Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 28th Parl, 2nd Sess, No 5 (18 June 1970)

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Date: 1970-06-18
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 28th Parl, 2nd Sess, No 5 (18 June 1970).
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Second Session
Twenty-eighth Parliament, 1969-70

and of
on the



Joint Chairmen



No. 5

TUESDAY, JUNE 18, 1970


(See Minutes of Proceedings)



Joint Chairmen


Representing the Senate


Connolly (Ottawa West),
Phillips (Rigaud),

Representing the House of Commons




Michael B. Kirby,

Patrick J. Savoie,
Joint Clerks of the Committee.



THURSDAY, June 18, 1970.

The Special Joint Committee of the Sen-
ate and of the House of Commons on the
Constitution of Canada met this day at
3:45 p.m. The Joint Chairman, Mr. Mac-
Guigan, presided.

Members present:

Representing the Senate: Senators Cook,
Flynn, Lamontagne and Yusyk.—(4).

Representing the House of Commons:
Messrs. Allmand, Breau, Brewin, Gibson,
Hopkins, Lachance, Lewis, MacGuigan,
Marceau and McQuaid.—(10).

Witnesses: From the Department of
Justice: Mr. D. S. Maxwell, Q.C., Deputy
Minister of Justice and Deputy Attorney
General; and Mr. T. B. Smith, Director,
Advisory and International Law Section.

The Joint Chairman introduced the wit-
nesses. Mr. Maxwell made a statement on
that part of “The Constitution and the
People of Canada” dealing with the Su-
preme Court and the Judiciary, after
which he was questioned.

During questioning, it was

Agreed,—That the booklet entitled
“Background Papers on the Supreme
Court and the Judiciary” prepared by the
Secretariat of the Constitutional Confer-
ence, be printed as an appendix to this
day’s Minutes of Proceedings and Evi-
dence. (See Appendix “D”)

Later, the questioning being completed,
the Joint Chairman thanked the witnesses
on behalf of the Committee.

At 5:26 p.m., the Committee adjourned
to Tuesday, June 23, 1970.

Michael B. Kirby,
Joint Clerk of the Committee.


(Recorded by Electronic Apparatus)

Thursday, June 18, 1970

The Joint-Chairman (Mr. MacGuigan):
Gentlemen, there is a quorum for our meet-
ing so let us begin today’s proceedings.
Perhaps we will have some discussion of the
other motions later in the meeting, but in
View of Mr. McQuaid’s comments before the
meeting that we should probably leave all of
these motions to a subsequent meeting, we
will therefore proceed to consideration of the
primary business of today’s meeting.

The subject before us this afternoon is the
Supreme Court and the Judiciary, and the
principal witness is Mr. D. S. Maxwell, Q.C.,
Deputy Minister of Justice and Deputy Attor-
ney General, and with him at the table is Mr.
T. B, Smith, Director, Advisory and Interna-
tional Law Section, Department of Justice.

Mr. Maxwell is a distinguished public serv-
ant and I will invite him to make a presenta-
tion to us on this government paper and fol-
lowing that time we will have an opportunity
of discussing the matter further with him.
Mr. Maxwell.

Mr. D. S. Maxwell, Q.C. (Deputy Minister
of Justice and Deputy Attorney General):
Messrs. Co-chairmen and members of the
Committee: I am very pleased indeed to have
the opportunity to appear before you today to
outline the position of the federal government
in relation to the Supreme Court of Canada
and other aspects of the judicial system as
that position has been so far formulated in
the publication The Constitution and the
People of Canada, and you will find it at
pages 38 to 45 and again at pages 82 to 87 of
that publication.

Perhaps I should say by way of a beginning
that Part 7 of the British North America Act
deals with the judicature, and reference must
also be made in addition to that part to Head
14 of Section 92 of the BNA Act, which gives
legislative jurisdiction in relation to the con-
stitution, maintenance and organization of
provincial courts, both civil and criminal, to
the provincial legislatures. The situation in
this country is that all the provinces have
established a superior court system for their
purposes, that is, the administration of justice
in the province to which judges are appointed
by the Governor General pursuant to Section
96 of the British North America Act. Those
judges, following upon appointment, hold
oifice during good behaviour until they attain
the age of 75 years and are removable from
their office by the Governor General on joint
Address of the Senate and of the House of
Commons. Pursuant to Section 100 of the
British North America Act, the salaries,
allowances and pensions of these judges are
fixed and provided by the Parliament of

The importance of these provisions, that is
Sections 96 to 100, has been emphasized on
more than one occasion by the Judicial Com-
mittee of the Privy Council. And in the well-
known case of Martinoau and Sons Limited
against the City of Montreal decided in 1932,
Lord Blanesburgh said at pages 120 and 121
that Section 96 was shown “to lie at the root
of the means adopted by the framers of the
statute to secure the impartiality and the
independence of the Provincial judiciary”.
Lord Atkin underlined the same point in
Toronto Corporation against York Corpora-
tion decided in 1938, where he said that Sec-
tions 98 to 100 are “. . .the principal pillars in
the temple of justice, and they are not to be

By way of contrast, Section 101 of the Brit-
ish North America Act authorizes the Parlia-
ment of Canada to provide for the constitu-
tion, maintenance and organization of a
general court of appeal for Canada and for
the establishment of any additional courts for
the better administration of the laws of
Canada. Because of this provision, it can be
said that the Fathers of Confederation
anticipated the ultimate need for a general
court of appeal for Canada and the Supreme
Court of Canada represented to some extent
the fulfilment of that need when it was first
established in 1875. It must therefore be kept
in mind that the very existence of that Court
itself, the jurisdiction that it exercises and its
fundamental structure depend entirely upon
an act of the Parliament of Canada known as
the Supreme Court Act. By virtue of the
provisions of that Act, the Court consists of a
Chief Justice and eight other judges who are
appointed by the Governor in Council. At
least three of the judges of that Court must
be appointed from the Bench or Bar of the
Province of Quebec, and all of the judges
hold office during good behaviour until age 75
but again are removable by the Governor
General on address of the Senate and House
of Commons. In short, many of the provisions
that are written into the British North Am-
erica Act respecting the provincial superior
courts are in effect repeated in the Supreme
Court Act as referable to the Supreme Court
of Canada.

In a federal state such as Canada, a final
court of appeal is a most important institution
because as the law now stands it finally
determines disputes between subjects or
between subjects and the state within a juris-
diction that is established by Parliament
itself. Again as matters now stand, the
Supreme Court of Canada has jurisdiction to
strike down any act of a legislature or of
Parliament itself on the ground that the act is
ultra vires the constitution, It is also the final
authority on the meaning and application of
all laws enacted in this country whether they
be enacted by provincial legislatures or by
Parliament itself, again within a jurisdiction
that is prescribed by an act of Parliament.

When the British North America Act was
written, the ultimate appellate tribunal was
of course the Judicial Committee of the Privy
Council, and this is no doubt the reason why
Section 101 of the British North America Act
provides for a general court of appeal for
Canada in the way that it does. Since Privy
Council appeals have been abolished, the
provisions of Section 101 of the British North
America Act will appear to many to be some-
what inadequate to support the maintenance
and existence of such an important judicial
tribunal and this is the circumstance that has
motivated many of the federal government’s
propositions as set out in The Constitution
and the People of Canada. Indeed, eight of
the ten propositions found at pages 82 to 85
deal with the Supreme Court of Canada and
in substance provide that its constitution,
maintenance and a good deal of its jurisdic-
tion should be built into the Constitution
itself because of the important role that it
now plays in the Canadian context.

I should perhaps say a special word about
two of these propositions, namely propositions
3 and 4. The third proposition found at pages
82 and 83 is that nominations of persons to
the Supreme Court could be placed before the
Senate for approval prior to appointment.
This proposition was advanced in the context
of the creation of a Senate of a somewhat
different kind from that which now exists
and which would include Senators appointed
by provincial governments. The rationale of
this proposition is, I think, set out fairly
clearly at pages 42 and 43 where it is stated
that if the proposals for the revision of the
Senate are adopted, provincial viewpoints
would be effectively expressed by this means.

The fourth proposition found at pages 82
and 83 differs somewhat in character from
the other propositions in that it visualizes a
provision of the constitution that would
permit the Court to say that a prior decision
was wrongly decided and this is a power that
would give an increased degree of flexibility
to a new or modified constitution. The
rationale for this proposition is, I believe, suf-
ficiently disclosed in the paragraph that fol-
lows it.

The ninth proposition found at pages 86
and 87 simply contemplates the continued
right of the Parliament of Canada to establish
federal courts for the better administration of
its own special laws but again it would also
contemplate that such important matters as
appointment, tenure and independence be
dealt with in the constitution itself rather
than in the Act of the Parliament of Canada
establishing the court.

The tenth proposition simply reflects the
status quo that is now set forth in Section 96
of the British North America Act. It is felt
that this power of appointment to the senior
provincial courts should continue to exist if
an integrated court system is desired and is
considered worth maintaining. By an inte-
grated court system, I mean a system which
permits and encourages the Parliament of
Canada to confer important areas of jurisdic-
tion on the provincial superior courts and on
the county and district courts, and I mention,
simply as an example, the jurisdiction to
administer the criminal laws of this country
as set forth in the Criminal Code and in other
important federal statutes.

The removal of any visible connection
between the federal administration on the one
hand, and the provincial court system on the
other, would in all probability result ulti-
mately if not immediately in the development
of a parallel court structure along American
lines for two very good reasons: firstly, the
federal administration would not likely main-
tain confidence in a judicial system in respect
of which it had or could play no role at all;
and secondly, it would seem unlikely to many
that reasonably uniform and satisfactory
standards of appointment to those courts
could be maintained across the country. The
administration of federal statutes that are
uniform across the country is suggestive, of
course, of uniform standards of appointment.

In conclusion I should mention that at its
session in February 1969, the Constitutional
Conference, agreed that the constitution
should provide for the independence of the
judiciary and established a ministerial com-
mittee to consider other matters relating to
the judiciary. This committee has met on two
occasions and an interim report was made in
December of last year to the Constitutional
Conference by the Minister of Justice who
acts as Chairman of that committee.

The ministerial committee is scheduled to
meet again later this year. That committee
has given some consideration to the proposi-
tions that I have been describing as well as to
the provincial positions and there is fairly
general agreement in a number of areas, par-
ticularly with respect to the inclusion in the
constitution of provisions respecting the
structure, basic jurisdiction and power of
appointment of the judges of a Supreme

Gentlemen, that is a brief, perhaps some-
what hurried survey of the federal govern-
ment’s position as we have so far advanced it.
Thank you.

The Joint Chairman (Mr. MacGuigan):
Thank you, Mr. Maxwell. The area which we
are discussing today in some ways covers a
more limited area than we have been exam-
ining previously but perhaps our questions
will reveal that in depth it encompasses just
as much as any of the others. Mr. Allmand, I
understand you have to go to another meet-
ing, for that reason would you like to begin
the questioning today?

Mr. Allmand: I have no questions right

The Joint Chairman (Senator Lamontagne):
Are non-lawyers allowed to ask questions?

The Joint Chairman (Mr. MacGuigan): Per-
haps that might be an appropriate way to
begin, with a question from a layman, a very
sophisticated one.

The Joint Chairman (Senator Lamontagne):
Has any alternative been considered to this
set of proposals, such as to consent to have a
kind of special constitutional court?

Mr. Maxwell: Yes, Senator Lamontagne.
The Province of Quebec has advanced a
number of propositions directed toward that
end which have been discussed without per-
haps any consensus being reached about that
possibility except that generally, I would
judge, the proposal has not found great
favour with the other provinces and indeed
not much with the federal government.

Senator Flynn: Do you say the other prov-
inces would favour a constitutional court
having the same mixed jurisdiction in civil,
criminal and constitutional matters as the
present court?

Mr. Maxwell: I think one would infer from
what has been said so far that, in general,
there is more support at the time for a court
as we now have than a court of special con-
stitutional jurisdiction, which is the sort of
thing the Province of Quebec has advanced.

Senator Flynn: With regard to the provi-
slons of the BNA Act giving authority to the
federal government to establish a general
Court of Appeal in Canada—of course, at that
time, I can mention the last Court of Appeal
was the Judiciary Committee of the Privy
Council which was acting also as the last
court in constitutional matters—it is only by
accident, I would say, that the section of the
BNA Act, giving this power to the federal
government, gave the Supreme Court of
Canada the role of the last court in constitu-
tional matters. The Fathers of Confederation
did not envisage that the Supreme Court of
Canada, which could be created, would
become really the last court in constitutional

Mr. Maxwell: That may be so. Mind you,
the federal court enjoys that position today
largely for the reason that all appeals to the
Judiciary Committee have been abolished. I
suppose, in some respects it gets it in part by
default; on the other hand it was a clear
mechanism contemplated by the constitution
at the time.

Senator Flynn: The constitution did not
foresee the coalition of the appeals of the
Privy Council.

Mr. Maxwell: Well, not specifically.
Mr. Gibson: Was the amendment unani-

The Joint Chairman (Senator Lamontagne):
But if the proposed form of the Senate is not
accepted there is no further mechanism being
contemplated at the moment for consultation
directly or indirectly with the provinces for
the appointments of judges to the Supreme

Mr. Maxwell: Senator Lamontagne, there
are other possibilities in this regard but the
federal government has not so far embraced
any of them; we have them under considera-
tion. One possibility of course, would simply
be to have appointments approved by, let us
say, the House of Commons. This of course
would give a certain amount of…

The Joint Chairman (Senator Lamontagne):
I am sure Mr. Brewin would prefer this.

Mr. Maxwell: That is one possibility, there
are other possibilities, too, of course. One
other possibility might be to have some sort
of advisory council established to exercise
some sort of advisory type function, not veto
power nor perhaps appointing power.

Senator Flynn: Consultation with the prov-
inces for instance.

Mr. Maxwell, coming back to the problem
of the Privy Council, the abolition of appeals
to the Privy Council have resulted from deci-
sions of both the federal Parliament and pro-
vincial legislatures, because in civil matters it
had to be a decision of the provincial

Would you care to comment on the theory
that has been occasionally advanced that
these laws abolishing appeals to the Privy
Council dealt only with matters other than
constitutional problems or confiicts between
the two levels of government. Have you ever
heard of that theory, that we would still be
able to appeal to the Privy Council in consti-
tutional matters?

Mr. Maxwell: No, I have not heard that
theory put forward before. I would be
inclined personally to doubt that there is
much in that theory because, of course, if
appeals were abolished by an Act of Parlia-
ment and…

Senator Flynn: Because the wording
seemed to refer only to matters coming exclu-
sively under either the jurisdiction of the fed-
eral Parliament or the jurisdiction of the
provinces. Nothing was said about conflicts or
the BNA Act.

Mr. Maxwell: I suppose that may be so but
I would think, as a practical matter, that the
judicial committee would hear any appeals in

Senator Flynn: So do I. I am quite con-
vinced of that, too.

The Joint Chairman (Mr. MacGuigan): Do
you have other questions, Senator Flynn?

Senator Flynn: Only the problem of wheth-
er you have to choose between a court which
would have a mixed jurisdiction as we have
now and creating a new court which would
be specialized or restricted to constitutional
matters. And what you say is that Quebec is
at present the only province favouring the
latter system.

Mr. Maxwell: That is my appreciation of
the position at the moment, Senator Flynn.

Senator I-‘lynn: Has there been any sugges-
tion that an ad hoc court might be constituted
having members of the Supreme Court and
members of the provincial Courts of Appeals,
for instance, to hear matters dealing with
constitutional conflicts?

Mr. Maxwell: I imagine that is one of the
permutations or combinations that we have
thought about. Mind you, the problem really,
Senator Flynn, is to make certain that any
case that comes before the court can be heard
in its entirety as a constitutional issue along
with any other issues that might be involved.
And if you set up even an ad hoc tribunal to
hear a constitutional point alone, I mean you
are really back into the same position of frag-
menting your case in appeal which is not
really very satisfactory.

Senator Flynn: It would not guarantee uni-
formity of jurisprudence.

The Joint Chairman (Mr. MacGuigan): Mr.

Mr. Brewin: Mr. Chairman, I would just
ask Mr. Maxwell to comment on the proposi-
tion that to expose men or women who were
thought to be fitted for high judicial position
to scrutiny by a legislative body, be it Senate,
or an amended or reformed Senate, or some
representatives of the House of Commons—
and there are some precedents in the United
States for thinking this—is an embarrassing
and perhaps difificult process. Has that been

Mr. Maxwell: Yes, it has, Mr. Brewin, and
there is no doubt about it that it does have its
embarrassing aspects. On the other hand, one
might be inclined to think, at the present
time, that it has also some beneficial aspects.
This is the thing that you have to try to
balance I suppose, In many ways it might be
diflicult to attract really excellent people to
the court if they felt that they were going to
have to go through that sort of experience.

Mr. Brewin: I would hate to be exposed to
a Senate inquiry myself.

The Joint Chairman (Senator Lamontagne):
You will never go there, anyway.

Mr. Maxwell: On the other hand, it does
work, perhaps as a safeguard, and if it were
exercised in a proper way, in a sensitive way,
it might work very well. But there you have

Mr. Brewin: May I ask you another thing.

As I understand it, the federal government
has indicated that it is willing to consider
some form of appointment to the Supreme
Court of Canada bench, through the provincial
representatives in the Senate or through an
advisory committee, and give the provinces
some say in this. But with regard to the
judges of the provincial courts, did I under-
stand you to say—I perhaps was not paying
as close attention as I should have—that the
proposition is to hold on to the present system
whereby all the appointments are by the fed-
eral government?

Mr. Maxwell: The federal position, Mr.
Brewin, is that we regard the contribution we
now make to the provincial court system as a
necessary conditon of an integrated legal
system such as we presently enjoy in this
country. If the federal government is cut off
completely from having anything to do with
that system, we are inclined the feel that the
integrated system will not survive for very
long. We think it will go the way of United
States, because of course we would just have
nothing to say at all about the system if we
had nothing to do with it.

The Joint Chairman (Senator Lamontagne):
I thought that judges were independent.

Mr. Brewin: I am not usually a strong sup-
porter of provincial rights but do you not
think provincial governments are just as
capable as the federal government of seeing
the importance of a high quality of appoint-
ment to the judicial bench. Is it not a little
gratuitous to assume somehow or other—after
all, you will have full control of the proposed
Federal Court that is going to have an
extremely important jurisdiction—that the
provinces cannot be trusted to appoint at an
equally high level? And I fail to understand
why you assume that they will not attempt to
administer the law in as integrated a fashion.
After all the judges when they are appointed
are independent, you are providing for their
independence. I cannot quite see the force of
this argument, frankly.

Mr. Maxwell: The way you have put this,
Mr. Brewin, is not the way I would like to see
it put. It is not that we feel they are not
capable or would not do it. The real question
is whether or not a federal government would
maintain its confidence in that system.

I would be fearful that it would encourage
the development of parallel systems rather
than the integrated system we now enjoy.
Maybe that would be a good thing, I do not
know. I think most people feel that the
system we have at the present time is prefer-
able to a parallel system.

Senator Flynn: But how do you compare?
After all, the creation, the organization of the
courts is a matter for provincial jurisdiction.
It is only the selection of the members of the
court which belongs to the federal authority.
What was the reason, at the time of the BNA
Act, for giving this power exclusively to the
federal government while at the same time
giving the responsibility to the provinces for
organization of the courts at all levels?

Mr. Maxwell: There were probably a great
many reasons at that time for the setup that
is now found within the British North
America Act. I suspect that, at that time,
when the thing was in its infancy, there
might have been some real concern about the
difficulty of provincial appointments. Perhaps
there is not the same reason for concern

On the other hand, you do have uniform
standards in the approach to appointment
which would be unlikely were you to have all
the provincial governments making their own
appointments to their courts. some of them
might do an excellent job, others might not,
and that would be an unsatisfactory situation.
That is one of the considerations that might
be involved here.

Senator Flynn: I suggest that does not
apply to whether the selection is made by
provincial authority or by a federal authority.

Mr. Maxwell: Well, when the appointments
are made by the federal authority, presuma-
bly they are uniformly good or uniformly

Senator Flynn: My experience has not been
such. I have seen very bad appointments by
both levcls of government, and very good
ones, too.

The Joint Chairman (Senator Lamontagne):
I have always been interested in two kinds of
appointments, the appointments of bishops in
the Catholic Church and the appointment of
judges. I have never been able yet to find out
how bishops are appointed, but with our
judges being appointed at the federal level at
the moment, do I understand that this is now
a recognized procedure that there is consulta-
tion with the Bar Association?

Mr. Maxwell: Yes, that has been the system
that has been followed in recent times by the
federal government.

Senator Flynn: There has been a revolution
in the Church, too, in the selection of bishops.

The Joint Chairman (Mr. MacGuigan): I
think perhaps we should get back to Mr.

The Joint Chairman (Senator Lamontagne):
No, I think it is directly related. Do the
provinces do the same thing when they ap-
point judges?

Mr. Maxwell: I am afraid I could not speak
on that subject.

Mr. Lachance: Yes, they do, Mr. Chairman,
in the Province of Quebec. They consult the
Bar Association and they consult the Chief
Justice usually of each court.

The Joint Chairman (Mr. MacGuigan):
Gentlemen, I have been very tolerant of
the talk back and forth. We have been having
a very amicable and leisurely meeting, but I
think perhaps we should get back to Mr.

Mr. Brewin: Mr. Chairman, could I occupy
the floor for a brief moment by making a
comment? It is so non-partisan that I think
you will let me get away with it.

I believe that the appointments that have
been made by the present Minister of Justice,
as far as I have been able to observe, have
been of a very high level. They have not been
of a political nature, and if they have been
due in any measure to consultation with the
Bar Association, I think it might be important
to write in something that will make this into
a regular constitutional tradition. I think
all agree that in theory appointments should
not be made as a reward for political contri-
butions and services, and perhaps we can
later consider whether some formalizing of
this might be worthwhile.

I have put that in the form of an assertion.
Perhaps I could ask Mr. Maxwell if he could
comment on it.

Mr. Maxwell: Well, we have given some
thought, to that possibility, or to a possibility
along those lines, of having provision in the
Constitution for a consulting process of some
sort with some body or group, and that
would probably be useful. The difficulty, of
course, is to define the group. One could talk
about the Canadian Bar Association, but after
all, it would not be usual to put that in the
Constitution, I would not say. The other prob-
lem of course, is to make certain that it is
really meaningful. You can consult and con-
sult, but sometimes consultation does not mean
very much. In short, it really boils down to
whether the appointing authority really takes
it seriously. Is he really guided by their judg-
ment, or does he just consult on some pro
forma basis? You really would not be able to
control that by putting it into the Constitu-
tion. Those are the only two comments I
could make on the suggestion. But it is proba-
bly a useful thing to explore.

The Joint Chairman (Senator Lamontagne):

The Joint Chairman (Mr. MacGuigan): Mr.

M. Allmand: Could you say, Mr. Maxwell,
why a completely separate system of federal
and provincial courts was not proposed? I was
reading, and I do not know whether you said
that or not.

Mr. Maxwell: What I said was that the
federal position in this regard is that we
would prefer to see a continuation of what
we described as the integrated court system,
Which means that you have provincial courts
administering substantial areas of federal
laws. What I said was that I felt that this
might well be in jeopardy if the federal
administration was wholly cut off from any
say in the provincial administration of justice.

Mr. Allmand: I heard you say that, but I
was wondering—for example, it seems logical
to me that there should be two separate sys-
tems, and I was wondering whether you had a
system of provincial courts which interprets
provincial laws and a system of federal courts
which interprets federal laws, with the feder-
al courts also dealing with conflicts between
the two and the Constitution.

Mr. Maxwell: Yes, we would be tending
toward the American division.

Mr. Allmand: Why do we not have it?
What arguments have been proposed against
having it? Or was it discussed?

Mr. Maxwell: I suppose we might end up
having it, Mr. Allmand if we move in certain
directions: as a matter of fact, as I understand
the American Constitution, it is not because
of the Constitution itself that they have the
present complex system. It is because, as I
understand it, more and more the federal
administration has been inclined to put the
administration of its laws into its own courts,
probably for the reason that it does not really
find that it is happy with having it adminis-
tered in the state courts to a great extent.
But you get a very complex and cumbersome
legal system if you have the two parallel
systems. At least that would be, I think, the
major argument against it.

Senator Flynn: You have it in Quebec, in
practice. I am not saying that everything has
been settle under the legal plan, but you have
it in Quebec at present.

Mr. Allmand: You do not have it where
you have the Superior Court of Quebec with
the judge appointed by the federal govern-
ment. You have the Civil Code, which is a
purely Quebec institution, often being inter-
preted by judges on the Supreme Court who
are not trained in the civil law. This is why I,
as a citizen of Quebec, or whatever you want
to call it, see provincial courts with judges
appointed by the provinces interpreting pro-
vincial laws, and federal courts interpreting
federal laws with judges appointed by the
federal government. And at the present time
we do not have that. Were there proposals by
Quebec to suggest anything like this?

Mr. Maxwell: Well, of course, the Quebec
propositions naturally go toward the appoint-
ment of their own judges.

Mr. Allmand: Is the Superior court level a
court of appeal?

Mr. Maxwell: Oh, yes. They would be
departing from the present principle in Sec-
tion 96 of the British North America Act, but
I think that the argument against that is that
you would probably result in the parallel
structure that we at the federal level at the
moment at least are seeking to avoid.

Mr. Allmand: But I am wondering why you
are seeking to avoid it.

Mr. Maxwell: We think we have a better
system than the parallel system.

Mr. Allmand: Do you think it is better to
have common law trained judges sometimes
judging on civil law precedents and reading
Dalloz and other cases that they are not used
to reading.

Mr. Maxwell: May I stop you there, Mr.
Allmand, at this point? The fact is, of course,
that the federal appointments do not produce
the result you mention. When the government
appoints judges to the Quebec courts, they
naturally appoint people who are trained in
the civil law.

Mr. Allmand: Oh, yes.

Mr. Maxwell: But it is at the Supreme
Court of Canada level that you have the kind
of problem that perhaps you are mentioning,
and that is a criticism that has been levelled
at the court by people from Quebec. Addly
enough, it is not a criticism that one hears too
often from the other way around, but I sup-
pose it could be levelled that way.

Mr. Allmand: Sure.

Mr. Maxwell: I suppose perhaps in the end
everything turns on one’s final philosophy as
to whether the systems should merge or
whether they should remain separate and dis-
tinct, and you should be a specialist in one
and know very little or nothing about the
other. That is perhaps a philosophical

The Joint Chairman (Mr. MacGuigan): Per-
haps I could just interject at this point. There
was some discussion in the Justice Committee
recently which was relevant to this concern-
ing the Federal Court of Canada bill. At least
one of the witnesses who appeared on that
Bill felt this was the first step toward such a
parallel system of courts and objected to it
strenuously on that basis, so this is a some-
what controversial matter within the legal
profession. As I recall, that witness was a law

Senaior Cook: May I make an observation?
It would be very unfortunate for the smaller
provinces such as Newfoundland if we did
not have the right to go to the Supreme Court
for the interpretation of the law. We have a
very small population and I think it would be
rather unfortunate that our own Supreme
Court would necessarily be the very last court
of appeal where you have a small bench and
a small population.

Senator Flynn: Mr. Chairman, may I men-
tion that the question raised by Mr. Allmand
goes further than the discussion has indicated
up to now. There is the problem of a constitu-
tional couxt and there is also the problem of
the last court of appeal in all other matters,
be it criminal or civil matters. I think the
Province of Quebec has not objected to
retaining practically the courts we have as
the last court of appeal in matters other than
constitutional matters. The only objection
which has been raised is the one which Mr.
Allmand has mentioned, that sometimes civil
cases are heard by common law-trained
judges who are maybe not entirely qualified
to deal with them. The suggestion has been
made that possibly when you have an appeal
from the Province of Quebec in matters deal-
ing with civil law only, the judges of the
Supreme Court who would hear it would be
judges trained in the civil law. This is some-
thing entirely aside from the problem of a
constitutional court where really you would
be dealing with conflicts between the two
levels of government. . .

Mr. Maxwell: That is true, Senator Flynn.

Senator Flynn: . . .and there the problem
of whether they are trained in the common
law or in the civil law does not arise at all.
The objections have come from the provinces
who say a court appointed by one party is not
a real referee for settling these matters.

Mr. Maxwell: On the narrow question you
mentioned, of course, it is not uncommon to
have a case which consists in part of provin-
cial law and in part of federal law. Then, of
course, if you had any system where you
would have to bifurcate your case, that would
be inconvenient, to say the least. It might
cause great confusion to litigants.

Senator Flynn: Oh, yes, no doubt.

The Joint Chairman (Mr. MacGuigan): Mr.
Allmand do you have other questions?

Mr. Allmand: No.

The Joint Chairman (Mr. MacGuigan): Mr.

Mr. McQuaid: I wonder Mr. Maxwell, if
any consideration had ever been given to
taking away from government altogether the
matter of appointments to our Supreme
Courts. I agree with Mr. Brewin that in the
past, of late years anyway, our appointments
have been very satisfactory, but I think we
are all frank enough to face the fact that
politics do to a great extent enter into the
appointment of judges. For example, I do not
remember of very many cases under a Con-
servative government where a well-known
Liberal was appointed to the Supreme Court.
I would be particularly anxious to see
appointments to the. . .

The Joint Chairman (Senator Lamontagne):
I know the opposite, though.

Mr. McQuaid: The opposite would, I think,
in all fairness apply, too. think we have to
face this fact. It is a known fact.

Senator Flynn: It was not known. I know
the case you are referring to and they did not

The Joint Chairman (Senator Lamontagne):
This case was very well known.

Mr. McQuaid: I am particularly pleased
with the suggestion, I believe it was advanced
by the Province of Manitoba, that appoint-
ments tu the Supreme Courts of the provinces
should be within the jurisdiction of the prov-
inces themselves. I am not suggesting it
should be within the jurisdiction of the gov-
ernment of the province, but it should be
determined, perhaps, by a counsel of the Law
Society or taken apart altogether from poli-
tics. I am quite confident if we did that we
would—I am not saying we have not got a
good quality of judge right now—be assured
of always having a good quality of judge if
that were done. I am particularly thinking of
our County Courts. They are exclusively of
very local jurisdiction, and I do not see any
paiticular reason why qualified appointments
to the County Courts could not be done by
our provincial authorities rather than by
placing it in the hands of the federal

Senator Flynn: By provincial authorities
you mean. . .

Mr. McQuaid: I am. thinking now not neces-
sarily of government authorities, but has any
consideration ever been given, Mr. Maxwell,
to having these appointments being made by
our law societies rather than by our

The Joint Chairman (Senator Lamontagne):
So you would have really much more of a
closed shop than you have now.

Mr. McQuaid: It is a closed shop anyway.
Nobody is going to be appointed to any court
unless he is a barrister in good standing, I do
not think there is any question about that,
but this, as I see it, would separate it entirely
from politics.

Mr. Maxwell: I think, Mr. McQuaid, if I
might say, it is felt in some quarters that you
simply would have politicking on a different
order in the development of that system.
However, I think there is something to be
said, perhaps it is overstated in some quar-
ters, about the concept of ministerial
responsibility and accountability. When the
Minister of Justice and the Prime Minister
make judicial appointments, I think perhaps
it is a salutary thing that they are at least in
theory, and in fact, responsible to the people
of Canada through Parliamentary institutions.
I think, perhaps, that is not an unimportant

Mr. McQuaid: I must say I do not agree,
although apparently I have not got much sup-
port within the Committee, with your just
taking it out of one basket and putting it in
another. I suggested the law societies should
be given the say in these appointments,
because after all, the men who comprise the
counsels of the different law societies of the
province are the very men who are going to
have to be practising before these courts, and
I think they are going to be particularly con-
cerned to see that they get really well-quali-
fied men to act in the courts. I am not sug-
gesting for a moment that the provinces
should have anything to do with the appoint-
ments to the Supreme Court of Canada, that
could very well be left as is. I am not suggest-
ing that. However, when you get into our
provincial courts, for two reasons, I think the
provinces should have the say. First of all, in
all probability the counsels of the law socie-
ties are better qualified to judge the qualifica-
tions of A,B,C, and D, as to whether they
should be appointed to the Supreme Court,
and in addition to that, they have the interest
of seeing they have good men appointed to
the judiciary because these will be the men
before whom they will have to practise in the
years to come.

The Joint Chairman (Senator Lamontagne):
Have you ever participated in the elections of
the local Bar Association?

Senator Flynn: My experience would not
suggest I share the views of Mr, McQuaid. We
have had elections at the Bar for the post of
bâtonnier or otherwise. The decision is not
made necessarily on a merit basis and some-
one who might be very qualified, if he hap-
pens to be unpopular, would never be
appointed to the bench by any law society,
although he would be very capable possibly.

Mr. McQuaid: As I understand it now, Mr.
Chairman, as Mr. Maxwell, I believe, has
already said, law societies are consulted.

Senator Flynn: Yes but that does not…

Mr. McQuaid: Surely a great deal of atten-
tion must be paid to their recommendations.

Senator Flynn: Sure.

Mr. McQuaid: Perhaps, in effect today these
appointments are being made on the recom-
mendation of the law societies of the different
provinces. The only difierence being it there
is a Conservative government in power and
the law society recommends a Liberal, he is
not going to get the appointment. I think we
can be pretty sure of that.

Mr. Gibson: Can I ask a supplementary?

The Joint Chairman (Mr. MacGuigan):
Excuse me. Senator Cook is ahead of you on
a supplementary when we have them, but Mr.
McQuaid, I think, would like an answer from
Mr. Maxwell, a comment perhaps.

Mr. Maxwell: I think in terms of the way it
is in fact done at the present time is that the
Bar committee considers proposals and
decides whether or not the persons who are
put forward are proper appointments, I do
not think they, in fact, recommend the person
to be appointed, and that is, perhaps, a rather
important distinction, Mr. McQuaid, in the
sort of thing that you are suggesting, as I
understood it.

The Joint Chairman (Senator Lamontagne):
He has to apply the list.

Senator Flynn: It gives them a sort of a
veto to say, “You are going to make a mis-
take if you appoint so and so.”

Mr. McQuaid: Where does this list oniginate
in the first place?

The Joint Chairman (Mr. MacGuigan): Mr.
McQuaid, are you agreeable to supplementar-
ies at this point?

Mr. McQuaid: Yes.

The Joint Chairman (Mr. MacGuigan):
Senator Cook?

Senator Cook: Actually my observation is
to the effect that the Bar has a right of veto
rather than recommendation on this.

The Joint Chairman (Mr. MacGuigan): Yes,
Mr. Gibson?

Mr. Gibson: When you say the Law Society
do you mean the Treasurer of the Law Socie-
ty or the President of the local? There is
quite a discrepancy. The Law Society consists
of nearly all the lawyers in the province. Is
the consultation made with the Treasurer and
one or two officers of the Law Society, or the
benches, or how broad is the inquiry?

Mr. Maxwell: Of course, mind you, I think
one can say that consultations of vamous
kinds take place and perhaps the consultation
that we are talking about more specifically is
the one that the Canadian Bar Association.
There is the committee established by the Bar
expressly for the purpose of assisting the
Minister of Justice in making judgments
about persons he is considering appointing.
This is the committee that has its own con-
tacts across the country. I could not be specif-
ic about it because frankly I am not involved
in this thing personally, but I do know in
general how it operates.

In addition to that, I am quite certain there
are other consultations. I am sure there are
consultations with Chief Justices and perhaps
even more local consultations as well,
depending again on the circumstances, per-
haps the importance of the appointment and
so on.

An hon. Member: It seems to be working
well the way it is working now.

The Joint Chairman (Mr. MacGuigan): Mr.

Mr. McQuaid: I am through; thank you,
Mr. Chairman.

The Joint Chairman (Mr. MacGuigan): I
might ask a question myself with regard to
stare decisis. I note that in the fourth of these
proposals with respect to the Supreme Court
it is suggested:

4. The Constitution should authorize the
Supreme Court of Canada to depart from
a previous decision when it appears right
to do so.

I wonder what the reason was for feeling that
it was necessary to suggest the inclusion of
such a provision in the Constitution, as the
notes go on to say, both the United States
Supreme Court and more recently the House
of Lords have come to the conclusion that
they are not bound by their previous decisions
and I have written an article myself in the
Canadian Bar Review taking the same posi-
tion here. However, it is at least arguable that
this is a matter which is best left to the court
itself to decide and is best not put into the

Mr. Maxwell: Mr. MacGuigan, you are
quite right in thinking that perhaps the
Supreme Court of Canada might itself one
day come to the same conclusion. I am suie
there are many lawyers who feel that what
has happened in England so far as the House
of Lords is concerned is rather a unique
development. It is the sort of thing that they
do in England and get away with, but I do
not know whether the Supreme Court of
Canada could bring itself at least in the near
future to make what would seem to a lot of
lawyers to be a rather startling departure
from tradition.

There are some indications in one or two
cases where a minority have expressed a
view along these lines, but that is quite a long
way removed from getting it established as a
firm principle. We thought perhaps that if we
were going to rewrite a constitution or amend
it in this way that it might be a useful thing
to put into it to put it beyond doubt and
indeed make it a political consensus rather
than some sort of ex post facto judicial devel-
opment at a later stage.

The Joint Chairman (Senator Lamontagne):
Why do you not put that in the bill on funda-
mental rights, that judges from now will be

Senator Flynn: I think the Supreme Court
has done it without saying it. I mean the
result is the same. I do not think the Supreme
Court has in fact considered itself bound by
its previous decisions. They have never said
that it was not, but they have acted as if they
were not.

The Joint Chairman (Mr. MacGuigan): Mr.
Maxwell, I see that the purpose you are serv-
ing here then is not as I would see it as so
much a constitutional purpose directly as the
progress of the law generally, and any que-
ries that I would raise further about this is
whether this might not or perhaps has not
been seen by some provinces, perhaps as a
provocation in the sense that the provinces
might feel that if such a rule were written
into the Constitution there would be very
little security in terms of past interpretation.
Certain tradition and interpretation is taking
place. Many people in the country disagree
with it, feeling that the Privy Council, for
instance, gave too many powers to the prov-
inces, powers which they perhaps were not
originally intended to have and by writing
this into the Constitution you, perhaps, sug-
gest indirectly the judicial repeal of present
constitutional interpretations through this
way. This could prove an unsettling factor in
constitutional negotiations. Could you say if it
had that effect, for instance, in the discussions
so far?

Mr. Maxwell: I do not think it has frankly.
I know there have been one or two provinces
that have expressed some doubt about the
wisdom of this proposition, but I think gener-
ally most people would feel that it was a
desirable flexibility to have in the Constitu-

In point of fact, of course, the Privy Coun-
cil because it was not a court was not bound
by its own precedent and we have gotten
along reasonably well I think in that regard.
At least if there were any problems it was
not because of that principle as far as the
Privy Council was concerned.

The Joint Chairman (Senator Lamontagne):
Some of them were described as the step-
fathers of Confederation though.

Mr. Maxwell: I do not think the problem,
as I say, stemmed from the fact that the
Privy Council was not bound by precedent. I
would feel that it would be a constructive
thing to put in the Constitution, speaking for
myself. I think for the most part this should
not be too serious a stumbling block.

The Joint Chairman (Mr. MacGuigan):
Thank you. Mr. Brewin?

Mr. Brewin: Could I ask a question? In fact,
I have forgotten if I ever knew, but has the
Supreme Court of Canada stated, after the
Privy Council appeals were abolished, wheth-
er it felt itself free up to now, not reversing
its own previous decisions, but changing the
law in a way that was inconsistent with ear-
lier decisions in the judicial committee?

Mr. Maxwell: I have a feeling, Mr. Brewin,
that the Supreme Court would probably
reverse a judicial committee decision as a
first step to reversing one of its own, but I am
not sure that I can say. . .

Mr. Brewin: I thought we had perhaps dis-
cussed it.

Mr. Maxwell: I am not certain it has been
discussed really. It seems to me that some-
where there is a discussion about whether or
not they should be bound by the prior deci-
sions of the judicial committee, but I do not
think it is clearly decided anywhere.

The Joint Chairman (Mr. MacGuigan): No,
it is not really decided anywhere, and as to
whether they departed from one of the deci-
sions I suppose this is arguable. They have
not, they have never expressly overruled one
of these previous decisions, I believe.

Mr. Brewin: This amendment that you sug-
gested, Mr. Maxwell, might encourage them
to do so if they thought that policy and
statesmanship and all the rest of it required
them to do so.

Mr. Maxwell: Yes. They would cease to be
quite so inhibited, I think, if this were put
into the Constitution. Obviously it is a matter
of philosophy whether that is a good thing, I
suppose, or a bad thing. I may say that I
think the Supreme Court have said that they
are not going to follow the House of Lords in
all cases relating to general law. I think that
has been said anyway.

Mr. Brewin: I have always trusted the
ingenuity of courts not to distinguish previous
decisions that they did not want to follow in
any event.

The Joint Chairman (Senator Lamontagne):
If this were to happen, this kind of develop-
ment, perhaps we might revive the trade and
commerce laws in our constitution which
have never been applied.

Mr. Brewin: Exactly; that is rather

The Joint Chairman (Mr. MacGuigan): We
might not need a constitutional amendment
process at all.

Mr. Brewin: We need all the amending pro-
cesses we can get.

The Joint Chairman (Mr. MacGuigan): In
the absence of any other pressing question, I
might ask you another question myself.

It somewhat concerns me, with respect to
the decision of appeals and certainly civil law
matters for the Province of Quebec, that
there are only three judges in the proposed
Constitutional Supreme Court of Canada who
would be qualified as a result of their legal
training to sit on that appeal. Has any consid-
eration been given to the possibility of allow-
ing provinces to opt in or out as to whether
or not they would like to have their appeals
and matters of civil law referred to the
Supreme Court of Canada?

I think Senator Cook made a very telling
point with regard to Newfoundland and other
small provinces a few moments ago that if
they did not have the right of further appeal,
this might be very bad for the development
of law there; that the judiciary being small
and inbred might not at all times and in all
areas. . .these are my own words now at this
point the judiciary might not always give
decisions which are in the best social interest,
and certainly not according to the best legal
principles. That could be avoided if the
system were one of option as to whether or
not you allowed appeals to go to the Supreme
Court of Canada.

Mr. Maxwell: Yes, that is very true. That is
not a proposition the federal government has
so far advanced, but I suppose it is one that
perhaps might possibly be considered follow-
ing the current discussions we have under
way at the ministerial level. At the present
time, of course, the jurisdiction of the
Supreme Court of Canada is defined by the
Supreme Court Act itself, but I suppose the
Constitution could provide that in matters of
civil law enacted by a province that it would
have the right to give appellate jurisdiction to
the Supreme Court of Canada or not if it saw

I come back to the fundamental problem as
I see it, which is this. It is not so much where
the Parliament has the power to give the
court jurisdiction over provincial laws, but
really whether or not in practical terms you
should try to divide the jurisdiction up on
that basis because essentially what goes to the
court is not a provincial law, but it is a case,
and a case frequently has elements of both
federal and provincial laws in it. Once you
divide it in that way then you are in some

The Joint Chairman (Mr. MacGuigan): This
has posed no great problem in the American
system as the American Supreme Court gen-
erally speaking hears only constitutional
cases. If a case involves a constitutional point
it is referred to the Supreme Court of the
United States on that point alone and then
referred back to the State court for determi-
nation not in conflict with the decision of the
Supreme Court of the United States. It
involves a little bit more litigation, but it does
not raise any other serious problems that I
can see.

Mr. Maxwell: I am quite certain a system
could be devised which would work. Whether
it would be a very convenient system is
another thing. I think most people feel that
the American system is altogether too com-
plicated and time consuming and costly, but
there again, of course, it is a complicated
country so I suppose you have to have a
complicated judicial system.

The Joint Chairman (Senator Lamontagne):
I suppose it will have free legal care very

The Joint Chairman (Mr. MacGuigan): I
take it from your proposition 7 on page 84 of
the federal paper that it is the intention of
the federal government or the proposal of the
federal government not merely that three
judges from Quebec shall constitute a quorum
for the hearing of cases from Quebec but they
shall also constitute the total number of
judges who shall sit on cases from that prov-
ince which do not involve broader matters.
The phrasing at least is different; it speaks
about a quorum of five judges

…except in cases where the constitu-
tional validity of an Act of Parliament or
of a legislature is in issue in which case
the quorum shall be seven judges;

Then in dealing with the Province of
Quebec it no longer speaks of a quorum but it

. . .the three judges appointed from that
province shall sit on and act in the deter-
mination of those appeals.

So in those cases you have a three-judge
count which would be sitting in an appeal,
say, from a judgment of the Quebec Court of
Appeal in which at least five judges would
have sat.

Mr. Maxwell: I think, Mr. MacGuigan, we
did not intend that. We had in mind there
would have to be a majority of the judges.
Three of the five, of course, would be from
Quebec, but the other two would not be
necessarily from Quebec.

The Joint Chairman (Mr. MacGuigan): That
is the same situation as at present.

Mr. Maxwell: Indeed, the same situation.

The Joint Chairman (Mr. MacGuigan): I am
not sure that is too defensible when you con-
sider that in such cases you are having
common law judges sit in determination on
the civil law of Quebec. Indeed, there have
been at least several cases in which these
common law judges along with the minority
of the civil law judges have formed the law
of Quebec.

The Joint Chairman (Senator Lamontagne):
Perhaps the solution might be to send these
judges to one of those houses owned by the
federal government in Quc’bec City to spend a
year at the Faculty of Law there.

The Joint Chairman (Mr. Maccuigan): To
learn law as well as French.

Senalor Flynn: Of course it was one of the
recommendations of the Prcvost Commission
in Quebec that there should be a school for

An hon. Member: There was a recommen-
dation to Manitoba suggesting that the judges
should be increased to 15.

Mr. Maxwell: There again we gave a lot of
thought and that might well have to be the
answer to increase the size of the court.
Again, we did not wish to jump into that
proposal too quickly because there comes a
point where you get a kind of an unwieldy
court and the American Supreme Court con-
sists ot nine judges and it might look odd to
some if we in Canada had 15 judges. In terms
of size it would seem like quite a few. On the
other hand it might be a way of solving the
problem, or indeed, we might even I suppose
opt for some system whereby we would have,
let us say, three judges of the Supreme Court,
ordinary judges of the Supreme Court, and
perhaps two ad hoc judges. That would be
another possibility. It is hard to know the best

Again, I think, we have to ultimately decide
whether the present system in this regard is
as defective as some people seem to make out.
My impression again is that there have been
comparatively few complaints from the Bar
of Quebec as such. The complaints seem to
emanate, I think, from the Government of
Quebec to a large extent. I am not sure why
that is.

Senator Flynn: On constitutional matters,
of course, I think the reason is not because
you have judges trained in the common laws
because they are appointed by the federal
government, but the other problem exists.
There may not have been very strong criti-
cism from the bar, but there is no doubt that
there has been some because my experience
is that common law judges dealing with civil
cases in Quebec very, very seldom bring in
notes of their own; they merely concur or
sometimes indicate that they follow and they
do not dare give a personal opinion on a case.

The Joint Chairman (Mr. MacGuigan): I am
not sure, Mr. Lachance, whether you had
your hand up earlier or not.

Mr. Lachance: Is it my turn, Mr. Chairman?

The Joint Chairman (Mr. MacGuigan): Yes,
it is your turn.

Mr. Lachance: What would you think of a
province having the right to decide that the
Supreme Court of Canada would act only as a
cour de cassation just like in France, for
instance, on points of law only, instead of the
opting out system?

As you know, Mr. Maxwell, the com de
cassation in France does not render any judg-
ment, does not hear the case; it acts as a cow
de cassation only. Whether they accept or
refuse the point of law, they return the case
if they find that there is a point of law. What
do you think of that?

The Joint Chairman (Senator Lamontagne):
You mean they ignore facts.

Mr. Lachance: They ignore the facts, yes. I
mean the cour de cassation judges only on
points of law in France and if they find there
is a good point of law, they return the case to
the courts.

The Joint Chairman (Senator Lamontagne):
I always thought the courts were born equal
in any kind of legal system.

Mr. Lachance: Instead of having an opting
out system?

Mr. Maxwell: The possibility of the court
deciding the question of law strikes me as
being perhaps the sensitive problem from the
standpoint of the Province of Quebec. That
perhaps concerns them most: the court will
somehow or in some way or other do violence
to a principle of their own provincial law
because of the presence of the judges trained
in common-law. I do not think that suggestion
would really meet the problem as I under-
stand it. The only other comment I can make
on it is that I frankly do not understand how
the system that you describe works because
without understanding the facts of a case, I
do not know how one decides what questions
of law really arise for decision, and how you
decide whether, for example, the facts really
give rise to principle “A” rather than princi-
ple “B”, or whether some modification of
principle “A” comes into play in a particular
case. We deal with that sort of thing against a
backdrop of the facts of a case. Perhaps my
dilficulty is that I am really not in a position
to comment on that sort of thing.

Mr. Lachance: Of course, I am not talking
about constitutional matters, I am talking
about civil matters.

Mr. Maxwell: I understand that and my
comment applies equally to an ordinary civil
case because, as I say, I do not know how you
decide what legal principles you are going to
apply if you do not know the problem as
expressed in the facts of the case.

Mr. Lachance: On the other hand, as you
know very well, in the Supreme Court it is
usually on a point of law that you…

Mr. Maxwell: But not without reference to
the facts of the case.

Mr. Lachance: No, maybe not.

The Joint Chairman (Mr. MacGuigan): Mr.
Gibson, followed by Senators Yuzyk and

Mr. Gibson: Mr. Lachance raised a question
that got my mind going in another direction,
the power of the federal government to make
a reference to the Supreme Court of Canada.
I am anxious to know whether any thought
has been given as to the idea of a stated case,
for example, rent controls; whether the fed-
eral and provincial Attorneys General had
considered the possibility of a stated case,
stated facts or a stated draft statute being
ruled on by the Supreme Court of Canada as
to constitutional validity.

Has this ever been done? I confess I am not
aware of the exact powers of reference of the
Supreme Court. Has there been any discus-
sion as to methods of resolving possible
invalidation of provincial statutes or federal
statutes by this course?

Mr. Maxwell: Yes. There is, of course, the
reference power that is now found in Section
55 of the Supreme Court Act, and this is
sometimes used to resolve constitutional
issues. The one I am perhaps the most famil-
iar with and perhaps may be the best illustra-
tion of a more or less agreed set of facts
going before the court with regard to consti-
tutional cascs is the offshore reference that
took place quite a few years ago, In that
particular case the Government of Canada
and the Government of British Columbia co-
operated to a considerable extent in getting
what each government regarded as the rele-
vant facts before the court; then the court
deliberated and answered certain questions of
law that were posed to it and which raised
questions of a constitutional nature. I am cer-
tain this sort of thing has happened before,
perhaps not to quite the same degree, but it
has happened.

The problem is not a simple one because if
there were any real dispute about the facts,
you would be in serious difficulty at that
stage. Some constitutional cases can be decid-
ed on the basis of principle alone but many
times you have to have some factual back-
ground in order to really understand the con-
stitutional issue.

Mr. Gibson: Has there been much discus-
sion on this topic by the officials or the Attor-
neys General? Is it an active matter of cur-
rent interest or is it rather incidental?

Mr. Maxwell: I think there is considerable
interest in this problem. At the present time,
of course, only the federal government has
power to refer issues to the Supreme Court of
Canada and the provinces have taken on to
themselves a similar power with regard to
their own courts of appeal. The provinces
would perhaps like to be in a somewhat par-
allel position with regard to the Supreme
Court of Canada or the final court, the court
of last resort, whatever it be. This is also
something we have given some thought to.
The trouble with that is that it could be
seriously abused; in some cases the court
might find that it had references all the time
about the law and all sorts of matters and
there are some problems connected with it.

Mr. Gibson: I have a final question. How is
the workload of the Court progressing? With
nine judges and the volume of work that is
coming before it now, is it seriously pressed,
is it up to date or is there a long list of
reserve cases that have not been heard? How
is it running in that respect?

Mr. Maxwell: Generally speaking, people
feel the Court is unduly burdened at the pres-
ent time and certain legislation that the gov-
ernment has put forward was designed in
many respects to relieve the Court of that
burden. Indeed the bill now before the House
of Commons, the Federal Court Bill, was
designed in part to achieve that result. I
cannot be certain whether or not there will
be a long list of remnants. I have not checked
it recently but they feel they are under undue
pressure at this time.

Mr. Gibson: Yes. Thank you very much.

The Joint Chairman (Mr. MacGuigan): Sena-
tor Yuzyk.

Senator Yuzyk: Lacking legal background,
there is not very much I can say about the
administration of law outside the fact that I
would like to see it administered in a most
eificient and just way. Administration of law
as I understand it is of prime concern to
lawyers, and we are dealing here with the
structure of our judicial system. I wonder
whether in this process of constitutional
change, entrenchment or what you want to
call it, the law societies and the law schools
have been consulted? I will put it in a differ-
ent way. Have these proposals been submitted
to law societies and law schools for their
consideration and comment? If such a thing
were done, it would be rather interesting
what the different lawyers would come out
with regarding the administration of law.

Mr. Maxwell: The answer, as best I can
give it, is that I do not think they have
been directed expressly to the law schools or
law societies, but of course the federal gov-
ernment has published its views and its
propositions generally and of course there has
been some comment. But, oddly enough, I am
inclined to think there has not been the
degree of comment that one might have
expected from many of the sources that you

I do not know why that is. Perhaps it is
that people find the whole matter very con-
fusing and difficult to deal with.

Senator Yuzyk: Do you not think it would
help them crystallize their ideas if they made
their comments— not that all societies would
do that? I am sure that some of the provincial
societies and schools would want to make a
specialize study of this problem, and I think
we could only benefit from their views. I even
would propose that our Committee perhaps
submit these proposals to them for their con-
sideration so that we would have the advan-
tage of their views when we make our deci-
sions regarding the judiciary.

The Joint Chairman (Mr. MacGuigan): Sena-
tor Yuzyk, I hope we will have presenta-
tions at least by members of law shcool facul-
ties and provincial law societies. And in our
travels around the country I hope that we
will hear from people as well who have opin-
ions on any aspect of this.

Senator Yuzyk: I think this is very vital.
Lawyers may not want to comment unless
asked to do so. I never have found a lawyer
that if you asked him a question he would not
engage in some kind of an argument, but if
you do not ask him he may not do so.

The Joint Chairman (Senator Lamontagne):
Provided you are prepared to pay a fee!

senator Yuzyk: Well, we might have to do
that. After all, we use lawyers in various
commissions, pay them a fee, and Parliament
gets the benefit of their studies.

Senator Cook: May I make one further
observation. We were talking about rights of
provincial governments and appeals to the
Supreme Court.

I would view with very great alarm any
right of a provincial government to say what
could be appealed or could not be appealed. A
provincial government which would do vio-
lence to the rights of citizens is quite capable
of saying that right is not appealable. The
fact that rights can go to the Supreme Court
and be appealed would have a very, very
salutary effect on some provincial govern-
ments that I know quite well.

Therefore I would be very, very much
against the Attorney General of any province
having the right to say this can be appealed
or that cannot be appealed in the Supreme
Court, because you might want protection
against the provincial government itself.

The Joint Chairman (Senator Lamontagne):
In what province?

Senator Cook: Oh, I cannot think of which

Senaior Flynn: The Supreme Court can
entertain an appeal on any case by its own

Mr. Maxwell: Virtually speaking, that is
true, but that is because an Act of Parliament
says that.

Senaior Flynn: Yes, but as Senator Cook
suggested, provincial law could modify the
jurisdiction of the Supreme Court.

Senator Cook: There was some suggestion
earlier, as I understood it, of two parallel
systems of justice, the courts in the provinces
dealing only with provincial matters and the
federal courts dealing with separate matters,
and I would oppose that very strongly.

Senator Flynn: The parallel that has been
discussed is the appointment by the provin-
cial and federal government, because outside
the federal courts proper the organization of
courts is the responsibility of the province,
and the jurisdiction of these courts is defined
by provincial law.

Senator Cook: I thought there was some
suggestion it might develop along the Ameri-
can lines, that of having two separate

Senator Flynn: Our system is not that way
today, whether we like it or not.

The Joint Chairman (Mr. MacGuigan): Mr.
Maxwell, do you have a comment?

Mr. Maxwell: I simply would say that I
think the point Senator Cook makes is cer-
tainly a valid one in the context of whether
or not the constitution should permit the pro-
vincial legislatures to define the jurisdiction
of the final court in terms of their own law-
making power.

No doubt some would feel that that was the
sort of thing that could be countenanced very
readily, in the same way that some would say
they should be permitted to appoint their own
judges and in effect have their system invio-
late of any federal influence at all.

On the other hand, some might say that
could be done only if the constitution itself
had basic built-in protections to make certain
that no one would become unduly autocratic
and deprive people of their fundamental
rights and freedoms.

So it is a curious mix of a number of
possibilities. Perhaps it is hard to know what
the final solution really ought to be in this
context—but they are all problems.

The Joint Chairman (Senator Lamontagne):
I have only one question, which perhaps is a
little bit beyond the realm of our discussion
this afternoon:

I was wondering if in peacetime there -have
been many cases where federal legislation
had been based almost exclusively, in terms
of the constitution, on peace, order and good
government? Do you have any example of
this throughout our constitutional history?

Mr. Maxwell: Well, resort to peace, order
and good government is a very frequent exer-
cise that we in the government of Canada and
in the Department of Justice indulge in. I
would say the Canada Water Act is one

The Joint Chairman (Senator Lamontagne):
This is the case I had in mind.

Mr. Maxwell: It is curious that I should
think that that is what it might be.

The Joint Chairman (Senator Lamontagne):
It appears to me to be the first example that
we have.

Mr. Maxwell: Oh, no, we have done quite a
lot of things under a peace, order and good

For example, we have succeeded to a very
great extent in developing a national capital
under the general jurisdiction of peace, order
and good government.

The Joint Chairman (Senator Lamontagne):
I would not call that good government,

Mr. Maxwell: We have had judicial bless-
ing of our attempts so far in this regard.

The Joint Chairman (Senator Lamontagne):
And it was based on this?

Mr. Maxwell: Yes.

The Joint Chairman (Mr. MacGuigan): Is
that the Munroe case?

Mr. Maxwell: Yes.

The Joint Chairman (Mr. MacGuigan): In
the area of, aeronautics, the St. Paul case also
gave pretty extensive jurisdiction to the fed-
eral government. That was radio jurisdiction.
Perhaps that is a little off the subject.

If I may return to one other area, I recall
reading an argument by Professor Peter Rus-
sell of the University of Toronto in favour of
provincial appointment of judges in provin-
cial courts, based on the desirability of incor-
porating different viewpoints into the

I think lawyers often think of law as being
a very pure science and not very related to
development in society. That is probably not
very realistic and I would certainly agree
with Professor Russell on that. I think his
feeling was not that a government of a par-
ticularly political stripe in a province would
necessarily narrowly reflect its own prefer-
ences in judicial selection although it has
been suggested that might indeed happen. At
least it would like to appoint people who
shared in a general way a particular philo-
sophical bias which that government has. I do
not think he used examples but we could take
for example the area of labour disputes. It
would be desirable to have judges of different
political philosophies on the court across the
country to achieve a kind of balance. I
wonder Mr. Maxwell what comment you have
on that.

Mr. Maxwell: I had the temerity to suggest
when I was giving my little preliminary
address that I felt that the fact that the feder-
al legislation applied generally throughout the
whole of the country suggests to me that
there an attempt should be made to have
some degree of uniformity injected into the
appointment of judicial functionaries who are
going to administer that law. I frankly believe
that. I do not know that one would have
anything but a curious patchwork quilt if you
had the sort of thing that you have just
described which might be perfectly all right
in terms of local provincial law but which in
terms of the administration of general federal
laws would be quite inappropriate.

The Joint Chairman (Senator Lamontagne):
I understand from this that you do not like
too many conservative appointments.

Mr. Maxwell: I did not say that at all.

Mr. McQuaid: Would this apply particular-
ly to provincial courts?

Mr. Maxwell: Yes, right.

The Joint Chairman (Mr. MacGuigan): If
there are no other questions I might ask if it
is agreeable that we append to the proceed-
ings of today’s meeting the background
papers on the Supreme Court and the judici-
ary prepared forfus by the Constitutional
Secretariat. Is this agreed?

Some hon. Members: Agreed.

The Joint Chairman (Mr. MacQuigan): I
think gentlemen we have given Mr. Maxwell
a good workout and I think we have all
profited by the exchange. I would thank him
and his advisers for coming before us today
and pnesenting this view of the government’s
position on the Supreme Court and the


Mr. Marceau: May I make a comment, Mr.
Chairman, I would like to congratulate those
who have for the first time prepared this
documentation in both languages. I wish to
congratulate the responsible for the realiza-
tion of his project.

Only I would have wished to see them a
few days before so that we could have drawn
a series of questions. Contrarily to other com-
mittees, we cannot put just any question. This
subject is much too important. If it were at
all possible, I would ask that this documenta-
tion in the future be filed a little ahead of


Mr. Brewin: Mr. Chairman, could I raise
another point or do you want to deal with

The Joint Chairman (Mr. MacGuigan): If I
could comment on this point. I would like to
thank Mr. Marceau for the expression of his
views. The Constitutional Secretariat is very
busy and is doing this for us out of sheer
gratuity. We never feel that we can make too
great demands on them. As you say, we
would all prefer to have it but I am not sure
that we can actually make that kind of
request to them.

An hon. Member: They are not a federal

The Joint Chairman (Mr. MacGuigan): Yes.
They are independent of us and they are just
being good to us by preparing these materials.
As I understand it, they are preparing them
from what they have in hand. If they have it
in French and in English, they put it in both.
If they do not have it, they just give it to us
in one language. They do not really have the
facilities at the moment to do it the other

When these appear as appendices to our
rdlocuments they will be in both languages
because everything will be translated in that
form. Eventually it will be that way. Mr.

Mr. Brewin: Mr. Chairman, I am not sure
that I understood Mr. Gibson’s French at the

The Joint Chairman (Senator Lamontagne):
I did.

Mr. Brewin: I thought he was asking about
the program of this Committee in September
and I understood you to reply that it had not
been fixed yet. I just raised the question
because I want to make a representation to
the Joint Chairmen and to the Steering Com-
mittee to try and get the plans for September
decided as soon as possible. I raise the issue
because there are other committees that are
planning to meet in September and we would
not want them to clash. It would be very
helpful if you could inform us as soon as
possible about what we are expected to do in

The Joint Chairman (Mr. MacGuigan): I
think that is a very good suggestion. We had
hoped to have a staff by this time who would
draft for us our proposals as to how long we
should be in what places and where. I might
say that I have circulated to all members of
the House of Commons and not just to the
members of this Committee an invitation to
express their views to us as to where in their
area they would like to see us travel. I think
Senator Lamontagne will be sending out a
similar letter to members of the Senate. This
discussion at the moment is only with regard
to our initial trip. However, we are probably
in a position to make that decision and should
do so soon.

Mr. McQuaid: It is essential, Mr. Chairman,
that we convene in September. The meeting
of the Canadian Bar Association comes up
very early in September. I am not just sure of
the date. I would hope that it would not

The Joint Chairman (Mr. MacGuigan): No, it
will not conflict in dates but I think the whole
Committee approved the recommendations of
the Steering Committee earlier that shortly
after Labour Day we begin our hearings in
Manitoba, in the Northwest Territories and in
the Yukon. The exact dates are not set but I
assume that we would leave the week of
Labour Day.

Mr. Brewin: May I ask if you would consult
with the Chairman of the Commons Commit-
tee on External Affairs. They are planning to
meet shortly after Labour Day.

The Joint Chairman (Mr. MacGuigan): I
will certainly take that into account. Thank
you, Mr, Brewin. If there are no further mat-
ters, the meeting is adjourned.


Prepared by:
The Secretariat of the
Constitutional Conference
The Special Joint Committee
of the
Senate and
House of Commons
The Constitution of Canada

June 1970


The material in this booklet was compiled
by the Sccretariat of the Constitutional Con-
ference to assist the Special Joint Committee
on the Constitution of Canada. The material is
drawn from the public record of the constitu-
tional review and is related to the specific
subjects to which the Parliamentary Commit-
tee is directing its attention.

Henry F. Davis,
Secretary of the Constitutional Conference.


*See PDF for table


*See PDF for table

The Supreme Court and the Judiciary Federal Government

*See PDF for table


*See PDF for table

Extracted from document 81(2)
—Related Propositions


2.5.15 Consideration should be given to the
matter of the composition of the Supreme
Court of Canada and particularly its suitabili-
ty as a Court of last restort to:

(a) Determine constitutional questions, and
(b) deal with matters involving the civil code
of Quebec.


Comments on the Judicial Process and
National Policy in a Federal State*

*The Government of New Brunswick re-
gards this paper, for the moment, as an ex-
pression of Dean Cohen’s personal views.

Prepared for the Continuing Committee of
Officials by Dean M. Cohen

May 20, 1969

I. Some Structural Dilemmas of Federal Sys-
tems in Deciding upon Powers and

The many structures of government in
dealing with well-rooted political traditions,
with geographic, linguistic or ethnic differ-
ences, and their frequent efforts to avoid high
concentrations of political power, are among
the explanations that account for the varied
forms of many modern federal states. Once a
federal design, however, is undertaken, and
powers are distributed among the central and
provincial or state governments, there inevit-
ably is presented the question as to how to
make so complex a system operate efiiciently
in the face of at least two main, inherent
difficulties, apart from the “functional” versus
“doctrinal” views of power, First, there is the
question of interpreting the Constitution
which describes the structures of government,
and the distribution of powers, since language
can never be so clear as to avoid the continu-
ing need for its definition and application to
controversies as they arise; and, second, the
means whereby cooperative activities can be
undertaken among two or more of the gov-
ernments concerned, particularly the federal
government in association with one or more
of the others, and the political constitutional,
administrative or legal devices employed to
provide the framework for such cooperation.

There is, of course, a third problem which
in a sense often transcends these others,
namely, that whenever a federal state may
wish to set out in a Charter or Bill of human
rights, some statement of fundamental values
governing the behaviour of all the legislative
and executive apparatus, at every level, then
the interpretation of that Charter or Bill also
poses serious problems since interpretations
may not merely have the efiect of negatively
setting “limits” as to what the legislative or
executive branches of government may do,
but it may also set “standards” of high policy
through which the judicial system may have
an opportunity or even may be required, to
give instructions to the legislatures or
administrators conccmed ordering them to
take positive action in the execution of eco-
nomic, social or legal policies expressly stated
by, or assumed by necessary implication to be
in the Bill of Rights itself—or elsewhere in
the Constitution as well.

Thus a central dilemma for any federal
state—for its general public and political
opinion—is how far it may be prepared to
accept or encourage indirect or direct policy-
making roles for the Courts either through
interpreting the Constitution generally, with
particular reference to the distribution of
powers, the structures and procedures of gov-
ernment, and the institutions for a coopera-
tive federalism, or in applying the “negative”
and “positive” mandates expressed clearly, or
by implication, in a Bill of Rights.

It is obvious that both on principle, or
viewed empirically through the evidence of
federal systems in operation, that varieties of
approaches to these federal difficulties are
possible. The Swiss have managed to get
along without a systematic, judicial approach
towards general constitutional interpretation
and have left the crucial jurisdictional ques-
tions of Federal power—but not Cantonal
authority—to essentially the political process,
except for a referendum device that gives
public opinion the “last word” in a dispute.
West Germany has employed a special consti-
tutional court to which all such issues are
referred both as a matter of original jurisdic-
tion and also where cases may have begun in
the regular courts before the constitutional
issue was identified and thereafter sent for
adjudication to the constitutional Court.
There is, however, a good deal of evidence
that certain self-limiting standards as to how
far the constitutional court should make
statements of high policy runs through the
court’s practice and there seems to be a kind
of contradiction in the theoretically powerful
role of the court contrasted with its self-limit-
ing image—although litigants both private
and public may be making new demands for
a more direct policy function by the Court
than heretofore.

Australia, beginning with a strong theory of
state rights, and of residual powers in the
constituent states, has nevertheless managed
through judicial interpretation to emerge
with a quite strong central government,
balanced, however, by the continuing (and
even more recently emphasized) assertions of
state power offsetting the functional difficul-
ties by the use of inter-state and federal-state
agreements wherever social and economic
needs required, e.g. transportation.

The United States perhaps is the most obvi-
ous example of the impact of the courts on
the allocation of power and on the shaping of
policy in a federal structure, and powerfully
affecting the system’s operational dynamics.
Ever since Chief Justice Marshall in Marbury
vs. Madison asserted the right of the Court to
review and determine the validity of legisla-
tion, by Congress or the States, and ever since
the Court discovered the power of the first
ten amendments (the Bill of Rights) and later
of the 14th Amendment in the hands of deter-
mined judges, the role of the Supreme Court
of the United States has been the illustration
par excellence of the candid sharing of politi-
cal power, by Courts, in a federal system. The
irony of the American experience is that it
began with an essentially “confederal” atti-
tude and systematically became more and
more centralist for varieties of reasons that
had to do with westward expansion, war-
making and industrialization. All those gave a
drive to national policy and development
where the federal courts became important
agents of clarifying federal power but were
not its mainsprings. Indeed, the influence of
the South on the Court before the Civil War
dramatized for example by the Dredd-Scott
case, and general economic conservatism from
1880 to 1935 showed certain contradictions in
the line of development where the judicial
process was both an aid to the evolution of
federal power but also a considerable brake
on it. The use by the Court of the “due
process” clauses of both the Fifth and Four-
teenth Amendments, placing limits on federal
and state social and welfare legislation from
the last quarter of the 19th Century down to
the middle years of the New Deal, demon-
strated that the judiciary in applying the
Constitution could be a quite “conservative”
force however that concept may be defined.

Yet the overall image of the Supreme Court
of the United States is one suggesting the
evolution of a powerful tribunal, self-confi-
dent, politically aware and ready to under-
take policy-making whenever a “case or con-
troversy” was presented to it—(it has no
“advisory” role).

It must be recognized, however, that apart
from the dramatic achievements under Chief
Justice Marshall and a few key judges over
the generations it was really not until the
years from about 1937 onward that the posi-
tion of the Court in taking a “direct” hand in
social and economic policy matured to the
point it now has reached—or over—reached.
Such historic decisions based upon the First,
the Fifth and the Fourteenth Amendments,
and other provisions, that have led to varied
attacks in the matter of racial equality in
schools, transportation, accommodation and
employment as well as to ordering the
restructuring of electorial representation in
the States and Federally, are among the best-
known of these more recent and candid exer-
cises of power to make fundamental social
policy. Directly or indirectly, the Courts may
compel legislative and executive action by
way of new obligations on the part of those
branches of government to re-state and
implement the positive law in accordance
with the broad policies and principles as
enunciated by the Court.

The Canadian experience on many points
seem more analogous to the Australian
than to the American in terms of the tech-
nique and the spirit of the judicial function
but the Australian Judges—Sir Owen Dixon,
C. J. is a good example—and the Australian
Bar often have been more frankly policy-
oriented in argument and decisions, on the
interpretation of the Australian Constitution,
than has been the case, with some few ex-
ceptions, in Canada. Partly this may be the
result of the leadership of certain very creat-
ive Australian judges on the High Court and
the role that the Australian Court has had as
a “final” court of appeal effectively for a
longer period of time than is the case of Ca-
nada (except for a number of special matters
that have gone from Australia to the Judicial
Committee until 1968 when all Federal ap-
peals were abolished to the P.C.)

Indeed, the central characteristic of the
Canadian experience has been its reliance for
almost eighty years on the Judicial Commit-
tee in London, a tribunal distant in geography
and often in “feel” from the Canadian scene
and with Anglo-Canadian techniques of argu-
ment at the Bar and of judgment writing by
the Bench, not frankly oriented toward analy-
sing the policy alternatives almost always
underlying constitutional questions. So gener-
ally absent irom both argument and decision
has been this dealing, in the Canadian tradi-
tion, with policy that it is not difficult to
identify the several instances where policy in
fact has been debated with frankness and
skill, at least at the level of the Supreme
Court of Canada. Examples such as Duff, C.
J.’s judgment in the Reference on the Alberta
Press Case, the Surprcme Court and Privy
Council judgments in the Radio Case and
Aeronautics Cases and the Supreme Court
jugments, mostly under the leadership of Mr.
Justice Rand, in the series of civil liberties’
decisions that began with the Boucher Case in
1951, almost exhaust the more conspicuous
illustrations of serious policy discussion. For
the rest, the Canadian Supreme Court has
been influenced significantly in its technique
of judicial review by the Privy Council’s
exegelical search for meaning within the lan-
guage of the British North America Act itself
or through finding answers in the principles
of the common law wherever constitutional
questions of a non-BNA Act character were
before it.

To put it very bluntly the Canadian record
of judicial “philosophizing” in the course of
interpreting the BNA Act, or in dealing with
constitutional principles in general, has been
greatly influenced by the “inhibited” stand-
ards of the Judicial Committee, and except
for the golden moments of the civil liberties
decade which seems to have ended with Mr.
Justice Rand’s departure from the Bench, the
Supreme Court has continued to move along
a line of conceptual and technical interpreta-
tion predictably cautious and quite unwilling
to be drawn openly into policy discussions or
the use of data, social and economic, in fur-
therance of such an approach.

At the same time, it remains an interesting
question whether the dependence upon writ-
ten constitutions for any statement of great
principles is always so necessary after all—
apart from the specific problems defining gov-
ernmental structures «and processes, and the
distribution of powers in a federal state. For
example, two very constitution-minded coun-
tries get along with minimal docuxnentation
expressing either structures or principles—
although both are unitary states, e.g, the
United Kingdom and Israel. The U.K., of
course, has a great deal more written
instrumentalities than is often remembered
from Magna Carta through the Petition of
Right, the Habeas Corpus Act, the Bill of
Rights, the Act of Union, the Act of Settle-
ment, the various Parlliament Acts affecting
the powers of the House of Lords and House
of Commons, and some other related instru-
ments. But perhaps more important are the
“customs and conventions” of the constitution
over which the great battles were fought and
which are the true source of the containment
of the Royal Prerogative, of responsible gov-
ernment and of the interplay between the
political-and-party structures and systems,
and constitutional principles and framework.
Above all there is the use of the word “con-
stitution” to describe the network of relation-
ships between the individual and the state,
many of which have been evolved through
the ordinary processes of the courts as these
deal with private actions at law but where
the behaviour of one of the parties gives rise
to a principle involving state powers, privi-
leges or immunities of the kind designated as
those requiring some “constitutional” identifi-
cation and definition.

The judicial role in The United Kingdom,
therefore, has never been consciously consti-
tution-oriented as must be the case for feder-
al states, with a written constituional frame-
work. But in at least three ways the UK. has
been very constitution-minded through (i) the
interpretation of old and new statutes or
instruments involving constitutional princi-
ples or governmental structures, (ii) through
the evolution of the common law of the con-
stitution coming up through ordinary actions
at law and in equity before the courts but
involving an issue identifiable as “constitu-
tional”; and (iii) the recognition that there are
certain over-riding concepts of government
and society to which all statutes and execu-
tive orders are presumed to conform. This is
the celebrated doctrine of “avoidance” where
it is assumed that an open challenge to estab-
lished constitutional principle is not intended
in a given statute—although there is nothing
to prevent a supreme ‘Diceyan’ parliament
from wilfully doing so if it chooses.

In Isreal the situation is even simpler, or
more complex, depending how it is viewed.
There the total written constitution in one
sense is the fundamental proclamation of the
independence of the State, of May 14/15, 1948.
To these should be added all the instruments
of public law affecting the principles and
structure of government remaining from the
British mandatory period and continued of
course by the new state; as well as those
principles of general law and procedure
which had within them certain constitutional
components for the protection of the subject
as described above for the United Kingdom
ceg. Habeas Corpus, “the rule of law” con-
cept, gcnerally operative in administrative
law, contract, torts, etc.)

Now the point about both the United King-
dom and Israel is that serious, rights and
freedom-minded societies can exist with mini-
mally codified systems of rights; and the role
of the judges under these conditions tends to
be paradoxically both a. good deal more and a
good deal less significant in the proportion of
specific power allocated to them in the devel-
opment of constitutional policy as a whole.
Yet even here, of course, the Court’s role is
always crucial. But unlike a federal state, or
a state that is both federal and had a Bill of
Rights of some kind, there is not in the UK.
or Israel the scope for specific policy-making
through the mechanism of judicial interpreta-
tion and action, either through a written con-
stitution generally or through a Bill of Rights
in particular, or through both. (Of course, not
all unitary states are without constitutions.
For France has a written constitution contain-
ing Bills of Rights types of provisions).

The point of all of this is to emphasize, on
the one hand, the role of courts even without
elaborate constitutions and Bills of Rights to
interpret, at the same time to demonstrate
how varied can be the functions of courts
even where there are complex federal or Bill
of Rights provisions to apply. Perhaps a care-
fully formulated view of the problem is C.K.
Wheare’s summary of the role of the Courts
in the constitutional process, at least in feder-
al states, and it is not without significance
that he quotes at some length, Dr. O.D. Skel-
ton, a Canadian:

“Yet it is wise to recall what the function
of a court is and how far the judges, the
politicians and the people should feel
entitled to expect of a court that it
should undertake the function of adapt-
ing a constitution to the needs of the
time. Courts may adapt, but they may
not amend. They may follow common
sense, but they may not follow mere
expediency. They may have opinions but
they may not be partisan. They may
choose to treat a constitution as a living
instrument, but they must treat it first of
all as a constitution. And, although it
may be wise for a court to give the legis-
lature the benefit of the doubt where
there is a doubt, it is no part of a court’s
duty to do for a legislature or for a
majority of the electors what a Constitu-
tion has not done for them. Many of these
restrictions upon a court’s powers and
duties are forgotten in discussions which
emphasize the great powers which courts
in a federal system do possess. It is true
that their powers are great. But there
are definite limits to their powers. They
have a discretion, but it is a discretion
within the law and not above the law.
‘Courts may modify, they cannot replace.
They can revise earlier interpretations
as new arguments, new points of view
are presented; they can shift the divid-
ing line in marginal cases; but there are
barriers they cannot pass, definite as-
signments of power they cannot re-
allocate. Thcy can give a broadening
construction of existing powers, but they
cannot assign to one authority powers
explicitly granted to another. . .’ “.

II. Some questions and possible guidelines for
the role of the Judicial Process in a changing
Canadian constitutional structure and system

A number of interesting questions now
arise from the present constitutional review
and program of reform and their effect on the
position of the Canadian Courts in the future.
These questions may be put as follows:

1. Will the role of the final court of appeal
in constitutional matters in Canada be
enlarged by the proposed constitutional
changes in governmental powers and
structures; in now attempting to define
the classical principles of government,
e.g. responsible government; in possibly
having a Bill of Rights in the Constitu-
tion, or in possibly entrenching language
rights in such a Bill, or outside of it?

2. Will the Courts have a new function to
perform dealing with problems of inter-
governmental cooperation—province to
province and federal-provincial—in the
event that such cooperation or consulta-
tion is given institutional and “mandato-
ry” definitions in the Constitution?

3. Will the changing character of the
Bench, the Bar and the Law Schools
influence the methods of analysis to be
employed by Courts in constitutional
matters and what feedback will such
changed methods have on the policy role
of Courts and on the making of public
policy in general?

4. Are there advantages or disadvantages
to be considered in choosing constitution-
al mechanisms that increase or oherwise
vary the role of the Couits as we have
known that role heretofore, in Canada, in
constitutional matters?

Re. 1: Will there be an enlarged role for
judicial action in a reformed Canadian

Despite the quite severely self-limiting and
strict interpretation traditions, generally, of
the Canadian Courts (and of the Judicial
Committee) in constitutional matters (except
for Hand, J., Duff, C.J., and one or two
others) it seems improbable that whatever
may be the form of the final court of appeal
in constitutional matters, its role is likely to
be enlarged by several of the proposals for
constitutional change now being considered
by all governments. Altogether apart from
changing allocations of power that possibly
may result from some new statement of dis-
tribution between the federal and provincial
legislatures, (if any), some of the proposals
clearly will require judicial attention in areas
now exclusively deternnined by the “customs
and conventions” of the Constitution. If, for
example, there is a definition of the nature
and operation of responsible government; the
status and power of the Governor General;
the legal position of political parties (as some
have suggested) such constitutional language,
however skilfully drafted, will in the early
years of the new provisions clearly be an
invitation to frequent judicial review and
interpretation. However, even if these new
principles were to be well fitted within the
existing traditions of Canadian constitutional
interpretation, the insertion of a Bill of
Rights manifestly will require a degree of
judicial participation in both the negative and
positive aspects of policy making that may
far exceed what is presently the customary
Canadian pattern. The draft federal Charter
of Human Rights, for example, cannot be
imagined as having anything but the most
comprehensive impact on litigation, on new
standards by which to judge legislative,
executive and administrative behaviour, as
well as on new principles and procedures to
command the legislative and executive bran-
ches of the Government to take action or to
interrupt such action in areas of important
social policy, in the name of the higher
‘norms’ of the Charter or Bill of Rights itself.
The possible scope for such directives by the
Court can be envisaged by considering the
scope of the directives given by the Supreme
Court of the United States in the School
desegregation and reaportionment cases. To a
very large extent, the areas and dimension of
such judicial participation will depend upon
the initiatives of the Bar, and of governments,
in demanding the attention of the Courts to
these new provisions and the response of the
Bench in moving within a quite unaccus-
tomed field of action, at least in this first

Similarly, if Language Rights are to be
found in such a Charter or Bill of Rights, or
if they are entrenched outside of such a
Charter but in the Constitution elsewhere,
then interesting questions will arise as to how
far new authority will have been given to the
Courts to measure standards of federal and
provincial legislative and administrative
action in accordance with the litigated
demands for such rights, brought to the atten-
tion of the Courts by various levels of gov-
ernment or by private actions. In any event
all these possibilities envisage a much more
dynamic use of litigation to both stimulate
policy and its judicial interpretation and
application and envisage perhaps, even more,
an increasing confidence in the judicial proc-
ess to perform such functions in the name of
adjudication, functions which heretofore had
a high degree of autonomy in the administra-
tive or legislative branches of the government
with policy generally reserved to government
itself, to initiate and administer.

Yet the moment it is admitted that greater
precision is desired in any statement of so-
called “rights”, through a Charter or other-
wise, it must at the same time be admitted
that Courts are going to be required to deter-
mine their meaning and application. Whether
there are social gains or losses here in terms
of new protections on the one hand, or the
disutility of too broadly shared power on the
other, remains to be seen. But a new level of
duties will clearly be assigned to the courts.
and particularly the final court of appeal in
constitutional matters, and correspondingly
some new sense of self-limiting caution will
now equally be necessary in the operations of
the legislative and executive processes.

Re. 2: The Courts and Inter-Governmental

* This paper does not discuss the Court’s
specific role in dealing with provisions for
amendment or delegation. But these other
principles analyzed here apply mutatis

If the above description of the potentially
changing role of the Canadian judiciary sug-
gests a new dimension. such a change will per-
haps be even more striking should any future
Constitution institutionalize methods of inter-
governmental cooperation. On the simplest
level disputes between Provinces or the fed-
eral and provincial governments could, of
course, be dealt with through providing origi-
nal jurisdiction in any final court of appeal in
constitutional matters. But this should present
no particular novelty although any increase
in such litigation may require new standards
of juridical analysis since now the issues will
often be no longer related essentially to the
classical questions of the distribution of
powers; rather there will be presented new
questions having to do with governmental
rights and duties, under some as yet “novel”
and unclear theories of Canadian federalism,
requiring of governments to cooperate or con-
sult whenever some essential common interest
was involved, should that obligation to con-
sult or cooperate now be incorporated in con-
stitutional terms in any new instrument.

It will at once be evident how sensitive and
difficult will be to convert the practices of
the presently voluntary and strategic negotia-
tions and cooperation between governments,
into constitutional rights and duties that may
be subjected to the compulsion of Courts and
the burdens of litigation. Clearly the advan-
tages of compulsory cooperation may have to
be considered against the disadvantages of
the reduction in the political discretion that
may seem essential to the federal or provin-
cial governments as they view their own
problems and strategies from time to time.
Yet if the demand for federal-provincial
cooperation and consultation is as insistent
and as extensive as it oflen has been in
recent times, it is not unlikely that there will
be demands to “compel” that consultation not
only as a matter of political custom or
wisdom but as a matter of constitutional
duty. It will be a markedly difierent federal
system if the Federal Government or any
Province or group of Provinces can be com-
pelled to consult and to cooperate and their
legislatures ordered to take action or to stop
action, until some standard of consultation
and cooperation among them has been comp-
leted either as set out specifically in the Con-
stitution or as interpreted and developed on
the basis of some general principles therein
by the Courts themselves.

Any such program of constitutional reform
must accept the reach of the judicial arm quite
beyond any contemporary Canadian experi-
ence in dealing with high policy other than
those questions that have come before the
Supreme Court or the Privy Council through
the traditional requirements of interpreting
the British North American Act or formulat-
ing large principles of the “common law” of
the Constitution. But little of this experience
really prepares Canadian society for the pros-
pect for having judges command legislatures
to cooperate, for example, in the coordination
of their budgets or not to take steps through
executive action to market their securities
without the permission of some common
agency, This may be an extreme illustration
of the consultative or cooperative technique
constiturtionalized to the point where judges
are given a degree of discretion to intervene
not dissimilar from commands by the
Supreme Court of the United States that the
state legislatures should move toward deseg-
regation by legislative and executive action,
with all “deliberate speed”, reporting back
from time to time to the Courts, as required.
Finally, on this point some new degree of
political insight will be required of the
judges, but there is no reason to believe that
they would not have the wisdom to employ
their authority within those reasonable
bounds intended by such constitutional
changes—namely, to make new systems of
federal-provincial cooperation,’ now institu-
tionalized, work as well as possible but sub-
ject to countervailing realities of leaving gov-
ern-ments severely alone up to the last
alternative moments before such judicial
intervention would be justified. Yet the Courts
in their timing will largely be in the hands of
the litigants who will choose the issues and
the time for their actions.

Re. 3: The Capacity of the Bar and the Bench
to play these new roles

It is unlikely that the introduction of these
new roles for the Bench, in the operation of
the new constitutional concepts and proce-
dures, will present undue (technical) difficul-
ties—except for those governments which
valued the absolute discretion of the older
“voluntary” days of intergovernmental coop-
eration. Neverthclesss, it would be wise to
recogize that theories of strict interpretation,
of finding “simplistic” answers within the
framework of the “new” constitutional docu-
ment itself, may not suffice for the enlarged
scope of interpretation and action now pre-
sented by a Bill of Rights, a system of lan-
guage rights, the definition of responsible
government, and the institutionalizing of con-
sultation and cooperation in a “new” federal-
ism. Clearly the magnitudes of potential liti-
gation and of judicial responsibility will have
altered substantially, and in turn may well
influence the volume of actions in the Courts
initiated both from the public and private

Will the next generation of Canadian
judges, and will the Canadian Bar functioning
within the established adversary tradition, be
able to meet, constructively, these new chal-
lenges to having them play ever more sophis-
ticated roles in the management of Canadian
federalism? Some doubts may be raised about
expectations here, Much depends upon the
quality of the men involved and upon the
character of legal education itself and the
wlilingness of the Bench to relate the new
roles to the kind of informational input, or
sources of authority, which heretofore cau-
tious Canadian Courts have been reluctant to
accept—sources now to be supplied by gov-
ernment documents or the behavioural
sciences. It is highly probable, however, that
once given the fact of constitutional change
and that such a new role must be played,
there is every reason to believe that the
Courts, the Bar and the Universities will
respond accordingly. But there may be a
period of at least a decade or more within
which Canadian judges, and more particular-
ly the final “constitutional” tribunal, will be
feeling their way toward the appropriate bal-
ance to be found in performing these new and
often more direct policy-making functions.
Moreover, once such doctrinal changes take
place in the key areas referred to, decisions
on them will likely have pervasive effects
through the whole of the constitutional proc-
ess. It would be unlikely to discover that the
same judges will be reluctant to discuss
frankly the policy content in cases concerned
with the distribution of powers, while having
no such inhibitions in their interpretative
roles afiecting the Bill of Rights or the new
institutions of federal-provincial cooperation.

Re. 4: What are the possible advantages or
disadvantages because of these prospective
changes in the role of the Courts and Nation-
al Policy?

Central to the above analysis has been the
assumption that Canadian federalism for over
a hundred years, on the whole, has been a
considerable success in the management of a
very complex country whose linguistic, geo-
graphic and economic divisions, and regional
disparities, have created tensions, possibly
exacerbated also by certain structural weak-
nesses in the forms, principles and operations
of the governments concerned. Indeed this
success was achieved despite some very obvi-
ous distortions in the Canadian constitutional
development because of a local government
bias generally on the part of the Judicial
Committee and the enlargement of de facto
federal authority because of depression, war
and post-war needs. Viewed realistically
therefore, an enlargement of the role of the
Courts (Now exclusively Canadian) may poss-
ibly signify some corresponding reduction in
the discretionary political position of the
legislative and executive branches of all gov-
ernments. Yet the plain fact remains that
judges can not replace politicans or civil serv-
ants in conducting the regular business of
government and for the most part, the mass
of traditional business doubtless will be car-
ried on as heretofore by elected leaders and
their permanent officials. What will change,
however, is the ability of one or more govern-
ments to act beyond, or outside, or not within
the spirit of a more detailed constitution; and
indeed in some cases governments will find
that they may be compelled to take actions
because the Constitution or the Courts have
said so, actions that previously (today) they
otherwise might have been able to refuse or
at least to have politically determined for
themselves; whether they would act, and
when. While judges, law and “constitutions”
are familiar and indispensible to the opera-
tions of any civilized society, the degree of
acceptable interventions in policy-making will
depend both upon the Constitution itself and
the political-constitutional tradition. The two
extremes in the English-speaking world are
the United Kingdom, with the judges com-
pounding the absence of a written constitu-
tion by a theory of self-limitation, in contrast
to the United States where the Supreme
Court has escalated its constitutional status
within a written constitution to become truly
the third branch of government in adminis-
trative fact as well as in constitutional theory.
It is unlikely that Canada or Canadian judges
will quickly leap to achieve the often con-
troversial heights of the Supreme Court of
the United States; but it is certainly to be
expected that the possible introduction of
some of the critical changes now being dis-
cussed for a future Canadian Constitution
inevitably may enlarge the role of the judicial
process in policy-making, however cautious
the Canadian tradition heretofore may have
been. Considering the threats to Canadian
federalism and solidarity that have appeared
in recent years, it very well may be that a
shift of some power from the purely political-
administrative plane to a constitutional-judi-
cial level might, in fact, help to bring some
new measure of stability into the relations of
all the governments concerned.

The necessary, symbolic and effective,
“primacy” of the Federal Government that
should underlie a united Canada, if federal-
ism is to be meaningful for all Canadians,
might well appear less “threatening” to
strong provinces if there are now to be
Courts, principles and procedures available to
the provinces which. may adjudicate upon and
ameliorate sensitive conflicts without leaving
these almost exclusively to the bargaining of
the political process (as now is the case), with
its postures, its games and its risks. The
“depoli icizing”, wherever feasible, of the
Canadian intergovernmental future, could
become part of the grand strategy for achiev-
ing a viable federalism, and in aid of that
objective the judicial process, with new princi-
ples and procedures to be applied and inter-
preted, may prove to be a major instrument,
and source, of dialogue and acceptable

Extracted from document 81(2)
—Related Propositions


A judicial system for confederation with
particular reference to the Supreme Court
and its organizations.
3.13.37 All superior, district and county
court judges (as presently defined both for
Quebec and the other provinces by section 96
of the BNA Act) shall be appointed by the
Federal Government after consultation with
the respective provinces where such appoint-
ments are to take place.


1. The present system of exclusive federal
appointments to Superior, District and
County Courts, without provincial participa-
tion, may be an anachronism.

3.13.38 Superior, district and county court
judges shall hold office during good behaviour
until retirement, and shall be removable only
by the Governor General upon address of
both Houses of the Parliament of Canada, in
accordance with present practice.

3.13.39 Study shall be given to the re-organ-
ization of the Supreme Court of Canada into
three chambers namely, a Common Law
Chamber, a Civil Law Chamber and a Consti-
tutional Law Chamber.

3.14.39 Comment:

1. The Propositions 3.13.39 to 3.15.44 in this
Section deal with the composition and func-
tions of the Supreme Court of Canada. They
attempt to deal with a long standing com-
plaint that six of the Court’s nine members
are common law trained and that appeals
from Quebec are heard by men untrained in
the civil law and vice versa. Similarly, criti-
cism that a purely “federally” appointed
Court with a preponderance of non-Quebec
judges tends not to give adequate weight to
the civilian-Quebec approach to constitutional
law warrant the development of a Constitu-
tional Law Chamber as described. This
method is preferable to establishing a sepa-
rate Supreme Constitutional Court for a var-
iety of reasons the most important one of
which is the fact that a very large number of
so-called constitutional questions come up the
ordinary civil law or common law route of a
private law action. There is much to be said
therefore for the membership in the Court
seized of its general business to therefore be
equally seized of constitutional issues whether
these arise directly or indirectly through liti-
gation or reference.

2. The participation of the Provinces in
appointments to the Supreme Court will
remove the allegations—whether substantial
or not—of exclusive federal influence on
appointments. Finally, some mechanism for
direct federal-provincial or inter-provincial
disputes settlement has long been overdue as
evidenced, for example, by the ad hoc tribu-
nal established to deal with the Federal-Sas-
katchewan dispute over seed grains a genera-
tion ago.

3.14.40 All appointments to the Court shall
be made in accordance with procedures simi-
lar to those provided for appointments to
superior, district, and county courts subject to
the effect of propositions 3.14.41 and 3.14.42

3.14.41 Study shall be given to the question
whether in the composition of the Supreme
Court not less than one-third of the member-
ship shall be appointed from the province of
Quebec and whether only such judges from
Quebec shall sit upon civil law appeals in the
Civil Law Chamber (if established)

3.14.42 Study shall be given to the question
whether only common law judges shall be
members of the Common Law Chamber of
the Supreme Court (if established)

3.14.43 Study shall be given to the question
whether the Constitutional Law Chamber, if
established, shall be made up of judges drawn
from the other chambers of the court.

3.15.44 The jurisdiction of the Supreme
Court shall so far as possible be limited to
questions of law or mixed questions of fact
and law; stated cases forwarded from provin-
cial courts of appeal; and references by the
Federal Government on any question upon
which it seeks the opinion of the Court. The
Court shall also have original jurisdiction in
any dispute between the Federal Government
and any province or between two or more

Extracted from document 81(2)
—Related Propositions


4.13.24 It would be advisable that the consti-
tution provide for establishment of a constitu-
tional court, determining its composition and
jurisdiction. At least two thirds of this court’s
judges should be appointed by state


1. In any federal system, the tribunal
which, in the last resort, interprets the consti-
tution plays the role of arbiter between the
two orders of govcrnmen; it is therefore
essential that its establishment composition
and jurisdiction be determined by the consti-
tution itself, as it is in most federations.

2. The Constitutional Court should of
course have jurisdiction over interpretation of
the Canadian constitution. This jurisdiction
should be exclusive, all constitutional ques-
tions being automatically referred to it. It
would also be necessary to stipulate how the
Court’s opinion might be obtaineed by means
of referrals, should this procedure be

3. The Court could also be empowered to
rule on other special questions such as, for
example, the protection of citizens’ constitu-
tional rights or disputes between govern-

4. Its composition might be as follows: four
judges appointed by the central government;
one by the Atlantic states, appointing jointly
or in turn; three by Québec; three by
Ontario; one by the Prairie states, appointing
jointly or in turn, and one by British
Columbia—13 judges in all.

5. Once appointed, Constitutional Court
judges would hold office until retirement age.
Dismissal of a judge would require joint
action by the federal legislature and that of
the state which appointed him or is his state
of origin.


6. A question that would concern only the
central government and one particular State
should be adjudicated by a bench comprising
an equal number of judges designated by
each of the parties.


4.14.25 The central legislature could be
authorized to establish a Federal Court of
Appeal having final jurisdiction over inter-
pretation of legislation on matters under fed-
eral authority. States which so desire could
confer on this court final jurisdiction over the
interpretation of their own legislation.


1. The present Supreme Court of Canada
could remain the court of last resort in inter-
preting legislation on matters falling within
federal powers.

2. The states would have the option to
empower the Federal Court of Appeal to pass
final judgment on the interpretation of all or
some of their enactments. This procedure
could facilitate standardization of statutes,
when this is desirable.


4.14.26 Generally speaking, the states should
provide for setting up other courts and
appointing their judges for the application of
both federal and state law. The central legis-
lature, however, should retain its present
power of establishing federal courts to admixi-
ister its own laws. The independence of
judges should be guaranteed by the


1. This proposal merely continues present
practice except with regard to appointing
superior, county and district court judges.

2. The central government’s practice of
appointing judges to certain provincial courts
has been a constant source of legal uncertain-
ty and an obstacle in reforming the judicial
system. Obviously, states should be responsi-
ble for salaries and pensions of judges they
have appointed.

3. The constitution could provide for judges
such conditions needed to ensure their impala
tiality as salaries, pensions and grounds for
removal. These guarantees would apply to
both federal and state judges.

Extracted from document 81(2)
Related Propositions

5.13.31. The Constitution should establish the
Supreme Court of Canada as the fecleration’s
final Court of Appeal.

In a federal system, it is desirable to ensure
that the final Court of Appeal is placed
beyond the ordinary control of either the cen-
tral or the provincial governments.

The B.N.A. Act makes no specific mention
of the Supreme Court of Canada, which was
established by statute in 1875. Until 1949, the
final Court of Appeal was the Judicial Com-
mittee of the Privy Council in Great Britain.
After Canada abolished appeals to the Privy
Council, this function was assumed by the
Supreme Court of Canada.

The Supreme Court Act has acquired a
quasi-constitutional status, to the extent that
no government would dare to treat it simply
as another statute. Nevertheless, the constitu-
tion should entrcmch the position of the

As the final Court of Appeal, the Supreme
Court of Canada would have the specific
authority to hear cases involving constitution-
al issues.

5.13.32. The appointment of judges to the
Supreme Court of Canada should reflect the
federal nature of Canada.

In a federal system, an impartial body,
independent of both the central and local
governments, must make judgments about
the meaning of the Constitution in general
and the distribution of powers in particular.
In Canada, this role has been assigned to the
Supreme Court of Canada.

However, the appointment of judges to the
Supreme Court is the exclusive responsibility
of the Federal government, that is, a possible
participant in constitutional disputes. While
this procedure does not affect the independ-
ence of the judges, it should be altered to
take account of the federal character of the
country. Provision should therefore be made
forprovincial participation in the appoint-
ment of judges to the Supreme Court.

5.14.32. As the final of Appeal, the Supreme
Court hears cases dealing with areas of law
under provincial jurisdiction. This is an addi-
tional reason for the provinces to have a role
in the appointment of judges who will be
called upon to review provincial law

5.14.33. Subject to age and god behaviour
judges of the Supreme Court of Canada
should be granted constitutional guarantees of
security in tenure and remuneration.

Constitutional provision for security in the
office and salary of Supreme Court judges
would be primarily of symbolic importance,
underlining the change of status in the Court
from that of a creation of the Federal Parlia-
ment to that of a creation and instrument of
the Constitution agreed upon by all govern-
ments of Canada.

At present, Section 99 of the B.N.A. Act
refers to the tenure of Superior Court judges,
but says nothing about salaries. There is even
some debate whether Supreme Court judges
are included, as the Superior Courts are the
highest courts to which the Act specifically


Extracted from document 207
Statements by the Hon. Edward Schreyer
presented at the Third Constitutional Confer-
ence(—Chap. 5).


The Supreme Court of Canada

Because it is desirable that all Canadians
should have an equal opportunity to have
their legal rights determined by the Supreme
Court of Canada, and because there is merit
in having a common appeal court that can
bring a measure of uniformity to the judicial
decisions of provinces having similar laws, we
believe that the Supreme Court of Canada
should continue to act as a final court of
appeal from the courts of all provinces, and
that its existence should be constiptutionally

Appointment of all Supreme Court judges
by the Federal Government, as at present, is
not satisfactory, however. Provisions should
be made for provincial appointment of
approximately two-thirds of the Members of
the Court. Considerable study may be neces-
sary before a thoroughly satisfactory appoint-
ment formula is devised, but we would sug-
gest that consideration be given to a 15-man
court, appointed as follows:

Federal Government 4 (Including the
Chief Justice)
Atlantic Provinces, 2
Quebec, 3
Ontario, 3
Prairie Provinces, 2
British Columbia, 1

If this distribution were thought to result in
too few judges with civil code training, two of
the four federal appointments could be civil
code lawyers.

There is much to be said for a division of
functions among the judges of the Supreme
Court that would make it possible for particur
lar kinds of disputes (such as constitutional
matters, and civil code disputes) to be
adjudicated by judges who are specially
qualified to deal with the particular type of
problem. On the other hand, there might be
some benefit to be gained from having at
least one non-specialist judge participate in
such decisions. There are a number of techni-
cal difficultics that would have to be over-
come before such a division of functions
could be put into effect, however, Moreover,
it is not clear that it would be either neces-
sary or advisable to cntrench the division of
responsibility in the Constitution. Manitoba
undertakes, therefore, to submit a detailed
study of those problems to the Constitutional
Conference as soon as possible.

Provincial Courts

The Government of Manitoba believes that
provincial authorities are better qualified
than federal authorities to determine the
suitability of persons for appointment to the
provincial courts, and submits, therefore, that
the appointment and removal of all judges of
such courts shou-ld be in the hands of the
provincial governments.

Judicial Independence

Because it is vitally important to preserve
the independence of the judiciary, Manitoba
supports the inclusion in the constitution of
procedi.n’es that will ensure that no judge can
be removed from office without good cause.


Extracted from document 81(2)
—Related Propositions

7.2.12 The Supreme Court of Canada shall
continue to be the final court of appeal in all
matters including those involving the consti-
tution, and the court shall continue to be
bound by precedent.


Extracted from document 209
A. Position Paper for the Federal-Provincial
Constitutional Conference, December 1969
By the Hon. Harry E. Strom—(p. 19).

The Supreme Court

The Federal proposals concerning the
Supreme Court appear to be both reasonable
and persuasive. Modifications which they por-
pose are important, in that they would estab-
lish the Supreme Court within the Constitu-
tion of Canada, and the Supreme Court would
consequently be entrenched in the basic con-
stitutional document of the country. The
Supreme Court does not speak for any one
level of government, it speaks for the


Extracted from document 81(2)
—Related Propositions


9.5.11. The Supreme Court of Canada should
continue to be the final Court of appeal for
Canada with constitutional matters included
in its jurisdiction.


“British Columbia is of the view that the
Supreme Court of Canada should continue to
exist as the final Court of Appeal for Canada.
Because a separate constitutional Court would
result in a Court dealing in theory rather
than in the day-to-day realities and prac-
ticalities of life, British Columbia is opposed
to a separate constitutional Court and favours
the present practice of the Supreme Court of
Canada having jurisdiction in constitutional

9.5.12. Appointments to the Supreme Court
of Canada should be from the five regions of
Canada so that at all times the membership
of the Court is representative of the whole of
Canada. Such appointments should be
approved by the Senate, reconstituted as pre-
viously suggested.

9.6.13. on the hearing of constitutinal mat-
ters the quorum of the Court should continue
to be seven judges and when the constitution-
al validity of a statute of a particular prov-
ince is in issue, it is desirable that the judges
appointed from that province, or from the
region of which that province is a part,
should sit on the hearing of the case.

Extracted from document 75
Briefing paper on Discussions within the Con-
tinuing Committee of Officials—(pp. 64-65).


Again, the Continuing Committee has had
time for only a brief introductory discussion
of this subject.

Main Points Arising out of Discussion

1. The Cornmittee’s main discussion on the
judicial system so far has centred on the
suggestion that appointments to the Supreme
Court should be subject to the approval of the
Senate, assuming that certain changes in the
character of the latter institution were made.
(This proposal was noted in section IX—The
constitution of the central government.) The
main points that arose are noted below:

(a) The purpose behind the above sugges-
tion was to ensure that a provincial point
of view could be brought to bear on the
composition of the Supreme Court, a fun-
damental institution of federalism in
Canada. In this connection, it was
observed that this change might not be
very significant unless the proportion of
privincially appointed Senators was a
substantial one.

(b) A contrasting view was that a more
effective way to ensure that provincial
interests were adequately reflected in the
Supreme Court would be to provide for
direct appointment of a proportion of the
judges by the provincial governments.
One reaction to this view was that such a
procedure might do some harm to the
status of the Court; indeed, this might
lead to the thought that there are two
kinds of judges who represent contesting
parties, and the Court must be above the
ebb and flow of jurisdictional contests.
An observation was made that this poten-
tial difficulty could be avoided if judges
were appointed for life, since they would
then tend not to take on any representa-
tional role.

(c) Doubt was expressed that it would be
desirable to expose the men and women
who would be nominated for these high
offices to public scrutiny by a legislative
body. A contrasting view was that the
nominees to this court would recognize
the importance of the function for the
whole country, and so would accept the
procedure as a desirable thing.

(d) A further suggestion was made that it
might be possible to avoid the public
legislative scrutiny, and yet obtain pro-
vincial participation in the appointment
of the judges, by providing for a consul-
tative process by which the Federal Gov-
ernment would discuss with provincial
governments proposed appointments to
the Court.

2. The possibility that the Supreme Court
should be provided for in the Constitution,
rather than in a federal statute as at present,
was discussed briefly in the Committee. The
reasoning behind this proposal was that the
Supreme Court, as the final court of appeal
and the arbiter of jurisdictional differences
between governments, was a key institution
of federalism which logically should be
defined in the Constitution. An opposing view
was that such a step should only be consid-
ered if the need for a fundamental change of
this kind had been satisfactorily demonstrat-

3. Another proposition advanced the View
that a separate Constitutional Court should be
established for adjudicating on questions
involving interpretation of the Constitution,
and that a proportion of the judges on this
Court should be appointed by the provincial
governments. This proposition and others
which suggest changes in the nature of the
Supreme Court have not yet been examined
in detail by the Committee.

Document 181

Committee of Ministers on The Judiciary
Meeting No. 2

November 4, 1969

Progress Report

To the Constitutional Conference

November 4, 1969

The Committee of Ministers on the Judici-
ary held its second meeting on Tuesday,
November 4, 1969. All governments were

The Government of Quebec resented a
working paper advocating inter alia, the
establishment of a Constitutional Court, as
distinct from a Federal Appeal court, to
interpret the constitution and to rule on juris-
dictional disputes.

Ministers exchanged views on questions
and issues arising out of the paper. A number
of delegations expressed sympathy with the
unique position of Quebec and there was gen-
eral agreement that the Quebec proposals
raised new concepts which should be exam-
ined in de’ail. At the same time, delega ions
reserved their positions on the several issues,
and in particular regarding a separate Consti-
tutional Court, primarily because of the dif-
ficulty foreseen in separating the constitution-
al from the substantive aspects of a case.

The Committee unanimously reaffirmed the
consensus reached at its first meeting in
May—that a Supreme Court should be specifi-
cally provided for in the Constitution, along
with its basic jurisdiction and the method of
appointment of the judges, and that existing
provisions of the B.N.A. Act respecting lhe
independence of the judiciary be extended to
a supreme court.

In general, members expressed satisfaction
although it was agreed that the method of
appointment to the Supreme Court, as well as
its composition in terms of numbers and
regional representation, should be examined.
The Ministers also made reference to various
ques ions concerning such aspects of the
judiciary as civil law appeals and precedent,
as well as to Provincial Courts.

The Committee decided that to advance its
work, individual delegations would examine
the Quebec proposals, as well as alternative
sugges ions and forward comments and
propositions on this subject to the Secretariat
by the end of January. The Secretariat was
charged with collating and distributing this
material to all delegations by the end of Feb-
ruary. In the light of this work, the delega-
tions would then consult on how best to pro-
ceed, subject to any additional direction from
the constitutional conference.

John N. Turner,

Queen’s Printer for Canada, Ottawa, 1970

Other Issues:

Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18

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