JUDGES AND ROYAL COMMISSIONS.

Some criticism has recently been directed at judges for acting under Royal Commissions issued by Provincial authority, directing inquiry into matters of public concern. In the light of history, it would seem too late to take objection to the right of judges so to act, much less to cast aspersions on them for doing Yet reflections have been made, and it is proposed to consider here whether any legal basis for such criticism exists.

So.

Judges who have so acted, it is asserted, have dis obeyed the law laid down in section 33 of the Judges Act, and are, for such breach, liable to punishment under the Criminal Code. Section 33 provides that:

'No judge of the Supreme Court of Canada or of the Exchequer Court of Canada or of any Superior or County Court in Canada, shall, either directly or indirectly, as director or manager of any corpor lation, company or firm, or in any other manner whatever, for himself or others, engage in any occupation or business other than his judicial duties; but every such judge shall devote himself exclusively to such judicial duties.'

Two questions arise: 1. What does the section. mean? Does it so affect the Crown in the right of a province as to interfere with the appointment by the Province of a provincial judge as a Royal Commissioner? 2. Is the section within the legislative competence of the Dominion Parliament so far as it relates to judges of provincial Courts? or does it deal with a matter within the jurisdiction of the provinces?

The oft repeated rule of Lord Coke in Heydon's case lays it down that to arrive at the real meaning of a statute it is necessary to consider: 1. What was the law before the Act was passed? 2. What was the mischief or defect for which the law had not provided? 3. What remedy has Parliament appointed?

1R. S. C. 1906, c. 138.

23 Rep. 7 b.

4. The reason of the remedy. The rule has been applied in many modern cases.

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In the Solio case Lord Halsbury said:

"We have therefore to consider not merely the words of the Act of Parliament, but the intent of the Legislature, to be collected from the cause and necessity of the Act being made, from a comparison of its several parts and from foreign,-meaning extraneous, -circumstances, so far as they can justly be considered to throw light on the subject."

What was the mischief for which the law respecting judges had previously made no provision? Certain judges had allowed their names to be placed on the directorates of corporations, such as insurance, loan or trust companies. This, it was supposed, imparted confidence, in the public estimation, to such companies. Complaint was made that companies and corporations having judges on their directorates had an unfair advantage over companies not so fortunate. Certain judges were also alleged to have sometimes engaged for profit in business matters. Such conduct was open to serious objection and the section was passed to provide a remedy.

The language of the section itself clearly shows the purpose of prohibiting judges from engaging in business. or professional work either directly or as directors or managers of companies or firms.

But it also says:

'No judge

shall

in any manner whatever

engage in any occupation or business other than his judicial duties: but every such judge shall devote himself exclusively to such judicial duties.'

Does this general language widen the scope of the section? or does it merely emphasize the prohibition against conducting a business while occupying a judicial position? Does it prohibit a judge from acting as a Royal Commissioner?

In support of the assertion that this language is to be given the widest meaning, it is said that the last

See Maxwell on Statutes, 5th ed. pp. 33-35.

[1898] A. C. 571 at p. 575.

clause of the section can be divorced from its context and must be given a literal interpretation. He' shall devote himself exclusively to such judicial duties.'

If that is correct, a judge is precluded from investing any private means or realizing on his investments -from buying or selling a house or other property. To write a book on some subject with which he is especially familiar, to become churchwarden, or elder, or chairman or director of a charitable society would be an offence against the Act. He must not waste his time on his family instructing, entertaining or advising them. He can give no time to recruiting or managing a patriotic fund or lecturing to students or attending synods, presbyteries or conferences. Nor can he act as administrator of Canada or of a province in the absence of the Governor-General or LieutenantGovernor. He is precluded from taking time for social duties nor can he pay any attention to his personal affairs nor take any interest in public or private matters. If he is to devote himself exclusively to his judicial duties, he must devote himself to them exclusively in vacation just as much as in term.

The mere statement of the effect of a literal interpretation of the general words of the section is enough to show that Parliament had no intention that they should be construed literally and apart from the rest of the section. They are therefore intended merely to emphasize the preceding and more specific language of the section, and must be construed along with it.

Similarly, in the construction of the section the meaning of the general words "occupation or business" must be limited by the more specific ones with which they are associated in the section. The prohibited occupation or business is something ejusdem generis with those matters which are specifically mentioned in the section as subjects of prohibition."

The intention of the section then is that judges should not act as managers, directors or principals in

B

See Maxwell on Statutes, 5th ed. 530-531, 533-534.

carrying on business and thereby be diverted from devotion to their judicial duties.

What are judicial duties"? Are they confined to strictly judicial duties, that is, the determination of matters of civil and criminal litigation?"

The legislatures of the Provinces have for many years been in the habit of enacting statutes imposing upon the judges the performance of duties unconnected with the administration of justice. They thereby have to act as nominators of arbitrators in certain cases; as revising barristers for the purpose of completing voters' lists; as arbiters, in lieu of the legislature, on whether a member of the Assembly has been properly elected; as administrative officers to issue warrants for possession of land for railways or the Crown, and in other capacities.' These Acts have never been questioned by the Dominion authorities.

That such strictly judicial duties are all that can be assigned to the judiciary by the Constitution of the United States was the resolution of the Circuit Courts of New York (1791), and the opinion of the Circuit Court of Pennsylvania and of North Carolina, quoted in Hayburn's Case (1792), 2 Dallas 409. See also 126 Mass. 562.

'The following are a few of the numerous cases in which the Manitoba Legislature has passed enactments of the above nature:

The Manitoba Companies Act, R. S. M. 1913, c. 35, s. 76; investigating the affairs and management of a company.

Manitoba Controverted Elections Act, R. S. M. 1913, c. 39; trial of preliminary objections, trial of election petitions, making report, &c.

Election Act, R. S. M. 1913, c. 59; appointment of County Court judges as revising officers to revise and confirm lists of voters, striking off and adding names of voters, certifying to lists, &c., sections 92, 126-131.

Municipal Act, R. S. M. 1913, c. 133, provisions dealing with arbitration (secs. 706, 709, 732-734, &c.), expropriation (secs. 687, 688, 716, 719, 726); investigation of affairs of a municipality (secs. 86-89).

Manitoba Railway Act, R. S. M. 1913, c. 168, secs. 24-25; issuing warrants of possession.

Public Schools Act, R. S. M. 1913, c. 165, ss. 83-89, County Court judges altering or determining boundaries of school districts.

Act amending the Winnipeg Charter, 3 & 4 Edw. VII., c. 64, s. 15: appeal to a judge of the King's Bench from determination of City Council as to persons injuriously affected where streets are diverted or closed for railway purposes.

Expropriation Act, R. S. M. 1913, c. 69, secs. 43-48. Appeal to a judge from award of arbitrators. Judge may himself make the award (sec. 47).

The other provinces have many similar provisions.

The Parliament of Canada has also imposed similar duties under the Railway Act, Expropriation Act, Company Act, Controverted Elections Act, Election Act and others. And these duties were incumbent on the judges when section 33 of the Judges Act was passed.

Unless the term " judicial duties" has a wide significance, the section would prohibit judges from performing the duties imposed by those statutes. It would likewise prohibit them from advising Parliament or a legislature on whether it has passed void or ineffective legislation. The Dominion legislation providing for such advice by the Supreme Court of Canada was impugned as unconstitutional on the ground that

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"The answers requested are of an entirely advisory and nonjudicial character and may be a source of embarrassment to the administration of justice in the proper channels," and that the terms were so wide as to admit of a gross interference with the judicial character of the Court and . . . that the duty of answering questions is incompatible with the maintenance

of such judicial character." "

In the Supreme Court it was said:

"The answers do not bind the Governor-in-Council. They are advisory only. They do not bind even this Court . . . if at any time it is called upon in its strictly judicial capacity to decide the very question asked."

The Dominion Parliament has provided by statute, now sec. 60 of the Supreme Court Act, R. S. C. 1906, c. 139, for reference by the Governor-in-Council to the Supreme Court, of important questions of law or fact touching, among other matters, the interpretation of the British North America Acts, the constitutionality or interpretation of any Dominion or Provincial legislation, and the powers of the Parliament of Canada or of the legislatures of the Provinces, and imposing upon the Court the duty of hearing and considering the reference and answering each question referred.

The Provinces have similar enactments for references to the Provincial Courts, the Manitoba Act being now found in R. S. M. 1913, c. 38, and the Ontario enactment in R. S. O. 1914, c. 85.

There is no Dominion statute authorizing provincial Courts to entertain references of constitutional questions by the Lieutenant-Governor-in-Council.

Nesbitt, K.C., arguendo, In Re References by the Governor-inCouncil (1910), 43 S. C. R. at p. 543; and Lord Loreburn in the Privy Council in the same matter, sub. nom. A.-G. of Ontario v. A.-G. of Canada, [1912] A. C. 571, 582; 81 L. J. P. C. 210, 212, at p. 584, respectively.