May 26, 1930 (16th Parliament, 4th Session)


Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)


I was not even stating
the grounds of the decision; I was indicating what Lords Chancellor Birkenhead and Haldane and several other Britiish statesmen who were not members of the legal profession had indicated, that if this country in form and manner provided indicated to the British parliament a desire that we should no longer have appeals to the privy council, such action would be taken, and that the British law lords and jurists were not imposing their services upon the Canadian people but that the Canadian people were utilizing their services because they were available. They were available because we were part of an empire, and every citizen in that empire, however humble and poor he may be, has the right to present his petition to the foot of the throne and have his grievance heard by the Judicial Com-

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mittee of the Privy Council. Only a few days ago a poor, weary traveller from India presented a petition in person to the Judicial Committee of the Privy Council, being a committee of the sovereign's advisers, and was heard, and a lady from Canada in person presented her case before that committee and succeeded, not because the British people coaxed her to go there; not because the judicial committee or any other committee asked that she bring her litigation there, but because she desired that the most eminent judges the world knows should sit and determine her case. The reason that the appeals to the privy council exist to-day is that the Canadian people desire that they should exist, and if at any time during the last fifty years this parliament had forwarded to Great Britain a resolution asking that appeals to the privy council be discontinued, the necessary action would have been taken by the British parliament and the necessary legislation passed in that regard.
It is another thing, however, to say that we should pass legislation prohibiting an appeal, because that would be unconstitutional as the parliament of one dominion seeking to deprive the citizens of that dominion of the inherent right that belongs to every citizen of that empire, namely, the right to present his case to the foot of the throne. You will recall that we are told in Holy Writ of the appeal made to Caesar in ancient days, and the appeal being made to Caesar, "unto Caesar shalt thou go." So it is that we have always had the right, during the last half century, through the imperial parliament, to deprive our citizens of the privilege of presenting their appeals to the privy council. If we have not done so it is because we have not so desired and if at any time we so desire the necessary action may be taken.
That clears up at least two of these matters. Now we come to something far more serious, far more complicated, and more far reaching in all its implications and consequences. The action taken by the conference at London is to give effect to a resolution that conferred equality of status upon Canada and Great Britain. That is, it became necessary, if this equality of status was to be realized, that certain outstanding imperial legislation should be either repealed or amended; it should be stricken out in its entirety and no longer have any applicability to this country or else it should be amended. The matters were taken up one after the other by that conference, and the report which we have before us was presented. That report deals at great length with

the various matters which were considered. It will be remembered that it dealt with the origin and the purpose of the conference; then it took up the shipping act and the position of India, and the real questions before the conference. These were all by way of introduction. We dealt with the age-long discussion with respect to disallowance. Disallowance is not a matter that is at all singular when applied to Canada; it is a part of the survival of the idea of empire. When new communities were added to the empire by discovery, by conquest or by annexation, certain laws were made applicable to those new communities. If by discovery, then the laws of England became applicable in the absence of any laws from any other section of the world. There were no legislatures; there were no bodies to enact legislation, and so that law that we call the common law representing the accumulated common sense of centuries, became applicable to that new community thus discovered and added to the British Empire. Legislative power there was none in this new community, for it had no institutions; it had no legislature, to pass decrees or ordinances of any kind or character whatsoever. Therefore the legislation passed in London at the parliament at Westminster had applicability to this new community, because it had been added to the empire.
That is all that may be said about that, and when new institutions did grow up; when Cornwallis, for instance, signed at Halifax the first order on this continent for an election of members who constituted the legislative assembly of Nova Scotia, there grew up a community with power to pass laws for the peace, the order and the good government of the colony called Nova Scotia. There came a time when the legislation passed by this new colony was repugnant to or conflicted with the legislation passed by the parliament at Westminster. If that legislation was repugnant to the common law, the judges at Westminster decided that the legislation of this new colonial legislature was invalid if it conflicted with the common law of England as declared by the judges. The Colonial Laws Validity Act, as the minister very properly indicated this afternoon, was intended to expand and not to restrict the powers of colonial legislatures. Why do I say that? Because it provides that in case of repugnance or conflict between the common law and the legislation of a colonial legislature, the legislation of the colonial legislature shall prevail over the common law. But the very essence of the idea of empire still obtained, and in case of conflict, if there should be any, be-

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tween t'he legislation of the parliament at Westminster and the legislation enacted by the legislature of the colony, whatever it might be, then the legislation passed at Westminster should prevail. The Colonial Laws Validity Act so provided.
That act was passed in 1865, two years before this confederation. What did it mean? It meant this, in practice: That when this
parliament enacted a law that provided that there should be no appeal to the Judicial Committee of the Privy Council in criminal cases, if that enactment conflicted with the British statute, as it did, the British statute should prevail and the right of appeal should be maintained, because the humblest subject had the right-not under Canadian law but under British law-to present his grievance to the foot of the throne.
The question of disallowance is somewhat similar in its history, because the power rests in the federal government here at Ottawa to disallow a provincial statute if in the opinion of the Justice department that statute contravenes well defined principles of jurisprudence, that is, if it is beyond the legislative competence of the legislature to enact such a statute there is power in the governor general to disallow and declare that statute toi be of no effect. It wild be recalled that only a few years ago a Statute was passed by the legislature of Nova Scotia and was disallowed by the governor in council because it was felt that it was repugnant to natural justice and to the ideas which were held in this country as to the rights of individual citizens. It will be recalled that the Hon. Edward Blake took the view that instead of disallowance being exercised by the federal power, it was desirable that the matter should be referred to the courts which would determine whether the power exercised' by the provincial legislature was or was niot legally exercised. The power of disallowance has fallen into disrepute, having been exercised only once or twice during tihe past quarter century. It is said that disallowance is not in keeping with our institutions, and that for a period of two years or one year, as the case may be, there should not be power in the king in council to disallow a statute passed by a dominion parliament in the exercise of its plenary powers as a parliament. Some of the speeches would be inclined to make us think that we are trying to extract something from the government of England which it was reluctant to give us; something like pulling teeth. At all times and upon all occasions that government has expressed the utmost willingness to meet any views which we may express in that regard. Why look upon this 2419-1651
as something wrung by a son from a reluctant mother? This is something which is given without question, something which represents the fulness of the operation of the institutions of our country. The power of disallowance disappears.
Another question arises, as was pointed out, although not fully, by the hon. Minister of Justice. We desire, and when I say "we" I am not distinguishing between Liberal and Conservative governments-it just happens to [DOT]be a Liberal government-that our securities should be trustee securities in England. The Hon. Mr. Fielding desired it and for a long time he endeavoured to secure that concession. By reason of difficulties which were experienced in days gone by in connection with securities to which attention might be directed, we provided by an agreement with the British treasury that if legislation of this parliament menaces the validity of securities which have become trustee securities under the laws of England, that power of disallowance may be exercised. This provision is not peculiar to this particular country. It is pointed out in the report that there were certain provisions in that regard in the Colonial Stock Act of 1900. The reserving of statutes passed by this parliament for the consideration of the. sovereign in council has not been in use for, a very long time. It now disappears.
With these recommendations no difficulty will be experienced, but when we consider the question of the extraterritorial operation of dominion legislation, we are on different ground altogether, and one which may lead to complications of the first order. I shall not take up the time of the house by discussing them at length, as the hon. member for St. Lawrence-St. George (Mr. Cahan) has presented them with a wealth of detail. I think it will be agreed that the Right Hon. C. J. Doherty gave the fullest possible explanation regarding the exercise of extraterritorial powers which has ever been given in this house. I think my hon. friend the Minister of Justice will bear me out in that statement with reference to the address of Mr. Doherty in introducing his resolution dealing with this matter. He went into the matter with a wealth of detail and knowledge and precedents which has not been since revealed in this [DOT]house. As the hon. member for Winnipeg South Centre has said, there are those who believe that it is incidental to the exercise of our powers as a parliament that we should legislate in an extraterritorial sense. That view is not held by all. As I pointed out this afternoon, while the hon. Minister of Justice was speaking, our supreme court expressed a divided opinion upon divorce legis-
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iation. If I remember correctly, that matter did not go to the privy council. The privy council held in the Cain case that we had such powers. It is a very nice question, but one which I will not take the time to discuss, as to whether or not we possess already the power to enable us to enact legislation of an extraterritorial character. There is a possibility of grave difficulties in this regard, which those who had charge of this matter at London last fall did not fail to recognize. Extraterritorial legislation may bring about difficulties, but it is not my purpose to do more than point out the possibilities where you have various parts of the empire that may be affected thereby. It will be observed from the report made by the committee that special provisions were made to deal with this matter.
We now come to the question of dealing with our constitution, which is one of first importance. At page 29 of the report we read: .
Nothing in this act shall be deemed to confer any power to repeal or alter the constitution acts of the Dominion of Canada, the Commonwealth of Australia, and the Dominion of New Zealand, otherwise than in accordance with the law and constitutional usage and practice heretofore existing.
Nothing in this act shall be deemed to authorize the parliaments of the Dominion of Canada and the Commonwealth of Australia to make laws on any matter at present within the authority of the provinces of Canada or the states of Australia, as the case may be, not being a matter within the authority of the parliaments or governments of the Dominion of Canada and of the Commonwealth of Australia respectively.
I put this question to the Minister of Justice: Can you say that you have equality of status if 3'ou do not have power to amend your constitution?

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