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Judges of Su
from the respective Bars of those Provinces.
98. The Judges of the Courts of Selection of Quebec shall be selected from the Bar of that Province.
99. The Judges of the Superior Tenure of Courts shall hold office during good perior Courts. behaviour, but shall be removable by the Governor-General on address of the Senate and House of Commons.
100. The salaries, allowances, and Se Jaries: &c., pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in cases where the Judges thereof are for the time being paid by salary, shall be fixed and provided by the Parliament of Canada.
" Julicature."- We have already devoted a chapter to a discussion of our judicial system (u), and it remains now merely to refer to the question of the “ tenure of office” of those judges whose appointment under the 96th section is with the Dominion government. The B. N. A. Act contains no express provision beyond section 99, which applies only to the Superior Court judges, and beyond what may be inferred from the provision in section 100 that the salaries of all these judges are to be.“ fixed and provided ” by the parliament of Canada.
Does the power to appoint carry with it the power to remove? It is submitted that it does, and that, notwith
(u) See chapter XI. and notes to s. 92, 9-s. 14.
standing sub-section 14 of section 92 by which “the administration of justice in the province” is assigned to provincial legislatures, the parliament of Canada alone can legislate (subject, as to Superior Court judges, to section 99) as to the qualifications and nature of tenure (including, of course, provisions as to removal from office) of the judges mentioned in section 96. In Re Squier (v) the validity of a commission of enquiry issued by the Governor-General purporting to be under the Imperial Act (22 Geo. III. c. 75) relating to the removal of colonial officers, was in question. It seems to have been admitted on the argument and held by the court that the legislative assembly of Ontario, had no power to abolish the old Court of Impeachment established before Confederation by the parliament of (old) Canada for trying complaints against County Court judges—C. S. U.C. c. 14. The precise ground is not stated, but as a proceeding under the Consolidated Statute is enumerated as one of the methods of attack then open, the decision could not have been based on the ground of the “repugnancy” of such provincial legislation to Imperial enactment. Such ground would equally affirm the invalidity of the original Act, and the decision therefore must be taken to be that legislation in reference to the removal of those judges mentioned in section 96 must come from the Dominion parliament.
General Court of Appeal, &c.
101. The Parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance, and organization of a general Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the Laws of Canada.
(v) 46 U. C. Q. B. 474.
This section, too, has already been fully discussed. In chapter XI. we have endeavored to make clear that the jurisdiction of any “additional courts” established by the Dominion parliament under this section must be limited to the administration of laws passed by that parliament, or in relation to matters falling within the purview of its powers.
The particular line of division adopted to secure the administration of justice throughout Canada is a very illogical one, so far as relates to provincial courts. While power to constitute courts, with such jurisdiction, civil or criminal, as may be deemed expedient, is with the provincial legislatures, the judges in the most important of them must be appointed by the Dominion government, and the
procedure” in criminal matters in any of them which have jurisdiction over such matters—as well as procedure in all those branches of jurisprudence which are wrapped up in the various sub-sections of section 91 (w)—is matter to be regulated exclusively by the parliament of Canada. As to any additional courts to be established by the Dominion parliament under this section, the position is entirely different. The provinces should, on any logical division, have been given full control of provincial courts. Then if Dominion laws were found to be unsatisfactorily administered in those courts, the reserve power of this section 101 could be invoked. As has been before intimated, a duly constituted court of law, no matter by what authority constituted, must give effect to the law which governs the “legal relations" arising out of the facts in question in any litigation, by whatsoever duly constituted authority those legal relations are determined ; and therefore the appointment of the judges by the Dominion government was in no way necessary for the administration of Dominion law; if appointed by the provincial governments, they would be equally bound by their oaths of office to
(20) See ante, p. 235, et seq.
administer that law when applicable to the facts of the
In any event, this section 101 would sufficiently protect the federal government in the administration of federal law.
Under the authority conferred by this section was established the Supreme Court of Canada as a general court of appeal for the Dominion. What its jurisdiction shall be is of course for the parliament of Canada to determine. In Clarkson v. Ryan (r) it was held that a provincial legislature has no power to affix conditions or limitations upon appeals to the Supreme Court. That is entirely for the federal parliament. VIII.—REVENUES; DEBTS; Assets; Tax
ATION (y). 102. All duties and revenues over Kevenue Fund which the respective Legislatures of Can
ada, Nova Scotia, and New Brunswick before and at the Union had and have power of appropriation, except such portions thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are raised by them in accordance with the special powers conferred on them by this Act, shall form one Consolidated Revenue Fund, to be appropriated for the public service of Canada in the manner and subject to the charges in this
Act provided. Expenses of 103 The Consolidated Revenue Fund collection,&c.
of Canada shall be permanently charged (x) 17 S. C. R. 251.
(y) It is thought advisable to note this group together. See the general discussion in note (i) following section 126. The matter of the other notes sufficiently appears in their italicized head-lines.
with the costs, charges, and expenses incident to the collection, management, and receipt thereof, and the same shall form the first charge thereon, subject to be reviewed and audited in such manner as shall be ordered by the GovernorGeneral in Council, until the Parliament otherwise provides.
104. The annual interest of the public interest of debts of the several Provinces of Canada, public debts, Nova Scotia, and New Brunswick at the Union shall form the second charge on the Consolidated Revenue Fund of Canada.
105. Unless altered by the Parlia- Sulepyn of ment of Canada, the salary of the Governor-General shall be ten thousand pounds stirling money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the third charge thereon.
106. Subject to the several payments Appropriation by this Act charged on the Consolidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the public service.
107. All stocks, cash, banker's bal- Transfer of ances, and securities for money belonging to each Province at the time of the Union, except as in this Act mentioned,