CO885-(15-16) — Page 339

PUBLIC RECORD OFFICE

Reference :-

T

PEPTIC.O. 885

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15 PUBLIC RECORD OFFICE, LONDON

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

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of that Act which was unlike anything to be found in the Imperial or Dominion Acts. That it was submitted that this section was substantive law, creating an entirely new remedy which should be equivalent to the Common law petition of right existing in some other parts of Canada, the rest of the Act, like the Imperial and Dominion Acts, containing the procedure regulating the exercise of the remedy.

That if the above çontention were sound, the significance to be attached to section 21 of the Dominion Act 38 Vict. c. 12 or section 19 of the Dominion Act 39 Vict: c. 27 was very different to that to be attached to section 17 of the Quebec Act 46 Vict, c. 27. That in the case of the Dominion Acts it was submitted that the section cited preserved to the subject the right to present, and to His Majesty the right to fiat a petition presented otherwise than in accordance with the provisions of the Act. (That such a construction seemed to be warranted by our report of the 21st November 1903* and the Report of our predecessors in office of 29th March 18977 with reference to this subject in Western Australia).

That in the case of the Quebec Act, it was submitted that the remedy of petition of right having no existence apart from that Act, section 17 preserved to the Sovereign and subject respectively whatever might have been their previous rights under the old French law of Quebec with regard to complaints of the subject against the Sovereign. (That such construction would be in accordance with the first paragraph of our report of the 29th June.)

That it would probably be expedient that the Canadian Law Officers should eventually be asked to advise what remedy (if any) was given to a subject or citizen against the Government by the old French law of Quebec, but that in the meantime he was to request us to take the authorities cited and the views expressed in his letter into our consideration and report :

1. Whether Quebec was a place in which the Common law of England did or did not prevail?

2. Whether the petition of right had any existence in Quebec apart from statute?

3. Whether the petition of right was created by the Quebec Act 46 Vict. c. 27 section

2 or by any other and what enactment as a substitute in Quebec for the remedy of petition of right derived from the Common law of England?

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4. Whether the Dominion Act 38 Vict. c. 12 and the various Acts by which it has been replaced apply to Quebec ?

5. Whether the true construction and effect of the Dominion Act 38 Vict. c. 12 section 21 and the Quebec Act 46 Vict. c. 27 section 17 respectively was correctly stated in his letter?

6. What course should now be taken with reference to J. O. Fournier's petition ? We have taken the matter into our consideration and in obedience to your commands have the honour to

Report-

That there do not appear to be any fresh facts which were not before us when we made our previous Report on this case.

We concur in the suggestion that the case should be laid before the Canadian Law Officers.

With reference to the contention that the Dominion Act 38 Vict. c. 12 applied only

to the provinces of the Dominion other than Quebec, we observe that the 17th section contemplates its application to the Province of Quebec as well as the others.

The whole of this question however is one really for Canadian lawyers.

As regards the specific questions now put:

1. We are not aware that it has ever been suggested that the Common law of England prevails in Quebec. The question is whether by the law in force there a remedy

of the same nature with the English petition of right existed.

• No. 205.

No. 134 in Volume V,

‡ No. 228.

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2 & 3 We have nothing to add to our former Report on these questions.

4. The 17th section of 38 Vict. c. 12 appears to show that it was intended to apply

to Quebec. It may be that it was found to be inapplicable owing to the state of the law

in Quebec. Canadian lawyers must be consulted on this point.

5. We do not think it desirable to add anything to what we have already said on this point, until the hypothesis as to the law of Quebec on which this question is based has been submitted to the Canadian lawyers.

6 & 7. We have nothing to add to our last Report.

The Right Honourable Alfred Lyttelton, M.P.

&C.,

&c.,

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.