April 8, 1938

LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Here is what I desire to submit. The power vested in the parliament of Canada by section 101, made exercisable as it is notwithstanding anything in that act, would authorize legislation giving the Supreme Court of Canada in its character of " a general court of appeal for Canada" not merely appellate civil and criminal jurisdiction as at present, but exclusive appellate civil and criminal jurisdiction in respect of all appeals, and rendering the judgment of this court final and conclusive. Such legislation would in my opinion involve no encroachment upon the powers of the provinces. The powers of the provinces in matters of administration of justice are in section 92 of the British North America Act, and they read as follows:

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.

There is no doubt that the giving or withholding of an appeal is a matter of procedure. The provinces have the right to provide for courts of appeal and appeals, but they are limited by section 92 to " in the province "; they cannot go outside, and that is the reason why they could not provide for an appeal to the Supreme Court of Canada. Their jurisdiction, their power of creating a court of appeal, is limited by the words " in the provinces." With this the dominion parliament would have no power to interfere. But the regulation of appeals in civil cases from provincial courts to an appellate court which is not provincial is a matter clearly extraneous to the power to provide for " the constitution, maintenance and organization of provincial courts," or to prescribe the " procedure in civil matters in those courts." It is only the parliament of Canada which can give or take away the right

Privy Council Appeals

of appeal to the Supreme Court of Canada. No provincial legislation can give it or deny it. This is abundantly established by the decisions which I have quoted.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

It is the essence of our confederation scheme.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

It is the essence; but I believe that by parity of reasoning no provincial legislature can regulate or prohibit appeals to his majesty in council. If they cannot prohibit appeals to the Supreme Court of Canada because it is outside the province, they surely cannot legislate with regard to the privy council.

It follows that if the regulation of appeals in civil matters from provincial courts to an appellate court which is not provincial is a matter which is outside of the scope of provincial legislative authority, the legislatures of Ontario and Quebec have no power to repeal or alter the statutory provisions respecting appeals as of right to his majesty in council, and less still have they power to repeal appeals under the prerogative.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Or under the orders in

council.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Or under the orders in council.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Because they are imperial orders in council.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Exactly. But if, as the judicial committee has said in the British Coal Corporation case, "such appeals seem to be essentially matters of Canadian concern, and the control and regulation of such appeals thus seem to be a prime element in Canadian sovereignty as appertaining to matters of justice," therefore as the powers distributed by the British North America Act between the dominion on the one side and the provinces on the other side "cover the whole area of self-government"- I am using the language of the privy council in the case of Attorney General of Ontario v. Attorney General of Canada, in 1912

"within the whole area of Canada," and "it would be subversive of the entire scheme and policy of the act to assume that any point of internal self-government was withheld from Canada," the power to regulate appeals to the king in council in civil matters, if it is not vested, as I think I have conclusively shown, in the provincial legislatures, must be vested in the dominion parliament, because we cover the whole area.

In my opinion this power is vested in the dominion government either in virtue of its residuary power under the opening words of section 91, "to make laws for the peace,

order and good government of Canada" or under section 101, to provide for "the constitution, maintenance and organization of a general court of appeal for Canada." In re County Courts of British Columbia, Mr. Justice Strong, speaking with the concurrence of the other judges of the supreme court, said:

The constitution, maintenance and organization of provincial courts plainly includes the power to define the jurisdiction of such courts territorially as well as in other respects.

If that is true of a provincial court, surely it is true of the power of the parliament of Canada to define territorially the powers of its courts. The power given to the parliament of Canada for the establishment of a final court of appeal seems plenary, complete and paramount. If legislation such as that now embodied in the Supreme Court Act authorizing or permitting appeals to the Supreme Court of Canada from provincial courts, be legislation relating to "the constitution, maintenance and organization of a general court of appeal for Canada," I can see no reason for thinking that legislation requiring all such appeals to come to the Supreme Court of Canada would not be equally legislation relating strictly to the matters covered by such words.

But I have a second argument. In the Nadan case the section of our code providing that there should be no appeal in criminal matters was declared ineffective because we did not possess the extraterritorial operation that we could give to our legislation. This has disappeared by the Westminster act, but it has not disappeared as far as the legislatures of the provinces are concerned. True, the Colonial Laws Validity Act was repealed for the legislation of the provinces as well as the legislation of this parliament-

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Quite.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

-but

under the extraterritorial jurisdiction-

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Except that we gave the provinces some extraterritorial jurisdiction.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Yes, but it is closely limited. They would not have the extraterritorial power which is necessary to enable them to prohibit appeals to the privy council.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

To repeal the provisions of an imperial statute.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

To repeal an imperial statute. They have no legislative capacity in that respect any more than they had before, and therefore if extraterritoriality of operation is essential to the legal efficacy

Privy Council Appeals

of any law designed to abrogate the right of his majesty in council to grant leave of appeal from any provincial court, then the subject matter of such law clearly falls outside of and transcends provincial authority; and if my reasoning is correct it has to go somewhere, and it has to fall within the legislative powers of the only Canadian legislative body competent to make a law having extraterritorial operation, and that is the parliament of Canada.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Right there I have some difficulty. In view of the orders in council that delegated to the courts of last resort in the provinces the power to grant appeals to the privy council, a question arises as to who has jurisdiction to repeal or rescind those orders in council.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Unfortunately-not unfortunately, because I believe it is better it should be so

nothing has ever happened which could give to the provinces the right to repeal.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I am clear the provinces have not the power. About that there is no doubt. I am speaking, however, of the question whether we have the power.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Does not my right hon. friend think that the Westminster act confers full authority?

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I have had some doubt about that. I apologize for interrupting the minister's argument.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

With regard to the bill presented by the hon. member for St. Lawrence-St. George, I quite realize that he would abolish appeals from the provincial courts as well as from the Supreme Court of Canada on matters within the competence of the parliament of Canada. Section 3 provides that no appeal shall lie or be brought from any judgment or order of any court in Canada, in relation to any matter within the competence of the parliament of Canada. I am afraid that a sort of chaotic condition would result if appeals could be instituted from some courts in Canada on some matters, which could not be taken from the supreme court on the same matters. In Australia for a time the commonwealth had done away with appeals in constitutional matters and the states had appealed to the privy council on the same matters which had been appealed to the supreme court of the commonwealth. The judgments which were rendered were different, and the Supreme Court of Australia refused to accept the views 51952-1384

of the privy council. Quite a confusion was created for some time, though finally appeals were done away with in the states on the same questions.

If on appeals argument should arise as to whether the matter which is concerned in the case is one which is within the legislative competence of the parliament of Canada or of the province, there would be discussions of all sorts; and with the view I have expressed, that this parliament has the paramount power to do away with all appeals and that we could do it, I would rather have us, if we did it at all, make it apply to all judgments from all the courts in Canada.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I should be very glad to see an amendment in committee to that effect, but I am now going so far as may be absolutely assured by present decisions.

Topic:   PRIVY COUNCIL APPEALS
Subtopic:   PROPOSED ABOLITION OF APPEALS TO HIS MAJESTY IN COUNCIL
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April 8, 1938