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Date: 2023-03-08
By: PrimaryDocuments.ca
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Constitution Act, 1867:

Section 96

Compilation of primary documents to assist in interpreting Appointment of Justices in Section 96 of the Constitution Act, 1867

Contents

Part 1
Section 96 in Successive Drafts from the Quebec Resolutions, 1864 to the Constitution Act, 1867

Part 2
Debates on Section 96 in the Confederation Debates in the Province of Canada (1865-1866)

Part 3
Debates on Section 96 in the Confederation Debates in Other Provincial Legislatures (1865-1867)

Part 4
Post-Confederation Debates on Section 96

Endnotes

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

“

PART 1:

Section 96 in Successive Drafts, from the Quebec Resolutions, 1864 to the Constitution Act, 1867

—————o0o—————

The Quebec Resolutions (1864)[1]

October 12, 1864: Notes on the Division of Powers with Revisions

(Note: The left column seems to be federal powers, whereas the right column seems to be provincial powers. Neither column, however, is explicitly listed as being federal/local.)

[Right column, a list of items follows, including]

Appointments –
Administration of Justice

(Source: George Brown Papers, Drafts of the Quebec Resolutions, Notes on the Division of Powers, October 12th, 1864 (MG 24, B 40, Vol. 21, p. 3768-3769). Click HERE.)

—–o0o—–

October 25-26, 1864: Resolutions on Indians, Etc.

14. The number of Superior Judges shall not be increased, except by the concurrent action of the General and Local Legislatures.

15. The Judges of the Superior Courts, in each Province, shall be appointed by the General Government, and their salaries shall be fixed by the General Legislature.

(Source: George Brown Papers, Drafts of the Quebec Resolutions, Resolutions on Indians, Etc., October 25th-26th, 1864 (MG 24, B 40, Vol. 21, p. 3750). Click HERE.)

—–o0o—–

October 26, 1864: Working Draft No. 1

To postpone the consideration of:–

[a list of clauses follows]

That the Judges of the Courts of Record in each Province shall be appointed and paid by the General Government, and their salaries shall be fixed by the General Legislature.

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 1, October 26th, 1864, MG 26 A, Vol. 46, pp. 18164-18168. The text is found on p. 18168. Click HERE.)

—–o0o—–

October 26-27, 1864: Working Draft No. 2

[32] That [The General Government shall appoint] the Judges of the [superior] Courts of Record in each Province shall be appointed and paid by the General Government, and their salaries shall be fixed by the General Legislature [and of the County Courts of Upper Canada, and Parliament shall fix their salaries].

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 2, October 26th-27th, 1864, MG 26 A, Vol. 46, pp. 18142-18155. This text is found on p. 18153. Click HERE.)

—–o0o—–

October 27, 1864: Working Draft No. 3

The General Government shall appoint and pay the Judges of the Superior Courts in each Province, and of the County Courts of Upper Canada, and Parliament shall fix their salaries.

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 3, October 27th, 1864, MG 26 A, Vol. 46, pp. 18156-18158. This text is found on p. 18157. Click HERE.)

—–o0o—–

October 27, 1864: Working Draft No. 4

[33.] That the General Government shall appoint and pay the Judges of the Superior Courts in each Province, and of the County Courts of Upper Canada, and Parliament shall fix their salaries.

 (Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 4, October 27th, 1864, MG 26 A, Vol. 46, pp. 18136-18138. This text is found on p. 18137. Click HERE.)

—–o0o—–

March 14, 1865: Quebec Resolutions as adopted in the Legislature of the Province of Canada

33. The General Government shall appoint and pay the Judges of the Superior Courts in each Province, and of the County Courts in Upper Canada, and Parliament shall fix their salaries.

(Source: John A. Macdonald, The Quebec Resolutions, 1864 as Adopted in the Legislature of the Province of Canada, Vol. 46, pp. 18210-18216. This text is found on p. 18213. Click HERE.)

—–o0o—–

The London Resolutions (1866)

December 4, 1866: Version No. 1, Copy 1

33. The General Government shall appoint and pay the Judges of the Superior Courts in each Province, and of the County Courts of Upper Canada, and Parliament shall fix their salaries.

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 1, Copy 1, December 4th, 1866 (MG 26 A, Vol. 46, pp. 18184-18190). This text is found on p. 18186. Click HERE.)

—–o0o—–

December 13-14, 1866: Version No. 2, Copy 1

33. The General Government shall appoint and pay the Judges of the Superior [& of District & County] Courts in each Province, and of the County Courts of Upper Canada, and Parliament shall fix their salaries.

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 2, Copy 1, December 13-14th (MG 26 A, Vol. 46, pp.18176-18183) The text is found on 18179. Click HERE.)

—–o0o—–

December 13-14, 1866: Version No. 2, Copy 2

33. The General Government shall appoint and pay the [salaries of the] Judges of the Superior [district & county] Courts in each Province, and of the County Courts of Upper Canada, and Parliament shall fix their salaries.

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 2, Copy 1, December 13-14th (MG 26 A, Vol. 46, pp.18191-18196) The text is found on 18193. Click HERE.)

—–o0o—–

December 14, 1866: Version No. 3, Copy 1

33. The General Government shall appoint and pay the [salaries of the] Judges of the [District and County] Superior Courts in each Province, and of the County Courts of Upper Canada, and Parliament shall fix their [& Parliament shall pay their] salaries.

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 3, Copy 1, December 14th, 1866 (MG 26 A, Vol. 46, pp. 18197-18209) The text is found on 18203. Click HERE.)

—–o0o—–

December 28, 1866: Final Version

33. The General Government shall appoint and pay the salaries of the Judges of the Superior and District and County Courts in each Province, and Parliament shall fix their salaries.

(Source: London Resolutions as found in Joseph Pope (ed), Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto: Carswell Co. Ltd., 1895) at 98-110. This text is found on p. 104. Click HERE.)

—–o0o—–

Constitution Act, 1867

n.d. (probably early January, 1867): Rough Draft

35. The Governor-General may appoint Governers [sic] for the respective Provinces, Judges and other officers authorised by Parliament, and also the Judges of the Superior and District and County Courts in each Province. But the Judges of Lower Canada shall be selected from the bar of that Province, and until the consolidation of the laws of the other Provinces the Judges of these Provinces shall be selected from their respective benches or bars.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Rough Draft, n.d. (MG 26, A, Vol. 48, pp. 18768-18793). This text is found on p. 18779. Click HERE.)

—–o0o—–

January 23, 1867: 23rd January Draft

This draft does not discuss Section 96.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 23rd January Draft, J.W. Ritchie’s Copy, January 23rd, 1867 (MG 26, A, Vol. 48, pp. 18971-18988). Click HERE.)

—–o0o—–

January 30, 1867: 1^st Draft

Only a partial copy survives of this draft, consisting of the first twenty sections of the draft Bill. Therefore, the wording of the relevant section in this draft is unknown. 

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 1st Draft, January 30th, 1867 (MG 26 A, Vol. 48, pp. 19017-19021. Click HERE.)

—–o0o—–

January 31, 1867: 2^nd Draft

This draft does not discuss Section 96. However, for the first time, the salaries of judges is listed as a separate clause and not included with the appointment of said judges. This would eventually become Section 100.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 2nd Draft, January 31st, 1867 (MG 26, A, Vol. 48, pp. 19022-19039). This text is found on pp. 19036-19037. Click HERE.)

—–o0o—–

n.d. (between Jan. 31 & Feb. 2, 1867): 3^rd Draft, Early Copy

This draft does not discuss Section 96. 

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Early Copy, n.d. (MG 26, A, Vol. 48, pp. 19101-19124). Click HERE.)

—–o0o—–

February 2, 1867: 3^rd Draft, Revised Copy

This draft does not discuss Section 96. 

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Revised, February 2nd, 1867 (MG 26, A, Vol. 48, pp. 19125-19148). Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Early Version

59. The Government of Canada shall appoint the Judges of the Superior District County, and Recorders’ Courts in each Province.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, n.d. (MG 26, A, Vol. 49/1, pp. 19150-19181). The text is found on p. 19177. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Early Version, Copy 2

59. The Government [General General] of Canada shall appoint the Judges of the Superior District County, and and Recorders’ Courts in each Province.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, Copy 2, n.d. (MG 26, A, Vol. 49/1, pp. 19247-19278). The text is found on p. 19274. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Early Version, Copy 3

59. The Government of Canada [The Governor General] shall appoint the Judges of the Superior, District, and Recorders’ [and] County Courts in each Province.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, Copy 3, n.d. (MG 26, A, Vol. 49/1, pp. 19306-19336). The text is found on p. 19332. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Early Version with F.S. Reilly’s Notes

(Note: Reilly combines section 59 with 61. He seems to renumber this new clause 51.)

[51] 59. The Government [Governor General] of Canada shall appoint the Judges of the Superior District [and] County, and Recorders’ Courts in each Province 61.—[and] Until the consolidation of the Laws of Ontario, Nova Scotia and New Brunswick, the [such] Judges of these Provinces, appointed by the Government, shall be selected from their respective Bars.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version with F.S. Reilly’s notes, n.d. (MG 26, A, Vol. 49/1, pp. 19182-19214). The text is found on p. 19209. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Early Version, McCully’s Copy

59.—The Government [Governor General] of Canada shall appoint the Judges of the Superior District County, and Recorders’ Courts in each Province. [Here comes 61][2]

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, McCully’s Copy, n.d. (MG 26, A, Vol. 49/1, pp. 19279-19305). The text is found on p. 19302. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Later Version

51.—The Governor General of Canada shall appoint the Judges of the Superior District and County Courts in each Province, and until the consolidation of the Laws of Ontario, Nova Scotia and New Brunswick, such Judges shall be selected from their respective Bars.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, n.d. (MG 26, A, Vol. 49/1, pp. 19337-19367). The text is found on p. 19363. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Later Version, Copy 2[3]

51.—The Governor General of Canada shall appoint the Judges of the Superior District and County Courts in each Province, and until the consolidation of the Laws of Ontario, Nova Scotia and New Brunswick, such Judges shall be selected from their respective Bars.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, Copy 2, n.d. (MG 26, A, Vol. 49/1, pp. 19368-19398). The text is found on 19394. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Later Version, Revised Copy

51.—The Governor General of Canada shall appoint the Judges of the Superior District and County Courts in each Province, and until the consolidation of the Laws of Ontario, Nova Scotia and New Brunswick, such Judges shall be selected from their respective Bars.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, Revised Copy, n.d. (MG 26, A, Vol. 49/1, pp. 19399-19450). This text is found on p 19425. Click HERE.)

—–o0o—–

n.d. (1867): 4^th Draft, Final Version

121.—The Governor General of Canada shall appoint the Judges of the Superior District and County Courts in each Province, and until the consolidation of the Laws of Ontario, Nova Scotia and New Brunswick, such Judges shall be selected from their respective Bars.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Final Version, n.d. (MG 26, A, Vol. 49/2, pp. 19614-19664). This text is found on p. 19660. Click HERE.)

—–o0o—– 

“

PART 2:

Debates on Section 96 in the Confederation Debates in the Province of Canada (1865)

Debates on the subject of Section 33 of the Quebec Resolutions (the ancestor of Section 96)

—————o0o—————

Province of Canada (1865)

February 6, 1865: Antoine-Aimé Dorion, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 267)[4]

Antoine-Aimé Dorion [Hochelaga]—[…] There is a provision that the nomination of the judges of the superior courts shall be vested in the General Government, but it would seem that the constitution of the courts is to be left to the local governments; and I put the question, What does this mean? Do you mean that the local governments are to establish as many courts as they please, declare of how many judges they will be composed, and that the General Government will have to pay for them? Is a local government to say, here is a court with three judges; we want five, and those five must be appointed and paid by the General Government? I have received no answer to this and to several other questions. I can well understand what is meant by the regulation of the law of divorce; but what is meant by the regulation of the marriage question? Is the General Government to be at liberty to set aside all that we have been in the habit of doing in Lower Canada in this respect?

—–o0o—–

Hector-Louis Langevin, Legislative Assembly, February 21, 1865, p. 387 (HERE)

Hector-Louis Langevin [Dorchester, Solicitor General East]—[…] The honorable member should have observed that by the powers conferred on the local governments, Lower Canada retains all her civil rights, as prescribed by the 17th paragraph of article 43, as follows:—

The administration of justice, including the constitution, maintenance and organization of the courts, both of civil and criminal jurisdiction, and including also the procedure in civil matters.

This is a privilege which has been granted to us and which we shall retain, because our civil laws differ from those of the other provinces of the Confederation. This exception, like many others, has been expressly made for the protection of us Lower Canadians. It was our desire, as the representatives of Lower Canada at the Conference, that we should have under the control of our Local Legislature the constitution and organization of our courts of justice, both civil and criminal, so that our legislature might possess full power over our courts, and the right to establish or modify them if it thought expedient. But, on the other hand, the appointment of the judges of these courts had to be given, as it has been, to the Central Government, and the reason of this provision is at once simple, natural and just.

In the Confederacy we shall have a Central Parliament and local legislatures.—Well, I ask any reasonable man, any man of experience, does he think that, with the ambition which must naturally stimulate men of mark and talent to display their powers on the theatre most worthy of their talents, these men will consent to enter the local legislatures rather than the Federal Parliament? Is it not more likely and more reasonable to suppose that they would rather appear and shine on the largest stage, on that in which they can render the greatest service to their country, and where the rewards of their services will be the highest?

Yes, these men will prefer to go to the Central Parliament, and among them there will be doubtless many of our most distinguished members of the legal profession. The members of this profession are often accused of going into Parliament for the purpose of monopolizing the representation. If this be the case at the present time, is it not to be supposed that they will do the same thing under Confederation? Were the appointment of the judges left to the local legislatures, the local governments would be subjected to a pressure which might be brought to bear upon them by the first advocate who would attain influence in the Local Legislature.

To get rid of an inconvenient member who might have three or four followers, the Local Government would have to take

• • (p. 388)

this troublesome advocate of the second, third or fourth order of talent, and place him on the bench, whilst by leaving these appointments to the Central Government, we are satisfied that the selection will be made from men of the highest order of qualifications, that the external and local pressure will not be so great, and that the Government will be in a position to act more freely. It may be remarked, in passing, that in the proposed Constitution there is an article which provides that the judges of the courts of Lower Canada shall be appointed from the members of the bar of that section.

This exception was only made in favor of Lower Canada, and it is a substantial guarantee for those who fear the proposed system. Besides, the honorable member for Hochelaga [Antoine-Aimé Dorion], who fancies that he sees danger in the powers given to the Central Government, knows by experience, as having himself been a minister of the Crown, that in respect of every appointment of a judge the Cabinet always consults the ministers for the section in which the appointment is to be made, and accepts their choice.

The same practice would necessarily be followed by the Central Government, who would be forced to respect it, because behind the ministers from each section would be found the members from that section, and behind our ministers for Lower Canada will be found the sixty-five members whom we shall have sent to represent and protect our interests in the Federal Parliament. It is then advantageous, and there could be no danger in the provision that the judges should be appointed by the Central Government; indeed, it is for our interest, and the interest of all, that it should be so.

And although it may be looked upon as a secondary consideration, yet it may as well be mentioned now, that by leaving the appointment of our judges to the Central Government, we are the gainers by one hundred thousand dollars, which will have to be paid for their services by the central power. This consideration will perhaps have some weight with the honorable member for Hochelaga [Antoine-Aimé Dorion], who makes such an outcry to alarm the people that we shall be obliged to have recourse to direct taxation to defray the expenses of our Local Legislature. Notwithstanding the advanced hour of the evening, I cannot pass over in silence another observation made by the honorable member, and I beg he will accord me his undivided attention at the present moment.

—–o0o—–

John Rose, Legislative Assembly, February 22, 1865, p. 408 (HERE)

John Rose [Montreal Centre]—[…] These fears, I have said, are vague and undefined, and difficult therefore to combat. If I go among one class and ask

• • (p. 409)

them what they fear, I am told—”Oh, you are going to hand us over to the tender mercies of the French; the English influence will be entirely annihilated; they will have no power in the community; and all the advantages we have gained during the past twenty-five years by our union with the people of our own race in Upper Canada will be entirely lost.” I can but answer—“What are you afraid of? Where is the interest affecting you that are imperilled? You have, in conjunction with a majority of your own race, power in the General Legislature to appoint the local governors, administer justice and name the judges, to control the militia and all other means of defence, and to make laws respecting the post office, trade, commerce, navigation; and you have all the great and important interests that centre in the community I represent—all matters that affect the minority in Lower Canada—within your control in the Federal Legislature.

—–o0o—–

Leonidas Burwell, Legislative Assembly, February 24, 1865, p. 447 (HERE)

Leonidas Burwell [Elgin East]—[…] It is well also, in my opinion, that that government should appoint the judges. I like to see an independent judiciary, and believe that this will be secured to us by the mode proposed in these resolutions.

—–o0o—–

Christopher Dunkin, Legislative Assembly, February 27, 1865, p. 501 & 508 (HERE)

Christopher Dunkin [Brome]—[…] The state, within its certain range of subjects, does what it likes, and is as free to act as the United States; it has its own functions, and within the limits of those functions nobody controls it. The United States have their special functions also, and within the range of those functions can, in turn, control everything.

The respective judiciary systems of the state and of the United States, are further so contrived as to be the most perfect check that can well be imagined to secure the smooth and steady working of this Federal national machinery. It is a complex piece of machinery, if you will; there are many delicate parts in it, one depending nicely upon another; but, upon the whole, it has worked pretty well for many years, and may go on working pretty well for many more.

George-Étienne Cartier [Montreal East, Attorney-General East]—But the judges are elected.

Christopher Dunkin [Brome]—Does the hon. gentleman mean to tell this House that the principle of elective judges forms a part of the constitutional system of the United States? Why, sir, an elective judiciary is a mere excrescence of quite late growth, and has not fastened itself on the system of the United States at all. It is not even as yet adopted by nearly all the individual states, but only by some of them. It is an excrescence which the founders of the United States system never, I fancy, thought of, or in all human probability they would have expressly provided against it.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—But now, sir, what is the system we are going to adopt according to these resolutions? What are the relations to be established between our general and local governments? We are told to take for granted that no clashing of interest or reeling need be feared; that the Federal union offered us in name will be a legislative union in reality. Yet, whoever dislikes the notion of a legislative union is assured it will be nothing of the sort. Now, sir, I do not believe that you can have all the advantages of these two systems combined in one.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—A Legislative union is one thing; a Federal union is another. The same system cannot be both at once. You cannot devise a system that shall have all the advantages of the one and of the other; but it is quite possible that you may devise one that will combine the chief disadvantages of both, and the it is, I fear, pretty much what this system does.

Christopher Dunkin, p. 508

Christopher Dunkin [Brome]—There is another matter, intimately connected with this, to which also I must pass on. I said a little while ago, that the United States system was one of exceeding skill as regards the constitution of the judiciary. De Tocqueville, and every other writer who has treated of the United States, has awarded it this praise; and they are right. Each state has its own judiciary; and the United States have theirs; and the functions of the two are most carefully laid down, so that no serious trouble has ever arisen from their clashing. The judiciary of the United States is undoubtedly the most conservative and strongest bulwark of their whole system.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—What then are we going to do on this head? Just as we have forgotten all about difficulties where the seat of government is concerned, so here. We are not quite sure whether we are going to have any distinctively federal judiciary or not. There is a power given to have one—there may be one; but we are expressly told that perhaps there will not be. But what are we told on the other hand? Oh, there is no doubt whatever, according to the resolutions laid before us—no doubt whatever—that whether we have a Federal judiciary or not, the provincial judiciaries are to be a sort of joint institutions. And a very curious kind of co-partnership the Federal Government and the provincial governments—the Federal Legislature and the provincial legislatures—are thus to have in the judicial institutions of the country, generally. All the courts, judges, and other judicial officers of the provinces are to be, for all manner of federal purposes, servants of the Federal Government. There is an old saying, “No man can serve two masters.”

But all these unfortunate courts, and ash their officers, and specially all their judges, must serve two masters, whether they can or not. All the Superior Court judges—and, in Upper Canada, the judges of the County Courts—are to be named and paid by the Federal authority, and are only to be removable by the Federal authority, on a joint address of the two Houses of the Federal Parliament. But, on the other hand, the provinces are to constitute the courts— 

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—are to say what their functions shall be—what the number of the judges—how they are to perform their functions—are to give them more work or less—to make their work pleasant or disagreeable, high work or dirty work, as they like.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—In this way they can wrong a judge just as much as they please; the only check on them being the power of the Federal Government to disallow their legislation. The Federal Government, forsooth, names the judges, and pays them, and alone can remove them. Does that take away the power from the local parliaments and governments, the power to change the constitution of the court, to change it in the way most distasteful to those judges, to legislate away the court altogether, to legislate down its functions in such a manner as may drive the judge to resign? And we are told there will be no clashing!

Some Hon. Members—Hear.

Christopher Dunkin [Brome]—I have no doubt the Hon. Attorney General East [George-Étienne Cartier] thinks he could manage courts on this system; could have one authority constituting the courts and another naming and removing the judges, and have the system work harmoniously. He may think so. I do not. I am satisfied if ever the scheme is tried, it will be found that it will not work. Human nature is human nature; and here is a first-rate lot of matters to quarrel over, and to quarrel over seriously.

Why, there is even a special refinement of confusion as to criminal matters. Criminal procedure is to be federal; civil procedure, provincial; criminal legislation, proper, is to be federal; but with a most uncertain quantity of what one may call legislation about penalties, provincial; civil rights, in the main, provincial; but with no one can tell how much of federal interference and over-ruling, and all with courts provincial in constitution, but whose judges hold by federal tenure and under federal pay.

I pity the poor man who is at once a criminal judge and a civil judge. Between the clashing of his masters and the clashing

• • (p. 509)

of his book authorities, he had better mind what he is about, with the painful doubt rising at every turn whether provincial legislation may not be overridden by federal legislation.

His province may well have legislated on what it holds a local matter, while the Federal Parliament may have legislated on it, thinking it a federal matter. Anywhere there may well be some bit of federal legislation contradicting something in a local statute. And do our resolutions say that the federal statute shall always override the local statute? No, only in cases where there is concurrent jurisdiction. And yet our judge who is to decide these nice questions is paid by one power and removable by that power, and may have his functions taken away and be persecuted to the death by the other. He will have a bad time of it.

Well, Mr. Speaker, I have so far been dealing with matters, nearly all of which may be said to be general to every part of this great Confederacy; but now I must ask the attention of the House for a few moments, to some sources of misunderstanding which may more particularly make trouble, unless human nature ceases to be human nature within this Canada of ours. There are in Canada, and especially in Lower Canada, the two differences of language and faith; and there is no doubt that the real reasons which have rendered, or are supposed to have rendered necessary this plan of a sort of Federal Government, are referable to this fact. This machinery is devised, on purpose to meet a possible or probable clashing of races and creeds in Canada, and particularly in Lower Canada.

—–o0o—–

Joseph Cauchon, Legislative Assembly, March 2, 1865, p. 574 (HERE)

Joseph Cauchon [Montmorency]—The 34th paragraph of the 29th clause of the scheme reads thus:

“The establishment of a General Court of Appeal for the Federated Provinces.”

What is the object—what will be the character of the tribunal? These two questions will naturally present themselves to those who have given any attention to that part of the scheme which refers to the civil and criminal law, and the working of the judiciary. The whole of the clauses which refer to the latter are as complete as the most ardent supporters of union could desire, tempered by the low exceptions by means of which the provinces have wished to shelter their local institutions from attack.

Some Hon. Members—Cheers.

Joseph Cauchon [Montmorency]—To convince the House of this, I need but read the following:—

31. The General Parliament may also, from time to time, establish additional courts, and the General Government may appoint judges and officers thereof, when the same shall appear

• • (p. 575)

necessary or for the public advantage, in order to the due execution of the laws of Parliament.

32. All courts, judges and officers of the several provinces shall aid, assist and obey the General Government in the exercise of its rights and powers, and for such purposes shall be held to be courts, judges and officers of the General Government.

33. The General Government shall appoint and pay the judges of the Superior Courts in each province, and of the County Courts in Upper Canada, and Parliament shall fix their salaries.

35. The judges of the courts of Lower Canada shall be selected from the Bar of Lower Canada.

37. The judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable only on the address of both Houses of Parliament.

45. In regard to all subjects over which jurisdiction belongs to both the General and Local Legislatures, the laws of the General Parliament shall control and supersede those made by the local legislature, and the latter shall be void so far as they are repugnant to, or inconsistent with the former.

38. For each of the provinces there shall be an executive officer, styled the lieutenant-governor, who shall be appointed by the Governor General in Council, under the great seal of the Federated Provinces, during pleasure: such pleasure not to be exercised before the expiration of the first five years, except for cause: such cause to be communicated in writing to the Lieutenant-Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of Parliament, within the first week of the first session afterwards.

39. The lieutenant-governor of each province shall be paid by the General Government.

50. Any bill of the General Parliament may be reserved in the usual manner for Her Majesty’s assent, and any bill of the local legislatures may, in like manner, be reserved for the consideration of the Governor General.

51. Any bill passed by the General Parliament shall be subject to disallowance by Her Majesty within two years, as in the case of bills passed by the legislatures of the said provinces hitherto, and, in like manner, any bill passed by a local legislature shall be subject to disallowance by the Governor General within one year after the passing thereof.

The evident object of this organization is to reassure the Protestant minority of Lower Canada against any apprehension for the future; it is also perhaps in the interest of national unity, to prevent local parliaments and governments from infringing the attributes of the Central Parliament. The nomination of judges, the veto, the reservation and even certain directions to be found in the project itself, tend to the same end, and must necessarily attain it. I see nothing wrong in that, provided that this formidable engine in going out of its course does not crush the rights which we are bound to respect and maintain forever in their integrity.

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—I am not of the same opinion as the hon. member for Brome [Christopher Dunkin], who pretends to see in those clauses that the judges would be under two masters at the same time. If they could possibly be controlled at all, it would be by the Federal Government, which alone will appoint them, pay them, and have the power of dismissing them in certain cases. There is no anomaly here, because one thing follows another; all are linked together and harmonize perfectly. If anything could possibly arise, it would be danger. However, so far as we can see, there will be no danger in the administration of justice—the question of veto, and reserve with regard to legislation, being a totally different thing, and suggesting considerations of a different nature.

But here is the point to which I wish to draw the attention of this House. Among all the things guaranteed to Lower Canada in the Constitution, and in fact to all the provinces, we find their own civil laws. Lower Canada has been so tenacious of its civil code, that it is laid down in the project before us that the Federal Parliament shall not even be able to suggest legislation by which it may be affected, as it will have the right to do for the other provinces—The reason is obvious; the civil laws of the other provinces are nearly similar; they breathe the same spirit and the same principles; they spring from the same source and the same ideas. But it is not so with regard to those of Lower Canada, with their origin from almost entirely Latin sources; and we hold to them as to a sacred legacy; we love them because they suit our customs, and we find under the protection for our property and our families.

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—The Conference has understood and respected our ideas on this point. However, if a Court of Appeal should one day be placed over the judiciary tribunals of all the provinces, without the exception of those of Lower Canada, the result would be that those same laws would be explained by men who would not understand them, and who would, involuntarily perhaps, graft English jurisprudence upon a French code of laws.—

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—Such was the spectacle presented in Canada after the conquest, and no one, I am sure, would wish to see a repetition of the scene.

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Joseph Perrault, Legislative Assembly, March 3, 1865, p. 624 (HERE)

Joseph Perrault [Richelieu]—[…] But then, what sort of guarantees shall we have under the Confederation which it is proposed to force upon us and under which we shall be in a minority twice as great? Let us suppose the very probable contingency of a collision between our Local Legislature and the Federal Government, in consequence of the rejection of a measure passed by the Province of Lower Canada and thrown out by the General Parliament; in what position shall we be? Let us remember that the Federal Executive appoints the Legislative Council, presides over the criminal legislation of the country, and appoints the judges who administer it; in a word, that in the Federal Government are vested all sovereign powers, to the exclusion of the local governments.

Well, Mr. Speaker, I say without hesitation that in the case of a collision, we shall find ourselves completely at the mercy of the hostile Federal majority, and that it may oppress us, assimilate our laws; suspend our judges, arm the militia against us, and send us to the scaffold or into exile in any way they may think proper, notwithstanding our protestations and those of the French-Canadian minority in the Federal Parliament. Such has already been found to occur; the past is there to prove the fact, and everything leads us to believe that the same attempts at fanatical aggression will be renewed in our day, if the scheme of Confederation is adopted.

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Jean-Baptiste-Éric Dorion, Legislative Assembly, March 9, 1865, p. 860 (HERE)

Jean-Baptiste-Éric Dorion [Drummond & Arthabaska]—I am opposed to the scheme of Confederation, because the courts of justice of Lower Canada will be under the control of the General Government. We should have courts of justice in Lower Canada, but the judges who would sit in them would be appointed by the Government of the Confederation. It would be the same in the other provinces; but Lower Canada, with her laws, which are peculiar to her, ought especially to resist the interference of the General Government in the administration of justice.

It will be said that the Conference endeavored to cause their intentions to be suspected, and it has already been urged that this arrangement is a stroke of the lawyers, who would prefer to see the nomination of the judges vested in the General Government, because they would receive higher salaries, rather than see them appointed by the local governments, who would be obliged to have recourse to direct taxation in order to pay their salaries. But setting aside this idea, I assert that the appointment of the judges in each province by the General Government appears to me an uncalled-for interference, an anomaly which cannot be too strongly opposed.

—–o0o—–

“

PART 3:

Debates on Section 96 in the Confederation Debates in Other Provincial Legislatures (1865-1867)

Debates on the subject of Section 33 of the Quebec Resolutions (the ancestor of Section 96)

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Newfoundland (1865)

February 28, 1865: Mr. Parsons, speaking in the Newfoundland House of Assembly. (Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.)

p. 2 (April 24^th report of proceedings):

Mr. Parsons: […] The benefits to be derived from our connection with Canada are well satirized in the following dialogue said to have occurred in Nova Scotia:—

Duncan.—Should the proposed Union take place, what will we Nova Scotians be obliged to give up to the Parliament of Ottawa?

Roderick.—All our revenue and public property, the right to directly tax us, the right to change, or present laws, and the right to make void the laws our local legislature may hereafter enact, the right to appoint our Governors and Judges, the right to establish additional Courts and appoint Judges and officers thereof, and generally to do with us whatever suits the interests of Canadians.

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March 2, 1865: Mr. Casey, speaking in the Newfoundland House of Assembly. (Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.)

p. 1 (April 27^th report of proceedings):

Mr. Casey—[…] They would appoint our Judges, our Postmaster General, and all his subordinates, and also the whole of the Customs’ staff, throughout the Colony, and pay them out of the taxes levied upon us. There offices might be filled by Canadians, Nova Scotians, or New Brunswickers; but there would be very little probability of the patronage being conferred on Newfoundlanders. At present, under Responsible government, all offices in this Colony, from the highest to the lowest, with the exception of that of governor, were given to our own people; but what influence would our eight members in the Federal House of Commons have to secure offices for Newfoundland, when opposed by the influence of Canada, New Brunswick or Nova Scotia?

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New Brunswick (1866)

June 27, 1866: Mr. Smith, speaking in the New Brunswick House of Assembly. (Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.)

p. 26: 

Mr. Smith—I have not the slightest doubt but that he tells the truth. The last section of the specified powers which I have already mentioned just reverses the principle of the Constitution of the United States.

“All Courts, Judges and Officers of the several Provinces shall aid, assist and obey the General Government in the exercise of its rights and powers, and for such purposes, shall be held to be Courts, Judges, and Officers of the General Government.”

There is another obscurity about this that I can’t understand. It does not say what officers are meant. It seems to me that any officer of the local governments will become an officer of the General Government, and if this is not the meaning, I shall be obliged to the Attorney General to explain it.

“The General Government shall appoint and pay the Judges of the Superior Courts in each Province.”

But a favor is granted to Upper Canada, for there the Judges of the County Courts are provided for, whilst here they are appointed and paid by the local government.

“The Judges of the Courts of Lower Canada should be selected from the Bar of Lower Canada.”

But here, after the consolidation of the laws, they may not be selected. Why, I ask, is this? We all know the feeling of dissatisfaction that was raised in this Country when Chief Justice Carter was brought from England, and put over our heads, but here Judges may come from any part of the United Provinces, to the exclusion of members of our own Bar.

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June 28, 1866: Samuel Leonard Tilley, speaking in the New Brunswick House of Assembly. (Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.)

p. 35: 

The hon. gentleman (Mr. Smith) has expressed himself in favour of a Legislative instead of a Federal Union. Then how can he object to this power being given to the General Government, for much more power would be given them under a Legislative Union. He has spoken of this Legislature becoming a mere corporation, with but limited powers, but under a Legislative Union all these towns and counties would be municipalities, but they would have powers given them which would be clearly defined. St. John has certain corporate powers given to it, but there is no clashing with ours. He says that when Acts are passed by each Government which conflict there is no power to appeal to. Does not the Scheme say that the laws of the General Parliament shall control and supersede those made by the Local Legislature. Suppose they attempted to interfere with the rights and privileges of the Local Legislature, the Local Government would at once appeal to the Imperial Government, and say, the General Parliament have exceeded their powers and ask them to interfere. This is the protection in this matter. Then he says we have to send the Bills we pass here to a political body for their approval. Do we not send them to a political body when we send them to the British Government, and no difficulties occur. Can it be supposed that more difficulties will arise in getting the assent of the General Parliament to our Bills, when we have representatives there who will make and unmake Governments, than will arise in the Imperial Government where we have no direct voice in the matter. He takes exception to this:

34. Until the consolidation of the laws of Upper Canada, New Brunswick, Nova Scotia, Newfoundland, and Prince Edward Island, the judges at these Provinces appointed by the general Government shall be selected from their respective bars.

35. The Judges of the Court of Lower Canada shall be selected from the Bar of Lower Canada.

He says this implies that Judges might be selected from other Bars in any of the other Provinces. I ask legal men if they do not consider it an advantage for gentlemen to be taken from the Bar of New Brunswick to be made Judges in Nova Scotia, and vice versa. Cases have occurred here where there was only one Judge on the Bench who was not interested in the matter. It was put down as one of the most desirable propositions that could be made, for it secures Judges who have no local interests or political bias in the Province to which they are appointed. Is it to be said that the members of the profession in New Brunswick are to be confined simply to New Brunswick. If you can put them in a better position they have a right to it. But this cannot take place unless our laws are assimilated. If our laws are different from those of Canada and Nova Scotia there would be a difficulty in having Judges appointed from other parts to decide upon laws they are not conversant with.

The Judges of Lower Canada have to be selected from the bar of Lower Canada, for they are under a code of Laws secured to them at the time of Union and they will not change it. The French language being used there it was the wish of the Lower Canadians that they should be selected from Lower Canada. He then objects to the way in which the basis of representation by population was arranged. The basis made was that Lower Canada was to have sixty-five members upon which there should be no increase. That was to prevent the number of representatives increasing in the General Parliament. There is to be one representative for every 17,000 of the population. If the population of Lower Canada increases so that she will have but one representative for every 20,000 of her population, none of the other Provinces can get any increase unless they have 20,000 in addition to her average of 20,000.

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June 29, 1866: Mr. Skinner, speaking in the New Brunswick House of Assembly. (Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.)

p. 49: 

Mr. Skinner: […] All they wanted was to form a Union for the purposes of commerce and defence. If the Provinces had been going into a Legislative Union they would not have needed a Scheme, the Common Law would have sufficed as the basis, but in a Federal Union it was necessary that the Constitution should be a written one, and it requires the greatest care and deliberation in the preparation of its provisions. The hon. member for York (Dr. Dow) his fastidious friend who opposed his request, would rear up a nation in a half-an-hour as he would a wood boat. He did not like the arrangement with regard to the appointment of the Judges. For the first ten years they were to be appointed from their own respective bars. He would make it for all time.

In England, Scotland, and Ireland they had their own Judges. It was well known that it took the best minds in the country to make a lawyer, and then it required years of close and careful study to become acquainted with the Common Law, and years again to know the Statute Law, and it should be provided that when Judges are appointed they should be taken from the bars of the respective Provinces where the vacancy occurs. How was it in Maine, and the other States? They all had their own Judges, men whose decisions and writings on jurisprudence are co-even and co-equal with those of the Judges in England.

He had no objection to the appointments being in the hands of the Central Government.

Then the General Government had a veto power over all the acts of the Provinces. If New Brunswick or Nova Scotia were to pass a law which they found to be required and it was afterwards declared unconstitutional by the General Government, it would cause a great deal of discontent. The whole might be obviated by placing the matter in the Judiciary, for the reverence of our people for the Bench is deep and constant. See how it is; a man is in political life, deep in the turmoil and strife of an election. He is a fit mark for the wit or sarcasm of any one, but he is raised to the Bench by the party in power, and the people cease to scoff and already reverence. Yes, if the veto power were in the hands of the Judges, the people would bow to their decisions, but they would not if left with politicians.

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June 30, 1866: Mr. Fisher, speaking in the New Brunswick House of Assembly. (Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.)

p. 56: 

Hon. Mr. Fisher: […] The tendency of this arrangement is to a Legislative Union. It will arise out of this in the future, and be the final result. There is a provision made for assimilating all the Laws in every part of the Confederacy except Lower Canada. The provisions made for selecting Judges from any part of the Confederacy is I think a good arrangement, and will be an advantage to the public interest. I was concerned in a case where there was only one Judge in the Province that could try it on account of having an interest in it.

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New Brunswick (1867)

May 29, 1867: Mr. Smith starts a debate on the courts, speaking in the New Brunswick House of Assembly. Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.

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.

—–o0o—–

May 30, 1867: A debate on the courts and judges, in the New Brunswick House of Assembly. Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.

p. 98:

Mr. Fisher: […] The Delegates, when they discussed the Union Act, came to the conclusion that we should have the privilege of establishing these Courts, which they had in full operation in Upper Canada, and the salaries of the Judges, as well as the Judges of the Supreme Court, should be paid by the General Government. I think it was understood, though not stated in so many words, that the establishing of these Courts would form part of our arrangements necessary to be made before we went into Union. I could talk a long time upon a law Bill, but I shall not take up the time at present, for the great point is to settle the principle of the Bill. If we agree that it would be an advantage to establish these County Courts, the other matters will be mere matters of detail, and the House can appoint three, four, five or six Judges, as they think proper.

[…]

Mr. Smith: […] I ask the Attorney General now to bring forward that Bill, for this is only half a measure, as these Bills were to run together concurrently. I do not see that this Bill before the House will be calculated to be productive of much advantage to the country. There will be five more Judges’ salaries to pay, at from $1000 to $2,600 per annum. The question seems to me to be not whether we have the power to fix the salaries of

p. 99

the Judges, but whether the Government has the power to appoint them. I doubt whether we have this power. I think it would be very inconsistent for us, according to the reading of this law, to make appointments to the Court of Common Pleas, because that comes under the General Government. The Court of Common Pleas may be considered a County Court, and the Judges of that Court require to be paid by the Federal Government, therefore I think it would not be right for us to appoint them.

p. 100

Mr. Smith: […] We had better keep the jurisdiction of our Courts as it is, for the lawyers are now accustomed to it, and appoint a lawyer as Judge of the Court of Common Pleas, and then we will not be violating the Imperial Act. I do not think it was the intention of the parties who framed that law that we should have the power, at this session, before the Proclamation of Union takes effect, to create new Courts and re-cast the whole Judicial jurisdiction, and create new Judges with salaries of £650 a year. I do not think we are justified in doing it, and I do not think the interests of the people of this Country will be improved by it in the slightest degree.

p. 101

Hon. Mr. Fisher: […] If the House is in favour of the principle of the Bill, that we should establish these County Courts, the appointment of Judges and the other machinery are mere matters of detail, and all I desire is that they shall be assimilated as nearly as possible to the practice of the Supreme Court.

[…]

Mr. Johnson: […] When it was proposed in Quebec that the salaries of the Judges should be paid by the Local Governments, while the General Government should make the appointments, I took the ground that the salaries must come from the same Government in which the patronage lay, and I take the same ground now. If I had not been on the delegation I might have felt differently, but I now feel that all those for whom we acted are bound by the conditions of the bargain we made. When we entered into that contract we had certain Judgeships with certain salaries, and it is only the General Government which should establish additional Courts, and they will do it if necessary. I would go for passing a low of this kind if I was satisfied we were doing it right in contemplating making these appointments now. Is it fair to give the patronage to the Local Government and let the General Government pay the salaries?

I have thought over this matter, and tried in my own mind to get rid of the difficulty. I desired and do desire that improvements may be made in the Judiciary of the country, but I feel I would not be acting fairly if I supported this Bill. I mention this that hon. members who were on the delegation with me may have the opportunity of convincing me. If I am only convinced that it would be right, I would go for the Bill to the best of my ability. We made that contract of Union when the country was in a certain condition, and if we seek to increase the number of Judges we put an additional expense upon the General Government outside of that condition. It was universally expressed, as well in Canada as at the Conference in London, that the Judges ought to be appointed by the General Government. The reason for this was, that the General Government would be less influenced by local prejudice, and therefore a better class of men would be appointed to the Bench.

It was agreed that until the laws should become assimilated the local Judges should be selected from the local Bar, except for Quebec, where they must continue to be local, because they are governed by a peculiar mode of procedure, but the common law should be the same over the whole Dominion, and the same offence should amount to the same crime, and meet with the same punishment in the various parts of the Dominion. The mode of procedure must be different in Quebec, and that was one reason we could not advocate a Legislative Union.

By the Treaty made at Paris the Lower Canadians have certain rights reserved for them, that is in regard to their language, law proceedings and institutions of the country, and these rights they themselves cannot give up, and while twenty men in Lower Canada demands these rights it becomes a question not between the Provinces,but a question between France and England. They cling to their mode of procedure, but are willing to submit to have the General Legislature make the law in regard to crime the same over the whole of the Dominion.

In regard to our power to legislate upon this question, it cannot be doubted that we have the power until this Proclamation declares the Act to be in force. We have the same power to legislate now as we had before we agreed to this Act of Union. The point is not whether we have the power, but are we in a position properly to exercise that power? Having agreed that those Judges should be paid by the General Government, are we doing what is fair between man and man in taking the patronage of those appointments to ourselves when they have to pay the salaries? If any of the hon. members can convince me by any arguments they can conduce that we are justified in taking this patronage out of the hand of the General Government, I shall be very happy to see if I cannot improve the Bill and assist them in any way, but until I am convinced of that, I am not in a position to consider the matter at all.

Hon. Mr. Wilmot.—In the old Quebec Scheme the Judges of the County Courts for Western Canada alone were to be a charge upon the general revenue. When the question came up for discussion before the Delegates I made a proposition that as County Courts having worked well in Western Canada, and being a cheap and expeditious mode of getting small debts collected, they should be extended to other parts of the Dominion, and it was agreed by the Delegates that they should be so extended.

Mr. Johnson.—I am not aware of any agreement; there was a suggestion made that these Courts should be extended, provided the General Government approved of it.

Hon. Mr. Wilmot.—The salaries of the Judges of the County Courts of Western Canada are paid out of the general revenue, but the Act brought in was to establish County Courts through the other Provinces, and the General Government were to pay the salaries of the County Court Judges.

p. 102

Hon. Mr. Tilley: […] Then in regard to fixing the salaries, it is only after the Union takes place that no salary can be fixed without the assent of the General Parliament. All salaries may be fixed now, and appointments made to the Bench, but they are all subject to modification and change by the General Government. If my hon friend was right in saying we should not make these appointments, he might, with equal justice, say, if a vacancy occurred on the Bench of the Supreme Court, that it was under the control of the General Government alone, and we should not appoint a Judge for that Court. He takes two positions, first, that it is a violation, to a certain extent, of good faith with our co-delegates, and next, that we have not the power.

Mr. Johnson.—I said we had the power, but the property of exercising it was a different thing.

Hon. Mr. Tilley.—I understood him to say we had a right to pass the Act, but had not the power to appoint a Judge.

Mr. Johnson.—No, no. I said most distinctly that we had the right to pass the Act until the time the Proclamation brought the Act of Union into operation; that our power was not limited until that Act was in force.

Hon. Mr. Tilley.—Then my hon. friend takes away one of the objections. I thought he admitted that we had the power to pass the Act, but did not think we had the power to appoint the Judges or fix the salaries. The right, so far as the salaries are concerned, is a matter to be dealt with after Union takes place. We may think the country requires four or five more Judges, but they may say two Judges are sufficient, and they can deal with the number of Judges and the amount of salaries as they see fit. The salaries of our Judges are to be the same as the salaries of the Judges of Upper Canada, that was arranged at Quebec. It was brought up and discussed fairly there, and the whole subject was entered into in reference to the property of extending to the different Provinces the same privileges given to Upper Canada. The resolution passed at the London Conference shows clearly the nature of the agreement entered into:

“The General Government shall appoint and pay the salaries of the Judges of the Superior and District and County Courts in each Province, and Parliament shall fix their salaries.”

This section was put-in by chance, but the question was well argued, otherwise it would not have been put in. We discussed the whole Quebec Scheme, and the question was argued in reference to paying the Judges of the County Courts in Canada, and we secured for New Brunswick the same privilege.

Mr. Smith.—There is a distinction between the resolution passed in Conference and the law.

Hon. Mr. Tilley.—I will read them together. I will first read the resolution passed at the Conference, and I will then read the law framed by the Attorney Generals of the different Provinces, assisted by a legal gentleman who drafts the Imperial Acts for the Imperial Government. First.

“The General Government shall appoint and pay the salaries of the Judges of the Superior and District and County Courts in each Province, and Parliament shall fix their salaries.”

The law framed from that says:

The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admirality 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.

This says except the Courts of Probate, which we told them were paid by fees. Why was it necessary to make a provision to pay the Judges of County Courts unless we contemplated establishing them? I think every hon. member in the House will see that it is the spirit of the agreement that these Courts should be established, if we did not contemplate doing this, why did we ask for this change in the Quebec Scheme?

My hon. friend says this patronage should not be exercised by the Local Government, but by the General Government. Suppose these Judges are appointed in the meantime, they are appointed by the advice of the Local Government; and if they were appointed by the Central Government, would it not be after advice had been given by the Local Government? We have the power to establish these Courts, and I believe it is perfectly in accordance with the contract entered into with our co-delegates, and not a violation of it. If it was, I would not stand here and support this Bill, I am not supporting it for motives of personal interest, for I cannot be a judge.

Mr. Smith—You can appoint your friends.

Hon. Mr. Tilley. —I should like to know from my hon. friend, with his experience in this respect, what he thinks of the patronage. I do not think he would desire a very large amount of patronage, especially in the appointment of Judges.

Mr. Smith.—It will help you to go to Ottawa.

Hon. Mr. Tilley.—In making these appointments, there will be five enemies made to one friend. I have no doubt it there are four Judges to be appointed, there will be found twenty willing to take the office for the members of the profession are very patriotic, and they would make a great sacrifice to prevent a situation of this kind from going a begging. I am not a lawyer myself, and therefore cannot expect to be a Judge, so I cannot be charged with supporting the measure for that purpose. If I was looking forward to Ottawa, I think it would be threatening my position rather than strengthening it for me to stand here in my place and advocate the passage of a Bill at variance with the wishes of the gentlemen in Canada with whom I would be associated.

When I was lately advocating the introduction of a section into a Bill to authorize the Government of Canada to take possession of the Bay Verte Canal, I was told I was advocating the cause of Canada, but now the tables are turned, and I am accused of dishonestly wanting to get into the public chest of Canada. It is not very consistent to say first I am working for Canada, and the next day say I am working against Canada. We are perfectly justified in doing what we are, and the only question to be considered is, how many Judges are you justified in appointing or employing for these duties? If you appoint more than are necessary, you are not justified, therefore you should appoint just as many as are necessary and no more.

p. 103

Mr. Smith: […] He insinuates I am advocating the interest of Canada, while I had charged him with pursuing that course. I am not advocating the interest of Canada, but I am giving a fair construction to an Act according to the language employed. One hon. member says that constituting these Courts is no departure from the agreement made, and another hon. member says it is a departure from that agreement and we cannot justify it. This is the position we are in, and in the conflict of these statements we must look at what the law says. Neither the spirit of the law nor the letter gives this Legislature authority to appoint new Judges in new Courts.

It is said that the General Government will pay those Judges, but they must not forget what the people of the country will have to pay. You constitute four Courts, and have a Jury of ten for each Court, and all those Jury fees will have to be paid by the country. When the Attorney General tells us that the administraion of the criminal law will be borne by the people, I am strengthened in my opposition. The Sessions will still continue one of the institutions of the country, and that Court must have a Grand Jury and a Petit Jury. We will have eight Courts in the country for the people to keep up. The payment of the Judges by the General Government is no object, for we will have to pay the Juries and keep up all the expenses. I believe there is no necessity for a law establishing four additional Courts, with a panel of ten Jurymen to pay, besides travelling expenses. If there is a failure of public justice in the country, and the people call loudly for some change in our judicial institutions, then let us make such change, but there is no such call for establishing those County Courts, by which additional burdens are imposed upon the country. We have now to pay $6,000 a year as Jury fees, and this sum will be vastly increased when we establish these additional Courts.

In regard to patronage; I suppose the Provincial Secretary, if a lawyer, would not take one of these Judgeships, for he has higher aspirations;—he wants to establish a reputation for Ottawa—he expects to get an office there with twelve hundred pounds a year. Still, he has some little interest in this matter; he sees friends around him who have fought with him side by side; he sees professional men who could undoubtedly adorn these Courts; and, when about to leave them, he feels it his duty to do something for them. He tells us that for every office he has had five applicants.

p. 104

Mr. Dow: […] The ex-Attorney General put a good spoke in my wheel for supporting this Bill when he stated the General Parliament had to pay these County Court Judges, and they ought to have the patronage of appointing them. I am not willing to go into that Confederation unless New Brunswick has the same advantages which Canada has. They have District Judges in Canada, and we will have to do our share in paying those Judges, when we have not had the patronage of appointing them; why, then, should they have the patronage of appointing ours? After they are appointed, we will go into Confederation with the same privileges they have. These Courts have worked well both in Great Britain and Canada, and I can see no reason why they would not work well here. I believe they will be a great benefit to the country, and will simplify and cheapen the law.

Mr. Beckwith.—I intend to support this Bill, and I believe we have the perfect right to appoint those Judges, and I believe it is consistent with all honor, fairness and honesty for us to exercise that right before we go into Union. I believe from my experience that these Courts are necessary to the proper obtaining of justice in all parts of New Brunswick. In the Supreme Court the Judges are overworked, in consequence of the number of small causes that come before them. In many cases, where debts of £15 and upwards are due, the creditors consent to suffer loss sooner than have to pay the enormous costs in collecting them in the Supreme Court. The business in the Courts is much greater than when the number of inhabitants in the Province was but 90,000, and we have not increased the number of Judges in proportion to the increase of population and the increase of business to be done. More facilities for obtaining justice are required, therefore it is necessary to establish these County Courts, to relieve the Supreme Court from the trouble of dealing with many of those petty causes which now take up so much of their time. The Juries in these County Courts are to be reduced to five, and this will reduce the expense.

p. 105

Mr. Lindsay.—[…] It has been a question with me whether we had the right. Two powers cannot both have the right to establish these Courts. The General Government cannot have the right and the Local Government the right at the same time. It has been stated that there was an understanding that we were to appoint them, but that is poor law if there is no writing to show it. If these Courts are established it will be a fine harvest for the lawyers; there will be five additional Judges appointed for these Courts, and then there is talk of another Judge for the Supreme Court. This will make eleven Judges in all. Then there are five clerks to be appointed, and they must be lawyers too. The Imperial Act of Union states that the salaries of the Judges shall be fixed and paid by the Parliament of Canada. Here we see the General Government has the power, and still the Local Legislature retains it.

Hon. Mr. Tilley.—So we do until the Union takes place.

Mr. Lindsay.—That is to say certain parties can do certain things and subordinate parties can do the same thing. We find it stated in the Act that the Parliament of Canada may provide for the establishment of any additional Courts for the better administration of the laws of Canada. Then if we have not the authority to appoint these Judges, and the Parliament of Canada will not pass an Act to constitute these Courts, we will have to pay them ourselves. Each Judge will be a Judge of three Counties, and a person would have to go a long distance to make an affidavit before him, and then have to wait for the sitting of the Court before he could collect a debt.

[…]

Mr. Hibbard: […] If we do adopt these Courts I do not believe the General Government will interfere with us, unless we act indiscreetly, in the number of Judges we appoint. The question which we have to consider is, Does the country require these extra Courts? I think it does. In the County of Charlotte we have a Court but once in twelve months, and a man having a debt due him of $50 might as well lose it as to attempt to recover it in the way we now have to recover debts. There may be some doubts about the necessity for five Judges, or some differences of opinion about the number of Courts held in the different Counties during the year. I think after we provide the machinery of these Courts and are satisfied that they will meet all the demands of justice, if the staff of Judges is too large the General Government will reduce it. We are to pay our proportion of the Judges of Canada, as well as our proportion of our own, therefore we have a right to enter this Union with as many Judges as our wants require. I cannot agree with my hon. friend from Westmorland (Mr. Smith) that there will be a great deal of extra expense in Juries, for I think there will be very little more

p. 106

[…]

Hon. Mr. Tilley.—My hon. friend says he cannot get anything out of this Bill. I think he can get cheap law and cheap justice out of it for his constituents. My hon. friend from Carleton (Mr. Lindsay) seemed to have an erroneous impression about the Bill. He says that according to the Imperial Act the Judges are to be appointed by the Central Government, therefore the Local Government could not appoint them, for it was impossible for the same powers to be exercised by the Local and General Governments. That position is not correct, for there are subjects on which they exercise concurrent legislation, but it is not necessary to go into that now. When he speaks of this Act of Union he speaks as if it was in force to-day. We are in the same position now as we were last year, for we are not in the Union and we have all the powers we ever had. Every power we could exercise last Session we can exercise now, and we can fix salaries and appoint Judges now as well as we could then; but after the first of July this right ceases. Let us go further. We have not only the patronage now and the fixing of salaries, but it is provided by the Act of Parliament that the Local Legislatures shall have this power after we enter the Union. The Act says the Provincial Legislatures shall make laws in relation to

“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.”

These powers are left to our Legislature after the Union takes place. It is also stated in the Act that the appointment of Judges and the fixing of their salaries shall be in the hands of the General Government; therefore the General and Local Legislatures have this power jointly, and there will be no conflict of interest if we pass this Bill.

My hon. friend from Northumberland (Mr. Johnson) says we cannot act upon conversations held, but must enforce the written agreement. I admitted that, and showed that a certain contract was made at Quebec in 1864, and then I showed that contract was changed in 1866, and it was not simply a verbal arrangement but a written agreement, showing that a change had been made and declaring distinctly that we had power to constitute these Courts. Possibly the hon. member was not paying any attention to me while speaking. My hon. friend from Westmorland says he knows this Bill will pass because any measure introduced by the Government would pass; he saw the arguments were too strong against the position he took, and the Bill would be accepted by the House, and, lawyer like, when he gets in a weak position, he breaks from the point.

He then turns upon the Provincial Secretary, and speaks of his vaunting ambition and of the position he wishes to fill. There was no necessity for this, for I was endeavoring to show that I had no personal interest in the matter. He says, of course, he would not take one of these Judgeships—he seeks for something higher; he wants to get an office at Ottawa with £1200 a year, and he now wishes to reward some of his supporters and friends and gain political strength and influence by it. If our appointments to office meet the approbation of the public it will show that they were properly made, and we will be more fortunate than our predecessors were in exercising patronage of this kind.

—–o0o—–

“

PART 4:

Post-Confederation Debates on Section 96

———-o0o———-

April 7 1886, Debate in the House of Commons, pp. 559-569 (click HERE)

p. 562

Mr. Thompson (Antigonish) […] I do not agree with my hon. friend that there is any reason whatever why the Parliament of Canada should establish a different maritime law with regard to statutory liens in Ontario from that which prevails in the other Provinces. It is true that the Maritime Court of Ontario, is a court organised under the legislation of this Parliament, whereas the courts which exercise the like jurisdiction in the Lower Provinces arc organised under an Imperial Statute; but it is equally competent for this Parliament to say what shall constitute liens in the Maritime Provinces as in the Province of Ontario. Notwithstanding the fact that the judges, and perhaps the officers of the courts, in the Lower Provinces, are appointed by Imperial authority, while in Ontario they are appointed by the authority of this Government, it is quite in the competence of this Parliament to say what shall constitute liens in all the Provinces. Therefore, there is no argument in that contention. But, furthermore with reference to the question as to how the courts are organized in the Maritime Provinces it has been deemed desirable, as one hon. gentleman stated, to obtain Imperial legislation with the view of placing those courts entirely within the control of this Parliament. That legislation has been urged upon the Imperial Parliament year after year, and it has been delayed in consequence of the peculiar circumstances which retarded legislation in Great Britain for the last two or three years. But we have the definite assurance of the Government of that country, conveyed to us during the past summer, that the legislation with regard to these Imperial courts in the Maritime Provinces will be withdrawn by an Act to be passed during the present Session of the British Parliament, and we have reason to expect that before the Session is through, those courts will be placed under our own control. We shall have, in the meantime, if we pass this Bill, made greater, the want of uniformity and the want of proportion between the way in which the jurisdiction of those courts shall be

p. 563

operated in the two classes of Provinces, the Upper and Lower, and we shall establish a different maritime law in one Province notwithstanding the hon. member for St. John (Mr. Weldon) may call the one a maritime and the other a statutory lien-from that prevailing in the other four or five sections of the Dominion, with only the excuse that in the one we have the advantage of appointing the judge, registrar and bailiff.

p. 567

Mr. Thompson (Antigonish) […] I did admit that the judges of the courts of the Maritime Provinces are appointed by Imperial authority, and that they are Imperial courts. The hon. gentleman, however, went so far as to endeavor to represent me as stating that in consequence of that it would be impossible for us to make the law uniform; at any rate, he sought to drag the argument that far. He sought at least to drag the argument this far, that because the judges in the Vice-Admiralty Courts are appointed by Imperial authority, the Parliament of Canada cannot pass any law affecting their jurisdiction. I called his attention to the fact that the Parliament of Canada had already done so. In repeated instances, notably those relating to the collection of Customs penalties, jurisdiction has been conferred by the Parliament of Canada on the Vice-Admiralty Courts, although they are Imperial courts.

[…]

Mr. Thompson (Antigonish). […] leaving aside what title this Bill bears, and by what pretence it has come to this stage—to have the maritime law one way in one section of the country and another way in another section; so that the moment a vessel comes to Canada, which is recognized as one of the great maritime powers of the world as regard her mercantile marine, a ship is to be subject to one kind of law in one section, and to another law in another; and I am sure that argument is not at all affected by the simple circumstance that already we have the fact, undesirable as it is, that in one section of the country there is an Imperial judge and in another section a Federal judge. The good sense of the Parliament of Canada has already pronounced that although that may be undesirable, both the Imperial judge and the Federal judge shall administer the same law. To tell me that because one judge is an Imperial judge and the other a Dominion judge we should make the rights of suitors and the status of the vessels that sail the waters of Canada different, is simply to pervert the argument, and not to throw any light on the question at all.

[…]

Mr. Weldon. The best argument my hon. friend has made as to uniformity, he made just now. He said that Acts were passed by the Parliament of Canada giving power to the Vice-Admiralty Courts with respect to Customs and revenue. My impression was that they had that jurisdiction before; but I will accept his statement; and if it is so, that same Parliament of Canada has taken away that very jurisdiction from the Maritime Court of Ontario. Therefore, the lack of uniformity in the jurisdiction has been created by this Parliament itself. It expressly takes away jurisdiction from the Ontario court with regard to breaches of the Customs and revenue laws, which, he says, it has given to the Vice-Admiralty Courts of the Maritime Provinces.

[…]

It is true, that is not the case in the Province of Nova Scotia, because I believe that under the Imperial Act, the chief justice of Nova Scotia is the judge of the Admiralty Court, and that in New Brunswick and Quebec the case is different. In Quebec Mr. Irvine is the judge of the Admiralty Court. Therefore, there is not uniformity in this case, the admiralty judges in Quebec and New Brunswick being appointed by the Canadian Government, while in Nova Scotia the appointment is made by the Imperial Government.

Mr. Thompson (Antigonish). The judge in Quebec is appointed by the same authority as in Nova Scotia.

Mr. Weldon. The appointments may be subject to confirmation by the Imperial Government, but they are made on the recommendation of this Government.

Mr. Thompson. No.

p. 568

Mr. Mills […] We have given in election cases jurisdiction to the provincial courts, and our right to do so was contested, but it was confirmed by the Judicial Committee of the Privy Council. But to give a court additional jurisdiction is .one thing and to change the jurisdiction of a court, to take away the power it already has, to decide that the rights which existed in a particular form shall be varied, is a wholly different thing. The Minister of Justice has spoken of the Vice-Admiralty Courts of the Maritime Provinces as if they were Canadian courts, as if the Imperial Government appointed the judges and had no other connection with them. The Vice-Admiralty courts are the creation of the Imperial Government, and not of this Legislature, and so far as they are created by Imperial Statute, and so far as jurisdiction is given them by that Statute, we cannot alter their jurisdiction, unless the whole power to deal with the subject were transferred from the Imperial Parliament to this one. The Imperial Parliament maintain, both with regard to the question of the creation of Vice Admiralty Courts and the question of merchant shipping, that these subjects are still subjects of Imperial legislation. And when the Merchant Shipping Act was amended in 1876, the Imperial Parliament contended that we had not the power to deal with he subject. It was made a matter of controversy. Sir William Vernon Harcourt entered into a controversy with the London Times upon this subject while the matter was before Parliament, and Lord Carnarvon, in a despatch which the hon. gentleman will find in the Department of the Secretary of State, denied the right of the Parliament of Canada to legislate upon that particular subject. So that, so far as the Vice-Admiralty Courts are concerned, they are the creation of the Imperial Parliament under an Imperial Statute, and so far as jurisdiction was given to them, we have not, under their interpretation of our constitutional authority, the power to change the law in that particular. I pointed that out, and, when the hon. gentleman said that the Imperial Government proposed legislation, I certainly supposed that they proposed it for some other object than simply to withdraw their power of appointing the judges of the Vice-Admiralty Courts. I supposed–and I think no one who will consider the law as it now stands can come to any other conclusion–that, if the Imperial Government intended to confer upon us any power, it must be more than the power of appointing the judges, it must be the power to create courts to exorcise vice-admiralty jurisdiction—a power which we could not effectively exorcise now, so long as the establishment of these courts is vested in the Imperial Government under the Imperial Act now in force.

p. 569

Mr. McCallum: […] It was distinctly stated that the Imperial Government would legislate in such a manner that we should have jurisdiction over the maritime courts; but, if it is to be merely the power to appoint the judges ourselves, and not to have additional legislation, it was no answer at all to the demands that were made in those former Sessions.

—–o0o—–

“

ENDNOTES

[1]      All transcriptions from the Quebec Resolutions are from Charles Dumais, The Quebec Resolutions: Including Several Never-Published Preliminary Drafts by George Brown and John A. Macdonald, and a Collection of all Previously-Published Primary Documents Relating to the Conference, October 10, 1864-October 29th, 1864 (CCF, 2021).

[2]      This means clause 61, which reads in the draft, “Until the consolidation of the Laws of Ontario, Nova Scotia and New Brunswick, the Judges of these Provinces, appointed by the Government, shall be selected from their respective Bars.”

[3]      This clause is linked together with a parenthesis with the two following clauses: “The Judges of the Courts of Quebec shall be selected from the bar of Quebec” and “The Judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable on the address of both Houses of Parliament”. The note next to the parenthesis reads, “Put these clauses in after the 2^nd clause under head Miscellaneous”. Another note follows underneath, which is largely illegible.

[4]      Please note that there is a difference between the formatting of the original and that of the text in these reports. That is because the text portion comes from our publication, The Confederation Debates in the Province of Canada (CCF, 2022), which modernized the formatting of the text to current Hansard style. The content remains the same. However, if the user wishes to see the original, the hyperlink will bring them to the 1865 edition.