March 12, 1902 (9th Parliament, 2nd Session)


Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I understand that there is that difficulty. We have passed also an Act relating to conveyances by married women, a Joint Stock Company's Act, and an Act relating to factors and agents, all based on English measures, I think. Then, there is the Judicature Act and rules which are in force in our province. These are practically the same as the English, and they have been enacted, practically in the same form in Ontario, British Columbia and Manitoba, as I understand. There are also various other measures which have been taken from recent English legislation. Now, the fact that these measures have been passed in my own province, and some, I believe, in other provinces, may lead to a certain uniformity of the statute law in the different provinces, which, will have the same practical effect in some measure as the legislative union which my hon. friend has so ably advocated this afternoon. In this connection, Mr. Speaker, I might say that any person who is interested in the question of codification, either in this country or the mother country can gain a great deal of information from the recent work of Sir Courtenay Ilbert, which describes the difficulties that have accompanied any progress in regard to this matter in the mother country. In mentioning this work, I might say, as a very practical matter, that the attention of my hon. friend the Minister of Justice might very well be directed towards a better and more perfect system of drafting statutes in this country. It is supposed by a great many people that any gentleman who is well versed in the laws of this country, and who is engaged in practising in the courts, is, by the very nature of his experience, capable of properly drafting a statute. We who have investigated the subject know that that is a very great fallacy indeed. A lawyer, even a lawyer of great eminence, is often a very poor person to whom to entrust the drafting of a statute. That work requires one who

is not only familar -with the laws of the : country hut who, by training, experience and the bent of his intellect is specially 1 fitted for work of that kind. Without de- i siring to cast the slightest reflection upon the condition of affairs under the present administration, without seeking to make it appear that the work done under this administration is different from that under any former administration, I venture to say that the drafting of the statutes in Canada for the past thirty years has not been at all up to the mark. I believe that this matter might well engage the attention of the government, and particularly the attention of the Minister of Justice. I think also that, as a practical matter for this parliament and this government, the attention of the government and especially of the Department of Justice might well be turned to the framing of general laws, more particularly with regard to companies.
I have in mind especially legislation with regard to railway companies. A great deal of the time of this House both in committee and in the House itself is now spent in dealing with matters that might well be governed by general provisions. With such general provisions enacted, the time of parliament could he more profitably employed in dealing with more important matters. Now, just one further remark T have to make with regard to the codification which has been spoken of by my hon. friend from Hants. I appreciate everything that the hon. gentleman has said with regard to the advantages of having codification. But I must point out to him that, under the English system, no matter how clear and definite a code may be made, it must follow from the very nature of our judicial system that that code will, from time to time, be overgrown. We cannot remove all the difficulties that will meet us by simply framing a code. The constitution of this country, the British North America Act, is in the form of a code, yet I venture to say that no lawyer in the House will disagree with me when I state that more than the half of the British North America Act, so far as any provisions which require construction at the present time are concerned, is in the shape of the decisions of the court, and not in the British North America Act itself. We may make codes in this country as long as we like, but we cannot get rid of the difficulty that these codes will become overgrown with legal decisions. Therefore, the making of a code once is not enough; the code when made must be revised from time to time; and the decisions passed upon it will require to be embodied in the new Act. if we wish to bring about the state of things that my hon. friend from Hants so much desires to see. I am in sympathy with the motive which he had in view in addressing the House to-day; but at the same time I venture to think that any action which will be productive of de-Mr. BORDEN (Halifax).
finite results must come from the provinces themselves, and that the only effect of my learned friend's motion to-day will be to arouse the attention of the different provinces in pointing out to them the good results which might follow if a measure such as proposed were eventually passed by this parliament and by the legislatures of the different provinces.

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