Mr. BORDEN (Halifax).
I understood my right hon. friend entertained the view then, that the judges were too numerous for the work which was to be done, and that the Conservative party having control of the number of judges in the province of Quebec at that time, ought to see that that matter was regulated, and that no increase in the number of judges should be asked
for. Of course, if my right hon. friend states that that was uot his view at that time, I accept his statement at once, but I so understood it on the authority of Sir John Thompson himself.
I think my hon. friend will agree with me that there is an anomaly in our constitution at the present time.
Mr. BORDEN (Halifax).
That is what I was saying, I commenced my remarks with that observation. If you take the aggregate amount paid for judicial salaries in .Canada at the present time, I am inclined to think it is quite enough to secure us a good bench in all the provinces of Canada. I think we are paying quite enough in judicial salaries in this country. The difficulty is that we have too many judges, and they have to live on too small salaries. I do not profess to know to what extent it is proposed to increase the number of judges in the province of Ontario.
Mr. BORDEN (Halifax).
Two additional judges are to he appointed in the province of Ontario. I am not familiar with judicial matters in that province and I do not know how far they may be necessary. But I would be inclined! to consider in connection with that increase the fact that one of the judges of the high court of that province is at present absent from his judicial duties, and is engaged in performing work on a commission in the Yukon. That would not seem to me to indicate that there is any present need of more judges in the province of Ontario, because I can hardly suppose that a judge would accept a post of that kind if there were any pressing need for the performance by him of his judicial duties in that province. It is a difficulty that we will have to meet iin some way in this country in the future. I do not know how we shall meet it. There are many judges in the Dominion of Canada at present who are fully paid, if not overpaid. I know of judges who are receiving salaries at the present timp greater than the average income that they ever earned at the bar. I know that some of these judges have not more than three or four months work to do in the entire year. Now, the increase of the salaries of these gentlemen is a matter not lightly to be undertaken. On the other hand, we have judges in the city of Montreal-I am relying on statements made to me by members of the bar in Montreal who tell me that the judges there are not only driven with work all the time, absolutely occupied from one end of the year to the other, but they are forced to maintain themselves on salaries that are absolutely inadequate in view of their position, in view of the necessity on their part of living in a certain style befitting that position.
That is not a matter that is easy to deal with and I do not know just what remedy we ought to adopt unless we undertake the task of discriminating in some way and that would be a very difficult task indeed, I know, for this parliament or for any government. But, it seems to me that something may possibly be done in this regard. Would it not be possible for the government to suggest to the governments of the provinces when they undertake to provide new judges whether or not the appointment is necessary ? We are not obliged to provide the salaries. This is a matter entirely within the control of the government and of this parliament and if the provincial government insist upon appointing judges, if this government has valid reason to believe that these additional judges are unnecessary, it may be desirable at some time in the future that the government should take upon itself the responsibility of declining to provide the salaries of judges who are appointed in addition to the number that is necessary. I agree entirely with what the hon. Minister of Justice has paid in regard to some of the judges. As to the other judges in the Dominion I do not agree with him, and I am inclined to think that he would agree with me in my contention that some are underworked and that some, I am almost inclined to say, are overpaid, while there are many others who are overworked and underpaid.
The question is one of the anomalies that we have in our constitution and for my part, though I have had occasion to think a good deal over it, I have never been able to satisfy myself as to the remedy which we should adopt unless it be a radical one. I remember very well that when Sir John Thompson was Minister of Justice the matter was brought up and for my part I expressed the opinion then that in the province of Quebec the system of judicature was very unsatisfactory. We have no county court judges in our province. We have only Superior Court judges and I thought that the system which prevails in Ontario would be far more suitable to our province. I do not know if Sir John Thompson communicated at that time with the local government, but, I do know that my hon. friend from Montmorency (Mr. Casgrain) who was then attorney general introduced a Bill in the direction of changing our system and introducing the Ontario system. Unfortunately that Bill was defeated and for my part I always regretted it. Since my own friends have been in office in the province of Quebec I have urged repeatedly to try and change their system but they have told me that it is impossible because the opinion of the province is against it. I hope that some day there will be a change in public opinion and that we will have a different system introduced into the province of Que-
bee. But even then the anomaly would still exist if it is in the power of the local legislature to create the courts and fix the number of judges and leave it to the Dominion parliament to provide for the salaries. It goes without saying that there could not be a greater anomaly than this one, because the legislative authority which creates the court should also provide for the payment of the judges. Perhaps we should find some remedy for this condition of things if we could have the system which exists in the United States of having provincial courts and federal courts. If we had provincial courts to administer the laws of the province and federal courts to administer the laws of the Dominion I think it would possibly be a more logical system and perhaps be more useful to the different provinces and to the country as a whole. But, that is far away and we could not have it under our present system. Under our present system we cannot do anything else than try to reason with the provincial legislatures. If they amend the constitution of their courts and force us to provide salaries for the judges I do not see that we can refuse to do so. If the legislature in the exercise of its sovereignty as a legislature declares that such and such a court is needed and that it is to be composed of so many judges, I do not see that it is possible for us to substitute our wisdom here and to say: You are wrong and we shall not provide for the payment of the judges' salary. If we had reason to believe that the thing was done under motives which were not warranted and if it were to be akin to fraud, or something of that kind, then, this parliament would be justified in refusing to act. But assuming that the legislature has acted in good faith, I do not see hoy wb can fail to provide for the salaries. My hon. friend the Minister of Justice has just given notice of a resolution providing for the salary of another judge in the province of Quebec. Though I say that the Quebec system is not satisfactory I do not see how we can avoid doing that. The judges in the district of Montreal who have been referred to by my hon. friend the leader of the opposition (Mr. Borden, Halifax) are certainly overworked. But, there are judges in some parts of the province of Quebec who have very little work to do and who perhaps have more leisure than work during the year. But, we must remember that the geographical distribution of the population is such, that, whereas, one man in one part of the province may have little or nothing to do, another man in another part of the province may have more work to do than he can perform. Take the county of Gaspd for instance, which is the peninsula at the other extremity of the province. There is a very small population and very little work to dojbut that district must have a judge. Even if there were only three or four cases in a year, some one must be there Sir WILFRID LAURIER.
to attend to them. I wish the distribution of judges were made in Quebec in accordance with the system they have in Ontario but we have not that system. If I may be allowed to anticipate the proposal of the hon. Minister of Justice it is to provide an additional judge for the county of Pontiac. The county of Pontiac is a part of the judicial district of OttawTa, the judge of which presides in Hull. It is a fact that the judge residing in Hull cannot personally attend to all the work which he is- obliged to perform and therefore we have to provide an additional judge in the province of Quebec. But, all this is very unsatisfactory. We have no word to say as to the constitution of the courts and at the same time we have to provide for the payment of the judges. As to the salaries of the judges we have to make up our minds that it is impossible for the judges to remain upon the salaries that they have been receiving. The remark is often made to me : Well,
you have no difficulty in finding judges when there are vacancies. It is not that there are very severe difficulties in filling vacancies-I admit that-but since we have been in office we have offered vacancies to some of the best talent in the provinces and the appointments have been refused. [DOT]
I would like to call the attention of the Committee to the fact that those who have spoken have spoken of the donstitutional anomaly in connection with this matter. Is not constitutional revision within the purview of this House ? Are there not a lot of these constitutional anomalies springing up in regard to different things ? Under the constitution that vve have we have been going along for thirty years. A number of difficulties have been discovered. The province of Ontario to-day is agitated over the apparent loss of its municipal rights, and the province of Quebec may be agitated to-morrow over the prospective loss of its rights, and it seems to me if lawyers get up in this House and talk about constitutional anomalies they are bound to find a cure for them. Every parliament is bound to provide a cure for constitutional grievances. These grievances are increasing every day and I believe the time has arrived when this parliament, both in this House and in the Senate, will be compelled to take up the question of constitutional revision. It is a very difficult question to face, but it must be faced by parliament. I believe the time has arrived to face that question. I would like to see this parliament, after a conference between the federal power and the provinces, approach the imperial government and ask for some kind of remedial legislation.
I cannot agree with the idea that because a provincial legislature passes an Act' creating a new court, this parliament is bound to acquiesce and provide the judge and the salary. I do not
believe that is a proper construction of the constitution. I read a very able article some years ago in one of our legal journals, and that article was strongly in favour of this parliament having a perfect constitutional right to refuse to provide the salary, that we were really sitting as an appeal parliament, and that while the local legislature may have the right to create a new judge, this parliament under the divided responsibility in this matter has the right to refuse to appoint him. We have the fullest constitutional right in this parliament to act within the power given to us, just as the legislature has the fullest right to act within its power. No construction of the constitution would be tolerated which would make this parliament, which is ;i superior parliament, into an inferior parliament. As a lawyer, I want to say that I do not concur in this view, and I trust that neither the Minister of Justice nor the Prime Minister will commit themselves to such a theory. This parliament having power conferred on it to control the appointment of judges and pay their salaries by the same Act which gives the local legislatures power to create a court, all parts of that Act must be construed in harmony, and it must receive such construction as will give us full play for our discretion in the matter. It would never do to say that this parliament must be controlled bolus bolus by the local legislatures in such an important feature of the constitution as the appointment of judges and the payment of their salaries. I do not criticise the wisdom of the legislature in this particular instance. But I hold that it is for this parliament to say whether it will carry out the recommendation of the provincial legislature. It is for us to interpret the correct policy that will apply in such a case. Of course, ultimately, the people will have to determine on this question as on all others. I do not like this idea of tinkering with the constitution suggested by my hon. friend from Toronto (Mr. Maclean).
We have an admirable constitution, and upon a true construction of its different sections there is perfect harmony in it. Now, I want to make reference to another matter. The other day, the Minister of Justice said, that there were two classes who had not the confidence of the public, and these were the judges and the lawyers. If that were mere badinage of the Minister of Justice, I would not object,
' but if he were serious I refuse to be bound by such a statement. In the county in which I live the lawyers of both sides of politics are the men who dominate and control public opinion, and make it and unmake it. They have absolutely the confidence of the people, and the people send them as their representatives to parliament. When the people want men of brains, and men of experience, they select lawyers, and
they trust their affairs to honest lawyers. I am bound to say that in this House the lawyers claim the confidence of the people of Canada in a larger degree than do the members of any other profession. There are infinitely more lawyers in this House than there are members of any other occupation. I respect the laymen, and I must say that they have the good grace on all occasions, in matters of difficulty, to seek the advice of some sound lawyers. I can say for the members of the Bar in my portion of the country, that they occupy the highest standing in the community. There is nothing on earth that pleases me more than to get overhauled by these intelligent laymen. Such criticism helps us. I look upon their criticism in the same way as I look upon the conduct of an indulgent and kindly wife who criticises her husband ; not that she does not respect him, but she thinks an unreasonable animal needs a little advice. These laymen think that an unreasonable animal like a lawyer perhaps, needs a little reasonable advice, and so I do not object to it. I have no doubt that these gentlemen have the deepest respect for a good, honest, well-trained lawyer, who is the safest adviser they can have under any circumstances.
I have heard it frequently stated in this House that the salaries of judges are too small, because these judges could earn more by practising at the bar than their salaries as judges. On that parity of reasoning, a judge's salary is tooj low unless you pay him as much as he could earn in the practice of his profession.1 In my opinioin that is not a proper stand-' ard to go by. Let us look at it from the' view point of how long it takes a lawyer to acquire a knowledge of his profession and how much it costs him as compared with a civil engineer, a physician, or a member of: any of the learned profession. Let us first compare the lawyer with the doctor. From the day the lawyer commences to study his profession he Is earning money. I
Well, I notice that he generally makes enough to put him through his course of studies. But the very reverse is the case with the doctor. He has to study for five years to fit himself for his profession; from the day he commences to study he has to incur a coustant outlay ; and it costs him from $1,000 to $2,000 of expenditure, besides five years of his life, to acquire a knowledge of his profession before he can begin to earn a dollar. I am assuming that both the lawyer and the doctor start with the same educational qualification. The lawyer, on the other hand, takes four years to acquire his profession, and during that time, instead of paying out money, he is earning money. Is it a fact that doctors earn more than or as much as
lawyers ? Although it costs them more to acquire their professiou, they really earn less. I say that the standard of salary paid to a judge should not be what a lawyer will earn before he goes on the bench, but it should be what is a fair remuneration for professional men in other lines of life, who are as intelligent as the lawyers, and who have spent as much time and money to acquire their profession. The number of medical men who have a net income of over $4,000 a year is very small, and yet we hear of lawyers who earn $10,000, $12,000, $15,000, $20,000, $25,000; and we are told that you cannot get the best men to go on the bench, unless you give them a salary equivalent to what they earn when practising their profession. Lawyers, in my judgment, are paid more than their services are worth; in other words, we give them power to charge more. Men who start with equal brains to those of the lawyers, who spend as much to acquire knowledge in any of the learned professions, should, after they acquire their profession, bave an earning capacity equal to that of the lawyers ; or else they are paid too little or the lawyers too much. Medical men do not usually complain of what they earn in their profession. It is only the lawyer and the judge who are always complaining because there is no limit to their avarice. I knew a lawyer a few years ago who got for conducting one case a cheque for $10,000. Will any one tell me that he actually earned that much ? I do not think he did ; but because he happened to answer the purpose, and was intelligent enough to enable those for whom he acted to evade the law or to checkmate others who were playing that game of checkers called law with him, he was paid that amount of money. Can you properly say that he earned it ? In my judgment, he did not. I do not think there is a lawyer in Canada to-day who, if he were paid exactly what he is worth, would earn $20,000 or anything like it. How many medical men are earning that much or one-half of it ? There is not one in every thousand who is earning half of it-I mean iu net earnings; and yet in the pursuit of their profession they are obliged to incur much greater expenses than the lawyers. They are also obliged to live a much more exhausting and arduous life; they have to be on duty night and day, without any time to call their own;l while the lawyer can work in reasonable hours, and the rest of the time he can rest or play as he sees fit. I believe doctors usually do for nothing more than the lawyers earn, if they were paid what they are worth. Take professors in the universities, who are very able and intelligent men; what do they earn ? Take ministers of the gospel, who, I think, are paid fairly good salaries; how much do they earn? Take civil engineers, provincial land surveyors, or men in any other line of pro-Mr. SPROULE.
fessional life whom you can fairly compare with lawyers. A railway expert canuot fairly be compared with a lawyer, because he is a man who by nature is adapted for the work, and has given close and assiduous attention to it perhaps for a period of from 20 to 25 years before he reaches the maximum of his earning capacity. But, you say, take men who are managing large financial corporations. Well, their estimated earning powers are about in proportion to the elements of the Jew which they have in their nature-those who have no bowels of compassion, no mercy in their composition, who are prepared to drive everything before them and make everybody comply with their requirements just as they might make a piece of machinery turn round; that is how they* show their great earning powers. It is not because they are humane, kind and sympathetic, or because they give away a lot to the needy, but it is because they are heartless, and show some ability to arrange schemes for getting out of the state for nothing a very large amount of money, or taking it out of the people who are compelled to deal with them by borrowing money or otherwise. If they can arrange a system by which they can take more out of the earnings of the people than they ought to take, they will command very large salaries. This should not be the criterion by which we should estimate what is the proper salary to pay to a judge; but it should be, in my judgment, what men of equal ability can earn in other lines of life, taking into account what it costs them to acquire their profession and how many years they have to spend in acquiring it, and then how much they earn in the pursuit of their profession.
May I ask my hon. friend what is the usual charge of a prominent city doctor from Toronto who is called to give evidence as an expert in a case ?
The law allows him $4 a day.
Yes, but the party to the suit has to pay him $75 to $100. I know that, because I have experienced it.
It is optional with him to go or not; but if he goes, all he can claim is $4 a day and his mileage.
I was going to say one thing when I was speaking with reference to the question whether this parliament had to appoint judges when the legislature provided a court. The legislature of Nova Scotia provided for the county courts of Nova Scotia for six or eight years. The government of Sir John Macdonald was in power then, and, on the advice of some people that these courts were not necessary, he refused to appoint the judges for seven or eight years. So that we have a precedent for this parliament refusing to accede to the
view of a local legislature. The decision of this parliament was not to accede to the view of the local parliament, and we had to put up with that decision. We recognized 'that this parliament had the right to consider the policy as well as our local legislature.
My hon. friend from East Grey (Mr. Sproule) has thrown out a challenge to the lawyers in a rather amusing fashion, and it is no doubt very instructive from a medical point of view. I do not think that there is any quarrel between the medical profession and the lawyers, and I do not want any. I think it would be dangerous for the lawyers, as we have to submit to the doctors at certain times, and had better keep in their good graces. There is no doubt considerable difficulty in settling the question of the judges' salaries. X do not believe in keeping them down to too low a point, but it is possible that we are wrong in thinking that gentlemen elevated to the bench should necessarily get as large an income as they were earning at the Bar. There are many anxieties connected with practice at the bar, and the strain cannot be kept up at the high rate necessary to command a large income for the whole of a man's lifetime. So that it might be quite possible that we are not bound to give such a large salary to a judge as he would make in practising at the bar. There is another point to which I might refer. We make a mistake in assuming that in all cases the most brilliant counsel makes the best judge. There are instances in which they do, but there are probably a greater number of instances to the contrary. It requires a different class of qualifications to constitute a good judge. I have noticed in the course of my professional career, as no doubt, not only members of the bar, but laymen, have done, many noticeable instances in which we have been disappointed to some extent 'n the appointment of very brilliant men to the bench, and there have been many instances in which men of isound judgment, but lacking in brilliancy, have made excellent judges. The matter will have to be considered calmly, without setting one class against another, and solely with the desire of securing such men on the bench as will do most credit to the position. The doctors do not want anything. They are not looking for any appointments, though I do not suppose they would refuse to take them if there were any to be had. I therefore disclaim any quarrel with my hon. friend from East Grey (Mr. Sproule) on this question, or on the question as to whether the lawyers earn the money they are paid. There is some difficulty in judging how much a lawyer earns, but there is no criterion by which you can judge, with any exactness, how much a doctor earns. It is a question of kill or cure, and in many instances the pay I is the same. There is also this about it, |
that the medical profession regulates its own fees. They say what their tariff shall be, and that tariff is recognized. The lawyer's tariff is regulated by law, so that I do not think there is any good purpose to serve by introducing comparisons.