REPORT OF COMMITTEE ON THE ADMINISTRATION OF JUSTICE.

Questions remitted for reconsideration:-At the last meeting of the Association there were three subjects remitted for further consideration and report, and your Committee now begs to report upon these as follows:

1. Should the present right of appeal to the Privy Council be limited to constitutional cases?

The majority of your Committee are of the opinion that the right of appeal to the Privy Council should be maintained without the suggested limitation to constitutional questions. They consider that the Judicial Committee has rendered long and valuable services to the Canadian public and to the legal profession by furnishing a tribunal composed of judges of greater learning, more varied experience and wider vision than can be hoped for under present conditions in Canada. They see a great advantage resulting from the existence of such a final Court of Appeal in which there is more freedom from political, racial or religious bias and from local prepossessions. They observe with regret that the vicious system of making judicial nominations rather as rewards for political services than for the professional qualifications of candidates shows no signs of disappearing from our customs, and they feel that until this danger is removed it would be inadvisable to abolish or restrict the right of appeal.

Finally, the majority of your Committee are impressed with the objection which has frequently been made that the disappearance of this right would have the effect of severing one of the most important ties by which Canada is united to the Empire.

A minority of your Committee, while conscious of the great services which have been rendered to our jurisprudence by the Privy Council, and without thinking that there is any urgent need for restricting the right of appeal, cannot but think that in view of the ever-increasing autonomy of this Dominion, such an institution must be regarded as transitory rather than permanent, and that while it is normal in the case of a Crown colony, such an institution seems scarcely compatible with the legitimate evolution of a self-governing Dominion.

It appears to them unreasonable that the legislators of Canada should be trusted to make laws without any practical

restrictions on their power of legislation, and that its judges should not be trusted to interpret those laws. Without admitting that impartial decisions cannot be expected from the judges of Canada, or that the system of nominating judges produces this result, they conceive that the proper remedy for these evils is, not to apply for external assistance, but rather to agitate until our governments are impressed with the necessity of making more satisfactory appointments to the Bench. They venture to think that our governments will not feel their full responsibility in this respect until our courts are as supreme in their sphere as our legislatures are in theirs.

Australia has carried the doctrine of autonomy to its legitimate conclusion in obtaining a restriction of the prerogative in regard to appeals to the Privy Council in constitutional cases, and it is noteworthy that the Supreme Court of Australia is regarded as exceptionally strong.

The minority of your Committee would also appeal to the example of Australia as showing that the restriction of this right of appeal cannot be regarded as implying any diminution of the sense of loyalty in a dominion, or as evidence of indifference as to the value of the union.

2. Should the Supreme Court of Canada have its numbers increased with a view to the strengthening of that court on the equity side of our jurisprudence, and should that court be composed of an equal number so as to avoid the occurrence of dismissals by virtue of equal division?

Upon this point your Committee are unanimously of opinion that there is no need of increasing the number of Supreme Court judges for the reasons assigned. For many years the judges in the various courts of Canada have administered both law and equity indiscriminately, and there seems no special need of increasing or strengthening the Supreme Court on the equity side. Nor does it seem necessary to provide for an increase in the number of judges for the purpose of preventing dismissals resulting from an equal division. This can be avoided by the judges adopting the rule that only an unequal number of judges shall hold sittings, and the evil, if it be one, would not be removed by adding to their numbers.

There is, however, in the opinion of the Committee something to be said in favour of giving representation on the Supreme Court to the prairie provinces, as long, at least, as geographical distinctions are recognized. In view of the diversity of laws and practice in the different provinces, it is perhaps

an advantage to have representatives, if not from each province at least from each group of provinces, so as to assist the court in ascertaining the customs and practice of each particular centre of litigation. In that view the middle west, which furnishes a considerable quantity of litigation pending before the Supreme Court, would certainly be entitled to as much representation as provinces which have hitherto secured representation and which admittedly have fewer cases before that Court.

3. Should the rendering of one judgment as the judgment of the court instead of individual judgments be adopted?

On this question the opinion of your Committee is divided. The majority hold the view that it would be dangerous to suppress dissenting opinions altogether as this would tend to give decisions rendered by a bare majority a fictitious appearance of unanimity and strength which really does not belong to them. So far as the majority of your Committee know this has not been the practice in any of the English or American courts. The instance given of the Privy Council rendering a single judgment without any dissenting opinions cannot be regarded as being in point, because the Privy Council is not, strictly speaking, a court of law, but a committee which makes a report to the Crown. In the House of Lords, which deals with appeals from the British Isles, all the opinions of the Law Lords are given in extenso. Possibly a via media might be adopted of having the judgment of the majority delivered by one of the judges, and the opinion of the minority by one of the dissenters. This would certainly be a boon to the profession and would reduce the volume of the reports very considerably. It is submitted, however, that this must be left to the good sense and initiative of the judges themselves, and that the adoption of any hard and fast rule in this regard would be undesirable.

A minority of your Committee, however, believe that a single judgment should be the rule as in the case of the reports of the Judicial Committee of the Privy Council.

Retirement of Judges.-By the Statute of the Dominion 12 & 13 Geo. V. chapter 29, assented to on the 28th of June, 1922, the Judges Act (R.S.C. 1906, chapter 138) is amended by providing that any judge who is found by the Governor in Council upon a report of the Minister of Justice, to have become, by reason of age or infirmity, incapacitated or disabled from the due execution of his office, shall cease to be paid any further salary if the facts respecting the incapacity or disablement are first made the subject of enquiry and report, and the judge is

given reasonable notice of the time and place appointed for the enquiry, and accorded an opportunity by himself or his counsel of being heard and of cross-examination of witnesses and of adducing evidence on his own behalf. Provision is then made for the issuing of a commission of enquiry to one or more judges with the usual power of summoning witnesses, taking evidence under oath, enforcing attendance, etc.

The Statute then enacts that nevertheless His Majesty shall, by letters patent, grant to any judge so found by the Governor in Council to be incapacitated or disabled by reason of age or infirmity, and who resigns his office, the annuity which he might have received if he had resigned at the time when he ceased to be entitled to receive any further salary, and that nothing in this Act contained shall prevent the Governor in Council from granting to any judge so found to be incapacitated or disabled leave of absence for such period as the Governor in Council, in view of all the circumstances of the case, may consider just or appropriate, and if leave of absence be granted, the salary of the judge shall continue to be paid during the period of leave of absence so granted.

Your Committee regret that it should have been thought necessary to enact such a statute, which must, in their view, tend to lower the high office of the judges in the opinion of the profession and of the public. Such an enactment can only be justified if all other means have failed to secure the retirement of incapacitated or disabled judges, and your Committee venture to express a doubt whether the benefits of the remedy introduced by this statute will not be overborne by the disparaging effect of such legislation upon the judicial office.

REPORT OF STANDING COMMITTEE ON COMMERCIAL INSURANCE AND ADMIRALTY

LAW.

On behalf of the above Standing Committee, the undersigned submits the following report of their proceedings:

The various gentlemen named as Members of this Committee were notified on May 26th, 1922, of the fact of their appointment.

It was not possible to arrange a meeting of the Committee earlier than the 15th inst. At this meeting, suggestions as to matters to be dealt with were submitted as follows:

Proposed by Mr. Justice Mellish, that Section 82 of the Exchequer Court Act, Chapter 140, R.S.C., should be amended to provide that on appeal to the Supreme Court of Canada in Admiralty matters, security for costs should be $500 instead of $50 as at present.

The Committee recommend the adoption of this suggestion. Mr. A. P. Luxton, K.C., of Victoria, presented a suggestion that steps be taken towards increasing the scale of fees in Admiralty matters, to make the same correspond to fees in other courts in the various provinces where Admiralty litigation is carried on.

It was considered by the Committee that this suggestion should not be entertained.

Mr. Luxton also presented a suggestion that legislation should be passed with a view to prohibiting the wearing` of a wig by Counsel engaged in Admiralty matters.

It was considered by the Committee that this was a matter of a local nature, and not requiring any action on the part of the Committee.

Mr. Luxton presented a suggestion that Subsection 2 of Section 21 of the Railway Act, Chapter 68, Statutes of Canada (1919), should be amended so that the owner of property being expropriated should elect to have the compensation fixed either as of the date of the deposit of the plans, or on the date of the Company acquiring title.

It was considered by the Committee that this suggestion should not be adopted.