REPORT: ESTABLISHMENT OF COURTS, Section 101 of the Constitution Act, 1867

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Date: 2023-03-13
By: PrimaryDocuments.ca
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Constitution Act, 1867:

Section 101

Compilation of primary documents to assist in interpreting the Establishment of Courts in Section 101 of the Constitution Act, 1867

Part 1
Section 101 in Successive Drafts from the Quebec Resolutions, 1864 to the Constitution Act, 1867

Part 2
Debates on Section 101 in the Confederation Debates in the Province of Canada (1865-1866)

Part 3
Post-Confederation Debates on Section 101

Endnotes

“The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.”

“

PART 1:

Section 101 in Successive Drafts, from the Quebec Resolutions, 1864 to the Constitution Act, 1867

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The Quebec Resolutions (1864)[1]

October 21, 1864: Amended Federal Division of Powers

That it shall be competent for the General Legislature to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and specially Laws respecting: —

[a list of powers, numbered 1 – 28, follows]

29. The Establishment of a General Court of Appeal for the Federated Provinces.

(Source: George Brown Papers, Drafts of the Quebec Resolutions, Amended Federal Division of Powers, October 12th, 1864 (MG 24, B 40, Vol. 21, p. 3746). Click HERE.)

—–o0o—–

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

5. The General Government may also, from time to time, establish additional Courts, and appoint other Judges and Officers, when the same shall appear necessary or for the public advantage, in order to the due execution of the laws, rights and obligations of the General Government.

(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 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.)

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

Power to establish a Court of appeal

(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 26, 1864: Working Draft No. 1

To postpone the consideration of,–

[a list of resolutions follows, including]

4. The General Legislature may also, from time to time, establish additional Courts, and the General Government thereupon appoint other Judges and Officers, when the same shall appear necessary or for the public advantage, in order to the due execution of the laws of 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. 18167. Click HERE.)

—–o0o—–

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

“To postpone the consideration of,–

[a list of resolutions follows, including]

[renumbered to 31] 4. The General Legislature [Federal Parliament] may also, from time to time, establish additional Courts, and the General Government [may] thereupon appoint other Judges and Officers, when the same shall appear necessary or for the public advantage, in order to the due execution of the laws of the General Legislature [Parliament].

[…]

[renumbered to 34] The Establishment of a General Court of Appeal for the Federated Provinces.

(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. 18149. Click HERE.)

—–o0o—–

October 27, 1864: Working Draft No. 3, Copy 2

That the Federal [General] Parliament shall have power to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting the following subjects:

[a list of powers, numbered 1 – 33, follows]

34. The Establishment of a General Court of Appeal for the Federated Provinces.

[…]

That the Federal Parliament may also, from time to time, establish additional Courts, and the Government may thereupon appoint other Judges and Officers, when the same shall appear necessary or for the public advantage, in order to the due execution of the laws of Parliament.

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 3, Copy 2, October 27th, 1864, MG 26 A, Vol. 46, pp. 18139-18141. This text is found on p. 18140. Click HERE.)

—–o0o—–

October 27, 1864: Working Draft No. 4

[29.] That the General Government [Parliament] shall have power to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting the following subjects:–

[a list of powers, numbered 1 – 33, follows]

34. The Establishment of a General Court of Appeal for the Federated Provinces.

[…]

[31.] That the General Parliament may also, from time to time, establish additional Courts, and the [General] Government may thereupon appoint other Judges and Officers [thereof], when the same shall appear necessary or for the public advantage, in order to the due execution of the laws of Parliament.

(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

29. The General Parliament shall have power to make Laws for the peace, welfare and good government of the Federated Provinces (saving the Sovereignty of England), and especially laws respecting the following subjects:

[a list of powers, numbered 1 – 33, follows]

34. The Establishment of a General Court of Appeal for the Federated Provinces.

[…]

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

(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 pp. 18212-18213. Click HERE.)

—–o0o—–

The London Resolutions (1866)

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

29. The General Parliament shall have power to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting the following subjects:–

[a list of powers, numbered 1 – 33, follows]

34. The Establishment of a General Court of Appeal for the Federated Provinces.

[…]

(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

29. The General Parliament shall have power to make laws for the peace, welfare, and good Government of the Federated Provinces (saving the Sovereignty of England), and especially Laws respecting the following subjects:–

[a list of powers, numbered 1 – 33, follows]

34. The Establishment of a General Court of Appeal for the Federated Provinces.

[…]

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

(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 18178. Click HERE.)

—–o0o—–

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

29. The General Parliament shall have power to make laws for the peace, welfare, and good Government of the Federated Provinces [illegible] (saving the Sovereignty of England), and especially Laws respecting the following subjects:–

[a list of powers, numbered 1 – 33, follows]

34. The Establishment of a General Court of Appeal for the Federated Provinces.

[…]

31. The General Parliament may also, from time to time, established additional Courts, and the General Government may appoint Judges and Officers thereof when the same shall appear necessary or for the public advantage, in order to the due execution of the [said] laws of Parliament.

(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 p. 18201-18203. Click HERE.)

—–o0o—–

December 28, 1866: Final Version

28. The General Parliament shall have power to make laws for the peace, welfare, and good government of the Confederation (saving the Sovereignty of England), and especially laws respecting the following subjects:–

[a list of powers, numbered 1 – 32, follows]

33. The establishment of a General Court of Appeal for the Confederation.

[…]

31. The General Parliament may from time to time establish additional Courts, and the General Government may appoint Judges and Officers thereof, when the same shall appear necessary, or for the public advantage, in order to the due execution of the Laws of such Parliament.

(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 pp. 103-104. Click HERE.)

—–o0o—–

Constitution Act, 1867

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

36. The Parliament shall have power to make laws respecting the following subjects:–

[a list of powers, numbered 1 – 34, follows]

35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts when necessary.

(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 pp. 18779-18881. Click HERE.)

—–o0o—–

January 23, 1867: 23rd January Draft

41. Any Act of the Parliament of the United Colony may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for the United Colony.

(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). The text is found on p. 18985. 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

50.—It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–

[a list of powers, numbered 1 – 34, follows]

35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts, when necessary.

(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. 19033-19035. Click HERE.)

—–o0o—–

January 31, 1867: 2^nd Draft with Handwritten Provisions and Notes

[52] 50.—It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony [Canada] extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:—

[a list of powers, numbered 1 – 34, follows]

35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts, when necessary.

[…]

[19] 75 64.—Any Act of the Parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance, and organisation of a General Court of Appeal, and of such Courts as may be deemed necessary by the Parliament of Canada.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 2nd Draft with Handwritten Provisions and Notes, January 31st, 1867 (MG 26, A, Vol. 48, pp. 19040-19082). This text is found on pp. 19051-19053, p. 19073. Click HERE.)

—–o0o—–

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

52.—It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–

[a list of powers, numbered 1 – 34, follows]

35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts, when necessary.

(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). The text is found on p. 19113-19115. Click HERE.)

—–o0o—–

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

52.—It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada [the Senate & House of Commons], to make laws for the peace, order, and good government of the Kingdom [of Canada], and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to [the] Provincial Legislation [Legislatures]; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–

[a list of powers, numbered 1 – 34, follows]

35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts, when necessary.

(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). The text is found on pp. 19137-19139. Click HERE.)

—–o0o—–

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

55.—It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Provincial Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:—

[a list of powers, numbered 1 – 34, follows]

35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts, when necessary.

(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 pp. 19173-19175. Click HERE.)

—–o0o—–

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

[a list of powers, numbered 1 – 34, follows]

35. To establish a [The establishing of] General Court of Appeal, and in order to the due execution of the Laws of Parliament, [establishing] additional Courts, when necessary.

(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 pp. 19270-19272. Click HERE.)

—–o0o—–

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

[a list of powers, numbered 1 – 34, follows]

35. To [The establishment] of a General Court of Appeal, and in order to the due execution of the Laws of Parliament [the establishment of] additional Courts, when necessary.

(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 pp. 19328-19330. Click HERE.)

—–o0o—–

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

55 [48].—It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Provincial Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–

[a list of powers, numbered 1 – 34, follows]

35. To [The] establish[ment of] a General Court of Appeal, and in order to the due execution of the Laws of Parliament [the establishment of] additional Courts, when necessary.

(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 pp. 19205-19207. Click HERE.)

—–o0o—–

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

48.—It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say: —

[a list of powers, numbered 1 – 34, follows]

35. The establishment of a General Court of Appeal, and in order to the due execution of the Laws of Parliament, the establishment of additional Courts.

(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 pp. 19360-19362. Click HERE.)

—–o0o—–

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

[a list of powers, numbered 1 – 34, follows]

35. The establishment of a General Court of Appeal, and in order to the due execution of the Laws of Parliament, the establishment of additional Courts.

(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 pp. 19422-19424. Click HERE.)

—–o0o—–

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

[a list of powers, numbered 1 – 34, follows]

35. The establishment of a General Court of Appeal, and in order to the due execution of the Laws of Parliament, the establishment of additional Courts.

(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 pp. 19637-19639. Click HERE.)

—–o0o—–

“

PART 2

**Debates on Section 101 in the Confederation Debates in the Province of Canada (1865)**

Debates on the subject of Section 29(34) and 34 of the Quebec Resolutions (the ancestor of Section 101)

—————o0o—————

Province of Canada (1865)[2]

February 6, 1865: John A. Macdonald, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 41).

John A. Macdonald [Kingston, Attorney-General West]—The General Legislature is to have power to establish a general Court of Appeal for the Federated Provinces. Although the Canadian Legislature has always had the power to establish a Court of Appeal, to which appeals may be made from the courts of Upper and Lower Canada, we have never availed ourselves of the power. Upper Canada has its own Court of Appeal, so has Lower Canada. And this system will continue until a General Court of Appeal shall be established by the General Legislature. The Constitution does not provide that such a court shall be established.

There are many arguments for and against the establishment of such a court. But it was thought wise and expedient to put into the Constitution a power to the General Legislature, that, if after full consideration they think it advisable to establish a General Court of Appeal from all the Superior Courts of all the provinces, they may do so.

—–o0o—–

February 20, 1865: James Currie and Alexander Campbell, speaking in the Legislative Council of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 340).

James Currie [Niagara, elected 1862]—The 34th sub-section of the same clause commits to the General Government “the establishment of a general Court of Appeal for the Federated provinces.” Is that to be in lieu of the Courts of Appeal we now have? Is it intended to do away with the present Court of Appeal and to establish a new one?

Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands]—I do not think my honorable friend has caught the meaning of what is intended. It does not say the general Court of Appeal shall be established, but that the power to establish it shall be in the General Government.

James Currie [Niagara, elected 1862]—New Courts of Appeal?

Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands]—If a statute of the Parliament of the United Provinces shall be passed creating a Court of Appeal, it will state whether it is in lieu of, or in addition to, the present Courts of Appeal. I should suppose it would be in addition.

James Currie [Niagara, elected 1862]—I think that point is one which we ought to understand before giving a final vote; and I do not think the Hon. Commissioner of Crown Lands [Alexander Campbell], with reference to it, has fulfilled his promise to give an explicit answer to any question which might be put, to elicit further information about the scheme.

—–o0o—–

February 27, 1865: Christopher Dunkin, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 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—–

March 2, 1865: Joseph Cauchon, 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. 574).

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.

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—We have, it

- (p. 576)

is true, Her Majesty’s Privy Council as a last resort, but we owe it to necessity; we have not asked for it ourselves. At any rate it is composed of chosen men, all or nearly all of whom are well versed in Roman law—men who, when they have a doubt upon some point, avail themselves of the counsels and advice of the most eminent jurists of France. Nor does the proposed Constitution speak of doing away with this tribunal, which will dominate by its imperial character even over the Court of Appeal which the Federal Government has the power of creating. Here the Convention had national views; it foresaw evidently in the future the day of colonial emancipation.

Nevertheless, whatever the intentions of the delegates, their project does not define the attributes of this Federal court; and as there is some apprehension on this point, I would wish to put the following question to the Government:—If this Court of Appeal be established, will it be a purely civil tribunal, or a constitutional one? Or will it be at the same time civil and constitutional? If it be a civil tribunal, will it have jurisdiction over Lower Canada?

Some Hon. Members—Hear, hear.

George-Étienne Cartier [Montreal East, Attorney-General East]—The question put by my hon. friend the member for Montmorency [Joseph Cauchon] is one which it is not easy for the Government to answer, inasmuch as the power conferred by that article is only that of creating a Court of Appeal at some future day, and the jurisdiction of that court will depend on the causes which lead to its creation. The hon. member has very justly remarked that it may become necessary at a future period to constitute such a tribunal.

At present the several provinces which are to form part of the Confederation have the same court of final appeal. As long as we keep up our connection with the Mother Country, we shall always have our court of final appeal in Her Majesty’s Privy Council. But when the British Provinces on this continent are united by the bond of Confederation, we shall have one uniform system, common to all, in regard to imports, bills of exchange and promissory notes, as well as universal jurisprudence.

Accordingly, when we have lived some years under the Federal regime, the urgent need of such a Court of Appeal with jurisdiction in such matters will be felt, and, if it is created, it will be fit that its jurisdiction should extend to civil causes which might arise in the several Confederate Provinces, because it will necessarily be composed of the most eminent judges in the different provinces, of the jurists whose reputation stands highest, of men, in short, profoundly skilled in the jurisprudence of each of the provinces which they will respectively represent. Well, if this court is called upon, for instance, to give final judgment on a judgment rendered by a Lower Canada court, there will be among the judges on the bench men perfectly versed in the knowledge of the laws of that section of the Confederation, who will be able to give the benefit of their lights to the other judges sitting with them.

I must observe to my hon. friend the member for Montmorency [Joseph Cauchon], that he disparages the civil law of Lower Canada in the estimate he makes of it; but he need be under no uneasiness on that head. He should not forget that if, at this day, the laws of Lower Canada are so remarkably well understood in Her Majesty’s Privy Council, it is because the code of equity, which is a subject of deep study and familiar knowledge among the members of the council, is based on Roman law, as our own code is. All the eminent judges, whether in England, in the Maritime Provinces or in Upper Canada, are profoundly versed in those principles of equity, which are identical with those of our civil code.

Now, as to my own personal opinion, respecting the creation of that tribunal, I think that it is important not to establish it until a certain number of years shall have elapsed from the establishment of Confederation, and to make it consist of judges from the several provinces; for this court would have to give final judgment in causes pronounced upon in the courts of all the sections. Neither can I tell what functions and powers might be assigned to it by the act establishing it. Time alone can tell us that; but I do hold, and the spirit of the conference at Quebec indicated, that, the appeal to the judicial committee of Her Majesty’s Privy Council must always exist, even if the court in question is established.

François Evanturel [Quebec County]—I acknowledge the frankness which the Hon. Attorney General for Lower Canada [George-Étienne Cartier] has evinced in giving the explanations to the House which we have just heard; and I trust that the honorable minister will permit me to ask him one question. Paragraph 32 gives the Federal Government the power of legislating on criminal law, except that of creating

- (p. 577)

courts of criminal jurisdiction, but including rules of procedure in criminal cases. If I am not mistaken, that paragraph signifies that the General Government may establish judicial tribunals in the several Confederate Provinces. I should much like to be enlightened on this head by the Hon. Attorney General for Lower Canada [George-Étienne Cartier].

George-Étienne Cartier [Montreal East, Attorney-General East]—I am very glad that the honorable member for the County of Quebec [François Evanturel] has put this question, which I shall answer as frankly as that of the hon. member for Montmorency [Joseph Cauchon]. My hon. friend will find, if he refers to the paragraph which he has cited, that it gives the General Government simply the power of providing for the execution of the laws of the Federal Government, not of those of the local governments.

Joseph Cauchon [Montmorency]—I have listened to the explanations of my hon. friend the Attorney General for Lower Canada [George-Étienne Cartier], and I find them perfectly satisfactory, as they regard criminal law; for that is the same or nearly the same in all the provinces. For my own part, I infinitely prefer the criminal law of England to that of any other country. It affords more protection to the party accused, than, for instance the criminal code of France does. The civil laws of the latter, by the way, have my warm admiration, as have also their administrative talent and their aptness for civilizing influences.

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—If the English criminal law gives the criminal too great a chance of escaping, it at least saves society the stigma of condemning the innocent. The accused is tried for the single act for which he is indicted, and is not questioned concerning his whole past life and conversation The laws of commerce are nearly the same in all countries, and those which rule the trade of two continents may be said to be founded on an ordinance of a king of France. Accordingly, there will be no inconvenience in bringing commercial causes, as well as others, for adjudication before the Court of Appeals mentioned in the scheme of Confederation.

I am convinced that if ever that tribunal comes into existence, it will be composed of the most eminent men in the several provinces, who will devote their whole energies to the causes brought before them, but the majority of whom will have studied and practised a code different from ours; although the laws of Upper Canada, for instance, have a constant tendency to coincide with our civil code: Blackstone, with his national common law which he aimed at establishing, being no longer the great authority which he was in former days, and England, like Germany, drawing rather from the pure spring of Roman law, as the most perfectly rational code in existence.

We have not, however, yet come to this position of things in our provinces, and, up to the present hour, English law consists rather of precedents and decisions of eminent judges, like Lords Mansfield, Coke, and others; and as the scheme of a Constitution makes an exception in favor of our civil laws, it would be most prudent, in my opinion, to leave the decision of our causes to those judges who have studied and practised them. Nothing is as yet written in the Constitution concerning them, and nothing stands in the way of the desired exception.

Some Hon. Members—Hear.

Joseph Cauchon [Montmorency]—I am aware that it may be attended with some inconveniences and that in this behalf concessions may have been, perforce, submitted to in order to obtain others; but I think that on reflection it will be found best for all concerned to have the laws enforced rather by those who understand them than by those who do not.

Some Hon. Members—Hear, hear.

—–o0o—–

March 6, 1865: A debate in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 689).

Antoine-Aimé Dorion [Hochelaga]—The hon. member for Montmorency [Joseph Cauchon] has told us that our interests would be perfectly protected by the proposed Constitution. I find that the powers assigned to the General Parliament enable it to legislate on all subjects whatsoever. It is an error to imagine that these powers are defined and limited by the 29th clause of the resolutions. Were it desirous of legislating on subjects placed under the jurisdiction of the local legislatures, there is not a word in these resolutions which can be construed to prevent it, and if the local legislatures complain, Parliament may turn away and refuse to hear their complaints, because all the sovereignty is vested in the General Government, and there is no authority to define its functions and attributes and those of the local governments.

George-Étienne Cartier [Montreal East, Attorney-General East]—What do you understand by sovereign power, please explain?

Antoine-Aimé Dorion [Hochelaga]—I will tell you in a

- (p. 690)

moment. I say that the Federal Parliament will exercise sovereign power, inasmuch as it can always trespass upon the rights of the local governments without there being any authority to prevent it. What authority have you constituted which can come forward and say to the Federal Parliament:—”You shall not do such and such a thing, you shall not legislate upon such and such a subject, because these matters are reserved to the local governments.”

There will be no such authority, and consequently it will have sovereign power, and can do all that it pleases, and may encroach upon all the rights and attributes of the local governments whenever it may think proper. We shall be—(I speak as a Lower Canadian)—we shall be at its mercy, because it may exercise its right of veto on all the legislation of the local parliaments, and there again we shall have no remedy. In ease of difference between the Federal power and the local governments, what authority will intervene for its settlement?

George-Étienne Cartier [Montreal East, Attorney-General East]—It will be the Imperial Government.

Antoine-Aimé Dorion [Hochelaga]—In effect there will be no other authority than that of the Imperial Government, and we know too well the value assigned to the complaints of Lower Canadians by the Imperial Government.

George-Étienne Cartier [Montreal East, Attorney-General East]—The delegates understood the matter better than that. Neither the Imperial Government nor the General Government will interfere, but the courts of justice will decide all questions in relation to which there may be differences between the two powers.

A Voice—The Commissioners’ courts.

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—Undoubtedly. One magistrate will decide that a law passed by the Federal Legislature is not law, whilst another will decide that it is law, and thus the difference, instead of being between the legislatures, will be between the several courts of justice.

George-Étienne Cartier [Montreal East, Attorney-General East]—Should the General Legislature pass a law beyond the limits of its functions, it will be null and void pleno jure[3].

Antoine-Aimé Dorion [Hochelaga]—Yes, I understand that, and it is doubtless to decide questions of this kind that it is proposed to establish Federal courts.

George-Étienne Cartier [Montreal East, Attorney-General East]—No, no! They will be established solely to apply and adjudicate upon the Federal laws.

Antoine-Aimé Dorion [Hochelaga]—In Great Britain, Parliament is all-powerful, everyone admits it—and I would like to know whether it is proposed to give to the Federal Parliament the omnipotence enjoyed by the Imperial Parliament. Without that, the system proposed to be established is no longer a political monarchical system, but rather a vast municipality. If all the courts of justice are to have the right of deciding as to the legality of the laws, the Federal Parliament will not be able to make them without a justice of the peace or commissioner of small causes setting them aside, under the pretext that they are not within the jurisdiction of the central power, as is now done in the case of a process overhaul of road work. That is not the monarchical system; it is the republican system. In England, as it is here at the present moment, the Legislature is all-powerful, and I believe that that was the principle which it was sought to adopt. If the differences between the Federal and the Local Parliaments are not to be submitted to the decision of a Supreme Federal Court, I do not see who can possibly decide them.

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—We are told that the Federal Court of Appeals will not be charged with the decision of matters in dispute between the legislatures, but they will only have to give final judgments in cases decided by the local inferior courts. Well, for my part I cannot approve of the creation of this court. The great inconveniences of it to us Lower Canadians may easily be seen.

Thus, when a cause shall have been argued and decided in all our courts, we shall still have to go before a Federal Court of Appeal composed of judges of all the provinces, and in which we shall probably have only one judge, who may be selected out of the English population. And this is the protection afforded to us. I repeat that I see no protection whatever for our interests, as Lower Canadians, in the constitution of the political and judicial powers, for the Federal Parliament can encroach upon our rights without any authority having the power to interfere, and then we shall have a Federal Court of Appeal in which we shall only be represented by one judge against six or seven of other origins.

Some Hon. Members—Hear, hear.

Joseph Cauchon, p. 697

Joseph Cauchon [Montmorency]—The hon. member for Hochelaga [Antoine-Aimé Dorion] talked to us of conflicts between the Federal Parliament and the local Houses, and of the sovereign power of the Central Government over the legislatures of the provinces. But what, then, is this sovereign power over the attributes of the provincial legislatures? If it exists it must be in the Constitution. If it is not to be found there, it is because it does not exist. He says that the Federal Legislature will always predominate; and why? Who then will decide between the one and the others?—the judicial tribunals being sworn to respect the laws and the Constitution in their entirety, and charged by the very nature of their functions to declare whether such a law of the Federal Parliament or of the local legislatures does or does not affect the Constitution.

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—There will be no absolute sovereign power, each legislature having its distinct and independent attributes, not proceeding from one or the other by delegation, either from above or from below. The Federal Parliament will have legislative sovereign power in all questions, submitted to its control in the Constitution. So also the local legislatures will be sovereign in all matters which are specifically assigned to them. How is the question of a conflict now settled in the United States, when it arises between the legislation of Congress and that of individual states? I do not speak of the present time when nearly the whole of the territory of that great country is under military rule, and overrun in every direction by an army of 500,000 soldiers. I allude to what occurs in their normal condition.

Some Hon. Members—Hear.

Joseph Cauchon [Montmorency]—The sovereign power is vested in the Federal Government with respect to all Federal matters, and in the states with respect to all matters connected with their special attributes. By

- (p. 698)

reading Storey, or rather the Constitution, the hon. member will ascertain that the states are not paramount with respect to questions of war and peace, the tariff, trade, treaties and all relations with foreign countries. Their authority is void so far as relates to those questions, and the sovereign power is vested exclusively in the Federal Government. If any conflict arises between the Federal Legislature and that of the states, it is decided by the judicial tribunals. I am not aware that any difficulty of this nature has ever arisen, and so far as relates to the legislative attributes of the states, that Federal legislation has ever predominated over local legislation.

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—Why then should the case be otherwise so far as we are concerned? Is it because we are differently constituted, and because our nature is subservient to other laws? These are wretched arguments, and he has even been reduced to splitting hairs since he has attended the school of the member for Brome [Christopher Dunkin], whose place he almost fills since he has been ill.

Some Hon. Members—Laughter.

—–o0o—–

March 10, 1865: Henri Taschereau 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. 896).

Henri Taschereau [Beauce]—[…] Another part of the resolutions which we should not adopt without consideration, is that contained in the 34th article of clause 29. It reads as follows:—

The General Parliament shall have power to make laws for the establishment of a General Court of Appeal for the Federated Provinces.

We have a guarantee that we are to have our own local tribunals, that our judges will be taken from the bar of Lower Canada, and that our civil laws will be maintained. Why then establish a Federal Court of Appeals, in which appeals will lie from the decisions of all our judges? We are told, it is true, by the Hon. Minister of Finance [Alexander Galt], that the resolutions did not create a Court of Appeals, but only gave the Federal Parliament the power to create it. But what difference is there between creating the court forthwith and granting a right to create it hereafter? The principle is the same. If the Government may lawfully create such a court, no one can prevent the Federal Government from establishing it whenever they think fit.

Would this tribunal be an advantage to us French-Canadians, who are so attached to our civil code? It will be composed of judges from all the provinces—from New Brunswick, Nova Scotia, Upper Canada, &c.; and notwithstanding the talents and the learning of all those judges, we Lower Canadians cannot hope to find the same justice from such a tribunal as we should receive from one consisting of judges from Lower Canada; for our laws being different from the laws of those provinces, they will not be able to understand and appreciate them as Lower Canadians would.

Some Hon. Members—Hear, hear.

Henri Taschereau [Beauce]—And, moreover, when this new Court of Appeals is instituted, the appeal to England will not be abolished, so that we shall have one more means of producing delay and increasing the costs of suitors. Lower Canadians will

- (p. 897)

assuredly be less satisfied with the decisions of a Federal Court of Appeals than with those of Her Majesty’s Privy Council. In good truth, I do not see why this clause was imposed upon our delegates. I do not suppose that the delegates of the other provinces can have very strongly insisted on it; but even if they had, I do not see why ours submitted to it. Of course our laws would not be understood in such a court, and most of the judges would render their decisions according to principles of jurisprudence unknown to Lower Canada.

I am convinced that those Lower Canadian members who are in favor of Confederation are not in favor of a legislative union; but have they not read the speech made at Toronto by the Hon. President of the Council (Hon. Mr. Brown)[4]? And did they not hear that of the honorable member for South Leeds (Mr. Ford Jones)[5], and the speeches of the members from Upper Canada generally, who nearly all spoke in favor of a legislative union, declaring that they accept Confederation as an instalment—a first step—towards a legislative union, which we shall have in a few years?

—–o0o—–

“

PART 3:

Post-Confederation Debates on Section 101

———-o0o———-

February 23, 1875, Debate in the House of Commons discussing Establishment of Supreme Courts. To read the entire debate, Click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 284.

Télesphore Fournier (Minister of Justice), p. 285

Hon. Mr. Fournier: […] It was a Bill creating a Court of appellate jurisdiction. Should that Court have a jurisdiction of appeal arising out of Local laws as well as out of Federal laws? […]

[…] If these words “notwithstanding” &c., did not apply as an exception to the power given to the Local Government of establishing Courts of Justice, they would then mean nothing. This power was evidently given in view of the existing Provincial tribunals, because there was no other tribunal from whose decision an appeal might be taken. If it were not so, the clause would have been written otherwise. Tribunals of original instance would have been first established and then the power of establishing a Court of Appeals would naturally have followed. It appeared, moreover, from a perusal of the concluding portion of that article that power was given to create additional Courts. The Court would have appellate civil and criminal jurisdiction, in cases of habeas corpus, of extradition and in constitutional cases. The Bill also provided for the creation of a Court of Exchequer. Some objection had been made to one of the Bills presented by the hon. member for Kingston for the reason that it have the Court of Appeal an original jurisdiction. He would avoid that difficulty by creating two Courts, one of appellate jurisdiction, the Supreme Court of Appeal; and another, a tribunal of the first instances, composed of the same members but being a totally different court. There was ample authority for adopting that course, and he found it in clause 101 of the Constitution.

John A. Macdonald, p. 288

Right Hon. Sir John A. Macdonald: […] He quite agreed with the views of the hon. gentleman that this Court of Appeal, when established, would be a Court of Appeal for Canada—a court that could entertain appeals from the decisions of all the Provincial Courts, whether such decisions were based on provincial laws, or laws of the Dominion.” […]

[…] He believed the logical and grammatical construction of the term “Court of Appeal” made it a Court of Appeal from all tribunals in this Dominion. […] It was this, that the latter established here a Supreme Court which was a court of appellant jurisdiction as well as an Exchequer Court. He (Sir John) was free to admit that this was an improvement for it avoided any disputes as to jurisdiction. […]

p. 289

[…] The Minister of Justice had a Bill before the House compelling the Judges to sit de die in diem whatever might be their ordinary duties in their own Provinces, and the litigation in their own Courts. However, that was a matter that time would settle, and he did not doubt that, hereafter, if representations should be made from the different Provincial Courts that the ordinary administration of justice was being interfered with very much by this jurisdiction being thrown upon them, the Supreme Court Judges would be made available.

—–o0o—–

March 16, 1875 Debate in the House of Commons discussing Establishment of the Supreme Court. To read the entire debate, Click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 737.

Acalus Palmer, p. 737

Mr. Palmer: […] He did not object to a Supreme Court of Appeal, but his opinion was that such a court ought to confine itself entirely to matters of appeal and should have no original jurisdiction whatever. […]

p. 738

[…] Their object was that when a question arose in any court in the different Provinces in which the question of the validity or ultra vires of the particular and of the Local Legislatures or of the Dominion Parliament was raised, it immediately removed the jurisdiction from that court and forced the litigant in the Supreme Court which would only hold its sittings at Ottawa. As every lawyer of experience knew, that would cause great hardship.

[…] He believed there was ample jurisdiction in the different Provinces for deciding Exchequer cases, and for dealing with them more conveniently and at less expense than before the proposed court.

Another powerful argument against the creation of an Exchequer Court was the fact that if this court were created for original jurisdiction, there was necessarily no appeal from it.

Henri-Thomas Taschereau, p. 739

Mr. Taschereau: […] he thought he was not going too far when he said that when a Supreme Tribunal of Appeal was proposed to be created outside their Province, composed of Judges, the great majority of whom would be unfamiliar with the civil laws of Quebec, which tribunal would be called upon to revise and would have the power to reverse the decisions of all their Quebec Courts, there was, for them, at least, cause for alarm, if not a danger, a great danger to apprehended.

[…] As regarded their civil cases, he humbly thought that the people of their Province were quite satisfied with the different degrees of jurisdiction now existing in Quebec.

p. 740

[…] If it were possible (and he made this suggestion with all due respect), to increase the number of the Judges of the Supreme Court so as to allow their Province a representation of three, then it could be enacted that for the decision of civil cases from Quebec, a sub-division of the court, composed of only the Judges from Quebec, or of a majority of them, would take cognizance of these cases.

[…] He desired now to mention the very grave doubts which had been expressed as regarded the constitutionality of the measure in so far as appeals to the Supreme Court in civil cases were allowed.

[…] So the only legislation the Parliament of Canada can make with regard to Common Law is a legislation in Criminal Law and Procedure in criminal matters. Clause 92, under the heading “Executive Powers of Provincial Legislatures,” reads as follows:

“In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter mentioned: Property and civil rights in the Province; 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; generally all matters of a merely local or private nature in the Province.”

Now clause 101 is the one under which it is pretended we possess the necessary powers to pass this measure with all its provisions. It reads as follows:

“The Parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance and organization of a General Court of Appeal for Canada, and for the establishment of any additional courts for the better administration of the laws of Canada.”

If he read this clause well, they could not do more than constitute, maintain and organize a General Court of Appeal for Canada and for the better administration of the laws of Canada. Now the civil laws of Quebec were not laws of Canada. He did not see they possessed the power to give to that court jurisdiction over cases coming under the civil laws of a particular Province, because this would interfere with property and civil rights, and procedure in civil matters, which by clause 92 were within the exclusive powers of Provincial Legislatures. He could not convince himself that the “power to provide for the constitution, maintenance and organization of a court” means and includes the power to give

p. 741

jurisdiction to that court over matters exclusively within the powers of the Provincial Legislatures, by the British North American Act. On the contrary, he believed that having once constituted and organized the court, and that court being maintained by us, they had nothing more to do, and the legislative powers were exhausted. It remained then with, and belongs to the Provincial Legislatures to determine in their respective Provinces what class of cases under civil law can be submitted to that court. Any other interpretation of the British North American Act seems to me a serious interference with their Provincial rights.

David Mills, p. 741

Mr. Mills: […] The word Canada occurred three times in this section. In the first it referred to the Parliament of Canada, and no one would suppose that the term included the legislative functions enjoyed by the Provinces as well as the functions exercised by the two branches of the Legislature here. The word was used the second time in reference to a Court of Appeal for Canada, and the third time it referred to the better administration of the laws of Canada. […] Did the “laws of Canada” include not only the laws enacted in the Federal Parliament but also those of the Local Legislatures? It seemed to him no one would for a moment say it could have that meaning.

[…] What was the design of this section? Under a sort of partnership arrangement the Local legislatures constituted the courts and defined their jurisdiction and the Government of Canada had the power of appointing Judges.

[…] It was of very great consequence that the laws of Canada operating over the entire Dominion should receive the same construction in all the Provinces. In order that they might receive an uniform interpretation, where interpretations were given, it was necessary there should be a court of final resort for determining the construction of Canadian Acts of Parliament. It seemed to him for that this court was intended.

p. 742

[…] This was a court not for the Provinces, but a general Court of Appeal for Canada, and it could not be seen in this section how the word Canada was used. it was meant to embrace the entire dominion; but only those subjects lying within certain limits.

[…] But in this Bill the whole judicial department was treated as though this was a Legislative Union, for the Bill not only gave the Supreme Court appellate jurisdiction with regard to the due administration of the Dominion laws, but also appellate jurisdiction in matters of local concern.

John A. Macdonald & David Mills, p. 744

Sir John A. Macdonald inquired if the hon. member for Bothwell held that if a Provincial court decided inter partes in a local question, whether that question arose under a Dominion or a Provincial Statute, whether it should be based on a Provincial Statute.

Mr. Mills said that if based upon a Dominion Statute there would be an appeal.

Thomas Moss, p. 746

Mr. Moss: […] It was true the late Minister of Justice and the present one had concurred in the opinion that there was no doubt of the jurisdiction of this Parliament to establish ana appellate court which should have power to revise the proceedings of Provincial Courts, even in matters relating to the operation of local law, or founded upon Provincial Statutes. […]

[…] There could be no question that all sound principle pointed to the propriety of Provincial Courts being the final tribunals to determine questions of purely local law.

p. 747

[…] The court of the Province determines that it is beyond the power of the municipality, and accordingly quashes the by-law. An appeal is to taken to the court at Ottawa, and that court, constituted under the authority of the Dominion, determines that the decision of the Provincial court was erroneous, and that the action of the municipality was within the scope of its authority. What is the consequence? The Legislature of the Province takes up the question and considers whether or not it be in the interests of the Province that the municipality should or should not have such power, and the anomaly is presented of the Legislature of a Province immediately proceeding to reverse a rule laid down by the Supreme Court.

Thomas Moss & David Mills, p. 748

Mr. Moss: […] The 101^st section of the British North America Act, on which so much stress had been laid by the hon. member for Bothwell, proceeded to enact “the Parliament of Canada may, notwithstanding anything in this Act,” that was to say notwithstanding any powers which might have previously been given to the Provincial Legislature or Provincial Judicature, “from time to time to provide, maintain and organize a General Court of Appeal for Canada.” It was impossible to give any meaning to the word general at all, unless it were applied to a court having jurisdiction over the decisions of the courts of the respective Provinces, no matter whether the cases in which appeals were brought involved questions of Provincial or Dominion Law.

[…] It was quite true that the article relating to the constitution and powers of the Courts of the United States began in a manner not unlike the wording of the 101^st section of the British North America Act. “The judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The argument derived from these words was that inasmuch as the Constitution of the United States conferred no power upon the Supreme Court to review the decisions of the State Courts on matters of State law, therefore, no such power could be in the 101^st section in the Court of Appeal that might be constituted here. But the answer to that argument was to be found in the 2^nd section of the 3^rd article. That section proceeded to define with strictness and prevision the extent of the powers of the Supreme Court.

[…]

Mr. Mills explained that he referred to the section for the purpose of showing that the word United States was used there the same as the word Canada was used in the 101^st section of the British North America Act.

J.H. Cameron, p. 752

Hon. J.H. Cameron: […] We had the knowledge that at this moment any jurisdiction, never mind what that jurisdiction might be, was capable of deciding upon a law, whether that law is in the judgment of that jurisdiction, a magistrate’s court, a higher court, or the highest court, a matter within the jurisdiction of the Province or not, and we ought to have within ourselves some means of disposing of such questions, that means as far as the Government had been able to take it had been adopted in accourdance with the way in which they had adppted the English Statute 2 and 3m, William IV.

J.H. Cameron & Télesphore Fournier (Minister of Justice), p. 753

Hon. J.H. Cameron: […] We had the best possible proof in the Judicial Committee of the Privy Council acting in the same was the Supreme Court would, as exactly the same words were placed in this Statute.

[…]

Hon. Mr. Fournier: […] If hon. gentlemen would refer to the Confederation debates they would not have the least doubt in the mind as to the meaning of the article. The 34^th clause of the Address to the Queen called for the establishment of a general Court of Appeal on

p. 754

the Confederated Provinces. There was no mention of Canada as distinguished from the Provinces; and he considered the right meaning was that the court should have jurisdiction over the courts of the Provinces; and he considered the righrt meaning was that the court should have jursidcition over the courts of the Province. The speech of the hon. member for Kingston at the Quebec Conference clearly defined the meaning of the clause, and the gentlemen all voted for it, knowing that in spite of the difference between the laws of Quebec and the other Provinces, we had the power of establishing a Court of Appeal having jurisdiction over their own special laws. At that conference Sir John A. Macdonald said:

That was the interpretation at the very moment the article was proposed, and it was considered sufficiently satisfactory to every one, and that it was the intention of Parlimaent that this court would apply to their own laws. But he believed it would take away every possible doubt as to the meaning of the clause by giving the views of Sir George Cartier expressed in the same debate:–

Accordingly, when we have lived some years under the Federal regime, the urgent need of such a Court of Appeal with jurisdiction in such matters will be felt, and, if it is created, it will be fit that its jurisdiction should extend to civil causes which might arise in the several Confederate Provinces, because it will necessarily be composed of the most eminent judges in the different provinces, of the jurists whose reputation stands highest, of men, in short, profoundly skilled in the jurisprudence of each of the provinces which they will respectively represent. Well, if this court is called upon, for instance, to give final judgment on a judgment rendered by a Lower Canada court, there will be among the judges on the bench men perfectly versed in the knowledge of the laws of that section of the Confederation, who will be able to give the benefit of their lights to the other judges sitting with them.

I must observe to my hon. friend the member for Montmorency, that he disparages the civil law of Lower Canada in the estimate he makes of it; but he need be under no uneasiness on that head. He should not forget that if, at this day, the laws of Lower Canada are so remarkably well understood in Her Majesty’s Privy Council, it is because the code of equity, which is a subject of deep study and familiar knowledge among the members of the council, is based on Roman law, as our own code is. All the eminent judges, whether in England, in the Maritime Provinces or in Upper Canada, are profoundly versed in those principles of equity, which are identical with those of our Civil Code.

Now, he believed that when these two opinions expressed, at the time the article was framed so clearly and explicitly, declaring what it meant, were on record, there could be no reasonable doubt on the subject to-day. The hon. Member for Bothwell had argued that there was very little necessity for having uniformity in jurisprudence; that it mattered not whether a case was decided one way in one Province and a different way in another Province. The hon. gentleman forgot that the laws of all the Provinces except Quebec were almost similar. All over the Dominion we had the same criminal and commercial laws. In Quebec the commercial laws were based principally upon the English law, so that the laws on most subjects were similar, and it was in the interest of the public that there should be but one interpretation of them, which would be uniform. The hon. gentleman

p. 755

should also bear in mind that there was a special clause in our constitution for the assimilation of the laws of the Provinces. He (Mr. Fournier) referred to this to show that the whole spirit of the Confederation Act was to give the Court of Appeal jurisdiction over Provincial as well as Dominion laws.

—–o0o—–

March 25, 1875 Debate in the House of Commons discussing Establishment of the Supreme Court. To read the entire debate, Click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 921.

Louis Baby, p. 921

Mr. Baby: […] Amongst the rights reserved to the Legislature of Quebec was that of dealing with property, civil rights and civil procedure in the courts. The constitution of the proposed Supreme Court would take away those rights.

[…]

[…] Not only would the rights of Quebec be jeopardized by the fact that four of the six Supreme Court judges would be ignorant of French laws, but the rights of the other Provinces would be endangered by the Judges being unacquainted with the laws, customs and habits of the parties pleading before the court. Moreover, the Dominion Parliament did not possess the power of establishing a Supreme Court before the Provincial Legislatures had decided that it was required and provided therefor. Before the Bill was submitted to Parliament the Local Legislature should have called for the establishment of the court by Parliament, and by their laws have declared that hereafter certain cases should be taken before the Supreme Court, and fixed the degree of appellate jurisdiction.

Joseph Mousseau, p. 925

Mr. Mousseau: […] So far as Quebec was concerned the Federal Parliament had no right, for two reasons, to abolish the right of appeal. One reason was, that it was established by statute, and formed part of their administration of justice, and could not be touched by this Parliament or Government. It had been established by statute in Upper Canada as well, and now formed part of their Provincial Laws and the administration of justice.

Acalus Palmer, p.926

Mr. Palmer: […] His view was that the 101^st section of the British North America Act authorized the Parliament of Canada to create a court having appellate jurisdiction over all the courts in each of the Provinces of Canada, with full power to hear and determine any and all causes and suits that may have been adjudged in the local courts; and also to regulate the mode of suit appeal, and further to create a court having original jurisdiction to administer the laws of Canada, that is the laws in force in the several Provinces of Canada on the subjects assigned exclusively to the Parliament of Canada by the 91^st Section of the British North America Act which he considered the true meaning of the words “the Laws of Canada” as used in the 101^st Section, and this Legislature had no power to create any courts having any further original jurisdiction, all such powers having been given exclusively to the Local Legislatures, by the 14^th sub-Section of the 92^nd Section of the British North America Act.

Now, the facts that appear to affect this part of the Act are shortly these. That it was made as appears by the preamble to carry out an agreement made by the separate Provinces of Canada, who thus (quo ad this question) possessed independent jurisdictions, having different laws, courts, and jurisprudence. This being so, if the 101st Section is ambiguous. The best key to it would be the provisions on this same subject in the agreement which the Act was made to carry out. Those provisions, hon. members would find, contained in the 14th Sub-Section Of the 29th and 31st Sections, and the 1lth Sub-Section of the 43rd Section of the Quebec Section so-called, which was the agreement referred to in the said Act. Before referring particularly to the words of these references, hon. members Would do well to remember that an evil existed in Canada, particularly in the smaller Provinces, that there was no Court of Appeal in this provision except to the Judicial Committee of the Privy Council, which

p. 927

was too far distant and expensive, and this was intended to remedy that evil. Then referring to the words themselves of the 14^th Sub-Section, “The establishment of a General Court of Appeal for the Federated Provinces”—and the 32^nd Section—“Establish additional courts, &c., in order to the due execution of the laws of Parliament.” Those two sections which are so distinct in the agreement, are combined in the 101^st section of the Act, and the “Laws of Parliament” in the agreement are changed in the Act to “the Laws of Canada.”

But in each it is contended they mean the same thing—that is, the laws of Canada, or the laws on the subjects that are within the powers of the Parliament of Canada, as distinguished from these laws, that are not within the powers of that Parliament, but are within the powers of the Local legislatures, and may be quite different in each Province. We must notice the great difference in the words when applied to the Appeal Courts and the other courts provided for both in the agreement and the Act. The Appeal Court is to be a General Appeal Court for Canada in that Act. In the agreement it is a General Court of Appeal for the Federated Provinces clearly meaning the same thing, while the court of original jurisdiction is confined in the Act to the better administration of the Laws of Canada, and in the agreement to the due execution of the Law of Parliament, meaning in both the same.

Now if it was intended that the jurisdiction of both those courts should be the same, that is, should be confined to the better administration of the laws on the subjects given to the general Parliament, how could the different words be accounted for. If such was the object it appeared to be clear that such powers would have been created by the same words and confined to the better administration of the Law of Canada, and consequently a wider meaning must be given, and because, while by the agreements the General Court of Appeal was to be established at all events, the Courts of Original Jurisdiction were only to be additional courts and established from tune to time as required. Now this clearly, Contemplated the establishment of a Court of Appeal before any Court Original Jurisdiction, and, in that state of things, the only court from which they could have appealed must be the local Provincial Courts, as those were all the courts which were in existence, and there certainly could be found no words of limitation of the powers of such appeal either in the Act or the agreement.

This Appeal Court was for Canada—that is for all Canada—but not continued as were the courts of original jurisdiction, to the administration of the laws of Canada. This being the power of this Parliament, in addition to the policy, or expediency of creating any original jurisdiction in this court, without any necessity for it, he (Mr. PALMER) wished and pointed out to the Minister of Justice that it was impossible for him to create all the original jurisdiction contained in the Bill as it stood. The hon. gentleman would see that his (Mr. Palmer’s) view of the power of this Parliament in this regard was the widest and largest possible under the words of the Act, but in the matter of original jurisdiction it was limited strictly to the administration of the laws, or subjects in the power of the General Parliament.

Now, it could not be denied that the original jurisdiction attempted to be given by the 55th and 58th sections, was to decide upon Acts of the Local Parliaments, and the 58th section professed to take away from the Provincial courts the power to decide upon such local Acts. Such legislation he (Mr. Palmer) considered not only bad policy, as such questions had better come by way of appeal, but it was an unconstitutional and illegal attempt to wrest from the local authorities what was vested in them by the Constitution.

—–o0o—–

March 27^th, 1875 Debate in the House of Commons, discussing Establishment of the Supreme Court. To read the entire debate, Click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 932.

Jean Langlois, p. 934

Mr. Langlois […] The effect of the Supreme Court would be to establish a uniform jurisprudence in commercial and criminal matters all over the Dominion, which would be a great advantage.

Joseph-Aldric Ouimet, p. 938

Mr. Ouimet: […] He understood that this Bill involved serious encroachments on the Provincial privileges that were secured to Quebec by the British North America Act. He was very much astonished to see that this Superior Court Bill was being forced upon the House by the very men who used to be most strenuously opposed to it when they were in opposition. He ventured to say that this measure brought with it a great constitutional change in our system, and that part of it, at any rate, was unconstitutional inasmuch as it was contrary to the spirit and letter of the British North America Act. This Bill was based upon the 101st Clause of that Act, which said that the Parliament may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance and organization of any additional courts for the better administration of the laws of Canada.

He (Mr. OUIMET) held that this term, “Court of Appeal of Canada,” must be read together with the following words “and generally courts for the better administration of the laws of Canada.” What confirmed him in this opinion was that in the construction of the Statute be taken the general meaning of the Act. He referred to Clauses 91 and 92 where the powers of the different Legislatures were defined. If this 101st Clause were interpreted to justify this Bill, it would give to the Superior Court an appellate jurisdiction in matters connected with civil procedure, and destroy the whole meaning of the Clauses 91 and 92. The 91st Clause declares that “It shall be lawful for the QUEEN with the advice and consent of the Senate and House of Commons, to make laws for the peace and order and good government of Canada in relation to all matters not coming within

p. 939

the class of subjects reserved to the various Provincial Legislatures.” And in the 92^nd clause, amongst these excluded subjects, under the 13^th section, are property and civil rights in the Provinces, and the administration of Justice, including the constitution, maintenance and organization of the Provincial Courts both of civil and criminal jurisdiction, and including proceedings in criminal matters in those courts. When he saw this Parliament dealing with precisely those matters exclusively reserved to the jurisdiction of the Provincial Legislatures, he could not resist coming to the conclusion that it was an encroachment on the rights and privileges secured to the Provinces by the British North America Act. These clauses providing for the establishment of a General Court of Appeal said that the Dominion Parliament might establish a Court of Appeal for the better administration of the Laws of Canada from time to time, or as it appeared by the French translation, when there was need for it.

He thought that the Provinces did not now need that legislation—they did not require this Court of Appeal. It was intended that this court should be composed of seven Judges, two of whom would be chosen by the Province of Quebec. Now, every one knew that there were special laws in that Province—special usages, of which the people of the other Provinces were entirely ignorant; and no doubt a great many of the Provincial Laws of other Provinces were also peculiar to themselves. In Quebec, as elsewhere, there were tribunals of original jurisdiction, and tribunals of appellate jurisdiction. In Quebec they had after the Superior Court the Court of Review, or Superior Court sitting in review. Then there was the Queen’s Bench sitting in review. In this court the first Judges could sit in the same cases. Thus it would be seen there were nine Judges pronouncing upon the same question, and ne contended that the feeling in the Province of Quebec has been to restrict that power of appeal.

In Quebec lately the Local Legislature had restricted the right of the intermediate jurisdiction of the Court of Review because it was ruinous for litigants, yet here they were called upon to establish a new court giving a new appellate jurisdiction. When the people would have gone through the Superior Court and Court of Review, and through the Queen’s Bench in appeal, they would be able still to come before the Supreme Court and after that would be at liberty to go to the Judicial Committee Of the Privy Council thus being subject to four or five separate jurisdictions; and he held that a party who had gone through all these courts must be either a very rich man, or he would be ruined before the case came back from England.

p. 940

[…] The argument of the hon. member for Jacques Carter that there would be better justice administered by this court than by the Privy Council was no reason why the Supreme Court should be given jurisdiction in civil matters. The Bill was unconstitutional and encroached on the rights of Quebec. By the 12th clause it was provided that appeals might be taken from the judgement of the Provincial Courts whether of original or appellate jurisdiction. So in civil matters they would be obliged to go before a tribunal essentially ignorant of the laws and usages of Quebec, for, as every one knew, the theory of law was not sufficient for a Judge to give confidence to an appellant.

—–o0o—–

March 30, 1875 Debate in the House of Commons, discussing Establishment of the Supreme Court. To read the entire debate, Click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 968.

Rodolphe Laflamme, p. 970

Mr. Laflamme: […] He said this motion was merely to carry out the idea which he had expressed the other night that he believed under the peculiar circumstances in which the Province of Que-

p. 971

bec was situated, and its special system of laws, of which the Judges from the other Provinces who might be selected for the composition of this court would be entirely ignorant-it was essential in order to arrive at a good and sound interpretation. of the laws of that Province, that two of these Judges, at least, should be selected from the bar of Lower Canada.

Télesphore Fournier (Minister of Justice) & Joseph-Aldric Ouimet, p. 971

Hon. Mr. FOURNIER thought here was no difficulty in meeting the proposition of the hon. member for Jacques Cartier. No administration would undertake to put the law in force without giving due regard to the special circumstances of the Province of Quebec, for every one knew the great difference that exists between its laws and those of the other Provinces. The rights of Quebec were recognised in the Constitutional Act, which also contained a provision that the Judges for Nova Scotia and New Brunswick should be taken from the Bar of those Provinces until an assimilation of those laws with the laws of Ontario had taken place.

Mr. OUIMET said the admission of the Minister of Justice was the strongest argument that could be advanced in favor of the proposition he (Mr. OUIMET) had made the other night. If the argument of the Minister of Justice was sound that under the 90th section of the Constitution which provided that the Judges of the Quebec Courts must be taken from the Bar of that Province, there must be two Judges of this Supreme Court from that Province, then upon the same argument this Court was either unconstitutional or it should be so constituted that all the cases from Quebec should be tried by Quebec Judges.

Louis Masson, p. 972

Mr. Masson: […] Now, under the circumstances it was impossible to establish a court for the whole Dominion, which should have jurisdiction over local laws in which the Province of Quebec could be properly protected. The Government admitted that in admitting that two of the Judges should be from the Province of Quebec. Why should the Province of Quebec have more right than the other Provinces to have two of its Judges in this court?

David Mills, Télesphore Fournier, & John A. Macdonald, p. 985

Mr. Mills: […] He moved “That the Bill be referred back to the Committee of the Whole to be so amended as to confer upon the Supreme Court appellate jurisdiction in Admiralty cases.”

Hon. Mr. Fournier said that the hon. member had inquired at the beginning of the session whether the Government were taking any steps towards securing the necessary legislation to give to this Parliament the power of extending the Admiralty Courts to the inland waters of the Dominion. The House was informed, on that occasion, that correspondence had been going on for five or six months past in relation to that subject, and that it was not yet closed.

Sir John Macdonald said this Parliament could not oust the Imperial Admiralty Courts of their jurisdiction. They were Vice-Admiralty Courts, and had the right of appeal to the High Court of Admiralty in England. This House might propose for concurrent jurisdiction over vessels within three miles of the

p. 986

coast, but not beyond the limits of the Dominion. He had grave doubts whether any courts this House could establish in any way by a Dominion Act, and under the appointment of the Great Seal of Canada, could deal with this question. This subject was worthy of all consideration, and he had no doubt the Minister of Justice would give it that consideration between now and next session. With regard to the navigation of the lakes, it was a question whether this Parliament had the right of dealing with ships on the Upper Lakes. He was afraid Ontario would be very apt to advance a claim on the subject and assert that they came within the jurisdiction of Ontario.

—–o0o—–

March 2, 1882, Debate in the House of Commons, discussing the creation of a Court of Railway Commissioners. To read the entire debate, Click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 173.

Charles Tupper, p. 174

Sir Charles Tupper: One of those was the want of power on the part of this Parliament to deal with the railway questions of this country in the manner which he proposes. It is known to the House that, under our Constitution, the powers of Parliament are confined to a certain class of railways, and that over a great many of the railways we have no jurisdiction whatever. They obtained their charters, they operate them under laws passed by the various Local Legislatures of the Dominion; and I think the on, gentleman should provide some means by which that difficulty would be obviated, and by which it would become practicable to deal with this question as a whole, as otherwise it is perfectly apparent that, to a very large extent, the very important objects he as in view and no one questions their importance—will entirely fail to be attained.

[…]

The hon. member for North Simcoe (Mr. McCarthy) knows I drew his attention to another important point in connection with this matter, that is, not only the difficulty which exists owing to part of the railways being under local jurisdiction and the remainder under Federal jurisdiction, but the fact that we occupy a very different position in this country from that of the country from which the hon. gentleman has taken his Bill, that is, Great Britain.

p. 175

[…] It is only the other day that our hon. friends opposite, when in power, organized the Supreme Court, with the result of taxing the people $50,000 a year for its maintenance, and it is now proposed, as I understand by this Bill, to have another Supreme Court in Canada. My hon. friend asks for the appointment of three Judges. They will have to be very highly paid. If this court is to be of any value at all, it must, under this Act, be composed of three Commissioners who deserve and obtain the confidence of the people.

John Haggart, p. 175

Mr. Haggart: […] But as to all railways which interchange trade between different countries and different Provinces, the legislation properly belongs to the general Government, it should be held that legislation properly belongs to the Federal Government, and that the legislation in reference to these railroads, so far as this country is concerned, should initiate in this house; and the different Provincial Legislatures may follow afterwards, passing legislation for purely local railways.

William McDougall, p. 183

Mr. McDougall (Halton): […] It seemed to me, Sir, that with the Supreme Court, with the Committee of the Privy Council, and with other means which were at the disposal of parties who might feel themselves aggrieved, sufficient opportunity was afforded for the redress of any injuries that might be sustained.

[…] I question very much whether it is in the power of this Parliament to adopt a measure giving such powers as are proposed to be given to this Railway Commission. This Parliament is a Parliament of limited powers, as much as the Local Legislatures of this Dominion. It has very much larger powers, of course; its range of jurisdiction is very much larger; but, at the same time, it is restrained within constitutional limits, and I do not find in our Constitution any authority given to us to establish a tribunal of this kind, and to give it compulsory powers which it may exercise affecting the rights and privileges and property of the subjects of this Dominion. It must be in the character of a Court if it exercises these powers at all. It is a judicial body if it is anything. It may recommend to Parliament, it may inquire, it may investigate, it may report; but if its judgments or decisions are to have any legal or binding force or effect, they must emanate from a judicial tribunal. It must be a Court—a court of law; and we know what a court of law is, and how it is regulated. Appeals may be made from it to the Privy Council of England. The railway corporations have their ramifications extending very widely; the larger portion of the railways, as has been stated, are owned, or have been contributed to by parties living under a foreign jurisdiction, and it does seem to me that beside the question of the expenses, the investigations, and the decisions of such a tribunal, we must see that we have the power, the constitutional

p. 184

right, to arm this tribunal with authority to enforce its decrees. I see by the 14^th section of this Bill that my learned friend proposes to transfer the judgments of this Commission to the Exchequer Court, and to make them decrees or orders, or equivalent to decrees or orders, of the Court of Exchequer. I question very much whether we can thus draw, as it were, on the constitutional power of an existing Court—which undoubtedly we had the power to establish—to support the judgments and decisions of this tribunal. I think that would be straining very much the power we possess. Section 101 of the Act under which, I suppose, any authority of this kind may be inferred, is very short and explicit:

“The Parliament of Canada may, notwithstanding anything in this Act, provide from time to time for the constitution and maintenance of a general Court of Appeal for Canada.”

It was under that authority that the Supreme Court was established:

“And for the establishment of any additional Courts for the better administration of the laws of Canada.”

Now, is this tribunal, which my hon. friend proposes to constitute, a Court in the sense of this Act? Is it a Court for the better administration of the laws of Canada, or a Court for the administration of a particular department or a particular class of the laws of Canada? Because it is clear to me that we must provide, by positive enactments, for the subjects upon which it shall adjudicate. To give a case by way of illustration: one of the objects for which it will be appointed will be to deal with questions arising from unfair discrimination between places and individuals in the charges made for freight by railway companies. That is an abuse. That, I should say, speaking off hand, is against the common law of the land. I do not see what principle a quasi public company, performing the duties of a public carrier, can undertake to discriminate between different freighters, and to charge one person a large sum and another person a lesser sum for the same work. It seems to me that, under the principles of the common law that must be objectionable. But if any difficulty occurs in applying the common law in such a case, we should make it—if it is not already made—positive law. We should do as has been done in many cases in the United States, declare what can be and what cannot be done by these railway companies; and if the existing courts cannot deal with the case we can constitute courts for that purpose. But I have very great doubts that the Board of Railway Commissioners proposed by this Bill will come within the spirit and meaning of the authority which is given to us in the 101st section of the B.N.A. Act.

Dalton McCarthy, p. 186

Mr. McCarthy: […] But I entirely deny that this Parliament is not competent to deal with this matter of railways, notwithstanding that the companies may be chartered by the Local House. I believe the Constitution under which this House sits—as the hon. member for Huron has told us, and he cited American authorities—gives this House the power to deal with all matters affecting trade and commerce—and the matter of traffic is a matter of commerce—and is therefore within the purview of the Parliament of Canada.

—–o0o—–

May 16, 1882 Debate in the House of Commons, discussing the Salaries of Judges. To read the entire debate, Click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 1560.

Charles Kaulbach, p. 1560

Mr. Kaulbach: […] Nothing would afford me greater pleasure now than to see both the Supreme Court of Appeal and the County Courts abolished, and the work performed by the Supreme Court, or Court of Queen’s Bench, of the respective Provinces, and the Chief Justices of the respective Provinces to meet as often as required, as a body, and substitute the present Court of Appeal, clothed with the same functions as the present Court of Appeal, for the purpose of bearing and determining all important questions, whether constitutional or otherwise, that may be brought before them, from which appeal can be had, if suitors are not satisfied, on reference to the Judicial Committee of the Privy Council in England, which costs this country nothing.

[…] I certainly do hope that this House will look favorably upon the views I have just expressed, and arrange to abolish both these Courts, more particularly the latter, which I have no hesitation in stating is a snare and a deception to the country, and a means in the hands of many unscrupulous and merciless attorneys to bring a poor man to ruin.

—–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] 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 (and all footnotes for the debates) 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.

[3] i.e. “with full authority.”

[4] George Brown, Speech at Toronto (Nov. 1864), Edward Whelan, The Union of the British Provinces (1865), pp. 186-203.

[5] David Jones, Legislative Assembly (Mar. 9, 1865), pp. 814-820. The comment on the legislative union is on p. 818.

[6] Here Fournier quotes John A. Macdonald, from p. 41 of the Confederation Debates, already cited in this report. See Part 2 of this report.

[7] Here Fournier quotes George-Étienne Cartier from p. 576-577 of the Confederation Debates, already cited in this report.

Section 101 [Constitution Act, 1867], Uncategorized

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REPORT: ESTABLISHMENT OF COURTS, Section 101 of the Constitution Act, 1867

Constitution Act, 1867:

Section 101

Compilation of primary documents to assist in interpreting the Establishment of Courts in Section 101 of the Constitution Act, 1867

Contents

PART 1:

Section 101 in Successive Drafts, from the Quebec Resolutions, 1864 to the Constitution Act, 1867

The Quebec Resolutions (1864)[1]

The London Resolutions (1866)

Constitution Act, 1867

PART 2

**Debates on Section 101 in the Confederation Debates in the Province of Canada (1865)**

Province of Canada (1865)[2]

PART 3:

Post-Confederation Debates on Section 101

ENDNOTES

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REPORT: ESTABLISHMENT OF COURTS, Section 101 of the Constitution Act, 1867

Constitution Act, 1867:

Section 101

Compilation of primary documents to assist in interpreting the Establishment of Courts in Section 101 of the Constitution Act, 1867

Contents

PART 1:

Section 101 in Successive Drafts, from the Quebec Resolutions, 1864 to the Constitution Act, 1867

The Quebec Resolutions (1864)[1]

The London Resolutions (1866)

Constitution Act, 1867

PART 2

Debates on Section 101 in the Confederation Debates in the Province of Canada (1865)

Province of Canada (1865)[2]

PART 3:

Post-Confederation Debates on Section 101

ENDNOTES

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**Debates on Section 101 in the Confederation Debates in the Province of Canada (1865)**