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SOME DATA RELATING TO THE APPEAL TO THE PRIVY
I confess that, while I felt honoured by the invitation from our worthy Vice-President, Mr. Justice Martin, to appear before you, I surmised then, and, after attempting the task, I am convinced of the truth of the saying of the writer of the Book of Ecclesiasticus "That the wisdom of the Scribe cometh of the opportunity of leisure.” It is one of the many inconveniences of a busy professional life that however great one's interest in subjects concerning one's own profession may be, the time necessary to manifest it in a practical way is not available.
In common with all members of the profession, I have followed with interest the recent discussions concerning the appeal to the Judicial Committee of the Privy Council—which were precipitated by or culminated in a speech made before your Association in 1920 by the Honourable W. E. Raney, Attorney-General of the great Province of Ontario—who, amongst other things, referred to the correspondence of the Honourable Edward Blake with Lord Carnarvon over the jurisdiction to be given to the Supreme Court of Canada, and stated that this correspondence of fifty years ago could not be repeated in the twentieth year of the twentieth century.
Mr. Raney also stated that Englishmen and Canadians agreed on that point. In short, he said, the old colonial bottles will no longer hold the new national wine-and he concluded that although the Judicial Committee had rendered great service to the old order, and will continue for many years and perhaps for generations to carry the white man's burden of the “lesser breeds without the law”--they should no longer hear Canadian cases.
These grave words coming from a gentleman who was at the time the King's adviser for the Province of Ontario drew my earnest attention, and I determined to try and secure a copy of this famous correspondence to which reference has often been made, but whose text, at least to my knowledge, has never been given to the general public.
Those documents, although confidentially printed in 1876 for the use of our Canadian Privy Council, are now old enough—they were written before I was born—to be used by the students of Canadian history; and with the leave of a Right Honourable member of the Privy Council, I will take the liberty of analysing them for
1 Address to Canadian Bar Association at its tenth Annual Meeting, August, 1925, by L. A. Cannon, K.C., Batonnier of the Quebec Bar.
benefit, and review the evolution of thought on the question amongst English and Canadian statesmen since 1823.
I. LORD BROUGHAM'S OPINION-1823.
Let me first give you the opinion of Lord Brougham, then Mr. Brougham, to be found in a note discussing the judgment in Curillier V. Aylwin:
“I am clearly of opinion that no such limitation is valid to bar an appeal to the King in Council. I should greatly doubt if any Colonial Act, though allowed by the Crown, if unconfirmed by Act of Parliament, has power to take from the subject this right. But a Colonial Act never allowed, can clearly have no effect. Now in cases where a limitation has been validly introduced by law, the Privy Council have been in the practice of allowing appeals almost as a matter of course. Such petitions are termed petitions of doleance, and, I believe, never refused, although the law may have excluded appeals under a certain amount or after a certain time."
THE BLAKE-CARNARVON CONTROVERSY, 1875-76.
Under the authority given by section 101 of the B. X. A. Act, the Supreme Court of Canada was established in 1875 by the Dominion Act, 38 Vic. ch. 11.
In October of that year, the Minister of Justice, the Honourable Edward Blake, was informed by the Premier, the Honourable A. MacKenzie, that the Colonial Secretary was about to submit to the Law Officers of the Crown the question of the constitutional right of Parliament to pass the 17th clause of the Act with a view to considering whether the Act should be disallowed. Blake was requested to report confidentially upon the subject to the Premier and he did so on the 6th of October.
Clause 47 reads as follows:
“The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland by which appeals or petitions to Her Majesty in Council may be ordered to be heard, saving any right which Iler Majesty may be graciously pleased to exercise by virtue of the Roval Prerogative."
? Stuart's Reports, p. 527.
Mr. Blake's Report to Mr. MacKenzie. Mr. Blake points out that for a great number of years the Provincial Legislatures of the Province of Upper and Lower Canada, before the Union, by 34 Geo. III. ch. 2 and 6, have, without remonstrance, exercised the power of determining that the judgments of the Provincial Courts shall be final in all those cases (comprising the large majority of the whole number of the cases tried) in which they thought it was to the public advantage that there should be no appeal beyond the Provincial Courts.
He quotes Cuvillier v. Aylwin, where the appellant, judgment having been obtained against him in the Court of Appeals for Lower Canada for a sum under £500 sterling presented a petition to King in Council for leave to appeal from the judgment, and argued that there was a prerogative right of the King in Council to hear and determine appeals from the Colonial Courts from which the King could not himself derogate; that there was nothing in the Constitutional Act of Lower Canada taking away from the subject this right of appeal; that although the words of the Provincial Statute, 34th Geo. III., were more extensive, yet there was an express provision that nothing therein contained should derogate from the rights of the Crown; that it would be beyond the power of the Provincial Legislature to take away the right to receive the appeal, and that such a construction would be inconsistent with the Constitutional Charter of Canada. The judgment of the Committee was delivered by the Master of the Rolls without hearing counsel for the other side. He pointed out that while the King had no power to deprive the subject of any of his rights, he, acting with the other branches of the Legislature, as one of the branches of the Legislature has the power of depriving any of his subjects in any of the countries under his dominion of any of their rights, and that the petition must therefore be dismissed. No case could be more clearly in point.
Mr. Blake then says: “Now it is not pretended that any of the powers of self-government exercised by the Province were under the B. N. A. Act, 1867, taken away from Canada or its Provinces to be revested in the Imperial Parliament; on the contrary, while all the powers formerly belonging to the Provinces are retained, certain important additional powers which I need not detail are expressly conferred on the Dominion. By the recital it is declared that the constitution given to Canada is similar in principle to that of the United Kingdom. By one of the clauses an exclusive power is given to each Provincial Legislature to make laws in relation to the “administration
32-C.B.R.- VOL. III.
of justice in the Province, including the constitution, maintenance and organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and including procedure in civil matters in those Courts."
By another clause of the B. N. A. Act the exclusive legislative authority of the Parliament of Canada is declared to extend to (amongst other matters) the Criminal Law, except the constitution of the Courts of Criminal Jurisdiction, but including the procedure in criminal matters."
“ By another clause the Parliament of Canada is authorized to make laws for the peace, order and good government of Canada; and by another clause (that under which the Supreme Court is established) it is provided that the Parliament of Canada may 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.”
"It is thus obvious that in carrying out the general principle recited in the preamble, the Imperial Parliament placed, or rather left, in the hands of the subjects of Her Majesty resident in Canada, control as well over the judicial enforcement of their laws as over the enactment and alteration of those laws."
“But if it was competent to Provincial authority, and is competent to Canada, to make the judgment of Local Courts final in the vast majority of cases, it must surely be, by the same process of reasoning, within its competence to make that judgment final in all cases. There can be no pretence for saying that while the prohibition of all appeals in criminal cases, and the limitation of appeals in civil cases, to questions involving over £500 sterling or $1,000 are lawful, the extension of that limitation to $20,000 or $100,000 or the application to all civil cases of the principle of prohibition appeals already applied to most civil and all criminal cases is unlawful. Unless therefore it should be intended to reverse the settled current of Local Legislation, to assume a power which has never before been used in like case, and to withdraw by the exercise of executive authority the rights and liberties of Canada and the Provinces, conferred by the Imperial Parliament and established by the usage of so many years, it would seem to be impossible to disallow the Act in question."
Lord Carnarvon's Letter Raising the Question of Loyalty, to the
Lord Carnarvon, Colonial Secretary, on the 9th March, 1876, wrote to the Governor-General, Lord Dufferin, that he was much gratified by the intimation received that Mr. Blake would visit England for
the purpose of conferring with him on the subject, and transmits for his information copies of a memorandum prepared in the Privy Council office by the direction of the Lord President and of a second one revised and settled by the Lord Chancellor.
The last part of his letter should be quoted in full:
“At the present moment and, indeed as I firmly believe, in any consideration of so serious and delicate a constitutional question, the more statesmanlike course is to inquire, not whether the Dominion Legislature has or has not had vested in it the power of terminating appeals to this country from the local Courts, nor whether the queen is able, or may be advised to give up, directly or indirectly, any part of her prerogative, but whether it is expedient for the Dominion Parliament, by its Legislation, to bring such questions to an issue.”
“The assurance of your advisers (and I may particularize the very loyal speeches recently made by Mr. MacKenzie) would preclude all doubt if it had been possible for me to entertain any, as to their determination to uphold the close union of Canada with Great Britain."
“But those who are less able to form a correct opinion on such subjects have, as you are aware, supposed, or at least stated, that the proposal to prohibit all appeals from the Supreme Court of the Dominion to this country is referable to a feeling of indifference as to the value of that union."
“While undoubtedly there are many who, though desiring to do full justice to the reasons which have led to the present enactment, sincerely believe that it will have the effect of severing one of the principal ties by which Canada is united to this country.”
I have the honour to be,
(Signed) CARNARVON.” The memorandum of the Privy Council says, inter alia:
“The right of appeal to Her Majesty in Council is no creation of Parliament. It is essentially a part of the prerogative, and has existed ever since England had any foreign plantations or dependencies. The appeal lies to Her Majesty in Council, to the Judicial C'ommittee of the Privy Council, and though the Privy Council Act of 1833 regulated and improved the structure of that Committee, it left the old prerogative character of the jurisdiction untouched and unimpaired and expressly provided that the constitution and duties of the Privy Council were to remain unaltered. The Colonial Legislatures and Judicatures have constantly recognized this jurisdiction of the Crown exercised in and by the Privy Council. Even in this Act it is acknow