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The Role of the Judicial Committee of the Privy Council

The British Privy Council as it appeared in the 1800's

Until 1888, the Judicial Committee of the Privy Council of Britain (JCPC) was the court of final appeal in Canada for criminal cases. Although the Canadian Supreme Court had been established in 1875 with the intention of having it be the highest court in the land, various factions resisted this jurisdiction and continued to allow appeals to the JCPC.

However, in 1926, once again, criminal appeals were allowed. The JCPC ruled the Canadian law conflicted with the jurisdiction of the JCPC in Canada. In 1933, the Statue of Westminster gave Canada equality with Britain and the decision was again reversed

It wasn’t until 1949 that the Supreme Court of Canada became the last court of appeal for civil cases.

Important Decisions by the Judicial Committee of the Privy Council

Early decisions tended to weaken federal powers and increase provincial powers, especially in the areas of trade and commerce.

  • Funding of Religious Schools – Maher v. Town Council of Portland (1875)
    Although denominational schools in New Brunswick had been publicly supported in the past, the JCPC ruled that there was no law guaranteeing this; therefore, the government of New Brunswick could end this funding.
  • Burial on Sacred Ground – the Guibord Case (1875)
    Joseph Guibord was a member of the Institut Canadien which the Catholic church was trying to suppress. He was refused burial on consecrated ground. The JCPC ruled that the church must bury him on sacred ground, and pay for the burial. There were some protests and his grave was filled with scrap metal to prevent disinterment. However, the church got around the ruling by immediately deconsecrating the ground after his burial.
  • Provincial vs Federal Jurisdiction – Hodge v. the Queen (1883)
    A    rchibold Hodge, a tavern owner, violated Ontario law by allowing a billiard game after hours. He challenged the jurisdiction of the province. Lord Watson of the JCPC stated that “the Dominion Parliament has no authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by section 92 [of the British North America Act, 1867]….” In other words, he lost.
  • Women’s Rights – The “Persons” Case (1928)
    The British North America Act of 1867 stated that only “qualified persons” were allowed to hold seats in the Senate. At the time, women were not considered “persons”. (See the article on Clara Brett Martin, the first female lawyer in Canada, who had to challenge the “persons” designation of the Law Society of Upper Canada.) In 1928 the Supreme Court of Canada ruled that women were not persons but this was overturned by the JCPC.