Supreme Court of Canada
In re Smart, (1889) 16 S.C.R. 396
Date: 1889-04-20
In re Mabel Beatrice Smart and Others, Infants.
1889: March 28; 1889: April 20.
Present: Strong, Fournier, Taschereau, Gwynne and Patterson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Appeal—Habeas corpus proceeding—Time for appealing—Commencement of proceedings in appeal.
For the purpose of an appeal to the Supreme Court of Canada in a habeas corpus case the first step is the filing of the case in appeal with the registrar.
The judgment of the Court of Appeal in a habeas corpus proceeding was pronounced on Nov. 13th, 1888. Notice of intention to appeal was immediately given but the case in appeal was not filed in the Supreme Court until Feb. 18th, 1889.
Held—That the appeal was not brought within sixty days from the date on which the judgment sought to be appealed from was pronounced and there was no jurisdiction to hear it.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of the Divisional Court in a proceeding by writ of habeas corpus.
The writ was issued by David Smart to obtain the possession of his children from their mother. After the case had been opened before Mr. Justice Ferguson he made an order directing that no further proceedings be taken on the writ but that the matter should be brought before the court by way of petition by the applicant. On appeal from this order the Divisional Court varied it by directing that the writ of habeas corpus should remain in force, and that the questions for trial under the return thereto should be tried at the same time and place as the questions under the petition directed by said order to be filed. The
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judgment of the Divisional Court was affirmed by the Court of Appeal. The mother of the infant children then appealed to the Supreme Court of Canada, seeking to have the original order of Mr. Justice Ferguson restored.
The judgment of the Court of Appeal was pronounced on Nov. 13th, 1888. Notice of intention to appeal to the Supreme Court of Canada was given by the mother a few days after, but nothing was done in the way of prosecuting the appeal until Feb. 18th, 1889, when the record was filed in the office of the registrar of the Supreme Court. The appellants obtained no order for the allowance of the appeal, and in a habeas corpus case no security for costs is required.
On March 19th, 1889, Gormully moved that the appeal be quashed for want of jurisdiction, or that an early day be fixed for the hearing. The court directed the registrar to have it placed at the head of the Ontario cases for the February session and the motion to quash to stand until the hearing.
S.H. Blake Q.C. for the appellant.
W.H. Kerr Q.C. and Scott Q.C. for the respondent.
The judgment of the court was delivered by
STRONG J.—The court is of opinion that the motion to quash this appeal must be granted. The judgment of the Court of Appeal for Ontario, from which the present appeal is brought, was pronounced on the 13th day of November, 1888. Notice of the appellant’s intention to appeal to this court was given within a short time after the judgment, but no actual proceeding in such appeal was taken until the case or record now before us was filed in the office of the registrar of this court, on the 18th day of February, 1889. In appeals in habeas corpus proceedings, no security being required, the first proceeding must necessarily be the filing of the
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case in the Supreme Court, and that step must be taken within sixty days from the date on which the judgment appealed from was pronounced, there being nothing in the Act of Parliament which governs the jurisdiction and procedure of the court exempting habeas corpus appeals from the operation of the 40th section of the statute. It is therefore impossible to do otherwise than quash the appeal which the court has no jurisdiction to entertain either by enlargement of the time or otherwise.
Appeal quashed with costs.
Solicitors for appellants: Blake, Lash & Cassels.
Solicitor for respondent: H.J. Scott.
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