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’,

• Judge: Kerwin J,Davis J,Hudson J,Rinfret J,Crocket J
• Docket Number: Case No. 14
• Date: 19 January 1940
• Court: Supreme Court (Canada)

Canada, Supreme Court.

(Sir Lyman P. Duff, C.J.C., Rinfret, Crocket, Davis, Kerwin, Hudson, JJ.)

Case No. 14

Reference re Privy Council Appeals.

British Dominions — Dominion Status — Canada — Legislative Competence of — Canadian Dominion Parliament — Power to Abolish Prerogative Appeals and Appeals by Right of Grant — British North America Act, 1867 — Colonial Laws Validity Act, 1865 — Statute of Westminster — Right of Appeal to His Majesty in Council.

The Facts.—The Governor-General of Canada in Council submitted to the Supreme Court of Canada for its opinion the question whether the provisions of Bill No. 9, entitled “An Act to amend the Supreme Court Act”, introduced and read a first time in the Dominion Parliament in 1939, were intra vires in whole or in part.

Bill No. 9 proposed, first, to give the Supreme Court of Canada exclusive, ultimate, appellate, civil and criminal jurisdiction within and for Canada; secondly, to abolish appeals to the Privy Council; and, thirdly, to repeal the Judicial Committee Act of 1833 and the Judicial Committee Act of 1844 of the statutes of the United Kingdom of Great Britain and Ireland, and all orders, rules or regulations made thereunder in so far as they affected Canada.

The Bill under consideration purported to make the Supreme Court of Canada the exclusive, final tribunal in all Canadian cases and to abolish appeals which hitherto could be brought from the provincial Courts to the Judicial Committee of the Privy Council in all except criminal cases. There were two classes of such appeals. First, they included the so-called “Prerogative Appeals” by which the Judicial Committee could grant leave to any litigant to appeal thereto from any decision of any Court, either Dominion or provincial. Secondly, they consisted of the appeals by grant of right, the so-called “Appeals as of Right”. Provision had been made for this second class of appeals in the Provinces of Ontario and Quebec by means of legislation purporting to authorize appeals to the Judicial Committee subject to defined conditions. In the other Provinces of Canada, similar provisions had been laid down by Orders in Council. The Bill under consideration purported to abolish appeals of both classes. The validity of the Bill was supported by the Dominion and the Provinces of Manitoba and Saskatchewan. The validity was contested by all other Provinces of Canada with the exception of Quebec and Prince Edward Island which did not take any part in the...