In 1875 when the SUPREME COURT OF CANADA was established, Justice Minister Edward BLAKE made an unsuccessful attempt to abolish appeals to the Privy Council. The clause intended to carry out this purpose was found to be inoperative and appeals continued from Canada to the Judicial Committee. It was agreed, however, that Canada possessed the authority to regulate the category of appeal which could be taken to London. Thus Canada abolished appeals in criminal cases in 1888.
In 1926 the Privy Council ruled that this limitation was invalid since the Canadian law on which it was based conflicted with the 1844 British statute expressly extending the Judicial Committee's jurisdiction to Canada. The STATUTE OF WESTMINSTER (1931), by giving Canada legislative equality with Britain, allowed the Canadian Parliament to re-enact the prohibition of criminal appeals. Appeals in civil cases would also have been discontinued but for WWII, which postponed hearings on the question. In 1947 the Judicial Committee held that the Parliament of Canada was competent to abolish appeals in civil cases. This was done in 1949, when an amendment to the Supreme Court Act transferred ultimate appellant jurisdiction to Canada.
The Judicial Committee provided 173 major judgements interpreting the BRITISH NORTH AMERICA ACT. Many of these decisions were believed by Canadian lawyers to contradict the intentions of the Fathers of Confederation, as well as the text of the act, by showing a bias towards provincial powers. The judgements drastically curtailed federal jurisdiction in fields such as trade and commerce and made the general powers of the Dominion, found in s91, subordinate to the specific powers enumerated in s91 and s92. The decentralizing current of the Judicial Committee's decisions, often couched in abstract language, was criticized as showing an unfamiliarity with the problems of Canadian federalism. In the 20th century many Canadian lawyers also felt that it was demeaning for Canada to have to go outside the country for final decisions respecting the constitution.
See also CONSTITUTIONAL HISTORY.
Author D.M.L. FARR
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Glossary: By Executive Decree
A glossary of terms related to Canadian history. From the website "By Executive Decree."