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


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.

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