February 10, 1938

PRIVILEGE-MR. LAWSON POWERS OP CANADIAN BROADCASTING CORPORATION RESPECTING OPERATION AND CONTROL OF STATIONS

CON

James Earl Lawson

Conservative (1867-1942)

Hon. J. E. LAWSON (York South):

I rise to a question of privilege. Speaking in the house on Tuesday on the amendment to the address in reply to the speech from the throne, with regard to the powers of the Canadian Broadcasting Corporation, I made a statement which, in an interruption by the Minister of Transport (Mr. Howe), was alleged to be erroneous; and subsequently, at the end of my speech, the minister said that my statement was wrong and that I should admit it.

I claim the privilege of quoting to the house the authority upon which I base my statement; that authority is the Canadian Broadcasting Act. If you will refer to page 263 of Hansard, Mr. Speaker, you will find that I used these words:

Privy Council Appeals-Mr. Cahan

May I Bay to the Minister of Transport (Mr. Howe) that I understood the Canadian Broadcasting Corporation not only operates stations but controls all stations in Canada.

The minister said: -

The hon. member is entirely wrong.

I tried in a hurry to locate the provisions in the act but was unable to do so, and the Minister of Transport, immediately upon the conclusion of my address, as shown at page 266, said:

What the hon. member stated is not the fact; why not say so?

I quote from the Canadian Broadcasting Act, being chapter 24 of the statutes of Canada for the year 1936, section 22:

The corporation may make regulations:

(b) to prescribe the periods to be reserved periodically by any private station for the broadcasting of programs of the corporation.

This was a program of the corporation, that was in question.

(c) to control the character of any and all programs broadcast by corporation or private stations.

I say, therefore, Mr. Speaker, that my statement was correct. It was correct also on a further ground; the broadcast in question was a chain broadcast. A private station cannot obtain wires for the conduct of a chain broadcast without application to the commission under section 22, subsection 1(a), and therefore the commission has control of the private stations.

Topic:   PRIVILEGE-MR. LAWSON POWERS OP CANADIAN BROADCASTING CORPORATION RESPECTING OPERATION AND CONTROL OF STATIONS
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AUDITOR GENERAL'S REPORT

REFERENCE OF ANNUAL REPORT, TOGETHER WITH PUBLIC ACCOUNTS, TO PUBLIC ACCOUNTS COMMITTEE


Hon. CHARLES A. DUNNING (Minister of Finance) moved: That the Auditor General's report for the year ended March 31, 1937, and the public accounts for the year ended March 31, 1937, be referred to the standing committee on public accounts. Motion agreed to.


PRIVY COUNCIL APPEALS

PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL


Hon. C. H. CAHAN (St. Lawrence-St. George) moved for leave to introduce Bill No. 19, respecting appeals to the judicial committee of the privy council. He said: In moving for leave to introduce this bill, which is entitled An Act Respecting Appeals to the Judicial Committee of the Privy Council, I would ask the privilege of making a few explanatory remarks, not by way of argument but for the purpose of enabling lay members of the house to appreciate more clearly the development of the constitutional law with respect to prerogative appeals to his majesty in council and with respect to the appeal under the statutory provision of a later act to the judicial committee of the privy council. A statute of the parliament of the United Kingdom of Great Britain and Ireland, which was enacted in 1833 and is best known by its short title, The Judicial Committee Act, 1833, recites the fact 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 by its provisions to regulate the proceedings in such an appeal. But under the Judicial Committee Act, 1833, it was never claimed that as a matter of royal prerogative the king and his privy council had jurisdiction to review the judgments of a colonial court, other than from the final appellate court in the colony, which, in the British American provinces, was the governor and his executive council. The first royal commission appointing a governor of a province in that part of British North America now known as the Dominion of Canada was the commission issued in 1749 to Edward Cornwallis as governor of the newly-created province of Nova Scotia. Upon his arrival at Halifax Cornwallis appointed his council and established three courts for the province; a court of general sessions, similar to courts of sessions in England, a county court of five justices of the peace having jurisdiction over the entire province, and a general court consisting of the governor and members of his council, having a supreme appellate jurisdiction in the province. This supreme court of the governor in council exercised both political and judicial functions. The right of appeal to the governor in council was omitted from the royal instructions to the governors of Nova Scotia and Prince Edward Island in 1861. In 1754 Jonathan Belcher was appointed chief justice of the province of Nova Scotia, and chief justice of the supreme court of judicature, which was then constituted. This court thereafter exercised the appellate jurisdiction that formerly appertained to the governor in council. The royal proclamation of October 7, 1763, established a judicial system in Quebec, consisting of civil and criminal courts, with a right of appeal in civil cases to the king in council. The Quebec Act, 1774, repealed all existing ordinances relating to the administra-



Privy Council Appeals-Mr. Cahan tion of justice, but the instructions to Governor Carleton in 1775 authorized the constitution of criminal and civil courts, with an appeal in civil matters to the governor in council in certain cases. The Constitutional Act of 1791 provided for the division of the old province of Quebec into two new provinces to be called Upper and Lower Canada, and provided that all existing laws, statutes and ordinances should remain in force until altered by the legislatures of the new provinces. The respective legislatures of the two new provinces each enacted statutes making provision for appeals to the governor in council, with a further provision for appeals to the king in council. Lower Canada legislated by 34 George III, chapter 6, section 23. Upper Canada legislated by 34 George III, chapter 2, section 33, which reads as follows: And be it enacted that the governor, lieutenant governor, or person administering the government of this province, or the chief justice of the province, together with any two or more members of the executive council of the province, shall compose a court of appeal for hearing and determining all appeals from such judgments or sentences as may lawfully be brought before them. One of the grievances most bitterly complained of in the province of Lower Canada was this constitution of the governor in council as a court of error and appeal, inasmuch as the governor in council exercised, in practice, political rather than judicial functions. In 1841 the appeal In re Samuel Cambridge from Prince Edward Island was heard before the privy council. By the royal instructions to the governor of that island, then in force, he was directed to allow appeals to himself in council where the value appealed from amounted to £300 sterling and to the king in council where the value appealed from amounted to £500. Cambridge, to avoid a multiplicity of suits against himself, petitioned her majesty in council for leave to appeal from a judgment of the supreme court of the island to the amount of £135 which under the instructions to the governor was not appealable either to the governor in council or to her majesty in council. The judicial committee, Lord Brougham, a former lord chancellor, presiding, held that there being an intermediate court of appeal in the island, namely the governor in council, no appeal could be received by the privy council directly from the supreme court of the island. Appeals from the supreme court of the island under the instructions should be made to the governor in council of the island. The reference is Moore's Privy Council Cases, volume III, page 175. This case was decided in 1841, and thereafter Lord Brougham introduced to parliament the bill which was enacted as the Judicial Committee Act, 1844, to overcome the difficulty which had arisen, by allowing in future appeals to the privy council from other courts in the colonies although they were not courts of error or courts of appeal. When this statute was enacted in 1844 the royal instructions to every British governor, without exception, constituted him and his executive council a court of appeal exercising judicial functions as a court of error and appeal, and made further provision for an appeal from the governor in coimcil to the king in his privy council. The Judicial Committee Act of 1844 recites that: *-the judicial committee, acting under the authority of the said acts- The act of 1833 and an amending act. -hath been found to answer well the purposes for which it was so established by parliament, but it is found necessary to improve its proceedings in some respects for the better despatch of business and expedient also to extend its jurisdiction and powers. The first section of the act of 1844 enacts that it shall be competent to her majesty by general or special order in council to- -provide for the admission of any appeal or appeals to Her Majesty in council from any judgments, sentences, decrees or orders of any court of justice within any British colony or possession abroad. The jurisdiction of the king in council to review judgments of colonial courts, other than the final court of appeal where such court existed in the colonies, was never claimed as a matter of royal prerogative prior to the enactment of The Judicial Committee Act, 1844, which converted the pre-existing prerogative right into a statutory right. The conditions which Lord Brougham desired and intended to remove are shown by the preamble to The Judicial Committee Act, 1844 which recites: Whereas by the laws now in force in certain of Her Majesty's colonies and possessions abroad no appeals can be brought to Her Majesty in council for the reversal of the judgments, sentences, decrees and orders of any courts of justice wdthin such colonies save only of the courts of error or courts of appeal within the same, and it is expedient that Her Majesty in council should be authorized to provide for the admission of appeals from other courts of justice within such colonies or possessions- Then it proceeds with the enactment of section 1: 1. It shall be competent to her majesty, by any order or orders to be from time to time for that purpose made with the advice of her privy council, to provide for the admission of any appeal or appeals to her majesty in council Privy Council Appeals-Mr. Cahan from the judgments, sentences, decrees or orders of any court of justice within any British oolony or possession abroad, although such court shall not be a court of error or a court of appeal within such colony or possession; and it shall also be competent to her majesty, by any such order or orders as aforesaid to make all such provisions as to her majesty in council shall seem meet for the instituting and prosecuting of any such appeals, and for carrying into effect any such decisions or sentences as her majesty in council shall pronounce thereon. This statute of 1844, says the late Mr. E. R. Cameron in his valued work on The Canadian Constitution, never contemplated interfering with the power to regulate appeals from the courts of appeal in the provinces of Upper and Lower Canada, given them by the Constitutional Act of 1791. This undoubtedly was the view of the imperial authorities in passing the earlier orders in council which provided for the institution and prosecution of appeals in the Canadian provinces which had no courts of error and appeal other than the governor in council, and which orders are clearly supplementary to the provisions of The Judicial Committee Act, 1844. The preamble to the orders in council, providing for appeals from New Brunswick in 1852 and Nova Scotia in 1863, recites the language of The Judicial Committee Act, 1844, and proceeds: And whereas it is expedient that provision should be made in pursuance of the said cited enactments to enable parties to appeal in civil causes from the decision of the supreme court of the province to His Majesty in council, the same not being a court of error and appeal. When these orders in council of 1852 and 1863 were passed by his majesty in council, each of the provinces of New Brunswick and Nova Scotia was "a British colony or possession" within the meaning and intent of The Judicial Committee Act, 1844; but it may be doubted, I think, whether a province of the Dominion of Canada may now be properly so described. It is clear that in respect of any future enactment of the parliament of the United Kingdom and Northern Ireland it may not be so described, because section 11 of the Statute of Westminster, 1931, provides: Notwithstanding anything in The Interpretation Act, 1889, the expression "colony" shall not, in any act of the parliament of the United Kingdom passed after the commencement of this act, include a dominion or _ any province or state forming part of a dominion. In 1849, by 12 Victoria, chapter 37, in Lower Canada, and by 12 Victoria, chapter 63, in Upper Canada, the governor in council as a court of error and appeal was abolished, but provision was made for appeals to the king in his privy council. Subsequently the thirty, fourth resolution adopted at the Quebec conference in October, 1864, provided that the general parliament should have power to make laws for- The establishment of a general court of appeal for the federated provinces. Section 101 of The British North America Act, 1867, subsequently enacted: 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. During the parliamentary session of 1875, which was during the period when this country was administered by the government of Mr. Mackenzie, a bill was introduced by Mr. Fournier, then minister of justice in the Liberal administration of that day, to establish the Supreme Court of Canada. The political records of that time disclose that Edward Blake had a large part in drafting the bill, and that the bill, as originally drawn, contained a clause providing that judgments of the supreme court should be final, thus precluding appeals to the privy council, but that the government of the United Kingdom then intimated to the government of Canada that the proposed act would not receive the assent of the crown unless that section of the bill was amended so as to preserve the prerogative right of appeal. Professor Kennedy, of the university of Toronto, in his work, The Constitution of Canada, at page 341, relates: When the parliament of Canada in 1875 proceeded to constitute a supreme court for Canada, the bill, as introduced, provided for the cessation of all appeals to the privy council, but the colonial office at London notified the Liberal government of that day that unless this provision was eliminated the whole bill would be disallowed by the government at Westminster. In May's Constitutional History (1912), volume III, he says that when in 1875 the Liberal government of Canada proposed to abolish appeals to the privy council, the judicial committee prepared a memorandum in which they said: To abolish this controlling power and abandon each colony and dependency to a separate court of appeal of its own would obviously be to destroy one of the most important ties connecting all parts of the empire in common obedience to the courts of law, and to renounce the last and most essential mode of exercising the authority of the crown over its possessions abroad. It is to be noted that Canada was then regarded as a colony, dependency or possession of the crown, over which the government of



Privy Council Appeals-Mr. Cahan the United Kingdom should not renounce the last and most essential mode of exercising authority in the name of and as advisers of his majesty. The forty-seventh section of the Supreme Court Act of 1875 as then enacted, reads as follows: 47. The judgment of the supreme court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the supreme court to any court of appeal established by the parliament of Great Britain and Ireland, by which appeals or petitions to her majesty in council may be ordered to be heard; saving any right which her majesty may be graciously pleased to exercise by virtue of her royal prerogative. That section now appears as section 54 of the Supreme Court Act, chapter 35 of the revised statutes of Canada, 1927. The parliament of Canada in 1888, by chapter 43 of the statutes of 1888, subsequently enacted amendments to the criminal code, which provided that in criminal cases the judgment of the Supreme Court of Canada should in all cases be final and conclusive, and that no appeal shall be brought in any criminal case to his majesty in council. That remained the law in Canada for thirty-eight years, until, in 1926, in the Nadan case, the privy council held that this enactment of the parliament of Canada was inconsistent with the provisions of the Judicial Committee Acts, 1833 and 1844, and therefore invalid under section 2 of the Colonial Laws Validity Act of 1865, which enacts that: Any colonial law which is or shall be in any way repugnant to any provisions of any act of parliament extending to the colony to which such law may relate . . . shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. In the Nadan case it was declared that that enactment in the criminal law of Canada, which presumably had been in force for some thirty-eight years, was invalid and void, by reason of repugnancy to the Colonial Laws Validity Act. Section 2 of the Statute of Westminster, 1931, has more recently declared that: 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.


LIB

Walter Edward Foster (Speaker of the Senate)

Liberal

Mr. SPEAKER:

Order. I do not like to interrupt the hon. member, but on the introduction of bills statements should be made succinctly and briefly.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I have only one more citation to make, and I shall have finished. I

had no intention of being argumentative, but having these notations in my notebook I thought that by placing them on Hansard I might save hon. members some time.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

I think

so, too.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I thought that if they had the exact references it might be helpful.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

I think the observations of the hon. member will be very useful to hon. members who would like to speak on the second reading.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

In 1931, in chapter 28, section 15, the parliament of Canada reenacted the same section of the criminal code abolishing appeals to the privy council in criminal cases; and the privy council in 1935, in the British Coal Corporation case, held that the enactment is now valid.

Nevertheless The Judicial Committee Acts of 1833 and 1844 still apply to appeals to his majesty in council in civil cases; and the purpose of this bill is to repeal the said acts and all orders, rules and regulations made thereunder in so far as they are a part of the law of the Dominion of Canada.

Before second reading of the bill, which will not take place for several days, hon. members will have ample opportunity to study its terms and consider their effect. At that time I shall endeavour to present such arguments as I may in favour of the enactment of the bill.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

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

Liberal

Right Hon. ERNEST LAPOINTE (Minister of Justice):

I am pleased to hear the hon. member say that he does not propose to move second reading before several days have passed. I would ask him, if possible, to give us some private notice of bis intentions to move second reading.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I shall be very glad to consult with the Minister of Justice and to arrange for such day as may be convenient to him.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

Thank you.

Motion agreed to and hill read the first time.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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POST OFFICE ACT AMENDMENT

February 10, 1938