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treaty and whose application for discharge on a writ of Habeas Corpus al subjiciendum has been refused, may appeal to the Supreme Court against the affirmation of such conviction or the refusal of such application, and the said Court shall make such rule or order therein, either in affirmance of the conviction, or for granting a new trial, or otherwise, as the justice of the case requires, and shall make all other necessary rules and orders for carrying such rule or order into effect, anything in the eightieth section of the Act. passed in the Session held in the thirty-second and thirty-third years of HER MAJESTY'S Reign, chapter twenty-nine, to the contrary, notwithstanding: Provided that no such Appeal shall be allowed where the Court affirming the conviction is unanimous, nor unless notice of Appeal in writing has been served on the Attorney General for the proper Province, within fifteen days after such affirm

ance or refusal.

He believed that this provision would be acceptable to the whole House. It was also desirable that some means should exist of setting right questions of law arising out of the execution of treaties with foreign countries. As would be seen from the 53rd clause of the Bill, the judgment of the Supreme Court, in all cases, would be final and conclusive. Hon. members would observe that on the question of appeal to the Privy Council, he had thought it better to make no provision in the Bill. Parties desiring to avail themselves of the right could address HER MAJESTY'S Privy Council by petition, and have their cases heard. He had omitted alluding to the subject purposely, because, while he did not desire to put any unnecessary obstacle in the way of exercising the right of petition, he wished to see the practice put an end to altogether. In view of the law recently passed in England, which was intended to have come into effect on the 1st November, 1874, but the operation of which had been postponed up to 1st November next, establishing a Supreme Court of Judicature, he thought the realization of his desire in respect to this matter was likely to be fulfilled. Under this law the jurisdiction of the Judicial Committee of the Privy Council would be transferred to the Supreme Court of Judicature sitting in London. He did not think the right of appeal would not then be prized so much as it was now, because the new court in London would be a court of law, and not as the Privy Council is, a court of prerogative. He would like very well to see a clause introduced declaring that this right of appeal to the Privy Council existed no Hʊn. Mr. Fournier.

longer. There were very strong reasons in favour of the right of appeal to the Privy Council, but the reasons against it were still stronger. The right of appeal had been rather extensively used, and he might add, considerably abused in the Province of Quebec, by wealthy men and wealthy corporations to force suiters to compromise in cases in which they had succeeded in all the tribunals of the country.

However, as he had already said, he had made no mention of the matter in the bill now before the House, but left it to be disposed at some future time. Clause 54 gave the Judges of the proposed Supreme Court jurisdiction in habeas corpus concurrently with the Judges of the several Provinces. In that portion of the bill referring to constitutional matters, he had preserved two of the clauses of the measure introduced by the right hon. member for Kingston. The first clause in reference to this subject-clause 55— provided that the Governor-in-Council might direct a special case to be laid before the Court for its opinion. Clause 56 gave the right to any Province, or any other interested party, thought fit to appear before the Court and be heard in any such case, but the decision rendered by the Court would not bear the character of a judgment, it would merely have its moral weight in assisting the Government to arrive at a determination. Clause 57 extended this reference to the other cases at the pleasure of the Governor-in-Council. As to the portion of the Bill relating to special jurisdiction, it was framed in order to satisfy a very generally expressed public desire that there should be some court which would settle the extent of the powers of Local Legislatures when these powers were in dispute. one doubted, however, that under the constitution it was not in the power of this Parliament to give jurisdiction to such a court to try constitutional questions. a matter of fact, the only power which could be conferred upon the court properly was to try appeals from the decisions of courts of original jurisdiction. A Justice of the Peace had as good a right, according to the constitution, to try constitutional questions as would the Judges of the highest existing courts, but it was obviously proper nevertheless that the trial of such cases should be in the hands of the highest tribunal in the land. Acknowledging his

No

As:

inability then to prepare a clause which could constitutionally confer the power of trying such cases upon the court directly he had resorted to the expedient of providing that, by the consent of the Provincial Governments concerned, decisions given by the Supreme Court would have their effect in the cases mentioned as fitted for reference to it. It had been suggested that the Imperial authorities should be asked to amend our constitution in this respect, but even with their assistance the change could not be made unless consented to by all the Provinces interested. He felt pretty sure that all the Provinces would not consent, for, as an example, be found that a petition had been filed from New Brunswick protesting against the measure introduced by his right hon. friend the member for Kingston, and if the Imperial authorities were appealed to they would answer, as they have already done under such circumstances, that the Canadian Federal compact could not be altered without the consent of all the parties thereto. The constitution could only be altered with the consent of the Local authorities, and he thought the simpler way would be to make the adoption of these clauses of the Act a matter of choice with the Local Governments. If they adopted it, they would reap its advantages, and if they did not, they would ⚫ccupy exactly the same position as they did at present. But, then, the Government would have the advantage of referring constitutional cases, as provided in clauses 55, 56 and 57. He would read over the clauses of the Bill bearing upon this subject, as follow :

"When the Legislature of any Province forming part of Canada shall have passed an Act agreeing and providing that the Supreme Court shall have jurisdiction in the following cases, viz. :—(1st) Of controversies between the Dominion of Canada and such Province; (2nd) Of controversies between such Province and any other Province or Provinces; (3rd) Of suits, actions or proceedings in which the parties thereto by their pleadings shall have raised the question of the validity of a Provincial or Dominion Act; (4th) In any case in which any Superior Court of original jurisdiction in common law or equity in any Province, or any judge of such Court sitting alone in such case, after having heard the parties, declares that in the opinion of such Court or judge the proper decision in such case cannot be given without considering some Dominion or Provincial Act or some part thereof to be unconstitutional; then this section and the three following sections of this Act shall be in force to all intents and

purposes.

Hon. Mr. Fournier.

"The procedure in the cases firstly and secondly mentioned in the next preceding section unless otherwise provided for by general rules shall be in the Exchequer Court, and shall, made in pursuance of this Act, be regulated by the present practice of HER MAJESTY's Court of Exchequer at Westminster, as far as the same may be consistent with the provisions of this Act, and an appeal shall lie in any such case to the Supreme Court.

"In the case thirdly mentioned in the next preceding section but one, the parties shall, notwithstanding, proceed to hearing and trial, according to the ordinary rules of procedure in the Province wherein the case is pending; and if the trial is before a jury, the verdict shall be taken; but no final judgment will be rendered in such case by the Court or Judge before whom it is pending, whose duty it shall then be, on the application of either of the parties, to order that the case be removed to the Supreme Court, to be heard and decided upon the question so raised, and it shall be so removed accordingly; and after the decision of the Supreme Court, the said case shall be sent back, with a copy of the judgment on the question raised, to the Court or Judge whence it came, to be then and there finally adjudicated upon as to justice may appertain.

"In the case fourthly mentioned in the next preceding section but two, where the validity of a Dominion or a Provincial Statute shall not have been raised by the parties, but in which the Court or Judge is of opinion that the proper decision cannot be given without considering a Dominion or a Provincial Act to be unconstitutional, it shall be the duty of the said Court or in writing, stating the reasons for considering Judge to make and fyle of record a declaration such law as unconstitutional; and after the fyling of such declaration, the case, at the diligence of either party to the suit, shall be removed to the Supreme Court, to be there decision of the Supreme Court, the said case heard upon the question raised, and after the shall be sent back, with a copy of the judgment, to the Court or Judge whence it came, to be then and there finally adjudicated upon as to justice may appertain.

"The next three preceding sections apply only to cases of a civil nature, and shall take effect in the cases therein provided for respectively, whatever may be the value of the matter in dispute, and there shall be no further appeal to the Supreme Court on any point decided by it in any such case, nor on any other point unless the value of the matter in dispute exceeds one thousand dollars."

It will be seen by these clauses that if, for instance, in a case before a Justice of the Peace, in an action for illegally sel ling liquor, in which the constitutionality of a local law would be raised (as some doubts seem to exist about the constitutionality of some of these laws,) that the evidence would have to be received and the case heard with the exception only that judgment could not be rendered on such questions, it would be the duty of

on this occasion. He (Sir JOHN) was glad that the measure of the late Government had been of service to the hon. gentleman. He could quite understand and appreciate, as he was Sare the whole House would appreciate, the desire of the hon. gentleman that this bill should be considered apart from party views, since its object was the establishment of a court of jurisdiction for dealing with litigation affecting all subjects and all parties. In the first place he did not intend to follow the hon. gentleman in all that he had said. His hon. friend had gone very carefully and elaborately into the different divisions of this measure, and the House would have a better opportunity of considering it on the second reading and for full discussion of all the clauses in Committee of the Whole. He quite agreed with the views of the hon. gentleman that this Court of Appeal, when established, would be a Court of Appeal for Canada

the Judge to refer the case to the Supreme | copy of the measure, and had been able to Court for adjudication on the constitu- follow him in his very interesting speech tional question. It will be the same in civil cases tried before a jury. Evidence would be received and verdict taken, but the constitutional question would be reserved for the Supreme Court. One objection was that in cases involving a larger amount than $1,000 there might be two appeals, one on the constitutional question and the other on the merits of the case afterwards, but such appeals would be very rare, because when one case would have been decided it would serve as a precedent and become the law of the Dominion. There would be no similar case brought again before the Supreme Court. With the right of appeal this Court would have jurisdiction in revenue cases. To a certain amount the jurisdiction would be exclusive but under it would be concurrent with the other Courts. Finally there were general provisions for the appointment of Registrars and other officers necessary for the Court. These were the principal features of the Bill with the details arranged in order to suit the object thereof in so far as he had been able to effect this. The measure was certainly of the greatest importance. It had been mentioned in the Speech from the Throne four times, and this was the third Bill that had been submitted to the House. Every one admitted that it was very important that the Federal Government should have an institution of its own in order to secure the due execution of its laws. There might perhaps come a time when it would not be very safe for the Federal Government to be at the mercy of the tribunals of the Provinces. He believed this to be an anomaly contrary to the spirit of our Constitution. It was not necessary for him to add any remarks concerning the importance of the measure, because every member was aware of it. He resumed his seat expressing the hope that the House would give its most careful consideration to the bill irrespective of party. Every one he believed would admit that it was not a party measure, and think it his duty to assist in carrying a good law which had for its sole object the harmonious working of our young construction.

Right Hon. Sir JOHN A. MACDONALD said by the courtesy of the Minister of Justice he had received an advance

Hon. Mr. Fournier.

The

a court that could entertain appeals from the decisions of all the Provincial Courts, whether such decisions were based on Provincial laws, or laws of the Dominion. He knew there was one authority in this House who had a contrary opinion, and that authority was one that he greatly respected, and he was always sorry to differ from, but he (Sir JOHN) was fortified in his opinion by the views entertained by the Minister of Justice and the Government. He believed the logical and grammatical construction of the term "Court of Appeal" made it a Court of Appeal from all tribunals in this Dominion. hon. Minister of Justice had pointed out. one distinction between the Bill of the late Government and this. It was this, that the latter established here a Supreme Court which was a court of appellant jurisdiction as well as an Exchequer Court. He (Sir JOHN) was free to admit that this was an improvement for it avoided any disputes as to jurisdiction. The hon. gentleman would remember it was the intention of the Bill which he (Sir JOHN) had the honor to lay before Parliament that it should be a Supreme Court having an Appeal Court, and an Exchequer side; but he thought, on the whole, there should be two Courts as provided for in this Bill. He would

wait until the Bill was further advanced (upon certain questions. He supposed that before making up his mind as to the the new Supreme Court Act in England number of Judges necessary. The House contained similar clauses. As to the two would be very glad to hear the views of or three new clauses on the subject which the hon. gentleman on this point, and to the hon. gentleman had discussed at some know why he fixed upon six. and preferred length, they were so important that he that number to five or seven. After giving would claim the liberty of reserving his the question careful consideration he (Sir opinion. As regards the question of appeal JOHN) thought on the whole, seven was to the Privy Council, he had always held not too many. It will be remembered, the opinion that as long as we were a however, that in his Bill, it was proposed dependency it was of importance that the that the Supreme Court Judges should be right of every Canadian, as of every other the Judge who should try all cases of con- | British subject, to appeal to the Court of troverted elections. He thought perhaps the highest jurisdiction should be preit would be found by and bye that this served, though he was free to admit that jurisdiction must be conferred upon the sometimes this appeal was made the means Judges, and if they were to believe the of oppression in the case of a rich man English newspaper reports the number of against a poor man, on account of the controverted elections was growing very great expense attending it. It seemed to rapidly in the Mother Country, and the him that it would be severing one of the avenues of justice would be obstructed links between this country and the very much. The Minister of Justice had Mother Country if the right of appeal a Bill before the House compelling the were cut off ruthlessly. That, however, Judges to sit de die in diem whatever might could only be done by Imperial be their ordinary duties in their own statute. There was a good deal in what Provinces, and the litigation in their own the hon. gentleman had said that the new Courts. However, that was a matter that Supreme Court in England was not a time would settle, and he did not doubt prerogative Court like the Judicial Comthat, hereafter, if representations should mittee of the Privy Council. Still that be made from the different Provincial Court was designed by the Imperial ParCourts that the ordinary administration liament to have all the functions by subof justice was being interfered with very stitution which the Judicial Committee of much by this jurisdiction being thrown the Privy Council had. In fact by the upon them, the Supreme Court Judges Act the Prerogative Court had been made would be made available. At first he statutory and conferred upon the new imagined that the duties of these Judges Court. As to the other details of the would not be onerous, that is to say, their Bill they seemed to be very carefully contime would not be so fully occupied as the sidered, and he had no doubt that the hon. other Judges, and they might probably be gentleman would receive from this side of found available to try controverted elec- the House any suggestions as to those tions originally instead of simply in appeal. details in the same spirit in which he had The clauses concerning the constitutional addressed the House in introducing the questions to be submitted to these Judges Bill. would, of course, require the gravest consideration. He saw from the remarks of his hon. friend that he was fully impressed with the importance of these clauses and the necessity of their being fully considered and of seeing that they did not in any way infringe upon our constitution or erect any Court which would in any degree over-ride the Parliament of Canada. So far as he understood his hon. friend, these clauses were principally for the purpose of informing the conscience of the Government, just as the Judicial Committee of the Privy Council might be called upon by HER MAJESTY to give their opinion Hon. Sir John A. Macdonald.

The Bill was then read a first time.

STATISTICS.

Hon. Mr. TUPPER said before the Orders of the Day were called he desired to draw the attention of the Premier to a point in which the Government in this House seemed to entertain a different opinion from the Government in the other end of the building. It would be in the recollection of the House that the member for South Waterloo offered a motion to refer the question procuring statistics to a Committee which at the suggestion of the Premier was with

of

MILITIA AMENDMENT ACT.

drawn. It would be noticed that in the other end of the building the Government

Hon. Mr. VAIL moved the second

had agreed to the appointment of a Com-reading of the Bill to amend the Act mittee to enquire into this subject.

Hon. Mr. MACKENZIE said the hon. member for South Waterloo had proposed to refer the subject to a Committee of the Whole, while in the other House the motion was for a special Committee which was quite a different thing.

Hon. Mr. TUPPER said the object of the member for South Waterloo was to obtain the assistance of members of the

House in considering the very important question of statistics. The hon. gentleman was met by the statement from the First Minister that in the present position of the question he (the Premier) did not consider the House could assist them, that the Government had the subject under consideration, and that it would be better to leave it in their hands. The House agreed to that view, and the motion was withdrawn. He was therefore somewhat surprised to learn that a motion having been made the other end of the building refer the same subject to દી a Committee, the gentleman who represented the Government there had stated that the Government desired the assistance of a Committee on the subject.

in

to

Hon. Mr. MACKENZIE said he had not the slightest objection to the hon. member for South Waterloo receiving a Special Committee on the subject, but that hon. gentleman had proposed to refer it to the Committee of the Whole, and he (Mr. MACKENZIE) had stated that he could see no object to be gained in taking that course, inasmuch as no result could be accomplished by it further than obtaining a discussion. If his hon. friend desired a Special Committee the Government would be very glad to have its assistance.

Mr. YOUNG said he had withdrawn his motion on the understanding that the Government had the matter under consideration, and he supposed that they in tended at a future time to propose some scheme to place our statistics upon a better footing than they were at present. He knew that ultimately the matter would have to be dealt with by the Government, and therefore he was perfectly satisfied to leave it in their hands.

Hon. Mr. Tupper.

respecting Militia and Defence.

Hon. Mr. MITCHELL asked if this Bill would increase the militia expenditures.

Hon. Mr. VAIL said said the increase would be very trifling. The chief amendment proposed was to place the militia of of a Deputy Adjutant General, with, he the country under a Major General instead thought, about the same salary.

Hon. Mr. MITCHELL objected to the enormous expenditure incurred for militia purposes, and when concurrence in the militia estimates came before the House, would take the opportunity of giving expression to his views on that subject.

Hon. Mr. VAIL said the expenditure now was only about a million, whereas under the late Government, of which the hon. gentleman was a member, it was a million and a-half.

Hon. Mr. MITCHELL-Last s ssion I

declared my opinion that half a million was as much asʼshould be expended.

Hon. Mr. VAIL-The hon. gentleman took care not to express that opinion until his Government went out of power.

Hon. Mr. MITCHELL said he had always held the opinion he now expressed. (Laughter.) Hon. gentlemen opposite might laugh, but they had not the courage to adhere to the opinions they had expressed when in opposition, that the militia expenditure should be decreased. He held that half a million was quite enough, and in that he believed he would be sustained by the hon. memher for South Ontario.

Sir JOHN A. MACDONALD said his hon. friend, the leader of the Left Centre, was of opinion that all money that was spent on defence was mis-spent, unless it was spent on the navy. The hon. gentleman had been looking around for a follower, and he had found either a follower or a leader in the hon. member for South Ontario. In reference to the general question of defence, it must never be forgotten that in 1865 a deputation went to England, and the whole subject of the relative contributions for the defence of the empire was discussed, and it was arranged

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