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TMI Blog1935 (6) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... eo. V,c. 53 (an Act to amend the Criminal Code) which was in the following terms: Sub-section 4 of Section 10 of the said Act (the Criminal Code) is repealed and is hereby re-enacted as follows: (4) Notwithstanding any royal prerogative or anything contained in the Interpretation Act or in the Supreme Court Act, no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. 3. It is clear that if this enactment is valid, the petition is barred. It is, however, contended on behalf of the petitioners that the section is invalid. A section in identical terms had been held invalid by the Judicial Committee in Nadan v. The King (1926) A C 482 : 95 L J P C 114 : 42 T L R 356 : 134 L T 706 and that decision was founded upon in these proceedings by the petitioners, who contended on various grounds that the enactment of the Statute of Westminster, 1931, had not affected the position which the decision just cited had established. On behalf of the respondent it was argued that the Statute of Westminster, 1931 (which will be referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Judicial Committee Act, 1844, must next be mentioned. Apart from certain changes in procedure, the main effect of that Act was to authorise Her Majesty to provide, by Order or Orders in Council made for that purpose, for the admission of any appeals to Her Majesty in Council from judgments or orders of any Court of Justice within any British Colony or possession abroad even though such Court might not be a Court of Error: this followed a recital that by the laws in force in certain of Her Majesty's Colonies no appeal could be brought save only from Courts of Error or of Appeal and that it was expedient to provide that Her Majesty in Council should be authorised to admit such appeals. In effect therefore Her Majesty in. Council was thus empowered to override a Colonial law limiting or excluding appeals to Her Majesty in Council from any Colonial Court. 8. In this way the functions of the Judicial Committee as a Court of Law were established. The practice had grown up that the colonies under the authority either of Orders in Council or of Acts of Parliament should provide for appeals as of right from their Courts to the King in Council and should fix the conditions on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishment in Canada of one Dominion and for the Legislative Authority in the Dominion and to declare the nature of the executive government therein. It was declared that the executive government of and over Canada should be vested in the Queen, and that there should be a Council (the Queen's Privy Council in Canada) to aid and advise in the government of Canada. The legislative power was vested in the Parliament for Canada, which by Section 91 was to make laws for the Peace, Order and Good Government of Canada, in relation to all matters not coming within the classes of subjects assigned by Section 92 exclusively to the Legislatures of the Provinces: without restricting the generality of that provision, certain matters were specifically enumerated as falling within the exclusive legislative authority of the Parliament of Canada: of these it is sufficient here to mention No. 27, which was. The Criminal Law, except the constitution of Courts of Criminal Jurisdiction, but including the procedure in criminal matters. 11. On the other hand, among the matters assigned by Section 92 exclusively to the provincial authority there fell No. 14: The Administration of Justice in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at p. 349 : 93 L J P C 137 : (1924) W C I Rep 97 : 130 L T 738 : 68 S.J. 383 : 40 T L R 273 : 18 Ll. L Rep 53, the Judicial Committee said that their order involved no decision as to the power of the Parliament of Canada to enact Section 1025 of the Criminal Code. 18. But in 1926 in the case of Nadan v. The King (1926) A C 482 : 95 L J P C 114 : 42 T L R 356 : 134 L T 706, (supra), a decision was for the first time given on the question whether the section was valid. It was held that the section was ultra vires and invalid. It is essential ], however, to determine the ratio decidendi on which this judgment was based. The ratio decidendi is, in their Lordships' opinion, to be found in a comparatively short passage which follows a citation of the Privy Council Acts of 1833 and 1844, and which is of so vital an import that it must be here quoted in full: Under what authority, then, can a right so established and confirmed be abrogated by the Parliament of Canada? The British North America Act, by Section 91, empowered the Dominion Parliament to make laws for the peace, order and good government of Canada in relation to matters not coming within the classes of subjects by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the judgment was based on two grounds only: (1) that Section 1025 was repugnant to the Privy Council Acts of 1833 and 1844 and was therefore void under the Colonial Laws Validity Act, 1865; (2) that it could only be effective if construed as having an extra-territorial operation, whereas according to the law as it was in 1926 a Dominion Statute could not have extraterritorial operation. These two difficulties as the law then stood could only be overcome by an Imperial Statute: the Australian and South African Acts were cited as illustrations of Imperial Statutes containing clauses apt to define or limit this prerogative. Such, their Lordships think, is the meaning of the decision in Nadan's case (1): they do not find in it any clear or precise determination of what, if these two fundamental difficulties had been removed, would have been held to have been the true effect of the Act, nor can their Lordships say how, apart from these objections, the Judicial Committee would have decided the issue whether or not the Act had given the Canadian Legislature power to enact Section 1025. 21. Their Lordships have now to decide that very same question and to decide it, as they concei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the British North America Act. Now there can be no doubt that under this organic instrument the powers distributed between the Dominion on the one hand and the Provinces on the other hand cover the whole area of self-government within the whole area. 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. 23. The same principle was recognised in the following language used in Hodge v. R. (1884) 9 App. Cas. 117 : 53 L J P C 1 : 50 L T 301 in respect of powers of Provincial Legislatures: When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in Section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by Section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by necessary intendment. In connection with Dominion or Colonial matters that principle involves that if the limitation of the prerogative is by a Dominion or Colonial Act, not only must that Act itself deal with the prerogative either by express terms, or by necessary intendment, but it must be the Act of a Dominion, or Colonial legislature which has been endowed with the requisite power by an Imperial Act likewise giving the power either by express terms or by necessary intendment. In the matter now in question it is beyond question that Section 17 of the Canadian Act is expressed in precise terms. The next question is whether Section 91 of the Act invests the Dominion Parliament in cases within its jurisdiction, with the power to regulate or prohibit the appeal to the King in Council. Their Lordships are of opinion, that the Act does invest the Dominion Parliament with these powers. It does not indeed do so by express terms, but it does so by necessary intendment. Section 91 of the Act, read along with the rest of the Act, is, according to its true construction in their Lordships' opinion, apart from the limitations already referred to, intended to make and is apt to make t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled the prerogative appeal, that is, the appeal by special leave given in the Privy Council in London, matters of appeal from Canadian Courts are within the legislative control of Canada, that is of the Dominion or the Provinces as the case may be. Even conditions of the appeal as of right to the Privy Council, have been dealt with by the Parliaments of Quebec and Ontario, acting under the powers vested in them under the Constitutional Act, 1791. 27. It may now be considered whether there is since the Statute any sufficient reason why this matter of the special or prerogative appeal to the King in Council should be treated, as according to the contentions on behalf of the petitioners, it should be treated, as being something quite special and as being a matter standing, as it were on a pedestal by itself. Ought it not to be treated as simply one element in the general system of appeals in the Dominion? The appeal, if special leave is granted, is from the decision of a Canadian Court, and is to secure a reversal or alteration of an order of a Canadian Court: if it is successful, its effect will be that the order of the Canadian Court will be reformed accordingly. Rights in Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, but on the view that the relevant enactment of that legislature was not sufficiently express in its terms: after 1867 the same ground for denying the validity of the enactment there in question was taken in Cashing v. Dupuy (1880) 5 App. Cas. 409 : 49 L J P C 63 : 42 L T 445 (supra) as already explained. 29. It was further contended on behalf of the petitioners that if the Imperial Parliament desired to regulate in a constitutional enactment the prerogative right of petitioning for leave to appeal to the King in Council an entirely different method of dealing with the problem was adopted, as was done in Section 74 of the Commonwealth of Australia Act, 1900, and in the South African Act. It is difficult to see how light can be thrown on the construction of the Act of 1867 by comparing an entirely different Act of 1900. But in any case the contrary argument may be drawn from the Commonwealth Act: the truer view may well be that the express limitation inserted in the Act of 1900 was so inserted because the general powers conferred on the Commonwealth by that Act would have included the abrogation of the prerogative appeal if the specific limitation had not been expressed. But ..... X X X X Extracts X X X X X X X X Extracts X X X X
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