Supreme Court Judgments

Supreme Court of Canada

In re Mélina Trepanier (1885) 12 SCR 111

Date: 1885-03-16

In re Mélina Trepanier.

1885: Mar. 3, 16.

Present—Sir W. J. Ritchie C. J. and Strong, Fournier, Henry and Taschereau JJ.

Habeas Corpus—Conviction before magistrate—Arrest on warrant—Inquiry as to evidence—Certiorari—Jurisdiction of Court—Supreme and Exchequer Court Act sec. 49—R. S. O. ch. 70.

Application was made to the Chief Justice of the Supreme Court of Canada in Chambers, on behalf of a person arrested on a warrant issued on a conviction by a magistrate, for a writ of habeas corpus, and for a certiorari to bring up the proceedings before the magistrate, the application being based on the lack of evidence to warrant the conviction. The application was dismissed. On appeal to the full court,

Held, Henry J. dissenting, that the conviction having been regular, and made by a court in the unquestionable exercise of its authority and acting within its jurisdiction, the only objection being that the magistrate erred on the facts and that the evidence did not justify the conclusion at which he arrived as to the guilt of the prisoner, the Supreme Court could not go behind the conviction and inquire into the merits of the case by the use of a writ of habeas corpus, and thus constitute itself a court of appeal from the magistrate's decision.

The only appellate power conferred on the court in criminal cases is by the 49th section of the Supreme & Exchequer Court Act, and it could not have been the intention of the legislature, while limiting appeals in criminal cases of the highest importance, to impose on the court the duty of revisal in matters of fact of all the summary convictions before police or other magistrates throughout the Dominion.

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Section 34 of the Supreme Court Amendment Act of 1876 does not in any case authorize the issue of a writ of certiorari to accompany a writ of habeas corpus granted by a judge of the Supreme Court in Chambers; and as the proceedings before the court on habeas corpus arising out of a criminal charge are only by way of appeal from the decision of such judge in chambers, the said section does not authorize the court to issue a writ of certiorari in such proceedings; to do so would be to assume appellate jurisdiction over the inferior court.

Semble, per Ritchie C.J., that ch. 70 of the Revised Statutes of Ontario relating to habeas corpus does not apply to the Supreme Court of Canada.

Appeal from an order in chambers of Sir W. J. Ritchie C.J. dismissing an application for a writ of habeas corpus and a writ of certiorari in the matter of Mélina Trepanier, arrested on a warrant issued on a conviction by a police magistrate.

The prisoner was charged with vagrancy, tried summarily and convicted by the police magistrate of the city of Ottawa, and was sentenced to the Mercer Reformatory for fifteen months.

The jurisdiction of the police magistrate and the conviction and warrant of commitment were not objected to, but the prisoner's counsel contended that the magistrate had erred on the facts, and that, under the Supreme and Exchequer Court Act, a judge of the Supreme Court of Canada had power to issue a writ of certiorari in order to bring up the proceedings anterior to the warrant, to ascertain whether there was sufficient evidence to convict, and if not, that he, the prisoner, was entitled to be discharged.

Mosgrove for prisoner cited and relied on 32 and 38 Vic. ch. 28 sec. 1; 29 and 30 Vic. ch. 45, sec. 5; 38 Vic. ch. 11 sec. 51; 39 Vic. ch. 26 sec. 34; 29 and 30 Vic ch. 25 sec. 66, and in re Mosier[1].

Lees Q.C. for the respondent cited Regina v. Russell[2];

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32 and 33 Vic. ch. 32, sec. 28, Ex parte Yarbrough[3]. R. S. O. ch. 70.

Sir W. J. RITCHIE C. J.—The jurisdiction of the magistrate being unquestionable over the subject-matter of complaint and the person of the prisoner, and there being no ground for alleging that the magistrate acted irregularly or beyond his jurisdiction, and the conviction and warrant being admitted to be regular, the only objection being that the magistrate erred on the facts and that the evidence did not justify the conclusion as to the guilt of the prisoner arrived at by the magistrate, I have not the slightest hesitation in saying that we cannot go behind the conviction and inquire into the merits of the case by the use of the writ of habeas corpus.

The commitment having been made by a court of competent jurisdiction in the exercise of its unquestionable authority, this court, assuming the conclusion arrived at to have been erroneous, has no authority to review the proceedings, or, in other words, to re-try the case. It cannot be disputed that we have no power to quash the conviction. If the conviction shows a want of jurisdiction, or if it was shown that the magistrate had no jurisdiction, it would be a nullity, and we would discharge the prisoner, because, in such a case, he could not be held by process of any legal tribunal; but with a valid conviction standing against him, and a regular warrant issued thereon, upon what principle can he be discharged?

If there is a principle clear beyond all doubt, it is that when a party is in execution under the judgment of a competent court in which the legislature has entrusted the jurisdiction on the merits to a magistrate, whatever his decision on the merits may be, it cannot

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be reversed on habeas corpus. I will cite a series of decisions establishing this beyond all question.

In The Queen v. The Overseers of Wallsall[4] Cockburn C. J. says:—

It is true that there is inherent in the jurisdiction of the Court of Queen's Bench authority to bring before it by writ of certiorari, save where the writ is taken away by statutory enactment or charter, the proceedings of any court of inferior jurisdiction, with a view to quash such proceedings. But this applies only where there is some defect of jurisdiction or informality or defect apparent on the face of the proceedings. The court cannot—and this must be carefully borne in mind—give itself appellate jurisdiction through the writ of certiorari, where it otherwise possesses none.

In Dime's Case[5] Patteson J. says:

If we entertain the question whether there was such a valid injunction, we directly review the judicial decision of the Vice Chancellor. We can no more do this than the court in the case of the Sheriff of Middlesex could review the decision of the House of Commons.

The returns show that the Vice-Chancellor heard and determined this, and, as it is a matter within his jurisdiction, his determination is final. The affidavits cannot be received.

In Carus Wilson's Case[6] Lord Denman C.J. says:

Without inquiring whether any affidavit is receivable at all in the case of any prisoner under sentence, we may decide the question before us by considering the principle of the exception that runs through the whole law of habeas corpus, whether under common law or statute, namely, that our form of writ does not apply where a party is in execution under the judgment of a competent court. If, indeed, it were proposed to show that the prisoner had never been before such court at all, or that no such sentence had been in fact given, there might be a difficulty in saying that a traverse to that effect could not be allowed. But when it appears that the party has been before a court of competent jurisdiction, which court has committed him for a contempt, or any other cause, I think it is no longer open to this court to enter at all into the subject-matter. If we are to do so, we should constitute ourselves a court of error from such other court, and should be constantly examining whether the circumstances, the existence of which was proved, warranted the opinion which such court had formed.

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In Brittain v. Kinnaird[7] the marginal note is:

In an action against a magistrate, a conviction by him, if no defect appear on the face of it, is conclusive evidence of the facts contained in it.

And Dallas C. J. says in the same case:

The general principle applicable to cases of this description is perfectly clear; it is established by all the ancient and recognized by all the modern decisions; and the principle is, that a conviction by a magistrate who has jurisdiction over the subject-matter is, if no defects appear on the face of it, conclusive evidence of the facts stated in it.

Parke J. says:

All the cases from Hardress downward concur in one uniform principle, that where a magistrate has jurisdiction a conviction by him is conclusive evidence of the facts stated in that conviction.

Burrough J.:

Since I have been in Westminster Hall it has never been doubted that where a magistrate has jurisdiction a conviction, having no defects on the face of it, is conclusive evidence of the facts which it alleges.

And Richardson J. says:

Upon the general principle, therefore, that where the magistrate has jurisdiction his conviction is conclusive evidence of the facts stated in it, I think the rule must be discharged.

In The Queen v. Bolton[8] Lord Denman C.J. says:

The first of these is a point of much importance because of very general application; but the principle upon which it turns is very simple; the difficulty is always found in applying it. The case to be supposed is one like the present in which the legislature has trusted the original, it may be (as here) the final, jurisdiction on the merits to the magistrates below; in which this court has no jurisdiction as to the merits either originally or on appeal. All that we then can do, when their decision is complained of, is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular and according to law. Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.

Where the charge laid before the magistrate, as stated in the information, does not amount in law to the offence over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give

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him jurisdiction; the conviction would be bad on the face of the proceedings, all being returned before us. Or if, the charge being really insufficient, he had mis-stated it in drawing up the proceedings, so that they would appear to be regular, it would be clearly competent to the defendant to show to us by affidavits what the real charge was, and that appearing to have been insufficient we should quash the conviction. In both these cases a charge has been presented to the magistrate over which he had no jurisdiction; he had no right to entertain the question or commence an inquiry into the merits, and his proceeding to a conclusion will not give him jurisdiction. But if, as in this latter case, we cannot get at the want of jurisdiction but by affidavits, of necessity we must receive them. It will be observed, however, that here we receive them, not to show that the magistrate has come to a wrong conclusion, but that he never ought to have begun the inquiry. In this sense, therefore, and for this purpose, it is true that affidavits are receivable.

But where a charge has been well laid before a magistrate, on its face bringing itself within his jurisdiction, he is bound to commence the inquiry; in so doing he undoubtedly acts within his jurisdiction; but in the course of the inquiry, evidence being offered for and against the charge, the proper, or it may be irresistible, conclusion to be drawn may be that the offence has not been committed, and so that the case, in one sense, was not within his jurisdiction. Now to receive affidavits for the purpose of showing this is clearly in effect to show that the magistrate's decision was wrong if he affirms the charge, and not to show that he acted without jurisdiction; for they would admit that, in every stage of the inquiry up to the conclusion, he could not but have proceeded, and that if he had come to a different conclusion his judgment of acquittal would have been a binding judgment and barred another proceeding for the offence. Upon principle, therefore, affidavits cannot be received under such circumstances. The question of jurisdiction does not depend upon the truth or falsehood of the charge, but upon its nature; it is determinable on the commencement, not at the conclusion, of the inquiry; and affidavits, to be receivable, must be directed at what appears at the former stage, and not to the facts disclosed in the progress of the inquiry.

We will cite only two authorities in support of this reasoning. The former, that of Brittain v. Kinnaird[9], and the admirable judgment of Richardson J., at p. 422, are too well known to make it necessary to state them at length.

The second case is a recent decision in the Common Pleas of Cave v. Mountain[10], which we cite only for the rule, which seems to us

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very clearly and satisfactorily laid down by the Lord Chief Justice: "There can be no doubt but that if a magistrate commit a party "charged before him in a case where he has no jurisdiction, he is "liable to an action of trespass. But if the charge be of an offence "over which, if the offence charged be true in fact, the magistrate "has jurisdiction, the magistrate's jurisdiction cannot be made to "depend upon the truth or falsehood of the facts, or upon the evidence "being sufficient or insufficient to establish the corpus delicti "brought under investigation."

These cases were both of them actions of trespass against the magistrate convicting; but they are authorities not on that account the less in point on the present occasion.

And this was a proceeding on certiorari, a fortiori on habeas corpus.

Per Coleridge J. in Dime's case[11]:

Where the judgment complained of is in an inferior court, the case is different. We have before us the judgment in which the vice is alleged to be; and we have power to quash it; but we have not, in the present case, the injunction before us.

Erle J. says:—

I agree that the proposed affidavits cannot be received. The return shows a committal by a court of competent jurisdiction acting within its jurisdiction.

I may observe that an inferior court, such as the Court of Quarter Sessions, is a court over which this court has a controlling power, and whose proceedings are brought here by writ of certiorari in order that we may exercise that controlling power. In that respect such a court differs from the Court of Chancery; and in that respect cases before us, which relate to the inferior courts, are distinguishable from this.

In Thompson v. Ingham[12] Patteson J. says:

The law on this subject, so far as regards the analogous case of magistrate's convictions, was fully discussed in Regina v. Bolton,[13] and it was there held, that where the charge is such as, if true, is within the magistrate's jurisdiction, the finding of the facts afterwards by the magistrate is conclusive; but, where the charge is not such as, if true, would be within the magistrate's jurisdiction, no finding of facts can alter it.

In Brenan's case[14], a case of habeas corpus, Lord Denman C. J. says:

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We are bound to assume, primâ facie, that the unreversed sentence of a court of competent jurisdiction is correct; otherwise we should, in effect, be constituting ourselves a court of appeal without power to reverse the judgment.

In ex parte Partington[15] Lord Denman C. J. says:

There still remains the question whether the commissioner has rightly decided that the prisoner's case was not within the act; but this was a question which he had jurisdiction to inquire into and decide; he has done so, and we are not authorized to review his decision. We by no means intimate a doubt of the propriety of that decision; we simply express no opinion upon it. It may be that there may be no court competent to review it; or it may be that by the Chief Judge or the Lord Chancellor the merits of the decision may be reviewed. It is clear only that we have not that power.

In ex parte Newton[16] the marginal note is:

This court has no power to grant a habeas corpus to bring up a prisoner who has been convicted at the central criminal court, on the ground that the offence charged was committed at a place out of the jurisdiction of that court. The proper course is to apply to the Attorney General for his fiat for the allowance of a writ of error coram nobis, the granting or withholding of which is matter for his discretion.

In re Bailey[17] shows that it may be shown by affidavit that the magistrate had no jurisdiction, but not that the finding of a magistrate within his jurisdiction was wrong.

In Regina v. Russell[18] Cockburn L. J. says:

On this state of facts, and without expressing as yet any opinion as to whether the evidence warranted the court in coming to the decision at which they arrived, there arises this question, whether it is open to the court to inquire whether the Court of Quarter Sessions were warranted in coming to the conclusion at which they arrived. I am of opinion that it is not so open to us. The rule is well established in cases of summary convictions. As to everything which relates to jurisdiction this court will interfere to regulate and set right inferior tribunals, but when once we find that there is jurisdiction this court will not take upon themselves to say whether the decision actually arrived at is that which this court would have come to. It may be that something may happen in the course of a case which is inconsistent with what has been called natural, but what I

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prefer to call rational, justice—such as the refusal to hear a party— and then this court will interfere; but unless something of this sort appears we should not enter into the merits of the case.

But it is said the Ontario Act gives this court power to review, by way of appeal on the merits, the determination of magistrates on summary conviction in criminal cases under Dominion Acts, and this power it is said the court gets by virtue of the section authorizing the issue of a certiorari to bring up the proceedings. I do not think, as at present advised, that the Ontario statute applies in any way to this court. With reference to the jurisdiction thereby conferred, it relates to imprisonments not for crimes, and is based on 56 Geo. 3 cap. 100, and, as its recital shows, was passed for the same reason, namely, that as 31 Car. 2 cap. 2 relates only to criminal charges, the 56 Geo. 3 cap. 100 extends the right to issue writs of habeas corpus to cases of imprisonment not for crimes, and the Ontario statute has the like object in view, namely, like 56 Geo. 3, to extend the remedy to imprisonments other than for criminal or supposed criminal matters. Therefore, as the jurisdiction of the judges of this court is confined to inquiring into the commitment in any criminal case under the Dominion statutes, the Ontario Act is inapplicable and unnecessary, because the judges of Ontario have the power in criminal cases independent of it. But assuming the jurisdiction to issue writs of habeas corpus under it to apply, as at present advised I am by no means prepared to say that any such jurisdiction necessarily carried with it the power to issue a certiorari, no such power being given by the Supreme Court Act.

The only authority to issue the writ of certiorari is by section 34 of the Amendment Act, which provides that:

A writ of certiorari may, by order of the Supreme Court or a judge thereof, issue out of the said court to bring up any papers or other

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proceedings had or taken before any court, judge or justice of the peace, and which may be considered necessary with a view to any inquiry, appeal or other proceeding had, or to be had, before the Supreme Court.

Thus, while no authority is given to the court to issue the writ of habeas corpus, and an appeal is only given in case of refusal of writ or remand by a judge, so no authority is given to issue the writ of certiorari to bring up the proceedings but such as may be considered necessary with a view to proceedings had, or to be had, before the court.

But assuming the Act and section relating to certiorari to apply, how can it be said to give an appeal to this court? We are to have concurrent jurisdiction with the courts or judges of the several provinces to issue the writ of habeas corpus ad subjiciendum for the purpose of inquiry into the cause of commitment in any criminal case under any act of the Parliament of Canada; so soon as we have issued the writ and inquired into the cause of the conviction, and the proceedings show that the prisoner is held on a regular warrant, issued on a regular conviction by a court of competent judicial authority having jurisdiction over the offence alleged against the prisoner and over the person of the prisoner, and no want of jurisdiction is shown or alleged, we have discharged our duty, and we are bound to refuse the writ, or remand the prisoner if the writ has been issued.

Assuming that we may issue a writ of certiorari under the authority of the Ontario statute, which I am by no means, as at present advised, prepared to admit, we are not bound to do so, but it is a matter discretionary with the judge, as where he has reasonable grounds for thinking the magistrate or court has acted without jurisdiction; or, by way of illustration, where there has been no conviction, as where a magistrate has committed a party for trial and it is alleged there is no

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evidence of a criminal offence sufficient to warrant the committing or detaining the prisoner, in such a case, there being no conviction, the judge would look at the depositions, and under the 29th section bail or otherwise deal with the prisoner, a jurisdiction not conferred by the original Act. So also in cases of extradition, over which this court has now no jurisdiction, but had at the time of the passing of the Act, there being likewise no conviction, the judge, in his discretion, might deem it desirable to see the evidence on which the magistrate held the prisoner for extradition.

This court has no inherent or statutory jurisdiction over the summary proceedings of inferior courts of either civil or criminal jurisdiction. To the Court of Queen's Bench, under powers of the common law, belongs the right to regulate and set right inferior tribunals, and to quash or confirm their proceedings.

The certiorari is the medium through which the Court of Queen's Bench exercises its jurisdiction over the summary proceedings of inferior courts, and always was unless expressly taken away; no writ of error lies upon a conviction, so that a certiorari is the only mode of bringing it into the Queen's Bench in order to revise it. See the remarks of Cockburn C. J. in The Queen v. Overseers of Walsall above quoted.

But still it is urged that there is an inference to be drawn from the power to bring up the depositions and evidence, and therefore there must necessarily be a power to review by way of appeal; but is it not too clear to be doubted that an appeal cannot be so given. An appeal, like a conviction, is the creature of statute law, and never lies unless where it is given by express terms. Queen v. Recorder of Ipswich[19]; Queen v. Justices of Warwickshire[20]; Queen v. Justices of Worcestershire[21];

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Queen v. Inhabitants of Sandon[22]; Attorney General v. Sillem[23].

But apart from this the only appellate power conferred on the court in criminal cases is by virtue of the 49th section of the Supreme and Exchequer Court Act, which provides that:—

Any person convicted of treason, felony or misdemeanor, before any court of Oyer and Terminer or Gaol Delivery, or before the Court of Queen's Bench in the Province of Quebec, on its Crown side, or before any other superior court of criminal jurisdiction whose conviction has been affirmed by any court of last resort, or, in the Province of Quebec, by the court of Queen's Bench on its appeal side, may appeal to the Supreme Court against the affirmation of such conviction; provided that no such appeal shall be allowed where the court affirming the conviction is unanimous, nor unless notice of appeal has been served on the Attorney General for the proper province within fifteen days after such affirmance or refusal.

Having so carefully limited the appeal in criminal cases of the highest importance, can any one suppose that the Parliament ever intended (if it would be done by such a far-fetched inference) to impose on this court the duty of revisal in matters of fact of all the summary convictions before police or other magistrates throughout this Dominion, that is to say, that it was the intention of Parliament in creating this court, a court of last appeal for the determination of questions of the highest importance, to transfer to it by way of appeal the jurisdiction of the police and other magistrates of the Dominion in criminal matters in cases tried summarily before such officers?

As Judge Story in the Supreme Court of the United States[24] says:

If, then, this court cannot directly revise a judgment of the Circuit Court in a criminal case, what reason is there to suppose, that Congress intended to vest it with the authority to do it indirectly?

And as was said in ex parte Kearney[25]:

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If every party had a right to bring before this court every case in which judgment had passed against him for a crime of misdemeanor or felony, the course of justice might be materially delayed and obstructed, and in some cases totally frustrated. If, then, this court cannot directly revise a judgment of the Circuit Court in a criminal case, what reason is there to suppose that it was intended to vest it with the authority to do it indirectly?

Can it be supposed the Dominion Parliament could have intended that this appellate court, established for the whole Dominion, with its limited and guarded appeal in both civil and criminal cases, should, indirectly, in addition, be clothed with authority, and bound, to revise the proceedings under any conviction of police or other magistrates having jurisdiction over the person and subject-matter adjudicated on, and the unseemly spectacle of this, the highest tribunal of the Dominion, turned practically into a police court, to retry the case of every vagrant or keeper of a disreputable house, who may be dissatisfied with the judgment of the police magistrate, for they are those who have sought the interposition of this court, and who, of all others, should be dealt with summarily and promptly, and in the interest of decency and morality, and with whom no tribunal in the country is more competent to deal than the police authorities? The police magistrate summarily disposes of the vagrant, and other simple offenders; if the present contention is maintained all any of these gentry, if convicted, would have to do, would be to apply to a judge of this court, and have, as of right, his case reheard, and on being remanded, have then, as of right, an appeal to this court if in session, and no matter what the business may be before the court, a right to a re-hearing at an early date, or if the court is not in session, a right to require the court to be called together to hear his appeal; for if he has a right to come here, and the appeal exists as is claimed, the Supreme Court Act provides that appeals in habeas

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corpus shall be heard at an early date, whether in or out of the prescribed sessions of this court. There is something so unreasonable, I may say utterly absurd in this, that I can hardly deal seriously with the case.

The United States Congress has described affirmatively the appellate jurisdiction of the Supreme Court, and that affirmative description has always been held to imply a negative of the exercise of such appellate power as is not comprehended within it.

STRONG J.*—I have had occasion, upon applications in chambers for writs of habeas corpus and certiorari, to consider the question raised by this appeal, and the conclusion to which I have invariably come is the same as that which the Chief Justice has stated in the judgment just delivered. The considerations which have led me to that conclusion are as follows:

A very slight consideration of the statutory enactments, under which alone this court has any jurisdiction to issue the writ of habeas corpus, will be sufficient to demonstrate that there exists upon the return to a writ of habeas corpus, no jurisdiction except to consider merely whether a sufficient ground is shewn for detaining the prisoner or not. Throughout it must be borne in mind that the whole jurisdiction of this court is statutory, and that its powers as originally conferred by the first Act were direct, and not by reference to the powers possessed by other courts in England or in the provinces. The Supreme Court has no common law jurisdiction. It has not, as many of the provincial courts have, as, for instance, the High Court of Justice in Ontario has, and as the former Courts of Common Law in Ontario had, the same jurisdiction as the Court of Queen's Bench at Westminster. In Upper Canada, by the statute of 31 Geo. III., the jurisdiction exercised by the Court of Queen's Bench at Westminster was

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conferred upon the Court of King's Bench in that province, and is now exercised by courts which have succeeded to the jurisdiction of the King's Bench. Such courts, therefore, possess by virtue of this referential legislation that extensive common law jurisdiction which enabled the Court of Queen's Bench at Westminster to protect the liberty of the subject by writ of habeas corpus, and also by certiorari, to superintend the administration of the law by inferior courts. The first provision in regard to this court, in relation to the writ of habeas corpus, is in section 51 of the Supreme Court Act of 1875, as now amended, which enacts:

That any judge of the Supreme Court shall have concurrent jurisdiction with the courts or judges of the several provinces to issue the writ of habeas corpus ad subjiciendum for the purpose of inquiring into the cause of commitment in any criminal case under any Act of the Parliament of Canada.

Now, the very name and tenor of the writ of habeas corpus indicates what, and what only, can be done under it. The writ is called the writ of habeas corpus cum causâ; that is to say, its tenor is to direct the officer to produce before the judge or court the body of the prisoner, together with the cause which he has for detaining him. Therefore, the only consideration which, on the return to the writ of habeas corpus, can be entered upon by the court or judge is the sufficiency of the commitment. If the officer returns to the writ a good commitment, whether it is in pursuance of a sentence of a common law court, that is a sentence following a conviction by a jury, or whether it is a commitment following a summary adjudication by a magistrate under a statutory jurisdiction, in either case that is conclusive. In the original Supreme Court Act—the statute I am now considering—no provision whatever was contained as to the writ of certiorari, and therefore there is no pretence for saying that, accompanying the writ of habeas corpus, either a judge in chambers or the

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court could issue a writ of certiorari to bring up something behind the warrant, namely, the conviction. But I have no doubt that, under this section 51, if a prisoner was brought before the court on a writ of habeas corpus, and the return to the writ showed he was in custody, not under any conviction by a court or magistrate, but under a commitment for trial, then the judge might, if the materials for the purpose could be got before the judge, consider and determine whether it would or would not be proper to take bail. I do not conceive that it is impossible for the depositions to be produced for that purpose without a writ of certiorari. They may be produced by consent of the Crown, or possibly the original depositions may be produced by authority of the committing magistrate. Be that as it may, if, on a return to a writ of habeas corpus, it appears that the prisoner is committed for trial on a criminal charge under a Dominion statute, I have no doubt that, under this first enactment relating to habeas corpus under section 51, the prisoner could be either bailed or remanded; but if the prisoner was in custody after conviction, the conviction could no more, in the case of a summary conviction by a magistrate, be brought before the judge, than could the record of conviction after a trial by a jury. If the commitment was upon a conviction, and the warrant of commitment was regular upon its face, that was conclusive as a return to the writ of habeas corpus.

The next statute we find dealing with this question is the Supreme Court and Exchequer Court Amendment Act of 1876; and under the 29th section of that Act extended powers were given. There was a reason why these extended powers should be given. If I am wrong in what I have just said as to the power under the first Act, in case of a commitment for trial, in regard to the power to bail,

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this section gives express power in that respect. I take it that this section was enacted, ex abundanti cautelâ, more exactly to define the powers of a judge under the writ of habeas corpus. We find no mention whatever of the writ of certiorari; and, as I have shown, by the writ of habeas corpus alone it is impossible that the judge can get the record before him. There is, however, in section 34 of the same Act of 1876, provision as to the writ of certiorari. This section is as follows:

A writ of certiorari may, by order of the Supreme Court or a judge thereof, issue out of the said court, to bring up any papers or other proceedings had or taken before any court, judge or justice of the peace, and which may be considered necessary with a view to any inquiry, appeal or other proceeding had, or to be had, before the Supreme Court.

Now, the first observation to be made on this enactment is, that the certiorari authorized by it is only for the purpose of bringing up proceedings and papers required before the Supreme Court, and not before a single judge. This had escaped my attention until it was pointed out by my brother Taschereau, and indeed, on one occasion I ordered the writ to issue in what I considered to be a proper case, the representative of the Crown, who appeared before me, not objecting. In that case, the commitment itself showed a clear want of jurisdiction, and I issued the certiorari to bring up the conviction, so that I might be able to remand the prisoner if it appeared to be good. I now see I was wrong in doing so, and that the writ of certiorari provided for by section 34 is not meant to accompany a writ of habeas corpus returnable before a single judge, but was intended to be returnable before the Supreme Court alone. Therefore, a writ of certiorari returnable before a judge in chambers is not warranted by the statute at all. This being so, how is it possible that the record of the conviction can be regularly brought before

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the judge at all? The officer who has the prisoner in custody has not the record. He cannot return the record. He can only return the warrant of commitment, and it that appears to be good, it must be conclusive so far as the writ of habeas corpus is concerned. It is said that under the concluding portion of section 29, inferentially, this court, or a judge of this court, possesses the same power as to the writ of habeas corpus as a judge in the province of Ontario possesses, I entirely agree to that. But that provision only applies to the jurisdiction in the writ of habeas corpus and not to the writ of certorari. I think that the object of the statute of the late province of Canada, which gave power to a judge in chambers in Ontario to issue a writ of certiorari, was to enable the judge to issue that writ together with the writ of habeas corpus, which enabled him, in the case of a commitment for trial or for extradition, to have the depositions brought before him, or in the case of a summary commitment by a magistrate, to have the commitment brought before him, and, if the conviction was erroneous, to release the prisoner as being in illegal custody not, however, to quash the conviction. The courts in Ontario having, however, the general jurisdiction to quash convictions returned under writs of certiorari issued by judges at chambers, have exercised the power, and rightly enough, because they had power to do so without expressly defining where the express statutory power ended and the common law jurisdiction conferred by the 31st Geo. III began. I take it to be quite clear that wherever a conviction by a magistrate is produced, if it appears on its face to be good, it is an estoppel until it is quashed; and no statute gives a judge of this court in chambers the power to quash a conviction. Such power belonged to the Court of Queen's Bench in England, and to such courts here as exercise the powers and jurisdiction formerly belonging

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to that court, but to such courts only. In Ontario, in many cases, a single judge, sitting as a court in banc and exercising the powers of the court in banc, has issued a writ of habeas corpus, accompanied by a writ of certiorari, and having undoubted power to do so, has quashed convictions. In such cases it is no excess of jurisdiction in the court to look at the depositions regularly before it and see if there is any evidence of the offence charged—not re-hearing the case, as on appeal, for, no matter how strong the evidence may be for the prisoner, no matter what the preponderance of evidence may be against the prosecution, if there is any evidence whatever, the court will refuse to inter, fere with the conviction. In doing all that the courts undoubtedly exercise a well established and regular jurisdiction.

But if a judge in chambers undertakes to go behind the conviction and to consider the merits at large by way of appeal, I should say there was no jurisdiction to do so.

Upon these grounds I have come to the conclusion that all a judge of this court sitting in chambers can do on the return to a writ of habeas corpus, is, if a proper commitment is returned, to remand the prisoner; or, if the prisoner appears to be only committed for trial, and if the depositions can be got before him in either of the ways before mentioned, to order the prisoner to be bailed; but that is the limit of the jurisdiction under a writ of habeas corpus issued upon the authority of these statutes. I cannot help saying, in conclusion, that the anomaly pointed out already by the Chief Justice must strike anybody at once, for if such a jurisdiction as that now invoked was possessed by the judges of this court, we might in the exercise of it be called upon to review the decisions of police magistrates, recorders

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and justices of the peace sitting throughout the Dominion in all those unimportant cases which they can summarily dispose of, when, if a case should arise in the courts of the highest importance, a state prosecution for treason or sedition, and a point of law should be raised in the highest courts of the provinces, and these courts should come to a decision adverse to the prisoner, though the case were one of the greatest public interest, if that decision should happen to be a unanimous one, we should not have the jurisdiction to review or in any way interfere with it. I cannot believe the legislature ever intended to do anything so anomalous and inconsistent as that, to confer a trifling jurisdiction in regard to prisoners to whom it is reasonable to suppose justice can be done by the provincial courts, and withhold it in the cases to which I refer.

I agree with the Chief Justice that the case should be dismissed.

FOURNIER J.—I have come to the same conclusion. I have had the advantage of reading over the notes of judgment of the learned Chief Justice, and I certainly agree with him.

HENRY J.—I am sorry it is my fortune, or misfortune, to differ in toto cælo with my learned brethren on this most important question, and I shall proceed to state, as briefly as the importance of the case will permit, my views in regard to it. The matter has been considered by me for the last two or three years, having been called upon repeatedly to put in operation the Statute of Canada passed in 1866, previous to Confederation. Having inquired into it, but very willing, as well as my learned colleagues to—I will not say, shirk the duty, but to leave the performance of my duty under it in the hands of the judges of the Superior Courts in Ontario to deal with—I inquired, however,

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whether it was a duty on the judges of this court, and, if it were so, I felt it my duty to perform it. I do not consider myself infallible in these cases, nor do I consider the case so clear of doubt on every side as to say I could not reason it patiently, or that I could fail to give it the consideration which a case of such importance demands. I have not come to a conclusion by a process of hop, skip and jump. I have given judgments in cases such as this before, and I did so deliberately; and I may say, with all due deference to my learned colleagues who have expressed an opposite opinion, that I have heard nothing to vary my mind in the slightest degree as to the correctness of the judgments I have given, and I shall proceed to say how. The learned Chief Justice read a very elaborate opinion, principally to prove that in England an appeal would not lie in a case of this kind, and the only course would be by a writ of certiorari to remove the conviction, in order to have it quashed I am not saying anything at present as to the power of this court to quash the conviction, but I intend to show that this court has that power under the statutes which I consider govern the matter. How do we possess the jurisdiction? I must turn to the statutes that were in operation when we received our appointment, and, although I might consider it derogatory to my position as a judge of this high court to sit in review of the decision of a stipendiary magistrate, I do not claim to myself the right to judge of that question. I was appointed under statutes of the Dominion, and paid for doing my duty under the statutes and the law, and, although it might be perhaps a little derogatory to the position we hold as judges of this, the highest court, to sit in consideration of the liberty of the subject of a very mean caste and poor character, still it is the pride of every Englishman that the law is open to the poor and wretched and to the unfortunate

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and to the vile just the same as it is to the richest man in the country; and it is the duty of the judges—the duty is imposed upon them—to administer justice to the poor and to the unfortunate and to the criminal just as much as to the most honest man of highest respectability in the community. That, I consider, to be the duty of an English judge. That has been always held by them to be their duty, and I consider I am following no mean example when I do likewise. Now, have we the power? I admit that in England, and in the United States, no such power exists as this. I am perfectly free to admit it. I am free to admit, that it is objectionable that this power should be exercised by the members of this court, or that the judges should be called upon to perform this duty; but, at the same time, I consider that I am not the judge of that, and that the legislature is the only judge, and that, being appointed under the legislature, I had to take my duties as the legislature provided them, and not say that it is derogatory to my position to enter into an investigation of this case or of that other.

We are told that this involves an appeal. I do not know that it necessarily does so. In the administration of this matter, and after the proceedings are brought up from a conviction upon the evidence—I would not undertake to set aside the judgment of the magistrate before whom the witnesses were examined, or say he drew a wrong conclusion from such evidence, nor do I think it necessary, to do justice, that I should have that power; but, if a man is imprisoned and tried for one offence, and convicted for another, or is convicted of that offence without the slightest particle of evidence, I would consider I was doing a service to the country by giving him his liberty, and showing to the police magistrate that there was a control, and that he was bound by the law to convict a party according to the

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allegations, and the proofs against him. We are told there is no appeal. Formerly there was an appeal always from the decision of the stipendiary magistrate to the Quarter Sessions, and the statute does not provide for an appeal from the Court of Sessions by issuing a writ of habeas corpus, but it does from the stipendiary magistrate. Then, that appeal being abolished, a statute was passed that is the subject of consideration now, and, in lieu of an appeal to the Quarter Sessions, the Legislature of Canada passed the statute, 29 and 30 Vic. ch. 45 section 1, in these terms:

1. When any person shall be confined or restrained of his or her liberty (except persons imprisoned for debt, or by process in any civil suit, or by the judgment, conviction or decree of any Court of Record, Court of Oyer and Terminer or General Gaol Delivery, or Court of General Quarter Sessions of the Peace, or Recorder's Court, not being a court wherein the recorder shall sit alone without a jury) within Upper Canada, it shall and may be lawful for any of the judges of either of the Superior Courts of Law or Equity in Upper Canada, and they are hereby required upon complaint made to them by or on behalf of the person so confined or restrained, if it shall appear by affidavit or affirmation (in cases where by law an affirmation is allowed) that there is a probable and reasonable ground for such complaint, to award in vacation time a writ of habeas corpus ad subjiciendum under the seal of the court wherein the application shall be made, directed to the person or persons in whose custody or power the party so confined or restrained shall be, returnable immediately before the person so awarding the same, or before any judge in chambers for the time being.

These are the exceptions. That, then, excludes the writ of habeas corpus, in certain cases, and very properly, because before a court of record the parties are tried by a jury, and, in an appeal to this court, the parties are convicted not only by a jury but by five or six judges. The law says there shall be no appeal in a case of that kind, but it is very different from a conviction by a stipendiary magistrate sitting alone in his office; and, therefore, the same legislature which said there should be no appeal by means of a habeas corpus from the judgment

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of six judges and the verdict of a jury, said in effect that there may be still an appeal in that way from the decision of a stipendiary magistrate. Section 5 provides;

5. In all cases, in which a writ of habeas corpus shall be issued under the authority of this Act or of the said Act of the thirty-first year of the reign of King Charles the Second, or otherwise, it shall and may be lawful for the judge or court ordering the issue of such writ, or for the judge before whom such writ shall be returnable, either in term time or vacation, to direct the issuing of a writ of certiorari out of the court from which such writ of habeas corpus shall have issued, directed to the person or persons by whom or by whose authority any such person shall be confined or restrained of his or her liberty, or other person having the custody or control thereof, requiring him to certify and return to any judge in chambers, or to the court, as by the said writ shall be provided, all and singular the evidence, depositions, convictions, and all proceedings had or taken, touching or concerning such confinement or restraint of liberty, to the end that the same may be viewed and considered by such judge or court, and to the end that the sufficiency thereof to warrant such confinement or restraint may be determined by such judge or court.

The word "shall" makes it imperative. If the matter comes before the judge by a writ of habeas corpus, and he deems it right, this enjoins him to issue it. What are the documents to be ordered? The return of the evidence, the examinations. We all know what is the difference between evidence and examinations. If it was not intended that the evidence on a conviction was to be returned and dealt with, why do we find it mentioned here? If it was merely for bailing a party, or looking at the conviction to see if it is good or bad on the face of it, what would a judge want with the evidence, and how can we say that evidence is sought to be got for any other purpose? But the legislature says what it shall be got for—"to the end that the same may be viewed and considered by the judge"—that is, the evidence and conviction, "and to the end," &c., &c.

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Now, we are told that this court cannot have an appeal indirectly, that is, inferentially. Whether this provision includes an appeal cannot admit of a doubt. It is an appeal, not indirectly or inferentially, but directly made to us. The law provides for it. It provides for the trying of the case, and for the appeal by ordering the evidence to be returned with the conviction. The preamble clearly shows the intention of the legislature so to extend the remedy of habeas corpus:

Whereas the writ of habeas corpus hath been found by experience to be an expeditious and effectual method of restoring any person to his liberty, who hath been unjustly deprived thereof; and whereas extending the remedy of such writ, and enforcing obedience thereunto, and preventing delays in the execution thereof, will be advantageous to the public; an Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas, only extend to cases of commitment or detainer for criminal or supposed criminal matter; therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Can ada, enacts as follows:

I have but little to consider in regard to the policy of the enactment, but, in view of the absolute power of a police magistrate to try, without the consent of the accused before him, not only misdemeanors but felonies without any appeal, it may have been properly considered that some review of his finding was desirable. That was not originally provided for this court, but, when the appeal was taken away, it was provided that the judge of a court in Upper Canada should review the finding of the stipendiary magistrate. Then, intentionally or unintentionally, that authority is thrown upon us. We are empowered to the same extent as the judges of the Superior Courts in Ontario, and the same obligation is thrown upon us to exercise that power as is thrown upon them. Under these circumstances let us look at the law. This is the law and this is how it stood. Judges in the Ontario courts fully considered this matter after this statute, and

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adopted it in the light I am now expressing, and I would like to hear some person, reason out the effect of the statute, and show that the judges in Ontario and I are wrong. I have not heard yet what the evidence would be required for if not to be acted upon by the judge; and if, when it is returned, he is to say, I won't look at it, is that what the legislature meant? I cannot come to such a conclusion. But we are told that the certiorari is only to return papers to this court. What does the Ontario statute provide? It provides for the return before the court or any judge in chambers. That power is transferred to us. The statute says—section 51, 38 Vic.—

Any judge of the Supreme Court shall have concurrent jurisdiction with the courts or judges of the several provinces, to issue the writ of habeas corpus ad subjiciendum, for the purpose of an enquiry into the cause of commitment, in any criminal case under any Act of the Parliament of Canada, or in any case of demand for extradition, and if the judge shall refuse the writ or remand the prisoner, an appeal shall lie to the court.

The party whose case is before us was convicted under an Act of Parliament of Canada. We are called upon to issue a writ to enquire into the cause of the commitment, and then the statute I have read enjoins the judges of the courts in Ontario to issue the writ of certiorari—either the judge who issues the habeas or the judge before whom the party is brought subsequently, to get up all these papers. This section before mentioned then puts us in the same position as the judges in Ontario, and can we say we will assume one portion of the duty and not another? If it is derogatory to us to hear these cases, we may consider it derogatory to hear any case. We may consider it derogatory to hear an appeal in a case that involves unpleasantness just as much as any one of these cases that have been referred to. Still, it is our duty. Judges in England do not feel it derogatory to have to enquire into any

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case that arises. They search the case to the bottom and sift the evidence—some of it most disgusting—but they think it their duty to do so. We are told the writ of certiorari does not lie, but this section in question gives us the right to order it. There is express power given. That refers to the general power to issue a writ of certiorari. It may apply to civil proceedings. It applies to everything and to any matter which is before this court, and when the parties can show good and reasonable cause for bringing up certain papers in the custody of parties, and required for the inspection of this court, the judge is authorized to issue a certiorari to bring them up. But how do we get clear of this portion of the statute of Canada? For, we must bear in mind, that statute was passed by Canada only the year before Confederation, in 1866, and, when this Act was passed in 1875, that Act had been nine years in operation in the Province of Ontario; and certainly when we are told we have the same jurisdiction as the judges in Ontario, I think we have the right to issue a writ of certiorari, because the judges in Ontario are authorized to issue it—not only authorized, but required. But, we are told, we have no power to quash the conviction. In the first place, I do not consider it is necessary that we should have that power. We could order the discharge of the party, if wrongfully confined, leaving it to him to get the conviction quashed or not. The party is clear of the operation of the conviction by getting his liberty, and it is a matter of mere moonshine, I take it, whether the conviction is quashed or not. It has no practical value for or against the prisoner. But I go further and maintain that, under the general powers in regard to the habeas corpus and the issue of a writ of certiorari to bring up the proceedings, we have the same power as the judges in Ontario, and they have power to quash the conviction I think,

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therefore, we have the power to do so. I do not wish to take up more time than necessary, but, it being significantly suggested that points decided in my judgments before referred to were hardly worth considering, I have defended my position, and in as moderate terms, I think, as the circumstances required. I consider that the evidence that is given of what has been done in England, the practice in England and the practice in the United States, and what would be the practice here but for these statutes, need no quotations to establish. It is well known that without statutory power we could not exercise the appellate jurisdiction by means of a habeas corpus, and, if that appellate jurisdiction were not given to us, I would be in perfect harmony with my colleagues in regard to this matter. We are told this would add largely to the amount of duties of this court. I have not ascertained that it would. So far, in the experience of nine or ten years, it has not added very much to its duties Perhaps I have had as much as my colleagues altogether, and I have not felt it affect my dignity or my time very materially. I say the reasons given here for us to refuse to discharge this duty would be very good if addressed to the legislature. They would be cogent, they would have an application, and, I would consider, ought to have very great weight. Still, I do not know that these reasons were ever offered to the legislature, for this reason: that these acts were passed in reference to the judges of the courts of Ontario, and then the other statute was passed when this court was appointed and the jurisdiction transferred. Possibly, if this matter had been before the legislature, or the Dominion Parliament for the first time, and the question had been mooted, this disagreeable duty would not have been thrown upon us.

Entertaining these views, I am of the opinion that it is

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the duty of the judges of this court to issue a writ of certiorari. I think it is the duty to go behind the conviction and see whether the party is legally convicted I consider the party is legally convicted if, on the whole view of the evidence fairly applicable to the case and the charge brought against the prisoner, the stipendiary magistrate gives his decision; but, if a case arises where the law is totally misapprehended, or the party is tried for one offence and no evidence given, and he is convicted of that offence upon evidence that does not touch it, I think the law would not be administered, and it would be the duty of a judge of this court to discharge the prisoner. In one respect, I am not sorry that the majority of this court should be against me. It will relieve me and my colleagues of a great deal of perhaps unpleasant duty. I have felt bound to perform it hitherto, and I shall not regret the decision of the court by which I will hereafter not be bound to perform it.

TASCHEREAU J.—I am also of opinion that the appeal should be dismissed for the reasons given by the learned Chief Justice. I may add that I had always a strong doubt as to the constitutionality of the clause in the Supreme and Exchequer Court Act which gives us concurrent jurisdiction with the judges of the Province of Ontario. The point has not been argued, and I only wish to express my present doubt.

Appeal dismissed.

Solicitors for appellant: Mosgrove & Wylde.