Nadan v R

Last updated
Nadan v R
Royal Arms of the United Kingdom (Privy Council).svg
Arms of the Judicial Committee of the Privy Council
Court Judicial Committee of the Privy Council
Full case name Frank Nadan v The King
Decided25 February 1926
Citation[1926] UKPC 13, [1926] AC 482
Case history
Appealed fromAppellate Division of the Supreme Court of Alberta Flag of Alberta.svg
Court membership
Judges sitting The Lord Chancellor, Lord Dunedin, Lord Shaw, Lord Phillimore, Lord Blanesburgh
Case opinions
Decision by The Lord Chancellor
Keywords
Royal prerogative, jurisdiction of the Judicial Committee of the Privy Council

Nadan v R [1] is a key ruling of the Judicial Committee of the Privy Council in determining the competence of the Parliament of Canada with respect to the restrictions laid out in the Colonial Laws Validity Act 1865 , and whether it possessed extraterritorial jurisdiction.

Contents

Background

In 1875, the Parliament of Canada established the Supreme Court of Canada as a general court of appeal. This did not, however, bar rulings from the various provincial courts of appeal from being appealed directly to the Judicial Committee of the Privy Council. [2] In 1888, Parliament enacted a provision to abolish appeals in criminal cases to the Judicial Committee of the Privy Council, [3] which was later incorporated as s 1025 of the Criminal Code :

1025. Notwithstanding any Royal Prerogative, or anything contained within 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 by which in the United Kingdom appeals or petitions to His Majesty in Council may be heard.

In 1924, Frank Nadan, working for his employer (a British Columbia common carrier), was transporting intoxicating liquor from Alberta to Montana, which was subject to a prohibition on alcohol. Near Coleman, Alberta, he was arrested by the Alberta Provincial Police for:

  • having liquor not sealed in accordance with Alberta's liquor control laws, and
  • transporting liquor in a manner not allowed by the Canada Temperance Act .

He was convicted on both counts, and appealed these convictions to the Appellate Division of the Supreme Court of Alberta. Those appeals were dismissed, but the court gave leave to appeal to the Judicial Committee of the Privy Council.

The respondent presented a petition to the Council, asking that the appeals be quashed because they were barred under s. 1025. Leave was granted for the attorneys-general of Alberta and Canada to intervene.

Judgment of the Privy Council

The appeals were dismissed, but the Privy Council took the occasion to discuss the competence of the Canadian Parliament to abolish criminal appeals to them.

  • the appellant's submission that the first count was not a "criminal case" within the meaning of s.1025 was rejected, as the Privy Council had previously ruled on this question [4]
  • the Board proceeded to consider the effect of s. 1025 on the assumption that it applied to these appeals
  • the Judicial Committee Act 1833 provided for appeals to the Privy Council from any court in "the East Indies and in the Plantations, Colonies and other Dominions of His Majesty abroad"
  • s. 2 of the Colonial Laws Validity Act 1865 provided that any colonial law that was repugnant to any Act of the United Kingdom that extended to that colony was void and inoperative
  • unlike in Australia [5] and South Africa, [6] no provision had been made by the United Kingdom to allow for Canada to restrict appeals to the Privy Council
  • the Board had previously declared that the provinces could not permit "the abrogation of any power which the Crown possesses through a person directly representing it", [7]
  • such restriction on the power of s. 92 of the British North America Act, 1867 applies equally to s. 91
  • therefore, Canada did not have the ability to abrogate a power which remains vested in the Crown itself

On the final question as to whether to recommend special leave to appeal, the Board noted that it was settled practice that, in criminal cases, it would intervene only where substantial and grave injustice had been done by:

  • a disregard of the forms of legal process, or
  • some violation of the principles of natural justice

The present cases did not fall within this exceptional category. Accordingly, dismissal was recommended for these appeals.

Aftermath

After the passage of the Statute of Westminster 1931 , the Parliament of Canada abolished criminal appeals to the Privy Council again in 1933, [8] and that measure was upheld by the Privy Council in British Coal Corporation v. the King . [9] It was followed by the abolition of civil appeals in 1949, [10] after the Privy Council affirmed that Parliament also had the right to do so. [11]

Related Research Articles

<span class="mw-page-title-main">Judicial Committee of the Privy Council</span> Judicial body in the United Kingdom

The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August 1833 to hear appeals formerly heard by the King-in-Council, the Privy Council formerly acted as the court of last resort for the entire British Empire, other than for the United Kingdom itself.

Canadian federalism involves the current nature and historical development of the federal system in Canada.

Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government has encroached upon the exclusive jurisdiction of another level of government.

The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. In the courts, the judiciary interpret and apply the law of Canada. Some of the courts are federal in nature, while others are provincial or territorial.

In Canadian law, a reference question or reference case is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation.

<i>Margarine Reference</i> Canadian constitutional decision

Reference Re Validity of Section 5(a) of the Dairy Industry Act (1949), also known as the Margarine Reference or as Canadian Federation of Agriculture v Quebec (AG), is a leading ruling of the Supreme Court of Canada, upheld on appeal to the Judicial Committee of the Privy Council, on determining if a law is within the authority of the Parliament of Canada's powers relating to criminal law. In this particular case, the Court found that a regulation made by Parliament was ultra vires. Though the regulation contained sufficient punitive sanctions, the subject matter contained within it was not the kind that served a public purpose.

<i>Board of Commerce case</i>

Re Board of Commerce Act 1919 and the Combines and Fair Prices Act 1919, commonly known as the Board of Commerce case, is a Canadian constitutional decision of the Judicial Committee of the Privy Council in which the "emergency doctrine" under the federal power of peace, order and good government was first created.

The Canada Temperance Act, also known as the Scott Act, was an Act of the Parliament of Canada passed in 1878, which provided for a national framework for municipalities to opt in by plebiscite to a scheme of prohibition. It was repealed in 1984.

The Courts of Justice Act 1924 was an Act of the Oireachtas that established a new system of courts for the Irish Free State. Among the new courts was the Supreme Court of the Irish Free State, and the first Chief Justice of the Irish Free State was also appointed under the Act.

<i>British Coal Corp v R</i> Case of the Judicial Committee of the Privy Council

British Coal Corp v R is a decision of the Judicial Committee of the Privy Council in which the authority of the Canadian Parliament to prohibit appeals to the JCPC in criminal cases was upheld.

The Constitution Act 1933 was an Act of the Oireachtas of the Irish Free State amending the Constitution of the Irish Free State which had been adopted in 1922. It abolished the right of appeal from the Supreme Court of the Irish Free State to the Judicial Committee of the Privy Council. It was part of a series of constitutional changes the Fianna Fáil government led by Éamon de Valera had initiated after coming to office in 1932 which reduced the connections between the Irish Free State and the United Kingdom.

<span class="mw-page-title-main">Section 101 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 101 of the Constitution Act, 1867 is a provision of the Constitution of Canada giving the federal Parliament the power to create the Supreme Court of Canada and the federal courts. Although Parliament created the Supreme Court by an ordinary federal statute in 1875, the Court is partially entrenched by the amending formula set out in the Constitution Act, 1982. The composition of the Court can only be changed by a unanimous constitutional amendment, passed by the two houses of Parliament, and all of the provincial legislative assemblies.

References

  1. ↑ Frank Nadan v The King [1926] UKPC 13 , [1926] AC 482(25 February 1926), P.C. (on appeal from Alberta)
  2. ↑ For a complete list of Canadian cases appealed to the Judicial Committee, see: List of Judicial Committee of the Privy Council cases originating in Canada.
  3. ↑ Criminal Procedure Amendment Act, SC 1888, c 43, s 1
  4. ↑ The King v Nat Bell Liquors Limited [1922] UKPC 35 , [1922] 2 AC 128(7 April 1922), P.C. (on appeal from Alberta)
  5. ↑ Constitution of Australia, s. 74
  6. ↑ South Africa Act 1909 , s. 106
  7. ↑ In the matter of The Initiative and Referendum Act being Chapter 59 of the Acts of Legislative Assembly of Manitoba 6 George V. [1919] UKPC 60 , [1919] AC 935(3 July 1919), P.C. (on appeal from Manitoba)
  8. ↑ Criminal Code Amendment Act, SC 1932-33, c 53, s 17.
  9. ↑ British Coal Corporation and others v The King [1935] UKPC 33 , [1935] AC 500(6 June 1935), P.C. (on appeal from Quebec)
  10. ↑ Supreme Court Amendment Act, S.C. 1949 (2nd. session), c. 37, s. 3
  11. ↑ The Attorney-General of Ontario and others v The Attorney-General of Canada and others ("Reference Re Abolition of Privy Council Appeals") [1947] UKPC 1 , [1947] AC 128(13 January 1947), P.C. (on appeal from Canada)

Further reading

Jacqueline D. Krikorian, "British Imperial Politics and Judicial Independence: The Judicial Committee's Decision in the Canadian Case Nadan v. The King," Canadian Journal of Political Science / Revue canadienne de science politique Vol. 33, No. 2 (Jun., 2000), pp. 291-332.

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.