BRITISH COAL CORPORATION Vs. KING

JUDGEMENT

(1.) This is a petition for special leave to appeal from a judgment of the Court of King's Bench (Appeal Side) of the Province of Quebec, delivered on 5 October 1934. The petitioners had been convicted on 12 December 1933, under S. 498, Canadian Criminal Code and under Ss. 2 and 32, Combines Investigation Act, 1923, before the Court of King's Bench (Crown Side) and had been subjected to fines totalling $30,000, but the more serious effect to the petitioners of the conviction was that their business operations in the import of British anthracite coal were held to be illegal. The conviction was upheld by the judgment of the Appeal Court. Before their Lordships proceeded to consider questions appertaining to the merits of the petition, they decided in the first instance to determine a preliminary objection, which was that the petition was incompetent by reason of the provisions of S. 17 of the Canadian Statute, 23 and 24 Geo. V., C. 53 (an Act to amend the- Criminal Code) which was in the following terms: "Sub-S. 4 of S. 10 of the said Act (the Criminal Code) is repealed and is hereby re-enacted as follows: (4) Notwithstanding any royal prerogative or anything contained in the Interpretation Act or in the Supreme Court Act, no appeal shall be brought in any criminal case from any judgment or order of any Court in Canada to any Court of Appeal or authority in which in the United Kingdom appeals or petitions to His Majesty may be heard.

(2.) 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/s. The King, (1926) AC 482 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 summarise 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, 3 and 4 Will. IV., 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 decisions of various Courts of Judicature in the East Indies and the plantations and other colonies and dominions of his Majesty abroad, an appeal lies to His Majesty in Council.

(3.) 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.