October 4, 1949

LIB

Paul Theodore Hellyer

Liberal

Mr. Hellyer:

Do you think that the judicial committee of the privy council has, from the time of the passing of the British North America Act in its original form, followed the principle which you are now citing?

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:

They have professed to follow it. There are some nice questions that the constitutional lawyers like to discuss as to whether the principle has really been honoured, but nevertheless the privy council has professed to follow its own decisions. It is true that in some of the decisions in later years they have had considerable difficulty in distinguishing some of the earlier ones, but nevertheless there has been a recognition of the principle.

There are changes that ought to be made in the constitution, but the way to make them is not to throw overboard the principle of stare decisis. That would be something that would cut to the whole root of our constitution as we understand it in Canada today. If we are going to tackle that subject I submit we ought to find another way.

The Prime Minister may urge-and I take it in the light of his last remarks it is his view-that it is not necessary to insert an amendment in the bill that the Supreme Court of Canada shall follow the decisions previously made by the privy council. I hope it will until they are changed properly either by parliament or by the legislatures, whichever may have the required competence. This amendment of course does not attempt in any respect to invade the rights of the provinces or the legislatures, but let us be sure of this thing. This matter is too important to the whole national fabric of Canada to be left to any doubtful dispute. Why should we leave it to dispute? We are sitting today as the sovereign parliament of Canada. We are proposing that hereafter there should be no appeals of any kind from the Supreme Court of Canada to the privy council. We are proposing that the Supreme Court of Canada shall be the court of exclusive and final jurisdiction in all causes arising within Canada. It is the simplest thing in the world for a parliament that says that to go forward and do the thing that ought to be done to assure that there will not be any change in the established interpretation of the constitution

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unless it is carried out in the proper way by parliament and the provinces.

I think the amendment puts it as simply as it can be put, that the decisions of the privy council, which are binding today upon the courts of Canada under the principle of stare decisis, shall continue to be binding after the Supreme Court of Canada becomes the court of final and exclusive jurisdiction, saving always the right of change by parliament in matters within the jurisdiction of parliament, and saving the right of change by the legislatures of the provinces in matters falling within their jurisdiction.

For that reason I submit that the amendment is necessary, that there cannot be any objection to it by any member of the house who shares the view expressed by the Prime Minister as I read it from page 197 of Hansard, and that in doing this we are taking a step that is vitally necessary to safeguard especially the rights of the provinces.

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:

First of all, I want to express my thanks and appreciation to the hon. member for Kamloops and the hon. member for Eglinton for the illumination which they have shed upon this subject. I think that the former in the language of his amendment has indicated clearly, for reasons that I shall state later, that we would be attempting to do something that is beyond our constitutional powers.

The hon. member for Eglinton has very properly expressed some concern as to the position of the lay members of the house in connection with this rather technical legal discussion. I think it would not be amiss if I were to attempt to review those points upon which the Prime Minister and the two hon. members to whom I have just referred, and myself seem to be in agreement. The first is that a decision of the privy council on a Canadian appeal is a conclusive interpretation or statement of the law. When it is delivered it becomes an integral part of the law of Canada, and it must remain an integral part of the law of Canada until the proper legislature changes it, or until it is reversed by the privy council itself. I am sure the hon. member for Kamloops and the hon. member for Eglinton will agree with that proposition.

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:

Entirely.

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 question is whether we in this house have enough confidence in the Supreme Court of Canada as a court of last resort that we think it competent and willing to apply the privy council decisions as an integral part of the law of Canada. I say that if we have not that degree of confidence in the Supreme Court of Canada then not only should we not make it the court of last

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resort for Canada, but I think there is a grave question whether we should continue it at all as an institution of the country. If or when we get to the stage in Canada, in a provincial court for that matter, and certainly in our court of last resort, that we as a legislative body have to sit here and as a part of the legislative function of government direct the judicial branch of the government as to how it should exercise its judgment, then we should have reached a very low state of judicial competence, and a very low state of the legal profession in this country.

That is the simple issue. My hon. friends in this, as in previous statements which they have made concerning this bill, indicate that they are afraid that Canadians should attempt to exercise the ultimate judicial functions in our country, and are showing in this amendment another example of that apparently utter lack of confidence which they have in the idea of our abolishing appeals to the privy council and of attempting to decide our own legal cases for ourselves.

Well, sir, we of the government do not share that lack of confidence. We are satisfied that the rule of stare decisis, which as the hon. member for Eglinton has said is part of the settled law of this country, will be properly applied by the Supreme Court of Canada. In that connection I think it would be relevant for me to point out that the rule of stare decisis has long governed the Supreme Court of Canada. If the hon. member for Eglinton and the hon. member for Kamloops are in doubt on that point, I would refer them to the judgment of Mr. Justice Duff, as he then was, and Mr. Justice Anglin in the case of Stuart v. Bank of Montreal, 41 Supreme Court Reports at 516, where in the most explicit terms they say they are bound by this rule.

The only interpretation we can place upon this amendment is that it expresses lack of confidence. The amendment reads:

Subject to any enactment of the parliament of Canada or the legislature of any province in the exercise of their respective powers, the Supreme Court of Canada shall be bound by the law as declaredand so on. If the law as set out in the decisions of the privy council, which we are going to enact that the supreme court should follow, by the express terms of my hon. friend's amendment, is law which it would be necessary for the legislature of a province to enact or amend, then by the express terms of this amendment he is asking us to invade provincial jurisdiction; and, if we were so unwise as to attempt to do that, it would be clearly beyond the powers of this parliament.

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

Gordon Graydon

Progressive Conservative

Mr. Graydon:

Are you not rather mixed up there?

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:

No, I am not at all mixed up. My hon. friend's amendment reads:

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 the privy council-

In other words, he is asking this parliament to direct the Supreme Court of Canada to follow those decisions of the privy council which deal not only with matters coming under the jurisdiction of parliament itself but with matters which come under provincial jurisdiction. We in this house can legislate in connection with the procedure or organization of the supreme court. We have that power under section 101 of the British North America Act. When we undertake to say by way of statutory enactment, however, that decisions of the privy council dealing with matters which come within provincial jurisdiction shall be followed by the court, I think we are clearly invading the jurisdiction of the provincial legislatures and doing something beyond our power. In the view of the government this matter of applying the rule of stare decisis is a judicial rather than a legislative function; and when we interfere legislatively with a judicial function we can only make for confusion in a matter which, if left as it stands, is perfectly clear.

I am sure the hon. member for Eglinton and the hon. member for Kamloops are in complete agreement that the rule of stare decisis is part of the settled law of Canada; they have said so within the last few minutes. The whole issue is whether we think we can trust this body of men whom we are proposing to clothe with the very great responsibility of being the court of last resort for Canada with the simple, plain and clear task of applying the settled law of this country to the cases that may come before them. If we are not prepared to entrust them with that task we should not consider making them the court of last resort in this country. If we adopted this amendment we would be saying in effect that we have so little confidence in the ability and willingness of the court to do what is its sworn duty that if we did not direct it to do its duty we do not think that it would be done.

My principal objection to this amendment is that in the manner I have indicated it clearly invades the field of provincial jurisdiction. Under section 101 of the British North America Act this parliament is empowered to set up the Supreme Court of Canada and do all those things and enact all those laws and provisions ancillary thereto. When we come to direct that court

to follow privy council decisions which deal with provincial matters, however, that direction in its pith and substance is an enactment of substantive law and not an enactment of procedural law, which under section 101 we have authority to pass. In the course of giving a general direction as to the whole body of privy council law it is inconceivable that we would not deal with matters coming under property and civil rights, for example, and such a provision would be a clear invasion of the provincial field of legislation.

Then it would be open to the other objection. When we direct the supreme court to say that a given statute of the dominion is valid because it has been declared valid by the privy council, in my opinion there is grave doubt as to whether we are not attempting to accomplish a statutory interpretation of the British North America Act itself. If we have power to direct the Supreme Court of Canada to consider itself bound by a privy council decision which says that a certain act of parliament is valid, then equally we must have power to direct the supreme court that it shall not follow the privy council decision, and shall hold the act in question invalid. Were we to do so, the effect of our enactment would be to amend the British North America Act itself. It would amount to a constitutional amendment taking the form of a direction to the Supreme Court of Canada to follow or not to follow privy council decisions.

In drafting the bill we have endeavoured to avoid any invasion or prejudice of the provincial field of jurisdiction. Thus, so far as the government and Department of Justice are concerned, there is no intention of recommending to the members of this house that they should risk invading provincial jurisdiction by directing the Supreme Court of Canada as to what decisions of the privy council it must or must not follow or that the supreme court should apply the rule of stare decisis. The government has such confidence in our supreme court and in the citizens and public men of Canada that we are willing to rely on the court to apply, in a proper judicial manner, to the cases which come before it, the rule of stare decisis or any other part of the settled law of Canada. We are willing to rely upon the public men of Canada not to interfere with the judicial functions of the court just as the government, in submitting this bill in its present form to the members, is not interfering with the judicial functions of the supreme court. If this amendment is refused, we will continue not to interfere with the functions of the supreme court. But, if the amendment is accepted, then we will certainly be interfering with the functions of the supreme

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court. If I mistake not, that is the very thing which my hon. friends said would be one of the worst offences of which the government could be guilty in connection with making the supreme court the court of last resort in this country.

There have been certain implications that, in time of trouble and bitterness or political excitement in this country, it is a fine thing to be able to take constitutional cases to the privy council. The plain implication of that is that it is not advisable, under such circumstances, to go to our own court. I should like to put on the record-

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:

On a point of order,

Mr. Chairman, we are in the committee of the whole and I take it it is not proper for the minister to reopen the debate that was closed on second reading of the bill. Those who have spoken in this debate in the committee this afternoon have said nothing of the matters to which the minister is now referring. He is setting up a straw man and will proceed to knock him down. There can be no return to or reopening of the debate on second reading; that is closed. My hon. friend the member for Kamloops (Mr. Fulton) and I have scrupulously refrained from saying anything on the principle of the bill. The principle was adopted on second reading. Are we going back and thresh over that old straw? The minister is clearly out of order.

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:

My friend is so proud of the stand he took on second reading of the bill, he is not anxious to repeat it.

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:

On a question of privilege, the minister has no right whatever to make any such statement, because this is the first time I have spoken on this bill at any stage.

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

An hon. Member:

He is speaking about the amendment.

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 minister is dealing with the principle of the bill and I ask you, Mr. Chairman, to call him to order.

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:

Upon any strict interpretation of the rules of the house, I believe it would be in order for me to say what I have said in relation to the amendment which is now offered to the house. The amendment can have no other meaning than that the man who has moved it has not sufficient confidence in the supreme court of this country.

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:

On a question of privilege, Mr. Chairman, the minister has no right to make such a statement. Lack of confidence in the court is not inherent in the amendment nor is it suggested by it. It is a product of a fantastic turn of mind to suggest it could be.

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Furthermore, I suggest it is an improper reflection upon the motives of the members of this house and should be withdrawn.

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:

I said nothing whatever about my hon. friend, or about his motives. I was speaking about his amendment, and that speaks for itself.

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:

With respect, sir, I would ask for a ruling.

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:

May I speak to the point of privilege my hon. friend has raised? I say, sir, that the amendment which is offered says that we must direct the supreme court to apply the rule of stare decisis, which is a part of the settled law of the land. If that does not show a lack of confidence in the supreme court on the part of the member who moved that resolution, then I do not know what would show a lack of confidence.

Such a lack of confidence is not warranted, I suggest, Mr. Chairman. I checked back as to the number of cases on constitutional points which had been decided by the Supreme Court of Canada from about 1918 to the present day. I found that there were 60. Of those cases there were two in which, in spite of this influence which living in Ottawa is said to have upon the members of the supreme court, the court was unable to do other than arrive at an equal division of the judges. Of the remaining 58 cases, in exactly one-half the dominion view of the case was upheld, and in the other 29 cases the provincial view was upheld.

I am not suggesting for a moment that any rule of thumb computation of this sort proves the impartiality of the supreme court decisions on constitutional matters. I do suggest, however, that, upon the surface at any rate, it appears as if the Supreme Court of Canada had not been guilty of any great partiality. Of the 60 decisions rendered in the last 30 years, 29 have upheld the dominion view and 29 upheld the provincial view. It is for these obvious reasons, sir, that, while agreeing with the member for Eglinton (Mr. Fleming) and the member for Kamloops (Mr. Fulton), that the rule of stare decisis is a part of the settled law of this country, we are prepared, nevertheless, to leave it to the court itself to exercise its judicial, not legislative, discretion and apply the settled law to the cases which come before it.

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

Thomas Langton Church

Progressive Conservative

Mr. Church:

I wish to refer to section 3 of this particular bill. I have not taken up much of the time of the house in connection with it. I did make a short address the other day, but I wish to refer to the differences between what was done before and what is being done now in this committee. I am objecting to the method and manner of carrying this out. This particular proposal goes

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much further than the private bill for which I moved the six months hoist at an earlier session. It is a much wider bill and, if you ask me, it makes a scrap of paper out of the British North America Act in two ways.

Under the British North America Act British subjects have certain rights and privileges. On the first and second readings of the bill I asked two questions. Did this government propose to make a scrap of paper out of the British North America Act? Is that Liberalism of the twentieth century? Is that the kind of Liberalism that we were promised in Quebec and Ontario during the last election? I say no, it goes much further than that. I am objecting to the method and manner of carrying it out. It can only be done as the hon. member for Temiscouata said the other day. He was objecting to the same thing, the method and manner of bringing it about.

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

Charles-Arthur Dumoulin Cannon

Liberal

Mr. Cannon:

The hon. member is not now speaking on the amendment; he is clearly speaking on the principle of the bill.

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

Thomas Langton Church

Progressive Conservative

Mr. Church:

You can make your own speech later. I would like to get some order in the committee, Mr. Chairman. I am not saying anything out of the way. I would like to get some order especially from those behind the curtain. If they want to speak on the bill let them speak out.

We know that this is nothing else but a political bill. It is a political bill first, last and always, and was promised in the late election. The very same promises were made right across Canada. What were those promises?

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