Mr. Browne (St. John's West):

Yes, I appreciate the difference between the House of Lords and the privy council; but taking the two things together, the statement by the chief justice which has been quoted and the manner in which this question has been dealt with in the Storgoff case, is it beyond the realm of imagination that in future the judgments of the privy council will be followed less than they have been in the past?

During the course of this debate we have heard remarks from several hon. gentlemen on the other side of the house which would indicate that if they had any say in what should be done by the supreme court, that court should not feel itself bound by any decisions given by the privy council in the past. The hon. member for Montmagny-L'lslet asked whether the supreme court should be bound by decisions concerning

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civil law. The implication of his remarks, as I gathered it, was that he did not think it should. Then we had the hon. and humorous gentleman from Temiscouata giving us the illustration of Gulliver being bound by the Lilliputians; and I suppose we were the Lilliputians binding the supreme court.

Mr. Poulioi:

Not at all, if the hon. member will excuse me. The Lilliputians were the judgments of the privy council binding the supreme court judges.

Mr. Browne (Si. John's West):

I think the hon. gentleman really meant that we were the Lilliputians binding the supreme court to follow the decisions of the privy council. Is it not a fact, Mr. Chairman, that the hon. member was ridiculing the idea that the supreme court should be bound by any decisions which had been given by the privy council?

Mr. Poulioi:

Surely.

Mr. Browne (Si. John's Wesi):

I am glad to have the hon. gentleman's admission; and I wonder if that represents the opinion of other hon. members opposite. Even the hon. gentleman who I understand has proposed an amendment has not answered that.

We feel, Mr. Chairman, that it is no reflection upon either the integrity or the ability of the members of the supreme court to have this provision inserted in the act, since the right hon. Prime Minister has said that he entirely agrees with the resolution put forward by the bar association. I know he would not wish to cast any reflection or to even suggest that any reflection might be cast upon those gentlemen who will be required to interpret the laws of this country; but if it was no reflection upon the judges of the courts of British Columbia to have a provision inserted in the laws of that province that they should be bound by the law as it was prior to the date mentioned by the mover of this amendment, then I do not see why the members of the supreme court should feel injured or hurt in any way if a similar provision is inserted in the bill now before the committee.

Before I sit down I should like to say that the prestige of the right hon. gentleman whom I have been criticizing is extremely great. His reputation as a lawyer is well known. He ranks with the foremost in the legal profession throughout Canada. He has held the highest position in the gift of that profession, president of the bar association. Because he held that high position I suggest that it should be he who would give us an example of the respect that should be shown

(Mr. Browne (St. John's West).]

to so great and illustrious a body as the bar association, by adopting their recommendations in this respect.

Mr. Garson:

Mr. Chairman, this subject is getting pretty threadbare, but in view of the numerous references-not all of them completely accurate

that have been made to the resolution of the Canadian Bar Association, I think it might not be amiss to read the exact text of that resolution, in order that it might speak for itself. I read the relevant parts:

Be it resolved that the Canadian Bar Association, without expressing any view as to the wisdom or otherwise of the proposed abolition, is of the opinion . . .

(ii) If, as and when the appeal should be abolished, it is the opinion of this association, as at present advised . . .

Then I go down to the part dealing with this rule of stare decisis:

(g) that the rule of stare decisis ought to continue to be applied with respect to past decisions of the court, as well as with respect to past decisions of the judicial committee.

There is not a syllable in any part of that resolution which recommends that parliament should pass a law instructing the Supreme Court of Canada to apply the rule of stare decisis.

This is the text with which the right hon. Prime Minister is in agreement, and with which I think we are all in agreement. But using this text as a basis, and not making too accurate reference to it, our hon. friends of the opposition come along and say this is a foundation for asking that an amendment be passed by which this body will instruct the Supreme Court of Canada to apply the rule of stare decisis. In doing this I think they have been making quite improper references to and quite an improper use of the resolution of the bar association.

Before I take my seat, I should like to deal with one other quite fallacious analogy which has been drawn in connection with this matter and to which reference has been made by almost every opposition speaker participating in this debate. It has been suggested by them that because the statutes of Manitoba and British Columbia contain a provision making a whole body of law available for the use of the citizens of that province as of a certain date, the same procedure is being and should be followed in the amendment now before us. In the case of Manitoba, the date set was the date when we entered confederation. At that time, we were a very small community and instead of going through the long and stupid process of gradually building up a body of law of

our own, we very intelligently availed ourselves of the whole body of English law as it stood on July 15, 1870.

When a reference is put in a provincial statute or even in a dominion statute to the appropriation of a body of laws for the purpose of some new province which is created, there is no analogy, Mr. Chairman, between that act and what is proposed here. It is not right to say that whenever provinces or the dominion have established a court, a provision is enacted defining the laws that are to be applied. True there are such declaratory provisions in the statutes of British Columbia and in the statutes of Manitoba, but if my hon. friend will prosecute his research in this matter a little further, he will see that they have their counterparts in a statute of the imperial parliament, a constitutional enactment which created that province and provided a body of laws with which it could carry on. The hon. member need not confine himself to British Columbia. The same thing can be seen in the terms of union with Newfoundland, and in the Saskatchewan and Alberta acts. These acts all contain such provisions.

Such a constitutional provision is one which this parliament or the provincial legislature, in themselves, have not the jurisdiction to enact, even though the provisions may be repeated in their own statutes. As I have said, it is true that such provisions can be found in provincial and federal statutes, but it is the British North America Act itself or some amendment of the British North America Act which introduces effectively a body of law into the new province. To say that because that has been done with regard to the various provinces that have entered into confederation is something that justifies the amendment moved by the hon. member for Kamloops (Mr. Fulton), and that there is some proper analogy between the two cases, is in my view wholly incorrect.

Mr. Carroll:

May I make one observation? A great deal has been said about the resolution that was passed by the bar association at its last annual meeting. I want to say that, so far as section (g) is concerned, in which it says the rule of stare decisis ought to continue to be applied with respect to past decisions of the Supreme Court of Canada, a great deal of effrontery was shown by the committee of that organization in passing this resolution. It may not have been with the intention of throwing any doubt on the integrity of the Supreme Court of Canada, but I say I believe the judges of the Supreme Court of Canada know as much as the bar society of this country about their rights in keeping the theory of stare decisis intact.

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To place this amendment on the statute books of this country might, in my opinion, interfere somewhat with the rule itself. There are two ways of getting clear of stare decisis at any time in the laws of any country. One way is by overruling the laws in existence, and that has been done innumerable times not only by the House of Lords but by the privy council of the United Kingdom. Suppose, for example, the principles of law as enunciated by the House of Lords and the privy council many years ago were changed by the very courts who followed this rule of stare decisis. Suppose, for example, that three days or ten days after this act becomes effective, the privy council should overrule some of the judgments it has made with regard to the commonwealth. Would we be in a position to change our minds if this amendment became effective? I think not.

There is another method of changing the rule of stare decisis which has been followed in this country for years. The common law of England was brought over to this country and it was stare decisis; but the legislatures of this country, especially the three original provinces, followed the method of changing the rule of stare decisis by enacting certain pieces of statute law. The rule of stare decisis is not such a sacred thing that the privy council, the House of Lords or our own Supreme Court of Canada can never overrule a decision.

The Deputy Chairman:

Is the house ready for the question?

It is eleven o'clock.

The Deputy Chairman:

I shall have to have the unanimous consent of the house before I put the question. Is the house ready for the question?

It is eleven o'clock.

Mr. St. Laurent:

If there is any objection from any hon. member, I think the chairman should recognize that it is eleven o'clock.

Mr. Knowles:

That would be the rule of

stare decisis.

Mr. St. Laurent:

Yes; that would be the rule and I think it should be followed whenever any hon. member objects to consent being given.

Progress reported.

Mr. Fournier (Hull):

Tomorrow is private members' day.

It being five minutes after eleven o'clock, the house adjourned, without question put, pursuant to standing order.

Wednesday, Oclober 5, 1949