February 3, 1905 (10th Parliament, 1st Session)


Samuel Barker

Conservative (1867-1942)

Mr. S. BARKER (Hamilton).

My hon. friend the Minister of Justice and my right hon. friend the First Minister have dealt with this matter as if the only question for the House to consider were the fitness of Mr. Justice Killam for the particular position to which he is to be appointed. But that point, it seems to me, is one that has the least possible bearing on the question with which we are dealing. By this resolution, we are not asked to vote the appointment of Mr. Justice Killam. It is simply a general law which we are called upon to enact, and which will place it within the competence of the government of the day to select any judge from any Superior Court in Canada and appoint him to this commission. It is quite possible that in a year, or even less, Mr. Justice Killam, if appointed, may see fit to withdraw from this commission. He may get some other appointment, and then we will have negotiations entered into by the government with another judge of the Supreme Court or some other court mentioned in the resolution we are asked to pass. The result will be that we will have our judges looking forward to the possibility of getting the handsome salary of $10,000 instead of the $7,000 which they receive as judges of the Supreme Court or the lesser sum they receive as judges of some other court. Therein it appears to me is the vice of this resolution. I am not for a moment questioning the fitness of Mr. Justice Killam. Not one word has been said against him in that regard. No one has ventured to cast a slur upon that gentleman in any sense whatever. We all respect him, we all know his capacity, his sterling character. Nobody says a word against him. The remarks that have been made in this connection would have been equally made no matter who should be the judge the government might see fit to select. Therefore we should deal with this resolution exactly as it is, namely, as a proposition on the part of the government to acquire the power by statute of taking any judge from any Superior Court in Canada and appointing him to this office. There is the objection. Judges are human beings and might consequently be influenced by the possibility of getting such a promotion. I do not think that when a gentleman goes upon the bench he alters his nature very materially. He is still subject to all the
human weaknesses that he had the day before his appointment; and if before his appointment he sought by political influence with the ministers-or worse still by political influence with gentlemen who have influence with ministers-to get an appointment upon the bench-and no one can doubt that sometimes such influences are used-that same gentleman would hardly hesitate to use similar influences to obtain a position which would give him a handsome increase in his salary. The very fact, as my hon. friend from Lanark (Mr. Hag-gart) points out, that negotiations have been going on in this case, shows the danger that may occur in other cases
A government having political questions before the Supreme Court for deccision- matters, perhaps, involving the fate of the government-might negotiate with a judge for his acceptance of the very handsome salary involved in this commissionership. Surely, that ought to be avoided. Surely, it will not be pretented that Mr. Justice Killam is the only competent man in this Dominion to occupy the position of chief commissioner. We had nearly a year's discussion on the Railway Bill? I do not think it was hinted or even thought of by any person that Mr. Justice Killam was the man of all men who should get the appointment to the chief commissionership. We never heard a suggestion that a man should be taken from the Supreme Court or any other court. But it happens that, at this moment, it is convenient for the government to appoint Mr. Justice Killam. He is a capable man, undoubtedly, and would probably be a fitting man to hold the position. But it will liai-dly be said that there is only one man in this whole Dominion fit to occupy that position. And, if there is another man anything like equal to Mi-. Justice Killam, surely the government should avoid the danger of appointing a judge from the bench, an appointment involving to him a very substantial increase of salary.
But, Sir, there is more, a good deal more, in the case. The resolution is proposed to enable the government to appoint a judge from any superior court in Canada. I presume that would include the judge of the Exchequer Court, Mr. Justice Burbidge. Now, very important questions are constantly coming before the Exchequer Court, cases between contractors and the government involving enormous sums of money. What would be said of the appointment of Mr. Justice Burbidge to this commissioner-ship ? What would contractors who had litigation with the government involving many thousands of dollars say, if a judge who might be seeking such a promotion from the government were asked to decide the questions between themselves and the government. Surely the very fact that such a man could be given a reward of that kind would detract from his usefulness. It

would create suspicion. Even if tie were not appointed, many people would be inclined to think that he would be influenced by the expectation that such a reward might come to Eim. I have as high a respect for Mr. Justice Burbidge as for Mr. Justice Killam. I do not mean to say that either of these gentlemen would be influenced by such a consideration. But it is essential that the people should respect and have confidence in the courts, and it is of the utmost consequence, I think the minister will admit, that there should not be even a suspicion against the integrity of our judges. Therefore, I think the government makes a great mistake when it brings in a resolution of this liind. which cannot fail, it seems to me, to cast suspicion upon any judge who might possibly be available for such an appointment.
There is another feature of the measure. The government does dot undertake always hereafter to appoint a judge from one of these superior courts. If they appoint a man, who is not a judge, whether a railway expert or a lawyer, or a combination of the two, that appointee may be a man equal in every respect or even superior, as the occupant of such a position, to Mr. Justice Killam. Yet, such a man, being appointed after this resolution is carried and becomes law, will be dealt with differently from a superior court judge. He will be dismissible by the government whereas an appointee from the Superior Court bench would not. Why such a distinction ? Why should a thoroughly capable man appointed from any rank in life, if fit for the position, be put in a worse situation than another simply because that other had been a judge? This, it seems to me, is an invidious and unnecessary distinction. This resolution speaks of a ' Judge of any Superior Court in Canada.' I do not know whether the Minister of Justice can refer us ,to any Act which defines the meaning of ' Superior Court in Canada.' I know that the Revised Statutes of Canada have a definition for these words and that definition would not include the Supreme Court. But, there may be another Act.

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