September 20, 1949 (21st Parliament, 1st Session)

LIB

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

Liberal

Hon. Stuart S. Garson (Minister of Justice) moved

the second reading of Bill No. 2, to amend the Supreme Court Act.
He said: In its progress towards full selfgovernment, Canada until the present time has retained two badges of colonialism. The first is that we must petition the United Kingdom parliament to pass a United Kingdom statute which alone can amend our Canadian constitution. The second is that the ultimate determination of Canadian statute and other laws is the responsibility of the judicial committee of the privy council, a United Kingdom court.
The bill which is now before us will strip off the second of these badges by abolishing appeals to the privy council. In that sense it represents an important step towards complete nationhood for our country.
Clause 3 of the bill sets out its principle, and its major purpose, namely, to create in the Supreme Court of Canada exclusive, ultimate, appellate civil and criminal jurisdiction within and for Canada by abolishing appeals to the privy council and by making the judgment of the Supreme Court final and conclusive in all cases.
No principle is involved in the other sections of the bill. They are either consequential or they clarify the law without significantly changing its substance. I would suggest, therefore, that they can be discussed to a greater advantage in committee.
Clause 3 deals with one of the most vital parts of the mechanism of government in Canada. When in 1875-76, the United Kingdom Colonial Secretary, the Earl of Carnarvon, was carrying on a spirited discussion with Hon. Edward Blake, then Attorney General of Canada, on the very matter we now have before us, a memorandum of the

Supreme Court Act
United Kingdom privy council said this with regard to this matter of supreme appellate authority:
. The supreme appellate authority of the empire or the realm is unquestionably one of the highest functions and duties of sovereignty. The power of construing, determining, and enforcing the law in the last resort, is, in truth, a power which overrides all other powers; since there is no act which may not in some form or other become the subject of a decision by the supreme appellate tribunal and that tribunal can alone determine the limits of its own jurisdiction.
This power has been exercised for centuries as regards the dependencies of the empire by the sovereigns of this country in council; that is to say, the sovereign to whom the prayer for relief is addressed affords that relief, with and by the advice of a certain number of the most eminent judicial officers and jurists of the realm, who are sworn of the privy council for this purpose. The final order made on each appeal is the direct act of the queen in person. So that by this institution, common to all parts of the empire beyond the seas, all matters whatsoever, requiring a judicial solution, may be brought under the cognizance of one court-
I ask you, Mr. Speaker, to note this particularly.

in which all the chief judicial authorities of this country (the United Kingdom) have a voice.
I suppose, sir, that at first blush one might think that the words "a power which overrides all other powers", are rather strong language. I am sure that brief reflection on the effect that judicial interpretation of the British North America Act has had upon our ability in this country to deal effectively with questions of social welfare, marketing, and the fluctuations in the business cycle, will indicate that this statement is perhaps not quite as strong as it may at first appear.
At any rate, the situation today is that the supreme appellate authority of Canada, the power of construing, determining and enforcing the law of Canada in the last resort, a power which this United Kingdom memorandum says is one which overrides all other powers, is still vested in a United Kingdom court in which all of the chief judicial authorities of the United Kingdom have a voice, but in which Canada, from time to time, has had but a slight voice or none at all.
It is this situation with which clause 3 of the present bill deals. I should like, therefore, to discuss at some length this clause, its background, and its implications.
The section of the British North America Act which we are invoking to pass this bill now before us is section 101, the relevant portion of which reads as follows:
"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 . . ."
What immediately strikes a casual reader, is that the language of section 101 of the British North America Act empowering this parliament to establish a federal appeal court

with ultimate and exclusive jurisdiction is clear and unequivocal. But until the passage of the Statute of Westminster, 1931, the legislative power thus created was not the power of a sovereign state. According to the decisions of the privy council it was the legislative power of a British colony and subject to three constitutional bars which prevented this parliament from effectively exercising it in order to create a court of last resort in Canada.
The first of these three bars was the Colonial Laws Validity Act. This act provided that any colonial law which conflicted with any United Kingdom statute applicable to the colony was void to the extent of that conflict. Since at that time there were imperial statutes which gave a right of appeal to the privy council it followed that under the Colonial Laws Validity Act, 1865, neither the dominion nor the provinces could then validly legislate so as to abolish this right of appeal given by the imperial statute.
The second constitutional bar to the abolition of privy council appeals by either the dominion parliament or the provincial legislatures was the legal doctrine of extraterritoriality. This doctrine was that each colonial legislature could legislate only as regards matters within its own geographical territory. The so-called prerogative right of appeal to the privy council, or, as the hon. member for Broadview (Mr. Church) mentioned yesterday, the appeal as a matter of grace, was, as Viscount Sankey put it in the British coal case, "a residuum of the royal prerogative of the sovereign as the fountain of justice." Since this fountain was situated in the United Kingdom, it was beyond Canada's territorial jurisdiction, and no Canadian legislature was competent to pass laws abolishing or dealing with it.
The third constitutional bar was the express terms of section 129 of the British North America Act itself. This section provided that all the laws in force at the time of confederation, in Upper Canada, Lower Canada, New Brunswick and Nova Scotia, should continue, subject to repeal or amendment by the parliament of Canada or by the respective provincial legislatures. But this section specifically excepted imperial laws-that is, laws of the United Kingdom-in force in these four provinces at confederation. Therefore, since the right of appeal from these provinces to the privy council had been legislated upon by the United Kingdom parliament, it followed that this right of appeal was specifically excepted from this section 129 of the British North America Act; and that the parliament of Canada was not considered competent to abolish it.

Such, then, was the legal position of this matter before the passage by the parliament of the United Kingdom of the Statute of Westminster, 1931. As you, Mr. Speaker, will recall, this statute was passed to give effect to certain resolutions which had been arrived at by the- imperial conferences of the United Kingdom and the various dominions of the British commonwealth, held in the years 1926 and 1930.
Some of the older members will recall that the late Hon. C. H. Cahan was of the opinion that the passage of the Statute of Westminster in 1931 had removed the constitutional bars to which I have just referred. Acting in that belief, he introduced in this parliament in the year 1938 a bill to abolish privy council appeals, the main operative provisions of which were identical in substance with the clause 3 which we are now considering. Mr. Cahan's bill, after some consideration by parliament, was referred to the courts for a ruling whether it was within the power of this parliament to enact. In due course this reference came before the judicial committee of the privy council, which held in its judgment-cited as the Attorney General of Ontario v. the Attorney General of Canada, 1947, A.C. 127-that the Statute of Westminster had indeed removed these three constitutional bars, and that the draft bill under consideration by the court in that case was within the power of the parliament of Canada to enact.
Some parts of the privy council judgment are so relevant to the present discussion- that is, although they deal with legal matters they are relevant to the political issue whether or not we should pass the present bill -that I venture to quote from them. For example, their lordships said:
It is in the light of this act of transcendent constitutional importance-
They were referring, of course, to the Statute of Westminster, 1931.
-that the question must now be considered whether it is competent for the parliament of Canada to enact not only that the supreme court of the dominion shall have appellate-civil and criminal jurisdiction within and for Canada, but also that that jurisdiction shall be "exclusive" and "ultimate." This question must be considered under two heads, first, in regard to appeals from the supreme court itself, and secondly, in regard to appeals direct from the provincial courts to His Majesty in council.
With respect to appeals from the supreme court itself, their lordships found that there could be no doubt as to parliament's power to abolish them. Once the fetter upon the legislative power of the dominion could be removed and had been removed by the Statute of Westminster, it followed that the power of the dominion parliament to enact that the jurisdiction of its own supreme court
Supreme Court Act
should be ultimate was beyond question. As they put it-and I bespeak careful consideration of these words-"No other solution is consonant with the status of a self-governing dominion".

Topic:   SUPREME COURT ACT
Subtopic:   VARIOUS AMENDMENTS
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