In Re The Chief Justice of Alberta

In Re The Chief Justice of Alberta
Collection
Supreme Court Judgments
Date
1922-05-02
Report
(1922) 64 SCR 135
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe; Mignault, Pierre-Basile
On appeal from
Alberta
Subjects
Statutes
Decision Content
Supreme Court of Canada
In Re The Chief Justice of Alberta, (1922) 64 SCR 135
Date: 1922-05-02
In The Matter of Certain Questions Submitted by his Excellency The Governor General for The Hearing and Consideration of The Supreme Court of Canada, in Regard to The Position of Chief Justice of Alberta and The effect of Certain Letters Patent Nominating The Honourable Horace Harvey, Chief Justice of The Trial Division of The Supreme Court of Alberta, and The Honourable David Lynch Scott, Chief Justice And President of The Appellate Division of The Supreme Court of Alberta.
1922: March 14, 15; 1922: May 2.
Present: Sir Louis Davies C. J., and Idington, Duff, Anglin, Brodeur and Mignault JJ.
REFERENCE BY THE GOVERNOR GENERAL IN COUNCIL.
Statutes—"Judicature Act" and its amendments—Construction—Letters Patent as to Chief Justiceship—Validity—B. N. A. Act, (1867), ss. 92, 96, 99, 100, 101—"The Alberta Act," (D.) 1905, 4 & 5 Edw. VII, c. 3—"The Supreme Court Act," (Alta.) 1907, 7 Edw. VII., c. 3, ss. 5, 30—"The Judicature Act," (Alta.) 1919, 9 Geo. V., c. 3, ss. 1, 2, 3, 5, 6, 7, 9, 10, 28, 59.—(Alta.) 1913, 4 Geo. V., c. 9, s. 38; 4 Geo. V., 2nd sess., c. 2, s. 11—(Alta.) 1920, 10 Geo. V., c. 3, s. 2; c. 4, s. 43.
The Appellate Division of the Supreme Court of Alberta, as established by the "Judicature Act" of 1919, was not abolished as the result of the new section 6 of the Act enacted in 1920, which section did not create a new judicial office of Chief Justice of Alberta. Consequently, in the opinion of this court, the Honourable Horace Harvey, who had been appointed Chief Justice of the Supreme Court of Alberta in 1910, is still "by law entitled to exercise and perform the jurisdiction, office and functions of the Chief Justice and President of the Appellate Division of the Supreme Court of Alberta" instead of the Honourable D. L. Scott who had been appointed as such subsequently to the said amendment of 1920. Davies C. J. and Idington J. contra. REFERENCE by the Governor General in Council of questions respecting the validity of letters patent appointing a Chief Justice of the Appellate Division of the Supreme Court of Alberta and a Chief Justice of the Trial Division of that court, for hearing and consideration pursuant to section 60 of the "Supreme Court Act."
The questions so submitted are as follows:—
A Report of the Committee of the Privy Council, approved by His Excellency the Governor General on the 15th February, 1922.
The Committee of the Privy Council have had before them a report, dated 6th February, 1922, from the Minister of Justice, submitting herewith certified copy of the letters patent of 12th October, 1910, whereby the Honourable Horace Harvey was, as therein expressed, constituted and appointed to be The Chief Justice of the Supreme Court of Alberta, with the style or title of The Chief Justice of Alberta; also certified copy of the letters patent of 15th September, 1921, whereby the said Horace Harvey was, as therein expressed, constituted and appointed to be The Chief Justice of the Trial Division of the Supreme Court of Alberta, and ex-officio a judge of the Appellate Division of the said court; also certified copy of letters patent of 15th September, 1921, whereby the Honourable David Lynch Scott was, as therein expressed, constituted and appointed to be the Chief Justice and President of the Appellate Division of the Supreme Court of Alberta as constituted under the "Judicature Act" of Alberta, chap. 3, 9 George V., as amended, and to be styled the Chief Justice of Alberta, and to be ex-officio a judge of the trial division of the said court. The following questions have arisen upon which, in the opinion of the Minister, it is advisable that Your Excellency in Council should be advised by the Supreme Court of Canada, viz.:
1. Are the aforesaid letters patent of 15th September, 1921, nominating the said David Lynch Scott, effective to constitute and appoint him to be the Chief Justice and President of the Appellate Division of the Supreme Court of Alberta as constituted under the "Judicature Act" of Alberta, chap. 3, 9 George V., as amended, and to be styled the Chief Justice of Alberta, and to be ex-officio a judge of the Trial Division of the said court?
2. If the last mentioned letters patent be not effective for all the purposes therein expressed, in what particular or particulars, or to what extent, are they ineffective?
3. Are the said letters patent of 15th September, 1921, nominating the said Horace Harvey, effective to constitute and appoint him to be the Chief Justice of the Trial Division of the Supreme Court of Alberta, and ex-officio a judge of the Appellate Division of the said court?
4. If the last mentioned letters patent be not effective for all the purposes therein expressed, in what particular or particulars, or to what extent, are they ineffective?
5. Is the said Horace Harvey by virtue of the aforesaid letters patent of 12th October, 1910, or otherwise, constituted and appointed to be, or does he by law hold the said office of, or is he by law entitled to exercise and perform the jurisdiction, office and functions of the Chief Justice and President of the Appellate Division of the Supreme Court of Alberta, as constituted under the "Judicature Act" of Alberta, Chapter 3, 9 George V., as amended, and what judicial office or offices does he hold other than as provided by his said letters patent of 15th September, 1921?
The Minister therefore, recommends that the aforesaid questions be referred by Your Excellency in Council to the Supreme Court of Canada for hearing and consideration pursuant to the authority of Section 60 of the "Supreme Court Act."
The Committee concur in the foregoing recommendation and submit the same for approval.
(Signed) G. G. KEZAR,
Asst. Clerk of the Privy Council.
The answers of the Supreme Court of Canada to these questions are printed at the end of this report.
E. L. Newcombe K.C. for the Attorney-General of Canada.
Eug. Lafleur K.C. for the Honourable Horace Harvey.
The Chief Justice.—The questions submitted to us are five in number and ask us to advise whether, in our opinion, the letters patent issued to the Honourable David Lynch Scott of 15th September, 1921, as the Chief Justice and President of the Appellate Division of the Supreme Court of Alberta as constituted under the "Judicature Act" of Alberta, chapter 3, 9 Geo. V, as amended, are effective to so constitute him Chief Justice and President, and whether the letters patent of same date appointing the Honourable Horace Harvey Chief Justice of the Trial Division of said court are effective so as to constitute and appoint him as such Chief Justice. From the copy of the report of the Committee of the Privy Council, approved by His Excellency the Governor General, submitted to us, it appears that the Honourable Horace Harvey was by letters patent of the 12th October, 1910, appointed Chief Justice of the Supreme Court of Alberta with the style and title as such Chief Justice and by letters patent of 15th September, 1921, the said Horace Harvey was constutited and appointed to be the Chief Justice of the Trial Division of such Supreme Court and ex-officio a judge of the Appellate Division of said court, whereas by letters patent of the same date the Honourable David Lynch Scott was appointed Chief Justice and President of the Appellate Division as constituted under the said "Judicature Act" as amended and to be styled the Chief Justice of Alberta and to be ex-officio a judge of the trial division.
As the Honourable Horace Harvey had never resigned his office as Chief Justice of Alberta to which he had been appointed in 1910 the submission to us was that by virtue of the amendments made to the Supreme Court Act of the province from time to time his commission as Chief Justice of the old appellate division dated in 1907 had practically come to an end by the creation of a new appellate division with new judicial officials.
The question immediately arose not whether he could be re-appointed as Chief Justice of the new Appellate Division for that, of course, no one questions, but whether he must necessarily receive a new commission appointing him as such Chief Justice or whether His Excellency's power on that regard was untrammelled and he could appoint any other eligible person from the bench or bar. To determine the question we had, of course, to consider all the statutes of Alberta bearing upon the creation and constitution of the Supreme Court of Alberta and its branches and divisions.
The Act of 9 Geo. V, chap. 3, called the "Judicature Act, 1919," came into force by proclamation on the 15th day of September, 1920, on which date the letters patent or commissions in question were issued and in my judgment it is upon the proper construction of the several sections of this Act as amended by the statute of 1920, passed before the Act of 1919 was brought into force, that the question submitted to us must be answered.
I may premise that the difficulties of reaching a firm and clear conclusion upon these questions are very great owing to the slipshod and inartistic manner in which the amendments to the Act of 1919 were framed and passed. However inartistically and loosely framed these amendments may be, there is no doubt in my mind that they indicate a clear and radical change in the intention of the legislature with respect to the Appellate Division in several important respects from the intention apparent from the sections as passed in 1919. First it was not to be a "continuance" of the then existing Appellate Division. Every word in the section of the Act as passed in 1919 and being amended indicating that, was struck out and secondly it was not necessarily to be presided over by the then Chief Justice of Alberta but by any eligible person of the bench or bar who his Excellency might appoint.
The 6th section of the Act of 1919 called "The Judicature Act of 1919" as originally passed read as follows: The Appellate Division shall continue to be presided over by the Chief Justice of the Court who shall continue to be styled as the Chief Justice of Alberta and shall consist of the said Chief Justice and four others of the Court to be assigned to it by His Excellency the Governor General in Council and to be called Justices of Appeal and three judges shall constitute a quorum.
The result of the amendment made in section 6 by the Act of 1920 made the section to read as follows:—
The Appellate Division shall be presided over by a Chief Justice, who shall be Chief Justice of the Court and who shall be styled the Chief Justice of Alberta and shall consist of the said Chief Justice and four others of the Court to be assigned to it by His Excellency the Governor General in Council and to be called Justices of Appeal, and three judges shall constitute a quorum for hearing of appeals from any district court, but the Appellate Division when hearing such appeals may be composed of five judges. The Appellate Division shall be composed of five judges when hearing appeals from the trial division of the Supreme Court of Alberta, and in no case shall an appeal be heard by the Appellate Division of the Supreme Court of Alberta when composed of four or an even number of judges.
And on the day when the Act of 1919 was proclaimed as coming into force the 6th section of the Act read as I have above set out.
The result of that amendment was that instead of the old Appellate Division being continued and presided over by the then Chief Justice of Alberta as was expressly provided for in the Act of 1919 as originally passed, an Appellate Division of the Supreme Court was created which was to be presided over by a Chief Justice to be appointed by His Excellency the Governor General and to consist of that Chief Justice so appointed and four other judges of the court to be assigned to it by His Excellency the Governor General,
The Act in other words before being amended provided for the continuance of the then existing Appellate Division and that the then Chief Justice should continue to be its presiding officer while the amendment deliberately struck out the words providing for the continuance of the Appellate Division and of the continuance in office as its Chief Justice of the then existing Chief Justice and created an Appellate Division with a Chief Justice to be appointed by the Governor General who might be chosen and taken from those eligible either from the existing bench or bar. By thus expressly striking out the words that the Appellate Division should be "continued" and the further words providing that the existing Chief Justice should be the Chief Justice of the reconstituted Appellate Division leaving the appointment of the new Chief Justice untrammelled with His Excellency, it seems to me that the intention of the legislature was clearly not to continue the old Appellate Division but to so construct it as to create a new Appellate Division leaving the presiding officer to be any one eligible chosen by the Governor General. Further the amendment provided for an appeal to the Appellate Division from the newly constituted Trial Division and that when hearing such appeals the Appellate Division should be composed of five judges. The new and additional jurisdiction thus given to the reconstructed Appellate Division, the elimination from the section being amended of all words making the new Appellate Division a continuance of the old division and also of the words making the then Chief Justice of the court the Chief Justice of the new Appellate Division thus leaving the appointment of the new Chief Justice in His Excellency's hands untrammelled and the declaration that the Chief Justice to be appointed and four other judges of the court to be assigned to it by His Excellency the Governor General and to be called Justices of Appeals should constitute the Appellate Division, thus abolishing the old plan of the judges in a body selecting yearly these four judges combine to satisfy me that the Appellate Division so established was a new division with new judicial offices and some additional functions. It is strongly argued that such a construction is at variance with sections 3 and 5 which read as follows:—
3.—There shall continue to be in and for the province a superior court of civil and criminal jurisdiction known as "The Supreme Court of Alberta.
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5.—The Court shall continue to consist of two branches or divisions which shall be designated respectively "The Appellate Division of the Supreme Court of Alberta," and "The Trial Division of the Supreme Court of Alberta."
I respectfully submit there is no real or necessary inconsistency between these two sections and the amended section 6. Indeed it may be said they rather support the argument as to the intention of the legislature not to leave it open to the slightest doubt that the "Supreme Court of Alberta" was continued but that it should thereafter consist of two branches or divisions respectively designated as the Appellate Division and the Trial Division, and with the respective jurisdictions and appointees assigned to each, and emphasizing such intention of creating a new division by striking out the word "continue" in two places of the section and by further expressly striking out the words of the section amended which provided for the former Chief Justice continuing as President of the Appellate Division,
Having reached this conclusion I would answer the first question and the third question in the affirmative and question 5 in the negative. Questions 2 and 4 do not require any answer in view of my answers to questions 1, 3 and 5. Idington J.—The Province of Alberta was established by 4 and 5 Ed. VII., ch. 3, assented to 20th July, 1905, and known as "The Alberta Act," which came into force on the 1st day of September, 1905.
Prior thereto it had formed part of the North West Territories and fell within the jurisdiction of the Supreme Court of the said Territories.
The Legislature of Alberta was, by said Act, given power for all purposes affecting or extending said province to abolish said court. That power does not seem to have been exercised until the Supreme Court was constituted by the legislature of that province acting within its powers under said "Alberta Act," and the "British North America Act," section 92, item 14 thereof, by the enactment of 7 Edw. VII., to be cited as "The Supreme Court Act."
Section 5 of said Act declared that the said court
shall consist of a Chief Justice who shall be styled the Chief Justice of Alberta and four puisne Judges who shall be called the justices of the court.
The power of appointment of said Chief Justice and puisne judges rested, as it always has done in like cases, under sec. 96 of said "British North America Act," with the Governor-General, and appointments were duly made pursuant thereto of the Chief Justice and puisne judges as specified by the said "Supreme Court Act."
The appellate work of the court was referred to as en banc according to ancient form of speech, and it would seem to have been left to the judges to arrange amongst themselves who should sit en banc and who attend to nisi prius work, observing, however, the term times for en banc sittings fixed in regard to time and place by the Lieutenant Governor in Council, as required by section 30 of the said "Supreme Court Act." That condition of things (save as to an amendment in 1908 increasing the number of puisne judges to five instead of four) existed when, on the resignation of the then Chief Justice, the late Honourable A. L. Sifton, the then Honourable Horace Harvey, a puisne judge of said court, was appointed to succeed him in 1910 as Chief Justice.
In 1913 tentative amendments were made and part thereof repealed and parts left to be brought into force by proclamation and the net result was that the power was given the Lieutenant Governor in Council at the second session of 1913 to proclaim an increase in the number of puisne judges from five to six, seven or eight, and, in January 1914, by proclamation the desired increase to eight was brought into effect.
In March following, another proclamation brought into effect subsection 2 of sec. 38 of ch. 9 of the Statutes of Alberta, 1913 (first session) being an amendment to sec. 30 of the "Supreme Court Act."
That amendment was as follows:
(2) by repealing sec. 30 and substituting therefor the following: 30. The court en banc shall be known as the Appellate Division of the Supreme Court and shall sit at such times and places as the judges of the court shall determine and three judges shall constitute a quorum.
(2) The judges of the Supreme Court shall, during the month of December, and at such other times as may be convenient, select four of their number to constitute the Appellate Division for the next ensuing calendar year, but every other judge of the said court shall be ex officio a member of the Appellate Division.
(3) The terms "court en banc" or "court sitting en banc," and "Appellate Division" wherever used in this or any other Act or in any rules made thereunder, shall be deemed to be interchangeable and to have the same meaning.
The enabling the judges to fix their own term times, instead of being dependent as previously on the directions of the Lieutenant Governor in Council, and to distribute their work for the coming year, one can easily understand, but the mere changing of the name of the division would seem absolutely unimportant unless to keep up with the fashions of modern times.
But for the stress laid upon it by counsel in argument herein I should not have thought it worth mentioning.
If memory serves me correctly, he was under the impression that the rest of the court was at the same time designated the "Trial Division" which was not the case until the Act of 1919, presently to be referred to.
No change in the jurisdiction nor change in the organization of the court seems to have been pointed to as in contemplation at that stage in the history of the legislation we are concerned with.
The word "court'' used in that connection is, by the interpretation clause of the Act the "Supreme Court."
Such being the condition of things there was enacted in 1919 an Act styled, by sec. 1 thereof, "The Judicature Act" which in its growth gives rise to our present troubles.
It does not profess to be a consolidation of Acts relative to the Supreme Court, nor does it begin by recognizing the existence of that court but, on the contrary, after giving the name of the Act as just stated, and in sec. 2 an interpretation clause, by sec. 3 enacts as follows:
There shall continue to be in and for the province a superior court of civil and criminal jurisdiction known as "The Supreme Court of Alberta."
It is to be observed that this enactment is under the caption of "Constitution of court" and clearly refrains from continuing the Supreme Court then existent, and instead of doing so declares there shall continue to be a Supreme Court of civil and criminal jurisdiction. That circumstance, in connection with much else to be presently referred to, suggests a clear intention not to continue the then existing court.
It is the intrepretation and construction of this "Judicature Act," and amendments thereto, before it was brought into effect by proclamation as provided by the Act itself, as to which we are now interrogated.
The questions raised thereby are whether or not the legislature had created a new court or courts, to which the Dominion Government was entitled to appoint judges, or created new judicial offices which the said Government was entitled to fill.
The 6th section of the "Judicature Act" above referred to as originally enacted, reads as follows:
6. The Appellate Division shall continue to be presided over by the Chief Justice of the Court, who shall continue to be styled the Chief Justice of Alberta, and shall consist of the said Chief Justice and four other judges of the court to be assigned to it by His Excellency the Governor in Council and to be called Justices of Appeal and three judges shall constitute a quorum.
That, which clearly contemplated the continuation of the then Chief Justice as such and his filling the new office, was amended before the proclamation was issued bringing the said "Judicature Act" into effect, by ch. 3, sec. 2, of the Statutes of Alberta, 1920, as follows:
Sec. 6 is amended as follows:
(a) by striking out the words "continue to" where the same occur in Unes 1, 2 and 3 thereof, and by striking out the expression "of the court" where the same occurs in line two thereof; and by striking out the first 'the" in the second line thereof, and substituting in lieu thereof the article "a."
(b) by striking out the words "three judges shall constitute a quorum" where the same occur in the seventh line thereof, and substituting the following in lieu thereof:— Three judges shall constitute a quorum for the hearing of appeals from any district court, but the Appellate Division, when hearing such appeals, may be composed of five judges. The Appellate Division shall be composed of five judges when hearing appeals from the Trial Division of the Supreme Court of Alberta and in no case shall an appeal be heard by the Appellate Division of the Supreme Court of Alberta when composed of four or an even number of judges.
That in turn was amended the same year, 1920, before the proclamation bringing the said "Judicature Act" into effect was issued, as follows:—
(1) By adding after the article "a" in the 6th line of subsection (a) of section 2, the following: "and by adding thereto after the words ''Chief Justice" in the second line thereof, the expression "who shall be Chief Justices of the Court and."
Thus the said section was made to read at the date of said proclamation as follows:
The Appellate Division shall be presided over by a Chief Justice, who shall be Chief Justice of the court and who shall be styled the Chief Justice of Alberta, and shall consist of the said Chief Justice and four other judges of the court to be assigned to it by His Excellency the Governor General in Council and to be called Justices of Appeal, and three judges shall constitute a quorum for the hearing of appeals from any district court, but the Appellate Division, when hearing such appeals, may be composed of five judges. The Appellate Division shall be composed of five judges when hearing appeals from the Trial Division of the Supreme Court of Alberta, and in no case shall an appeal be heard by the Appellate Division of the Supreme Court of Alberta when composed of four or an even number of judges.
The said "Judicature Act" thus, and otherwise, amended was duly declared by proclamation, on the 15th of August, 1921, to come into force and effect on, from and after the 15th of September, 1921.
The other amendments, though substantial, have no important bearing on what we are concerned with herein.
The 59th section of the "Judicature Act," enacted as follows:
59. The "Judicature Ordinance," being ch. 21 of the Consolidated Ordinances, 1898, and the "Supreme Court Act," being ch. 3 of the Acts of 1907, and all amendments of the said Ordinance and Act, are hereby repealed. I submit that by said repealing section of the said Act, all the legislation effective prior to the 15th September, relevant to the Supreme Court of Alberta, was rendered nul, and in effect the said court was abolished as the legislature had power to do if it saw fit.
The only use such legislation thus drastically repealed could thereafter serve was as a possible historical means of helping to interpret the actual meaning of the "Judicature Act," so brought into effect.
The clear meaning of the language used in said section 6 of the "Judicature Act," as finally amended, as I read it, was to constitute the Appellate Division of the Supreme Court of Alberta a new court of appeal requiring the appointment of a Chief Justice thereof and that when he was appointed he would be styled the Chief Justice of Alberta.
The party chosen for such position might be he who had been under the "Supreme Court Act" styled Chief Justice of Alberta, or any other person qualified by law to accept such a position. On such appointment the party so appointed would thereby become but not otherwise entitled to be styled such Chief Justice.
It seems to me in face of the several legislative attempts to make, by the amendment above quoted clear the purpose of the legislature, idle to contend that such was not the intention of the legislature, whatever may be urged as to the exact extent of the effect of the repealing section 59, which I quote above.
The Dominion Government evidently acted upon one or other of these interpretations, and proceeded upon the assumption that the new Court of Appeal and the new Trial Division, each required the appointment of a Chief Justice and as to the Court of Appeal, new puisne judges, and appointed accordingly Mr. Justice Scott to be Chief Justice of the Appellate Division and Chief Justice Harvey to be Chief Justice of the Trial Division, and reappointed some of those previously named to serve as puisne judges of the Trial Division.
It is stated that each accepted the respective position thus assigned to him, except the Honourable Mr. Justice Harvey who has declined so far as to refrain from taking the required oath of office, yet has continued to act as a judge.
His status on which he relies for his present contention was expressed thus by sec. 5 of the "Supreme Court Act."
The court shall consist of a Chief Justice who shall be styled "The Chief Justice of Alberta," etc.
The oath of office prescribed by sec. 7 of said Act which he presumably took, reads as follows:
I, * * * solemnly and sincerely promise and swear that I will duly and faithfully, and to the best of my skill and knowledge, exercise the powers and trusts reposed in me as Chief Justice (or one of the puisne judges) of the Supreme Court. So help me God.
That oath, it is to be observed, makes no mention of the style now so much relied upon and, I respectfully submit, having been swept away by the repealing section above quoted before the present divisional courts could come into existence, is a rather slender thread to rely upon.
Five months later we are asked the questions I will presently refer to.
Counsel for Chief Justice Harvey in his factum remarks in dealing with the changes of sec. 6, upon the want of modification of sections 3, 4, 5, 7 and 9, of the statute of 1919. Sec. 3 I have already dealt with by pointing out that the legislature seems to have purposely abstained from continuing the then existing Supreme Court and, I may add, did so in light of the very different mode of treatment given by prior legislation relative to the Supreme Court of the North West Territories, when superseded by the creation of the Supreme Court of Alberta.
For many reasons apart from the situation we are confronted with it seems to me that example demanded some provisions which have not been made.
Section 4 is simply another illustration of same spirit. Both show a determination to ignore the possibly continued existence of the old Supreme Court of Alberta, and detract from the force sought in such suggestion.
Section 5 continues two branches or divisions of the court constituting one the Appellate Division and the other the Trial Division.
As a matter of fact, there always existed two classes of duties to be performed by the judges of the Supreme Court, but not until this Act of 1919 was there any such description given legislatively of a Trial Division.
It is brought into existence as a distinct entity by that Act, and the word "continue" is simply one of the many absurdities to be found in this legislation.
There was nothing in fact continued, but an existent duty was given over to a new court, called, in section 7, for the first time "Trial Division."
I fail to see how that helps in any way unless to uphold the action of the Dominion Government of which counsel complains.
Section 9, when read in light of the amendments made to sec. 6 before it was brought into force and the plain language thereof especially when we consider sec. 59 had obliterated all styles resting upon prior legislation, clearly is consistent also with said action. It is contended, however, that said section 6 as it stands amended, when brought into effect, constituted him who had been heretofore styled "Chief Justice of Alberta, "the actual Chief Justice of the new Appellate Division, and hence to continue to be styled the "Chief Justice of Alberta."
In other words, despite the several amendments to the contrary so clearly designed to remove any possibility of such being held to have been the intention of the legislature, we are asked to Say that such amendments must be treated as null. One of the alleged reasons for such contention is that he had been theretofore styled the Chief Justice of Alberta.
He had been so styled, but only by virtue of the "Supreme Court Act" so directing; but that Act and all else bearing upon such a question was repealed the moment that the "Judicature Act" came into force on the 15th September, 1921.
From the earliest hour of that date, according to Alberta time, he ceased to be entitled any longer to be so styled.
The Act must be read as of the date when it came into force unless there is in it some clear intention to the contrary, which is not the case.
Again it is submitted by counsel for the Minister of Justice and I think quite correctly, that any attempt by the legislature to dictate to His Excellency who should be appointed to hold the new judicial office, would have been ultra vires.
Indeed I should not be surprised to learn that the discovery thereof was the reason for the numerous changes made in said section 6, for as it stood originally it was clearly open to that objection. And as to the question of styling the head of the new court, or if you will, him called to fill the new judicial office created, the Chief Justice of the province, that is entirely within the power of the legislature.
I was at first blush disposed to look upon that as emanating from the Royal Prerogative exercised on behalf of the Dominion, but on considering the matter fully I find nothing to found such a pretension upon, for section 96 of the B.N.A. Act limits the power of His Excellency the Governor General to merely nominating him who is to fill the office as created by the legislature.
All that legislation can do relevant to the creation or constitution or recreation or reorganization or abolition of the court, rests with the legislature except the nomination of the person to fill the office which alone rests with the Governor General of the Dominion as advised by his ministers.
What has been done in that regard cannot now be undone by anything we may say herein for in answering such interrogatories, we and all concerned, I most respectfully submit, must never forget a single sentence contained in the judgment of the Judicial Committee of the Privy Council in the case of Attorney-General for Ontario v. The Attorney-General for Canada[1], wherein that court said:
But the answers are only advisory and will have no more effect than the opinion of the law officers.
I have no doubt that the Alberta Legislature aimed at having, as Ontario long had had, and other provinces later, a new Court of Appeal separated from that dealing with the other work of its Supreme Court As now constituted the judges of either division are qualified ex officio to sit in the other, but, I assume, only to be made available in case of possible necessity.
I submit these suggestions as probably explaining what was aimed at and hence helping to illuminate the language used.
I may be permitted here to say that I prefer the method adopted in British Columbia, and betimes in Ontario, to that adopted by the Alberta legislature, to produce substantially the same result. In the first named of these the legislature whilst creating a court of appeal and, of course, styling the head thereof "Chief Justice" of the new court, preserve the title of Chief Justice of the province to him who then filled it and, on his vacating the place, to be passed on to the head of the appellate court.
Yet I must look at the case presented purely as a matter of law free from all such sentiment, and try to realize what those concerned were in truth about.
It cannot, I submit, be contended for a moment that the legislature could not have created a new appellate court and eliminated from the jurisdiction of the Chief Justice, and all other judges of the old Supreme Court, all the appellate powers it had theretofore exercised, and then leave him and them no other powers than those of trial judges.
That in effect is all the legislature, I imagine, really desired to bring about.
By the united efforts of the respective executives of the Dominion and of Alberta acting in harmony, that is all that has transpired.
The same result as I have pointed out could have been reached by pursuing another and possibly better method, at all events by some one of the several methods I have mentioned as adopted in other provinces. It is not my desire to criticize herein, but to try to realize from the past history of our country and its several provinces the probably justifiable object the legislature had in view, and then give to a rather peculiar growth of six years in way of legislation the exact measure of vitality it was intended to have.
Approached in such a mood and attitude as such considerations are likely to produce, the contention set up by able counsel seems to me rather an undue strain upon the English language.
Clearly there were to be two courts where only one existed before, and two Chief Justices to be appointed.
It was then thrown upon the Dominion Executive to select him it chose for each respectively.
We have no facts stated relative to how this duty was to be discharged, though we may suspect or indeed infer from the remarkable coincidence of events which took place, that it was well understood between the two Executives concerned that the old Chief Justice and such of his puisne judges as the Dominion Executive chose to fill the positions they respectively were chosen to fill, should be effected by such a manner as would substantially protect them and the due administration of justice at the same time.
Clearly it so happens that some men are by nature and attainments better fitted for appellate courts than trial courts, and vice versa.
The salaries allotted the new Chief Justices were, we are told, in each case to be the same.
It may be pointed out that this is not the first instance on record of a legislature having taken upon itself to change the status of judicial officers, for I find that in pre-confederation days, though the old "Court of Error and Appeal Act," chapter 13 of the Consolidated Statutes of Upper Canada, by section 5 thereof, had declared that the Chief Justice of the Queen's Bench, for the time being, and the judge entitled to precedence over all other judges should preside, yet by 24 Vic., ch. 36, sec. 1 that was repealed. Much stress seemed to be put by counsel for Chief Justice Harvey upon the fact that uncertainty as to the tenure of the position of Chief Justice of Alberta may be attended with serious consequences, inasmuch as important powers are conferred upon the Chief Justice of that court, the exercise of which by an incompetent judge might lead to serious consequences, and he cites the example of the "Bankruptcy Act" assigning the power to the Chief Justice to make the appointments to certain officers in certain contingencies.
I should have thought that the doctrine of de facto applied to any officer would relieve any person so embarrassed and should be surprised if any one thought of applying to any one else than Chief Justice Scott.
But if that is not enough, clearly the true remedy must be that applied in the cases of Buckley v. Edwards[2], and McCawley v. The King[3], instead of the adoption of the opinion of this court as mere law officers of the Crown as intimated in the case cited above, which surely cannot be held especially if divided as entitled to override the opinions of the law officers of the Crown who presumably must have held in line with what I have concluded was the correct course.
For the foregoing reasons I would answer the first question in the affirmative. Hence the second needs no answer. I would also answer the third question in the affirmative, and the fourth I would answer by saying that his being ex officio a judge of the Appellate Division of the said court only qualifies him to act in the place or stead of some member of the court not being able to take the place to which he or his successor may have been assigned.
The fifth question I would answer in the negative and that he holds only the office provided by his said letters patent of 15th September, 1921.
Duff J.—The fundamental question raised by the present reference is this: Had the amendments of 1919 (9 Geo. V., ch. 3) and 1920 (ch. 3, s. 2 and c. 4, s. 43) the effect of abolishing the office of Chief Justice of the Supreme Court of the Supreme Court of Alberta, an office created by the Supreme Court Act of 1907? If the office still exists then The Honourable Mr. Harvey is still the incumbent of it and he is also the President of the Appellate Division because the intention of the statutes mentioned is indubitably that the two offices shall be held by one and the same person.
The statutes of 1920 by their terms were to come into force on proclamation and they were p