Prop. 8-9 Some Mr. R. British as to Gold Commissioners and measure of control over such action; but should this Act go into operation, no such control could thereafter be exercised here.' "On September 29th, 1877, the Honourable R. Laflamme, then Minister of Justice, called attention to various Acts of British Columbia, relating 'to the Gold Commissioner, and his powers as judge of the Mining Court, and to the danger of allowing legislation which increases, from time to time, the jurisdiction of the Court, the judge of which has not been appointed by the Governor-General.' 'He proceeded to relate the various Acts by which legislation the jurisdiction was gradually accumulated, until, in the opinion of the Minister, the Court had, at length, become, by five successive enactments, a Court within the meaning of the 96th section of the British North America Act. Mining "He thought it was not necessary, in order to bring a Court under the provisions of this section, that it should be called by the particular name of 'Superior,' 'District,' or 'County Court,' and, although he did not recommend the disallowance. of the statute, he recommended its repeal or amendment by the provincial authorities, and expressed this view - It will be readily seen how easy it would be for the local legislature, by gradually extending the jurisdiction of these Mining Courts, and by curtailing the jurisdiction of the County Courts, or Supreme Court, as now established, to bring within their own reach, not only the administration of justice in the province, but also, practically, the appointment of the judges of the Courts in which justice is administered.' "On the 3rd of October, 1877, the same Minister reported against an enactment of the province of Ontario Act Ontario to provide that the stipendiary magistrate Prop. 8-9 of the territorial districts of Muskoka, Parry Sound, and Thunder Bay should act as a Division Court judge, with like jurisdiction and powers as were possessed by County Court judges in Division stipendiary Courts in the counties, as being in conflict with the 96th section of the British North America Act. as to magistrates. Courts "He refrained from recommending disallowance of the Act, as Acts previously passed by the provincial legislature, conferring certain judicial powers in civil matters on stipendiary magistrates, in relation to Division Courts in Ontario, had been left to their Division operation, and those powers had not been substan- in Ontario. tially extended by the Act then under his review, but he pointed out that the same danger which had received his notice, in the case of British Columbia, might ensue from this class of legislation. jurisdiction "The jurisdiction of the Court which he had referred to only reached $100, excepting when the consent of parties was given for the disposal of cases of larger amounts. He took special exception, however, to the provision that all enactments from time to time in force in Ontario, relating to Division Courts in counties, should apply to the Division Courts of these districts, stating that while it might be quite within the legislature of Ontario to Increasing increase the jurisdiction of the Division Courts in of inferior counties, as such Courts are now presided over by judges appointed by the Dominion,' the attempt to exercise that power in relation to Division Courts, presided over by judges appointed by Ontario, would be objectionable, and he intimated that the Act would be disallowed unless amended. The same objection was conveyed in a report of the same Minister in reference to New Brunswick legislation on December 22nd, 1877. Courts. Prop. 8-9 Mr. Sir Alexander "On June 14th, 1879, Chief Justice McDonald, then Minister of Justice, took exception to an Act of Prince Edward Island, which allowed a small fee for costs taxed by the County Court judge, as being a breach of the provisions of the British North America Act in relation to the emoluments of judges. "On January 20th, 1880, the same Minister called attention to an Act of Ontario, in amendment of a similar Act to that relating to the territorial districts of Muskoka, Parry Sound, and Thunder Bay. This Act gave the appointment of the judge to the Lieutenant-Governor, fixed the salary, and enlarged the civil jurisdiction, but was not different in principle from the statute which had been commented on in 1877. This Act was disallowed. "On January 30th, 1882, Sir Alexander CampCampbell. bell, then Minister of Justice, reported that an Act of Ontario, (chapter 5, 1881), consolidating the Superior Courts, and establishing a uniform system of pleading, practice, etc., contained provisions which appeared to be ultra vires, as being in effect The Ontario an assumption of the appointing power by the provincial legislature, and he caused commissions to be issued to the judges, on the reorganization of these Courts, in order to place their authority beyond question. Judicature Act. "In the same report he took exception to a provision to constitute the judges of County Courts official referees and local masters.1 1Sir A. Campbell's words are:-" The undersigned thinks it doubtful whether the provincial legislature can constitutionally in this manner appoint judges, who hold office by commissions from your Excellency, to other offices under the provincial government. The expediency of allowing county judges to act as referees and local "On May 8th, 1883, the same Minister called Prop. 8-9 attention to the legislation of the province of British Columbia, conferring jurisdiction on Gold Commissioners appointed by the Lieutenant-Governor of British Columbia, and the Act was disallowed. "In a report of April 13th, 1887, the undersigned felt himself obliged to state that the provision of a Manitoba statute, to the effect that for certain misconduct the County Court judge should forfeit his office, was ultra vires of the provincial legislature. "The contention is, however, made, in the Order in Council under review, that the Court of Appeal of the province of Quebec has recognized, as consti- Decisions of tutional and intra vires, in two cases, the legislation for the appointment of such district magistrates. the Courts. Corporation Guillaume v. of "One of the supposed cases referred to is that of The Corporation of St. Guillaume v. The Cor- of St. poration of Drummond, 7 R.L. 562. It seems Corporation remarkable to the undersigned that reference should Drummond. have been made to this case for this purpose, especially by the emphatic statement that the judgment of the judge of first instance was unanimously confirmed in the Court of Appeal by Judges Tessier, Monk, Sanborn, and Ramsay. The most careful scrutiny of this case fails to detect anything to bear out the statement that in that judgment the enactment for the appointment of the district magistrates was 'recognized as constitutional and intra vires.' A judgment had been rendered by Mr. Justice Plamondon for $1,880. An appeal was asserted, Masters is questionable, and the same may at some future time require the consideration of Parliament. Should Parliament think proper to legislate upon the subject, it is evident that the provisions last referred to of the Act now under consideration would become inoperative: ' Hodgins' Prov. Legisl., Vol. 1, p. 196. See, however, Proposition 45, and the notes thereto. Prop. 8-9 (1) on the ground that the judge was himself liable Reg. v. Reg. "'. Coote in the Privy Council. to contribute to the defendant corporation towards any amount for which judgment might be given, and that he had been recused; and (2) that the amount claimed was above the jurisdiction of the Court. "The judgment on the appeal was delivered by Sanborn, J., on these two points only, and the question of intra vires, or constitutionality of the legislation, was not raised, considered, or even referred to. "The second case on which reliance is placed is that of Regina v. Horner, in 1876, 2 Cart. 317,1 and the brief judgment delivered throws no light upon the question. The Court (per Ramsay, J.), while admitting that difficulties might exist as to the conflict of the powers as an abstract question,' held the difficulty was practically disposed of by the case of Regina v. Coote, L.R. 4 P.C. 599. The Court (per Ramsay, J.) stated: The case of Coote, decided in the Privy Council, directly recognizes the powers of the local legislatures to create new Courts for the execution of criminal law, as also the power to nominate magistrates to sit in such Courts. We have, therefore, the highest authority for holding that, generally, the appointment of magistrates is within the powers of the local Executives. So much being established, almost all difficulty disappears.' Turning now to the case of Regina v. Coote, which the Quebec Court of Queen's Bench had relied on as solving all difficulties as to the conflict of powers, it is matter of regret to find that it really has no bearing on that subject whatever. The single passage in that judgment which bears. upon any constitutional question is contained in the 12 Steph. Dig 450, (1876). See supra pp. 123, 127-8. |