TMI Blog1947 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... eived first reading in the House of Commons on 23-1-1939 and that on April 14th of the same year the debate on the motion for the second reading of the Bill was adjourned in order that ?steps might be taken To obtain a Judicial determination of the legislative competence of the Parliament in Canada to enact the provisions of the said Bill in whole or in part. 3. The following question was accordingly referred to the Supreme Court of Canada for hearing and consideration: 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? 4. The contents of the Bill, a short but pregnant one, must be stated in full. They are 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 Section fifty-four of the Supreme Court Act, chapter thirty-five of the Revised Statutes of Canada, 1927, is repealed and the following substituted therefor: 54.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that H.M. Attorney-General in England took no part in controversy, which has throughout been between the Dominion, of Canada and certain of the Provinces on the one hand and others of the Provinces on the other hand. The single issue has been whether, as the appellants contend, the subject matter of Bill 9 falls within the exclusive powers committed to the Provincial Legislatures of the Provinces of Canada under S. 92, British North America Act 1867, or, as the respondents contend, is within the powers of the Parliament of Canada under S. 101 or alternatively under s. 91 of that Act. An alternative argument was faintly addressed to their Lordships by counsel for the appellants, that the Bill , lay within the powers of neither Provinces nor Dominion, but H.M. Attorney. General in England did not intervene to support this view and their Lordships see no valid reason for accepting it. 7. The sections of the British North America Act to which it is necessary to refer are Ss. 91, 92, 101 and 129. 8. Sections 91 and 92 fall within part VI of the Act which is entitled Distribution of Legislative Powers and by s. 91 it is enacted that: It shall be lawful for the Queen b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting how this power has been exercised it will be convenient to refer to s. 129 of the Act and briefly to restate the, familiar facts in regard to appeals to His Majesty in Council. 12. Section 129 of the Act provides that, except as thereby otherwise provided, 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 should 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 should be 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 of that Legislature under that Act. 13. The Act further made provision for the admission of other Colonies or Provinces into the Union. The manner in which this power was exercised and the growth of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in Council or Statute; when he can-not do so, but can only appeal by special leave of the Sovereign on the advice of the Judicial Committee itself, then the appeal is sometimes said to be under the prerogative, a description which if it is intended to be exclusive, is inaccurate. 15. It is convenient shortly to restate what immediately after the Act and indeed at all times until the passing of the Statute of Westminster (to which reference will shortly be made) was the constitutional bar to legislation whether by Dominion or Province in regard to appeals to His Majesty in Council. 16. In the first place it must be remembered that by the Colonial Laws Validity Act, 1865, any Colonial Law which was repugnant to the provisions of an Act of the United Kingdom extending to the Colony either by express words or necessary intendment was void and inoperative to the extent of such repugnancy. It followed that neither Dominion nor Province could then validly legislate so as to abolish aright of appeal to the King in Council which was provided by Imperial Acts. 17. In the second place the doctrine which imposed a territorial limitation upon the powers of Colonial Legislatures, mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles should henceforth require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom and that it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend, to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion. 22. By s. 2(1) it is provided that the Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of the Act by the Parliament of a Dominion (which by definition includes the Dominion of Canada), and by s. 2(2) that no law and no provision of any law made after the commencement of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this question their Lordships can entertain no doubt. The power vested in the, Dominion Parliament by S. 101 of the British North America Act to establish a general Court of Appeal for Canada was necessarily subject to the prerogative right of His Majesty, since that right was not expressly or by necessary intendment excluded, and this limitation was recognised in the first words of S. 54 of the Supreme Court Act. But that was a restriction or fetter upon the legislative power of the Dominion, which could be removed and has been removed by an Act of the Imperial Parliament, and, since it has been removed, it must be within the power of the Dominion. Parliament to enact that the jurisdiction of its Supreme Court shall be ultimate. No other solution is consonant with the status of a self-governing Dominion. 29. Secondly, as to appeals direct from Provincial Courts to His Majesty in Council. It is in regard to these appeals that the validity of the Bill has been more strenuously challenged and their Lordships have felt the familiar difficulty, of determining which of two alternative meanings is to be given to an instrument, the authors of which did not contemplate the possibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was raised but with this vital difference that in the meantime the Statute of Westminster had been passed. The section of the Criminal Code then in force purported in unambiguous terms to abolish the appeal to His Majesty in Council: 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 challenged by certain persons who sought leave to appeal in a criminal case from a Judgment of the Court of King's Bench (Appeal Side) of the province of Quebec. But it was challenged in vain. The Board after once more expounding the nature of appeals to His Majesty in Council explained the decision in 1926 A.C. 4823 thus: Their Lordships are of opinion that the judgment was based on two grounds only: (1) that S. 1025 was repugnant to the Privy Council Acts of 1833 and 1844 and was therefore void under the Colonial Laws Validity Act, 1865; (2) that it could only be effective if cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any rate it cannot be limited to one only of the 29 classes of subject matter enumerated in that section and that just as an appeal to His Majesty in Council may by Dominion legislation be abrogated in respect of the criminal law . . . including the procedure in criminal matters, so it may be abrogated in respect of, e.g. cl. 21 Bankruptcy and Insolvency or o. 22 Patents of Invention and discovery. 32. But the conclusion reached by Davis J. involves a distinction which their Lordships , would not willingly adopt. For if, as he holds, the subject matter provides the test whether the ' right of appeal may be abrogated by Dominion legislation so that it may not be abrogated in respect of classes of subjects assigned exclusively to the Provinces under s. 92, a strange result would follow. It must be remembered that in the Provincial Courts the subject matter of litigation may arise as well under Dominion as under Provincial legislation. The judicial and legislative spheres are not coterminous, Provincial Courts determining all questions except those for which a special Court is set up under s. 101, whether the rights of the parties spring from the common law or Dominion or Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislatures [of the Provinces] in respect of appeals to the Privy Council, that cannot detract from the power of Parliament under S. 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 political objects concerning the self-government of the Dominion (S. 3, 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. 36. The vital words in the passage cited, with which their Lordships are, in full agreement, are the words in the last line and final. But in the opinion of their Lordships the same considerations lead to the conclusion that the Court so established must have not only final or ultimate but also exclusive appellate jurisdiction. They would emphasize that s. 101 confers a legislative power upon the Dominion Parliament which by its terms overrides any power conferred by s. 92, upon the Provinces or preserved by s. 129. Notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words of Lord Sankey in (1935) 1935 A.C. 500 : 22 A.I.R. 1935 P.C. 158 : 157 I.C. 571 : 104 L.J.P.C. 58 : 153 L.T. 283, British Coal Corporation v. Reg. a prime element in Canadian sovereignty, which would be impaired if at the will of its citizens recourse could be had to a tribunal, in the constitution of which it had no voice. It is, as their Lordships think, irrelevant that the question is one that might have seemed unreal at the date of the British North America Act. To such an organic statute the flexible interpretation must be given that changing circumstances require, and it would be alien to the spirit, with which the preamble to the Statute of Westminster is instinct, to concede anything leas than the widest amplitude of power to the Dominion Legislature under s. 101 of the Act. 39. In this connection some argument was addressed to their Lordships upon the importance of uniformity of legal decision, which, it was urged, could not be secured if appeal lay indifferently to the Supreme Court of Canada or to His Majesty in Council. For a decision of the Supreme Court would at least be final, though its jurisdiction would not on this hypothesis be exclusive. Against this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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