CO885-(13-15) — Page 67

PUBLIC RECORD OFFICE

Reference :-

TTIC.O.8

885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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and assuming that the power of appeal as of right was not continued, Her Majesty's prerogative to allow an appeal was left untouched and preserved by that section; and that, therefore, in a proper case their Lordships would have no hesitation in advising Her Majesty to allow an appeal from the Supreme Court of Canada.

That in Cushing v. Dupuy (L. R. 5 Appeal Cases 409) the Judicial Committee held that a provision in a Canadian Insolvency Act (40 Vict. c. 41. 8. 28) that "the judg- ment of the court to which, under this section, the appeal can be made shall be final," took away the appeal as of right to Her Majesty in Council, but that, in the absence of any words expressly derogating from the prerogative of the Crown, did not affect the power of Her Majesty to allow, as an act of grace, appeals in matters of insolvency from the Court referred to in that section.

That in the case of Riel, who applied for leave to appeal from his conviction by a criminal court in the north-west provinces, the question of the right to appeal, or of the power of Her Majesty to allow an appeal, was not argued, and the Judicial Committee expressed no opinion upon it.

That it appeared to your Lordship that according to the construction put upon section 47 of the Supreme and Exchequer Courts Act in Johnston v. Minister, &c. of St. Andrew's, Montreal, subsection 5 of the new section 268 of the Criminal Procedure Act introduced by section 1 of the Act of 1887 would be inoperative so long as the Parliament of Great Britain and Ireland had not established a court of appeal, by which appeals or petitions to Her Majesty in Council might be ordered to be heard, and would only interfere with the prerogative, which was expressly saved by section 47 of the Supreme and Exchequer Courts Act, in the event of Parliament establishing such a court, and enacting that appeals or petitions to Her Majesty in Council should be heard by it, and that unless and until such Imperial legislation took place, the power of the Crown to entertain, and refer to the Judicial Committee of the Privy Council, appeals in criminal cases from the courts of Canada would not be affected by that subsection.

That as regarded subsection 3 of the same section, although the positive declaration therein contained was not, as in section 47 of the Supreme and Exchequer Courts Act, either introductory and correlative to the negative words in subsection 5 (which applied to appeals from "any court in Canada "), or qualified by an express saving of the prerogative, it would appear, on the principle of the decision in Cushing v. Dupuy, not to affect the prerogative in the absence of

express words.

That Sir Robert Herbert was to request that we would advise your Lordship how far the Canadian Act, 50 and 51 Victoria, Chapter 50, affected the prerogative of the Crown to entertain appeals in criminal cases from courts in Canada, and whether Her Majesty might properly be advised to allow the Act to remain in operation.

That Sir Robert Herbert was to add that your Lordship considered that, on grounds of policy, the disallowance of the Act would be very inexpedient, and should be avoided if possible.

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In obedience to your Lordship's commands we have the honour to

Report

That the question whether the Canadian Act, 50 and 51 Victoria, Chapter 50, affects the prerogative of the Crown to entertain appeals in criminal cases is one of considerable difficulty, which depends upon the construction which the Privy Council would put upon the language of subsections 3 and 5 of the amended section 268 enacted by that Act.

If the words "notwithstanding any royal prerogative," at the commencement of subsection 5, are intended to be read as part of subsection 3, then in our opinion the power of Her Majesty to entertain appeals would be taken away. And it is to be observed that, having regard to the marginal note to subsection 5, this was probably the intention of the Canadian Legislature; but if, as we think more probable, the Privy Council should hold that the words "notwithstanding any royal prerogative" apply to subsection 5, only then, in our opinion, they would hold that the right of Her Majesty to entertain appeals to the Privy Council is not taken away.

The opinion of Lord Cairns in the case of "Johnston v. Minister, &c. of St. Andrew's," referred to in Sir Robert Herbert's letter of the 23rd March 1888, was distinct that the words "no appeal shall be brought in any criminal case from any judgment or order of any court in Canada to any court of appeal established by the "Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard" did not refer to the Privy Council,

fa

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but to a special statutory court of appeal should such a court be established, and we think it very doubtful that the Privy Council would differ from the opinion of Lord Cairns upon the point. If subsection 3 is to be construed without the addition of any words affecting the Royal prerogative, then the decision of the Judicial Committee in the case of Cushing v. Dupuy" would Majesty to entertain appeals is not taken away.

seem to establish that the right of Her

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Under all the circumstances, we think Her Majesty may be properly advised to allow the Act to remain in operation, but, having regard to the evident intention of the Canadian Legislature, we think that their attention should be called to the point.

The Right Hon. Lord Knutsford,

&c. &c.

&c.

We have, &c., (Signed) RICHARD E. WEBSTER.

EDWARD CLARKE.