March 30, 1927

CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

Whose order in council

did the minister say that was?

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

It is dated the 5th

February, 1920.

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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

On the recommendation

of whom?

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

On the recommendation of the Minister of Justice.

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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

That is what I thought.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

My hon. friend says:

"That is what I thought," but the Minister of Justice did not pass the order in council.

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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

No.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

He recommended it;

it was passed by the government, and the leader of the opposition was a distinguished member of that government. After this was

Imperial Conference-Mr. Lapointe

adopted by the government of that day, steps were taken for the purpose of giving effect to it. A resolution was first introduced into and adopted by parliament; but its language did not suit the officers of the crown in England, and I myself two or three years ago introduced a new resolution, the language of which had been agreed to in both England and Canada. Unfortunately that resolution was amended by the Senate in a way that made it quite unworkable; but we have the assurance that when an address is sent by the Dominion of Canada to the Imperial parliament, we shall obtain that change. The reason why no step has been taken in that direction this year is because this question of extra-territorial jurisdiction is submitted to a committee and there is no reason why we should precipitate ourselves in the matter.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

What was the nature of the resolution to which the Minister of Justice

referred?

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

This is how it reads:

An enactment of the parliament of Canada if expressed to operate extra-territoriaily shall have and be deemed to have had that operation if and in so far as it is a law for or ancillary to the peace, order and good govern ment of Canada.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Was that an address to secure an amendment at that time to the Brit' ish North America Act?

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

That was made by way of an address. I come now to the Colonial Laws Validity Act, which is one of the imperial enactments which is going to be considered by this committee of legal experts. It is indeed a relic of olden days when only a partial measure of self government was enjoyed by the dominions. By the Colonial Laws Validity Act, which is an act of 1865, it is enacted that:

Any colonial law which is or shall be in any respect repugnant to the provisions of any act of parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under - ithority of such act of parliament, or having in the colony the force and effect of such act, shall be read subject to such act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

It is on the provisions of this act that the Privy Council last year declared invalid article 1025 of the Criminal Code of Canada, which prohibited appeals to the Privy Council in criminal matters, and the judgment that was delivered was based on this act because there are in existence, as my hon. friend from St. Lawrence-St. George (Mr. Cahan) said the

other day, two old laws, one of 1833, and one of 1844, granting to subjects of His Majesty in the colonies the right to take their case to the Privy Council.

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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

Colony or dominion.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

Or dominion, but at that time there were really no dominions in existence. I must say that Sir John Thompson, when he was Minister of Justice for Canada, took a strong attitude to the effect that in matters which were within the jurisdiction ^ of the Dominion of Canada under the British North America Act, the legislation of Canada superseded the legislation of the Imperial parliament passed prior to the enactment of the British North America Act. Though I do not like to place my opinion beside that of such a distinguished Minister of Justice as Sir John Thompson was, I do not agree with him, and as a matter of pure law I think the Privy Council was right in saying that the Colonial Laws Validity Act rendered invalid and unconstitutional article 1025 of the Criminal Code. I do not know whether my hon. friend from West Calgray will agree with me in that.

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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

My hon. friend has left out one sentence that he intended to say. The Privy Council decided that with respect to Canada the section is binding. I wholly agree with my hon. friend.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

What I say is that article 1025 of the Criminal Code was on the statute books of Canada from 1888; it had been accepted by the people of Canada, and if any old legislation, legislation almost one hundred years old, obstructs the will of the Canadian people, I am in favour of repealing it. I may say that we were to submit a question in this regard to parliament during this present session, but it has been postponed to the next session owing to the appointment of the committee which is going to deal with this matter.

Now I come to the question of appeals to the Privy Council, which was perhaps the most interesting and the most important part of the remarks of the leader of the opposition yesterday. I call the attention of the House to the language of the report concerning appeals to the Privy Council. It says:

Another matter which we discussed, in which a general constitutional principle was raised, concerned the conditions governing appeals from judgments in the dominions to the judicial committee of the Privy Council. From these discussions it became clear that it was no part of the policy of His Majesty's government in Great Britain that questions affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of

Lapointe

Imperial Conference-Mr. the empire primarily affected. It was, however, generally recognized that, where changes in the existing system were proposed which, while primarily affecting one part, raised issues in which other parts were also concerned, such changes ought only to be carried out after consultation and discussion.

The leader of the opposition took strong exception to this part of the report of the conference; indeed, it was upon this part that his fears were based with regard to the rights of minorities in Canada. I may say that this part of the report is simply stating what the facts are; it is stating the position as it exists, and I am ready to join issue with my hon. friend in that regard. I took the position at the conference, and I am pleased to reiterate it here, that in so far as appeals to the Privy Council are concerned, there are differences of opinion in Canada as to whether or not they should be retained. I myself would not be in favour at the present time of doing away with appeals to the Privy Council, but the position I took there, and the position I take here, is that it is for the people of this Dominion of Canada to decide whether they want to retain these appeals or not. These questions I think ought to be discussed not in a political sense altogether, and I am afraid that there was some political flavour to the remarks of my hon. friend yesterday and to the amendment with which he concluded his remarks. However, if he wants to place this question in the political arena, I for one am prepared to follow him into that arena, and to plead that it is for us in the Dominion of Canada to decide whether we want to retain those appeals or not. In saying that, Mr. Speaker, I am only following the stand that was taken in 1875, fifty years ago, by Edward Blake when he was Minister of Justice for Canada. Edward Blake claimed that it was for Canada to decide as to that, and I repeat with Edward Blake with regard to this prerogative, which is called an imperial prerogative-that is, the right of any British subject to go to the foot of the throne with his case how is it that this prerogative does mot apply to His Majesty's subjects in Great Britain? How is it that the people of the colonies enjoy the exercise of this prerogative when the people of 'Great Britain can have final judgment passed by the courts of their own land, without appeal to the Privy Council? I am not one of those who believe that we should do away altogether with appeals to the Privy Council. I think that in some matters, for instance matters regarding constitutional issues, the gentlemen of the Privy Council should hear our appeals, although in that loyal state of Australia they have done away with the right of appeal on constitutional matters and for what reason? They

said it was for those in Australia who knew the conditions in the commonwealth to decide as to Australian matters, and certainly any citizen of this Dominion is free to proclaim whether or not he believes in the retention of appeals to the Privy Council.

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UFA

Edward Joseph Garland

United Farmers of Alberta

Mr. GARLAND (Bow River):

Will the

minister give the House one real reason why he still adheres to the idea of that form of subordination?

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

I must say that I think that on questions arising for instance between the Dominion and the provinces with regard to matters which the provinces claim are within their jurisdiction, and in respect to which they are in conflict with this Dominion, it may be proper that the appeals should be to the Privy Council, but I am not a fanatic in regard to this matter at all.

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UFA

Edward Joseph Garland

United Farmers of Alberta

Mr. GARLAND (Bow River):

I had

hoped the hon. minister was not, because recalling a sentence of his speech recently, I took it he did want to be inconsistent. On ourselves we must depend for protection of our rights and toleration as among ourselves. I would like him to apply that principle to this matter.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

That does not mean

that I am opposed to appeals to the Privy Council. But I must say it is not the Privy Council on which I rely for the protection of my rights or the rights of others.

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March 30, 1927