October 4, 1949

LIB

Jean-François Pouliot

Liberal

Mr. Pouliot:

I do not agree with the law society of upper Canada or of lower Canada or of the maritimes or with the Canadian Bar Association, and I shall tell the committee why. On one occasion I was with one of my friends from the Quebec bar. At the present time he is a cabinet minister in the Quebec government. He is a criminal lawyer of note. I refer to Mr. Rivard. I was sent by the general council of the Quebec bar to what was called a conference on the uniformity of laws, or something like that, held in Niagara Falls. We met there together, and we met all the somnolent deputy attorneys general of Canada. They were pleasant gentlemen of a certain age who could go to sleep very easily. We had a round-table discussion, and it was precisely a week before the convention of the Canadian Bar Association. The attorney general of British Columbia was there. He was a friend of my hon. friend. I will not mention his name because he is dead now. He was a prominent Tory and a great legal light of British Columbia. There were others there. We discussed several matters that were to be submitted to the provinces. They called it draft legislation, and they submitted it every year. It was a pretext for meeting a week ahead of the Canadian Bar Association's meeting. They were all there. Their expenses were paid by the provinces. It was quite happy and glorious inasmuch as one could be happy and glorious in his sleep. They were redrafting certain laws by changing a comma into a semicolon, and other important things. It was done in great solemnity. It was a tremendous job, and finally one of the legal luminaries from British Columbia, and some others from other provinces, decided that there should be a new section placed in the Criminal Code. My friend, Mr. Rivard, was on that committee.

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He had his code in his hand and he listened to the argument that it was in the public interest, and that there was great necessity to draft a new section of the Criminal Code. There they were. They worked hard. They were sweating. It was a very hot day. The weather was hot in Niagara Falls. Sometimes there was a word of wisdom and an odd suggestion that would come from the august lips of the deputy attorneys general. They were arguing, they were discussing and they were submitting new reasons for new sections. They were changing a word, adding another word, changing a comma into a semicolon and a semicolon into a comma, or putting a period in the middle of a sentence, and it was very well done. Finally, Mr. Rivard came with his Criminal Code and with the amendments, and he said to the illustrious lawyers: "Is not that article already in the Criminal Code?" That was prior to the meeting of the bar association.

I can tell my hon. friend the reason why the Canadian Bar Association has insisted so much on the maintenance of appeals to the privy council. It is because those who go to the privy council are the heads of the organization. That is the whole story. I do not believe in it. I do not believe in the privy council at all. I have read their judgments pretty carefully, and I am ready to take a chance on the supreme court. I hope that the amendments suggested by my hon. friend will be turned down at the earliest possible moment.

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:

The hon. member for Temis-couata has just finished pronouncing the judgment of extinction on one legal light of this house, as he describes him. I am afraid at the same time he cut a very wide swath because he nearly pronounced judgment of extinction on one other very distinguished legal light in this chamber who sits on the other side. I refer to the Prime Minister. If my hon. friend will refer to Hansard for September 23, at page 197, the second column, he will find the Prime Minister has expressed himself as being fully in support of the application to the Supreme Court of Canada of the principle of stare decisis. He made specific reference to that particular branch of the resolution passed by the Canadian Bar Association at its meeting last summer, as follows:

(g) that the rule-

And the Prime Minister is quoting it at this point-

-of stare decisis ought to continue to be applied with respect to past decisions of the court-

That is, the supreme court-

-as well as-*

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And I ask my hon. friend and other hon. members to note this well-

-with respect to past decisions of the judicial committee.

That is the resolution passed by the Canadian Bar Association. The Prime Minister's comment immediately upon it is-

That is something with which I entirely agree.

We have now the opportunity with respect to this principle of making a choice between the view expressed by the hon. member for Temiscouata and that expressed by the Prime Minister. For my part, I begin with an acceptance of the principle laid down by the Prime Minister which, if I may speak with respect, I conceive to be perfectly sound. That is to say, if we are going to have an orderly system of jurisprudence, if litigants, whether they be provinces or individuals, are to know what the law is, and that the law as declared by the courts is to be binding until overruled by parliament or by a legislature, this principle of stare decisis must have recognition.

The Prime Minister has said that he shares the view expressed by the bar association, that the principle of stare decisis applies to decisions of the privy council up to this date.

I should like to direct my observations for a moment, if I may, to those members of the house who are not lawyers, because there is always a very great danger in discussion of a measure of this kind that many members, especially when they hear a few Latin expressions hurled around, such as stare decisis and ratio decidendi, will say, "Oh well, this is all a fog; what does it all mean?". I should like briefly to deal with the meaning of stare decisis.

When we are talking about the principle of stare decisis we are simply talking about the recognition of precedent-that is to say, past decisions in matters germane to the subject under discussion before the court. For instance, where the privy council at any time past has made a decision, we will say on an appeal from a provincial court-let us say the Supreme Court of Ontario-or it may be from the Supreme Court of Canada, the decision of the privy council on that matter is the law. It is the law until that law is changed by the competent legislature which, in some cases, might be the parliament of Canada and in other cases might be the legislature of a province concerned. Until the competent legislature or parliament intervenes to say that the law shall be otherwise than as declared in the highest court, that law as declared in the highest court is final. The courts must follow that decision. It is precedent; it is binding. That decision must be followed whenever it is applicable.

{Mr. Fleming.]

That is to say, so long as the principle involved in the case is the same principle that is at issue in the case at bar, and so long as the facts in the case at bar bring it within the scope of the decision or, as we say, within the four corners of the decision in that highest court, it is accepted as a precedent.

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

Would the hon. member permit a question? Would he tell me if he contends that this principle of stare decisis applies to the civil law in Quebec?

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:

It is quite obvious that a decision of the privy council on a common law question has no application to civil law in Quebec.

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

No, on a civil law question.

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:

Because you are under a quite different system of law.

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

Does the hon. member contend that a decision of the privy council respecting the civil code of Quebec is binding?

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:

My hon. friend knows

perfectly well that, if a question came before the Supreme Court of Canada respecting the interpretation of the civil law of Quebec, and an appeal were taken from there to the privy council, the decision of the privy council would be binding, yes. The decision of the privy council would be binding.

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

But what about other cases?

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:

It would be binding in courts which are applying the civil law in the same circumstances.

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

No.

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:

That is the principle of stare decisis, and that is the law.

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

Joseph Arthur Lesage

Liberal

Mr. Lesage:

It is not the law in Quebec.

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 would point out that that is the principle upon which the courts proceed, and that principle has not been challenged-the principle of stare decisis, the principle of the binding effect of a precedent. That is the situation with which we are faced today.

When this bill becomes a statute we are saying, in effect, that the privy council is no longer the court of final appeal. The Supreme Court of Canada, which hitherto has not been the court of final appeal, then becomes such court of final appeal.

The next question is this: Is the Supreme Court of Canada hereafter to be bound by decisions of the privy council-not decisions in the future, because they are not involved here at all; not decisions made from this point forward. Is it to be bound by decisions of the privy council to date, decisions of the privy council which to date are the law of this land?

Nothing is being done to change the law. I dare say-and I am not making a bold guess at this-that if one were to consult the jurists of this country he would find that very few of them would say that even in the face of the adoption of the present bill the principle of stare decisis would not continue to be binding, that the decisions of the privy council to date would not continue to be binding upon the Supreme Court of Canada, even if this enactment comes into effect.

But this parliament cannot leave that subject in the realm of conjecture or uncertainty, because we have no less a pronouncement than that of the Chief Justice of Canada himself on that subject.

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

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

Would the hon. member allow me to interrupt? I do not think I should permit that to go unchallenged. I have discussed with the chief justice the report appearing in Hansard and the facts are that this had to do with a recent decision in England dealing with a matter of seditious libel. It was being argued that that decision was binding upon the Supreme Court of Canada. His opinion was that it was not, because for many years now the Supreme Court of Canada has been the final court in criminal matters in this country. The question which arose then was merely whether the Supreme Court of Canada was to be bound, since it has become the final court in criminal matters, by decisions made elsewhere, by courts in another country, on similar criminal matters.

What he stated-and he does not admit that the newspaper report as cited at page 286 correctly reported what took place there- was that it was merely a reassertion of the opinion he had expressed four years ago, and which is reported in the Supreme Court Reports for 1945 in re Storgoff where, at page 538, he states:

In addition to that, the Supreme Court of Canada is now the court of last resort in criminal matters; and although, of course, former decisions of the privy council, or decisions of the House of Lords, in criminal causes or matters, are entitled to the greatest weight, it can no longer be said, as was affirmed by Viscount Dunedin, delivering the judgment of their lordships in Robins v. National Trust Company Limited (4) at page 519, that the House of Lords, being the supreme tribunal to settle English law, the Colonial Court, which is bound by English law, is bound to follow it.

It was merely distinguishing between the effect on a court of last resort of a decision made by another court of last resort and saying that decisions made elsewhere by another court of last resort were entitled to the greatest weight as authorities but had no legally binding effect upon another court of last resort. I think it is only fair to the chief justice that the impression should not go abroad that he is in any way quarreling

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with the proper application of the doctrine of stare decisis.

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 thank the Prime Minister for making the statement he has and giving us the assurance he has in connection with the interpretation placed by certain newspapers upon the views expressed by the chief justice. Those newspaper reports have had a disturbing effect upon the minds of many people including members of this House. One can understand the views of the chief justice in connection with a case such as that explained by the Prime Minister. It is now quite clear and understandable and I again thank the Prime Minister for making the statement at this particular time.

Leaving aside the statement by the chief justice to which we have been referring, and seeing that we seem to be in agreement as to the desirability of the continued recognition of the principle of stare decisis by the Supreme Court of Canada after this bill is in effect with regard to decisions hitherto made by the privy council in so far as they are applicable to Canada, the only question that could remain is whether such an enactment is necessary.

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

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

Or advisable.

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 should like to deal with the first point with respect to the necessity of such a measure. If the Supreme Court of Canada is certain to recognize the decisions of the privy council which have been made up to the time this bill goes into effect, then presumably this amendment would not be necessary. But I am arguing that it is highly desirable that this amendment be inserted in the bill. Hon. members will recall the view taken by the Canadian Bar Association. After all, in matters of law, and this is a technical legal question, the views of the jurists of the country as represented in the Canadian Bar Association-and the association embraces not only practising lawyers but judges who participate freely in the discussions on legal questions-should receive consideration. That association has indicated in a resolution that this is a safeguard that ought to be written into the measure.

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

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

If the hon. member will read the resolution I think he will find that it does not go that far. The resolution is merely to the effect that the rule of stare decisis ought to continue to be applied with respect to past decisions of the court. There was no expression of opinion as to what should be done to have it continued to be applied; there was merely a statement that it ought to continue to be applied. I think on that point at least the hon. member and

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I are in full agreement. I think if he reads the resolution he will not find any expression of desire that that be written into the law.

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 think the Prime Minister and I are on common ground to this extent. I did not intend to convey the impression that the bar association had said that they wanted an amendment in precise terms. What the bar association did say, and I think it is set out in plain terms, is that if parliament is going to proceed to abolish appeals to the privy council, then it should be done on certain terms, and one of those terms should be that the rule of stare decisis ought to continue to be applied with respect to past decisions of the judicial committee as well as with respect to past decisions of the court.

If we could be assured in advance that the supreme court will recognize the principle of stare decisis with respect to decisions of the privy council, then there would have been no need for the bar association to pass such a resolution. That would have been unnecessary because it would follow in any event. But what the bar association has said is that, if appeals to the privy council are going to be abolished, then-this is the plain meaning of the resolution-there should be assurance of the continuance of the rule of stare decisis.

How can you assure that continuance? I think it would be humiliating to the Supreme Court of Canada if parliament were to ask the court for an assurance of this kind in advance. Therefore, the body that is being called upon to abolish appeals to the privy council, the body to which the citizens of this country as well as the bar association under the clear terms of its resolution look for an assurance of guarantee of recognition by the Supreme Court of Canada of this principle of stare decisis, should provide for that continuance. If we wish to achieve now a guarantee of that continuance of the application of the principle of stare decisis, the only way to do it is by an amendment of this kind.

One who ought to have some knowledge of the intentions of the bar association with respect to this resolution has said something on this subject since the debate on the second reading of this bill commenced. I read from a Canadian Press dispatch from Saint John, dated September 28, reporting an interview with Mr. A. N. Carter, president of the Canadian Bar Association. This reads as follows:

A. N. Carter, president of the Canadian Bar Association said tonight in a statement that proposed federal legislation to make the Supreme Court of Canada the last court of appeal should contain a clause forbidding the court from reversing previous decisions.

"The rule of stare decisis ought to be continued to be applied with respect to past decisions of the court as well as with respect to past decisions of the privy council," the statement said.

The Canadian Bar Association, at its annual convention last month, suggested the bill, now passed second reading in the House of Commons, be delayed.

Though it is the practice for the Supreme Court to abide by the rule of stare decisis, Mr. Carter said, "it is not bound inflexibly to do so."

Such an enactment by parliament would safeguard provincial and minority rights, he said.

I submit that that statement is entitled to great respect. It is an authoritative interpretation by the president of the Canadian Bar Association of the intentions of that association as recorded in a resolution passed at its annual meeting less than two months ago. I want to ask hon. members, whether they be learned in the law or whether they follow other callings in life, to consider what could happen if the principle of stare decisis were not recognized in the future by the Supreme Court of Canada with respect to decisions hitherto made by the privy council. It is a matter of history that in the early days of the Supreme Court of Canada the trend of the decisions of that court in constitutional cases was in favour of the powers of this parliament. I do not say that that was improper, but the view taken by the court at that time had the effect of increasing the powers of parliament and of the dominion government in connection with matters which were in conflict as between the dominion and the provinces. In many instances those early decisions of the Supreme Court of Canada were reversed by the privy council. The emphasis placed by the privy council, as every student of constitutional law and constitutional history knows, was in the other direction.

The privy council decisions in the latter part of the nineteenth century and in the twentieth century were in favour of the enlargement of the powers of the provinces as those powers were debated in the courts. Had there been in those years no privy council to which appeals could be taken from the decisions of the Supreme Court of Canada, had the decisions of the Supreme of Canada been the final and binding interpretation of our constitution, we would have had a very different kind of constitution today from that under which we live, as interpreted by the courts including the privy council. We would have had a constitution, as a result of that interpretation, with great emphasis upon the powers of the central government and the powers of this central legislature, this parliament. You would have had a very great diminution in the powers of the provinces, their legislatures and their governments, compared with the powers they enjoy today as the result of these binding interpretations of the constitution.

In approaching the question of stare decisis, I ask hon. members not to regard it as some-

thing in the nature of the dry bones of the law. It is far from it. When you deal with the interpretation of the constitution of the country you are dealing with something that is of the absolute essence of our national existence. There are changes that should be made in the constitution of the country, and I shall be happy to discuss them at the proper time.

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