September 15, 1903 (9th Parliament, 3rd Session)


Seymour Eugene Gourley

Conservative (1867-1942)


I cannot agree with the idea that because a provincial legislature passes an Act' creating a new court, this parliament is bound to acquiesce and provide the judge and the salary. I do not

believe that is a proper construction of the constitution. I read a very able article some years ago in one of our legal journals, and that article was strongly in favour of this parliament having a perfect constitutional right to refuse to provide the salary, that we were really sitting as an appeal parliament, and that while the local legislature may have the right to create a new judge, this parliament under the divided responsibility in this matter has the right to refuse to appoint him. We have the fullest constitutional right in this parliament to act within the power given to us, just as the legislature has the fullest right to act within its power. No construction of the constitution would be tolerated which would make this parliament, which is ;i superior parliament, into an inferior parliament. As a lawyer, I want to say that I do not concur in this view, and I trust that neither the Minister of Justice nor the Prime Minister will commit themselves to such a theory. This parliament having power conferred on it to control the appointment of judges and pay their salaries by the same Act which gives the local legislatures power to create a court, all parts of that Act must be construed in harmony, and it must receive such construction as will give us full play for our discretion in the matter. It would never do to say that this parliament must be controlled bolus bolus by the local legislatures in such an important feature of the constitution as the appointment of judges and the payment of their salaries. I do not criticise the wisdom of the legislature in this particular instance. But I hold that it is for this parliament to say whether it will carry out the recommendation of the provincial legislature. It is for us to interpret the correct policy that will apply in such a case. Of course, ultimately, the people will have to determine on this question as on all others. I do not like this idea of tinkering with the constitution suggested by my hon. friend from Toronto (Mr. Maclean).

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