHERTY:

I very much regret that notwithstanding my effort to speak both loudly and clearly, I should have conveyed to the hon. member the impression that this resolution proposes to do something which it does not propose to do and something with which it has nothing to do. In certain provinces, owing to the fact that the law did not fix the places at which the judges should reside, the judges found themselves free to choose their own places of residence. Under the existing legislation, which had in view the provinces in which the places of residence were fixed by law, provision was made for travelling allowances when a judge attended court elsewhere than at his actual or legally fixed residence. Our attention was called to the faft that in certain of these provinces where there was not a legally fixed residence the judge selected his residence and charged travelling allowance when he travelled from that selected residence to the chief cities where the sittings of the court were held. We did not and we do not think it is right that there should be a travelling allowance under. these circumstances. If a judge in the exercise of his own free will chooses to reside elsewhere than at the principal city where his work is, we think he should not have travelling allowances-and the purpose of this measure is to provide accordingly- except, of course, in cases where by law he is compelled to reside in some place

other than the chief centre where the sittings of the court are regularly held.

Now, with regard to the Chief Justice, this is not a provision to introduce a system under which the salary of the Chief Justice shall be exempt from income tax. Wisely or unwisely, the legislators of the past provided that the salaries of the judges should be exempt from taxation. That was the law under which the present Chief Justice and all judges prior to the legislation of recent years were appointed; they were to have a certain salary and they were to be exempt from taxation. Now, it is one of the fundamental principles of the British constitution that the independence of the judges must be made as certain as possible, and it has been universally recognized that in order to accomplish that, their remuneration should not be subject to reduction at the pleasure of the Government or of Parliament. The salaries of all judges other than the Chief Justice of the Supreme Court were increased last year and it was considered right as a condition of that increase to remove the exemption and to subject their salaries to taxation. But the reason for removing the exemption did not exist in the case of the Chief Justice because his remuneration remained the same as before, only that previously it was divided into two sums, one of $10,000, his salary as Chief Justice, and one of $5,000, his salary or remuneration as Deputy Governor General. That $5,000 was not in the nature of an allowance to pay expenses.

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LIB

William Cameron Edwards

Liberal

Mr. EDWARDS:

What if he goes overseas to attend the sittings of the Privy Council?

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UNION

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

Unionist

Mr. DOHERTY:

The law at present makes a provision of $3,000 for any qualified judge who sits on the Privy Council. The present Chief Justice has never sat in the Privy Council.

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L LIB
UNION

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

Unionist

Mr. DOHERTY:

Last year, and, I think, the previous year, Mr. Justice Duff did. But that has nothing to do with a question of allowance for expenses.

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L LIB
UNION

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

Unionist

Mr. DOHERTY:

Well, it is subject to the approval of the Governor in Council.

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L LIB
UNION

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

Unionist

Mr. DOHERTY:

There is no law defining how it ought to be done, but as a matter

of propriety certainly the Chief Justice should be consulted. So far as I am concerned in the matter I certainly would consult with him before coming to any conclusion.

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L LIB

Lucien Cannon

Laurier Liberal

Mr. CANNON:

The person who sits on the Privy Council has to be a Privy Councillor as well as a judge, has he not?

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UNION

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

Unionist

Mr. DOHERTY:

Yes. Any member of the Imperial Privy Council who is or has been a judge of a High Court in any of the dominions is eligible to sit on the Judicial Committee of the Privy Council.

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L LIB
UNION

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

Unionist

Mr. DOHERTY:

I cannot recall the precise date, but I think it was two years ago. I would like to make this quite clear, if I may. This is not a question of allowance for expenses at all; the Chief Justice has had this salary or remuneration for acting as deputy Governor General for years back and the legislation of last year, therefore, left him absolutely where he was. If this legislation should not now be passed, you would have this anomalous situation, that the legislation of last year, intended to increase the judges' salaries operated to reduce the remuneration of the actual Chief Justice, and had no other effect as regards him.

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UNION

Hugh Havelock McLean

Unionist

Mr. McLEAN (Royal):

I am sorry I cannot understand the perhaps very clear explanation made by the Minister of Justice (Mr. Doherty). Sometimes in the past it has been difficult for me to follow him on account of his speaking very low, and it is difficult for members to hear clearly what he states. What I understand the Minister of Justice to state is this. This measure is to remedy a hardship on the part of the learned Chief Justice of the Supreme Court of Canada. What we members, who object to this resolution, object to, is the principle that is established that the Chief Justice shall not pay income tax. That is a bad principle to go out to the country. Under the law as it stands at present, every man in Canada is liable to pay income tax; that is the principle that stands and that should be enforced, and the Minister of Justice has no right to make an exception. If, as stated by my hon. friend (Mr. Edwards), you want to increase the salary of the Chief Justice, increase his salary. But is this not true? The salary of the Chief Justice is raised to $15,000; is he not now entitled to retir* on $15,000?

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UNION

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

Unionist

Mr. DOHERTY:

No, because in that same legislation it was provided, in the first place, that all judges appointed in the future should be liable to pay income tax; second, that with regard to all judges of the Higher Court appointed in future, the provisions enabling them to retire on full salary should be repealed, and that as regards all existing judges, in fixing the amount of their retiring allowance, where they were entitled to their full salary, the increase of last year should not be taken into account. So that the position of the actual Chief Justice of the Supreme Court is this: As long as he remains on the bench, he will receive absolutely the same remuneration that he received before the legislation of last year. If he comes to retire, having fulfilled the conditions which, under the past law, entitled a judge to retire with his full salary, he will retire with that full salary, not as it is created by the legislation of last year, but as it stood before that legislation, that is to say, with a retiring allowance of $10,000.

The hon. gentleman asked one other question. He asked-Was this laying down the principle that the Chief Justice of Canada should be exempt from taxation? It is not. The principle that has been laid down for the future is that the salaries of all judges appointed hereafter shall be liable to taxation. As regards existing judges, the salaries of all

4 p.m. judges whose salaries were increased by last year's legislation, shall be liable to income tax. But as regards those judges whose salaries were not increased, we were bound by the contract which was made with them when they were appointed and under which their remuneration was to be exempt from taxation. We took occasion of the increase made to make, as a condition of the increase in salary, the withdrawal of the exemption to which judges were otherwise entitled. In doing that, however, we withdrew from one man, who got no increase at all, the privilege to which he was entitled under his appointment, and we could not justify our action in that regard as being hte condition of an increase in remuneration.

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UNION

Hugh Havelock McLean

Unionist

Mr. McLEAN (Royal):

I thank the learned Minister of Justice for his lengthy and perhaps not very clear explanation, because I am still in a little doubt in comprehending all he says. What I understand him to say is this. We are making this poor man suffer by increasing his sal-

ary by $5,000. That is unfortunate. Before that he received $5,000 for the onerous duty of acting as deputy Governor General. Very good. The learned Minister of Justice has not brought before our attention this matter: that all the other judges were allowed extra remuneration for extra work when they served on Royal commissions. They were often taken off the bench and appointed on Royal commissions and on other special work for which they received extra remuneration. It is now put into the Judges' Act that the increase of salaries shall cover all extra work that judges may perform; that they shall not receive one dollar more for extra work, which they may perform on Royal commissions or other work. Are they not then on the same ground or standing as the Chief Justice? They are prevented from earning this extra remuneration. The learned Chief Justice is prevented from earning this extra remuneration. But to come back again, this is the principle on which I want to stand. I have no objection to the salary of the learned Chief Justice being increased. The position should carry an ample salary to command the highest legal talent in this Dominion, and $15,000 is too small a salary for the Chief Justice of Canada. Why, you are paying to counsel, retainers of $20,000 and so many hundred dollars a day. If you go to Montreal at the present time, you cannot obtain a leading counsel under $10,000 or $12,000. So I say, I am not objecting to the salary being increased; I am objecting to this roundabout way of doing the thing. It is not the right way of carrying out the increase in the Chief Justice's salary. I think the salary of the Chief Justice of this Dominion should be $20,000.

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April 5, 1921