SOVEREIGNTY HAD BEEN THE BUZZWORD of confederation.

But Canada was not sovereign in 1867.

It's foreign policy was dictated by England, the Governor General was still very much in command of Royal Assent to legislation and the appeal of Canadian judicial decisions lay with a court located in England : the Privy Council.

This latter indication of Canada's continuing tutelage would prove to be particularly difficult to Canadian politicians. The British North American Act had allowed for a "court of final appellate jurisdiction" but implementing that power would elicit all sorts of strange responses to 19th century members of the Canadian House of Commons even though appeal to England, in days of steamships and telegraph lines, must of seemed of inconvenience to say the least.

Prime Minister Sir John A. Macdonald first tabled a Bill to provide the establishment of a national court of appeal on May 21, 1869:

RIGHT HON. SIR JOHN A. MACDONALD - Prime Minister (Kingston): Mr. Speaker, allow me to introduce a Bill to establish a Supreme Court for the Dominion of Canada. This Bill purports the establishment of a Supreme Court somewhat similar to that in the United States. This Court would also have original jurisdiction and would have special power in some cases to settle between the Government of the Dominion and that of any of the Provinces as to the constitutionality of the actions of either. The government will very much be guided by the feeling of the House, as to whether or not we will do more than submit it to the House this session.

JOHN CAMERON (Peel): The sooner the consideration of this measure is taken up, the better.

ALFRED JONES (Halifax-?): I believe my constituents think that they have too many courts already and it is doubtful whether I could support the measure.


The Bill was scheduled for Second Reading a week later but it died on the order paper as the Second Session of the First Parliament was prorogued one month later. Less than a year later, just a month into the Third Session, Macdonald rose again. This time, his first reading speech would be more than a "taking of the pulse" of the House.


MR. MACDONALD: This measure was submitted to Parliament last session rather for the purpose of suggestion and consideration, than for a final measure that government hoped would become law. The Court is to be composed of a chief justice and six judges. As to the number of the bench, a good deal of difference of opinion might fairly arise. The amount of business thrown upon the Court at first, could not be expected to be very large, and it might, perhaps, be held that seven Judges was too large a Bench. At any rate, this would be a fair subject of discussion for the House.

Edward BlakeOne of the reasons for fixing the number at seven, was, that it would be the court of appeal of the whole Dominion; not merely for the four provinces now in the Dominion, but also for those other British North American Provinces which we may confidently hope within a short time to be embraced within our bounds. And while it would be impossible and unwise that there should be a cast iron rule, by which every Province should be represented upon the Bench, it is expedient, and greatly conducive to the popularity of the Court, and to its usefulness, to have as far as possible, the different Bars of the different Provinces represented upon the bench.

Then again, in Ontario, where the system of courts involved a separation of equity and common law, it is of great importance if not of absolute necessity, that the Bars of equity and common law should both be represented upon the Bench of the Supreme Court. Then in the Province of Quebec, there are two different systems of law, the French law in civil cases and the criminal law, which was based upon English criminal law. The commercial law of that Province was also assimilated in its principles to the commercial law of England. So there are two distinct sources of law in the Province of Quebec.

The law of the Provinces of Nova Scotia and New Brunswick, like the law of Ontario, is based on the common law of England. In New Brunswick there was a complete union of law and equity, and almost complete union in Nova Scotia. It is, however, a matter for calm and full consideration of the House and country, whether the Bench should be so large as the Bill provided.

There are two clauses in this Bill respecting constitutional questions to the effect that the Court should not have the power of vetoing and Act of the Legislatures, but that the Crown might ask the opinion of the Court on any disputed point, which opinion, however, will have no legal effect.

It is also within the provisions of this Bill, that the Provincial appeal should be exhausted before there could be an appeal to this Court.

I move the first reading of this Bill.


EDWARD BLAKE - Leader of the Opposition (Durham West): It is perfectly clear, however questionable some of the powers proposed to be conferred upon the Court by the amended Bill might be, that as to some of the subject matters of jurisdiction it is beyond the power of this Parliament to confer upon the Court powers which we have not the power to do so. It is a very unseemly thing to do. This is the very last place in which we should overstep the bounds of our authority. It will be impossible to discuss the Bill at the present time. But I would like to know if the Supreme Court will decide only questions as to the constitutionality of Provincial Acts, or would it extend to Acts of the Dominion of Canada?

MR. MACDONALD: As regards acts passed by the Dominion Parliament, under the system of responsible government, the Crown must assent to Bills, although there is an old power possessed by the Crown, which has never been formally abdicated, by which it can refuse royal assent. But this power has, recently, never been exercised and never will be exercised; for it would produce a revolution if the Crown were to veto the deliberate action of the two branches of the Legislature. The power to reject or affirm exists in England, but it has never been exercised. It would be a difficult thing for any responsible Minister to advise the Crown to reject any measure passed by the Lords and Commons. In our colonial existence, there is a power reserved to the Governor, under his instructions, which does not exist, even to the Sovereign herself, that is the power of reservation. Here the Governor General, under instructions, can reserve a measure for the consideration of the Crown. It is well understood that as the Sovereign cannot be before us in person, she must exercise her power by her representatives, and it is quite consistent with our colonial existence for the representative of the Crown to reserve any measure for the consideration of the Crown itself. But, with that single exception, that the Governor general may reserve acts for the consideration of the Crown - the Governor general is bound to act upon the advice of his constitutional advisers, and no constitutional Ministers can advise the rejection of any measure which has received the sanction of the Commons and Senate of Canada.

MR. CAMERON: Is the government considering the question of appeal to England? Do you intend, once the Supreme Court is established here, to ask for repeal of the Imperial Statute by which appeal to England is made? Are the judgments of the Supreme Court to be final or is the case still to be liable to be taken across the Atlantic to the Privy Council?

MR. MACDONALD: Mr. Speaker, we have no power to deprive a British subject of the right of going to the foot of the Throne for redress and I would be sorry to see that power abdicated. It gives great confidence in our fellow-subjects, coming from the Mother Country to this country, to know that in this comparatively foreign country, that they will be protected in the last resort by an appeal to the tribunals they know. With every respect to the distinguished men who compose our courts, I think it is a great advantage to our Provincial Courts to resort to the body of great and good men who compose the Courts of England.

Two months later, the Hon. Sir Georges E. Cartier informed the House that the government would not press for the approval of the Supreme Court Bill and the legislation was discharged from the Order Paper the next day.

Canada would have to wait before it could claim it's own final court of appeal.