1935 (6) TMI 19 - HC - Indian Laws

Summary

Issues Involved:
1. Preliminary Objection Based on Section 17 of the Canadian Statute
2. Validity of Section 17 of the Canadian Statute
3. Legislative Competence of the Canadian Parliament
4. Prerogative Right of Appeal to the King in Council
5. Impact of the Statute of Westminster, 1931
6. Constitutional Interpretation of the British North America Act, 1867

Issue-wise Detailed Analysis:

1. Preliminary Objection Based on Section 17 of the Canadian Statute:
The petitioners sought special leave to appeal from a judgment of the Court of King's Bench, Quebec. The preliminary objection raised was that the petition was incompetent due to Section 17 of the Canadian Statute 23 and 24 Geo. V, c. 53, which states, "no appeal shall be brought in any criminal case from any judgment or order of any Court in Canada to any Court of Appeal or authority in which in the United Kingdom appeals or petitions to His Majesty may be heard." If valid, this enactment barred the petition.

2. Validity of Section 17 of the Canadian Statute:
The petitioners argued that Section 17 was invalid, citing the precedent in Nadan v. The King (1926) A.C. 482, where a similar provision was held invalid. The respondent countered that the Statute of Westminster, 1931, removed legislative fetters, enabling Canada to enact such provisions. The Judicial Committee's position was that the Statute of Westminster had indeed removed previous limitations, thus empowering the Canadian Parliament to enact Section 17.

3. Legislative Competence of the Canadian Parliament:
The legislative competence of the Canadian Parliament was discussed in the context of the British North America Act, 1867. Section 91 of the Act empowered the Parliament to make laws for the "Peace, Order and Good Government of Canada," including "The Criminal Law, except the constitution of Courts of Criminal Jurisdiction, but including the procedure in criminal matters." The judgment emphasized that the Act intended to make the Dominion Legislature supreme within its jurisdiction, endowing it with authority akin to the Imperial Parliament.

4. Prerogative Right of Appeal to the King in Council:
The prerogative right of appeal to the King in Council was historically a royal prerogative, but it was argued that this prerogative could be regulated by the Canadian Parliament. The judgment noted that the appeal to the King in Council was essentially a matter of Canadian concern, affecting Canadian law and rights. The Statute of Westminster removed previous restrictions, allowing the Canadian Parliament to regulate or prohibit such appeals.

5. Impact of the Statute of Westminster, 1931:
The Statute of Westminster, 1931, was pivotal in removing the two difficulties that were decisive in Nadan's case. Section 2 of the Statute declared that the Colonial Laws Validity Act, 1865, would not apply to laws made by the Parliament of a Dominion, and Section 3 allowed Dominion laws to have extra-territorial operation. These provisions empowered the Canadian Parliament to enact laws affecting appeals to the King in Council.

6. Constitutional Interpretation of the British North America Act, 1867:
The judgment emphasized a broad and liberal interpretation of the British North America Act, 1867, to ensure the widest possible amplitude of its powers. The Act was seen as an organic instrument intended to cover the entire area of self-government within Canada. The principle established was that the King's prerogative could only be restricted by express words or necessary intendment, and Section 91 of the Act, read with the Statute of Westminster, endowed the Canadian Parliament with the power to regulate appeals to the King in Council.

Conclusion:
The petition was dismissed on the ground that it was barred by Section 17 of the amended Criminal Code. The judgment concluded that the Canadian Parliament had the legislative competence to enact Section 17, and the Statute of Westminster had removed previous limitations, thus validating the provision. The Judicial Committee advised His Majesty to dismiss the petition without discussing its merits.