April 17, 1923 (14th Parliament, 2nd Session)


Hewitt Bostock (Speaker of the Senate)



When the hon. member a few days ago moved a similar resolution, I felt that under British parliamentary practice matters sub judice could not be brought before the House. The question was discussed by several hon. members on both sides after the hon. gentleman had agreed to postpone the consideration of his resolution. Many representations were made to me as Speaker from both points of view-that the subject matter of the hon. member's resolution should be considered as a question sub judice, and, on the other hand, that it should not be so considered. I invited the opinion of some of the oldest members of the House. I invited the opinion of the Acting Minister of Railways and Canals (Mr. Graham), and of the hon. member for West York (Sir Henry Drayton). I asked for the opinion of the present Chairman of the Board of Railway - Commissioners, Hon. Mr. Carvell, and I also had the benefit of the views of two or three of the most experienced members of the House-because it is paramount to determine whether the Privy Council of Canada should be considered as a tribunal. The question has impressed me as sufficiently important to justify a formal ruling, which I give as fol-, lows:
On the motion that I do now leave the chair for the House to resolve itself into Committee of Supply, Mr. Clark (Burrard) moved in amendment, seconded by Mr. Tolmie (Victoria) :
That all the words after the word "that" be struck out, and the following words be inserted instead thereof:-
"In the opinion of this House all unfair and unjust discrimination against British Columbia as exemplified in the 'mountain scale' of freight rates should be rescinded, and the special reduction made by the restoration of the Crowsnest pass rates on the basic production of the prairie provinces, be extended to the basic productions of all other provinces of confederation."
This question is now before the Governor in Council on an appeal from a decision of the Railway Board which established, by a General Order bearing No. 366, dated 30th of June, 1922, certain scales of rates known as the "mountain scale," in British Columbia, on a higher basis than that charged for the same class of goods moving between points in Alberta, Saskatchewan and Manitoba, known as the "prairie scale."
tMr. Clark.]
By petition dated the 1st of December, 1922, the Attorney General of British Columbia appealed from the said order to the Governor General in Council, praying that the same rates be charged on goods of like character from and to all points in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba and Ontario as far east as Port Arthur.
The question was partially heard by the Governor in Council on the 3rd of February last, and it was announced that further hearing was postponed until after the prorogation of the present session of parliament.
My attention has been drawn to the circumstance that whilst this appeal is pending the question must be considered . sub judice and therefore should not be debated in the House. Beauchesne's Parliamentary Rules and Forms, No. 234, says:
Besides the prohibitions contained in this rule (our rule 19) it has been sanctioned by usage both in England and in Canada, that a member, while speaking, must not:
"(c) refer to any matter on which a judicial decision is pending."
May, page 296, says:
Matters awaiting the adjudication of a court of law should not be brought forward in debate.
The precedents cited by May cover instances where individual rights are concerned and relate chiefly to election petitions. I have very fully scrutinized those cases. The point at issue may be briefly stated in the following proposition: Is the Governor in Council, in the exercise of his powers to review the decisions of the Railway Board, vested with a judicial rather than an administrative or executive function?
In the interpretation of the functions of the Governor in Council, one must bear in mind the provisions of the British North America Act, section 9 of which reads as follows:
"The executive government and authority of and over Canada is hereby declared to be vested in the Queen."
Section 11:
"There shall be a Council to aid and advise in the government of Canada to be styled the Queen's Privy Council for Canada."
Section 13:
"The provisions of this act referring to the Governor General in Council shall be construed as referring to the Governor General acting by and with the advice of the Queen's Privy Council for Canada."
There seems to be no doubt from the above citations that the Privy Council of Canada is vested with executive powers only and has no judicial authority whatever. We must realize that the Canadian government has no

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other powers than those conferred directly or indirectly by that Imperial statute called the British North America Act.
In England, there is a Judicial Committee of the Privy Council, but there is no similar institution in Canada. Prior to the year 1903, the Privy Council of Canada had full control over all matters now dealt with by the Railway Board. Section 8 of the Railway Act, 1903, which created the board, says:
1. The railway committee of the Privy Council is hereby abolished, and, in lieu thereof, there shall be a commission, to be known as the board of railway commissioners for Canada, etc.
2. Whenever by an act or document the railway committee of the Privy Council is given any power or authority, or any duty is cast upon it, in regard to any company, railway, matter or thing, the power or authority so given, or the duty so cast upon the said committee, may or shall, as the case may be, be exercised by the board.
These provisions have been carried into'sec-ions 9 and 32 of the Railway Act, 1919.
The board itself is a court of record under section 9 of the act, but it has disposed of the case of the freight rates which is now out of its purview and engaging the attention of the Governor in Council.
The Privy Council has specifically reserved to itself the power to revise the board's decisions as to questions of facts. Subsection 2 of section 44 of the Railway Act of 1903, which is now subsection 1 of section 52 of the Railway Act 1919, reads as follows:
Thb Governor in Council may at any time, in his discretion, either upon petition of any party, person or company interested, or of his own motion, and without any petition or application, vary or rescind any order, decision, rule or regulation of the board, whether such order or decision is made inter partes or otherwise, and whether such regulation is general or limited in its scope and application, and any order which the Governor in Council may make with respect thereto shall be binding upon the board and upon all parties.
Subsections 2 and 3 of section 52 provide
for an appeal to the Supreme Court of Canada upon a question of law or jurisdiction.
It is therefore evident that the powers of the Governor in Council have not been abridged as to questions of facts, and they remained exactly the same after as before the creation of the Railway Board. They are simply administrative or executive as heretofore, just as if the Railway Act had never been passed.
The Ministers of the Crown are seized with the appeal for the purpose of advising His Excellency thereon. Their advice may be rejected and is not in the nature of a final judgment. Todd says, in Parliamentary Government in the British Colonies, p. 40:
In the ordinary exercise of his constitutional discretion the Governor is unquestionably competent to reject the advice of his ministers whenever that advice should seem to him to be adverse to the public welfare, or of an injurious tendency.
The question as it now stands before the cabinet, is not, in my humble judgment, sub judice as this legal term implies. It is being considered by the government under administrative powers which the Governor in Council did not delegate or alienate when the Railway Board was created. The fact that the cabinet hears counsel representing both sides of the issue does not constitute it a tribunal. The ministers are at liberty to take all the information required before arriving at a decision upon which they will base the advice to be tendered to His Excellency the Governor General. They may be guided by considerations of public policy quite foreign to the brief. Their decisions which take the form of orders in council and are signed by His Excellency, when accepted, are not, properly speaking, judgments, the ministers' functions in this regard cannot therefore be said to be in any way judicial. They are purely administrative.
One of the traditional rights of parliament is its expressive power. Any grievance, any complaint, any notion can be aired in parliament. It would be a breach against the ancient privilege of the freedom of speech, so essential to every legislature, for the Speaker to prevent a debate on a matter because it is being considered by the Governor in Council, and particularly in the present case, the hearing of which is being postponed on account of the session and will only be resumed after prorogation.
Todd, Parliamentary Government in England, Vol. 1, page 414, says:
Freedom of speech in parliament is an essential part of the liberties of Englishmen. This privilege was guaranteed by the Bill of Rights, and it includes a license to discuss all matters affecting the public welfare, whether the same have been commended by the Crown to the consideration of parliament or not. From the time of Edward III to our own day, parliament has freely exercised the right of tending advice to the sovereign, unasked, upon matters the final determination of which appertained to the sovereign alone. . . . The two Houses of Parliament collectively represent the whole community, and are the Great Council of the nation, while ministers are merely the council of the prince. They are, therefore, entitled to approach the sovereign with advice or remonstrance upon all affairs of state, and in regard to every grievance under which any subjects of the realm may be suffering.
I have given this point of order a great deal of attention. I have weighed the views expressed on both sides with care and concern. If there should be a doubt lingering in my mind-but there is none-I would give the benefit of that doubt in favour of the broad principle of the supremacy of parliament in all matters of public policy.
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I have .come to the conclusion that the motion of the hon. member (Mr. Clark) is in order, and I rule that debate thereon is allowed.

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