June 3, 1936

LIB
CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

In respect of our federal courts-tire Supreme Court of Canada and the Exchequer Court of Canada-and the county courts, we have provided a retiring age of seventy-five years. There is not much doubt that starting at one end of Canada and travelling to the other one may find large numbers of men endeavouring to discharge judicial functions who are physically unable to bear the strain of work and continuous effort necessary in the discharge of those duties. One makes that statement with great hesitancy, but it is a fact. It was so much so that at one time when the minister was in office he found it essential to enact legislation to enable him to deal with the difficulty. That legislation was severely challenged at the last meeting of the Canadian Bar Association. We introduced legislation to go a step farther and provide for retirement at seventy-five years. That, too, was challenged as being very unsatisfactory and as something which would impair the position of the judges.

For a moment let us examine the situation. I think the minister will agree it is time we were doing so. If all judges in Ontario were physically fit to discharge their judicial duties there would be no necessity of increasing the number by two. I believe that is so obvious that it needs only to be mentioned. There are other provinces in the confederation in which exactly the same difficulty prevails. Whether or not it is wise to discuss them in detail I have not yet made up my mind, but when the bill is introduced and has reached the committee stage I shall determine what course of action to pursue.

This is the principle which I submit should govern parliament in dealing with matters of this kind. First, if a man holds himself out as being qualified by training to occupy any position requiring the services of an expert- whether it be judge, doctor, dentist or engineer; it matters not-unless he has the proper qualifications he should not be appointed to the position, whatever it may be. Second, when he ceases to possess those qualifications he should no longer continue in office. Is there any possibility of getting away from the second proposition? We endeavour to have some regard, in a small way, for the first one But the second, which is a corollary of the first, has been the very foundation of the impartial administration of justice, namely that when men hold themselves out as being sufficiently trained in the law to enable them to undertake judicial duties, and when by reason of impairment of physical or mental capacity they are no longer able to give concentrated attention for periods extending over seven, eight or nine hours a day, obviously they are no longer

, Judges Act Amendment

qualified for the positions they hold.-' It is an implied condition of the contract they make with the state that they will be able to discharge those duties and give the services indicated, and when they have reached the stage where they can no longer do so, it seems to me they should be content to retire. That is the position I have taken in the matter. It is not a new one to-day, nor was it new during the last parliament; it dates back farther than that. My personal conviction is that that is the only way we can get satisfactory service. Whether or not we should assert our views in the manner in which we endeavoured to do, and failed to succeed in doing, is still open for discussion and comment.

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LIB

Samuel Factor

Liberal

Mr. FACTOR:

Does not the British North America Act provide life appointment for judges of the Supreme Court of Ontario?

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Certainly, but there is

an implied condition that a man who undertakes to hold a position for life is qualified to do it; otherwise what have we?

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LIB
CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

What is the result? If we were to rely altogether upon the provisions of the British North America Act whereby the judge may hold office during life and good behaviour, all we could do would be to appoint, and that would settle the matter; although the appointee might be an invalid, until an address were passed by both houses of parliament he could continue to occupy his position. It was that position that the present Minister of Justice had to meet on a previous occasion. The statute, it is true, was not originated by him, but when it was finally settled by the government of the day it provided for judicial inquiry as to physical or mental fitness, and if it was found as a result of inquiry that the occupant of a judicial position by impairment of either physical or mental health was unfit to discharge his duties, he could be retired, and the terms of retirement were provided in the act.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

But it is a difficult thing to do.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Very. Judicial duties are always difficult to discharge; we know that. They involve the exercise of the highest qualities of which the human mind is capable, because justice is an attribute of the godhead, and frail humanity can only approximate an administration of justice as it should be administered. Failure to realize that is responsible for many of our difficulties.

The point I make is this: In any appointment where special knowledge is required, whether it be engineering or of some other professional kind, is it not an implied condition that with the payment of the salary there must be a maintenance of the special qualities upon which such payment is predicated? If there is a departure from that condition by reason of physical or mental incapacity, then obviously the right of the state to pay should also be terminated. For instance, if a judge is so deaf that he cannot hear the evidence, I suggest the matter is tremendously serious. What about the rights of those who stand in the dock before a judge who cannot hear and clearly appreciate the evidence of witnesses? Yet it is a condition that obtains at this time in more than one province. In the court of appeal it is not so difficult, yet it is a very unsound condition if the judge cannot hear what is said by counsel. Again, if a man has reached an age where concentration of effort has become practically impossible, is it quite right to say that litigants should have to defer to such a judge or that the state under such conditions should continue to pay, pay, pay?

These are problems to which I think we shall have to direct our attention, and they are not easy problems to deal with. By the time the bill is introduced I hope to have concluded whether it will serve a useful public purpose -to deal with these problems one after the other and point out what the actual situation is, and the ages the judges have reached. It is not so much a question of age. For instance, I know of a case in which the appointee was not old but developed a condition which made it impossible for him satisfactorily to discharge judicial functions; he could not give concentrated attention to problems over a period of five or six hours a day, and that situation when it is known is one that should be dealt with. In England, where they have so magnificent a judicial system, they found it necessary to appoint a commission a few months ago to deal with the problem and make a report, which I shall endeavour to secure before we reach the bill, and if that is so in a country like England, where the appointments have no political flavour as they very often have in this country, it becomes tremendously important, it seems to me, that we should have a clear understanding of what the implied conditions are when one is appointed to the bench.

Undoubtedly, ever since the Act of Settlement, judges have held office during life and

Judges Act Amendment

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LIB
CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

The hon. member for Inverness-Richmond (Mr. MacLennan) has raised the question, who is to determine their fitness? The statute which was passed under the aegis of the present Minister of Justice makes provision for that. It provides that his fellow judges, not necessarily in the province in which he lives, but members of the judiciary, are to decide that question, and it is a pretty difficult thing to place that burden upon them. In connection with county court judges, of course, we do appoint commissions of inquiry, and we have the power of removal, and on two occasions that power has been exercised in the last fifteen years. It was exercised by my friend the Minister of Justice during his former administration, and it was

Judges Act Amendment

exercised by a government in the early nineteen hundreds. In all these cases judicial inquiries were held; the fitness of the judge was reported to the executive, and the executive took the appropriate action. To have a commission of judges appointed to inquire into the mental equipment and physical condition of judges is very difficult and is the reason why this parliament fixed an age limit with respect to the federal and county courts.

The difficulty in connection with the county courts is that if one of seventy years of age were appointed to the county court tomorrow he would retire at seventy-five years on full pay. That is the reason why we have the unwritten rule that a man over sixty years of age should not be appointed to the bench. This has been sometimes disregarded, but in the main it is observed. I can recall the efforts I made when I was first a member of this house to secure the appointment to the bench of a gentleman who was perhaps better qualified than any other man in Alberta, but as his age was something like sixty-five years the late Judge Doherty said he could not appoint him. That general rule has prevailed. If fifteen is added to sixty it makes seventy-five, and that is the age at which a county court judge retires. That has been the general rule, but there have been exceptions with respect to the higher courts.

I bring this matter to the attention of the minister because I have frequently discussed it with him and I know how concerned he is about it. I still have the perhaps antiquated and old fashioned view that of the three branches of our polity, the legislative, the executive and the judicial, the judicial is the one in which we must place the greatest reliance. Although the judicial branch has not the same powers as it has in the great republic to the south, nevertheless its powers are tremendous. Being what they are, it devolves upon us to take every step possible to obviate dissatisfaction on the part of the public, on the one hand, with the service they receive, and those who give themselves to judicial office, on the other hand, from having any possible thought that they have been unfairly treated by parliament, which is just another way of saying that the people have treated them unfairly. There should be a measure of obligation on the part of the one fully as great as there is on the part of the other. There should be an obligation on the part of the people to pay the sums fixed by parliament and, in my judgment, there should be an

obligation on the part of those who receive payment to take it only so long as they are fit physically and mentally to discharge the implied obligations of their office, namely, to give that continuous attention to judicial work which was an essential condition of their being appointed.

So far as Ontario is concerned, it is quite obvious to anyone who knows the facts- whether or not they will be stated at length I shall have to leave to my own judgment later on-that these two appointments would not be necessary were it not for the age conditions that prevail. That is known to everyone familiar with the situation. The judges are doing bankruptcy work in all the provinces, but the work under the Farmers' Creditors Arrangement Act will slacken instead of increase. Probably it will have run itself out and be disposed of before long. That could not be made the reason for the appointment of two additional judges if the judges of the high court and the court of appeal were of an age where they could concentrate their physical energies and mental abilities upon the discharge of their judicial functions. Two or three hours a day is all that some of them are able to give in concentrated form to the problems of their courts. When one has reached a certain age it is not to be expected that he can go out to county towns to hold assizes with any degree of satisfaction to himself, or, shall I say, to those who have litigation in the courts over which he presides.

I do not envy the minister the difficulties of his position, but difficulties must be faced in dealing with matters of this kind. I think it is very unfair to impose upon the Canadian people the salaries of two additional high court judges in the province of Ontario when the necessity for so doing is attributable to conditions which have nothing to do with increased litigation or increased population, but arises out of the unfortunate circumstances to which I have alluded, and which I say again are not confined to the one province in this confederation.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Mr. Chairman, on previous occasions I have differed from the Minister of Justice (Mr. Lapointe) and the leader of the opposition (Mr. Bennett) with regard to the age of retirement for judges. I think a great injustice is sometimes done and the public interest sometimes suffers by prescribing a certain age for the retirement of either judicial officers or of officers of the civil service. Each case should be decided upon its own merits. On a previous occasion I called attention to the age of eminent judges serving in

Judges Act Amendment

Great Britain and the United States who had reached an age far beyond the limit of seventy-five years fixed by the statute introduced by the Minister of Justice as the age of retirement of judges of the federal and county courts. Without wanting in respect, I do say that a difficulty has arisen in Canada because of the lack of moral courage on the part of successive ministers of justice in the various adminstrations. I think section 28 of the Judges act was passed in 1922 and since then no minister of justice has had the courage to take the necessary measures prescribed by statute for the retirement of judges who have lost their capacity and efficiency. The statute to which I refer is chapter 105 of the revised statutes of Canada. Section 28 reads as follows:

28. (1) Any judge of the Supreme Court of Canada or of the Exchequer Court of Canada, or of any superior court in Canada, or any local judge in admiralty of the Exchequer Court of Canada or any judge of a county court, who is found by the governor in council, upon report of the Minister of Justice, to have become, by reason of age or infirmity, incapacitated or disabled from the due execution of his office, shall, notwithstanding anything in this act contained, cease to be paid or to receive or to be entitled to receive any further salary, if the facts respecting the incapacity or disability are first made the subject of inquiry and report in the manner hereinafter provided, and the judge is given reasonable notice of the time and place appointed for the inquiry and is afforded an opportunity by himself or his counsel of being heard thereat and of cross-examination of witnesses and of adducing evidence on his own behalf.

The next subsection reads:

(2) The governor in council may, for the purpose of making inquiry into the facts respecting the incapacity or disability of any such judge, issue a commission of inquiry to one or more judges of the Supreme Court of Canada, or of the Exchequer Court of Canada, or to one or more judges of any superior court in Canada, empowering him or them to make such inquiry and report,-

There is a reasonable provision for inquiry into the capacity of any judge holding an appointment to either of the courts mentioned, but the fact is that except in respect of county court judges this statutory power has not been exercised. I think it is due to a lack of moral courage on the part of the successive members of government holding the office of Minister of Justice. That office requires certain qualities and capacities greater than are vested in the ordinary member of parliament or in the ordinary member of government. In England the Lord High Chancellor does not fail, when called upon to exercise very great powers, by reason of his personal relations to those who have been appointed to and are sitting on the bench. When the Minister of Justice sees

that a judge is apparently lacking in capacity or is disabled by reason of age or infirmity, or otherwise incapacitated or disabled from the due execution of his office, it is his moral and statutory duty, I submit, to provide for an inquiry and, if the report upon inquiry sustains retirement, to report to council accordingly and have the judge retired. The Minister of Justice should act in accordance with the responsibilities of his office-and I am not making any special reflections on the present minister. But if he would do that, as I think he is bound to do in the exercise of the duties and responsibilities of his high office, we would avoid these scandals which we see every day when the courts are in session, in almost every province in Canada.

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CON

Thomas Langton Church

Conservative (1867-1942)

Mr. CHURCH:

The province of Ontario

is empowered by the British North America Act to look after the constitution of the law courts in the province. I can see very little reason for this increase. This parliament, which provides the judges' salaries, should have some say before acts are passed by the Ontario legislature, when we are required to pay the salaries. There is no doubt that a good many of the supreme court judges are overworked, particularly those who go out on circuit. But take the votes in connection with the judges in Ontario. There is the Chief Justice of Ontario, whose salary is $10,000; Chief Justice in Appeal. $10,000; Chief Justice of the High Court of Justice, $10,000; salaries of six justices of appeal, at $9,000; salaries of ten judges of the high court, $90,000; and salaries of sixty-five county court judges at $5,000, together with travelling expenses, amounting in all to $400,000 a year. As was pointed out in the committee that sat in the session of 1929-30, in this province we have nearly as many judges as there are in England, with a population of 47 millions. I am not here to say anything against the splendid work done by the fine gentlemen who comprise the Supreme Court of Ontario, and as I say a great many of them are overworked. There is no doubt that this parliament, by delegating to them appeals in criminal cases and divorce legislation have added considerably to the work of certain judges. But on the other hand there is a good deal of work which, formerly performed by the supreme court, now goes to the county court. I would refer to Judge M arson, of the county oouirt, who has retired on pension. In the first and tenth division courts of Toronto he did the work which is now being done by three judges. When you consider that there are sixty-five county and junior judges in the counties of Ontario, the vote is a large one for that province. I was asking a prominent member of the bar the other day

Judges Act Amendment

his opinion of this particular bill so far as Ontario is concerned, and he said he was very much opposed to it. I saw in the newspapers the pictures of two gentlemen who are said to have been selected.

I think there should be a survey of this w'hole situation, and I suggest that the bill stand over until next year. I approve of an addition to the number of circuit judges, because when one of these judges is taken ill it is difficult to get someone to take his place. I understand that a recommendation was made this or last year that, in addition to the present list of supreme court circuit judges, there should be a special judge who would be available if relief were necessary along the lines I suggest, at Osgoode Hall. I know a great many of the judges and I know that they work very hard and are worn out by the time the long vacation comes. But in Ontario, not satisfied with having passed the act to which the Minister of Justice has referred in this resolution, they have upset the whole jurisdiction of the magistrates' courts throughout the province. Magistrates from York county have been transferred to Oakville, Milton, and other places all over the province, though they were appointed, in the first instance, for the county of York.

In my opinion a committee of the house should be appointed to study this question with regard to the judges, and the whole question of law reform, and in particular I would suggest a rearrangement of the work of the judges in view of the acts that have been already passed by the province, removing from the high court certain jurisdiction and placing it in the county court. This bill should be laid over for a year. We are getting law reform by means of two or three haphazard bills introduced during the course of the session, whereas in my opinion the whole problem of law reform should be carefully studied as it was in England with a view to reducing the cost of the administration of justice, and increasing the efficiency of justice in this country. There is need for such law reform. I have the highest respect for the able, hard working and most admirable body of men who have served the country on the bench of Ontario, not only in the court of appeal but in the supreme court and county courts and in the magistrates' courts as well. The administration of justice in this country has reflected the greatest credit on those in charge of it.

I believe there is a great deal in what the leader of the opposition has said. Day after day on the streets of the city I come from I meet some of the judges, some of whom I know are very much overworked, while others

may not be doing as much work. In 1929-30 it was found that three high court judges had left the bench to engage in a federal political inquiry-the late Mr. Robb used to call it the whisky inquiry, into customs and smuggling. Two or three judges, including one from Regina, left the bench for a year to carry on extra work, for which they got extra pay amounting to a large sum of money in addition to federal pay as judges, which others did their work. Judges should not be used for political investigations and inquiries; they have enough hard work as it is without being loaded up with all these extra duties. Much extra work has been placed on the supreme court judges, as well as other judges, by the Ontario legislature as well as federal authority. The lists of divorce cases at the non-jury sittings throughout this province have become appalling, just as was expected when we divested ourselves of this power and turned it over to the courts. The number of divorces is multiplying by two or three, and they are being made easier to obtain by the mistakes of this parliament. There are appeals, now also in criminal cases and every session adds to the work of our judges, and the pay is inadequate.

I believe it would be better if the minister would consider appointing a committee of the House of Commons or of both houses of parliament on law reform to go into the whole question of our judges and of law reform as they did in England. Let us have something concrete; let us bring the law up to date. As far as this measure goes, I believe we do need one additional judge for circuit work or so in Ontario, but the problem should be taken up in a larger way in order to consolidate the work, improve the efficiency of the law courts and prevent delays. I know one chief justice whom I saw on the street-car just the other day, who had been out on circuit hearing a very important case on constitutional questions. He has been overworked so much that he is ill. I was not speaking to him about this matter, but he certainly has been working very hard, hearing heavy cases that the newer younger judges are not given as yet. I must say that in my opinion recent appointments to the bench of younger men have been exceedingly well made, and these new judges in the supreme court are doing excellent work out on circuit that is a credit to the bench and the administration of justice which stands so high in Canada and is most creditable to the country..

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CCF

Thomas Clement (Tommy) Douglas

Co-operative Commonwealth Federation (C.C.F.)

Mr. DOUGLAS:

I should like to say just a word with regard to the suggestion of the right hon. leader of the opposition that some means be provided for retiring judges who

C.N.R.-Refunding

have ceased to be physically or mentally fit to discharge their duties. I lived for some years in a city where the judge suffered, unfortunately, from periodic attacks of amnesia. The result was that over quite a period of time some very unfortunate decisions were handed down. There were two results. One was that the attitude towards the law in that particular community was one of ridicule; the second was that practically every decision had to be appealed. Many of the decisions were reversed and practically all were modified to some extent. I appreciate that this would be a delicate matter to deal with, but surely it ought to be possible to enact legislation which would permit of the retirement of men no longer able to discharge their duties efficiently. The authority of the law can be maintained, it would seem to me, only if the men sitting on the bench inspire confidence rather than ridicule.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

I shall reserve my remarks until the bill is under consideration.

Resolution reported, read the second time and concurred in. Mr. Lapointe (Quebec East) thereupon moved for leave to introduce Bill No. 83, to amend the Judges Act.

Motion agreed to and bill read the first time.

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CANADIAN NATIONAL RAILWAYS

PROVISION FOR EXPENDITURE, INDEBTEDNESS AND THE REFUNDING OF MATURING OBLIGATIONS


The house resumed from Thursday, April 23, consideration in committee of the following proposed resolution-Mr. Dunning-Mr. Sanderson in the chair: That it is expedient to bring in a measure respecting the Canadian National Railways, to authorize the provision of moneys to meet expenditures made and indebtedness incurred during the calendar year 1936, and to provide for the refunding of certain maturing financial obligations.


LIB

Charles Avery Dunning (Minister of Finance and Receiver General)

Liberal

Mr. DUNNING:

Mr. Chairman, when this resolution was before the committee previously it was indicated that the standing committee on railways and shipping had not at that time finished its consideration of the estimates of the Canadian National Railways, and therefore the committee of the whole rose without completing its work. Since then the standing committee of the house dealing with these matters has completed its work and reported on this particular phase of the matter, as will be seen by reference to the votes and proceedings of April 30. I think, therefore, that any objection to the introduction

of the bill has been met by what has happened since. I propose now, if the committee agrees to the resolution, just to introduce the bill; I do not expect it to be read the second time to-day, of course.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

There is only one observation that I desire to make. It is this: In view of the evidence given before the special committee it does appear to me that there is not sufficient money provided for the deficit that inevitably must result.

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LIB

Charles Avery Dunning (Minister of Finance and Receiver General)

Liberal

Mr. DUNNING:

This does not deal with the deficit.

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June 3, 1936