October 4, 1949

PC

Howard Charles Green

Progressive Conservative

Mr. Green:

I should like to ask a question on subsection 2 of section 1. I understand that this is the one which amends section 6 of the act. The new section provides that three at least of the judges shall be appointed from among the judges of the court of king's bench, or of the superior court, and so on.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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?

Jean-Paul Stephen St-Laurent

Mr. Si. Laurent:

That is section 1, and it has been allowed to stand. We are dealing with section 2 of the bill.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Joseph-Alfred Dion (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

All of section 1 stands. Shall section 2 carry?

Section 2 agreed to.

On section 3-Judgment to be final.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Mr. Chairman, I think you just said that clause 1 stands and clause 2 is carried. I thought it was the other way round.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Joseph-Alfred Dion (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Section 1 stands. Section 2 is carried. .

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

I did not understand that was what the Prime Minister said just now.

Supreme Court Act

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Joseph-Alfred Dion (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Order. I gave the floor to the hon. member for Kamloops but he did not take it, so I gave it to the hon. member for Grand Falls-White Bay.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Thomas Gordon William Ashbourne

Liberal

Mr. Ashbourne:

While we are dealing with section 3 of the bill I should like to direct a question to the Minister of Justice. Under this section appeals to the privy council are to be abolished. Would this in any way affect the decision of the privy council of March, 1927, relating to the delimitation of the New-foundland-Labrador boundary?

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

The answer to the hon. member's question is no; but if that reply were left upon the record by itself it might not answer the question as fully as it should be answered. For that reason I think perhaps it is desirable to make a statement upon the rather important point the hon. member has raised.

In the application of the rule of stare decisis it is what lawyers call the ratio decidendi, or the principle of the case, which binds. By the application of the principle of the case to the facts of the case the issue of the case is decided. When the issue has been decided it becomes what lawyers call res judicata, or an adjudicated matter, and as such it is forever binding upon the parties to the case. It cannot subsequently be opened up, even though the principle upon which the res judicata or adjudicated matter was decided may be distinguished or overruled by a subsequent judgment of the same court in another case.

Therefore when the privy council rendered its judgment in the Quebec-Labrador boundary dispute it fixed the boundary, as far as it is possible legally to do so, between Labrador and Quebec, and thereupon that matter became res judicata, so the parties to that controversy are forever bound by the terms of this judgment. But in any case the boundary between Labrador and Quebec has been fixed by the terms of union between the province of Newfoundland and Canada. Not only do the terms of union state that the province of Newfoundland shall comprise the same territory as at the date of union; they go on to expressly adopt the privy council judgment. Moreover, provincial boundaries generally are protected by the British North America Act, 1871, which requires the consent of the legislature of a province before the boundaries of that province may be altered in any way.

I understand the boundary line has not yet been marked out or surveyed, and I believe that was one of the points raised by the hon. member for St. John's East in his remarks the other day. In this respect, however, I would say the Newfoundland boundary does not differ from the boundaries of some other

provinces. The process of marking out provincial boundaries in Canada has been continuing ever since the provinces were formed, and conceivably some unsurveyed boundaries still remain, including this one now under discussion. Obviously the legal limits must be established before the actual boundary line can be marked out on the ground; and in the course of marking a boundary line it is conceivable that there may be differences of opinion as between surveyors or engineers as to how the actual line on the ground should be drawn. Should any such disputes arise they can be settled by the courts; and in deciding any particular dispute the courts of course would be bound by the privy council decision and the terms of union. In delivering the judgment of the privy council in this boundary dispute case Lord Cave, in 137 Law Times Reports, 187, at page 200, said:

. . . the boundary between Canada and Newfoundland In the Labrador peninsula is a line drawn due north from the eastern boundary of the bay or harbour of Ance Sablon as far as the fifty-second degree of north latitude, and from thence westward along that parallel until it reaches the Romaine river, and thence northward along the left or east bank of the river and its headwaters to their source and from thence due north to the crest of the watershed or height of land there, and from thence westward and northward along the crest of the watershed of the rivers flowing into the Atlantic ocean until it reaches Cape Chidley; . . .

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

The remarks of the minister have been of great interest to the committee and particularly, of course, to the members from the new province of Newfoundland and perhaps also those from Quebec. It would seem rather conspicuous that the minister did not deal at great length with this question of the principle of stare decisis in general terms. The matter was discussed during the debate on second reading, and I do not want to go over the ground covered at that time, but there are certain points which I think should be emphasized, and we feel the matter is so important that it should be incorporated in the bill by way of amendment to this section.

What the minister has just said with regard to res judicata is of course the general principle which is understood by lawyers, though perhaps not so well understood by those who do not belong to the legal profession. The simple principle, which is of great moment to every Canadian, is that the law as settled by previous decisions should be the law which applies and which is binding in future. That is a principle which, during the discussion on second reading, the Prime Minister said is acceptable. The first point I make, then, is that since that is acceptable there should be no objection to having such a principle incorporated in the bill, in order to place the matter beyond question.

I think it important that this should be done because of the statement by the chief justice to which reference was made during the debate on second reading, a statement which certainly gives rise to well-founded misgivings in the minds of those concerned with the preservation of this principle. That statement, as reported in the Ottawa Journal of June 2, certainly would seem to bring into question whether the supreme court would regard itself as bound by the previous decisions of the privy council in so far as they relate to Canada, after it is made the court of final jurisdiction for Canada.

So in the first place I say it is desirable to have that principle recognized. It is important, because of the statement to which I have made reference, that the principle should be incorporated in the bill. Furthermore there is no lack of precedent for such a step. In my own province of British Columbia we have it in our Laws Declaratory Act. Some may object that if the principle is recognized and applied by the courts there is no need to go the length of incorporating it in the statute. My answer in part is what I have already stated, but in addition there is precedent for that being done in the statutes of most of the provinces of Canada.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Is not what my hon. friend is referring to in the case of British Columbia, and Manitoba as well, the setting up as of a certain point of time-July 15, 1870, in the case of Manitoba-of a whole body of law to apply to a new province coming into being? Now that, I suggest to him, is a very different thing from putting a provision in the Supreme Court Act directing the supreme court to apply the rule of stare decisis.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I do not think so, Mr. Chairman; it seems to me the provisions are the same. Up until that time the province of Manitoba, to take the case referred to by the minister, had been a part of Canada and had, therefore, presumably been under the laws of Canada. But not only were we creating a new province, we were setting up courts to administer justice within this province. It was then thought important to lay down the theory that the courts would be bound by the law as it existed at a certain date. I submit the parallel is very close. We are not setting up a new court, but we are investing the Supreme Court of Canada with final jurisdiction in all cases arising within Canada. I submit that, by the same line of reasoning as was followed in the earlier cases, we should provide that the court will be bound by the law as it was declared to be in the judgments of the privy council which, until now, has been the final court to which these questions were referred.

Supreme Court Act

I should like to read the provision of the Laws Declaratory Act of the province of British Columbia. It does not say the law of British Columbia, a new province, shall be the law as it existed on a certain date, but it says the new courts which were being set up would be bound by the law.

Subsection 6 of section 2 of the Laws Declaratory Act of the province of British Columbia, found in the Revised Statutes of British Columbia, (1948), volume 2, reads as follows:

Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the court and every judge thereof shall recognize and give effect to all legal claims and demands and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as the same would have been recognized and given effect to in the court if this Act had not passed.

It will be seen that the court itself was to be bound by the law as it existed at the time this act was passed.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

That was on the occasion of the setting up of a new province.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

The law was declared to be the law as of April 29, 1879. What we are doing here is investing the Supreme Court of Canada with final jurisdiction. It cannot be denied, therefore, that we are altering either the jurisdiction or the competence of that court. In the absence of an express statutory provision to the contrary, it would be open to the court to say, "We are now the court of final jurisdiction for Canada." Perhaps it would not be said directly but indirectly-the chief justice has said it directly-"We feel that the decisions of the privy council are the decisions of a court four thousand miles away. We have a different set of circumstances." There is nothing in the remarks of the chief justice to indicate that he was referring only to decisions in cases that did not arise in Canada. His remarks have equal application to privy council decisions in cases coming from Canada as well.

That remark, which was made in the course of a case before the court, certainly indicated that the court would feel itself free to branch out into entirely fresh law. Since we believe it is so important that the people of Canada should know the state of the law, in the interests of uniformity of decisions in the future as in the past, we feel some provision must be incorporated into the act to the effect that the court is bound by the law as it was stated to be in the previous decisions of the privy council. I want to observe that such a provision in no sense puts a court in a strait-jacket. It certainly has not put our

Supreme Court Act

courts in the west in a strait-jacket because there was a provision stating the law would be the same as it was prior to April 1, 1879.

As the minister has said, cases can be and probably will be distinguished. Where the facts are clearly distinguishable, then decisions will vary. I believe it is important to the people of this country and particularly the provinces of this country whose rights, not only as against the dominion, but as against each other have, in the past, depended upon and been settled by the decisions of the privy council, that those provinces should know that the principles which guided the privy council in coming to its decision shall continue to bind what is now to be the court of final jurisdiction in Canada.

This is not a dry legal question. It is a question that affects the welfare and interest of every private citizen as well as of our different governments, provincial and federal. The Prime Minister having accepted the principle, I submit that the wording of the amendment I am now about to move gives no more than formal recognition of that principle and carries it into the wording of this statute. I therefore move, seconded by Mr. Fleming, that section 3 of Bill 2 be amended by inserting immediately after line 17 on page 4, the following, to be numbered as subsection 4 of section 54 of the act:

Subject to any enactment of the parliament of Canada or the legislature of any province in exercise of their respective powers, the Supreme Court of Canada shall be bound by the law as declared in all orders of His Majesty in council hitherto made on the advice of the judicial committee of his privy council and in the reasons assigned therefor by the said judicial committee, in so far as the said law is applicable to Canada.

If I may continue for a few moments, Mr. Chairman, the committee will observe, and I direct the minister's attention to this particularly, there is no attempt being made to impose upon the court or upon this dominion a static set of laws. If at any time it may properly be felt that a law as it was declared to be in a particular decision is restrictive or hampering, it is quite open, as it obviously must be, for this parliament, or the legislature of a province acting within its proper sphere of legislative power, to enact a statute amending the law and bringing it more into line with what is felt to be the need under those circumstances.

In considering the detail of this amendment, the second point to be observed is that it is only the law as declared in those decisions of the privy council made heretofore which have a bearing upon the law as it is applicable in Canada which, by this amendment, we are seeking to declare binding on the Supreme Court of Canada in its future deliberations. I think it will be seen that we

have safeguarded here against the possibility that those whose rights, duties and obligations have been settled in the past by the law as declared by the decisions of the judicial committee of the privy council will suddenly find those rights, duties and obligations, whether they be of private citizens or of provincial governments or of the federal parliament, changed overnight. I have sought to safeguard against that and at the same time to take care not to impose upon the court or the parliament of Canada or the legislature of any province a legal strait-jacket by making it perfectly clear that parliament or a legislature can, should it so desire, enact legislation changing the law as it was declared to be in the previous decision.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Jean-François Pouliot

Liberal

Mr. Pouliot:

What the hon. member for Kamloops has said reminds me of Swift the author of "Gulliver's Travels". Once Gulliver went to Lilliput. He was tired. It was a long journey. He lay down to sleep, and then all the dwarfs came with twine and tied Gulliver to the soil. He could not move. What does my hon. friend think of the independence of the supreme court? Where does he put it? How can we think of a court of any kind that will be tied up with the past? It would be impossible for judges to make their own decisions about matters which will come before them.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

May I ask my hon. friend whether he is in accord with the principle of precedents?

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Jean-François Pouliot

Liberal

Mr. Pouliot:

I will tell my hon. friend to be quiet and to listen to what I have to tell him. I listened in silence to what he was saying, and I want to have some clarification of his idea, which I have not received so far. He was very obscure in his language. I understood from what he said that he expressed the view that the supreme court will be tied by all the long line of precedents of the privy council. All the bad judgments of the privy council will be imposed forever on the supreme court. Is he serious? He cannot be serious. A lawyer of his experience and standing talking such nonsense in the House of Commons is something unbelievable. I never thought that my hon. friend, who is well gifted, who is one of the best debaters of his party, the ranks of which were decimated on June 27, but who is nevertheless a legal light-that time the light was out-would use such an argument. It is unfortunate, but I cannot conceive of any court which is the final tribunal of this land being subject to all the precedents of the past, all the bad as well as all the good judgments rendered by the privy council. My hon. friend will admit that the privy

council has rendered sometimes good and sometimes bad judgments. Where will be the line of demarcation between good and bad judgments?

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Wilfrid Lacroix

Liberal

Mr. LaCroix:

For instance, the Labrador decision.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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LIB

Jean-François Pouliot

Liberal

Mr. Pouliot:

How can he put it on the statute books? I leave this matter aside for the time being. I do not discuss the Labrador case at all. I discuss the whole thing as a matter of principle. If it is enunciated and put on the statute books as a matter of principle that the supreme court will be tied up in the future by the precedents of the privy council, I say to the hon. member for Kamloops that it is sheer nonsense.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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PC

Alfred Johnson Brooks

Progressive Conservative

Mr. Brooks:

The hon. member does not agree with the barristers' society of Canada.

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
Sub-subtopic:   ABOLITION OF APPEALS TO PRIVY COUNCIL
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October 4, 1949