Document Information

Date: 1969-12-10
By: Edward Schreyer
Citation: Constitutional Conference, Manitoba, Statement on the Judiciary (Ottawa: 8-10 December 1969).
Other formats: Click here to view the original document (PDF).

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 CONSTITUTIONALLY RECOGNIZED.

APPOINTMENT OF ALL SUPREME COURT JUDGES BY THE FEDERAL GOVERNMENT, AS AT PRESENT, IS NOT SATISFACTORY, HOWEVER. PROVISION SHOULD BE MADE FOR PROVINCIAL APPOINTMENT OF APPROXIMATELY TWO-THIRDS OF THE MEMBERS OF THE COURT. CONSIDERABLE STUDY MAY BE NECESSARY BEFORE A THOROUGHLY SATISFACTORY APPOINTMENT FORMULA IS DEVISED, BUT WE WOULD SUGGEST 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.

[Page 2]

THERE IS MUCH TO BE SAID FOR A DIVISION OF FUNCTIONS AMONG THE JUDGES OF THE SUPREME COURT THAT WOULD MAKE IT POSSIBLE FOR PARTICULAR KINDS OF DISPUTE (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 TECHNICAL DIFFICULTIES THAT WOULD HAVE TO BE OVERCOME BEFORE SUCH A DIVISION OF FUNCTIONS COULD BE PUT INTO EFFECT, HOWEVER. MOREOVER, IT IS NOT CLEAR THAT IT WOULD BE EITHER NECESSARY OR ADVISABLE TO ENTRENCH THE DIVISION OF RESPONSIBILITY IN THE CONSTITUTION. MANITOBA UNDERTAKES, THREFORE, TO SUBMIT A DETAILED STUDY OF THESE 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 SHOULD 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 PROCEDURES THAT WILL ENSURE THAT NO JUDGE CAN BE REMOVED FROM OFFICE WITHOUT GOOD CAUSE.