Privy Council Appeals-Mr. Cahan
tion of justice, but the instructions to Governor Carleton in 1775 authorized the constitution of criminal and civil courts, with an appeal in civil matters to the governor in council in certain cases.
The Constitutional Act of 1791 provided for the division of the old province of Quebec into two new provinces to be called Upper and Lower Canada, and provided that all existing laws, statutes and ordinances should remain in force until altered by the legislatures of the new provinces. The respective legislatures of the two new provinces each enacted statutes making provision for appeals to the governor in council, with a further provision for appeals to the king in council. Lower Canada legislated by 34 George III, chapter 6, section 23. Upper Canada legislated by 34 George III, chapter 2, section 33, which reads as follows:
And be it enacted that the governor, lieutenant governor, or person administering the government of this province, or the chief justice of the province, together with any two or more members of the executive council of the province, shall compose a court of appeal for hearing and determining all appeals from such judgments or sentences as may lawfully be brought before them.
One of the grievances most bitterly complained of in the province of Lower Canada was this constitution of the governor in council as a court of error and appeal, inasmuch as the governor in council exercised, in practice, political rather than judicial functions.
In 1841 the appeal In re Samuel Cambridge from Prince Edward Island was heard before the privy council. By the royal instructions to the governor of that island, then in force, he was directed to allow appeals to himself in council where the value appealed from amounted to £300 sterling and to the king in council where the value appealed from amounted to £500. Cambridge, to avoid a multiplicity of suits against himself, petitioned her majesty in council for leave to appeal from a judgment of the supreme court of the island to the amount of £135 which under the instructions to the governor was not appealable either to the governor in council or to her majesty in council. The judicial committee, Lord Brougham, a former lord chancellor, presiding, held that there being an intermediate court of appeal in the island, namely the governor in council, no appeal could be received by the privy council directly from the supreme court of the island. Appeals from the supreme court of the island under the instructions should be made to the governor in council of the island. The reference is Moore's Privy Council Cases, volume III, page 175. This case was decided in 1841, and thereafter Lord Brougham introduced to
parliament the bill which was enacted as the Judicial Committee Act, 1844, to overcome the difficulty which had arisen, by allowing in future appeals to the privy council from other courts in the colonies although they were not courts of error or courts of appeal.
When this statute was enacted in 1844 the royal instructions to every British governor, without exception, constituted him and his executive council a court of appeal exercising judicial functions as a court of error and appeal, and made further provision for an appeal from the governor in coimcil to the king in his privy council. The Judicial Committee Act of 1844 recites that:
*-the judicial committee, acting under the authority of the said acts-
The act of 1833 and an amending act.
-hath been found to answer well the purposes for which it was so established by parliament, but it is found necessary to improve its proceedings in some respects for the better despatch of business and expedient also to extend its jurisdiction and powers.
The first section of the act of 1844 enacts that it shall be competent to her majesty by general or special order in council to-
-provide for the admission of any appeal or appeals to Her Majesty in council from any judgments, sentences, decrees or orders of any court of justice within any British colony or possession abroad.
The jurisdiction of the king in council to review judgments of colonial courts, other than the final court of appeal where such court existed in the colonies, was never claimed as a matter of royal prerogative prior to the enactment of The Judicial Committee Act, 1844, which converted the pre-existing prerogative right into a statutory right.
The conditions which Lord Brougham desired and intended to remove are shown by the preamble to The Judicial Committee Act, 1844 which recites:
Whereas by the laws now in force in certain of Her Majesty's colonies and possessions abroad no appeals can be brought to Her Majesty in council for the reversal of the judgments, sentences, decrees and orders of any courts of justice wdthin such colonies save only of the courts of error or courts of appeal within the same, and it is expedient that Her Majesty in council should be authorized to provide for the admission of appeals from other courts of justice within such colonies or possessions-
Then it proceeds with the enactment of section 1:
1. It shall be competent to her majesty, by any order or orders to be from time to time for that purpose made with the advice of her privy council, to provide for the admission of any appeal or appeals to her majesty in council
Privy Council Appeals-Mr. Cahan
from the judgments, sentences, decrees or orders of any court of justice within any British oolony or possession abroad, although such court shall not be a court of error or a court of appeal within such colony or possession; and it shall also be competent to her majesty, by any such order or orders as aforesaid to make all such provisions as to her majesty in council shall seem meet for the instituting and prosecuting of any such appeals, and for carrying into effect any such decisions or sentences as her majesty in council shall pronounce thereon.
This statute of 1844, says the late Mr. E. R. Cameron in his valued work on The Canadian Constitution, never contemplated interfering with the power to regulate appeals from the courts of appeal in the provinces of Upper and Lower Canada, given them by the Constitutional Act of 1791. This undoubtedly was the view of the imperial authorities in passing the earlier orders in council which provided for the institution and prosecution of appeals in the Canadian provinces which had no courts of error and appeal other than the governor in council, and which orders are clearly supplementary to the provisions of The Judicial Committee Act, 1844.
The preamble to the orders in council, providing for appeals from New Brunswick in 1852 and Nova Scotia in 1863, recites the language of The Judicial Committee Act, 1844, and proceeds:
And whereas it is expedient that provision should be made in pursuance of the said cited enactments to enable parties to appeal in civil causes from the decision of the supreme court of the province to His Majesty in council, the same not being a court of error and appeal.
When these orders in council of 1852 and 1863 were passed by his majesty in council, each of the provinces of New Brunswick and Nova Scotia was "a British colony or possession" within the meaning and intent of The Judicial Committee Act, 1844; but it may be doubted, I think, whether a province of the Dominion of Canada may now be properly so described. It is clear that in respect of any future enactment of the parliament of the United Kingdom and Northern Ireland it may not be so described, because section 11 of the Statute of Westminster, 1931, provides:
Notwithstanding anything in The Interpretation Act, 1889, the expression "colony" shall not, in any act of the parliament of the United Kingdom passed after the commencement of this act, include a dominion or _ any province or state forming part of a dominion.
In 1849, by 12 Victoria, chapter 37, in Lower Canada, and by 12 Victoria, chapter 63, in Upper Canada, the governor in council as a court of error and appeal was abolished, but provision was made for appeals to the king
in his privy council. Subsequently the thirty, fourth resolution adopted at the Quebec conference in October, 1864, provided that the general parliament should have power to make laws for-
The establishment of a general court of appeal for the federated provinces.
Section 101 of The British North America Act, 1867, subsequently enacted:
101. 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.
During the parliamentary session of 1875, which was during the period when this country was administered by the government of Mr. Mackenzie, a bill was introduced by Mr. Fournier, then minister of justice in the Liberal administration of that day, to establish the Supreme Court of Canada. The political records of that time disclose that Edward Blake had a large part in drafting the bill, and that the bill, as originally drawn, contained a clause providing that judgments of the supreme court should be final, thus precluding appeals to the privy council, but that the government of the United Kingdom then intimated to the government of Canada that the proposed act would not receive the assent of the crown unless that section of the bill was amended so as to preserve the prerogative right of appeal. Professor Kennedy, of the university of Toronto, in his work, The Constitution of Canada, at page 341, relates:
When the parliament of Canada in 1875 proceeded to constitute a supreme court for Canada, the bill, as introduced, provided for the cessation of all appeals to the privy council, but the colonial office at London notified the Liberal government of that day that unless this provision was eliminated the whole bill would be disallowed by the government at Westminster.
In May's Constitutional History (1912), volume III, he says that when in 1875 the Liberal government of Canada proposed to abolish appeals to the privy council, the judicial committee prepared a memorandum in which they said:
To abolish this controlling power and abandon each colony and dependency to a separate court of appeal of its own would obviously be to destroy one of the most important ties connecting all parts of the empire in common obedience to the courts of law, and to renounce the last and most essential mode of exercising the authority of the crown over its possessions abroad.
It is to be noted that Canada was then regarded as a colony, dependency or possession of the crown, over which the government of