Supreme Court

__                                             Date: 1997 06 26
__                                             Docket: CV 07082
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__     IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
__
__          IN THE MATTER OF SECTIONS 2 AND 3 OF THE
__        LEGAL QUESTIONS ACT, R.S.N.W.T. 1988, c.L-3
__
__AND IN THE MATTER OF A REFERENCE BY THE MINISTER OF JUSTICE
__       OF THE GOVERNMENT OF THE NORTHWEST TERRITORIES
__  CONCERNING WHETHER SECTION 6(2) OF THE TERRITORIAL COURT
ACT, R.S.N.W.T. 1988, c.T-2 IS CONSISTENT WITH SECTION 11(d) OF
__     THE CHARTER OF RIGHTS AND FREEDOMS AND SECTION 52
__                OF THE CONSTITUTION ACT 1982
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__                   MEMORANDUM OF JUDGMENT
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[1]  This is a proceeding under the Legal Questions Act, R.S.N.W.T. 1988, c.L-3.
The Court is asked by the Minister of Justice to give an opinion on the
constitutional validity of certain provisions of a statute enacted by the Legislative
Assembly of the Northwest Territories.  This memorandum deals solely with
certain preliminary matters raised by proposed parties to the Reference.
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[2]  The matter being referred to this Court is the constitutional validity of s.6(2)
of the Territorial Court Act, R.S.N.W.T. 1988, c.T-2:
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__   6.(1) The Commissioner may appoint such qualified persons to be deputy
__   territorial judges as the Commissioner considers necessary for the due
__   administration of justice in the Territories.
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__   (2) An appointment under subsection (1) shall have effect for a period of two
__   years or for a shorter period as may be specified in the appointment, unless sooner
__   revoked by the Commissioner on the written recommendation of the Chief Judge.
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__   (3) The Commissioner may reappoint a deputy territorial judge.
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__   (4) A deputy territorial judge has all the powers, duties and functions of a
__   territorial judge appointed under subsection 4(2).
__
[3]  The Minister says that it is his intention to recommend that the
Commissioner appoint a full-time deputy judge for a fixed term of two years
pursuant to s.6 of the Territorial Court Act, and because of certain concerns raised
by the Chief Judge of the Territorial Court, the Honourable R.W. Halifax, the
Minister seeks the opinion of this Court on the matter.  The Minister has notified
the Chief Judge, the Attorney General of Canada and the Law Society of the
Northwest Territories that he is referring the matter to this Court.
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[4]  Three parties now appear and seek status under s.4 of the Legal Questions
Act.  This latter provision reads:
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__   4.  The Supreme Court may direct that
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__        (a) any person interested, or
__        (b) where there is a class of persons interested, any one or more
__        persons as representatives of that class,
__     shall be notified of the hearing, and those persons shall be entitled to be
__     heard.
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[5]    Those seeking status are a) the Chief Judge, b) the Law Society and c) the
Territorial Judges' Association.  The Attorney General of Canada did not appear in
response to notification to her, and presumably takes no position on the matter
being referred.
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[6]    The Law Society and the Judges' Association take no particular position
on the matter being referred; however, their respective counsel say they each are a
"person interested" and wish to be notified of the hearing of the Reference, and to
be heard at the hearing, as appropriate.
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[7]    The Chief Judge, through counsel, makes a formal preliminary motion for
an Order determining:
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__     a)   the terms and extent of participation in the Reference by the Chief
__         Judge, and
__     b)  the terms as to the costs to be incurred by the Chief Judge.
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[8]    Counsel for the Chief Judge advises that he does wish to place argument
before this Court regarding the constitutionality of s.6(2) of the Territorial Court
Act in the context of the full-time appointment of a deputy judge for a fixed term.
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[9]    On this preliminary motion, the Court is asked by the Chief Judge to
confirm that his proposed participation as a party to the Reference shall include:
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__     a)  the right to notice of all steps,
__     b)  the right to adduce evidence and to cross-examine the Minister's
__         witnesses,
__     c)  the right to raise and argue all relevant issues, including any issue not
__         appearing within the express words of the legal question being
__         referred,
__     d)  the right to file written argument and make oral argument,
__     e)  the right to apply for costs, and
__     f)  the right of appeal.
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[10]   Assuming that the Chief Judge is a "person interested" within s.4 of the
Legal Questions Act (which I discuss below), I see no difficulty in granting the
requested participation, save for the proviso, with respect to (b) and (c) above, that
those matters will be specifically determined by a judge of this Court presiding on a
motion relating thereto, or on the main hearing of the Reference itself.  And it is the
Court of Appeal, of course, which will make the real determination on (f) above.
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[11]   In order for the Chief Judge to have status under s.4 of the Legal
Questions Act, he must be a "person interested" in the Reference. Given the
background information provided by the Minister's counsel of the steps leading to
this Reference, and upon hearing the submissions made on behalf of the Chief
Judge as to the responsibilities of his office, I am satisfied that the Chief Judge is a
"person interested", using the ordinary plain meaning of those words. The Minister
has no objection to the Chief Judge being so described, nor to the Chief Judge's
participation in the Reference.
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[12]   [I do not find, however, that the Chief Judge is a person "directly
affected" in the same sense as the interested parties granted status in the cases cited
by counsel for the Chief Judge, i.e., Reform Party of Canada v Attorney General of
Canada (1992) 136 A.R.1 (Alta.Q.B.); Law Society of Upper Canada v Skapinker
(1984) 11 C.C.C.(3d) 481 (S.C.C.); Hirt v College of Physicians and Surgeons of
British Columbia (1985) 60 B.C.L.R. 131 (C.A.); Re K and M et al (1990) 70
D.L.R.(4th) 727 (Alta.C.A.).]
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[13]   For the foregoing reasons I am satisfied that there is merit in the first
aspect of the Chief Judge's preliminary motion.  The second aspect, in which he
seeks an order of this Court now which would direct the Minister of Justice to pay
the Chief Judge's legal expenses throughout this proceeding, is another matter.
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[14]   There is no specific provision for such an Order in the Legal Questions
Act, as there is in similar legislation in some of the provinces.
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[15]   I note, for example, the specific provision contained in the Prince Edward
Island legislation.  The statutory regime for a reference by the Executive arm of
government of a legal question for the opinion of the Court is set forth in s.18 of the
Supreme Court Act R.S.P.E.I. 1977, c.S-10.  Subsections (5) and (6) provide as
follows:
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__     (5) The court may direct that any person interested, or any one or more
__     persons as representatives of a class of persons interested, be notified of
__     the hearing and be entitled to make submissions to the court.
__
__     (6) Where any interest affected is not represented by counsel, the court
__     may request the Attorney General to appoint counsel to argue on behalf of
__     the interest, and the reasonable expenses thereof shall be paid out of the
__     Consolidated Fund.
__
__
For cases where this specific authority was invoked, see Reference Re Human
Rights Act  (1987) 43 D.L.R.(4th) 518 (P.E.I.S.C.App.Div.) and Reference Re
Independence of the Judges of Provincial Court (1995) 124 D.L.R.(4th) 528
(P.E.I.S.C.App.Div.).
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[16]   Here in this jurisdiction, there is no equivalent authority to s.18(6) of the
P.E.I. statute.
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[17]   Even if the Court had an inherent jurisdiction to direct in advance that the
Commissioner or the Minister pay the legal expenses of a "person interested" in a
Reference case under the Legal Questions Act (and I remain uncertain that there is
such an inherent jurisdiction - I find merit in the reasoning in Re Regional
Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley
Committee Inc. et al, (1985) 19 D.L.R.(4th) 356 (Ont.Div.Ct.) although that case is
admittedly distinguishable on its facts) I have not been convinced that such an
Order should issue in this proceeding for the benefit of the Chief Judge.
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[18]   Counsel for the Chief Judge also made submissions for the payment of his
legal expenses in advance on a different footing, by relying on Rule 92 of the Rules
of Court:
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__     92. With leave of the Court, a person may intervene in a proceeding,
__     without becoming a party to the proceeding, as amicus curiae for the
__     purpose of rendering assistance to the Court by way of argument or by
__     presentation of evidence, on such terms as to costs or otherwise as the
__     Court may impose.  (Emphasis added)
__
__
[19]   Seeking leave to intervene amicus curiae, however, is quite different than
seeking status as an interested person under s.4 of the Legal Questions Act. The
purpose of intervention amicus curiae is to provide assistance to the Court (and
usually at the invitation of the Court).  Such assistance is sometimes required by the
Court where one side of an argument on an issue is not being presented to the
Court.  Borowski v Minister of Justice of Canada [1983] 3 W.W.R.505 (Sask.Q.B.).
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[20]   In the present case, the Chief Judge states through his counsel that he will
present the "other side" of the argument being advanced on behalf of the Minister.
There will thus be no failure of presentation of issues before the Court, and the
Court will not be in need of an amicus.
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[21]   In my respectful view, there is an inconsistency in seeking both s.4 status
under the Legal Questions Act and to intervene amicus curiae.  A true amicus is
not a party to the proceeding, has no interest in the proceeding, but, rather, is a mere
"friend" of the Court.  A person or party applying for status under s.4 has, by
definition, an interest in the proceeding itself.  In the unique circumstances of this
case, the Chief Judge is not a total stranger to the proceeding, as counsel have so
advised the Court on this preliminary motion.
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[22]   For these reasons I find that whereas the Chief Judge meets the criteria for
status under s.4 of the Legal Questions Act, Rule 92 is not applicable to the relief
sought on this motion.
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[23]   Accordingly, the matter of the Chief Judge's legal expenses must await
the conclusion of this proceeding under the Legal Questions Act, for determination
by the presiding judge.
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[24]   An order will issue as follows:
__
__     1.  The Chief Judge of the Territorial Court, the Law Society of the
__         Northwest Territories, and the Territorial Judges' Association shall
__         be notified of the hearing of the question referred by the Minister,
__         and shall be entitled to be heard, pursuant to s.4 of the Legal
__         Questions Act.
__
__     2.  Subject to final determination by the presiding judge, counsel
__         representing the Chief Judge shall also have the right to adduce
__         evidence, cross-examine witnesses, raise any relevant issue, and
__         apply for costs.
__
__     3.  The application for a direction to the Minister of Justice to pay the
__         legal expenses of the Chief Judge throughout this proceeding is
__         denied, without prejudice to any claim the Chief Judge may make for
__         costs at the conclusion of the proceeding.
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[25]   Counsel are at liberty to make written submissions with respect to costs of
this motion, at any time within 30 days of the date these reasons are filed.
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With respect to the proceeding itself, counsel should arrange with the Clerk of the
Court for a special Chambers date for the purpose of settling the manner in which
the Court will hear and consider the legal question referred by the Minister.
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__                                 J.E. Richard,
__                                     J.S.C.
__
Dated at Yellowknife, NT
this 26th day of June 1997
__
Counsel for the Minister of Justice:  Earl D. Johnson, Q.C.
Counsel for the Chief Judge of the Territorial Court:  Chris Evans, Q.C.
Counsel for the Law Society of the N.W.T.: Charles McGee
Counsel for the Territorial Judges' Association: Robert Gorin
__
__
__                              IN THE SUPREME COURT OF THE
__                              NORTHWEST TERRITORIES
__
__
__
__
__                              IN THE MATTER OF SECTIONS 2 AND 3 OF
__                              THE LEGAL QUESTIONS ACT, R.S.N.W.T.
__                              1988, c.L-3
__
__                              AND IN THE MATTER OF A REFERENCE
__                              BY THE MINISTER OF JUSTICE OF THE
__                              GOVERNMENT OF THE NORTHWEST
__                              TERRITORIES CONCERNING WHETHER
__                              SECTION 6(2) OF THE TERRITORIAL
__                              COURT ACT, R.S.N.W.T. 1988, c.T-2 IS
__                              CONSISTENT WITH SECTION 11(d) OF  THE
__                              CHARTER OF RIGHTS AND FREEDOMS
__                              AND SECTION 52 OF THE CONSTITUTION
__                              ACT 1982
__
__
__
__
__                              MEMORANDUM OF JUDGMENT OF THE
__                              HONOURABLE JUSTICE J. E. RICHARD
__