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The Canadian Constitution is not just made up of acts
and statutes: it is also shaped by the decisions of courts which
interpret those documents. This page discusses the role and the
history of the British Judicial Committee of the Privy Council (JCPC)
in Canadian law and on the Canadian Constitution.
Description and Role in Canadian Law
History in Canadian Law
Key Judgments
Criticisms
Bibliography
Related Topics:
Common Law and Civil Law
Representative Government
Responsible Government
The Written and Unwritten Constitution
Canada's Constitutional
History
Description and Role in Canadian
Law
The Judicial Committee of the Privy Council (JCPC) is a board of
the British Privy Council made up of prominent jurists in Britain.
It had jurisdiction over all colonial courts, including the province
of Canada and the Dominion of Canada until 1949. Thus, the Supreme
Court of Canada (created in 1875) was not in fact the highest
court.
History in Canadian Law
When the Supreme Court of Canada was established in 1875, Justice
Minister Edward
Blake tried to abolish appeals to the JCPC. This was resisted
by the Lord
Chancellor, Lord Cairns, and ultimately the effort failed on
the grounds that the clause abolishing appeals was inoperative.
Canada was, however, allowed to decide what kinds of cases could
be appealed. It banned criminal appeals to the JCPC in 1888.
In 1926 criminal appeals were again allowed as the JCPC ruled that
the Canadian law which prevented those appeals conflicted with the
JCPC's jurisdiction in Canada. This was again reversed in 1933 after
the Statute
of Westminster gave Canada equality with Britain.
In 1947 the JCPC ruled that the Parliament of Canada could abolish
civil appeals to the JCPC. This was done in 1949, at which time
the Supreme Court of Canada became the last court of appeal for
all cases originating in Canada.
Key Judgments
The JCPC made 173 major judgments interpreting the British
North America Act, 1867 (now renamed the Constitution
Act, 1867). The decisions of the first 50 years tended to weaken
the central powers of the federal government and strengthen provincial
power. This was especially true for the federal power to regulate
trade and commerce and in the residual powers of Section 91 to legislate
for the "peace, order and good government of Canada."
Some important cases are listed below:
Maher v. Town Council of Portland (1875)
The JCPC held that although denominational schools in New Brunswick
had been publicly supported in the past, there was no law guaranteeing
this. Therefore, the government of New Brunswick could end this
funding.
Read the entry "New Brunswick School Question" in the
Canadian
Encyclopedia Online for more information.
The Guibord Affair (1875)
Joseph Guibord, a member of the Institut
canadien in Montreal, died and was refused burial on church
(consecrated) ground by the Catholic Bishop of Montreal, who was
trying to suppress the Institut. The case went to the JCPC, which
ruled that the Catholic church would have to bury him and pay the
expenses.
After an ugly street scene in which one attempt to bury him was
prevented by protesters, he was eventually buried at the Côte
des Neiges cemetery. His grave was filled with cement and scrap
iron to prevent its disinterment. The Bishop, however, de-consecrated
the grave when the ceremony was finished.
Visit
the Canada's Digital Collections Guibord Affair site for more information.
McLaren v. Caldwell (1883)
Peter McLaren improved a river near Ottawa, called the Mississippi,
for logging and attempted to prevent another mill owner, Boyd Caldwell,
from moving logs without paying. The JCPC ruled in Caldwell's favour.
The Ontario government passed the Rivers and Streams Act
in 1881 before this judgment, which caused friction with the federal
government. The Act was disallowed by the federal government, and
disallowed again in 1882 and 1883, before it was finally passed
in 1884. This increased tensions between the Ontario and federal
governments.
The Ontario Boundary Case
Ontario argued that its boundary should be west of Lake Superior
and on the Lake of the Woods. The federal government disagreed and
in 1878 a commission was held to decide the issue. It gave Ontario
nearly all it wanted.
Later that year, however, Macdonald
returned to power and the passed legislation that moved Manitoba's
eastern border to meet Ontario's western border. This drew Manitoba
into the conflict, and by 1883 both Ontario and Manitoba had constables
in Rat Portage (Kenora). The matter had to be referred to the JCPC,
which ruled in Ontario's favour in 1884.
Citizen's Insurance Co. v. Parsons (1880)
In this case, the JCPC placed strong restrictions on the federal
government's powers over trade and commerce.
Hodge v. the Queen (1883)
Archibald Hodge, a tavern owner, broke Ontario law by allowing a
billiard game after the tavern had closed for drinking. He challenged
the right of the Ontario government to pass laws on the matter.
Lord Watson of the JCPC stated that "the Dominion Parliament
has no authority to encroach upon any class of subjects which is
exclusively assigned to provincial legislatures by section 92 [of
the British North America Act, 1867]…."
The "Persons" Case (1928)
In the 1920s, five women demanded the right to hold a seat in the
Senate. The
British North America Act, 1867 stated that only "qualified
persons" could hold office, which had previously been interpreted
to mean only men. In 1928, the Supreme Court ruled that women were
not persons, but this was overturned by the JCPC. The women involved
were Emily Murphy, Henrietta Muir Edwards, Nellie McClung, Louise
McKinney, and Irene Parlby.
Visit the National Archives of Canada site to learn more.
The "New Deal" Legislation (1935)
During the depths of the Great
Depression, Prime Minister R.B.
Bennett passed legislation to provide unemployment insurance
and other relief measures for the poor. This was upheld by the Supreme
Court of Canada, but was then referred to the JCPC. The JCPC rejected
the legislation on the grounds that the "peace, order and good
government" clause of Section 91 was only to be used in dire
circumstances.
Read the entry "Bennett's New Deal" in the Canadian
Encyclopedia Online for more information.
Criticisms
Many of the decisions made by the JCPC have been interpreted as
contradicting the intentions of the Fathers
of Confederation. Critics argue that the JCPC was unfamiliar
with the conditions and circumstances in Canada. They have also
been criticized because it has been seen by some as demeaning to
have a foreign court decide Canadian issues.
It has also been argued that the JCPC seriously limited the federal
government's ability to deal with serious national economic and
social problems, such as the Great Depression.
A complete set of JCPC constitutional cases for Canada can be found
in Canadian Constitutional Decisions of the Judicial Committee
of the Privy Council, 1867-1949, (3 vols.).
Bibliography
English, John. Bennett's New Deal. The
Canadian Encyclopedia [online]. Historica Foundation of
Canada, 2000.
Finlay, J. L., and D. N. Sprague. The Structure of Canadian
History. 4th ed. Scarborough: Prentice Hall of Canada, 1993.
Turner, H. Guibord Affair. The
Canadian Encyclopedia [online]. Historica Foundation of
Canada, 2000.
Waite, P.B. Canada 1874-1896: Arduous Destiny. Toronto:
McClelland and Stewart, 1971.
Waite, P.B. New Brunswick School Question. The
Canadian Encyclopedia [online]. Historica Foundation of
Canada, 2000.
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