October 4, 1949 (21st Parliament, 1st Session)


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.

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