Supreme Court of Canada
Reference as to the Legislative Competence of the
Parliament of Canada to Enact Bill No. 9 of the Fourth Session, Eighteenth
Parliament of Canada, Entitled "An Act to Amend the
Supreme Court Act", [1940] S.C.R. 49
Date: 1940-01-19
In the Matter of a
Reference as to the Legislative Competence of the Parliament of Canada to Enact Bill No. 9 of the Fourth Session, Eighteenth
Parliament of Canada Entitled "an Act to Amend the Supreme
Court Act."
1939: June 19, 20, 21; 1940: January. 19.
Present: Duff C.J. and Rinfret, Crocket,
Davis, Kerwin and Hudson JJ.
Constitutional law—Appeals to His Majesty in
Council and to the Judicial Committee from Canadian courts—Whether Parliament
of Canada has jurisdiction to
pass an Act amending the Supreme Court Act so as to abrogate jurisdiction of
Privy Council to hear such appeals.
A Bill, entitled "An Act to amend the Supreme
Court Act" was referred to this Court by Order of the Governor General
in Council for its opinion as to whether that Bill, or any of its provisions,
was intra vires of the Parliament of Canada. Such Bill purported to
enact that "the Supreme Court of Canada shall have, hold and exercise
exclusive ultimate appellate civil and criminal jurisdiction within and for
Canada" ; and, for the purpose of giving effect to that enactment, it was
in substance provided that the jurisdiction of His Majesty in Council and of
the Judicial Committee to hear appeals from Canadian courts was abrogated.
[Page 50]
Held, by the
Court, that the Parliament of Canada was competent to enact such Bill in its
entirety.
Crocket J. was of the opinion that the Bill
should be declared wholly ultra vires of the Parliament of Canada.
Davis J. was of the opinion that the Bill
referred if enacted would be within the authority of the Dominion Parliament if
amended to provide that nothing therein contained shall alter or affect the
rights of any province in respect of any action or other civil proceeding
commenced in any of the provincial courts and solely concerned with some
subject-matter, legislation in relation to which is within the exclusive
legislative competence of the legislature of such province.
REFERENCE by His Excellency the Governor
General in Council to the Supreme Court of Canada in the exercise of the powers
conferred by s. 55 of the Supreme Court Act (R.S.C. 1927, c. 35) of the
following question: Is said Bill 9, entitled "An Act to amend the Supreme
Court Act," or any of the provisions thereof, and in what particular
or particulars, or to what extent, intra vires of the Parliament of
Canada?
The Order in Council referring the question
to the Court is as follows:
Whereas there has been laid before His
Excellency the Governor General in Council a report from the Right Honourable
the Minister of Justice, dated April 18th, 1939, representing that, at the
fourth session of the Eighteenth Parliament of Canada, Bill 9, entitled
"An Act to amend the Supreme Court Act," was introduced and received
first reading in the House of Commons on January the 23rd, 1939; and
That, on April the 14th, the debate on the
motion for second reading of this Bill, an authentic copy of which is hereto
annexed, was adjourned in order that steps might be taken to obtain a judicial
determination of the question of the legislative competence of the Parliament
of Canada to enact the provisions of the said Bill in whole or in part;
Now, therefore, His Excellency the Governor
General in Council, on the recommendation of the Minister of Justice and
pursuant to the provisions of section 55 of the Supreme Court Act, is pleased
to refer and doth hereby refer the following question to the Supreme Court of
Canada for hearing and consideration:—
[Page 51]
Is said Bill 9, entitled "An Act to
amend the Supreme Court Act," or any of the provisions thereof, and in
what particular or particulars, or to what extent, intra vires of the
Parliament of Canada?
E. J. Lemaire,
Clerk of the Privy Council.
The text of the Act referred to this Court is
the following:
An Act to amend the Supreme Court Act of Canada
His Majesty, by and with the advice and
consent of the Senate and House of Commons of Canada, enacts as follows:—
1. Section fifty-four of the Supreme Court
Act, chapter thirty-five of the Revised Statutes of Canada, 1927, is
repealed and the following substituted therefor:—
"54. (1)
The Supreme Court shall have, hold and exercise exclusive ultimate appellate
civil and criminal jurisdiction within and for Canada; and the judgment of the Court shall, in all cases, be final and
conclusive.
(2) Notwithstanding any royal prerogative or
anything contained in any Act of the Parliament of the United Kingdom or any
Act of the Parliament of Canada or any Act of the legislature of any province
of Canada or any other statute or law, no appeal shall lie or be brought from any
court now or hereafter established within Canada to any court of appeal,
tribunal or authority by which, in the United Kingdom, appeals or petitions to
His Majesty in Council may be ordered to be heard.
(3) The Judicial Committee Act, 1833, chapter
forty-one of the statutes of the United Kingdom of Great Britain and Ireland,
1833, and The Judicial Committee Act, 1844, chapter sixty-nine of the
statutes of the United Kingdom of Great Britain and Ireland, 1844, and all
orders, rules or regulations made under the said Acts are hereby repealed in so
far as the same are part of the law of Canada."
2. Nothing in this Act shall affect any
application for special leave to appeal or any appeal to His Majesty in Council
made or pending at the date of the coming into force of this Act.
[Page 52]
3. This Act shall come into force upon a date
to be fixed by proclamation of the Governor in Council published in the Canada Gazette.
Aimé Geoffrion K.C., C. P. Plaxton K.C. and
W. R. Jackett for the Attorney-General of Canada.
Gordon D. Conant K.C. (Attorney-General),
W. B. Common K.C. and E. R. Magone K.C. for Ontario.
Eric Pepler for
the Attorney-General for British Columbia.
P. H. Chrysler for
the Attorney-General for Manitoba.
J. B. Dickson for the Attorney-General for New Brunswick.
J. H. MacQuarrie K.C. (Attorney-General)
and T. D. MacDonald for Nova Scotia.
S. F. M. Wotherspoon for the Attorney-General for Prince Edward
Island.
The Chief
Justice—For convenience of discussion, it is advisable
to consider separately the prerogative appeal and the appeal by right of grant,
or more shortly, the appeal as of right.
And first, of the prerogative appeal. The
jurisdiction of His Majesty in Council in respect of the appeal which
"lies" from the decisions of "various courts of judicature"
in "the East Indies, the
Colonies and plantations and other dominions abroad" was affirmed and
regulated by the Parliament in the Privy Council Acts of 1833 and 1844. By
the former of these Acts, the Judicial Committee of His Majesty's Privy Council
was established, a statutory body, to whom (it was enacted)
all appeals or complaints in the nature of
appeals whatever, which either by virtue of this Act, or of any law, statute or
custom may be brought before His Majesty in Council
from the order of any Court or Judge should
thereafter be referred by His Majesty. It was enacted further that the Judicial
Committee should hear such appeals and make a report or recommendation to His
Majesty in Council for his decision thereon.
"It is clear," says the judgment
of the Judicial Committee in British Coal Corporation v. The King,
[Page 53]
that the Committee is regarded in the Act
as a judicial body or Court, though all it can do is to report or recommend to
His Majesty in Council, by whom alone the Order in Council which is made to
give effect to the report of the Committee is made.
But according to constitutional convention
it is unknown and unthinkable that His Majesty in Council should not give
effect to the report of the Judicial Committee, who are thus in truth an
appellate Court of Law, to which by the statute of 1833 all appeals within
their purview are referred.
The Bill referred to us purports to enact that
the Supreme Court of Canada shall have, hold and exercise exclusive, ultimate,
appellate jurisdiction, civil and criminal, in and for Canada; and, for the
purpose of giving effect to this enactment, it is in substance provided that
the jurisdiction of His Majesty in Council and of the Judicial Committee to
hear appeals from Canadian Courts is abrogated.
The consideration of the questions raised
involves an examination of the authority of the Parliament of Canada under
section 101 of the British North America Act as well as its authority
under its general powers to make laws for the peace, order and good government
of Canada.
The authority last mentioned, to make laws for
the peace, order and good government of Canada is, by the express provisions of
the Confederation Act of 1867, affected by only two limitations; first, it does
not extend to matters assigned exclusively to the legislature of the provinces,
a limitation which still persists notwithstanding the enactments of the Statute
of Westminster; and, second, by section 129, it did not authorize the repeal,
abolition or alteration of any law in force in the federated provinces or of
any legal commission, power or authority existing therein, enacted by or
existing under any Act of the Imperial Parliament, a limitation now, since the
enactment of the Statute of Westminster, no longer in force.
Section 101 is expressed in absolute terms and
by it,
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.
Whether the second of the above mentioned
limitations formerly affected the authority of Parliament under section 101 is
of little, if any, importance since the statute of Westminster. I shall advert to the point later.
[Page 54]
I turn first to the general powers of Parliament
respecting peace, order and good government. It is, I think, not wholly
irrelevant to notice the nature of the sovereignty which the Parliament of Canada
has been conceived to possess (within, at all events, the territorial limits of
Canada) and has actually
exercised since the earliest times of Confederation. Under the authority of
section 146 of the British North America Act, the territories comprised within
Rupert's Land and the North-Western Territories (to the north and west of the
federated provinces) were (June, 1870) admitted into the Union. Already, in
May, 1870, the Parliament of Canada had (acting under its general law making
authority) provided for the establishment (to take effect upon the admission of
those territories) of the province of Manitoba, for a constitution for the
province including an executive authority exercisable in that province by a
Lieutenant-Governor, parliamentary institutions with legislative authority
respecting (inter alia) the administration of justice, taxation,
municipal institutions, property and civil rights virtually identical with the
authority granted to the original provinces under section 92. For more than
thirty years thereafter, the territory west of Manitoba, extending to the Rocky
Mountains, now within the provinces of Alberta and Saskatchewan, was governed
under statutes of the Parliament of Canada which provided for executive
authority vested in a Lieutenant-Governor, a legislative assembly with large
legislative powers, for taxation, for the administration of justice and for
courts of judicature. In 1905, by other statutes of Canada, the provinces of Alberta and Saskatchewan were established with constitutions similar to that of Manitoba.
True, it is, that, by the British North
America Act of 1871, it was recited that doubts had been expressed as to
the authority of Parliament to enact the Manitoba Act; but by the Act of 1871
the Manitoba Act was declared to have been validly enacted and the power to
erect provinces and provide constitutions for them was explicitly vested in
Parliament together with unqualified authority to legislate for the peace,
order and good government of the territories not included in any province.
It would, indeed, be singular if the enactments
of a legislature, charged with such responsibilities, responsibilities
[Page 55]
of the very highest political nature, should be
interpreted and applied in a narrow and technical spirit or in a spirit of
jealous apprehension as to the possible consequences of a large and liberal
interpretation of them.
The question whether the Bill falls within the
ambit of the powers of Parliament under the authority to make laws for the
peace, order and good government of Canada must be answered in the affirmative
unless the subject-matter of the Bill is in whole or in part, in the words of
section 91, a matter "coming within the classes of subjects by this Act
assigned exclusively to the legislatures of the provinces." The main
contention against the validity of the Bill on this branch of the argument is
founded on clause 14 of section 92, which is in these words:
92. In each province the legislature may
exclusively make laws in relation to matters coming within the classes of
subjects next hereinafter enumerated; that is to say,—
* * *
(14) The administration of justice in the
province, including the constitution, maintenance, and organization of
provincial courts, both of civil and of criminal jurisdiction, and including
procedure in civil matters in those courts.
So far as concerns this contention, the
subject-matter of this Bill in its substance is found in sections 2 and 3 which
profess to abrogate the jurisdiction of His Majesty in respect of appeals from
the courts of Canada and the statutory jurisdiction of the Judicial Committee
to hear and report upon such appeals under the statutes of 1833 and 1844. I
repeat, I am at the moment addressing my attention only to the prerogative
appeal.
The members of His Majesty's Privy Council, as
everybody knows, are nominated by the King on the advice of the Prime Minister
of the United Kingdom (Anson,
Vol. II, Part I, p. 153). The Judicial Committee is, as was observed in the
judgment mentioned above (British Coal Corporation v. The King,
a statutory appellate Court established and exercising jurisdiction as a court
of justice under statutes of the Parliament of the United
Kingdom.
The Court (the Judicial Committee) exists and
exercises its jurisdiction under authority derived from the Parliament of the
United Kingdom and its members are Privy Councillors who are nominated by
statute in virtue
[Page 56]
of holding, or having held, specified high
judicial offices in England or Scotland or are appointed by Order in Council pursuant to statutory
authority. The constitution and organization of the Court in every respect is
exclusively subject to the Parliament of the United
Kingdom.
The constitution of the Judicial Committee is
not, I think, without importance in its bearing upon the point I am now to
consider; whether, namely, the subject-matter of the Bill referred to us in
whole or in part falls within the category of matters defined by clause 14 of
section 92.
First of all, it is obvious that the Judicial
Committee is not a provincial court within the sense of that clause, it being
self evident that the phrase denotes courts which, as to their jurisdiction are
primarily subjects of provincial legislation and whose process in civil
matters, save in certain exceptional cases which will be adverted to, does not
run beyond the limits of the province. No legislature in Canada has, of course, anything to say
about the constitution of the Judicial Committee or about its organization.
Provision for all such matters is, as I have said, made by the legislature of
the United Kingdom and orders
in council pursuant to authority derived therefrom.
The argument is, however, put in this way.
Decisions of the provincial courts are subject to be reversed or varied, it is
said, under prevailing law, by the decisions of the Judicial Committee and the
orders of His Majesty in Council; and this appellate jurisdiction includes the
subsidiary power to make such orders and give such directions as the appellate
tribunal may consider just and convenient for the purpose of giving effect to
such decisions: and the court appealed from may be required by its own process
and its own officers to carry out such orders.
It is contended that legislation which abrogates
this jurisdiction so to intervene in and ordain the course of proceedings in
provincial courts is legislation in relation to the jurisdiction of such
courts.
I cannot agree with this view for two reasons.
First, while it would, perhaps, not be an abuse of language to say that this
jurisdiction of His Majesty in Council, by which he is enabled, for the purpose
of giving effect to adjudications in prerogative appeals, to make orders
requiring the court appealed from to carry out such adjudications is a
[Page 57]
jurisdiction which affects the jurisdiction of
the Court from which the appeal lies, it is, nevertheless, quite another thing
to say that this jurisdiction or power of His Majesty's is a matter within the
definition of clause 14 so that legislation to abrogate that jurisdiction is
legislation "in relation to" provincial courts within the meaning of
clause 14. I am unable to convince myself that such legislation would in its
"pith and substance" be legislation "in relation to" the
"constitution, maintenance and organization of provincial courts" or
"procedure in those courts in civil matters." Its true subject matter
would be the appellate jurisdiction of the Judicial Committee.
My second reason really involves a consideration
of the alternative argument based upon clause 14. The general subject of clause
14 is "the administration of justice in the province." It is
argued that the scope of these words must not be restricted by reason of the
specific designation of provincial courts and matters connected therewith, as
included in the general subject, and it is said interposition in proceedings in
provincial courts in the manner just alluded to constitutes an intervention in
the administration of justice and that the orders in council by which this is
effected are truly acts done in "the administration of justice in the
province"; and that legislation abrogating the jurisdiction from which
they emanate is consequently legislation "in relation to" that
subject.
Something must be said at this point as to the
essence of the prerogative appeal which the Bill before us purports to
abrogate. The judgment of the Judicial Committee in Nadan v. The King
(as interpreted in British Coal Corporation v. The King)
requires us to hold that any legislation intended to abrogate the prerogative
appeal must, if it is to be effective, be "extra-territorial in its
operation"; that the legislative powers vested in the Parliament of Canada
under the enumerated clauses of section 91 did not, before the Statute of
Westminster, enable that legislature to annul the prerogative right of the King
in Council to grant leave to appeal because, however widely such powers are
construed, they are confined to "action taken in Canada"; and it
would, indeed, appear that the central governing act in the appeal to
[Page 58]
the Judicial Committee is the decision. If there
is authority in the Court as an appellate court to pronounce an effective
decision, it is because such is the law that governs, not the appellate
tribunal alone, but the inhabitants of Canada and the courts in Canada which carry out the decision. To say that the authority to
adjudicate exists without the authority to make the adjudication effective in Canada would seem to be a
self-contradictory statement; and you cannot get rid of this authority unless
you are endowed, it was held in Nadan v. The King, with
extra-territorial powers which the Parliament of Canada did not in 1926
possess.
To return to section 92(14). The legislative
powers of the provinces are strictly confined in their ambit by the territorial
limits of the provinces. The matters to which that authority extends are
matters which are local in the provincial sense. This principle was stated in
two passages in the judgment in the Local Option case
delivered by Lord Watson speaking for a very powerful Board at pp. 359 and 365,
respectively. I quote them:
* * * the concluding part of s. 91 enacts
that
"any matter coming within any of the
classes of subjects enumerated in this section shall not be deemed to come
within the class of matters of a local or private nature comprised in the
enumeration of the classes of subjects by this Act assigned exclusively to the
legislatures of the provinces."
It was observed by this Board in Citizens'
Insurance Co. of Canada v. Parsons that the paragraph just
quoted "applies in its grammatical construction only to No. 16 of s.
92." The observation was not material to the question arising in that
case, and it does not appear to their Lordships to be strictly accurate. It
appears to them that the language of the exception in s. 91 was meant to
include and correctly describes all the matters enumerated in the sixteen heads
of s. 92, as being, from a provincial point of view, of a local or private
nature.
* * *
It is not necessary for the purposes of the
present appeal to determine whether provincial legislation for the suppression
of the liquor traffic, confined to matters which are provincial or local within
the meaning of Nos. 13 and 16, is authorized by the one or by the other of
these heads. It cannot, in their Lordships' opinion, be logically held to fall
within both of them. In s. 92, No. 16 appears to them to have the same office
which the general enactment with respect to matters concerning the peace, order
and good government of Canada, so far as supplementary of the enumerated subjects,
fulfils in s. 91. It assigns to the provincial legislature all matters in a
provincial sense local or private which have
[Page 59]
been omitted from the preceding
enumeration, and, although its terms are wide enough to cover, they were
obviously not meant to include, provincial legislation in relation to the
classes of subjects already enumerated
The legislation of the provinces under all the
heads of section 92 is, by law, confined to matters which are local "in
the provincial sense." In the Royal Bank of Canada v. Rex
a statute of Alberta was held,
in conformity with this principle, to be invalid and beyond the powers of the
legislature.
inasmuch as what was sought to be enacted
was neither confined to property and civil rights within the province nor
directed solely to matters of merely local or private nature within it.
The subject-matter in question was beyond the
powers of the province as the Judicial Committee held, because the legislation
dealt with an interest of some of the parties in a deposit in the Bank of
Montreal carried on its books at Edmonton which was in the nature of an
equitable debt having a constructive situs at the head office of the bank which
was outside the province. The principle has been applied also in Provincial
Treasurer v. Kerr, in Bonanza Creek v. The King
and in other cases; and, indeed, in all the clauses of section 92, with the
exception of clause 3, the territorial restriction is expressed or implied.
Construing clause 14 in light of the general
principle stated as above by the Judicial Committee in the Local Option case,
I am unable to accede to the proposition that the jurisdiction of the Judicial
Committee and of His Majesty in Council in respect of prerogative appeals from
a province belongs to the field described by the words "administration of
justice in the province" as a local matter in the sense of that principle.
Indeed, I think we are bound by the judgment of the Judicial Committee in Nadan
v. The King as interpreted by the British Coal
Corporation v. The King, to hold that legislation intended to
prevent the exercise of the prerogative in relation to the judgments of
Canadian courts is not legislation in relation to a local matter in that sense.
An argument was based upon clause 13 of section
92 "property and civil rights." With great respect to those
[Page 60]
who take a different view, I am unable to agree
that clause 13 is pertinent. The subject-matter of administration of justice
including jurisdiction of provincial courts is specifically dealt with in
clause 14 and, if the particular matter with which we are now concerned does
not fall within the ambit of clause 14, then I think it must be taken to be
excluded from the general clause 13 as well as the residuary clause, 16. That
is a principle which has been acted upon more than once in the construction of
the clauses of section 92 as well as those of section 91. In the case of
section 92 it was applied in determining the scope and effect of clause 11,
"the incorporation of companies with provincial objects." This clause
was the subject of a great deal of controversy until its effect was finally
settled by the judgment of the Privy Council in Bonanza
Creek v. The
King; a controversy which would have been
quite pointless if, for the purpose of ascertaining the powers of the provinces
in relation to the incorporation of companies, you could properly resort to
clause 13. The Dominion authority in respect of the incorporation of companies
under its powers in relation to peace, order and good government rests upon the
limitation imposed upon the provincial power by the language of section 11. If
the provinces were entitled to invoke the general authority of clause 13 in
order to fill up the gap created by the limiting words of clause 11, the
reasoning upon which the Dominion authority rests under the residuary powers
under section 91 would be deprived of its foundation; and, indeed, as Lord
Haldane says in John Deere Plow Co. v. Wharton if
that were a legitimate procedure "the limitation in clause 11 would be
nugatory."
Nor is the contention advanced by calling in aid
the residuary clause (No. 16). That clause, as the Judicial Committee says in
the passages already quoted, serves the purpose of supplementing the preceding
enumerated clauses and includes "matters of a merely local or private
nature within the province" not included in the preceding clauses. These
words, as the judgment declares, are "wide enough to cover" all
matters embraced within the preceding
[Page 61]
clauses, all of which, it also declares, are
correctly described by the words of section 91 as "matters of a local or
private nature comprised in the enumeration of subjects by this Act assigned
exclusively to the legislatures of the provinces." Whatever ancillary
powers the provinces may possess in virtue of section 92 (16) they can only be
ancillary to the local matters comprised in the preceding clauses as therein
defined and they can only be exercised in relation to "matters of a merely
local or private nature within the province."
As regards clause 1 of section 92, which is also
relied upon, the exception "the office of Lieutenant-Governor" points
to the subject-matter and the scope of the clause. The term "provincial
constitution" is employed as the heading of Title V. That title deals with
the Executive Government of the provinces, with constitution of their
legislative institutions and very largely with appointments to Legislative
Councils and elections to Legislative Assemblies. The heading of Title V may be
contrasted with that of Title VI, "Distribution of Legislative
Powers." There is nothing in the enactments of the earlier title
supporting the contention that clause 1 of section 92 can be read as enlarging
the authority of the legislature under the other clauses of that section, or as
freeing the legislature from the restrictions imposed by those clauses.
I now come to section 101. That section has two
branches, one which deals with a general court of appeal for Canada, while the
other relates to the establishment of additional courts for the better
administration of the laws of Canada. The phrase "laws of Canada" here embraces any law "in relation to some
subject-matter, legislation in regard to which is within the legislative
competence of the Dominion" (Consolidated Distilleries v. The
King).
It may be added that it has been held to give
authority to Parliament in relation to the jurisdiction of provincial courts;
and to impose on such courts judicial duties in respect of matters within the
exclusive competence of Parliament: insolvency (Cushing v. Dupuy);
in election petitions (Valin v. Langlois).
[Page 62]
Furthermore, the general jurisdiction of
Parliament in relation to peace, order and good government has been exercised
in imposing duties on provincial courts in relation of appeals from the courts
of territories not within the limits of the provinces. Examples are: the appeal
to the Court of Queen's Bench for Manitoba from the court of the North-West Territories (Riel v. The Queen); and
the appeal from the courts of the Yukon to the Supreme Court of British Columbia (McDonald v. Belcher).
As respects the general court of appeal, the
authority is "notwithstanding anything in this Act, from time to
time" to- make provision "for the constitution, maintenance, and
organization of a general court of appeal for Canada." And the question for determination is whether this enactment
imports an ambit of legislative authority that embraces the power to endow the
court constituted under it with "ultimate and exclusive" jurisdiction
in respect of appeals from provincial courts.
Prima facie, the
authority is to make legislative provision for a court which shall have general
authority as a court of appeal for Canada; and to provide for the constitution and organization of that court.
This necessarily involves the power to subject every court of judicature or of
public justice to the appellate jurisdiction of the court so to be constituted.
The section, until it is acted upon by
Parliament, subtracts nothing from the legislative authority of the provinces.
It subtracts nothing from any judicial authority exercisable in the Dominion.
But when the Court is constituted and its jurisdiction and powers are defined
by Dominion legislation, such legislation takes effect according to its scope
and purport notwithstanding anything in the Confederation Act or anything done
under that Act. Therefore, it is within the ambit of the legislative authority
conferred by this section to define the cases in which, and the conditions
under which, the appellate jurisdiction may be invoked, the powers of the court
in respect of the judgments and orders it may pronounce, to provide for making
such judgments and orders effective, and for that
[Page 63]
purpose to require the court appealed from to
give effect to such judgments and orders according to their tenor.
In other words, it is competent to Parliament to
give jurisdiction to entertain an appeal in any and every case in which it
thinks fit to do so, and also to confer the correlative right of appeal in such
cases and in any and every case to require the court appealed from to carry out
any judgment pronounced upon the appeal. This, it appears to me, is involved,
without qualification, in the very words of the section.
Are you then to imply a constitutional exception
imperatively exempting from the operation of legislation under the section
judgments or decisions from which, by the existing law, appeal may be taken or
may have been taken to the Judicial Committee?
It is of the first importance, I think, to notice
that in ascertaining what powers are derived from the section, you are to give
effect to its language "notwithstanding anything in this Act."
I think, since the Statute of Westminster, I
cannot, without disregarding the reports of the Imperial Conferences recited
therein, imply such a qualification. On the contrary, the governing object of
section 101 being to invest the Parliament of Canada with legislative authority
to endow a court of appeal for Canada with general appellate jurisdiction over
all courts in Canada, and all persons concerned in proceedings in those courts,
and with power to give complete effect to the judgments of that court,— such
being the general object of the enactment, all subsidiary powers must,
especially in view of the phrase just mentioned, be implied to enable
Parliament to legislate effectively for that object.
Three considerations seem to me to be decisive:
(a) Since this legislative authority may be
executed in Canada
"notwithstanding anything in this Act," you cannot imply any
restriction of power because of anything in section 92. Assuming even that
section 92 gives some authority to the legislatures in respect of appeals to
the Privy Council, that cannot detract from the power of Parliament under
section 101. Whatever is granted by the words of the section, read and applied
as prima facie intended to endow Parliament with power to effect high
[Page 64]
political objects concerning the self government
of the Dominion (section 3 of the B.N.A. Act) in the matter of judicature, is
to be held and exercised as a plenary power in that behalf with all ancillary
powers necessary to enable Parliament to attain its objects fully and
completely. So read it imports authority to establish a court having supreme
and final appellate jurisdiction in Canada;
(b) Since, in virtue of the words of section
101, Parliament may legislate for objects within the ambit of section 101
regardless of any powers the provinces may possess to affect appeals to the
Judicial Committee, it follows that the general power of Parliament to make
provision for the peace, order and good government of Canada in relation to
such objects is in no way limited by the exception of "local matters"
assigned exclusively by the introductory words of section 91 to the legislatures
of the provinces; and, consequently, no existing judicial authority competent
to affect the course of judicature in Canada can be an obstacle precluding the
Parliament of Canada from making its legislation relating to these objects
effective;
(c) Having regard to the reports of the Imperial
Conferences recited in the Statute of Westminster, to the provisions of that
statute, and to the terms of section 101, you cannot properly read anything in
the Statute of Westminster or in the B.N.A. Act as precluding Parliament, for
the purpose of effecting its objects within the ambit of that section from
excluding from Canada the exercise of jurisdiction by a tribunal constituted,
organized and exercising jurisdiction under the exclusive authority of another
member of the British Commonwealth of Nations.
The exercise of such jurisdiction for Canada by a tribunal exclusively subject to
the legislation of another member of the Commonwealth is not a subject which
can properly be described (as subject matter of legislative authority) as a
matter merely local or private within a province. And again, the power to make
laws for the peace, order and good government of Canada in relation to matters
within section 101 being without restriction, the power of Parliament in such matter
is, as I have said more than once, paramount. In truth, the point seems to be
governed by the decision in the Aeronautics
[Page 65]
Reference as well as by the
decision in the Radio Reference. The primacy of
Parliament under section 101 is just as absolute as under the enumerated
clauses of section 91.
As to appeals from the Supreme Court of Canada, or from any additional courts
established under section 101. it ought, perhaps, to be noticed that since the
provinces can have no jurisdiction respecting them, they obviously fall within
the ambit of the general power in relation to peace, order and good government.
Second, I come to the appeal as of right, so
called.
Before this topic is discussed, it is advisable,
I think, to refer to the contention that His Majesty's prerogative in relation
to appeals was merged in the statutory powers of the Judicial Committee under.
the Judicial Committee Acts of 1833 and 1844. I should have thought it more
accurate to say that this legislation affirmed and regulated the exercise of
His Majesty's prerogative power in relation to appeals. The appeal is still an
appeal to His Majesty in Council though in point of substance (British Coal
Corporation's case, the appellate jurisdiction is now
exercised by the statutory court of the Judicial Committee, and I should have
thought it resulted from the terms of section 92 of the British North
America Act and the judgments in Nadan v. The King
and in the British Coal Corporation v. The King that
before the enactment of the Statute of Westminster neither the Parliament of
Canada, nor the legislature of a province, could subtract from or add to His
Majesty's prerogative as exercised by the Judicial Committee or, to put it
another way, to the jurisdiction of the Judicial Committee.
We have to consider the legislation of Ontario and Quebec touching this subject,
the appeal as of right, the orders in council affecting the other provinces,
except British Columbia, and
the rather special position of British Columbia.
As to Ontario and Quebec, the statutory provisions with which we are concerned were first
enacted by the provinces of Upper and Lower Canada in professed exercise of
authority conferred by the Constitutional Act of 1791;
[Page 66]
they were continued in force in the province of Canada by section 46 of the Act
of Union of 1840 and are still in force under the authority of section 129 of
the British North America Act.
To begin with Ontario and Quebec. The legislation in force was
considered by the Judicial Committee in the year 1880 in Cushing v. Dupuy.
The appeal was from a judgment of the Court of Queen's Bench of the province of Quebec,
reversing the judgment of a judge of the Superior Court in certain proceedings
in insolvency instituted under an Act of the Parliament of Canada entitled An
Act respecting Insolvency (38 Vict., c. 16). An application to the Court of
Queen's Bench for leave to appeal to His Majesty in Council was refused on the
ground that under the Insolvency Act its judgment was final. Article
1178 of the Code of Civil Procedure of 1867 in so far as relevant is in these
words:
1178. An appeal lies to Her Majesty in the
Privy Council from final judgments rendered in appeal or error by the Court of
Queen's Bench:—
1. In all cases where the matter in dispute
relates to any fee of office, duty, rents, revenue, or any sum of money payable
to her Majesty;
2. In cases concerning titles to lands or
tenements, annual rents and other matters by which the rights in future of
parties may be affected;
3. In all other cases wherein the matter in
dispute exceeds the sum or value of five hundred pounds sterling.
The corresponding Ontario enactment is to the same effect except as to the pecuniary limit
and as to another point to which reference will be made.
The effect of the Insolvency Act in
declaring the judgment of the Court of Queen's Bench to be final in insolvency
proceedings was held to preclude any appeal under article 1178 if valid; and it
was also held that legislation precluding such appeal could be validly enacted
in respect of insolvency proceedings by the Parliament of Canada under the
authority of section 91 (21) relating to Bankruptcy and Insolvency unless it
infringed the Queen's prerogative.
It was held that such an enactment would not
"infringe the prerogative" for the reason that
since it only provides that the appeal to
Her Majesty given by the Code framed under the authority of the Provincial
Legislature as part of the
[Page 67]
civil procedure of the province shall not
be applicable in the new proceedings in insolvency which the Dominion Act
creates, such a provision in no way trenches on the Royal prerogative.
The judgment is important, first, since it
characterizes the article of the code as a provision enacted under the
authority of the provincial legislature "as part of the civil procedure of
the province." Second, that the legislature of the Dominion, in
legislating upon a subject within its powers, could remove proceedings under
that legislation from the operation of this provision and that in doing so it
was in no way trenching on the Royal prerogative.
It ought also to be added as of equal importance
that, the Judicial Committee having held the Court of Queen's Bench to be right
in refusing to admit the appeal, it follows in point of law that there was no
appeal from a judgment of the Court of Queen's Bench which the Parliament of
Canada could not declare inadmissible in insolvency proceedings without
infringing Her Majesty's prerogative.
Now, it is quite plain that, neither in 1867 nor
in 1875 (it is conclusively settled by Nadan v. The King,
as interpreted by the British Coal Corporation's case),
neither the legislature of a province nor the Parliament of Canada could enact
laws binding upon His Majesty respecting his appellate jurisdiction. We must,
consequently, hold that this provincial legislation does not, and cannot, be
legislation upon the subject of His Majesty's jurisdiction.
It is legislation in relation to procedure in
the provincial courts giving directions to such courts as to proceedings that
may be taken in them in respect of appeals to His Majesty.
The same considerations apply to Ontario.
If the Royal Proclamation of 1763 had the effect
of creating jurisdiction then we are bound to hold under the authorities
mentioned that no legislature in Canada had, prior to the Statute of
Westminster, authority to abrogate that jurisdiction and the powers of the
provinces have not, as explained above, been since enlarged because such
jurisdiction is not a local matter within section 92.
[Page 68]
The same considerations apply to British Columbia in so far as regards the
statute of 1858. The order in council of 1856 must, I think, be taken to have
been passed under the authority of the Judicial Committee Act of 1844;
and the orders in council of that character I am now to consider.
The provinces, other than Ontario and Quebec, are governed in respect of the
appeal as of right by orders in council under the statute of 1844. These orders
in council merely regulate the exercise of the jurisdiction of the Judicial
Committee; but, for the reasons given, no province can be competent to abrogate
them in so far as the jurisdiction of the Judicial Committee would be thereby
impaired; and it is only with this jurisdiction that we are concerned, because
jurisdiction is the subject matter of this Bill. In truth, it would appear that
the orders in council and the legislation of Ontario and Quebec assume
the existence of the jurisdiction of the Judicial Committee. The Bill before us
professes to take away that jurisdiction. The power of Parliament even under
the introductory clause of section 91 in respect of that subject does not
conflict with any authority of the provinces in relation to procedure in the
provincial courts which postulates the existence of the jurisdiction.
The statute of Ontario professes to declare that, except in the cases specified, no appeal
shall lie to His Majesty in his Privy Council. If the subject matter of this
enactment really is the jurisdiction of the Judicial Committee then it is
invalid. Probably, it ought to be read as a declaration that the rights given
under the statute, whatever they may be, apply only in the cases specified.
To sum up with regard to the appeal as of right.
In respect of that appeal, in so far as we are concerned with His Majesty's
prerogative or the jurisdiction of the Judicial Committee, what I have said
applies to the appeal as of right as well as to the prerogative appeal; and, I
repeat, we are concerned here only with legislation abrogating the prerogative
as regards Canada and with legislation abrogating the jurisdiction of the
Judicial Committee as regards Canada. If such legislation is not within the
ambit of the powers given to the provinces, or is within the ambit of the
powers of the Dominion in respect of objects contemplated by section 101, then
the Bill is valid.
[Page 69]
I have proceeded thus far without any reference
to the judgment of their Lordships of the Judicial Committee in the British
Coal Corporation v. The King. I cannot satisfy myself
whether or not their Lordships intended to express a final view that the appeal
as of right is, from the provincial point of view, a local matter assigned to
the provinces for legislative action by section 92. As far as I can see, that
particular point did not arise for decision or for examination in that case.
We have been obliged to say in some cases, and
have said with the approval of the Judicial Committee, that observations
forming no part of the ratio decidendi in judgments of the Judicial
Committee do not necessarily acquit us of the responsibility of deciding for
ourselves on the point dealt with (Dominion of Canada v.
Province of Ontario). For my own part, if I were satisfied
their Lordships had really intended to express an opinion upon the point new
before us I should regard that as conclusive for the purposes of this
reference; but I am not satisfied they did, and I am inclined to think they did
not. In these circumstances it is my duty to form an opinion upon the point. I
should add that their Lordships expressed no opinion as to the effect of
section 101 and, apparently, did not consider it.
I return now to a point as to the effect of
section 129 of the British North America Act already alluded to. Their
Lordships in the British Coal Corporation's case say
that before the Statute of Westminster the Dominion legislature was subject, in
legislating under section 91, to the limitations imposed not only by the Colonial
Laws Validity Act, but also by section 120 of the British North America
Act. I do not know that the point is now of any practical importance, but
if it has not been finally decided, I venture to suggest, as regards section
101, that "notwithstanding anything in this Act" includes within its
purview every part of section 129 as well as all the other sections of the Act.
My opinion, therefore, is:
First, that since, by the Statute of
Westminster, the obstacles have been removed which prevented the Parliament
[Page 70]
of Canada giving full effect to legislation for objects within its powers
affecting the appeal to His Majesty in Council, there is now full authority
under the powers of Parliament in relation to the peace, order and good
government of Canada in respect
of the objects within the purview of section 101 to enact the Bill in question.
Secondly, that neither the prerogative power of
His Majesty to admit appeals from Canadian courts, nor the exercise of that
power in admitting such appeals, nor the jurisdiction of the statutory
tribunal, the Judicial Committee of the Privy Council, in respect of such
appeals, or in respect of appeals as of right, is subject matter for the
legislative jurisdiction of the provinces as comprised within the local matters
assigned to the legislatures by section 92, and all such matters are, therefore,
within the general authority in relation to peace, order and good government.
The answer to the interrogatory addressed to us
by His Excellency in Council is that the Bill mentioned in the question is intra
vires of the Parliament of Canada in its entirety.
Rinfret J.—The question referred to this Court is as follows:
Is said Bill 9, entitled "An Act to
amend the Supreme Court Act," or any of the provisions thereof, and in
what particular or particulars, or to what extent, intra vires of the
Parliament of Canada.
The object and intent of Bill 9 is to amend the Supreme
Court Act so that the Supreme Court shall have, hold and exercise
"exclusive, ultimate" appellate civil and criminal jurisdiction
within and for Canada, and that
its judgments shall in all cases be final and conclusive.
My opinion is that the question should be
answered in the affirmative, as to all the provisions of the Bill; and I base
that opinion upon the following reasons:
It has been repeatedly laid down by the Judicial
Committee adjudicating upon the powers conferred by the British North
America Act, that
the powers distributed between the Dominion
on the one hand and the provinces on the other hand cover the whole area of
self-government within the whole area of Canada
[Page 71]
and
whatever belongs to self-government in
Canada belongs either to the Dominion or to the provinces, within the limits of
the British North America Act.
(Attorney-General for Ontario v. Attorney-General for Canada).
Since the adoption of the Statute of Westminster,
1931, and the judgment of the Privy Council in British Coal Corporation v.
The King, it must be taken as now settled that
appeals from Canadian courts to The King in Council are
essentially matters of Canadian concern,
and the regulation and control of such appeals would thus seem to be a prime
element in Canadian sovereignty as appertaining to matters of justice.
It follows, therefore, that the real question
presented for decision is whether the power to constitute the Supreme Court of
Canada the "exclusive, ultimate" appellate court and to prohibit all
appeals to His Majesty in Council is within the legislative competence of the
Dominion Parliament or of the provincial legislatures.
The rule of construction followed in such cases
is to decide, first, whether the Act falls within any of the classes of
subjects enumerated in section 92 and assigned exclusively to the legislatures
of the provinces. (Citizens Insurance Company v. Parsons.
If it does not, then it must fall within the legislative competence of the
Dominion Parliament, for
the Federtaion Act exhausts the whole range
of legislative power, and whatever is not thereby given to provincial
legislatures rests with the Parliament.
(Bank of Toronto v. Lambe).
The only head of provincial legislative
jurisdiction which we have to consider is head (14) of section 92:
The administration of justice in the
province, including the constitution, maintenance, and organization of
provincial courts, both of civil and of criminal jurisdiction, and including
procedure in civil matters in those courts.
If the matter of appeals to the Privy Council be
within the legislative competence of the provinces, it must fall
[Page 72]
under this head, for the several compartments of
section 92 cannot overlap and it must be obvious that head (14) excludes the
others.
The controlling words in head (14) are "The
administration of justice in the provinces." The words are not: in respect
of or for the province; they restrict the power to the administration of
justice "in the province." These words cannot include matters of
appeal from Canadian courts to the Privy Council in London. (Royal Bank of Canada v. The King; Brassard
v. Smith, and Provincial Treasurer of Alberta v.
Kerr).
As for the remainder of head (14) concerning the
constitution, maintenance and organization of provincial courts, both of civil
and of criminal jurisdiction and the procedure in civil matters in those
courts, it need only be said that obviously it cannot have any reference
whatever to His Majesty in Council or to the Judicial Committee of the Privy
Council.
In recent years we have had the advantage of two
pronouncements of the Judicial Committee on the question of the power to
abolish appeals to the Privy Council and it seems to me that they are decisive
of the point which is now submitted to this Court.
In Nadan v. The King,
there was an application for special leave to appeal from a provincial court
from two convictions, one under a provincial Liquor Act and the other under the
Dominion Liquor Act. The point was raised that there was no jurisdiction to
give leave having regard to section 1025 of the Criminal Code of Canada. It was
held that section 1025 was ineffective to annul the right of His Majesty to
grant special leave to appeal in a criminal case upon two grounds, first, that
the powers of the Dominion Parliament are confined to action to be taken in the
Dominion and, second, that the section was repugnant to the Judicial Committee
Acts and, therefore, inoperative by virtue of the Colonial Laws Validity Act,
1865.
The judgment in Nadan's case
was interpreted by the Board in the British Coal Corporation case,
as being based upon those two grounds: the repugnancy of
[Page 73]
section 1025 to the Privy Council Acts and,
therefore, to the Colonial Laws Validity Act and that it could only be
effective if construed as having extra-territorial operation, whereas according
to the law as it was in 1926 the Dominion statute could not have
extra-territorial operation. The effect of those two decisions is clearly that
the matter of the appeal to the Privy Council was then considered outside the
territory of Canada and could only be effectively dealt with by Canadian
legislation if that legislation could have extra-territorial operation, which
it had not at the time. By the Statute of Westminster the restriction imposed
by the Colonial Laws Validity Act has been removed both as regards the
Dominion Parliament and the provincial legislatures. The Dominion Parliament
was further given full power to make laws having extra-territorial operation;
but such power was not given to the provincial legislatures. The following
consequences seem to be the result from the two decisions of the Privy Council
above referred to and from the subsequent enactment of the Statute of
Westminster:—
The question of appeals to the Privy Council was
considered by the Judicial Committee as a matter of extraterritorial operation.
It was decided that previous to the Statute of
Westminster the Dominion Parliament could not effectively deal with the whole
question of the appeals to the Privy Council because it had not then the power
to make laws having extra-territorial operation.
It is only because such power was given to the
Dominion Parliament by the Statute of Westminster that the British Coal
Corporation case was subsequently decided upholding the
Dominion's jurisdiction.
We must conclude that a fortiori the
provincial legislatures could not effectively legislate with regard to the
abolition of appeals to the Privy Council as the law stood before the Statute
of Westminster; and, as they continue as before to have no legislative capacity
to make any law having extra-territorial operation, they have no power to deal
with the matter of appeals to the Privy Council.
The result would be that this matter not being
within the legislative competence of the provinces it must fall
[Page 74]
necessarily within the competence of the
Dominion Parliament.
This result is further supported in my view by
section 101 of the British North America Act.
Under that section
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, etc.
The legislative authority conferred on the Dominion
by that section is exclusive, paramount and plenary. It cannot be taken away or
impaired by provincial legislation (Crown Grain Co. v. Day).
Its jurisdiction extends as well to the laws passed by the Parliament of Canada
as to any provincial law. It is "a general Court of Appeal for Canada" and the Dominion Parliament
may exclusively determine the appellate jurisdiction of the Court.
One of the principal functions of a general
Court of Appeal should be to settle jurisprudence and that object fails completely
if it is not the final and ultimate Court of Appeal. There appears to be no
sound ground for the suggestion that legislation by Parliament directed to that
purpose would not be legislation relating to the constitution, maintenance and
organization of the Supreme Court of Canada in its character as a general Court
of Appeal for Canada.
An attempt was made at the argument to make a
distinction with regard to admiralty law, but I think the legislative
competence of the Dominion Parliament on that subject would naturally fall
under the power to deal with navigation and shipping and the further power
given by section 101 as to the
establishment of any additional courts for the
better administration of the laws of Canada.
For those reasons, I have come to the conclusion
that Bill 9 in toto is intra vires of the Parliament of Canada.
Crocket J.—Although this bill, as it comes to us on this reference, simply
entitled "An Act to amend the Supreme Court Act of Canada" purports
to amend "The Supreme Court of Canada Act," c. 35 of the
Revised Statutes of Canada, 1927, only by repealing s. 54 of that Act and
substituting for it a new section of three comparatively
[Page 75]
short subsections, the most cursory examination
of the proposed substitution shews that it goes far beyond the mere elimination
from the existing section of its express recognition of the royal prerogative
to grant leave to appeal from the judgments of this court. Its real purpose is
to give this court "exclusive ultimate appellate civil and criminal
jurisdiction within and for Canada," as it is expressed in s.s. 1. To accomplish this purpose the
bill itself recognizes that the mere abrogation of the existing prerogative in
relation to the judgments of this court will not suffice, and that it requires
to make an end also of the long established prerogative of the reigning
Sovereign to grant special leave to appeal to His Majesty's Privy Council from
any judgment pronounced by any of His courts of justice in any of the provinces
of the Dominion, and to annul as well the provisions of any and every statute
or law now in force in any province under which appeals may be taken directly
as of right to the Judicial Committee of the Privy Council in certain cases
from the judgments of provincial courts. (The Code of Civil Procedure of
Quebec, as amended by 8 Edward VII, c. 75 and 8 George V, c. 78 expressly
provides for an appeal to His Majesty in His Privy Council from final judgments
of the Court of King's Bench in all cases where the amount or value of the
thing demanded exceeds $12,000, as well as in all cases concerning titles to
lands or tenements, annual rents or other matters in which the rights in future
of the parties may be affected. The Privy Council Appeals Act, Revised
Statutes of Ontario, 1937, provides also that an appeal shall lie to His
Majesty in His Privy Council where the matter in controversy in any case
exceeds the sum or value of $4,000, as well as in any case where the matter in
question relates to the taking of any annual fee or rent, customary or other
duty or fee or any like demand of a general and public nature affecting future
rights, of what value or amount soever the same may be, while in all the other
Provinces of Canada Imperial Orders in Council, made under the provisions of the
Judicial Committee Act, 1933, 3 & 4 William IV, c. 41, and the Judicial
Committee Act, 1844, c. 69, of the Imperial Statutes, 7 & 8 Vict.,
which provide for direct appeals from the judgments of the Supreme and other
courts of the several
[Page 76]
provinces to the Judicial Committee without any
special leave of the Imperial Privy Council, undoubtedly are now operative in
the other seven provinces and have the same force and effect as if their
provisions had been expressly enacted by their respective legislatures.) Hence
the far-reaching, all-embracing proposal of s.s. 2:—
(2) Notwithstanding any royal prerogative
or anything contained in any Act of the Parliament of the United Kingdom (this
manifestly would cover the B.N.A. Act itself) or any Act of the Parliament of
Canada or any Act of the legislature of any province of Canada or any other
statute or law, no appeal shall lie or be brought from any court now or
hereafter established within Canada to any court of appeal, tribunal or
authority by which, in the United Kingdom, appeals or petitions to His Majesty
in Council may be ordered to be heard.
And that of s.s. 3, actually declaring that:—
(3) The Judicial Committee Act, 1833,
chapter forty-one of the statutes of the United Kingdom of Great Britain and
Ireland, 1833, and The Judicial Committee Act, 1844, chapter sixty-nine
of the statutes of the United Kingdom of Great Britain and Ireland, 1844, and
all orders, rules or regulations made under the said Acts are hereby repealed
in so far as the same are part of the law of Canada.
The undoubted effect of the enactment of such a
measure by the Parliament of Canada would be an open defiance by that body of
the authority of any of the provincial legislatures of Canada to legislate in
respect either of appeals as of right directly to the Judicial Committee of the
Privy Council from the judgments of provincial courts now or hereafter
established within Canada, or in respect of the royal prerogative to grant
leave to appeal thereto independently of the provisions of any statute or law
duly enacted by the legislature of any province or duly established by Order in
Council under the provisions of the Imperial Judicial Committee Acts of
1833 and 1844. It would amount to an attempt on the part of the Parliament of
Canada to arrogate to itself the complete control of the administration of
justice in all the Provinces of the Dominion in so far as the finality of
judgments in civil as well as in criminal cases is concerned and the right of
the subject or anybody submitting to the jurisdiction of a provincial court to
petition His Majesty for leave to appeal to him for redress through his
Judicial Committee, and thus to strike at the constitutional integrity of all
the provinces of Canada as self-governing entities under the British Crown.
[Page 77]
If any warrant exists for the presentation to
the Parliament of Canada of such a drastic bill it must be found either in the
Statute of Westminster, 1931, 22 George V, ch. 4, or in the British North
America Acts, 1867 to 1930.
Sec. 4 of the first mentioned Imperial Statute,
enacting that the Parliament of a Dominion has full power to make laws having
extra-territorial operation, has been much stressed as a justification for the
presentation of the bill in question. It is contended that its enactment would
have extra-territorial operation inasmuch as it would prohibit the hearing of
appeals by His Majesty's Judicial Committee of the Privy Council, which sits in
the United Kingdom beyond the territorial limits of Canada.
The answer to this contention, I think, is that
in so far as the direct right of appeal to the Judicial Committee of the Privy
Council provided by the statutes of Quebec and Ontario and by orders in council
in the other provinces of the Dominion is concerned, the principal, and indeed
the only effective, operation of the now proposed enactment would be the
virtual repeal of these provincial statutes and orders in council, which
manifestly could have effect only in Canada. This would be true also of the
proposed abrogation of the royal prerogative in relation to the granting not
only of appeals from the judgments of any provincial court in Canada, but also in relation to the
granting by royal prerogative of appeals from judgments of the Supreme Court of
Canada. So far as the exercise by the Sovereign of the royal prerogative is
concerned, it cannot in any sense be said to be localized either in the place
where the Sovereign resides nor in the place where His Judicial Committee sits,
as was so clearly pointed out by Viscount Haldane in delivering the judgment of
the Judicial Committee of the Privy Council in Hull v. McKenna:
"The Judicial Committee of the Privy Council," said Lord Haldane,
is not an English body in any exclusive
sense. It is no more an English body than it is an Indian body, or a Canadian
body, or a South African body, or for the future, an Irish
Free State body. There sit among our numbers Privy
Councillors who may be learned Judges of Canada—there was one sitting with us
last week—or from India, or we may have the Chief Justice, and very often have
had them from the other Dominions, Australia and South Africa. I
mention that for the purpose of bringing
[Page 78]
out the fact that the Judicial Committee of
the Privy Council is not a body, strictly speaking, with any location. The
Sovereign is everywhere throughout the Empire in the contemplation of the law.
He may as well sit in Dublin, or at Ottawa, or in South Africa, or in
Australia, or in India as he may sit here, and it is only for convenience, and
because we have a Court, and because the members of the Privy Council are
conveniently here that we do sit here; but the Privy Councillors from the
Dominions may be summoned to sit with us, and then we sit as an. Imperial Court
which represents the Empire, and not any particular part of it.
In British Coal Corporation v. The
King, Lord Sankey in delivering the
judgment of the Judicial Committee said:
It may now be considered whether there is
since the statute (authorizing appeals as of right to the Privy Council) any
sufficient reason why this matter of the special or prerogative appeal to the
King in Council should be treated, as being something quite special and as
being a matter standing, as it were, on a pedestal by itself. Ought it not to
be treated as simply one element in the general system of appeals in the
Dominion? The appeal, if special leave is granted, is from the decision of a Canadian Court, and is to secure a reversal
or alteration of an order of a Canadian Court: if it is successful, its effect will be that the order of the Canadian Court will be reformed
accordingly. Rights in Canada and law in Canada will thus be affected. The appellant and respondent in any such
appeal must be either Canadian citizens or persons who have submitted to the
jurisdiction of the Canadian courts. Such appeals seem to be essentially
matters of Canadian concern, and the regulation and control of such appeals
would thus seem to be a prime element in Canadian sovereignty as appertaining
to matters of justice. But it is said that this class of appeal is a matter
external to Canada: emphasis is laid particularly on the fact that the Privy
Council sits in London, and that in form the appeal by special leave is not to
the Judicial Committee as a Court of Law, but to the King in Council exercising
a prerogative right outside and apart from any statute. As already explained,
this latter proposition is true only in form, not in substance. But even so the
reception and the hearing of the appeal in London is only one step in a composite procedure which starts from the
Canadian court and which concludes and reaches its consummation in the Canadian
court. What takes place outside Canada is only ancillary to practical results which become effective in Canada. And the appeal to the King in
Council is an appeal to an Imperial, not a merely British, tribunal.
The last mentioned case, which was an
application for leave to appeal from a criminal conviction, decided that the
extent of the legislative competence conferred on the Canadian Parliament in
regard to appeals to the King in Council in criminal matters must now be
ascertained from its constituent Act, the British North America Act, and
[Page 79]
that s. 91 of that Act, read with the rest of
the Act by necessary intendment, invested the Parliament with power to regulate
or prohibit appeals to the King in Council in criminal matters. In the course
of his judgment Viscount Sankey said, at p. 520:
A most essential part of the administration
of justice consists of the system of appeals. It is not doubted that with the
single exception of what is called the prerogative appeal, that is, the appeal
by special leave given in the Privy Council in London, matters of appeal from
Canadian courts are within the legislative control of Canada, that is, of the
Dominion of the Provinces, as the case may be.
So that, while the decision in British Coal
Corporation v. The King may be taken to have settled the
question of the right of the Dominion Parliament (by reason of its exclusive
legislative jurisdiction in relation to criminal law, including procedure in
criminal cases) to prohibit appeals to the King in Council in criminal matters,
that decision does not extend to appeals, either as of right or by the exercise
of the royal prerogative in relation to classes of subjects, which the British
North America Act has assigned exclusively to the Legislatures of the
Provinces.
Apart, however, from these considerations and
pronouncements it seems to me that it is only necessary to examine ss. 2 of s.
2 of the Statute of Westminster in connection with and in the light of ss. 2 of
s. 7 of that statute to see that s. 3 of that statute respecting the power of
the Parliament of the Dominion to make laws having extra-territorial operation
could not reasonably be held to apply to such a matter as the royal prerogative
to grant leave to appeal to the Judicial Committee of the Privy Council. Ss. 2
of s. 7 provides that ss. 2 of s. 2 shall extend to laws made by any of the
Provinces of Canada and to the powers of the legislatures of such provinces.
The provisions, therefore, of ss. 2 of s. 2 of the Statute of Westminster
enacting that no law and no provision of any law made after the commencement of
that Act by the Parliament of a Dominion shall be void or inoperative on the
ground that it is repugnant to the law of England or to the provisions of any
existing or future Act of Parliament of the United Kingdom or to any order,
rule or regulation made under any such Act, and that the powers of the
Parliament of the Dominion
[Page 80]
shall include the power to repeal or amend any
such Act, order, rule or regulation, in so far as the same is part of the law
of the Dominion, applies in the same way to laws made by any of the Provinces
of Canada and to the powers of the Legislatures of those Provinces as it does
to laws made by the Parliament of Canada and to the powers of that Parliament.
The power, therefore, to repeal or amend any Act of the Parliament of the
United Kingdom or any order, rule or regulation made thereunder, whether such
repeal or amendment be made by the Parliament of Canada in relation to matters
within its legislative jurisdiction or by the legislature of any province in
relation to matters within its legislative jurisdiction is expressly limited by
the words "in so far as the same is part of the law of the Dominion,"
i.e., Canada and its several component provinces.
If the extra-territorial argument is not fully
met by what I have already said, it is in my opinion effectually disposed of by
reference to ss. 1 and 3 of s. 7 of the Statute of Westminster. The argument in
behalf of the Dominion in this regard rests entirely upon the fact that ss. 2
of s. 7, which extends the provisions of ss. 2 of s. 2 to the Legislatures of
the Provinces, makes no specific mention of s. 2 relating to the power of the
Parliament of the Dominion to make laws having extra-territorial operation. It
is claimed that this omission shews conclusively that it was the intention of
the Imperial statute to confer some new power upon the Parliament of a Dominion
as distinguished from the Legislatures of the Provinces. Ss. 2 of s. 7,
however, explicitly enacts that
the powers conferred by this Act (including
of course that conferred by s. 3) upon the Parliament of Canada or upon the
Legislatures of the Provinces shall be restricted to the enactment of laws in
relation to matters within the competence of the Parliament of Canada or of any
of the Legislatures of the Provinces respectively,
so that by the operation of this ss. 3 of s. 7
alone s. 3 could not well be held to confer upon the Parliament of Canada any
power to make laws in relation to matters, which were not already within its
competence at the time of the passing of this Imperial statute. This accords
entirely with the principle laid down by Lord MacMillan in delivering the
judgment of the Judicial Committee in
[Page 81]
Croft v. Dunphy,
in holding that the Parliament of Canada was competent to provide by ss. 151
and 207 of the Customs Act (R.S. Canada 1927, ch. 42 as amended in 1928)
that any vessel registered in Canada hovering within twelve miles of Canada
having on board dutiable goods, the vessel and her cargo were to be seized and
forfeited. Lord MacMillan there said:
But while the Imperial Parliament may be
conceded to possess such powers of legislation under international law and
usage, the respondent contends that the Parliament of Canada has no such
powers. It is not contested that under the British North America Act the
Dominion legislature has full power to enact customs laws for Canada, but it is maintained that it is
debarred from introducing into such legislation any provisions designed to
operate beyond its shores or at any rate beyond a marine league from the coast.
In their Lordships' opinion the Parliament
of Canada is not under any such disability. Once it is found that a particular
topic of legislation is among those upon which the Dominion Parliament may
competently legislate as being for the peace, order and good government of
Canada or as being one of the specific subjects enumerated in s. 91 of the British
North America Act, their Lordships see no reason to restrict the permitted
scope of such legislation by any other consideration than is applicable to the
legislation of a fully Sovereign State.
Although the Statute of Westminster was then in
force and their Lordships' attention was drawn to s. 3, which it was suggested
had retrospective effect, their Lordships held in the view which they had taken
of that case it was not necessary to say anything on that point beyond observing
that the question of the validity of extra-territorial legislation by the
Dominion could not at least arise in the future. The decision, however, as I
have already intimated, is clearly in line with the express provisions of ss. 3
of s. 7 of the Statute of Westminster, which so explicitly restricts the
Parliament of Canada in making laws having extra-territorial operation to
matters within its competence. This obviously can only refer to matters within
the competence of the Parliament of Canada under the provisions of the British
North America Acts, 1867 to 1930, in the light of the provisions of ss. 1
of that section enacting that
Nothing in this Act shall be deemed to
apply to the repeal, amendment or alteration of the British North America
Acts, 1867 to 1930, or any order, rule or regulation made thereunder.
[Page 82]
Far, then, from conferring any new legislative
powers upon the Parliament of Canada in derogation of the legislative powers of
its several provinces, the Statute of Westminster plainly preserves the British
North America Acts, 1867-1930, intact and, moreover, explicitly restricts
the legislative powers of both the Dominion Parliament and the provincial
legislatures to their respective legislative fields, as prescribed by those
Acts.
If I am right in this view it follows that if
any authority exists for the enactment of this far-reaching bill by the
Parliament of Canada it must be sought within the four corners of the British
North America Act itself.
Now, there are but two sections of that Act
which are or possibly can be relied upon to support it or any part of it, viz:
ss. 91 and 101.
Dealing first with s. 91, this is the well-known
section, which prescribes the general authority of the Parliament of Canada to
make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of
subjects assigned exclusively to the Legislatures of the Provinces. In addition
to this general authority, and subject to the express limitation mentioned, it declares
that
for greater certainty, but not so as to
restrict the generality of the foregoing terms of this section * * *
(notwithstanding anything in this Act) the exclusive legislative authority of
the Parliament of Canada extends to all matters coming within the classes of
subjects next hereinafter enumerated.
Then follows the enumeration of 29 specific
classes of subjects.
If the subject matter of this bill does fall
within any of the classes of subjects assigned exclusively to the Legislatures
of the Provinces, it seems perfectly clear that the residuary power conferred
on the Parliament of Canada by the introductory words of s. 91 to make laws for
the peace, order and good government of Canada does not authorize its enactment
by that body. Our first duty, therefore, is to determine whether the bill does
or does not relate to matters falling within the exclusive legislative
prerogative of the Provinces. These 16 classes of subjects include:
[Page 83]
1. The amendment from time to time,
notwithstanding anything in this Act, of the constitution of the Province,
except as regards the office of Lieutenant-Governor.
13. Property and civil rights in the province.
14. The Administration of Justice in the
Province, including the constitution, maintenance and organization of
Provincial Courts, both of civil and of criminal jurisdiction, and including
procedure in civil matters in those courts.
That the proposed enactment directly and vitally
concerns the administration of justice in all the Provinces of Canada is self-evident.
Its avowed purpose is to constitute this court a court
of exclusive ultimate appellate civil and
criminal jurisdiction within and for Canada,
and to that end,
notwithstanding any Royal prerogative or
anything contained in any Act of the United Kingdom * * * or any Act of the
Legislature of any Province of Canada
to prohibit all appeals "from any court now
or hereafter established within Canada" to the Judicial Committee of His Majesty's Privy Council. How
then could it possibly be said that the bill does not essentially relate to the
administration of justice in every province of the Dominion, or that it is not
designed to nullify or render inoperative the laws of all the nine provinces of
Canada, under which appeals now lie directly to that body from provincial
courts —both appeals as of right in specified cases, as well as appeals in all
other cases in which His Majesty may be advised to grant special leave to
appeal thereto?
Counsel for the Attorney-General of Canada, however, argued that the meaning of
the expression "The Administration of Justice," as used in
enumeration 14, is not only limited territorially by the words "in the
Province," but also by the words
including the constitution, maintenance and
organization of Provincial Courts both of civil and of criminal jurisdiction,
and including procedure in civil matters in those courts.
It was never intended, of course, that the laws
which s. 92 exclusively empowered the legislature "in each Province"
to make in relation to matters coming within the classes of subjects therein
enumerated should have
[Page 84]
any application beyond the limits of the
province in which they are enacted. That fact, however, in no way adds to the
residuary power of the Dominion Parliament under the introductory words of s.
91 to make laws for the peace, order and good government of Canada in relation
to all matters not coming within the classes of subjects "assigned
exclusively to the Legislatures of the Provinces," that is to say, to the
legislatures of all the provinces of Canada alike. Obviously no single
legislature could make laws in relation to the administration of justice in any
other than its own province, but the legislatures of all the nine provinces of
Canada are indisputably authorized by s. 92 (14) to exclusively make laws in
relation to the administration of justice in their several provinces. The
question is, not whether any single province could legislate in relation to the
administration of justice in any other province, but whether the Dominion Parliament
under s. 91 is authorized to make laws in relation to the administration of
justice in all the provinces of Canada alike merely because the legislature of
each province necessarily can make laws in relation to the administration of
justice only in and for its own province. The answer to such a question, I
think, must be No.
As to the argument that the quoted words
immediately following narrow and limit the meaning of the general words
"The Administration of Justice in the Province," Street, J. in his
judgment in Regina v. Bush, sitting with Armour,
C.J. and Falconbridge, J. in the Ontario Divisional Court in 1888, effectually,
I think, disposed of this precise point when he said:
But these words (including the constitution
* * * of provincial courts) do not, as I read the clause, in any way limit the
scope of the general words preceding them, by which the whole matter of
the administration of justice is included. The fundamental weakness of the
defendant's argument appears to be his assumption that the word
"including" in this para. 14 is to be read as if it were
"videlicet" or as if the words "The Administration of
Justice" were to be treated, for the purpose of this discussion, as being
entitled to no weight.
His Lordship in the course of this judgment said
that para. 14 of s. 92 appeared to him to be sufficient to
[Page 85]
confer upon the provincial legislatures the
right to regulate and provide for the whole machinery connected with the
administration of justice in the provinces, including the appointment of all
the judges and officers requisite for the proper administration of justice in
its widest sense.
and pointed out that the general, governing
words of that paragraph were subject to no other limitation than that to be
found in para. 27 of s. 91 ("The Criminal Law, except the constitution of
courts of criminal jurisdiction, but including procedure in criminal
matters") and that contained is Part VII under the title
"Judicature" (ss. 96 to 101 inclusive) relating to the appointment of
judges of Superior, District and County courts and the payment of their
salaries and to the authority of Parliament to 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.
Everything coming within the ordinary
meaning of the expression "the administration of justice," not
covered by (these) sections, (he said) remains, in my opinion, to be dealt with
by the provincial legislatures in pursuance of the powers conferred upon them
by para. 14 of s. 92 * * * . It is clearly the intention of the Act that the
provincial legislatures shall be responsible for the administration of justice
within their respective provinces, excepting in so far as the duty was cast
upon the Dominion Parliament. The only duty cast upon the Dominion Parliament
in the matter is contained in the clauses to which I have referred.
My Lord the Chief Justice in delivering the
unanimous judgment of this court in 1938 in the matter of the Reference
concerning the authority of judges and junior and acting judges, etc., to
perform the functions vested in them respectively by the Ontario Children's
Protection Act and other Acts of the Ontario Legislature expressly
approved the judgment of Street, J. in this case and quoted two of the passages
I have ventured now to reproduce. Relating as it does so essentially to the
Administration of Justice, as that expression is ordinarily understood, in all
the provinces of Canada alike, it is, as I have already indicated, impossible
to say that the main purpose and the real subject matter of the proposed
enactment now before us does not fall within the classes of subjects, which the
British North America Act has assigned exclusively to the Legislatures
of the Provinces. For that reason the
[Page 86]
residuary power of the Dominion Parliament
cannot properly be invoked in its support.
This being so, the question remains, as regards
s. 91, whether, notwithstanding the fact that the proposed denial of the Royal
prerogative to grant direct appeals from all courts in and throughout Canada to
the Judicial Committee of His Majesty's Privy Council as well as the proposed
abolition of all direct appeals as of right, for which the laws of all the
provinces now provide, prima facie fall within enumerated head 14 of s.
92, do not also fall within any one of the 29 specific classes of subjects
enumerated in s. 91, in which event the power of the provincial legislatures
would be overborne according to the principle laid down by the Judicial
Committee in Citizens Insurance Co. v. Parsons; Dobie
v. Board for the Management of the Temporalities Fund of Presbyterian
Church of Canada, and Russell v. The Queen.
In expounding the principle of the pre-eminence
of Dominion legislation in cases of conflict between the enumerated heads of
ss. 91 and 92, as declared by the non obstante clause in the second
branch of the former section, Sir Montague Smith in the Parsons case
pointed out that it was obvious that in some cases where apparent conflict
exists it could not have been intended
that the powers exclusively assigned to the
provincial legislature should be absorbed in those powers given to the Dominion
Parliament * * *. It could not (he said) have been the intention that such a
conflict should exist; and in order to prevent such a result, the two sections
must be read together, and the language of one interpreted, and, where
necessary, modified, by that of the other. In this way it may in most cases be
found possible to arrive at a reasonable and practical construction of the
language of the sections so as to reconcile the respective powers they contain
and give effect to all of them.
Does then the real subject matter of this bill
fall within any of the classes of subjects specifically enumerated in s. 91?
The only one of the 29 enumerated heads of this
section having any possible relevancy on this subject is that which has already
been mentioned, (27), The Criminal Law, except the constitution of courts of
criminal jurisdiction, but including procedure in criminal matters. Reading the
[Page 87]
two sections together and setting 21 (27)
against 92 (14), there can be no doubt that the intention was that the
exclusive power of the legislatures to make laws in relation to the
"Administration of Justice" should be subject to the exclusive power
of the Dominion Parliament to make laws in relation to the Criminal Law, except
the constitution of courts of criminal jurisdiction, but including procedure in
criminal matters, and that with that single exception, so far as s. 91 is
concerned, it conferred upon the Dominion no express legislative power in
relation to the administration of justice in the provinces.
While it is true that the decision of the Privy
Council in British Coal Corporation v. The King
settled the question that s. 91 invests the Dominion Parliament with the power
to regulate or prohibit appeals to the King in Council in criminal matters,
that decision, as previously pointed out, manifestly proceeded on the ground
that The Criminal Law, including procedure in criminal matters, was
specifically placed within its jursidiction by enumerated head 27. Lord Sankey
was careful to say that their Lordships were in that judgment
dealing only with the legal position in Canada in regard to this type of appeal in
criminal matters
and that it was
neither necessary nor desirable to touch on the
position as regards civil cases.
The Parliament of Canada has already by s. 17 of
c. 53, 23-24 Geo. V (1933), provided that
Notwithstanding any royal prerogative, or
anything contained in the Interpretation Act or in the Supreme Court
Act, no appeal shall be brought in any criminal case from any judgment or
order of any court in Canada to any court of appeal or authority by which in
the United Kingdom appeals or
petitions to His Majesty in Council may be heard.
Indeed, that was the particular enactment, the
constitutional validity of which was challenged in the British Coal
Corporation case ), and definitely held by that judgment
to be within its legislative competence for the reason above indicated. This
fact would seem to make it clear that the presently proposed enactment is
directly aimed at the regulation and control of appeals to the Judicial
Committee of the Privy Council in all civil cases throughout Canada, regardless of the provisions of any
and all existing
[Page 88]
provincial laws. I have endeavoured to shew that
this is quite beyond the legislative power vested in the Parliament of Canada
by s. 91 of the B.N.A. Act.
This brings me to the more difficult question as
to whether justification can be found in s. 101 for the proposal of this bill
to completely do away with all appeals from Canada to the Judicial Committee of His Majesty's Privy Council and to
give this court "exclusive ultimate appellate and civil and criminal
jurisdiction within and for Canada." That this section enacting that the Parliament of Canada
may, notwithstanding anything in this Act, provide for the constitution,
maintenance and organization of a General Court of Appeal for Canada, constitutes a further exception to
the exclusive power of the provincial legislatures to make laws in relation to
the Administration of Justice has already appeared. It is not questioned that
the unrestricted power to constitute and organize a court necessarily implies
power to define its jurisdiction and provide for the regulation of its
procedure, nor, of course, that the exercise of such a power directly concerns
the administration of justice. The difficulty arises from the fact that while
s. 92 vests the exclusive legislative power in relation to the general subject
of the administration of justice as well as in relation to civil rights in the
Provincial Legislatures, s. 101, notwithstanding that fact, specifically
invests the Dominion Parliament with power to constitute and organize a General
Court of Appeal for Canada, and that we are again confronted with two
apparently conflicting enactments, which must be read together and so
interpreted as to give, as far as possible, reasonable and practical effect to
each. This, as I take it, is the meaning of Sir Montague Smith's pronouncement
above quoted in my discussion of the apparent conflict between ss. 91 and 92
regarding Procedure in Criminal Matters and Administration of Justice in the
Provinces, and in my opinion it is quite as applicable to the question now
under review, for, as he said, it could not have been intended that the powers
exclusively assigned to the Provincial Legislatures should be absorbed in those
powers given to the Dominion Parliament.
It is clear enough that s. 101 must be read as
conferring upon the Dominion Parliament whatever legislative authority is
necessary to the constitution and organization of a
[Page 89]
General Court of Appeal for Canada, no matter to what extent the
exercise of such authority may infringe upon the exclusive legislative rights
of the provincial legislatures as defined in ss. 92. Indeed, this court and the
Judicial Committee of the Privy Council have both decided, as regards this
conflict of legislative authority, that the provincial legislatures have no
authority to limit the right of appeal to this court or in any way impair the
jurisdiction conferred upon it by the Supreme Court Act. See Clarkson v.
Ryan; City of Halifax v. McLaughlin
Carriage Co., and Crown Grain Co. Ltd. v. Day. An
examination of these cases shews that the decisions all proceeded on the ground
that, if the provinces could so legislate, they could take away the
jurisdiction of this court entirely and thus virtually defeat the object of its
constitution and organization. No such consideration arises here.
The question with which we are immediately
concerned is, not the power to prescribe what type or class of case may be
appealed from provincial courts to this court, but the power, not only to
abrogate the Royal prerogative, in respect of the judgments of this court on
such appeals, but to abrogate it also in respect of the judgments of all
provincial courts, and to abolish as well all per saltum appeals, which
now lie to the Judicial Committee of His Majesty's Privy Council under
provincial laws, the validity of which has never before been brought into
question. Unless such power is necessarily incidental to the constitution,
maintenance and organization of a General Court of Appeal for Canada, I cannot,
for my part, see how it can be justified by the terms of s. 101 or any of the
cases relied upon by counsel for the Attorney-General of Canada. To hold
otherwise would, in my most respectful opinion, be to practically ignore s. 92
(14) as well as s. 92 (13) and virtually transfer to the Dominion Parliament
the regulation and control of these two classes of subjects—the most general
and important of all the 16 classes of subjects which the B.N.A. Act has marked
out as the exclusive legislative jurisdiction of the provinces—by the simple
expedient of amending the Supreme Court of Canada Act and thus placing
the final disposition of all litigation in
[Page 90]
Canada, no matter how important the constitutional
and property and civil rights involved may be, in the hands of a court
established and exclusively controlled by Dominion legislation, without the
long cherished right of recourse to the Crown for the redress of any grievance,
which may be suffered by any litigant in connection therewith. Could it fairly
be said in reading s. 101 together with s. 92 with a view to give, as far as
possible, reasonable and practical effect to each, that the Parliament of
Canada would be justified by s. 101 in arrogating to itself, as necessarily
incidental to the constitution, maintenance and organization of this court, the
power to regulate and control the Administration of Justice, as well as
Property and Civil Rights in all the provinces to such an extent as is proposed
in this bill?
In discussing the introductory words of s. 91 in
delivering the judgment of the Privy Council in the Board of Commerce case,
Viscount Haldane said:
No doubt the initial words of s. 91 of the British
North America Act confer on the Parliament of Canada power to deal with
subjects which concern the Dominion generally, provided that they are not
withheld from the powers of that Parliament to legislate, by any of the express
heads in s. 92, untrammelled by the enumeration of special heads in s. 91. It
may well be that the subjects of undue combination and hoarding are matters in
which the Dominion has a great practical interest. In special circumstances,
such as those of a great war, such an interest might conceivably become of such
paramount and overriding importance as to amount to what lies outside the heads
in s. 92, and is not covered by them. The decision in Russell v. The
Queen appears to recognize this as
constitutionally possible, even in time of peace; but it is quite another
matter to say that under normal circumstances general Canadian policy can
justify interference, on such a scale as the statutes in controversy involve,
with the property and civil rights of the inhabitants of the provinces. It is
to the Legislatures of the Provinces that the regulation and restriction of
their civil rights have in general been exclusively confided, and as to these
the provincial legislatures possess quasi-sovereign authority. It can,
therefore, be only under necessity in highly exceptional circumstances, such as
cannot be assumed to exist in the present case, that the liberty of inhabitants
of the provinces may be restricted by the Parliament of Canada, and that the
Dominion can intervene in the interests of Canada as a whole in questions such as the present one.
And further, in discussing the question as to
whether the Dominion legislation there under consideration fell under s. 91
(27) (The Criminal Law) His Lordship used this language at pp. 198 and 199:
[Page 91]
It is one thing to construe the words
"the criminal law, except the constitution of courts of criminal
jurisdiction, but including the procedure in criminal matters," as
enabling the Dominion Parliament to exercise exclusive legislative power where
the subject-matter is one which by its very nature belongs to the domain of
criminal jurisprudence. A general law, to take an example, making incest a
crime, belongs to this class. It is quite another thing, first to attempt to
interfere with a class of subject committed exclusively to the Provincial
Legislature, and then to justify this by enacting ancillary provisions,
designated as new phases of Dominion criminal law which require a title to so
interfere as basis of their application. For analogous reasons their Lordships
think that s. 101 of the British North America Act, which enables the
Parliament of Canada, notwithstanding anything in the Act, to provide for the
establishment of any additional courts for the better administration of the
laws of Canada, cannot be read as enabling that Parliament to trench on
provincial rights, such as the powers over property and civil rights in the
Provinces exclusively conferred on their Legislatures. Full significance can be
attached to the words in question without reading them as implying such
capacity on the part of the Dominion Government. It is essential in such cases
that the new judicial establishment should be a means to some end competent to
the latter.
The King v. Consolidated
Distilleries Limited was an appeal from the judgment of Audette,
J. of the Exchequer Court, granting a motion made by the defendant appellant as
third party to set aside the third party notice on the ground that the issue
raised by the third party notice between the original defendant and it was one
over which that court had no jurisdiction. This court, Anglin, C.J. and
Rinfret, Lamont and Cannon JJ., Newcombe, J. dissenting, dismissed the appeal
on the ground that the matter in controversy between the original defendant and
the third party was purely one of exclusive provincial jurisdiction concerning
a civil right in one of the provinces. Anglin, C.J. in delivering the judgment
of himself and his three brethren said:
While there can be no doubt that the powers
of Parliament under s. 101 are of an overriding character, when the matter
dealt with is within the legislative jurisdiction of the Parliament of Canada,
it seems equally clear that they do not enable it to set up a court competent
to deal with matters purely of civil right as between subject and subject. While
the law., under which the defendant in the present instance seeks to impose a
liability on the third party to indemnify it by virtue of a contract between
them, is a law of Canada in the sense that it is in force in Canada, it is not
a law of Canada in the sense that it would be competent for the Parliament of
Canada to enact, modify or amend it. The matter is purely one of exclusive
provincial jurisdiction, concerning, as it does, a civil right in some one of
the provinces (s. 92(13)).
[Page 92]
The really decisive question on this branch of
the argument regarding the conflict between the legislative power vested in the
Dominion Parliament by s. 101 and that exclusively vested in the Provincial
Legislatures by s. 92, as I have already said is, whether the subject-matter of
this proposed enactment is comprised in the language of s. 101, as necessarily
incidental to the exercise of the power thereby confided to the Dominion
Parliament. Reading the section in connection with and in the light of s. 92,
as it must be, it is in my opinion our clear duty to so construe it as to
interfere as little as possible with the general scheme of the British North
America Act regarding the distribution of legislative powers between the
Dominion and the Provinces, and thus, while fully safeguarding the overriding
legislative powers of the Dominion, in so far as they are explicitly declared,
to prevent any undue or unnecessary encroachment upon what s. 92 has so
unequivocally declared to be the exclusive legislative powers of the Provinces.
This, I take it, to be the true guiding principle when a court is confronted
with the duty of endeavouring to arrive at a reasonable and practical solution
of a problem of this kind, as deducible from the pronouncements I have above
reproduced and many other cases of similar import, which might have been
quoted, dealing with apparently conflicting provisions of the British North
America Act.
It is contended that the words
to 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
necessarily imply power to declare that the
judgments of these courts shall be absolutely final and conclusive, and, if the
Dominion Parliament in its wisdom chooses to say so, unappealable to His
Majesty's Privy Council, even by the exercise of the Royal prerogative. Power
to constitute a court, it is said, covers power to define its jurisdiction, and
this in turn power, not only to prescribe what cases it may hear and determine,
but power to declare the consequences and effects of its judgments. If this be
true of the power vested in the Dominion Parliament by s. 101 to provide for
"the constitution, maintenance and organization" of the courts
therein indicated, must it not also be true of the exclusive power vested in
the Provincial
[Page 93]
Legislatures by s. 92 to make laws in relation
to "the constitution, maintenance and organization" of provincial
courts, whether of civil or of criminal jurisdiction? Surely it cannot be said
that these words have one meaning when applied to any court or courts, which
the Dominion Parliament may create, and another meaning when applied to
provincial courts. And I cannot for my part see that there is anything in the
context, in which they are used in s. 101, which carries any larger implication
than that arising from the context in which they are used in s. 92. Indeed, the
contrary would seem to me to be the case. For, in s. 92 they are clearly used
to indicate a specific sub-head or subdivision of the larger and more
comprehensive class of subjects, viz: the Administration of Justice in the
provinces.
The argument that either the general subject of
the Administration of Justice in the Province or the constitution, maintenance
and organization of provincial courts, both of civil and of criminal
jurisdiction, is restricted by the additional words "and including
procedure in civil matters in those courts" has already been dealt with in
discussing the opposing submissions concerning ss. 91 and 92. I may add,
however, in relation to the particular point now under consideration as to the
conflict between ss. 92 and 101 that the obvious and the only reason, as it
seems to me, for the alleged qualification of the general subject of "The
Administration of Justice in the Province" by the words which immediately
follow in enumeration 14 was to make it conform with s. 91 (27) regarding the
general subject of "The Criminal Law." The latter excepts from
"The Criminal Law," as a general subject for the exclusive
jurisdiction of the Dominion Parliament, "the constitution of courts of
criminal jurisdiction," but includes "the procedure in criminal
matters," while s. 92 (14) specifically includes the constitution,
maintenance and organization of provincial courts, both of civil and of
criminal jurisdiction, and procedure in civil matters in those courts. The
clear intention, so far as s. 91 and 92 are concerned, was to vest exclusive
legislative authority in the Province over the whole subject of the
Administration of Justice therein, subject only to the overriding legislative
jurisdiction of the Dominion in relation to the Criminal Law and all
[Page 94]
matters necessarily incidental thereto (except
the constitution of courts of criminal jurisdiction), and to such other
encroachments on this general provincial legislative power over the
Administration of Justice as might become necessary in order that the Dominion
Parliament might legislate effectively in relation to any other one of the 28
other specific subjects assigned to it by s. 91. If I may supplement what I
have before suggested as to the basic ground of the decision in the British
Coal Corporation case, it is obvious that this decision
could not have been founded on any implication arising from the Dominion's
power to constitute courts of criminal jurisdiction, which latter power is
expressly excepted from that in relation to Criminal Law and exclusively vested
in the Provinces. Its whole tenor, to my mind, is that it is the specific
assignment to the Parliament of Canada by s. 91 (27) of the exclusive
legislative jurisdiction in relation to such a general subject as that of
"The Criminal Law," in the terms therein stated, which actually or by
necessary intendment carries the power to prohibit appeals from provincial
courts to His Majesty's Privy Council in criminal matters. Certainly that
decision in no way supports the argument that power to constitute any court
necessarily implies control of the right of appeal from its adjudications. On
the contrary, it seems to me to flatly negative it for the reason just stated,
viz: that the control of appeals from provincial courts of criminal
jurisdiction in criminal matters is necessarily involved in the Dominion
Parliament's exclusive legislative jurisdiction in relation to the general
subject of The Criminal Law, notwithstanding that the constitution of courts of
criminal jurisdiction is expressly excepted in s. 91 (27) from that general
subject. If that be the case, as regards criminal matters, how can it
consistently be claimed that the assignment by s. 92 (14) to the Provincial
Legislatures of the exclusive legislative jurisdiction in relation to such a
general subject as "The Administration of Justice," subject only to
the limitations before mentioned, does not invest the Provincial Legislatures
with the power to allow or prohibit, as they choose, appeals from the judgments
of provincial courts in civil matters? Only, it seems to me, on one
[Page 95]
intelligible ground, viz: that, though s. 92
(14) indisputably comprises it, s. 101 takes it away and vests it entirely in
the Dominion Parliament. But can the language of s. 101 itself, when read in
conjunction with that of ss. 91 and 92, properly be so interpreted? In my
opinion it cannot. The power thereby granted to the Parliament of Canada
"notwithstanding anything in this Act," so far as the establishment
of a General Court of Appeal for Canada is concerned, is, not only a special
power relating to a single court, but is definitely limited to legislation
providing for "the constitution, maintenance and organization" of
such a court. While it can readily be understood that this language in
association with the non obstante clause must be construed as necessarily
entitling the Dominion Parliament to cut into the exclusive legislative
jurisdiction of the provinces over the general subject of the Administration of
Justice therein to such an extent as may be necessary to enable this court to
fully function as a General Court of Appeal for Canada, and thus to regulate to
that extent appeals to this court from provincial courts, that to my mind is
the farthest limit to which the words "constitution, maintenance and
organization of a General Court of Appeal for Canada" can reasonably be
extended. The section itself says nothing about the finality of the judgments
of the court authorized to be constituted or about its "exclusive,
ultimate appellate jurisdiction," and certainly contains no suggestion of
any power to divest the Crown of its prerogative to grant leave to appeal to
the Judicial Committee of the Privy Council, either in respect of its own
judgments, or in respect of the judgments of provincial courts, nor of any
power to repeal or annul any of the laws relating to courts of civil and
criminal jurisdiction existing in Canada, Nova Scotia or New Brunswick at the
time of the Union, which s. 129 expressly continued in the four original
provinces, as if the Union had not been made until they should be repealed, abolished
or altered either by the Parliament of Canada or by the Legislatures of the
respective Provinces, according to the authority of Parliament, or of the
Legislatures under that Act. To say that all these things are necessarily
implied by the power to constitute such a court itself is to my
[Page 96]
mind quite inadmissible unless some reason can
be found, either in the general scheme of the Act concerning the distribution
of legislative authority between the Dominion and the Provinces or in some
particular provision thereof, clearly demonstrating that the grant of this
special power was so intended. Singularly enough, notwithstanding the argument
already dealt with that none of the matters covered by this bill fall under s.
92 (14) and that consequently they fall under the general residuary power
conferred upon the Parliament of Canada by the introductory words of s. 91, s.
92 (14) is now invoked, shorn of its principal subject, for the purpose of
attributing the provincial legislative power concerning the whole subject of
appeals from the judgments of provincial courts to the words
"constitution, maintenance and organization" of such courts, and thus
by enlarging their scope, enlarging that of s. 101. Assuming this to be true of
the provincial legislative power under s. 92 (14), where, as the factum in
support of the now proposed enactment puts it, the quoted words are in effect
qualified and curtailed by the express mention in the context of
"procedure in civil matters in those courts," it is urged that
it must a fortiori be true of the
exclusive paramount and plenary legislative power conferred upon the Parliament
of Canada by the corresponding words of s. 101, where they stand unqualified.
This argument simply brings us back to the
construction of s. 92 (14), and obviously is founded upon the bald assumption
that the only operative part of enumeration 14 is that which immediately
follows the principal subject of the Administration of Justice, viz.: "the
constitution, maintenance and organization of provincial courts both of
criminal and civil jurisdiction." Such an assumption has already been
shewn to be entirely insupportable as manifestly involving the complete
absorption of the principal general subject by a lesser, subordinate one, which
is only mentioned for the purpose of meeting the exception provided for in s.
91 (27) to the Dominion's exclusive legislative jurisdiction in relation to the
general subject of the Criminal Law. That the specification of the lesser
subject in no way qualifies or curtails the general subject of the
Administration of Justice any more than the specification of procedure in civil
matters in those courts qualifies or
[Page 97]
curtails the subordinate, lesser subject of the
constitution, maintenance and organization of provincial courts seems to me,
with all respect, to be too clear to require demonstration. The legislative
power of the Provinces in relation to the appealability or non-appealability of
the judgments of their own courts is derivable in my opinion from the principal
general subject of the Administration of Justice, which unmistakeably would
have comprised that power, had the subordinate subject of the constitution,
maintenance and organization of provincial courts not been introduced into
enumeration 14 for the reason above indicated, not with the words "that is
to say," but with the word "including."
The highly ingenious attempt to extend the scope
of the power to constitute a court by separating the words "constitution,
maintenance and organization of provincial courts" from their context in
s. 92(14) and thus practically deleting from that section the introductory and
really governing words of enumeration 14 must, therefore, fail.
If it had been the intention of the Imperial
Parliament, in constituting the Dominion and the Provinces as self-governing
units thereof in 1867 and assigning to them their respective legislative
rights, to annex to the special power conferred upon the Dominion to constitute
this court such sweeping authority as that now insisted upon, is it to be
supposed that it would in the unequivocal language of s. 92 have purported to
invest the Provinces with the exclusive power "to make laws in relation
to" all the classes of subjects therein enumerated, and then proceed to
divest them of all effective control of such a vital subject as the
Administration of Justice by merely conferring upon the Dominion Parliament a
special power to create a General Court of Appeal for Canada in such language
as that used in s. 101, viz.: "to provide for the constitution,
maintenance and organization of a General Court of Appeal for Canada"?
While s. 101 undoubtedly clashes to some extent
with s. 92 (14), I find it quite impossible to spell out of its language an
intention to confer on the Dominion Parliament authority to encroach on the
general subject of The Administration of Justice in the provinces any farther
than is reasonably and necessarily incidental to the constitution,
[Page 98]
maintenance and organization of a General Court
of Appeal for Canada or any other Federal court, which it may from time to time
desire to set up for the better administration of its own laws. It surely never
could have been intended by the enactment of s. 101 to empower the Dominion
Parliament to extinguish the exclusive legislative rights of the provinces to
the extent contemplated by this bill, the enactment of which, if validated upon
such grounds as those which have been advanced on this hearing, would
practically reduce the important and general subject of the Administration of Justice,
as the exclusive legislative prerogative of the Provinces, to the bare matter
of procedure in civil matters in provincial courts, and invest the Dominion
Parliament with the actual control of the whole litigation of the country, in
so far as its final disposition is concerned, without any recourse to the
Crown, and this regardless of whether the matters in controversy in such
litigation relate to Property and Civil Rights in the Provinces, to the
Constitution of the Provinces themselves, to Taxation for Provincial Purposes
or any other of the sixteen classes of subjects exclusively assigned to the
legislative competence of the Provinces, subject only to the exceptions already
indicated.
For these reasons I am of opinion with all
possible respect that what is described in the factum of counsel representing
the Attorney-General of Canada as "the cardinal object" of this bill,
viz.: the total and indiscriminate prohibition of appeals from all courts now
or hereafter established within Canada to the Judicial Committee of His
Majesty's Privy Council as a necessary means to accomplish the end of
constituting this court a court of exclusive, ultimate appellate, civil and
criminal jurisdiction, without any recourse to the Crown, is not embraced
within the legislative power confided to the Parliament of Canada, either
expressly or by necessary implication, by the terms either of s. 91 or those of
s. 101 of the British North America Act, and that bill No. 9 should
therefore be declared to be wholly ultra vires of the Parliament of
Canada as seeking in the form of an amendment of the Supreme Court Act to
extend the prohibition, which that Parliament has already applied against
appeals in criminal cases by s. 17 of ch. 53, 23-24 Geo. V, in amendment of the
Criminal Code, and in the exercise of its exclusive
[Page 99]
legislative jurisdiction in relation to Criminal
Law, to appeals in all civil cases from this and all other courts throughout
the Dominion, regardless of whether such civil cases concern matters, which fall
within the legislative powers granted it by s. 91, or not.
The bill being one, the avowed object of which
must fail unless every one of its provisions is intra vires of the
Parliament of Canada, to which it has been presented for enactment, and it being
impossible for the reason just stated to sever the valid from the invalid parts
thereof beyond the general lines I have endeavoured in these reasons to make
clear without completely recasting its material provisions, I most respectfully
am of opinion that for these reasons, and in accordance with the rule laid down
in Attorney-General for Ontario v. Reciprocal Insurers,
and re-affirmed in Attorney-General for Manitoba v. Attorney-General
for Canada, the bill must be pronounced ultra
vires of the Parliament of Canada in its entirety.
My answer, therefore, to the question referred
is that the bill is wholly ultra vires of the Parliament of Canada.
Davis J.—In the submission by the Governor General in Council for the
opinion of this Court as to the competence of the Dominion Parliament to enact
Bill No. 9, in whole or in part, the real question, and it is a question of the
greatest constitutional importance in Canada, is whether or not in civil cases
the Dominion Parliament has the power to abolish the right of appeal to the
Judicial Committee of the Privy Council from any of the courts in Canada (i.e.,
courts whether created by the Dominion or by the provinces) and to abolish the
prerogative in such cases to grant special leave to appeal from any such courts.
The question of the power of the Dominion
Parliament in criminal cases to abolish appeals was raised and determined by
the Judicial Committee in the British Coal Corporation case.
That decision sustained the constitutional validity of an amendment made by the
Dominion
[Page 100]
Parliament to the Criminal Code in 1933 (23-24
Geo. V, ch. 53, sec. 17) which reads as follows:
Notwithstanding any royal prerogative, or
anything contained in the Interpretation Act or in the Supreme Court
Act, no appeal shall be brought in any criminal case from any judgment or
order of any court in Canada to
any court of appeal or authority by which in the United
Kingdom appeals or petitions to His Majesty in Council
may be heard.
While it is always material in considering constitutional
powers to ascertain the origin and development of the constitution and to
examine the decisions of the courts on its interpretation, it would be inutile
for me to attempt to traverse again the difficult territory which their
Lordships in the Privy Council have so fully explored in their judgments in the
Nadan case, in the Irish Free State case (Moore
v. Atty.-Gen. for the Irish Free State), and
in the British Coal Corporation case. It is sufficient to
say that these cases were examined and discussed at length during the argument
and have been very carefully considered. The judgments are fully reported and
any attempt to summarize them might only mislead. But I would venture to make
the observation that it is plain from those decisions that—
(1) before the passing of the Statute of
Westminster 1931 it was not competent to the Dominion to pass an Act repugnant
to an Imperial Act,
(2) the effect of the Statute of
Westminster was to remove the fetters which lay upon the Dominion by reason of the
Colonial Laws Validity Act and by sec. 129 of the British North
America Act and also by the principle or rule that the Dominion's powers
were limited by the doctrine forbidding extra-territorial legislation, and
(3) whatever might be the position of the
King's prerogative if it were left as matter of the common law, it may by
appropriate action be made matter of Parliamentary legislation so that the
prerogative is pro tanto merged in the statute.
We cannot escape from the conclusion that in the
British Coal Corporation case once the former
limitations which had restrained legislative action by the
[Page 101]
Dominion were recognized as now removed by the
Statute of Westminster, the judgment rests upon the fact that criminal law is
one of the enumerated heads of sec. 91 of the British North America Act which
section sets forth specific subject-matters of legislation which lie
exclusively within the competence of the Dominion Parliament. It is to be
observed that the validated legislation prohibited an appeal in any criminal
case "from any judgment or order of any court in Canada." That being the decision, and binding upon us, the same
result necessarily follows in respect of any such Dominion legislation in
relation to matters properly within any of the other specific subjects
enumerated in said sec. 91 or within the general power of the Dominion
Parliament to make laws for the peace, order and good government of Canada. As was said by Lord Macmillan in
the Privy Council in Croft v. Dunphy:
Once it is found that a particular topic of
legislation is among those upon which the Dominion Parliament may competently
legislate as being for the peace, order and good government of Canada or as
being one of the specific subjects enumerated in sec. 91 of the British
North America Act, their Lordships see no reason to restrict the permitted
scope of such legislation by any other consideration than is applicable to the
legislation of a fully Sovereign State.
We were invited to say that head 14 of sec. 92,
The administration of justice in the
province, including the constitution, maintenance and organization of
provincial courts, both of civil and of criminal jurisdiction, and including
procedure in civil matters in those courts,
controls the solution of the problem. The
proposed abolition of appeals to the Privy Council is not however legislation
in relation to the administration of justice "in the province." Nor
can head 13 of sec. 92, "Property and civil rights in the province,"
be regarded as controlling the Dominion power in relation to matters within the
exclusive legislative authority of the Parliament of Canada.
As to appeals in admiralty. The whole subject of
admiralty jurisdiction has stood upon a special footing of its own. Whatever
may have been the limitations on the Dominion power (prior to the Statute of
Westminster) under the Colonial Courts of Admiralty Act 1890, see The
[Page 102]
Woron case,
there never, was any doubt that admiralty was not a provincial matter. As early
as 1879 this Court held in The Picton, that the Dominion
legislation, 40 Vic. (1877), chap 21, creating a "Court of Maritime
Jurisdiction in the province of
Ontario" was intra vires the Dominion Parliament. In 1934, the
Dominion Parliament by the Admiralty Act, 1934 (24-25 Geo. V, chap. 31),
repealed the Colonial Courts of Admiralty Act 1890 in so far as the
latter Act was part of the law of Canada, with the exception of the provisions
relating to appeals to His Majesty in Council. Legislation abolishing appeals
or the prerogative to grant special leave in relation to admiralty matters in
Canadian courts stands in the same position as do those subjects specifically
enumerated in sec. 91.
Apart then from the power of the Dominion
Parliament to abolish any right of appeal to the Privy Council and to abolish
the prerogative to grant special leave to appeal in civil cases coming within
any of the above mentioned classes, there remains the vital question whether
there is any such right in the Dominion Parliament in relation to the specific
subject-matters enumerated in sec. 92 of the British North America Act—subject-matters
over which the provincial legislatures are given exclusive legislative
authority. It is fundamental in the Canadian Constitution and has always been
recognized as fundamental that the authority of the legislatures of the
provinces is
as plenary and as ample within the limits
prescribed by sec. 92 as the Imperial Parliament in the plenitude of its
power possessed and could bestow,
as was said as early as 1883 in Hodge v. The
Queen; the principle has been recognized
over and over again and particularly, for our present purposes, in the British
Coal Corporation case.
The Statute of Westminster does not make it
competent to the Dominion to legislate in relation to classes of subjects which
before the statute were outside its competence (such, for example, as
"Property and civil rights in the province," head 13, and "All
matters of a merely local or private nature in the province," head 16, of
sec. 92). The assigned limits of subject and area under the British North
[Page 103]
America Act, as
between the Dominion and the provinces, are not disturbed. The true character
and position of the provincial legislatures remain and ought to be given full
recognition.
Sec. 101 of the British North America Act, which
enables the Dominion Parliament to provide for the constitution, maintenance
and organization of "a general court of appeal for Canada," cannot in
my opinion be so interpreted as to extend power to the Parliament of Canada to
make the jurisdiction of such court exclusive and final in relation to
subject-matters which are within the sole legislative authority of the
provincial legislatures.
There may be some difficulty at times in working
out a division of legislative authority in appeals in civil cases but that is
inherent in the practical working out of any federal system with a division of
legislative powers between the central and the local legislating bodies.
It is inadvisable and indeed unnecessary to
consider what powers may be possessed in the relevant regard by the
legislatures of the provinces; it is sufficient for the purpose of the question
submitted to the Court to determine only the powers of the Dominion Parliament
itself.
I would answer the question submitted by saying
that the Bill if enacted would be within the authority of the Dominion
Parliament if amended to provide that nothing therein contained shall alter or
affect the rights of any province in respect of any action or other civil
proceeding commenced in any of the provincial courts and solely concerned with
some subject-matter, legislation in relation to which is within the exclusive
legislative competence of the legislature of such province.
Kerwin J.—By Bill No. 9, introduced and read a first time in the House of
Commons in the fourth session of the eighteenth Parliament of Canada, it was
proposed to repeal section 54 of the Supreme Court Act, R.S.C., 1927,
chapter 35, and substitute a new section therefor. This Court was established
under the power conferred by the following section (101) of the British
North America Act, 1867 (hereafter referred to as the Act):—
The Parliament of Canada may,
notwithstanding anything in this Act, from Time to Time, provide for the
Constitution, Maintenance and
[Page 104]
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.
The present Supreme Court Act continues
this Court as a general court of appeal for Canada, and section 54 provides:—
The judgment of the Court shall, in all
cases, be final and conclusive, and no appeal shall be brought from any
judgment or order of the Court to any court of appeal established by the
Parliament of Great Britain and Ireland, by which appeals or petitions to His
Majesty in Council may be ordered to be heard, saving any right which His
Majesty may be graciously pleased to exercise by virtue of his royal
prerogative.
The primary object of the Bill is set forth in
the first subsection of the proposed new section 54:—
(1) The Supreme Court shall have, hold and
exercise exclusive ultimate appellate civil and criminal jurisdiction within
and for Canada; and the
judgment of the Court shall, in all cases, be final and conclusive.
It is undoubted that the effect of this and the
other provisions of the new section would be to confer upon this Court not only
appellate jurisdiction but exclusive and ultimate appellate civil and criminal
jurisdiction within and for Canada, and to abolish any right of His Majesty in
Council to entertain appeals from any court within Canada now or hereafter
established whether by Dominion or provincial authority.
In British Coal Corporation v. The
King, the Judicial Committee of the Privy
Council determined that Parliament had effectively and validly abolished
appeals in criminal cases to His Majesty in Council from any judgment or order
of any court in Canada, by enacting in 1933, after the coming in force of the
Statute of Westminster, 1931, the following as subsection 4 of section 1025 of
the Criminal Code:—
4. Notwithstanding any royal prerogative or
anything contained in the Interpretation Act or in the Supreme Court
Act, no appeal shall be brought in any criminal case from any judgment or
order of any court in Canada to any Court of Appeal or authority by which in
the United Kingdom appeals or petitions to His Majesty in Council may be heard.
In substance, the question now submitted by the
Governor General in Council for our opinion, is whether a similar power exists
as regards civil cases.
[Page 105]
It will be convenient to investigate at the
outset the position of appeals from Dominion Courts, that is, the Supreme Court
of Canada and those additional courts for the better administration of the laws
of Canada, which Parliament may
constitute. This inquiry resolves itself into two heads, (a) the
prerogative right of the Sovereign in Council to grant special leave to appeal
from judgments of the Dominion Courts and (b) the power, if any, to
appeal therefrom as of right. As applicable to both heads, it is of importance
to recollect that in Crown Grain Company Limited v. Day,
it was determined that a provincial legislature could not circumscribe the
appellate jurisdiction of this Court by attempting to make the judgment of a
provincial court final in cases where the Supreme Court Act permitted an
appeal; and that, notwithstanding the subject-matter of the litigation was
within the domain of provincial legislation.
Firstly then as to the prerogative right of the
Sovereign in Council to grant special leave to appeal. While appeals in civil
cases, either de jure or by grace, were not in question and were,
therefore, not considered in the British Coal Corporation case,
their Lordships did state the present position of the prerogative right in
general. They explained that in early days "it was to the King that any
subject who had failed to get justice in the King's Court brought his petition
for redress." So far as English courts were concerned, this practice was
altered whereby such petitions were brought to the King in Parliament or to the
King in his Chancery, but from the Courts of the Plantations or Colonies, the
petition went to the King in Council. This jurisdiction or prerogative right
was settled and regulated by the Imperial Parliament in the Privy Council Acts
of 1833 and 1844 and as a result, as their Lordships pointed out (page 512):
Although in form the appeal was still to
the King in Council, it was so in form only and became in truth an appeal to
the Judicial Committee, which as such exercised as a Court of Law in reality,
though not in name, the residual prerogative of the King in Council. No doubt
it was the order of the King in Council which gave effect to their reports, but
that order was in no sense other than in form either the King's personal order
or the order of the general body of the Privy Council.
[Page 106]
That is, the Sovereign, by and with the consent
of the Lords Spiritual and Temporal, and Commons in Parliament Assembled,
through the instrumentality of Imperial statutes transferred the prerogative
right to the Judicial Committee of the Privy Council. It therefore follows that
in these matters the Sovereign has no personal discretion whatever and that
under constitutional usage His Majesty in Council may not decline to give
effect to the Judicial Committee's recommendations.
Prior to the passing of the Statute of
Westminster, 1931, the proper body to abolish the right, as settled and fixed
by the Judicial Committee Acts referred to, to grant leave to appeal in a civil
case from a decision of a Dominion court would have been the Imperial
Parliament, but in my opinion that statute affords a complete answer to the
first branch of the pending inquiry. The statute followed upon a series of
declarations and resolutions set forth in the reports of the Imperial
Conferences of 1926 and 1930 and according to one of the recitals of the
statute, its enactment was deemed necessary
for the ratifying, confirming and
establishing of certain of the said declarations and resolutions of the said
Conference that a law be made and enacted in due form by authority of the
Parliament of the United Kingdom.
In truth the statute embodies in legislative
form the established constitutional position of the members of the British Commonwealth
of Nations with respect to several matters. For present purposes, only sections
2 and 3 need be referred to:—
2. (1) The Colonial Laws Validity Act, 1865,
shall not apply to any law made after the commencement of this Act by the
Parliament of a Dominion.
(2) No law and no provision of any law made
after the commencement of this Act by the Parliament of a Dominion shall be
void or inoperative on the ground that it is repugnant to the law of England,
or to the provisions of any existing or future Act of Parliament of the United
Kingdom, or to any order, rule or regulation made under any such Act, and the
powers of the Parliament of a Dominion shall include the power to repeal or
amend any such Act, order, rule or regulation in so far as the same is part of
the law of the Dominion.
3. It is hereby declared and enacted that
the Parliament of a Dominion has full power to make laws having
extra-territorial operation.
By the Colonial Laws Validity Act, 1865,
it was declared that the law of any colony should be void to the extent that it
was repugnant to any Act of the Imperial Parliament
[Page 107]
extending to the colony or any order or
regulation made under such Act, but by subsection 1 of section 2 of the Statute
of Westminster, the Colonial Laws Validity Act is not to apply to any
law passed after the commencement of the statute by the Parliament of the
Dominion. The meaning of subsection 2 is beyond question. In view of several
expressions of opinion by the highest authorities, it is perhaps unnecessary to
call in aid the provisions of section 3 but certainly the combined effect of
sections 2 and 3 is to remove the fetters that previously prevented Parliament
from abolishing the right of the Judicial Committee to grant leave to appeal
from a judgment of a Dominion court. In view of the plain wording of section
101 of the Act, the provinces enjoyed no such powers, and the reasoning and
conclusion in the British Coal Corporation case that
that Act invests Parliament with the power by necessary intendment, apply
equally to civil as to criminal cases.
With reference to the second branch of the
inquiry, my opinion is that Parliament has the power to prohibit appeals as of
right from any Dominion court. In view of the grant and growth of self
government in the Dominion, and subject to the special position of appeals in
Admiralty to be mentioned later, this power existed and was recognized even
before the Statute of Westminster. As stated in the British Coal Corporation
case (page 520):—
It is not doubted that with the single
exception of what is called the prerogative appeal, that is, the appeal by
special leave given in the Privy Council in London, matters of appeal from
Canadian courts are within the legislative control of Canada, that is of the
Dominion or the provinces as the case may be.
For the same reason that has been adverted to
when considering the right to grant leave to appeal, the provinces have no
power to prevent Parliament abolishing appeals as of right from Dominion courts
and the necessary authority therefore resides in Parliament.
Appeals in Admiralty require a more detailed
investigation. The Exchequer Court of Canada, organized under the provisions of
section 101 of the Act, was by a Canadian statute declared to be a Colonial
Court of Admiralty under the Colonial Courts of Admiralty Act 1890. By
[Page 108]
subsection 1 of section 6 of this last mentioned
statute: "The appeal from a judgment of any Court in a British possession
in the exercise of the jurisdiction conferred by this Act, either where there
is, as of right, no local appeal or after a decision on local appeal, lies to
Her Majesty the Queen in Council"; and by section 15 the expression
"local appeal" means "an appeal to any Court inferior to Her
Majesty in Council." In Richelieu and Ontario Navigation Company v.
Owners of S.S. "Cape Breton", it was decided that by virtue of the Colonial
Courts of Admiralty Act 1890, an appeal as of right could be brought from a
decision of this court varying, on appeal, a judgment of a Local Judge in
Admiralty. Following the enactment of the Statute of Westminster 1931, and
particularly in view not only of sections 2 and 3 but also 5 and 6 of that
statute, Parliament passed The Admiralty Act, 1934, chapter 31,
establishing an Admiralty jurisdiction in the Exchequer
Court. Sections 34 and 35 thereof provide:—
34. Notwithstanding anything in this Act
contained, the pro visions of any law now in force in Canada providing for an appeal to His Majesty the King in Council in
Admiralty matters shall continue to be in force and shall be deemed not to have
been repealed.
35. Saving the effect of the immediately
preceding section, the Colonial Courts of Admiralty Act, 1890, chapter
twenty-seven of the Acts of the United Kingdom for the year 1890, is repealed
in so far as the said Act is part of the law of Canada.
So that, as Dominion legislation stands, a
suitor may still appeal as of right from a decision of this Court rendered upon
appeal from the Exchequer Court
on its Admiralty side. By Bill No. 9 this appeal would be abolished.
The ingenious contention is that as Parliament
by The Admiralty Act, 1934, had repealed the Colonial Courts of
Admiralty Act, 1890 (with the exception noted), it thereby lost its
jurisdiction in Admiralty, which, it is argued, was derived solely from the
repealed Act. But that overlooks the fact that Parliament has jurisdiction
under head 10 of section 91 of the Act over the subject matter of
"Navigation and Shipping" and that it could, therefore, invest the Exchequer Court with jurisdiction over
actions and suits in relation to that subject matter (Consolidated
Distillers
[Page 109]
Limited v. The King). The limitations upon the exercise of
its powers under head 10 of section 91 and the peace, order and good government
clause imposed by the Colonial Laws Validity Act, 1865, and the Colonial
Courts of Admiralty Act, 1890, having been removed by the Statute of
Westminster, Parliament is now clothed with the same ample authority to abolish
appeals as of right in Admiralty cases as it possesses with respect to appeals
in civil cases generally from Dominion courts.
Attention must now be directed to the problem as
to whether Parliament has the requisite authority to abolish appeals as of
right, or to abrogate the right of His Majesty in Council to grant leave to
appeal, from decisions of provincial courts. Section 129 of the Act reads:—
129. Except as otherwise provided by this
Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union,
and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions,
Powers and authorities, and all Officers, Judicial, Administrative, and
Ministerial, existing therein at the Union, shall continue in Ontario, Quebec,
Nova Scotia, and New Brunswick respectively, as if the Union had not been made;
subject nevertheless (except with respect to such as are enacted by or exist
under Acts of the Parliament of Great Britain or of the Parliament of the
United Kingdom of Great Britain and Ireland), to be repealed, abolished, or
altered by the Parliament of Canada, or by the legislature of the respective
Province, according to the Authority of the Parliament or of that Legislature
under this Act.
All laws in force on July 1st, 1867, in the four
named provinces were by this section continued therein subject to the exception
and proviso. By appropriate legislation or Imperial order in council the
section was made to apply to each of the other provinces as of the date of its
entry into the Union. It would
therefore appear convenient to ascertain what laws touching appeals were in
force in the nine provinces on the relevant dates.
Ontario
and Quebec
The Constitutional Act, 1791, divided the
old province of Quebec into
Upper and Lower Canada. Section
34 provided:—
XXXIV. And whereas by an Ordinance passed
in the Province of Quebec, the Governor and Council of the said Province were
constituted a Court of Civil Jurisdiction, for hearing and determining Appeals
in certain Cases therein specified, be it further enacted by the Authority
[Page 110]
aforesaid That the Governor, or
Lieutenant-Governor, or Person administering the Government of each of the said
Provinces respectively, together with such executive Council as shall be
appointed by His Majesty for the Affairs of such Province shall be a Court of Civil
Jurisdiction within each of the said Provinces respectively for hearing and
determining Appeals within the same, in the like Cases, and in the like Manner
and Form, and subject to such Appeal therefrom, as such Appeals might before
the passing of this Act have been heard and determined by the Governor and
Council of the Province of Quebec; but subject nevertheless to such further or
other Provisions as may be made in this Behalf, by Any act of the Legislative
Council and Assembly of either of the said Provinces respectively assented to
by His Majesty, His Heirs or Successors.
The important part of this section for our
present purpose is the proviso at the end. The power thereby conferred was
exercised in Upper Canada by chapter 2 of the statutes of 1794, and in Lower Canada by chapter 6 of the statutes
of the same year.
By virtue of section 46 of the Act of Union,
1840 (Imperial), these enactments were continued in force subject to being
varied by legislation of the provinces of Canada. Such legislation was duly passed so that when the Act was passed
in 1867 there were in force chapter 13 of the statutes of 1859 providing for
appeals as of right in Upper Canada, and chapter 77 of the statutes of 1861,
and section 1178 of the Code of Civil Procedure 1867, providing for appeals as
of right in Lower Canada. In each province the right of appeal was limited to
certain cases.
Nova
Scotia
Except possibly for the period 1861 to 1863,
either the commissions or instructions issued to the Governors of the province of Nova Scotia, from time to time,
contained regulations providing for an appeal to the Sovereign in Council. By
an Imperial order in council of 1863 authority was conferred upon the Supreme
Court of the province to grant leave to appeal in certain cases, but the right
of Her Majesty to admit an appeal in any case, upon special petition, was
expressly reserved. At the time of Union, therefore, there existed in Nova
Scotia under an Imperial order in council, the right, by leave of the
provincial Supreme Court, to appeal de jure in certain cases, and the
right of the Sovereign in Council in any case to give leave to appeal as of
grace.
[Page 111]
New
Brunswick
Appeals from the Supreme Court of New Brunswick
were provided for and regulated by an Imperial order in council dated November
27th, 1852. In all relevant respects it corresponded to the order in council of
1863 relating to Nova Scotia.
Manitoba
On June 3rd, 1870, under the relevant provisions
of the Act, an order in council admitted Rupert's Land and the Northwestern Territory into the Union. In anticipation of this step the
Dominion Parliament had already passed The Manitoba Act in the same
year, carving out of the newly admitted lands the Province of Manitoba. Any doubt as to the power of Parliament so do to was
removed by the British North America Act of 1871. No order in council
appears to have been issued regulating appeals from Rupert's Land or the Northwest Territories.
British
Columbia
An Imperial Statute of 1839, chapter 48,
authorized Her Majesty from time to time to make provision for the
administration of justice in Vancouver's Island, and for that purpose to constitute such court or courts
of record and other courts as she should think fit. Section 3 enacted:—
III. Provided always, and be it enacted,
That all Judgments given in any Civil Suit in the said Island shall be subject
to Appeal to Her Majesty in Council, in the Manner and subject to the
Regulations in and subject to which Appeals are now brought from the Civil
Courts of Canada, and to such further or other Regulations as Her Majesty with
the Advice of Her Privy Council shall from Time to Time appoint.
Pursuant to this Act, an Imperial order in
council of April 4, 1856, established a Supreme Court of Civil Justice of the
Colony of Vancouver's Island,
provided for an appeal to Her Majesty in Council in certain cases and preserved
Her Majesty's prerogative right to grant leave to appeal in any case.
In 1858 the Colony of British Columbia
(excluding Vancouver Island) was established by 21-22 Victoria, chapter 99 (Imperial), section 5 whereof, relating to appeals
[Page 112]
to Her Majesty in Council, corresponds to
section 3 of the Act providing for the administration of justice in Vancouver's
Island.
On November 19th, 1866, the Colony of Vancouver
Island was united to the Colony of British Columbia under the name of
"British Columbia" by a proclamation issued pursuant to 29-30
Victoria, chapter 66 (Imperial). This statute enacted that the laws in force in
the separate colonies should be retained until otherwise provided by lawful
authority, and the powers of Her Majesty in Council were left unaffected by
anything in the statute.
Pursuant to an Imperial Order in Council, the
Colony of British Columbia entered Confederation as of July 20th, 1871, at
which date appeals from British Columbia courts would appear to be subject to
the same terms and regulations as applied to appeals from Ontario and Quebec.
Prince
Edward Island
In Prince Edward Island a system of courts was established under the authority of the
instructions issued to the Governors of the province, which instructions also
provided for an appeal to Her Majesty in Council in certain circumstances.
No order in council was issued regulating these
appeals down to July 1st, 1873, as of which date the province joined
Confederation. Since only laws that were in force at that time were continued,
the Common Law Procedure Act, 1873, passed by the General Assembly of
the province on June 14th, 1873, would appear to have no relevancy as by its
terms it was not to come into operation until January 1st, 1874. In any event,
it is understood that the judges of the provincial Supreme Court did not
exercise the powers conferred upon them by section 158 of the 1873 Act to make
rules and regulations
directing the mode of procedure, either
pro hoc vice, or generally, as may be required, and as may not be
inconsistent with the Royal instructions and the rules and mode of procedure of
the Judicial Committee of the Privy Council.
Alberta
and Saskatchewan
The British North America Act of 1871
conferred upon Parliament the power to establish new provinces in any
territories forming part of the Dominion, and accordingly, by Dominion Acts of
1905, the provinces of Alberta and
[Page 113]
Saskatchewan were
constituted as of September 1st of that year. It has been mentioned previously,
when speaking of Manitoba, that
no order in council appears to have been issued regulating appeals from
Rupert's Land or the Northwest Territories (out of which these two provinces were formed).
These being the laws with respect to appeals to
His Majesty in Council, in force in the several provinces as of the date of
their entry into the Union, it may be stated that subsequent thereto appeals
were regulated by Imperial orders in council passed with respect to British
Columbia in 1887, Manitoba in 1892, and finally with respect to each province
except Ontario and Quebec in 1910 and 1911,
with a view of equalizing as far as may be
the conditions under which Her Majesty's subjects in the British Dominions
beyond the Seas shall have a right of appeal to Her Majesty in Council.
It is now necessary to revert to the provisions
of section 129 of the Act. By virtue of that part of the section which appears
in brackets, all such laws, that were enacted by or existed under Imperial
Acts, could not be repealed, abolished or altered either by Parliament or by
the provincial legislatures; if they were not of that description, they might
be repealed, abolished or altered by the proper legislative body "according
to the authority of the Parliament or of that legislature under this Act."
Primarily, it is contended that these laws fall in the second division and that
the provincial legislatures have the required authority under the Act; in the
alternative it is contended that, if they fall within the first division, the
effect of sections 2 and 7 of the Statute of Westminster is to invest the
legislatures with the necessary power.
The alternative argument may first be noticed.
Section 2 of the Statute of Westminster has already been referred to; section 7
is as follows:—
7. (1) Nothing in this Act shall be deemed
to apply to the repeal, amendment or alteration of the British North America
Acts, 1867 to 1930, or any order, rule or regulation made thereunder.
(2) The provisions of section two of this
Act shall extend to laws made by any of the Provinces of Canada and to the
powers of the legislatures of such Provinces.
(3) The powers conferred by this Act upon
the Parliament of Canada or upon the legislatures of the Provinces shall be
restricted to the enactment of laws in relation to matters within the
competence of the Parliament of Canada or of any of the legislatures of the
Provinces respectively.
[Page 114]
The effect of subsection 2 of section 7 is that
the Colonial Laws Validity Act, 1865, will not apply to any law made
after the commencement of the statute by the legislature of a province, and
that no law so made will be void or inoperative on the ground that it is
repugnant to the law of England or to the provisions of any existing or future
Act of Parliament of the United Kingdom, or to any order, rule or regulation
made under such Act, and the powers of a provincial legislature shall include
the power to repeal or amend any such Act, order, rule or regulation in so far
as the same is part of the law of the province. Subsection 2 must, of course,
be read in conjunction with the other subsections and in my opinion the proper
construction of section 7, upon a consideration of all its provisions, requires
that a province or the Dominion be restricted to the powers of legislation
conferred upon the legislature or Parliament, as the case may be, by the Act.
The Statute of Westminster does not enlarge the classes of subjects within
which fall those matters in relation to which Parliament or a legislature may
make laws. If, but for the Colonial Laws Validity Act, 1865, or any
other Imperial Act applying to the Dominion, a provincial legislature would
have been empowered by the Act to legislate upon a given matter, the restrictions
imposed by those statutes are removed by the Statute of Westminster, but no
alteration is made in the division of subjects between the two authorities. It
must also be borne in mind that while by section 3 of the Statute of
Westminster the doctrine prohibiting extra-territorial legislation ceased to
apply to Parliament that section, unlike section 2, was not made applicable to
the provincial legislatures.
The summaries of the laws in force in each of
the provinces at the relevant dates demonstrate that, except in the cases of
Ontario and Quebec, and
possibly British Columbia, they
existed by virtue of the Judicial Committee Acts of 1833 and 1844 or
Imperial orders in council passed in pursuance thereof. They, therefore, fall
within that part of section 129 that appears in brackets and for the reasons
given immediately above may not be repealed, abolished or altered by the
provincial legislatures unless these bodies already possess the necessary power
under the Act.
This brings us to a consideration of the first
contention. It is said generally on behalf of all those provinces that
[Page 115]
deny the jurisdiction of Parliament to enact the
provisions of Bill 9, that their legislatures have the necessary authority
under one of three heads of section 92 of the Act:—
1. The Amendment from Time to Time,
notwithstanding anything in this Act, of the Constitution of the Province,
except as regards the Office of Lieutenant-Governor.
13. Property and Civil Rights in the
Province.
14. The Administration of Justice in the
Province, including the Constitution, Maintenance, and Organization of
Provincial Courts, both of Civil and of Criminal Jurisdiction, and including
Procedure in Civil Matters in those Courts.
Taking these in reverse order, it will be
noticed that by the very terms of head 14, the administration of justice is
confined to the provinces, the courts which the provincial legislatures are
authorized to constitute, maintain and organize are provincial courts, and the
procedure in civil matters is confined to procedure in those, i.e., provincial
courts. At page 520 of the judgment in the British Coal Corporation case
appears a statement, already set out, which together with the preceding
sentence is relied upon by the provinces. It seems advisable to reproduce the
entire passage:—
A most essential part of the administration
of justice consists of the system of appeals. It is not doubted that with the
single exception of what is called the prerogative appeal, that is, the appeal
by special leave given in the Privy Council in London, matters of appeal from
Canadian Courts are within the legislative control of Canada that is of the
Dominion or of the provinces as the case may be.
One argument based upon this passage is that the
reference to the provinces would have been unnecessary if their Lordships had
not felt that authority to deal with appeals here under review was in the
provincial domain. But their Lordships pointed out at the end of the judgment
that they had been dealing only with the legal position in Canada in regard to appeals in criminal
matters and that it was neither necessary nor desirable to touch on the
position as regards civil cases. There must always be kept in mind the
particular thing with which a judgment is dealing. The difficulty of discovering
language applicable only to particular circumstances is shown by the fact that
if one's attention is confined to the sentence in the British Coal judgment
preceding the passage quoted
[Page 116]
above, it would appear as if it were
categorically stated that the power to constitute law courts and regulate their
procedure was by the Act vested only in the Dominion legislature; whereas it is
well known, and the succeeding part of the judgment indicates, that certain
powers with reference to the law courts are vested in the provinces.
The second argument, founded upon the first
sentence in this passage, is that the phrase in head 14 of section 92,
"administration of justice," conferred the power upon the
legislatures to establish and regulate a system of appeals. Now it has been
made clear in the Crown Grain case that the administration
of justice, confined as it is to the provinces, is certainly not sufficient to
permit the legislatures to deal with appeals from the provincial courts to the
Supreme Court of Canada, and the proper conclusion appears to be that His
Majesty in Council or the Judicial Committee cannot in any sense of the term be
deemed "Provincial Courts" and that the legislatures are still
territorially restricted.
As to head 13, while the right to launch an
appeal to His Majesty in Council may be said to be a right in the province
since a litigant in the provincial courts is either a resident of the province
or has attorned to the jurisdiction, the effective part of the proceeding is the
hearing and determination of the appeal; and as to these, it cannot be said
that they are rights in the province. It follows, I think, from the decision in
Brassard v. Smith, that unless all the elements of the
right exists in the province, head 13 can have no application.
In truth, if the provinces have not power under
head 14, it is difficult to see how head 13 can have any application. As
Viscount Haldane stated in John Deere Plow Company, Limited v. Wharton:—
The expression "civil rights in the
province" is a very wide one, extending, if interpreted literally, to much
of the field of the other heads of s. 92 and also to much of the field of s.
9.1. But the expression cannot be so interpreted and it must be regarded as
excluding cases expressly dealt with elsewhere in the two sections,
notwithstanding the generality of the words.
With reference to the subject matter of the
appeal in that case, His Lordship had already pointed out that unless heads 11
and 13 were read disjunctively the limitation in
[Page 117]
the former, "the incorporation of companies
with provincial objects," would be nugatory. Similarly in the present
instance, the limitation "in the province" in head 14 would have no
application if the power under head 13 to enable an appeal to be launched
carried with it the power to permit or abolish its hearing and determination.
As to head 1 of section 92, it must first be
observed that the salient word "Constitution" is found in many parts
of the Act. It appears in the first recital, "A Constitution similar in
Principle to that of the United Kingdom "; in section 22 "In relation
to the Constitution of the Senate"; in the heading of Part V
"Provincial Constitutions "; in section 64 (which is included in Part
V) "The Constitution of the Executive Authority in each of the Provinces
of Nova Scotia and New Brunswick "; in section 88 (also included in Part
V) "The Constitution of the Legislature of each of the Provinces of Nova
Scotia and New Brunswick"; in head 27 of section 91 "except the
Constitution of Courts of Criminal Jurisdiction"; then in head 1 of
section 92; and in section 101. This is not meant to be an exhaustive list but
it is sufficient to indicate that the word is used in different senses
throughout the Act. In head 1 of section 92, it must, I think, refer, as to the
executive power, to such things as the appointment of Lieutenant-Governors and
Provincial Administrators, and as to the legislative power, to such things as
the legislatures for the provinces; all of these matters being dealt with by
sections appearing under Part V. It can have no reference to such a particular
subject as is identified by head 14.
If a province does not possess that authority,
it has been made clear by a number of decisions of the Judicial Committee, some
of which are referred to in the British Coal Corporation case,
that such power must necessarily reside in the Dominion. It will be remembered
that Bill 9 proposes to amend the Dominion statute respecting the Supreme Court
of Canada. Under the opening clause of section 91, Parliament may make laws for
the peace, order and good government of Canada, and by section 101 "The Parliament of Canada may,
notwithstanding anything in this Act, from time to time, provide for the
constitution,
[Page 118]
maintenance and organization of a General Court
of Appeal for Canada." In
my opinion the power thereby conferred includes the power to make the decisions
of such appellate court exclusive and ultimate. The reasons set forth in Nadan's
case, as explained in the British Coal
Corporation case, as to why Parliament could not, prior
to the Statute of Westminster, abolish appeals as of grace in criminal cases,
apply with equal force to explain the inability of Parliament during that
period to compel a litigant desirous of appealing from the judgment of a
provincial court to apply to the Supreme Court of Canada, if his suit fell
within the jurisdiction of that court, and otherwise to abide by the decision
against him. These restrictions have been removed by the Statute of Westminster
and therefore, so far as all the provinces except Ontario and Quebec and possibly British Columbia are concerned, Parliament
may validly enact the provisions of Bill 9.
It is now necessary to refer to an additional
argument presented on behalf of Ontario, which is to this effect. By assenting to the Constitutional Act
of 1791 His Majesty must be taken not only to have abandoned the
prerogative right to regulate appeals as of right from Upper Canada to the
Sovereign in Council but to have transferred it to the Legislative Council and
Assembly of that province; that such transferred prerogative was so regulated
by statute, which was continued in force by the Act of Union, 1840; that it was
regulated by the Parliament of Canada by legislation, applying to Upper Canada,
which existed at the time of Confederation and which was continued in force by
section 129 of the Act; that thereafter Ontario continued to regulate appeals
as of right and effectively abolish them, except under the condition set forth
in its legislation. So much may be conceded. The remainder of the argument that
Ontario has also acquired the
power to abolish the right of His Majesty in Council to grant special leave to
appeal is, under the authorities, not so obvious.
Granting, however, the entire premises and
conclusion of this contention, it will be recollected that the power deemed to
reside in Parliament to make the decisions of
[Page 119]
the Supreme Court of Canada exclusive and
ultimate may be exercised "notwithstanding anything contained in this
Act." This non obstante clause places the Dominion power on the
same footing as those conferred by the specially enumerated heads of section
91. As to these, their Lordships pointed out in Proprietary Articles Trade
Association v. Attorney-General for Canada (Combines Investigation Act case):—
If then the legislation in question is
authorized under one or other of the heads specifically enumerated in s. 91, it
is not to the purpose to say that it affects property and civil rights in the
provinces. Most of the specific subjects in s. 91 do affect property and civil
rights but so far as the legislation of Parliament in pith and substance is
operating within the enumerated powers there is constitutional authority to
interfere with property and civil rights. The same principle would apply to s.
92, head 14, the administration of justice in the province.
In Crown Grain Company Limited v. Day,
it is stated:—
It is inconceivable that a Court of Appeal
could be established without its jurisdiction being at the same time defined.
The pith and substance of the proposed Bill is
the jurisdiction of that General Court of Appeal, so that even if Ontario had authority the two powers
overlap and "the enactment of the Dominion Parliament must prevail." Crown
Grain Company Limited v. Day; Attorney-General of
Canada v. Attorney-General of British
Columbia (Fish Canneries case); In Re Silver Bros..
Stress was placed upon a passage in the judgment
of Viscount Haldane in the Board of Commerce case. The
paragraph in which these words appear is as follows (the particular passage
being italicized):—
For analogous reasons the words of head 27
of s. 91 do not assist the argument for the Dominion. It is one thing to"
construe the words "the criminal law, except the constitution of courts of
criminal jurisdiction, but including the procedure in criminal matters,"
as enabling the Dominion Parliament to exercise exclusive legislative power
where the subject matter is one which by its very nature belongs to the domain
of criminal jurisprudence. A general law, to take an example, making incest a
crime, belongs to this class. It is quite another thing, first to attempt to
interfere with a class of subject committed exclusively to the Provincial
Legislature, and then to justify this by enacting ancillary provisions,
designated as new phases of Dominion criminal law which
[Page 120]
require a title to so interfere as basis of
their application. For analogous reasons their. Lordships think that s. 101
of the British North America Act, which enables the Parliament of Canada,
notwithstanding anything in the Act, to provide for the establishment of any
additional Courts for the better administration of the laws of Canada, cannot
be read as enabling that Parliament to trench on Provincial rights, such as the
powers over property and civil rights in the Provinces exclusively conferred on
their Legislatures. Full significance can be attached to the words in
question without reading them as implying such capacity on the part of the Dominion
Parliament. It is essential in such cases that the new judicial establishment
should be a means to some end competent to the latter.
It is quite evident that Viscount Haldane was
there applying a well-known principle to the legislation in question by
pointing out that Parliament could not, under the guise of establishing a
provincial court for the better administration of the laws of Canada, really
legislate upon matters of provincial concern. That principle has no application
in the present case where Bill 9 deals with the jurisdiction of the Supreme
Court of Canada, a subject matter within its exclusive power.
In all relevant respects Quebec is in the same
position as Ontario. On behalf
of British Columbia, it was
urged that in view of section 3 of The Vancouver's Island Act of 1839
and section 5 of The Colony of British Columbia Act of 1858, the
situation of that province, under section 129 of the Act, was identical with
that of Ontario. It is not
necessary to determine whether that be so or not, but certainly British Columbia stands in no higher
position.
The views expressed with reference to the other
six provinces add force to the opinion as to Ontario, Quebec and British Columbia. Without the use of express words, it could surely not have been intended
that in a matter of this kind three provinces; should be able to exercise a
power denied to the others. From time to time all provincial courts are engaged
in the duty of construing and enforcing Acts of Parliament and as to these
particularly it is not to be expected that in some provinces an appeal could be
taken only to this court, while in others an alternative right to appeal or ask
for leave to appeal, to His Majesty in Council would still exist. If that were
so, the court could not properly be described as "a General Court of
Appeal for Canada."
For these reasons I would answer the question
submitted to us "Yes, in its entirety."
[Page 121]
Hudson J.—His
Excellency the Governor General in Council has submitted to this Court for its
opinion a question in the following language:
Is said Bill No. 9, entitled An Act to
amend the Supreme Court Act, or any of the provisions thereof, and in what
particular or particulars or to what extent, intra vires of the
Parliament of Canada?
Bill No. 9 referred to proposes, first, to give
the Supreme Court of Canada exclusive ultimate appellate civil and criminal
jurisdiction within and for Canada; secondly, to abolish appeals to the Privy
Council; and thirdly, to repeal the Judicial Committee Act of 1833 and
the Judicial Committee Act of 1844, of the statutes of the United
Kingdom of Great Britain and Ireland, and all orders, rules or regulations made
thereunder in so far as they affect Canada.
The validity of the Bill was supported by the
Dominion and the provinces of Manitoba and Saskatchewan, and opposed by Ontario, Nova Scotia, New Brunswick, British Columbia and Alberta.
Neither Quebec nor Prince Edward Island took any part.
In the division of legislative power between the
Dominion and the provinces consequent upon Confederation, there was allotted to
the provinces by the British North America Act, section 92 (14),
Exclusive
Powers of Provincial Legislatures
92. In each Province the Legislature may
exclusively make laws in relation to Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,
* * *
14. The Administration of Justice in the
Province, including the Constitution, Maintenance and Organization of
Provincial Courts, both of Civil and of Criminal Jurisdiction, and including
Procedure in Civil Matters in these Courts.
Under the authority of this provision, the
provinces have defined the constitutions of their several courts and provided
for their maintenance and organization.
But to enable these courts to function, the judges
who interpret and apply the law must be appointed by the Dominion who must pay
their salaries and under whose authority alone they can be removed; sections
96, 99 and 100; Toronto Corporation v. York.
[Page 122]
The laws administered in the provincial courts
are the laws applicable to the causes coming before them, whether these laws be
within the legislative competence of the province or of the Dominion.
The Dominion may impose additional duties on the
judges and utilize the machinery of these courts to enforce Dominion laws of a
special character, such as Dominion election petitions and bankruptcy; see Valin
v. Langlois and Cushing v. Dupuy.
From final decisions of these provincial courts
an appeal lies to the Supreme Court of Canada, which was established under the
authority of section 101 of the British North
America Act:
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.
A province cannot take away or impair the
jurisdiction conferred on the Supreme Court by the Dominion Act in respect of
matters otherwise purely provincial: Crown Grain v. Day.
Nor has a provincial legislature any power to grant an appeal to the Supreme
Court of Canada: Union Colliery v. Attorney-General for British
Columbia.
The Bill under consideration, if it became law,
would make this Court the exclusive, final tribunal in all Canadian cases.
An appeal may also be brought from the
provincial courts to the Judicial Committee of the Privy Council in all except
criminal cases. There are two classes of such appeals: First, what are called
"prerogative appeals" by which the Judicial Committee may, if they
see fit, grant leave to any litigant to appeal thereto from any decision of any
court, either Dominion or provincial. The second class is where provision has
been made for what are called appeals as of right. In the provinces of Ontario and Quebec, this has been done by legislation purporting to authorize appeals
to the Judicial Committee subject to defined conditions, and in the other
provinces there are somewhat similar provisions made by orders in council.
[Page 123]
The Bill under consideration would abolish
appeals of both classes.
In criminal matters there is no longer any right
of appeal to the Judicial Committee from any court, either Dominion or
provincial In 1933, an amendment was made to the Criminal Code of Canada,
section 17 of the Statutes of 23 and 24, Geo. V, as follows:
Subsection 4 of section 10 of the said Act
(the Criminal Code) is repealed and is hereby re-enacted as follows:—
Notwithstanding any royal prerogative or anything
contained in the Interpretation Act or in the Supreme Court Act, no
appeal shall be brought in any criminal case from any judgment or order of any
court in Canada to any court of appeal or authority in which in the United Kingdom appeals or petitions to His
Majesty may be heard.
The validity of this provision was upheld in the
case of British Coal Corporation v. The King.
Therefore, future appeals in all criminal matters are effectually barred. In
giving the judgment of the Committee, the Lord Chancellor, Lord Sankey, stated:
It is here neither necessary nor desirable
to touch on the position as regards civil cases.
But the reasons for arriving at this judgment
lead inevitably to the conclusion that the Canadian Parliament has a right to
abolish any right to appeal to the Judicial Committee in any matter falling
within the legislative jurisdiction of the Dominion Parliament, including an
appeal from the decision of the Supreme Court of Canada in any matter
whatsoever.
There remains for consideration the matter of
appeals from the decisions of provincial courts where the law involved is
within the exclusive legislative jurisdiction of the provinces.
Prior to 1833, the right of the Sovereign in
Council to entertain, by way of special leave, appeals from any court in His
Majesty's Dominions beyond the seas, was a settled part of the royal
prerogative: "a residuum of the royal prerogative of the Sovereign
as the fountain of justice "; British Coal Corporation v. The
King. This appellate jurisdiction was usually
exercised in a Committee of the Whole Privy Council which having heard the
allegations and proofs, made their report to His Majesty in Council, by whom a
judgment was finally given.
[Page 124]
In 1833 there was passed an Act of the Imperial
Parliament, 3-4 William IV, chap. 41, entitled An Act for the better
administration of justice in His Majesty's Privy Council, later given the
short title of The Judicial Committee Act, 1833. This Act created a
statutory body called "The Judicial Committee of the Privy Council,"
and is the basis of the present constitution and procedure of this tribunal. It
recites, inter alia, that
from the decisions of various courts of
judicature in the East Indies and in the Plantations, Colonies and other
Dominions of His Majesty abroad, an appeal lies to His Majesty in Council;
and proceeds to provide for the more effectual
hearing and reporting of appeals to His Majesty in Council and on other
matters, and for giving powers and jurisdiction to His Majesty in Council. The
Act goes on to provide for the formation of a Committee of His Majesty's Privy
Council to be styled "The Judicial Committee of the Privy Council";
and enacts that
all appeals, or complaints in the nature of
appeals whatever which, either by virtue of this Act, or of any law, statute or
custom, may be brought before His Majesty or His Majesty in Council
from the order of any court or judge, should
thereafter be referred by His Majesty to, and heard by the Judicial Committee
as established by the Act, who should make a report or recommendation to His
Majesty in Council for his decision thereon, the nature of such report or
recommendation being always stated in open court.
It would appear, therefore, that this Act and
the Supplementary Act of 1844 did not change the character of the jurisdiction
but merely provided a more efficient method of exercising it. Reference here
might be made to a statement of Lord Watson in the case of Attorney-General
for Canada v. Attorney-General for Ontario. At
page 208 he said:
By a clause in the statutes of 1890 and
1891 (Statutes of Ontario and Canada), it is enacted that when the arbitrators
proceed on their view of a disputed question of law, "the award shall set
forth the same at the instance of either party, and the award shall be subject
to appeal so far as it relates to such decision to the Supreme Court, and
thence to the Privy Council of England, in case their Lordships are pleased to
entertain the appeal." The concluding part of that enactment ignores the
constitutional rule that an appeal lies to Her Majesty, and not to this
[Page 125]
Board; and that no such jurisdiction can be
conferred upon their Lordships, who are merely the advisers of the Queen, by
any legislation either of the Dominion or of the Provinces of Canada.
On the granting of self-government, many of the
royal prerogatives passed to the Provinces, and, at Confederation, these and
some others were distributed between the Dominion and the provinces largely in
accordance with the distribution of legislative power.
There remained, however, some prerogatives which
did not pass either to the Dominion or to the provinces. They have sometimes
been referred to as "Imperial prerogatives."During the past few
decades with the broadening of Dominion status these Imperial prerogatives, in
so far as they affected Canadian affairs, passed progressively under Dominion
control. To illustrate by recent events, His Majesty now makes a declaration of
war so far as it affects Canada
on the advice of his Canadian Ministers. Again, by the Statute of Westminster,
any alteration made in the succession to the Throne was made subject to the
approval of the Dominion. When a change became necessary, this was done, first,
with the approval of the Canadian Ministers and afterwards confirmed by the
Parliament of Canada.
The prerogative of appeal is the only one
affecting Canadian affairs which continues to be exercised without the active
participation of the Dominion. There were two initial legal obstacles in the
way of Dominion legislation abrogating this particular prerogative. The first
was that by reason of the operation of the Colonial Laws Validity Act such
legislation by Canada would be
repugnant to the Judicial Committee Acts of 1833 and 1844, and void for that
reason. The second was that it. would be in the nature of extra-territorial
legislation and for that reason beyond the power of Parliament: see Nadan v.
The King. However, these obstacles were removed
by the Statute of Westminster: see British Coal Corporation case.
Now it is contended on behalf of a majority of
the provinces that whatever remains of this prerogative is something in which
they have rights and, for that reason, cannot be taken away by the Canadian
Parliament.
[Page 126]
The rights of the provinces must be found within
the four corners of the British North America Act. Before dealing with the particular
sections of this Act, there are some general observations which merit
consideration.
Prior to Confederation, each of the original
Provinces was in the nature of a unitary state. Each had general power to make
laws for the peace, order and good government within the province. There was no
restriction on the establishment of courts and the appointment of judges. They
were in fact subject to no limitations except those imposed by the Imperial
Parliament, or retained in the way of royal prerogatives. Upon Confederation,
however, such powers of the provinces were greatly restricted. In addition to
the distribution of legislative power, some of the Imperial prerogatives were
transferred to the Dominion and many of those formerly enjoyed by the Provinces
were also transferred to the Dominion.
The Governor in Council now appoints and can
dismiss the Lieutenant-Governors of the provinces. The Dominion pays their
salaries. The Governor General in Council now has power to disallow provincial
statutes. This could not be done by His Majesty in Council (other than his
Council in Canada). As has been
said before, the Governor General in Council now appoints the judges of the
provincial courts as well as those of the Dominion, and the Dominion pays the
salaries of all. Perhaps the most important is that the reserve power to
legislate for peace, order and good government was allotted to the Dominion
Parliament and specific powers alone went to the provinces.
There is no mention whatever in the British
North America Act of appeals to the Judicial Committee or in fact to any
other tribunal, except only the provision in section 101 for the establishment
of a general court of appeal for Canada.
The British Coal Corporation case,
establishes that the right to control appeals to the Judicial Committee must
now be a matter coming within the jurisdiction of either the Canadian
Parliament or the provincial legislatures.
As has been stated, the reserve power to
legislate for peace, order and good government is vested in the Canadian
[Page 127]
Parliament and, therefore, unless something can
be found in the provisions of the Act which confer this power on the provinces,
the Dominion must have that power. As was stated by Sir Montague Smith in the
case of Citizens Insurance Company v. Parsons:
The first question to be decided is,
whether the Act impeached in the present appeals falls within any of the
classes of subjects enumerated in sect. 92, and assigned exclusively to the
legislatures of the provinces; for if it does not, it can be of no validity,
and no other question would then arise. It is only when an Act of the
provincial legislature prima facie falls within one of these classes of
subjects that the further questions arise, viz., whether, notwithstanding this
is so, the subject of the Act does not also fall within one of the enumerated
classes of subjects in sect. 91, and whether the power of the provincial
legislature is or is not thereby overborne.
Section 92 enumerates the subjects assigned
exclusively to the provinces. Of these the only relevant head of provincial
legislative jurisdiction would appear to be section 92 (14).
14. The Administration of Justice in the
Province, including the Constitution, Maintenance, and Organization of
Provincial Courts, both of Civil and of Criminal Jurisdiction, and including
Procedure in Civil Matters in those Courts.
The first and controlling phrase is "the
administration of justice in the province." These words in their natural
sense mean the enforcement of justice according to law in the province. They
would imply authority to provide machinery necessary for that purpose. They
would not imply making law. They might or might not imply the creation of courts
for the interpretation and application of law. But the following words make
clear the extent and limitation of any such implication, that is,
including the constitution, maintenance and
organization of Provincial courts, both of civil and of criminal jurisdiction,
and the procedure in civil matters in those courts.
It is obvious that the provincial courts must be
courts functioning within the province and whose jurisdiction is limited by
territorial boundaries of the province.
Now the administration of justice means the
enforcement of all justice according to law, civil or criminal, Dominion or
provincial, and the judges of the courts who are to interpret and apply the law
for the purposes of such
[Page 128]
administration in the provinces are to interpret
and apply both Dominion and provincial laws, and this in fact is what is done.
The courts are for all parties commonly the subjects of both jurisdictions.
While a province constitutes these courts and supplies the machinery for and
does enforce the law, the function of judicature is entrusted to judges
appointed and paid by Canada
and not by the provinces. The Dominion may also impose additional duties on the
judges and utilize the machinery of those courts to enforce Dominion laws of a
special character, such as Dominion Election Petitions and Bankruptcy. Although
called provincial courts they are in truth created by joint action, by and for
the benefit of both jurisdictions.
The composition of these courts and the
character of the business entrusted to them rebut any implication there might
be that a province had a right to control appeals therefrom to any external
tribunal.
Then there is the objection of
extra-territoriality found fatal to the attempted repeal in question in the Nadan
case, supra. Although this objection was removed by section 3 of the
Statute of Westminster so far as it affected the Dominion, it still subsists in
the case of the provinces. I am of the opinion that this section does not give
the provinces the power for which they contend.
It was also contended on behalf of the provinces
that subsections 1 and 13 of section 92 might supply jurisdiction. But I am
unable to see that either of these confers any such power. In any event,
heading 14 is the compartment dealing with the subject-matter and for this
reason would exclude application on the others.
Another argument advanced on behalf of the
provinces was based on section 129 of the British North America Act, as
follows:
129. Except as otherwise provided by this
Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union,
and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions,
Powers and Authorities, and all Officers, Judicial, Administrative, and
Ministerial, existing therein at the Union, shall continue in Ontario, Quebec,
Nova Scotia, and New Brunswick respectively, as if the Union had not been made;
subject nevertheless (except with respect to such as are enacted by or exist
under Acts of the Parliament of Great Britain or of the Parliament of the
United Kingdom of Great Britain and Ireland), to be repealed, abolished, or
altered by the Parliament of Canada, or by the Legislature of the respective
Province, according to the Authority of the Parliament or of that Legislature
under this Act.
[Page 129]
The obvious purpose of this section was to
provide for continuity of law and administration until the new Parliament and
new legislatures were organized, assembled and able to function. I think it was
clearly not the intention to alter the distribution of powers made by sections
91 and 92. The introductory words "Except as otherwise provided by this
Act" make this perfectly plain.
If my view is correct that none of the headings
in section 92 confer on the provincial legislatures, expressly or impliedly,
power to abolish the right of appeal, then the reserve powers of the Dominion
would come automatically into operation, and it is, therefore, "otherwise
provided" in the Act that the Dominion should have any rights which the
provinces theretofore may have had in the matter.
A very able and interesting argument was
presented to us on behalf of Ontario and by counsel for several of the other
provinces, based in the case of Ontario on the Constitutional Act of
1791, and in several of the other provinces on subsequent orders in council;
but holding the views that I do it is not necessary to discuss the points
raised by them. I would just make one observation here. It must never be
overlooked that with the passing of this Act there was a new orientation of powers,
prerogative as well as legislative.
For complete accuracy, it should be stated that
references herein to provincial courts do not apply to those inferior
jurisdictions under consideration in a reference before this Court, the
judgment in which is reported.
There remains to be considered the extent of the
power conferred upon the Dominion by section 101. This provides:
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.
The extent of the power thus conferred came
before the Judicial Committee for consideration in the case of Crown Grain v.
Day. The circumstances in this case were
that the Manitoba Legislature had passed a Mechanics' and Wage Earners' Lien
Act applying to the suit under appeal.
[Page 130]
This statute enacted that in suits relating to
liens the judgment of the Manitoba court of King's Bench should be final and that there should be no
appeal therefrom. It was held that a provincial Act could not circumscribe the
appellate jurisdiction granted by the Dominion Act. Lord Robertson, in giving
the opinion of the Board, said at page 507:
The appellants maintain that the implied
condition of the power of the Dominion Parliament to set up a Court of Appeal
was that the Court so set up should be liable to have its jurisdiction
circumscribed by provincial legislation dealing with those subject-matters of
litigation which, like that of contracts, are committed to the provincial
Legislatures. The argument necessarily goes so far as to justify the wholesale
exclusion of appeals in suits relating to matters within the region of
provincial legislation. As this region covers the larger part of the common
subjects of litigation, the result would be the virtual defeat of the main
purposes of the Court of Appeal.
It is to be observed that the subject in
conflict belongs primarily to the subject-matter committed to the Dominion
Parliament, namely, the establishment of the Court of Appeal for Canada. But, further, let it be assumed
that the subject-matter is open to both legislative bodies; if the powers thus
overlap, the enactment of the Dominion Parliament must prevail. This has
already been laid down in Dobie v. Temporalities Board,
and Grand Trunk Ry. Co. of Canada v. Attorney-General of Canada.
Section 101 is included in a group of sections
forming a distinct division of the Act under the heading "7.
Judicature" wherein provision is made for the appointment, payment,
retirement and removal of judges and concludes with the provision for a general
court of appeal. It would seem to me that, reading the sections of this
division together with other sections of the Act, there is envisaged the
ultimate establishment of a complete system of judicature within Canada with a
final, general court of appeal of a last resort in Canada, and this should be
established when and with whatever jurisdiction Parliament might from time to
time decide.
As has already been observed, there is no
provision in the Act relating to appeals beyond Canada, but, undoubtedly, when the Act was passed in 1867 the prerogative
right to appeal by special leave existed. But that did not necessarily mean
that litigants who wished to appeal might not first be obliged to come to the
Supreme Court of Canada. The words "a general court of appeal for
[Page 131]
Canada" surely
imply only one court of appeal and it would appear to be anomalous that there
should be concurrently a right of appeal to two different courts. This
situation could not be effectively corrected until the passing of the Statute
of Westminster, not because of any provisions in the British North America
Act but because of external constitutional limitations. These having been
removed, I can see no reason why the Dominion should not exercise the full
powers given by this section, either expressly or impliedly and make the
decisions of the Supreme Court of Canada final and conclusive and without
appeal.
A special argument was raised in regard to
admiralty appeals, but I think this argument is shortly and definitely answered
by the fact that "navigation and shipping" is a subject which is
expressly allotted to the Dominion under section 91 of the Act, and the
reasoning by which the conclusion was arrived at in the British Coal
Corporation case, that Canada had the power to make
the decision of the Supreme Court final in regard to criminal matters, applies
equally in regard to admiralty cases.
For these reasons, I would answer the question
submitted in the affirmative and say that a Bill in substantially the form of
Bill No. 9 would be intra vires of the Parliament of Canada.
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