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Date: 1867-05-29
By: New Brunswick (House of Assembly)
Citation: New Brunswick, House of Assembly, Reports of the Debates of The House of Assembly [1867] at 96-97.
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WEDNESDAY, MAY 29.

(p. 96)

[…]

Mr. Smith.—I should like to know, then, how we can legislate on the County Courts? There is a Bill now before the House which contemplates the expenditure of large salaries for Judges, which is not provided for in the Act of Union. Sections 96. 97 and 100 say :

“96. The Governor General shall appoint the Judges of the Superior, District and County Courts, in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.”

“97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia and New Brunswick, and the procedure of the Courts in those Provinces are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces.”

“100. The Salaries, Allowances and Pensions of the Judges of the Superior, District and County Courts, (except the Courts of Probate and Nova Scotia and New Brunswick), and of the Admiralty Courts, in cases where the Judges thereof are for the time being paid by salary, shall be fixed and provided by the Parliament of Canada.”

I would ask why the exception is made of the Courts of Probate, if it is not to show that we have power over these and no others? I would also ask if it is competent to make a Judge of Probate a Judge of a County Court? I think not —I do not believe we have the power to do anything of the kind. I am aware that section 92, clause. 14, gives to the Local Legislature—

“The administration of Justice in the Province, including the constitution, maintenance and organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and including procedure in Civil matters in those Courts.”

But, still, we cannot pass an Act here to appoint Judges to the County Courts because the Act of Union gives that power into the hands of the General Government, both of Courts and Judges. And if we can create County Courts, why, I would ask, cannot we go on and create District Courts, too? That power, it seems to be conceded, is denied to us.

Hon. Mr. Tilley.—The exception was made of Courts of Probate because it was distinctly understood, and it is embodied in the Act, that no person appointed to those Courts could be paid out of the central funds. But suppose we chose to increase the number of Supreme Judges to seven, they would all have to be paid out of the general fund ; and, whether these Courts are established here now or not, the Act concedes to us the power to create the new Courts. There is no trouble at all about the spirit and sentiment of what was intended, nor I think about the law itself.

Hon. Mr. Wilmot.—I do not think the salaries we may fix will be binding upon the General Government, but so far as the creating of these Courts and the appointing of Judges is concerned, I think there is no doubt but that we have the power. I have long felt the necessity of such Courts here, as have long been established in England and in Western Canada, and I know it was distinctly talked about and settled by the Conference. I think also that we have a perfect power to take additional stock in Railways or to give a bonus right out, as we see fit, but I think that to do it after the passage of that Act, and thus increase our liability, would be to practice a fraud upon the General Government.

Mr. Smith.—Then there is prosecution for crime, that pertains, I see, to the New Dominion, as I understand it ; and I would ask the Attorney General if the criminal jurisprudence of the country belongs to the General or Local Government?

Hon. Mr. Fisher.—I shall not take up the time in answering these matters to-day, but when the County Courts Bill comes up, I will go into the whole question.

Mr. Babbit.—I would ask who we are to get information from if not from the Government? If the Attorney General is the proper authority to give information on these questions, I think he certainly ought to do it. If it is not his duty, then we ought to look to some one else who can enlighten us on these important matters, for at present we seem to be legislating in the dark.

Mr. Kerr.—This discussion has been very profitable, enbracing as it does the very business for which we came here, and I think we ought to have another sitting.

Mr. Smith.—I should certainly very much like to have some of my questions answered, I have tried almost everything to gain information, but as yet I have been unsuccessful.

Mr. Wetmore.—I can sympathize with my hon. friend, for I well remember how I was kept in the dark on very important matters on one occasion, although I asked questions for a period of forty days.

Mr. Young.—I move, Mr. Chairman, that you have the Chair, report progress, and ask leave to sit again.

Mr. Speaker called the attention of the Committee to the fact that during the whole debate, which had taken a wide range, there had been nothing before the Chair, in the shape of motion, or resolution, and that according to the rules laid down they could not report progress without having something to make progress in. He hoped in future that some resolution would be placed distinctly before the Committee, so that the rules of debate might not be infringed.

The Speaker having resumed his seat, Mr. Stevens reported that the Committee of the Whole House having had under their consideration the Report of the Auditory General, begged to report that they had made progress therein, and asked for leave to sit again.

[…]

(p. 97)

[…]

SENATORS.

Mr. Smith.—I will take this opportunity to ask if the Government still continue to withhold the information about the appointment of Senators?

Hon. Mr. Tilley.—We have received no further information since my last reply.