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Studies on the Canadian Constitution and Canadian Federalism


Last revised:
19 February 2001

The Judicial Committee of the Privy Council and the Canadian Constitution


Claude Bélanger,
Department of History,
Marianopolis College

The J.C.P.C. was a statutory body established in 1833 by an act of the Parliament of Great Britain dispensing justice throughout the British Empire. It reports to its Majesty's Council which gives effect to its recommendations by an Order in Council. It is unthinkable that the recommendation would not be followed.

The J.C.P.C. acted as Canada's last Court of Appeal in constitutional matters until 1949. As a result, much of Canada's constitutional jurisprudence has been established by this Court and it has been the center of much controversy over Canadian federalism. As Alan C. Cairns (in the "The Judicial Committee and its critics," Canadian Journal of Political Science, 1971, pp. 301-345) has written: "The failure of Canadians to agree on a specific formula for constitutional amendment led many critics to place special responsibility for adjusting the B.N.A. Act on the Privy Council, and then to castigate it for not presiding wisely over the adaptation of Canadian federalism to conditions unforeseen in 1867."

Fundamentally two sets of criticisms have been made of the general performance of the J.C.P.C. in interpreting Canada’s constitution: 1) The court would have misinterpreted the fundamental nature of the Constitution Act, 1867, particularly the Peace, Order and Good Government and Regulation of Trade and Commerce clauses; 2) The court, by interpreting the Constitution Act as an ordinary statute, would not have understood the full significance of its actions and would have failed to update the Constitution of Canada.

There is still much debate as to whether or not the contention of the first criticism is correct or not. At a minimum, the fact that there is still debate around the issue would indicate that the matter is not as simple as it first appears. A significant study by G.P. Browne (The Judicial Committee and the British North America Act) sustained that the Court was consistent in interpreting the Act and that a careful analysis of sections 91 and 92 would indicate that they were given a proper judicial interpretation. The second criticism can be termed, in many respects, dangerous and ambiguous. Either it was the duty of the Court to interpret the Constitution Act properly by reflecting the desires of the Fathers of Confederation as found in the statute, or else it was the responsibility of the court to keep the Constitution of Canada up to date and as a result, perhaps, depart from the original meaning of the document. It cannot be both at the same time. The second criticism is dangerous in the sense that it assigns to the Courts a role that our system of government (Supremacy of Parliament) should ascribe more properly that of the elected officials of the country or to the people. It is not, and should not be, the role of a court to reform the system to meet new circumstances. Rather, the courts should interpret, in so far as they can do so, the original intentions of the framers of the statute and leave to the Canadian people the task, through their representatives in Parliament or a referendum process, of making such changes as they see fit to make. It would be dangerous to assign the updating of the Constitution to the courts because as citizens we do not control the actions of judges. Constitutions should reflect the desires and aspirations of the people and only their representatives in Parliament can speak for the people and be controlled by the people. As Cairns has written: "The critics of the Judicial Committee were moved more by the passions of nationalism and desires for centralization than by federalism" (p. 339).

Broadly speaking the outcome of the decisions of the J.C.P.C. have been that 1) restrictive interpretations were given of federal powers leading to a strengthening of provincial powers and the establishment of a "truer" federalism; 2) sections 93 and 133 were interpreted in a restrictive way so that the judicial protection of minority rights has been held to a minimum.

© 2001 Claude Bélanger, Marianopolis College