Reference as to the Legislative Competence of the Parliament of Canada to Enact Bill No. 9 of the Fourth Session, Eighteenth Parliament of Canada, Entitled "An Act to Amend the Supreme Court Act"

Reference as to the Legislative Competence of the Parliament of Canada to Enact Bill No. 9 of the Fourth Session, Eighteenth Parliament of Canada, Entitled "An Act to Amend the Supreme Court Act"
Collection
Supreme Court Judgments
Date
1940-01-19
Report
[1940] SCR 49
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Crocket, Oswald Smith; Davis, Henry Hague; Kerwin, Patrick; Hudson, Albert Blellock
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Reference as to the Legislative Competence of the Parliament of Canada to Enact Bill No. 9 of the Fourth Session, Eighteenth Parliament of Canada, Entitled "An Act to Amend the Supreme Court Act", [1940] S.C.R. 49
Date: 1940-01-19
In the Matter of a Reference as to the Legislative Competence of the Parliament of Canada to Enact Bill No. 9 of the Fourth Session, Eighteenth Parliament of Canada Entitled "an Act to Amend the Supreme Court Act."
1939: June 19, 20, 21; 1940: January. 19.
Present: Duff C.J. and Rinfret, Crocket, Davis, Kerwin and Hudson JJ.
Constitutional law—Appeals to His Majesty in Council and to the Judicial Committee from Canadian courts—Whether Parliament of Canada has jurisdiction to pass an Act amending the Supreme Court Act so as to abrogate jurisdiction of Privy Council to hear such appeals.
A Bill, entitled "An Act to amend the Supreme Court Act" was referred to this Court by Order of the Governor General in Council for its opinion as to whether that Bill, or any of its provisions, was intra vires of the Parliament of Canada. Such Bill purported to enact that "the Supreme Court of Canada shall have, hold and exercise exclusive ultimate appellate civil and criminal jurisdiction within and for Canada" ; and, for the purpose of giving effect to that enactment, it was in substance provided that the jurisdiction of His Majesty in Council and of the Judicial Committee to hear appeals from Canadian courts was abrogated. Held, by the Court, that the Parliament of Canada was competent to enact such Bill in its entirety.
Crocket J. was of the opinion that the Bill should be declared wholly ultra vires of the Parliament of Canada.
Davis J. was of the opinion that the Bill referred if enacted would be within the authority of the Dominion Parliament if amended to provide that nothing therein contained shall alter or affect the rights of any province in respect of any action or other civil proceeding commenced in any of the provincial courts and solely concerned with some subject-matter, legislation in relation to which is within the exclusive legislative competence of the legislature of such province.
REFERENCE by His Excellency the Governor General in Council to the Supreme Court of Canada in the exercise of the powers conferred by s. 55 of the Supreme Court Act (R.S.C. 1927, c. 35) of the following question: Is said Bill 9, entitled "An Act to amend the Supreme Court Act," or any of the provisions thereof, and in what particular or particulars, or to what extent, intra vires of the Parliament of Canada?
The Order in Council referring the question to the Court is as follows:
Whereas there has been laid before His Excellency the Governor General in Council a report from the Right Honourable the Minister of Justice, dated April 18th, 1939, representing that, at the fourth session of the Eighteenth Parliament of Canada, Bill 9, entitled "An Act to amend the Supreme Court Act," was introduced and received first reading in the House of Commons on January the 23rd, 1939; and
That, on April the 14th, the debate on the motion for second reading of this Bill, an authentic copy of which is hereto annexed, was adjourned in order that steps might be taken to obtain a judicial determination of the question of the legislative competence of the Parliament of Canada to enact the provisions of the said Bill in whole or in part;
Now, therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice and pursuant to the provisions of section 55 of the Supreme Court Act, is pleased to refer and doth hereby refer the following question to the Supreme Court of Canada for hearing and consideration:— Is said Bill 9, entitled "An Act to amend the Supreme Court Act," or any of the provisions thereof, and in what particular or particulars, or to what extent, intra vires of the Parliament of Canada?
E. J. Lemaire,
Clerk of the Privy Council.
The text of the Act referred to this Court is the following:
An Act to amend the Supreme Court Act of Canada
His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:—
1. Section fifty-four of the Supreme Court Act, chapter thirty-five of the Revised Statutes of Canada, 1927, is repealed and the following substituted therefor:—
"54. (1) The Supreme Court shall have, hold and exercise exclusive ultimate appellate civil and criminal jurisdiction within and for Canada; and the judgment of the Court shall, in all cases, be final and conclusive.
(2) Notwithstanding any royal prerogative or anything contained in any Act of the Parliament of the United Kingdom or any Act of the Parliament of Canada or any Act of the legislature of any province of Canada or any other statute or law, no appeal shall lie or be brought from any court now or hereafter established within Canada to any court of appeal, tribunal or authority by which, in the United Kingdom, appeals or petitions to His Majesty in Council may be ordered to be heard.
(3) The Judicial Committee Act, 1833, chapter forty-one of the statutes of the United Kingdom of Great Britain and Ireland, 1833, and The Judicial Committee Act, 1844, chapter sixty-nine of the statutes of the United Kingdom of Great Britain and Ireland, 1844, and all orders, rules or regulations made under the said Acts are hereby repealed in so far as the same are part of the law of Canada."
2. Nothing in this Act shall affect any application for special leave to appeal or any appeal to His Majesty in Council made or pending at the date of the coming into force of this Act. 3. This Act shall come into force upon a date to be fixed by proclamation of the Governor in Council published in the Canada Gazette.
Aimé Geoffrion K.C., C. P. Plaxton K.C. and W. R. Jackett for the Attorney-General of Canada.
Gordon D. Conant K.C. (Attorney-General), W. B. Common K.C. and E. R. Magone K.C. for Ontario.
Eric Pepler for the Attorney-General for British Columbia.
P. H. Chrysler for the Attorney-General for Manitoba.
J. B. Dickson for the Attorney-General for New Brunswick.
J. H. MacQuarrie K.C. (Attorney-General) and T. D. MacDonald for Nova Scotia.
S. F. M. Wotherspoon for the Attorney-General for Prince Edward Island.
The Chief Justice—For convenience of discussion, it is advisable to consider separately the prerogative appeal and the appeal by right of grant, or more shortly, the appeal as of right.
And first, of the prerogative appeal. The jurisdiction of His Majesty in Council in respect of the appeal which "lies" from the decisions of "various courts of judicature" in "the East Indies, the Colonies and plantations and other dominions abroad" was affirmed and regulated by the Parliament in the Privy Council Acts of 1833 and 1844. By the former of these Acts, the Judicial Committee of His Majesty's Privy Council was established, a statutory body, to whom (it was enacted)
all appeals or complaints in the nature of appeals whatever, which either by virtue of this Act, or of any law, statute or custom may be brought before His Majesty in Council
from the order of any Court or Judge should thereafter be referred by His Majesty. It was enacted further that the Judicial Committee should hear such appeals and make a report or recommendation to His Majesty in Council for his decision thereon.
"It is clear," says the judgment of the Judicial Committee in British Coal Corporation v. The King1, that the Committee is regarded in the Act as a judicial body or Court, though all it can do is to report or recommend to His Majesty in Council, by whom alone the Order in Council which is made to give effect to the report of the Committee is made.
But according to constitutional convention it is unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee, who are thus in truth an appellate Court of Law, to which by the statute of 1833 all appeals within their purview are referred.
The Bill referred to us purports to enact that the Supreme Court of Canada shall have, hold and exercise exclusive, ultimate, appellate jurisdiction, civil and criminal, in and for Canada; and, for the purpose of giving effect to this enactment, it is in substance provided that the jurisdiction of His Majesty in Council and of the Judicial Committee to hear appeals from Canadian Courts is abrogated.
The consideration of the questions raised involves an examination of the authority of the Parliament of Canada under section 101 of the British North America Act as well as its authority under its general powers to make laws for the peace, order and good government of Canada.
The authority last mentioned, to make laws for the peace, order and good government of Canada is, by the express provisions of the Confederation Act of 1867, affected by only two limitations; first, it does not extend to matters assigned exclusively to the legislature of the provinces, a limitation which still persists notwithstanding the enactments of the Statute of Westminster; and, second, by section 129, it did not authorize the repeal, abolition or alteration of any law in force in the federated provinces or of any legal commission, power or authority existing therein, enacted by or existing under any Act of the Imperial Parliament, a limitation now, since the enactment of the Statute of Westminster, no longer in force.
Section 101 is expressed in absolute terms and by it,
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, and for the establishment of any additional courts for the better administration of the laws of Canada.
Whether the second of the above mentioned limitations formerly affected the authority of Parliament under section 101 is of little, if any, importance since the statute of Westminster. I shall advert to the point later. I turn first to the general powers of Parliament respecting peace, order and good government. It is, I think, not wholly irrelevant to notice the nature of the sovereignty which the Parliament of Canada has been conceived to possess (within, at all events, the territorial limits of Canada) and has actually exercised since the earliest times of Confederation. Under the authority of section 146 of the British North America Act, the territories comprised within Rupert's Land and the North-Western Territories (to the north and west of the federated provinces) were (June, 1870) admitted into the Union. Already, in May, 1870, the Parliament of Canada had (acting under its general law making authority) provided for the establishment (to take effect upon the admission of those territories) of the province of Manitoba, for a constitution for the province including an executive authority exercisable in that province by a Lieutenant-Governor, parliamentary institutions with legislative authority respecting (inter alia) the administration of justice, taxation, municipal institutions, property and civil rights virtually identical with the authority granted to the original provinces under section 92. For more than thirty years thereafter, the territory west of Manitoba, extending to the Rocky Mountains, now within the provinces of Alberta and Saskatchewan, was governed under statutes of the Parliament of Canada which provided for executive authority vested in a Lieutenant-Governor, a legislative assembly with large legislative powers, for taxation, for the administration of justice and for courts of judicature. In 1905, by other statutes of Canada, the provinces of Alberta and Saskatchewan were established with constitutions similar to that of Manitoba.
True, it is, that, by the British North America Act of 1871, it was recited that doubts had been expressed as to the authority of Parliament to enact the Manitoba Act; but by the Act of 1871 the Manitoba Act was declared to have been validly enacted and the power to erect provinces and provide constitutions for them was explicitly vested in Parliament together with unqualified authority to legislate for the peace, order and good government of the territories not included in any province.
It would, indeed, be singular if the enactments of a legislature, charged with such responsibilities, responsibilities of the very highest political nature, should be interpreted and applied in a narrow and technical spirit or in a spirit of jealous apprehension as to the possible consequences of a large and liberal interpretation of them.
The question whether the Bill falls within the ambit of the powers of Parliament under the authority to make laws for the peace, order and good government of Canada must be answered in the affirmative unless the subject-matter of the Bill is in whole or in part, in the words of section 91, a matter "coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces." The main contention against the validity of the Bill on this branch of the argument is founded on clause 14 of section 92, which is in these words:
92. In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say,—
* * *
(14) The administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts.
So far as concerns this contention, the subject-matter of this Bill in its substance is found in sections 2 and 3 which profess to abrogate the jurisdiction of His Majesty in respect of appeals from the courts of Canada and the statutory jurisdiction of the Judicial Committee to hear and report upon such appeals under the statutes of 1833 and 1844. I repeat, I am at the moment addressing my attention only to the prerogative appeal.
The members of His Majesty's Privy Council, as everybody knows, are nominated by the King on the advice of the Prime Minister of the United Kingdom (Anson, Vol. II, Part I, p. 153). The Judicial Committee is, as was observed in the judgment mentioned above (British Coal Corporation v. The King2, a statutory appellate Court established and exercising jurisdiction as a court of justice under statutes of the Parliament of the United Kingdom.
The Court (the Judicial Committee) exists and exercises its jurisdiction under authority derived from the Parliament of the United Kingdom and its members are Privy Councillors who are nominated by statute in virtue of holding, or having held, specified high judicial offices in England or Scotland or are appointed by Order in Council pursuant to statutory authority. The constitution and organization of the Court in every respect is exclusively subject to the Parliament of the United Kingdom.
The constitution of the Judicial Committee is not, I think, without importance in its bearing upon the point I am now to consider; whether, namely, the subject-matter of the Bill referred to us in whole or in part falls within the category of matters defined by clause 14 of section 92.
First of all, it is obvious that the Judicial Committee is not a provincial court within the sense of that clause, it being self evident that the phrase denotes courts which, as to their jurisdiction are primarily subjects of provincial legislation and whose process in civil matters, save in certain exceptional cases which will be adverted to, does not run beyond the limits of the province. No legislature in Canada has, of course, anything to say about the constitution of the Judicial Committee or about its organization. Provision for all such matters is, as I have said, made by the legislature of the United Kingdom and orders in council pursuant to authority derived therefrom.
The argument is, however, put in this way. Decisions of the provincial courts are subject to be reversed or varied, it is said, under prevailing law, by the decisions of the Judicial Committee and the orders of His Majesty in Council; and this appellate jurisdiction includes the subsidiary power to make such orders and give such directions as the appellate tribunal may consider just and convenient for the purpose of giving effect to such decisions: and the court appealed from may be required by its own process and its own officers to carry out such orders.
It is contended that legislation which abrogates this jurisdiction so to intervene in and ordain the course of proceedings in provincial courts is legislation in relation to the jurisdiction of such courts.
I cannot agree with this view for two reasons. First, while it would, perhaps, not be an abuse of language to say that this jurisdiction of His Majesty in Council, by which he is enabled, for the purpose of giving effect to adjudications in prerogative appeals, to make orders requiring the court appealed from to carry out such adjudications is a jurisdiction which affects the jurisdiction of the Court from which the appeal lies, it is, nevertheless, quite another thing to say that this jurisdiction or power of His Majesty's is a matter within the definition of clause 14 so that legislation to abrogate that jurisdiction is legislation "in relation to" provincial courts within the meaning of clause 14. I am unable to convince myself that such legislation would in its "pith and substance" be legislation "in relation to" the "constitution, maintenance and organization of provincial courts" or "procedure in those courts in civil matters." Its true subject matter would be the appellate jurisdiction of the Judicial Committee.
My second reason really involves a consideration of the alternative argument based upon clause 14. The general subject of clause 14 is "the administration of justice in the province." It is argued that the scope of these words must not be restricted by reason of the specific designation of provincial courts and matters connected therewith, as included in the general subject, and it is said interposition in proceedings in provincial courts in the manner just alluded to constitutes an intervention in the administration of justice and that the orders in council by which this is effected are truly acts done in "the administration of justice in the province"; and that legislation abrogating the jurisdiction from which they emanate is consequently legislation "in relation to" that subject.
Something must be said at this point as to the essence of the prerogative appeal which the Bill before us purports to abrogate. The judgment of the Judicial Committee in Nadan v. The King3 (as interpreted in British Coal Corporation v. The King)4 requires us to hold that any legislation intended to abrogate the prerogative appeal must, if it is to be effective, be "extra-territorial in its operation"; that the legislative powers vested in the Parliament of Canada under the enumerated clauses of section 91 did not, before the Statute of Westminster, enable that legislature to annul the prerogative right of the King in Council to grant leave to appeal because, however widely such powers are construed, they are confined to "action taken in Canada"; and it would, indeed, appear that the central governing act in the appeal to the Judicial Committee is the decision. If there is authority in the Court as an appellate court to pronounce an effective decision, it is because such is the law that governs, not the appellate tribunal alone, but the inhabitants of Canada and the courts in Canada which carry out the decision. To say that the authority to adjudicate exists without the authority to make the adjudication effective in Canada would seem to be a self-contradictory statement; and you cannot get rid of this authority unless you are endowed, it was held in Nadan v. The King5, with extra-territorial powers which the Parliament of Canada did not in 1926 possess.
To return to section 92(14). The legislative powers of the provinces are strictly confined in their ambit by the territorial limits of the provinces. The matters to which that authority extends are matters which are local in the provincial sense. This principle was stated in two passages in the judgment in the Local Option case6 delivered by Lord Watson speaking for a very powerful Board at pp. 359 and 365, respectively. I quote them:
* * * the concluding part of s. 91 enacts that
"any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces."
It was observed by this Board in Citizens' Insurance Co. of Canada v. Parsons7 that the paragraph just quoted "applies in its grammatical construction only to No. 16 of s. 92." The observation was not material to the question arising in that case, and it does not appear to their Lordships to be strictly accurate. It appears to them that the language of the exception in s. 91 was meant to include and correctly describes all the matters enumerated in the sixteen heads of s. 92, as being, from a provincial point of view, of a local or private nature.
* * *
It is not necessary for the purposes of the present appeal to determine whether provincial legislation for the suppression of the liquor traffic, confined to matters which are provincial or local within the meaning of Nos. 13 and 16, is authorized by the one or by the other of these heads. It cannot, in their Lordships' opinion, be logically held to fall within both of them. In s. 92, No. 16 appears to them to have the same office which the general enactment with respect to matters concerning the peace, order and good government of Canada, so far as supplementary of the enumerated subjects, fulfils in s. 91. It assigns to the provincial legislature all matters in a provincial sense local or private which have been omitted from the preceding enumeration, and, although its terms are wide enough to cover, they were obviously not meant to include, provincial legislation in relation to the classes of subjects already enumerated
The legislation of the provinces under all the heads of section 92 is, by law, confined to matters which are local "in the provincial sense." In the Royal Bank of Canada v. Rex8 a statute of Alberta was held, in conformity with this principle, to be invalid and beyond the powers of the legislature.
inasmuch as what was sought to be enacted was neither confined to property and civil rights within the province nor directed solely to matters of merely local or private nature within it.
The subject-matter in question was beyond the powers of the province as the Judicial Committee held, because the legislation dealt with an interest of some of the parties in a deposit in the Bank of Montreal carried on its books at Edmonton which was in the nature of an equitable debt having a constructive situs at the head office of the bank which was outside the province. The principle has been applied also in Provincial Treasurer v. Kerr9, in Bonanza Creek v. The King10 and in other cases; and, indeed, in all the clauses of section 92, with the exception of clause 3, the territorial restriction is expressed or implied.
Construing clause 14 in light of the general principle stated as above by the Judicial Committee in the Local Option case11, I am unable to accede to the proposition that the jurisdiction of the Judicial Committee and of His Majesty in Council in respect of prerogative appeals from a province belongs to the field described by the words "administration of justice in the province" as a local matter in the sense of that principle. Indeed, I think we are bound by the judgment of the Judicial Committee in Nadan v. The King12 as interpreted by the British Coal Corporation v. The King13, to hold that legislation intended to prevent the exercise of the prerogative in relation to the judgments of Canadian courts is not legislation in relation to a local matter in that sense.
An argument was based upon clause 13 of section 92 "property and civil rights." With great respect to those who take a different view, I am unable to agree that clause 13 is pertinent. The subject-matter of administration of justice including jurisdiction of provincial courts is specifically dealt with in clause 14 and, if the particular matter with which we are now concerned does not fall within the ambit of clause 14, then I think it must be taken to be excluded from the general clause 13 as well as the residuary clause, 16. That is a principle which has been acted upon more than once in the construction of the clauses of section 92 as well as those of section 91. In the case of section 92 it was applied in determining the scope and effect of clause 11, "the incorporation of companies with provincial objects." This clause was the subject of a great deal of controversy until its effect was finally settled by the judgment of the Privy Council in Bonanza Creek v. The King14; a controversy which would have been quite pointless if, for the purpose of ascertaining the powers of the provinces in relation to the incorporation of companies, you could properly resort to clause 13. The Dominion authority in respect of the incorporation of companies under its powers in relation to peace, order and good government rests upon the limitation imposed upon the provincial power by the language of section 11. If the provinces were entitled to invoke the general authority of clause 13 in order to fill up the gap created by the limiting words of clause 11, the reasoning upon which the Dominion authority rests under the residuary powers under section 91 would be deprived of its foundation; and, indeed, as Lord Haldane says in John Deere Plow Co. v. Wharton15 if that were a legitimate procedure "the limitation in clause 11 would be nugatory."
Nor is the contention advanced by calling in aid the residuary clause (No. 16). That clause, as the Judicial Committee says in the passages already quoted, serves the purpose of supplementing the preceding enumerated clauses and includes "matters of a merely local or private nature within the province" not included in the preceding clauses. These words, as the judgment declares, are "wide enough to cover" all matters embraced within the preceding clauses, all of which, it also declares, are correctly described by the words of section 91 as "matters of a local or private nature comprised in the enumeration of subjects by this Act assigned exclusively to the legislatures of the provinces." Whatever ancillary powers the provinces may possess in virtue of section 92 (16) they can only be ancillary to the local matters comprised in the preceding clauses as therein defined and they can only be exercised in relation to "matters of a merely local or private nature within the province."
As regards clause 1 of section 92, which is also relied upon, the exception "the office of Lieutenant-Governor" points to the subject-matter and the scope of the clause. The term "provincial constitution" is employed as the heading of Title V. That title deals with the Executive Government of the provinces, with constitution of their legislative institutions and very largely with appointments to Legislative Councils and elections to Legislative Assemblies. The heading of Title V may be contrasted with that of Title VI, "Distribution of Legislative Powers." There is nothing in the enactments of the earlier title supporting the contention that clause 1 of section 92 can be read as enlarging the authority of the legislature under the other clauses of that section, or as freeing the legislature from the restrictions imposed by those clauses.
I now come to section 101. That section has two branches, one which deals with a general court of appeal for Canada, while the other relates to the establishment of additional courts for the better administration of the laws of Canada. The phrase "laws of Canada" here embraces any law "in relation to some subject-matter, legislation in regard to which is within the legislative competence of the Dominion" (Consolidated Distilleries v. The King)16.
It may be added that it has been held to give authority to Parliament in relation to the jurisdiction of provincial courts; and to impose on such courts judicial duties in respect of matters within the exclusive competence of Parliament: insolvency (Cushing v. Dupuy)17; in election petitions (Valin v. Langlois)18. Furthermore, the general jurisdiction of Parliament in relation to peace, order and good government has been exercised in imposing duties on provincial courts in relation of appeals from the courts of territories not within the limits of the provinces. Examples are: the appeal to the Court of Queen's Bench for Manitoba from the court of the North-West Territories (Riel v. The Queen)19; and the appeal from the courts of the Yukon to the Supreme Court of British Columbia (McDonald v. Belcher)20.
As respects the general court of appeal, the authority is "notwithstanding anything in this Act, from time to time" to- make provision "for the constitution, maintenance, and organization of a general court of appeal for Canada." And the question for determination is whether this enactment imports an ambit of legislative authority that embraces the power to endow the court constituted under it with "ultimate and exclusive" jurisdiction in respect of appeals from provincial courts.
Prima facie, the authority is to make legislative provision for a court which shall have general authority as a court of appeal for Canada; and to provide for the constitution and organization of that court. This necessarily involves the power to subject every court of judicature or of public justice to the appellate jurisdiction of the court so to be constituted.
The section, until it is acted upon by Parliament, subtracts nothing from the legislative authority of the provinces. It subtracts nothing from any judicial authority exercisable in the Dominion. But when the Court is constituted and its jurisdiction and powers are defined by Dominion legislation, such legislation takes effect according to its scope and purport notwithstanding anything in the Confederation Act or anything done under that Act. Therefore, it is within the ambit of the legislative authority conferred by this section to define the cases in which, and the conditions under which, the appellate jurisdiction may be invoked, the powers of the court in respect of the judgments and orders it may pronounce, to provide for making such judgments and orders effective, and for that purpose to require the court appealed from to give effect to such judgments and orders according to their tenor.
In other words, it is competent to Parliament to give jurisdiction to entertain an appeal in any and every case in which it thinks fit to do so, and also to confer the correlative right of appeal in such cases and in any and every case to require the court appealed from to carry out any judgment pronounced upon the appeal. This, it appears to me, is involved, without qualification, in the very words of the section.
Are you then to imply a constitutional exception imperatively exempting from the operation of legislation under the section judgments or decisions from which, by the existing law, appeal may be taken or may have been taken to the Judicial Committee?
It is of the first importance, I think, to notice that in ascertaining what powers are derived from the section, you are to give effect to its language "notwithstanding anything in this Act."
I think, since the Statute of Westminster, I cannot, without disregarding the reports of the Imperial Conferences recited therein, imply such a qualification. On the contrary, the governing object of section 101 being to invest the Parliament of Canada with legislative authority to endow a court of appeal for Canada with general appellate jurisdiction over all courts in Canada, and all persons concerned in proceedings in those courts, and with power to give complete effect to the judgments of that court,— such being the general object of the enactment, all subsidiary powers must, especially in view of the phrase just mentioned, be implied to enable Parliament to legislate effectively for that object.
Three considerations seem to me to be decisive:
(a) Since this legislative authority may be executed in Canada "notwithstanding anything in this Act," you cannot imply any restriction of power because of anything in section 92. Assuming even that section 92 gives some authority to the legislatures in respect of appeals to the Privy Council, that cannot detract from the power of Parliament under section 101. Whatever is granted by the words of the section, read and applied as prima facie intended to endow Parliament with power to effect high political objects concerning the self government of the Dominion (section 3 of the B.N.A. Act) in the matter of judicature, is to be held and exercised as a plenary power in that behalf with all ancillary powers necessary to enable Parliament to attain its objects fully and completely. So read it imports authority to establish a court having supreme and final appellate jurisdiction in Canada;
(b) Since, in virtue of the words of section 101, Parliament may legislate for objects within the ambit of section 101 regardless of any powers the provinces may possess to affect appeals to the Judicial Committee, it follows that the general power of Parliament to make provision for the peace, order and good government of Canada in relation to such objects is in no way limited by the exception of "local matters" assigned exclusively by the introductory words of section 91 to the legislatures of the provinces; and, consequently, no existing judicial authority competent to affect the course of judicature in Canada can be an obstacle precluding the Parliament of Canada from making its legislation relating to these objects effective;
(c) Having regard to the reports of the Imperial Conferences recited in the Statute of Westminster, to the provisions of that statute, and to the terms of section 101, you cannot properly read anything in the Statute of Westminster or in the B.N.A. Act as precluding Parliament, for the purpose of effecting its objects within the ambit of that section from excluding from Canada the exercise of jurisdiction by a tribunal constituted, organized and exercising jurisdiction under the exclusive authority of another member of the British Commonwealth of Nations.
The exercise of such jurisdiction for Canada by a tribunal exclusively subject to the legislation of another member of the Commonwealth is not a subject which can properly be described (as subject matter of legislative authority) as a matter merely local or private within a province. And again, the power to make laws for the peace, order and good government of Canada in relation to matters within section 101 being without restriction, the power of Parliament in such matter is, as I have said more than once, paramount. In truth, the point seems to be governed by the decision in the Aeronautics Reference21 as well as by the decision in the Radio Reference22. The primacy of Parliament under section 101 is just as absolute as under the enumerated clauses of section 91.
As to appeals from the Supreme Court of Canada, or from any additional courts established under section 101. it ought, perhaps, to be noticed that since the provinces can have no jurisdiction respecting them, they obviously fall within the ambit of the general power in relation to peace, order and good government.
Second, I come to the appeal as of right, so called.
Before this topic is discussed, it is advisable, I think, to refer to the contention that His Majesty's prerogative in relation to appeals was merged in the statutory powers of the Judicial Committee under. the Judicial Committee Acts of 1833 and 1844. I should have thought it more accurate to say that this legislation affirmed and regulated the exercise of His Majesty's prerogative power in relation to appeals. The appeal is still an appeal to His Majesty in Council though in point of substance (British Coal Corporation's case23, the appellate jurisdiction is now exercised by the statutory court of the Judicial Committee, and I should have thought it resulted from the terms of section 92 of the British North America Act and the judgments in Nadan v. The King24 and in the British Coal Corporation v. The King23 that before the enactment of the Statute of Westminster neither the Parliament of Canada, nor the legislature of a province, could subtract from or add to His Majesty's prerogative as exercised by the Judicial Committee or, to put it another way, to the jurisdiction of the Judicial Committee.
We have to consider the legislation of Ontario and Quebec touching this subject, the appeal as of right, the orders in council affecting the other provinces, except British Columbia, and the rather special position of British Columbia.
As to Ontario and Quebec, the statutory provisions with which we are concerned were first enacted by the provinces of Upper and Lower Canada in professed exercise of authority conferred by the Constitutional Act of 1791; they were continued in force in the province of Canada by section 46 of the Act of Union of 1840 and are still in force under the authority of section 129 of the British North America Act.
To begin with Ontario and Quebec. The legislation in force was considered by the Judicial Committee in the year 1880 in Cushing v. Dupuy25. The appeal was from a judgment of the Court of Queen's Bench of the province of Quebec, reversing the judgment of a judge of the Superior Court in certain proceedings in insolvency instituted under an Act of the Parliament of Canada entitled An Act respecting Insolvency (38 Vict., c. 16). An application to the Court of Queen's Bench for leave to appeal to His Majesty in Council was refused on the ground that under the Insolvency Act its judgment was final. Article 1178 of the Code of Civil Procedure of 1867 in so far as relevant is in these words:
1178. An appeal lies to Her Majesty in the Privy Council from final judgments rendered in appeal or error by the Court of Queen's Bench:—
1. In all cases where the matter in dispute relates to any fee of office, duty, rents, revenue, or any sum of money payable to her Majesty;
2. In cases concerning titles to lands or tenements, annual rents and other matters by which the rights in future of parties may be affected;
3. In all other cases wherein the matter in dispute exceeds the sum or value of five hundred pounds sterling.
The corresponding Ontario enactment is to the same effect except as to the pecuniary limit and as to another point to which reference will be made.
The effect of the Insolvency Act in declaring the judgment of the Court of Queen's Bench to be final in insolvency proceedings was held to preclude any appeal under article 1178 if valid; and it was also held that legislation precluding such appeal could be validly enacted in respect of insolvency proceedings by the Parliament of Canada under the authority of section 91 (21) relating to Bankruptcy and Insolvency unless it infringed the Queen's prerogative.
It was held that such an enactment would not "infringe the prerogative" for the reason t