Edit 1949

Breaking the penultimate colonial link
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By Lloyd Duhaime

[Caption: Stuart Sinclair Garson: minister of justice in 1948]

Prime Minister Alexander Mackenzie's Liberal administration was the first to recommend, in 1876, abolishing Canadian appeals to the Judicial Committee of the Privy Council in London, England. But the proposal did not survive the criticism of Sir John A. Macdonald, then leader of the opposition.

By 1931, when the Statute of Westminster became law, this enduring foreign legal jurisdiction disagreed strongly with Canada's newfound independence and remained one of only two remaining powers the mother country held over Canada. On a more practical level, the expenses and delay of an appeal to a court in England promoted a justice system that catered only to the rich.

On Tuesday, Sept. 20, 1949, the minister of justice introduced his legislative measure. Debate quickly turned into a difficult partisan constitutional debate with the Conservative opposition expressing their traditional defence of provincial jurisdictions. The bill called for the federal government to select the judges of the Supreme Court, thus eliminating recourse to an "unbiased" British Court. Time had come to sever this lingering umbilical cord.

The Honorable Stuart S. Garson - Minister of Justice (Marquette): Mr. Speaker, I would like to move the second reading of Bill No. 2, to amend the Supreme Court Act. In its progress towards self-government, Canada has retained two badges of colonialism. The first is that we must petition the United Kingdom Parliament to pass a United Kingdom statute which alone can amend our Canadian Constitution. The second is that the ultimate determination of Canadian statute and other laws is the responsibility of the judicial committee of the Privy Council, a United Kingdom court.

The bill which is now before us will strip off the second of these badges by abolishing appeals to the Privy Council. It represents an important step towards complete nationhood. Clause three sets out its major purpose, namely, to create in the Supreme Court of Canada, exclusive, ultimate appellate civil and criminal jurisdiction within and for Canada, by abolishing appeals to the Privy Council and by making the judgements of the Supreme Court final and conclusive in all cases.

From now on the only impediment to our governing ourselves fully and completely is our own inability to agree among ourselves, first, whether we should do so, and, if so, how we should do so. That, I suggest, is an intellectual and moral impediment which exists in the minds and character of our public men and citizens.

By far the most powerful argument for the passing of this bill, as a step towards self-government, is that Canada in almost every other respect -- political, financially, economically -- has attained a complete and honorable nationhood. The question is whether it is consistent with that nationhood that we should continue an arrangement with regard to the hearing of our law cases which was begun in colonial times and still preserves its colonial characteristics.

Surely, Mr. Speaker, we have here a country which from the beginning has had many qualities of greatness, which is more united, magnanimous and powerful today than it has ever been, and whose resources and possibilities seem to require only that we should ourselves act as the citizens of a great country to make our Canada achieve the destiny of which she is capable.

We, the citizens of such a country, should not ask those of another, even though they be of our own blood, to decide our lawsuits for us, interpret for us the laws which we pass here, and provide amendments to our constitution at our request when we need them. If in smallness of mind and meanness of spirit we needlessly perpetuate such a situation, we are unworthy of the efforts and sacrifices of our fellow-Canadians, and undeserving of the bounty which Providence has bestowed upon our country.

Although there were sputters of opposition at every step of the bill's progress through Parliament, all three major parties in the House supported the principle of the proposed legislation.

Third Reading division was somewhat marred by a last minute manoeuvre by Thomas Church, the Conservative member for Broadview, known for his devotion to all things Imperial.

Just as the Speaker called for the vote, Church desperately moved for a six-month hoist of the proposed legislation. Unfortunately, he was not able to find a seconder and the Speaker declared the Third Reading motion carried.

The House quickly went on to the next item on the Order Paper amidst muffled cries from Church: "You may railroad it through," he bellowed, "but I can tell you that there will be an appeal!" There never was another one to the Judicial Committee of the Privy Council of England.

Thursday, August 22, 1991
The Hill Times