Martin,
J.A.:—This
is
a
reference
by
the
Lieutenant-Governor
in
Council
under
the
provisions
of
the
Constitutional
Questions
Act,
R.S.S.
1930,
c.
60.
By
sec.
2
of
the
Act
it
is
provided
that
the
Lieutenant-Governor
in
Council
may
refer
to
the
Court
of
Appeal
for
hearing
and
consideration
any
matter
which
he
thinks
fit,
"and
the
court
shall
thereupon
hear
and
consider
the
same,’’
In
sec.
3
it
is
provided
that
the
Court
shall
certify
to
the
Lieutenant-Governor
in
Council
its
opinion
on
the
matter
referred,
"‘with
the
reasons
therefor,
which
shall
be
given
in
like
manner
as
in
the
case
of
a
Judgment
in
an
ordinary
action.’’
The
matter
involved
in
the
present
reference
is
whether
or
not
the
salaries
of
the
Judges
of
the
Court
of
Appeal,
the
Court
of
King’s
Bench,
and
the
District
Court
are
subject
to
taxation
under
the
provisions
of
the
Income
Tax
Act,
1932
(Sask.),
c.
9.
The
questions
submitted
are
as
follows
:
"‘(1)
Are
Judges
(a)
of
the
Court
of
Appeal,
(b)
of
the
Court
of
King’s
Bench,
(c)
of
the
District
Courts,
of
the
Provinee
of
Saskatchewan,
appointed
by
His
Excellency,
the
Governor
General,
pursuant
to
s.
96
of
the
British
North
America
Act,
1867,
subject
to
the
taxation
authorized
by
the
Income
Tax
Act,
1932,
of
Saskatchewan,
being
otherwise
persons
subject
to
the
provisions
of
the
said
Act
?
""
(2)
If
the
said
Judges
or
any
of
them
are
subject
to
the
said
taxation,
then
has
the
Legislature
of
Saskatchewan
legislative
authority
to
include
in
income
for
the
purposes
of
the
Income
Tax
Act,
the
salary
and
allowances
of
the
said
Judges
or
any
of
them
paid
pursuant
to
the
provisions
of
the
Judges
Act,
being
chapter
105
of
the
Revised
Statutes
of
Canada,
1927?’
It
is
a
fundamental
rule
in
the
administration
of
justice
that
where
a
Judge
is
interested
in
the
result
of
litigation
he
cannot
sit
in
Judgment
upon
it.
Nemo
debet
esse
judex
in
propria
causa.
Proceedings
have
been
frequently
set
aside
because
a
Judge
who
had
an
interest
in
the
cause
took
part
in
the
decision.
According
to
the
rule,
therefore,
the
members
of
the
Court
should
not
participate
in
the
reference,
because
each
of
us
has
a
pecuniary
interest
in
the
result.
The
rule,
however,
does
not
apply
where
the
Court
acts
ex
necessitate,
e.g.,
where
an
action
is
brought
against
all
the
Judges
of
the
Court
in
a
matter
over
which
the
Court
has
exclusive
jurisdiction:
Dimes
v.
Grand
Junction
Canal
Co.
(1852)
3
H.L.
Cas.
759,
at
p.
787,
10
E.
R.
301;
Ranger
v.
G.W.R.
(1854)
5
H.L.
Cas.
72,
at
p.
88,
10
E.R.
824,
per
Lord
Cranworth;
Boulton
v.
Church
Society
of
Toronto
(1868)
15
Gr.
450;
Toronto
v.
Morson
(1916)
37
O.L.R,
369,
28
D.L.R.
188.
The
present
reference
has
been
made
to
the
Court
of
Appeal
under
the
provisions
of
the
Constitutional
Questions
Act,
and
the
Court
is
required
not
only
to
hear
and
consider
the
subject
referred,
but
also
to
certify
its
opinion
to
the
Lieutenant-Governor
in
Council
and
to
give
reasons
therefor.
Moreover,
all
Judges
of
the
Province
have
the
same
interest
in
the
result
of
the
reference
as
have
the
member
of
this
Court.
The
Court,
therefore,
acts
ex
necessitate.
See.
3
of
the
Income
Tax
Act,
1932,
defines
"‘income’’
for
the
purposes
of
the
Act
as
follows:
“For
the
purposes
of
this
Act,
‘income’
means
the
annual
net
profit
or
gain
or
gratuity,
whether
ascertained
and
capable
of
computation
as
being
wages,
salary
or
other
fixed
amount,
or
unascertained
as
being
fees
or
emoluments
.
.
.
or
other
business
or
calling,
directly
or
indirectly
received
by
a
person
from
any
office
or
employment,
or
from
any
profession
or
calling,
or
from
any
trade,
manufacture
or
business,
as
the
case
may
be,
whether
derived
from
sources
within
Saskatch-
ewan
or
elsewhere;
and
includes
the
interest,
dividends
or
profits
directly
or
indirectly
received
from
money
at
interest
upon
any
security
or
without
security,
or
from
stocks,
or
from
any
Other
investment,
and
whether
such
gains
or
profits
are
divided
or
distributed
or
not,
and
also
the
annual
profit
or
gain
from
any
other
source
includin
:
:
"
(c)
the
salaries,
indemnities
or
other
remuneration
of
all
persons
whatsoever,
whether
the
said
salaries,
indemnities
or
remuneration
are
paid
out
of
the
revenue
of
His
Majesty
in
respect
of
his
Government
in
Canada,
or
of
any
province
thereof,
or
by
any
person,
except
as
herein
otherwise
provided.
‘
‘
Sec.
7
provides
that
the
income
of
every
person
"‘residing,
or
ordinarily
resident
in
Saskatchewan’’
shall
be
assessed
and
liable
to
a
tax
at
the
rates
provided
by
the
Act.
A
long
list
of
exemptions
from
taxation
are
set
out
in
sec.
4,
but
none
of
them
has
any
bearing
upon
the
matter
with
which
we
are
here
concerned.
Judges
of
the
Court
of
Appeal,
of
the
Court
of
King’s
Bench,
and
of
the
District
Court
are
persons
or
individuals
residing
in
Saskatchewan,
and
are
in
receipt
of
salaries
out
of
the
revenues
of
His
Majesty
in
respect
of
His
Government
in
Canada,
and
are
therefore
subject
to
the
provisions
of
the
Act.
Unless,
therefore,
by
virtue
of
their
position
as
Judges
appointed
under
the
provisions
of
sec.
96
of
the
B.N.A.
Act,
1867,
they
are
exempt
from
taxation
by
the
Provinces
in
respect
of
their
incomes
they
are
subject
to
such
taxation
just
as
other
persons
resident
in
the
Province.
By
see.
96
of
the
B.N.A.
Act
exclusive
power
is
conferred
on
the
Governor-General
to
appoint
the
Superior,
District,
and
County
Court
Judges;
by
sec.
100
it
is
enacted
that
the
salaries
of
these
Judges
‘‘shall
be
fixed
and
provided
by
the
Parliament
of
Canada’’
and
sec.
99
provides
that
the
Judges
of
the
Superior
Courts
shall
hold
office
during
good
behaviour,
but
shall
be
removed
by
the
Governor
General
on
address
to
the
Senate
and
House
of
Commons.
These
provisions
are
similar
to
those
of
the
Act
of
Settlement
of
1700,
which
were
designed
to
protect
the
independence
of
the
Bench.
In
Martineau
c
Sons
Ltd.
v.
Montreal
[1932]
1
D.L.R.
353,
Lord
Blanesburgh
in
delivering
the
judgment.of
the
Privy
Council
stated
that
sec.
96
of
the
B.N.A.
Act,
when
supplemented
by
sees.
99
and
100,
"‘is
shown
to
lie
at
the
root
of
the
means
adopted
by
the
framers
of
the
statute
to
secure
the
impartiality
and
independence
of
the
provincial
judiciary.
.
A
Court
of
construction
would
accordingly
fail
in
its
duty
if
it
were
to
permit
these
provisions,
and
the
principle
therein
enshrined
to
be
impinged
upon
in
any
way
by
provincial
legislation.”
We
do
not
think
that
the
words
of
Lord
Blanesburgh
can
be
construed
so
as
to
affect
in
any
way
the
powers
of
the
Provinces
to
directly
tax
the
income
of
all
persons
resident
in
a
Province,
including
Superior,
District
and
County
Court
Judges.
His
words
must
be
read
as
applicable
to
the
facts
of
the
case,
and
the
question
was
whether
the
president
of
the
Public
Service
Commission
of
the
Province
of
Quebec,
in
assessing
compensation
for
property
expropriated
by
the
City
of
Montreal
under
authority
given
him
by
the
City
Charter
and
the
Public
Service
Commission
Act
of
the
Province,
was
acting
as
a
Judge
of
a
Superior,
District
or.
County
Court,
and
‘whether
the
Province,
in
appointing
him,
was
trespassing
upon
the
powers
conferred
upon
the
Governor-General
under
sec.
96
to
appoint
such
Judges.
By
sec.
92(2)
of
the
B.N.A.
Act,
the
Legislatures
of
the
Provinces
are
given
exclusive
powers
to
make
laws
on
the
subject
of
‘‘direct
Taxation
within
the
province
in
order
to
the
raising
of
a
Revenue
tor
Provincial
Purposes.
‘
‘
Acting
under
the
power
thus
conferred
the
Legislature
of
Saskatchewan
has
enacted
that
every
person
resident
or
ordinarily
resident
in
the
Province
shall
pay
a
tax
on
his
income
at
the
rates
prescribed
by
the
Act.
A
resident
of
the
Province
is
none
the
less
so
because
he
is
a
Judge
appointed
by
the
Governor-General.
The
statute
imposes
a
provincial
tax
of
general
application;
there
is
no
discrimination
;
it
is
aimed
at
all
residents
in
the
Province,
and
there
is
no
ground,
in
the
absence
of
express
provision,
for
exempting
the
salaries
of
Judges
from
the
incidence
of
the
tax.
In
our
opinion
there
is
nothing
in
secs.
96,
99
and
100
of
the
B.N.A.
Act
which
places
limitation
upon
the
powers
of
the
Province
to
tax
the
salaries
and
income
of
Judges
to
the
same
extent
as
the
salaries
and
income
of
other
residents.
On
the
argument
our
attention
was
called
to
the
words
of
see.
100,
"‘the
Salaries,
Allowances,
and
Pensions
of
Judges
.
.
.
shall
be
fixed
and
provided
by
the
Parliament
of
Canada,’’
and
it
was
contended
that
the
word
‘‘fixed’’
implies
stability,
security
and
non-interference,
and
while
it
may
permit
of
salaries
being
increased,
it
prevents
the
decrease
of
a
Judge’s
salary,
by
means
of
taxation
or
otherwise,
during
his
continuance
in
office.
This
eontention,
however,
loses
much
of
its
significance
because
of
that
fact
that
word
“fixing”
is
used
in
sec.
91(8)
of
the
B.N.A.
Act
in
defining
the
power
of
the
Parliament
of
Canada
with
respect
to
the
salaries
of
civil
servants.
In
Abbott
v.
St.
John
(1908)
40
8.C.R.
597,
the
Supreme
Court
of
Canada
held
that
members
of
the
civil
service
of
Canada
were
liable
to
taxation
in
the
Province
in
which
they
resided,
in
respect
of
their
salaries
as
officials
of
the
Dominion
Government.
And
very
recently
in
two
appeals
from
the
Court
of
Appeal
of
the
Province
of
Manitoba
which
were
consolidated
in
the
Supreme
Court,
A.-G.
Man.
v.
Worthington,
ante,
p.
168,
and
A.-G.
Man.
v.
Forbes,
ante,
p.
188,
it
was
held
by
a
majority
of
the
Supreme
Court,
ante,
p.
195,
that
the
Province
of
Manitoba,
under
the
powers
conferred
upon
it
with
respect
to
direct
taxation
within
the
Province,
could
levy
an
income
tax
upon
the
salaries
of
officers
of
the
permanent
force
of
the
active
militia
of
Canada,
and
upon
the
salaries
of
members
of
the
civil
service
employ
ed
by
the
Government
of
the
Dominion
of
Canada.
There
appears
to
be
no
direct
authority
on
the
subject
which
is
binding
upon
this
Court.
The
High
Court
of
Australia,
however,
held
in
Cooper
v.
Income
Tax
Corner
(1907)
4
Comm.
L.R.
1504,
that
a
Judge
was
not,
by
virtue
of
his
office,
exempt
from
taxation
of
a
general
kind
imposed
upon
all
without
discrimination.
In
Krause
v.
Inland
Revenue
Com
f
r
[1929]
App.
D.
286,
it
was
held
by
the
Appellate
Division
of
the
Supreme
Court
of
South
Africa
that,
notwithstanding
the
provisions
of
sec.
100
of
the
South
African
Act,
wihch
enacted
that
the
Judges
of
the
South
African
Supreme
Court
should
receive
such
remuneration
as
Parliament
prescribes,
and
that
their
remuneration
should
not
be
diminished
during
their
term
of
office,
such
Judges
were
not
exempted
from
paying
income
tax,
on
the
amount
of
their
salaries,
under
the
Income
Tax
Act,
1925,
of
the
Union
of
South
Africa.
There
is
also
a
decision
of
the
Court
of
Appeal
of
the
Province
of
Ontario,
Toronto
v.
Morson
(1917)
40
O.L.R.
227,
38
D.L.R.
224,
in
which
it
was
held
that
a
Judge
of
the
County
Court
was
not
exempt
from
municipal
taxation
under
provincial
legislation
in
respect
of
his
salary
or
income.
The
Ontario
Court
followed
the
decision
of
the
Supreme
Court
of
Canada
in
Abbott
v.
St.
John,
supra,
and
apparently
made
no
distinction
between
the
position
of
Judges
appointed
under
sec.
96
of
the
B.N.A.
Act
and
the
position
of
members
of
the
civil
service
of
Canada,
as
no
reference
is
made
in
the
judgments
to
sees.
96,
99
and
100
of
the
B.N.A.
Act.
The
subject
of
the
taxation
of
the
salaries
of
Judges
of
the
Federal
Courts
has
been
dealt
with
by
the
Courts
of
the
United
States.
Article
3,
sec.
1,
of
the
American
Constitution
provides
that
the
compensation
of
Federal
Judges
shall
not
be
diminished
during
their
continuance
in
office.
In
McCulloch
v.
Maryland
(1819)
17
U.S.
597,
it
was
held
that
the
States
could
not
exercise
a
power
of
taxation
over
Federal
agencies,
including
the
judiciary.
In
Hvans
v.
Gore
(1920)
253
U.S.
254,
it
was
held
(Holmes
and
Brandeis,
J
J
.,
dissenting)
that
art.
3,
sec.
1,
of
the
Constitution
made
it
unconstitutional
for
Congress
to
levy
an
income
tax
on
the
salaries
of
Judges,
because
that
would
amount
to
a
diminution
of
salary.
This
decision
was
relied
upon
in
Krause
v.
Inland
Revenue
Com’r,
supra,
but
the
Appellate
Division
of
the
Supreme
Court
of
South
Africa
followed
the
dissenting
judgment
of
Halmes,
J.,
who
is
reported
at
p.
265
as
saying
:
"
"
To
require
a
man
to
pay
the
taxes
that
all
other
men
have
to
pay
cannot
possibly
be
made
an
instrument
to
attack
his
independence
as
a
Judge.
I
can
see
nothing
in
the
purpose
of
this
clause
of
the
Constitution
to
indicate
that
the
Judges
were
to
be
a
privileged
class,
free
from
bearing
their
share
of
the
cost
of
the
institutions
upon
which
their
well-being,
if
not
their
life,
depends.”
We
are
of
the
opinion
that
both
questions
in
the
reference
should
be
answered
in
the
affirmative.
Answers
accordingly.
Email this Content