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"

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"

By majority the Court held Bill No.9 would be intra vires of the Parliament of Canada: s.101 together with the general powers for peace, order and good government, read in light of the Statute of Westminster, empower Parliament to establish a final exclusive national court of appeal and to abrogate the jurisdiction of the Judicial Committee and prerogative appeals insofar as they operate for Canada; provincial powers under s.92(14) do not extend to maintaining an extraterritorial appellate jurisdiction in the Judicial Committee that blocks Parliament's s.101 authority.

Citation
[1940] SCR 49
Parties
Applicant (referrer): Attorney-General of Canada; Respondent (intervener): Province of Ontario; Respondent (intervener): Province of British Columbia; Respondent (intervener): Province of Manitoba; Respondent (intervener): Province of New Brunswick; Respondent (intervener): Province of Nova Scotia; Respondent (intervener): Province of Prince Edward Island
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
19 January 1940
Procedural Posture
Constitutional Law Reference (legislative Competence) / Reference for Advisory Opinion to the Supreme Court of Canada Under S.55 of the Supreme Court Act
Outcome
Reference answered in the affirmative: Bill No.9 is intra vires of the Parliament of Canada (majority)
Legal Topics
Legislative Competence, Appeals to Privy Council, Supreme Court Jurisdiction, Statute of Westminster Effect, Pith and Substance and Paramountcy
Source Language
English
Constitutional Law Public Law Federalism Legislative Competence Appeals to Privy Council Supreme Court Jurisdiction Statute of Westminster Effect Pith and Substance and Paramountcy

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Parties

Attorney-General of Canada

Applicant (referrer)

Province of Ontario

Respondent (intervener)

Province of British Columbia

Respondent (intervener)

Province of Manitoba

Respondent (intervener)

Province of New Brunswick

Respondent (intervener)

Province of Nova Scotia

Respondent (intervener)

Province of Prince Edward Island

Respondent (intervener)

Procedural Posture

Constitutional Law Reference (legislative Competence) / Reference for Advisory Opinion to the Supreme Court of Canada Under S.55 of the Supreme Court Act

Legal Issues

  1. 1 Whether Parliament of Canada may, under s.101 or its peace, order and good government power, enact legislation making the Supreme Court of Canada the exclusive final appellate court for Canada
  2. 2 Whether Parliament may abrogate appeals to His Majesty in Council and the statutory jurisdiction of the Judicial Committee in respect of Canadian courts
  3. 3 Whether provincial legislatures have authority under s.92(14) or other heads to preserve or abrogate appeals to the Privy Council

Ratio Decidendi

By majority the Court held Bill No.9 would be intra vires of the Parliament of Canada: s.101 together with the general powers for peace, order and good government, read in light of the Statute of Westminster, empower Parliament to establish a final exclusive national court of appeal and to abrogate the jurisdiction of the Judicial Committee and prerogative appeals insofar as they operate for Canada; provincial powers under s.92(14) do not extend to maintaining an extraterritorial appellate jurisdiction in the Judicial Committee that blocks Parliament's s.101 authority.

Court Disposition

Reference answered in the affirmative: Bill No.9 is intra vires of the Parliament of Canada (majority)

Orders

  • Opinion delivered: Bill No.9 is intra vires of the Parliament of Canada