Article

Judicial Committee of the Privy Council

Updated by Andrew McIntosh

Published Online February 7, 2006

Last Edited May 1, 2020

The Judicial Committee of the Privy Council is a board of the British Privy Council. It was formed in 1833. In 1844, it was given jurisdiction over all of Britain’s colonial courts. People who had been judges in high courts in Britain served on the Judicial Committee, along with a sprinkling of judges from the Commonwealth. Their decisions were often criticized for favouring provincial powers over federal authority, especially in fields such as trade and commerce. The Judicial Committee served as the court of final appeal for Canada until 1949, when that role was given to the Supreme Court of Canada.  


Background

When the Supreme Court of Canada was established in 1875, Justice Minister Edward Blake tried to abolish appeals to the Privy Council. This attempt was unsuccessful. Appeals continued from Canada to the Judicial Committee. It was agreed, however, that Canada could choose the category of appeal that could be taken to the Committee. As a result, Canada abolished appeals in criminal cases in 1888.

However, in 1926, the Privy Council ruled that this limitation was invalid; the Canadian law on which it was based conflicted with the 1844 British statute that extended the Judicial Committee’s jurisdiction to Canada.

After the Statute of Westminster (1931)

The Statute of Westminster (1931) gave Canada legislative equality with Britain. It allowed the Canadian Parliament to once again ban criminal appeals to the Judicial Committee. Appeals in civil cases would also have been discontinued. However, the Second World War postponed hearings on the question.

In 1947, the Committee ruled that the Parliament of Canada could abolish appeals in civil cases. In 1949, an amendment to the Supreme Court Act transferred jurisdiction over appeals to the Supreme Court of Canada. (This law was not applied retroactively. As a result, cases that were pending or in process with the Judicial Committee were allowed to proceed. The final decision by the Committee regarding a Canadian case was in 1959.)

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Significance

The Judicial Committee of the Privy Council gave 173 major judgments on the British North America Act (now called the Constitution Act, 1867). However, Canadian lawyers believed that many of these decisions showed a bias towards provincial powers. They argued that this contradicted the intentions of the Fathers of Confederation, as well as the text of the Act. These judgments greatly curtailed federal jurisdiction in fields such as trade and commerce. They also made the general powers of the Dominion, found in section 91, subordinate to the specific powers laid out in sections 91 and 92.

The Judicial Committee’s decisions to decentralize powers were often expressed in abstract language. The Committee was criticized for being ignorant of the problems of Canadian federalism. In the 20th century, many Canadian lawyers also felt it was demeaning for Canada to have to go outside the country for final decisions with respect to the constitution.

See also: Constitutional History; Constitutional Law; Constitutional Monarchy; Peace, Order and Good Government; Editorial: Statute of Westminster, Canada’s Declaration of Independence; Patriation Reference; Patriation of the Constitution; Constitution Act, 1982; Constitution Act, 1982 Document.