§ 310. “Appeal to Queen in Council.”

THE PREROGATIVE RIGHT.—The preceding section negatives any right of litigants in the High Court to claim an appeal to the Queen in Council “as a matter of right,” and what is dealt with in this section is the prerogative right of the Crown, through the Judicial Committee of the Privy Council, to grant “special leave of appeal,” as a matter of grace.

“The Queen has authority, by virtue of her prerogative, to review the decisions of all colonial courts, whether the proceedings be of a civil or criminal character, unless. Her Majesty has parted with such authority.” (Falkland Islands Co. v. Queen, 1 Moo. P.C.N.S. 312; and see Reg. v. Bertrand, L.R. 1 P.C. 520; Macpherson, P.C. Practice, p. 60; Todd, Parl. Gov. in Colonies, p. 220.)

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The ancient right of the King, as the fountain of justice, to dispense justice in his Council survived even after the establishment of Courts of Common Law. (See Anson, Law of Constitution, ii. 86.) In 1640 the Long Parliament, by the Act 16 Car. I c. 10, which abolished the Star Chamber, enacted that neither the King nor his Privy Council should have jurisdiction over any man's estate, but that “the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law.” But the King in Council, though his original jurisdiction within England was taken away, was still the resort of suitors in the dependencies, and continued to hear petitions from the plantations. The result was that down to 1833 all petitions from beyond the seas were dealt with “by an open Committee of the Privy Council, which advised the Crown as the order to be made in each case.” (Anson, Law of Const. ii. 442.)

THE JUDICIAL COMMITTEE.—In 1833, by the Act 3 and 4 Wm. IV. c. 41, the Judicial Committee of the Privy Council was constituted, and it was enacted (sec. 3) that “all appeals or complaints in the nature of appeals which either by virtue of this Act or of any law statute or custom may be brought before His Majesty or His Majesty in Council” from the decision of any Court or Judge should thenceforth be referred to the Judicial Committee. It was also enacted (sec. 4) that His Majesty might refer to the Judicial Committee “any such other matters whatsoever as His Majesty shall think fit.” The Judicial Committee was also given various necessary powers of a Court of Justice, with regard to the examination of witnesses, compelling their attendance, making rules of practice, and so forth.

The composition of the Judicial Committee has been the subject of statutory change from time to time. It now consists of the Lord President, such Privy Councillors as hold or have held “high judicial office” (defined to mean the office of Lord Chancellor, of a paid Judge of the Judicial Committee, or of a Judge of one of the Superior Courts of Great Britain and Ireland), the Lords Justices of Appeal, and two other persons being Privy Councillors whom the Queen may appoint. There may also be one or two paid members, who have held judicial office in the East Indies. (See Appellate Jurisdiction Acts, 1876 and 1887, 39 and 40 Vic. c. 59; 50 and 51 Vic. c. 70; Judicial Committee Act, 1881, 44 and 45 Vic. c. 3.) It is now provided by the Judicial Committee Amendment Act, 1895 (58 and 59 Vic. c. 44), that if any person being or having been Chief Justice or a Judge of the Supreme Court of Canada, or of a Supreme Court in any province of Canada, or of any of the Australasian Colonies, or of Cape Colony or Natal, or of any other Superior Court in the Queen's Dominions which might be named by Order in Council, is a member of the Privy Council, he shall be a member of the Judicial Committee; but such colonial members of the Judicial Committee must not exceed five.

Although the Acts relating to the Judicial Committee require the Queen's prerogative right of admitting appeals to be exercised through a particular court, of definite statutory composition, they do not limit the extent of that prerogative right. It is however capable of being limited to any extent, or of being abolished altogether, by the sovereign British Parliament, whose sovereignty extends to the prerogative as to everything else. (See Dicey, Law of the Const., p. 60.) “The prerogative appears to be, both historically and as a matter of actual fact, nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.” (Id.. p. 352.) To say that the right of granting leave to appeal to the Queen in Council is a “prerogative right” is therefore merely to say that it has not yet been legally taken out of the hands of the Crown.

This prerogative right of the Crown is sometimes spoken of, somewhat inaccurately, as a sacred constitutional right of the individual subject. See for instance a petition presented to the Melbourne Convention (cited Conv. Deb., Melb., p. 2298), where it is spoken of as “this right of approach to the Sovereign which all her other subjects (i.e., other than Australian) possess.” Language such as this is due to a confusion of the right of appeal with the general right of petitioning the Crown for the redress of grievances—a right which belongs to every subject in every part of the Empire, and is

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not taken away by limiting the right of appeal in matters of litigation. (See Blackstone's Commentaries, i. 143.) The right of appeal to the Privy Council is not in any sense a right of approaching the person of the Sovereign, but merely a right of appealing to one of the Queen's Courts—a Court which is not a Court of Appeal for the whole Empire, but only for the colonies and dependencies of the Empire. See remarks on this subject by Mr. Symon (Conv. Deb., Melb., pp. 2295, seqq). The extent to which a right of appeal to the Queen in Council ought to be retained is purely a question of political expediency.

LIMITATIONS PRESCRIBED BY PRIVY COUNCIL.—Though the right of the Queen to grant leave to appeal to herself in Council has not hitherto been legally limited, very definite limitations as to the cases in which such leave will be granted have been laid down by the Privy Council itself. Thus in criminal cases, leave will only be granted in special circumstances, where it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done. (Reg. v. Bertrand, L.R. 1 P.C. 520; Re Dillet, 12 App. Ca. 459; Exp. Deeming, 1892, App. Ca. 422; Kops v. Reg., 1894, App. Ca. 650; Exp. Carew, 1897, App. Ca. 719.)

In applications for special leave to appeal to the Queen in Council from decisions of the Supreme Court of Canada, or of the Courts of Appeal in the Provinces, the Privy Council has laid down limitations which had an important influence on the Convention in determining the provisions of this section, and which are further of importance as laying down rules which will undoubtedly guide the Privy Council in the exercise of the right to grant special leave under this Constitution.

In Johnston v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, special leave of appeal from the Supreme Court of Canada was refused in a case where the amount at issue was only £300, and where the issue between the parties related simply to the legal construction and effect of a particular contract, and where no general principle was involved, and no other cases were necessarily affected by the decision complained of. The judgment of Lord Cairns, L.C., concluded as follows:—

“It appears to their Lordships that it would be a departure from the principles which should guide them when advising Her Majesty as to when an appeal should be allowed, to advise that an appeal should be allowed merely for the purpose of testing the accuracy of the construction put upon a particular document, which document, if it affects any number of other cases, can be altered at the will of the party who asks for the exercise of the prerogative in allowing an appeal. Their Lordships, therefore, cannot, either from the magnitude of the particular case, or from the effect which this decision may have on a number of other cases, think that this is a case in which they should advise Her Majesty to allow the appeal which is asked for.”

In Valin v. Langlois, 5 App. Ca. 115, an important constitutional question was involved as to the validity of a Dominion Act; but special leave to appeal from two concurrent judgments of the Courts in Canada, affirming the validity of the Act, was refused, it appearing that there was no substantial question to be decided, nor any doubt of the soundness of the decisions, nor any reason to apprehend difficulty or disturbance from leaving the decisions untouched. Lord Selborne, delivering the judgment of the Court, said (at p. 117):—

“Their Lordships must remember on what principles an application of this sort should be granted or refused. It has been rendered necessary, by the legislation which has taken place in the colony, to make a special application to the Crown in such a case for leave to appeal; and their Lordships have decided on a former occasion that a special application of that kind should not be lightly or very easily granted; that it is necessary to show both that the matter is one of importance, and also that there is really a substantial question to be determined. It has been already said that their Lordships have no doubt about the importance of this question, but the consideration of its importance and the nature of the question tell both ways. On the one hand those considerations would undoubtedly make it right to admit an appeal, if it were shown to their Lordships, prima facie at all events, that there was a serious and a substantial question requiring to be determined. On the other hand, the same considerations make

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it unfit and inexpedient to throw doubt upon a great question of constitutional law in Canada, and upon a decision in the Court of Appeal there, unless their Lordships are satisfied that there is, prima facie, a serious and substantial question requiring to be determined. Their Lordships are not satisfied in this case that there is any such question, inasmuch as they entertain no doubt that the decisions of the Lower Courts were correct. It is not to be presumed that the Legislature of the Dominion has exceeded its powers, unless upon grounds really of a serious character.”

In Prince v. Gagnon, 8 App. Ca. 103, which was a suit involving a question of a sum of £1000, Lord Fitzgerald, delivering the judgment of the Court, said:—

“Their Lordships, having looked into the case, see that it involves nothing whatever beyond this £1000. There is no grave question of law or of public interest involved in its decision that carries with it any after-consequences, nor is it clear that beyond the litigants there are any parties interested in it … Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity involving matter of public interest or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character.”

In Montreal v. Ecclesiastiques de St. Sulpice, 14 App. Ca. 660, the unwillingness of the Privy Council to grant special leave was still further illustrated. Lord Watson, delivering judgment, referred to the provision of the Canadian Supreme Court Act, that the decision of the Court should be “final and conclusive,” saving the Queen's prerogative, and declined to formulate any general rule as to when leave to appeal would be given. “In some cases,” he said, “as in Prince v. Gagnon [supra] their Lordships have had occasion to indicate certain particulars, the absence of which will have a strong influence in inducing them to advise that leave should not be given, but it by no means follows that leave will be recommended in all cases in which these features occur. A case may be of a substantial character, may involve matter of great public interest, and may raise an important question of law, and yet the judgment from which leave to appeal is sought may appear to be plainly right, or at least to be unattended with sufficient doubt to justify their Lordships in advising Her Majesty to grant leave to appeal.” (See, for these and other cases in which special leave was granted or refused, Wheeler, Confed. Law, pp. 440–482; Wheeler, Privy Council Law, Part II.)