SCC as Court of Last Resort Since 1949?
I thought I knew everything about legal research.
I don’t (although I suspect Simon, Simon and Angela do).
And to my surprise, it was Wikipedia that was my source for new information (in particular Wikipedia’s entry on the Judicial Committee of the Privy Council).
We all know that civil appeals from the Supreme Court of Canada to the Judicial committee of the Privy Council were abolished in 1949.
In telling students this, I think I inevitably left the (mistaken) impression, by inference, that one did not need to worry about noting up Supreme Court of Canada cases after 1949 for judicial history (i.e., to see if the case was reversed on appeal) (but I am consistent in telling students that one should always noteup all Supreme Court of Canada decisions from any period of time for judicial and academic commentary and to find “like” cases, which would have, in the situation that follows, have caught the mistake in any event).
However, would you note up the following SCC decision from 1958 for judicial history (i.e., to see if it had been appealed)? The case is:
Earl F. Wakefield Co. v. Oil City Petroleums (Leduc) Ltd., [1958] S.C.R. 361.
Likely not. Until now. If not, you would have missed [1960] A.C. 18 (where the SCC was affirmed on appeal).
It was the following statement in the Wikipedia entry that caught my eye:
Cases begun before 1949 were still allowed to appeal after 1949 and the final case to make it to the Council was not until 1959 with the case of Ponoka-Calmar Oils v. Wakefield, [1960] A.C. 18.
Thus, there are (likely) a number of Canadian cases out there – post 1949 – that were upheld or reversed by the Privy Council in England.
Thoughts? Or was I the only one missing this.
Very interesting! For some reason this makes me think about CanLII. I would love to see a world in which their SCC collection was completed and supplemented with all JCPC/Privy Council cases. Does anyone know how to contribute to the coming into being of such a world?
This wouldn’t (at least in theory) take much. Olmsted’s three volume Canadian Constitutional Decisions of the Privy Council exists and copyright is held by Justice Canada; running that through a scanner and OCR wouldn’t be that difficult.
The Privy Council’s own website is spotty on older material and Canadian is singularly absent.
Reed Elsevier’s Lexis-Nexis service advertises that it has all the relevant Privy Council decisions (as a legacy of QL Systems I suspect. So does Thomson-Westlaw.
Well, I for one would be happy to contribute my time to verifying OCR errors, my money to help defray costs, etc. — in such quantities are available! — to help with such a thing. If anyone from CanLII is listening and interested, do let us know. I would think that there are enough similarly-minded Canadian lawyers that this could be made to happen.
Here’s another glimpse of a time now past. Murigiah v. Jainudeen, [1955] A.C. 145 (P.C.), was, I believe, the last decision of the Judicial Committee of the Privy Council in which a Canadian judge took part. This appeal, from the Supreme Court of Ceylon (as it then was) was argued on October 11, and decided on November 3, 1954. Rinfret, C.J.C., had been mandatorily retired from the Supreme Court of Canada on June 22, having reached age 75. One wonders if he did it to make a point. The appointment of colonial judges to the Judicial Committee had been made possible by the Judicial Committee Amendment Act, 1895, 58 & 59 Vic., c.44 (U.K.). Section 1(2) provides:
Maybe our Right Honourable current Chief Justice could still do that.
Simon’s suggestion that CANLII add to its databases the decisions of the Privy Council published in Olmsted’s Canadian Constitutional Decisions of the Privy Council is a very good one.
After Lexis acquired Quicklaw, this was the first of many enhancements made to the Quicklaw databases. The suggestion to add these particular decisions came from a lawyer in the Ministry of the Attorney General of Ontario who advised that Olmsted was still in regular use by constitutional lawyers.
I am looking now at my copy (deaccessioned from Memorial University). If I ever discard it, I’ve a list of folks who want to acquire it.
Indeed, at one pre-Web stage, I thought that a selection of SCC Charter of Rights decisions should be placed in every school library.