the honour to present the following report of the Committee on the Administration of Justice.

(Report, see page 265).

THE CHAIRMAN: I am not at all surprised at the Vice-President of Quebec not moving the adoption of the report, for the simple reason that it is really an expression of a majority report as well as a minority report. Now the question is, what is to be done with this report? We are greatly indebted to Mr. Lafleur for the time and thought he has spent on it. It is said that sometimes a knowledge of the subject conduces to clear expression. Here we have clear thought and clear expression. This is one of the most important reports that has ever come before the Association. It is now before you for your consideration.

MR. E. R. CAMERON, K.C.: Mr. Chairman, I would like to say that I quite agree with what you say as to the importance of the report, particularly that portion which deals with appeals to the Judicial Committee of the Privy Council. I do not think there is any body of opinion in Canada opposed to some system of appeal to the Judicial Committee. The idea of independence, I think, has very little support throughout our country, but it is quite proper that we should consider whether or not the present system of appeals to the Judicial Committee is the very best thing we can have.

Probably most of you are aware that this matter came up at the Imperial Conference in 1911. Australia introduced a resolution by Mr. Batchelor, in which he proposed as follows:

"It is desirable that the judicial functions in regard to the Dominions exercised by the Judicial Committee of the Privy Council be vested in an Imperial Appeal Court, which should also be the final court of appeal for Great Britain and Ireland."

Mr. Batchelor is reported in the official reports as having said that two final courts of appeal in the Empire are anomalous and ought not to be continued.

The resolution was withdrawn owing to objections taken at the time by Lord Chancellor Loreburn and

Mr. Haldane, subsequently Lord Chancellor, who pointed out that it was proposed to increase the number of judges in the Privy Council, and that practically the Judicial Committee and the House of Lords would be the same body, and that the proposed change was a mere matter of form and it was desirable to retain the existing machinery. On that statement Mr. Batchelor withdrew his resolution, but he said he only did so because he thought that possibly the present arrangement was the best that could be devised in the meantime, but he was in hope that the time would come when his resolution would be carried out.

It, therefore, I think, is important that we should realize what are the defects, if any, in the machinery by which appeals reach the Judicial Committee, and if you will permit me I will specify what strikes me as some of the difficulties.

As most of you are aware, the system of appeal is a very ancient one, coming down through many centuries. The Judicial Committee is the modern representative of the old notorious Star Chamber of Charles I, and although the power of that tribunal was done away with, by Imperial legislation the right of appeal to the Privy Council was still retained in connection with the courts of the colonies and dependencies, and the result is that we find during all the many years following the disappearance of the Star Chamber that the instructions to all colonial governors or the Royal Commissions make provision for an appeal from the courts of justice in dependencies and provinces to the Governor-in-Council and provide for a further appeal from the Governor-in-Council to the King-in-Council. Now, that remained the practice for a great many years, and the method by which it was carried out was that first a petition was presented to the Privy Council-that is, to the King-in-Council. Previous to the legislation by Lord Brougham in 1833 and 1834 a special committee was appointed by the Privy Council to deal with appeals. By his legislation the Judicial Committee was permanently established for the hearing of all these colonial appeals.

C.B.A.-6

What takes place now is that upon the petition being received it is referred by the Privy Council to the Judicial Committee. The Judicial Committee have the evidence before them and hear the argument of counsel. Afterwards a member of that body is allotted the task of preparing the judgment of the Committee. This is printed and distributed to the Judges and as finally revised is the judgment, which reaches us in the Appeal Cases. What takes place next is, not that this printed judgment is forwarded by the Judicial Committee to the Privy Council, but the Judicial Committee prepares a special report respecting its judgment and this goes to the Privy Council, where it may be affirmed or modified or rejected, and is then certified so far as our Supreme Court cases are concerned, to me as registrar, and is the judgment which is substituted by me upon the application of the successful party for the judgment of the Supreme Court. Now, you will see that this machinery is more or less complicated. It is undoubtedly antiquated-and if we were as apt as our American friends to scrap everything that is antiquated, I don't think it would be continued very long. But I think we are inclined always to look at the efficiency of machinery rather than the complications of it.

Unfortunately, however, there is in this antiquated machinery the possibility of difficulty arising in that the judgment published in the Appeal Cases may not be the judgment finally certified to the court below, and which is the judgment of the Privy Council that must be followed. I propose to bring before you an illustration which will interest at any rate lawyers from the Western Provinces, who have so much to do with legislation affecting the liquor traffic.

You will remember that the question of importation of liquor into provinces is largely governed by the judgment of the Judicial Committee reported in 1896 Appeal Cases, the Attorney-General for Ontario vs. Attorney-General for the Dominion, in which certain questions are answered, which had been previously answered by the Supreme Court of Canada.

Question 4 was: "Has a provincial legislature jurisdiction to prohibit the importation of such (spirituous, fermented or other intoxicating) liquors into the province?" The answer to the inquiry on p. 371 of the report is: "Their Lordships answer this question in the negative. It appears to them that the exercise by the provincial legislature of such jurisdiction in the wide and general terms in which it is expressed would probably trench upon the exclusive authority of the Dominion Parliament." Now this decision was discussed by the Judicial Committee later on in AttorneyGeneral of Manitoba vs. Manitoba License Holders Association (1902) A.C. 73 where it is said (p. 79) "It (the decision of 1896 A.C.) held further that there might be circumstances in which a provincial legislature would have jurisdiction to prohibit the importation of such liquors into the Province."

Now, it is apparent, that this statement in the later case is not justified by the earlier decision, indeed is categorically opposed to the part of the answer given, where the judgment as to the powers to prohibit importation says:

"Their Lordships answer this question in the negative."

Now how is the difference to be explained? I have the documents here and can answer the question.

After the judgment was written by Lord Watson which appears in the Appeal Cases, it was the duty of the Judicial Committee to convey that information to the King-in-Council, so that it might be forwarded to the Supreme Court of Canada. This was done, not by sending Lord Watson's judgment, but by drafting a report to the Judicial Committee containing that information, and this I also have in my hand. This is cited in the Privy Council Order which was sent to the Supreme Court and is as follows:

It starts out by saying that "His Majesty being so pleased has made a general order-in-council" referring to this particular matter of appeal. Then it sets out what the questions are, just as we have recited them. Then it goes on to state that the matter was

heard on such and such a date. Then it proceeds "The Lords of the Committee in obedience to your Majesty's said general order, of reference have taken the said humble petition and appeal into consideration, etc.” "and having heard counsel on behalf of the appellant, do agree humbly to report, etc." "that there ought to be substituted the following answers to the said seven questions." We then have the answer to the fourth question-not as it appears in the Appeal Cases-but as stated by Lord Macnaghten in the later case, viz.:

"In answer to the fourth question, no useful answer can be given to this question in the absence of a precise statement of the facts to which it is intended to apply. There may be some circumstances in which the Provincial Legislature will and others in which it will have no such jurisdiction.”

We have therefore that difference between the King's order, which was sent back to the Supreme Court and which was made a judgment of the Supreme Court, and the judgment in the reports, and as my friend Mr. Lafleur has said, the former after all is the judgment that is binding upon the Courts in. Canada, and not the judgment which may be reported as the opinion of the Board even though it appears in the Appeal Cases.

Now I have in my hand a concrete case based upon this judgment, viz., Little vs. The Attorney-General of British Columbia. It is reported in your Western Weekly Reporter of June 3rd, 1922, and as this illustrates the point I am attempting to make, if you will pardon me, I will quote a portion of the judgment of Mr. Justice Martin in that case, which is applicable. He there says:

"I have not overlooked the extract that the learned Judge (in the Court below) invokes from AttorneyGeneral of Manitoba vs. Manitoba License Holders' Association, but I can find nothing in it which shows that the Privy Council, per Lord Macnaghten, there adopted the view expressed in the unpublished and unproduced report to Her Majesty of May 9th, 1896,