British Coal Corporation v R
| Jurisdiction | UK Non-devolved |
| Judgment Date | 06 June 1935 |
| Date | 06 June 1935 |
| Docket Number | Case No. 21 |
| Court | Privy Council |
(Viscount Sankey, L.C., Lord Atkin, Lord Tomlin, Lord Macmillan, Lord Wright.)
British Dominions — Dominion Status — Canada — Legislative Competence of — Canadian Dominion Parliament — Power to Abolish Prerogative Right — British North America Act, 1867 — Colonial Laws Validity Act, 1865 — Statute of Westminster, 1931 — Right of Appeal to His Majesty in Council.
The Facts.—The appellant corporation was convicted of an offence against sec. 498 of the Canadian Criminal Code and sees. 2 and 32 of the Combines Investigation Act, 1923, by the Court of King's Bench in the Canadian Province of Quebec. An appeal was dismissed by the Court of King's Bench (Appeal Side) of the Province. The appellants now petitioned for special leave to appeal to the Judicial Committee of the Privy Council. The objection was taken that the Canadian Statute 23 and 24 Geo. 5, c. 53, s. 17, had prohibited appeals to His Majesty in Council in criminal cases from any judgment or order of any Court in Canada. Against this it was argued for the appellants that the right of appeal to His Majesty in Council was a prerogative right inseparable from the King as the fountain of justice, and could not be destroyed by a Canadian statute but only by an Act of the Imperial Legislature. The Statute of Westminster, 1931, had not affected this position, because power to abolish a prerogative right could only be conferred upon the Dominion Legislature by express words and there were no words expressly conferring such a power in the Statute.
Held: that the petition for leave to appeal was inadmissible by reason of the Canadian Act abolishing such appeals in criminal matters. After quoting the relevant section of the Act, the Judicial Committee in a Report read by Viscount Sankey, L.C., declared as follows:
“It is clear that if this enactment is valid, the petition is barred. It is, however, contended on behalf of the petitioners that the section is invalid. A section in identical terms had been held invalid by the Judicial Committee in Nadan v. The KingELR,1 and that decision was founded upon in these proceedings
by the petitioners, who contended on various grounds that the enactment of the Statute of Westminster, 1931, had not affected the position which the decision just cited had established. On behalf of the respondent it was argued that the Statute of Westminster, 1931 (which will be referred to here as ‘the Statute’), had removed certain fetters which according to that decision had till then affected the legislative competence of Canada in the relevant respects, and that, these fetters being removed, the provisions of the British North America Act of 1867 had full effect to invest the Parliament of Canada with power to enact the section in question.“It will be convenient to summarize in the briefest terms the nature of the appeal from Dominion or Colonial Courts to His Majesty in Council. The position of this Board, the Judicial Committee of the Privy Council, in relation to such appeals may first be indicated. The Judicial Committee is a statutory body established in 1833 by an Act of 3 & 4 Will. 4, c. 41, entitled an Act for the better Administration of Justice in His Majesty's Privy Council. It contains (inter alia) the following recital: ‘And whereas, from the decisions of various courts of judicature in the East Indies, and in the plantations, and colonies and other dominions of His Majesty abroad, an appeal lies to His Majesty in Council’. The Act then provides for the formation of a Committee of His Majesty's Privy Council, to be styled the Judicial Committee of the Privy Council, and enacts that ‘all appeals or complaints in the nature of appeals whatever, which either by virtue of this Act or of any law, statute or custom may be brought before His Majesty in Council’ from the order of any Court or judge, should thereafter be referred by His Majesty to, and heard by, the Judicial Committee, as established by the Act, who should make a report or recommendation to His Majesty in Council for his decision thereon, the nature of such report or recommendation being always stated in open Court. The Act contained a great number of provisions for the conduct of appeals. It is clear that the Committee is regarded in the Act as a judicial body or Court, though all it can do is to report or recommend to His Majesty in Council, by whom alone the Order in Council which is made to give effect to the report of the Committee is made.
“But according to constitutional convention it is unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee, who are thus in truth an appellate Court of law, to which by the statute of 1833 all appeals within their purview are referred.
“A later Act, the Judicial Committee Act, 1844, must next be mentioned. Apart from certain changes in procedure, the main effect of that Act was to authorize Her Majesty to provide, by Order or Orders in Council made for that purpose, for the admission of any appeals to Her Majesty in Council from judgments or orders of any Court of justice within any British Colony or possession abroad even though such Court might not be a Court of...
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