July 26, 1946

CCF

William Scottie Bryce

Co-operative Commonwealth Federation (C.C.F.)

Mr. BRYCE:

The hon. member who has just spoken must have seen my notes, because he has said many of the things I had intended to say. I should not like any hon. member or anyone outside the house to think that I am opposed to the judiciary. Some of them are among my personal friends. In fact I have many good friends among them, although they hold political views different from those I hold. I respect their views, and I hope they do the same for mine.

The hon. member who has just taken his seat referred to the political appointments in Great Britain, to which reference was first made by the hon. member for Stanstead. It will be noted that while they are political appointments, it is not always a process of appointing political friends.

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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

If the hon. member would cite a few instances to bear out his argument, it would be helpful. I know very well that 63260-247J

the gentlemen who are now in office do not appoint their political friends, and for the obvious reason which I gave.

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CCF

William Scottie Bryce

Co-operative Commonwealth Federation (C.C.F.)

Mr. BRYCE:

I am at a disadvantage when I am asked that question.

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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

Probably so.

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CCF

William Scottie Bryce

Co-operative Commonwealth Federation (C.C.F.)

Mr. BRYCE:

I cannot give an answer off hand. But I have followed the political life of Great Britain since I was a young man. What I had wanted to do at this time was to go on record as being against this increase in salaries to judges at the present time. It seems far too much, and it is out of reason altogether when we have fishermen, farmers and workers who are clamouring for a few more cents an hour. I say to hon. members to my right that if they want to guard their reputations in the future, and if they are to contest another election, they will never come back if they now raise judges' salaries by one-third. The rank and file of Canada will be against them.

We heard the Minister of Trade and Commerce announce what will take place in two years' time-dollar wheat. I am not speaking as a lawyer, but as a farmer-and I would never attempt to speak as anything other than a dirt farmer from the prairies-when I say that when we got 38i cents a bushel for our wheat the judges were getting the same salaries as they are getting to-day. The Minister of Trade and Commerce tells us that we are to get $1 a bushel for our wheat in three or four years' time. When that happens the judges will still be getting the same salaries. I do not want to take up the time of the committee, but I do appeal to the Minister of Justice to hoist this bill for a year and let us see where we are.

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CCF

James Herbert Matthews

Co-operative Commonwealth Federation (C.C.F.)

Mr. MATTHEWS (Kootenay East):

If I understood the hon. member for Stanstead aright he left the impression that the hon. member for Vancouver East was opposed to the present salaries paid the members of the judiciary, and that he felt they were overpaid. I do not think the hon. member for Vancouver East made any reference to anyone being overpaid. He made a strong and impassioned appeal to the minister not to do this thing now. He gave his reasons, very ably, and I want to associate myself with everything he said.

The hon. member for Stanstead said that certain people were sneering at the profession of law. You do not have to be in this house to hear sneering things said about the law, but that does not mean that every lawyer is a shyster or a crook. Unfortunately there have been men in the profession who have brought down slurs upon that profession. At

Judges Act

times sneers were due them, but they were not due to the group as a whole. I have the greatest respect for the profession and the work it has been trying to do, and I have also great respect for the judiciary of this country. I do not think I can be accused by anyone of having made any unseemly remarks about them.

I think the timing of this thing is altogether wrong. I do not think the members of the judiciary are suffering because of their present salaries. Hon. friends to my right have been accusing the government of extravagance. They have been saying that the government is not practising economy at a time when economy is demanded. They should be consistent. How can they justify the things they have said during the budget debate when they are all out to raise the salaries of judges? As the hon. member for Vancouver East has said, there is considerable unrest in this country at the present time. H the matter comes to a vote I shall certainly vote against the proposal to grant these increases.

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PC

Julian Harcourt Ferguson

Progressive Conservative

Mr. FERGUSON:

I have the utmost respect for the judiciary. It has been stated this morning that certain political lawyers have been appointed to the bench. I am sure they will make far better judges than if they had had no training as politicians. The mere fact that a man is a defeated candidate and is appointed to the bench does not detract from his ability.

Personally I feel that this bill should have been brought in after the old age pensions question had been settled. Surely this government must view with alarm the position of many old people who are forced to live on the pension they are receiving with prices as they are to-day. Surely this government must feel that it is far more important to provide for those who are too old to provide for themselves than it is to increase the salaries of judges. Therefore I am in favour of hoisting this bill until such time as we can conscientiously feel that people who must live on old age pensions are properly provided for having regard to the present cost of living. I feel confident that the judges of Canada would view the situation in almost the same light.

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Section agreed to. Section 2 agreed to. On section 3-Persons who may be appointed.


LIB

Walter Edward Harris

Liberal

Mr. HARRIS (Grey-Bruce):

I take it from this section that there is no barrier to a county court judge being appointed to the supreme fMr. J. H. Matthews.]

court. The eligibility seems to be that the person must have practised as a barrister or advocate for ten years.

Mr. ST. LAURENT: That is right.

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LIB

Walter Edward Harris

Liberal

Mr. HARRIS (Grey-Bruce):

I had intended to say a few words on this section, but practically everything that I had to say has been said by hon. members who took advantage of section 1 to discuss the bill as a whole. I should like to refer to the remarks made by the hon. member for Weyburn. He suggested that county and district court judges might be appointed to the supreme court bench if they were qualified and Showed talent in their position. In connection with the other recommendations made by the hon. member, may I say that I agree entirely with all that was said by the hon. member for Stanstead in answer to him.

I should have thought that the members of the C.C.F. group would have suggested that members of the legislatures and of parliament should go to the bench. If I recall the criticism of the judiciary by members of that group, it is that the law has become too rigid, that judges have become too fixed in their attitude toward mankind, that they tend to perpetuate the past rather than move into the future, I suggest that the answer to that criticism is to have on the bench persons who have the outlook of humanity, if you want to put it broadly. I think you are more likely to get such a man from an elected group than from any other section of the community. Without wishing to refer to our own judges in particular, I ask hon. members of the C.C.F. group to consider the late Mr. Justice Holmes of the United States supreme court. I think they will agree that he was the type of judge they would like to have, and I am sure that type of man is more likely to be found among those who are more closely in touch with public affairs than in any other group of lawyers.

So far as I know, no county court judge in Ontario has ever been appointed to the supreme court bench. Masters of the supreme court have been appointed to the supreme court bench, but it seems to be the practice that county court judges be not appointed. Perhaps What I am about to say comes close to infringing upon the duties of the governor in council, but I hope the minister will accept my comments as in no way doing that. I do not cast any reflection upon any supreme court judge, or upon any county court judge for that matter. I have considered the present situation, and I think it is our desire that we should have the best talent on our supreme

Judges Act

court bench. We can draw from practising barristers, or we can draw from the county court bench. I am sure that most hon. members will agree that a county court judge who has shown good judgment and who has had experience in trying cases might conceivably make a better supreme court judge than a barrister who is brought in without any previous experience on the bench. Without arguing that it should be so, I am interested to know why the system has been carried on in the present fashion, because I say without any hesitation that I know county court judges who would make excellent judges of the supreme court bench.

In order to place before the house a few facts I went through the report of the inspector of legal offices in Ontario and, taking the decisions of the court of appeal in Ontario, I find this result. In all the cases which have reached the court of appeal in Ontario in a nine-year period, the decisions of the county court judges have been upheld slightly more frequently than the decisions of the supreme court judges. I do not say that that is an indication that the country court judges are better than the others. I merely place the facts before the committee as a statement of what is happening. In that nine-year period, from 1937 to 1945, there were 1,066 cases in which the court of appeal of Ontario dismissed or allowed an appeal from decision of supreme court judges. I do not want to say anything about the minor number of decisions which were varied or referred back. The result is that the appeal was allowed in thirty-four per cent of the cases. At the same time 902 decisions by county court judges were similarly dealt with by the court of appeal and the appeals were allowed in 33-5 per cent of the cases. So that there was slightly less than one per cent variation. In the nine-year period you would have thought that any real difference between the merits of the two classes would show up.

During four years of the same period in the supreme court of Canada only two cases reached that court from county judges and in both cases the decisions of the county court judges were upheld. At the same time the average of decisions of the supreme court judges of Ontario was running fifty per cent allowed and fifty per cent dismissed. On that basis alone I wonder if we could properly make a distinction between the relative merits of the judges. I know this may sound as if I am reflecting on supreme court judges, but I am not, as I said earlier. I do submit that

county court judges as such because of their appointment should not be considered barred from appointment to the supreme court.

There has been a good deal said this morning and the other day about the intervention of politics bn the bench, originating no doubt from the fact that the appointments are made by a political body. I only add this to what the hon. member for Stanstead has said. If the answer is made that county court judges should not be appointed to the supreme court bench because they might conceivably be considered in politics if at some future time they were appointed to a higher office: we find this situation in Ontario, that we do appoint supreme court judges to the court of appeal; we do appoint masters of the supreme court to the supreme court bench, and a master, as everyone knows, is or should be an expert in procedure and practice although he may have no trial experience of any kind and on that basis might not be as acceptable or efficient on the bench as a county court judge who has had long years of experience as a trial judge. The county court judge, if he is in politics in any way under our present system, becomes involved only in trying a case of a controverted election or the like, which seldom happens; whereas the supreme court judge, as the hon. member for Stanstead has argued this morning, is often appointed to commissions and the like which at least it can be argued have a political tinge. I do not agree with what the hon. member said on that point, but he did make the point. If the hon. member for Stanstead is correct, the county court judge in his tenure of office is more likely to be divorced from political questions than the supreme court judge.

I put these facts before the committee only by way of eliciting an explanation, not as to the discretion of the minister or of the governor in council, but one which will be satisfactory to me as to why we could not appoint to the supreme court bench a highly qualified county court judge if it were felt his efficiency and his merit were such that he could fill that appointment properly.

Mr. ST. LAURENT: There is no legal objection to a gentleman who has occupied a post on the county court bench being appointed to another court. As a matter of practice I understand that in certain of the provinces it has been done. My understanding is that so far with respect to Ontario it has not been felt that it would be proper to do it.

I am very glad to have on the record the remarks made by the hon. gentlemen. These are matters about which those who have taken

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Judges' Act

responsibility for recommendations feel very deeply their responsibility to the public, and everything and anything that can help them in making the kind of recommendations that will redound to the high repute which the courts have enjoyed in this and any other country where they are organized on the British system is always very helpful.

I fully agree with much that the hon. member for Stanstead has said. I think that in the system of society that we have here, which is the outgrowth of the development of political liberty in Britain, nothing has been more beneficial in mundane affairs than the repute of the judges and the respect which the public has had for the administration of justice. The hon. member for Stanstead said that next to the church it was the thing that made for the greatest degree of political stability, and I fully agree with him in that regard. I do not think that there has been anything in the development of British institutions that has contributed more to that form of government of free men, by free men, for free men, than the high repute of those who administer justice. The whole system is founded upon the concept of justice, and unless the people can feel that justice is not merely a theory but a living thing that is contributing to their wellbeing, the system would not endure. It is for that reason it was felt that in our society it was necessary to make provision for an increase in the salaries that are paid.

As I said in introducing the resolution, this scale of salaries is still lower than those which prevail in any of the countries where justice is administered on our system. As pointed out by the hon. member for Stanstead, we have a competitive system of social intercourse which brings to higher levels certain individuals because of certain qualities they possess. Now that is true in the legal profession as it is in other walks of life, and it is felt, and it has always been felt down through the centuries, that it is necessary to get for the bench those who are at the top of the legal profession, In order to do that it is not necessary, and it would not be possible, and I would not recommend, that salaries be fixed to equal the scale of the professional earnings of those who reach the top. But I do feel it is necessary to have that . scale such that you can appoint a man who has reached the top and he can continue to live as he lived before his appointment without having to provide out of his capital what is required for his annual expenditure. It is not possible to ask a man whose net earnings have been substantially more than will be provided by these salaries to accept a situation where he will not be able to continue to

live in practically the same manner as he did before, and as he has accustomed his family to live. It may be that no one should acquire those expensive tastes, but it is only human nature that they do, and we have to take the situation as it in fact exists.

It is seventeen years since the matter was very carefully gone into by a committee of this house and since that theory was put before the committee and served as the foundation for a recommendation. The position taken then, in 1928, was that no one expected that the government of the country would fix salaries to equal the earnings of the leaders in the profession Whom it would be desirable to have take positions on the bench, but that what was desirable and necessary was to provide them with enough to enable them to continue to make the expenditures for themselves and their families that they had been making theretofore. I have had more than one expression of regrets from gentlemen I approached to ask to go on the bench, and they have put it just in that way: "We do not want to be able to get from the salary what we earn, but we do want to be able to get enough to carry on. We are not disposed to change our way of living; we are not disposed to go from the premises we have occupied with our families for a long time, and the upkeep of which is expensive, into more modest surroundings." That is the situation which in fact has to be dealt with.

With respect to the suggestion that the act should be made effective right away, I have been discussing this for a long time with my colleagues, because I had been told early in 1929 that something just about like this was going to be done then. It did not get done then. I had been a member of the committee of the Canadian Bar Association, pressing for this, for a long time, and when I came here immediately gave it attention, but I realized that while there was this freezing order on wages and salaries it would not be the proper time to do it. But there has already been some relaxation, adjustments are being made in a number of places, and it was felt that if this were to take effect on the 1st of January 1947 it would not be at the head of the procession in the readjustments of incomes which are necessary and which are being made and will continue to be made.

For these reasons I cannot acquiesce in the suggestion of two or three hon. members that I withdraw the bill. I feel that I am discharging a responsibility which I have not only to the profession but the country in putting this bill before parliament and asking parliament to adopt it with the provision it will become operative on January 1, 1947.

Succession Duty Act

As to one of the objections raised by the hon. member for Stanstead, it is being provided that the pensions which may be granted by the' governor in council to judges who resign their functions can be granted on the new scale immediately after the bill receives royal assent; so that those elderly gentlemen who naturally have been waiting to see if this was to be done will not have to defer their own decisions until the 1st of January if the bill gets royal assent before the end or at the end of this session.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. FULTON:

I should like to associate myself with remarks made by the hon. member for Grey-Bruce, at least to the extent of supporting the principle that no judge should be appointed to an appellate court unless he has first served as a trial judge. That of course is not my view exclusively; it is held by many lawyers and judges to whom I have spoken. I do not want to discuss the whole matter at length. The minister has said that he is glad to have such remarks on the record, and I feel that it is something which should be on the record, because in my opinion a system of advancement of judges, if we want to call it that, would be something of the kind which normally is open to citizens in other vocations-that is, that a man should not take a higher office until he has had experience in a lower one.

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PC

John Thomas Hackett

Progressive Conservative

Mr. HACKETT:

The function is entirely different.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. FULTON:

The function is entirely different, as the hon. member has just remarked; nevertheless the fact remains that appellate courts hear cases coming from the lower courts, and that is why I suggest that at least some of the judges of the appellate courts should have had experience as trial judges and know the problems and difficulties which are encountered in the same or similar cases in the lower courts.

Mr. ST. LAURENT: Might this clause be allowed to carry, so that we might get down to what the bill is really for? The next section begins to deal with increases in salaries.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. FULTON:

I might put a question, very briefly, to the minister under section 3. Is it the general practice, when appointments come to be made or vacancies exist, that the minister asks for or receives recommendations as to an appointee from the law societies of the various provinces or the law society of the province concerned?

Mr. ST. LAURENT: The minister receives with gratification recommendations from all those who are in a position to make them.

Two or three years ago I answered an inquiry from the law society of my hon. friend's province, telling them that of course we could not relieve ourselves from our responsibility with respect to the recommendations, but we would welcome such representations as they might wish to make and we should be glad to have them give the reasons for the representations so that they could receive careful consideration.

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LIB

William Ross Macdonald (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The CHAIRMAN:

Shall the clause carry?

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CCF

William Irvine

Co-operative Commonwealth Federation (C.C.F.)

Mr. IRVINE:

I should like to ask a question of the minister. I take it that we are still on section 3. What does the minister regard as the outstanding qualifications which a judge should have? Do they justify the limitation of the appointments to barristers? I should like to call to the attention of the minister the statement made by the hon. member for Stanstead, that one of the greatest qualifications of a judge was the knowledge of the human heart. Can barristers be said to have a monopoly of the knowledge of the human heart?

Mr. ST. LAURENT: Since it is one o'clock I shall have to answer the question on another occasion; I could not do it in three seconds.

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CCF

William Scottie Bryce

Co-operative Commonwealth Federation (C.C.F.)

Mr. BRYCE:

Are we to continue with this

measure this afternoon?

Mr. ST. LAURENT: No. I suggest that progress be reported. After royal assent at three o'clock it is proposed that we go on with the budget resolutions. This measure will have to stand until some progress has been made with them.

Section stands.

Progress reported.

At one o'clock the house took recess.

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WAYS AND MEANS


The house in committee of ways and means, Mr. Macdonald (Brantford City) in the chair.


DOMINION SUCCESSION DUTY ACT

July 26, 1946