''Nadan v R'' is a key ruling of the

Judicial Committee of the Privy Council 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 Augus ...

in determining the competence of the

Parliament of Canada The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...

with respect to the restrictions laid out in the ''

Colonial Laws Validity Act 1865 The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63) is an Act of the Parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws". The purpose of the Act was to remove any apparent inco ...

'', and whether it possessed

extraterritorial jurisdiction Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries. Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the externa ...

Background

In 1875, the

established the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

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

. In 1888, Parliament enacted a provision to abolish appeals in criminal cases to the

, which was later incorporated as s 1025 of the ''

Criminal Code A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...

'': In 1924, Frank Nadan, working for his employer (a

British Columbia British Columbia (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, ...

common carrier A common carrier in common law countries (corresponding to a public carrier in some civil law systems,Encyclopædia Britannica CD 2000 "Civil-law public carrier" from "carriage of goods" usually called simply a ''carrier'') is a person or compan ...

), was transporting intoxicating liquor from

Alberta Alberta ( ) is one of the thirteen provinces and territories of Canada. It is part of Western Canada and is one of the three prairie provinces. Alberta is bordered by British Columbia to the west, Saskatchewan to the east, the Northwest Ter ...

Montana Montana () is a state in the Mountain West division of the Western United States. It is bordered by Idaho to the west, North Dakota and South Dakota to the east, Wyoming to the south, and the Canadian provinces of Alberta, British Columbi ...

, which was subject to a

prohibition Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption of alcoholic ...

on alcohol. Near

Coleman, Alberta Coleman is a community in the Rocky Mountains within the Municipality of Crowsnest Pass in southwest Alberta, Canada. It was formerly incorporated as a town prior to 1979 when it amalgamated with four other municipalities to form Crowsnest Pass ...

, he was arrested by the

Alberta Provincial Police The Alberta Provincial Police (APP) was the provincial police service for the province of Alberta, Canada from 1917 to 1932. The APP was formed as a result of the Royal North-West Mounted Police (RNWMP) leaving the prairie provinces during the Fi ...

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 The ''Canada Temperance Act'' (french: Loi de tempérance du Canada), 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 s ...

''. He was convicted on both counts, and appealed these convictions to the Appellate Division of the

Supreme Court of Alberta The Court of King's Bench of Alberta (abbreviated in citations as ABKB or Alta. K.B.) is the superior court of the Canadian province of Alberta. Until 2022, it was named Court of Queen's Bench of Alberta. The Court of Queen's Bench in Calgary wa ...

. Those appeals were dismissed, but the court gave leave to appeal to the

. The respondent presented a petition to the Council, asking that the appeals be

quashed Quashed (foaled 1932) was a British-bred and British-trained racehorse, winner of The Oaks in 1935. For many years, the Verdict family was not accepted into the British Stud Book because Quashed's dam was effectively a half-bred and it was n ...

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 :* 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 ''

'' provided that any colonial law that was

repugnant Repugnant was a Swedish death metal band from Stockholm active from 1998 to 2004. The band has been cited as one of the first revivalists of the Swedish death metal movement, along with Kaamos. They recorded their only studio album ''Epitome of ...

to any Act of the United Kingdom that extended to that colony was void and inoperative :* unlike in

Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

and

South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...

, 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", :* such restriction on the power of s. 92 of the ''

British North America Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...

'' 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 In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing (''audi alteram partem''). While the term ''natural justice'' is often retained as a general conc ...

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 Statute of Westminster 1931 is an act of the Parliament of the United Kingdom that sets the basis for the relationship between the Commonwealth realms and the Crown. Passed on 11 December 1931, the statute increased the sovereignty of the ...

'', the Parliament of Canada abolished criminal appeals to the Privy Council again in 1933, and that measure was upheld by the Privy Council in '' British Coal Corporation v. the King''. It was followed by the abolition of civil appeals in 1949, after the Privy Council affirmed that Parliament also had the right to do so.

References

{{reflist, 2

Background

Judgment of the Privy Council

Aftermath

References

Further reading