Supreme Court of Canada
O’Neil v. Attorney General of Canada, (1896) 26 SCR 122
Date: 1896-03-24
GEORGE O'NEIL (PLAINTIFF)
Appellant;
And
THE ATTORNEY GENERAL OF CANADA (INTERVENANT)
Respondent.
1896: Feb 24; 1896: Feb 25; 1896: Mar 24
PRESENT :—Sir Henry Strong C.J., and Taschereau, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
The Criminal Code, sec. 575—Persona designata—Officers de facto and de jure—Chief Constable—Common gaming house—Confiscation of gaming instruments, moneys, &c.—Evidence—The Canada Evidence Act, 1893, ss. 2, 3, 20 and 21.
Sec. 5 5 of they Criminal Code. authorizing the issue of a warrant to Seize gaming implements on the report of the chief constable or deputy chief constable " of a city or town does not mean that the report must come from an officer having the exact title mentioned but only from one exercising such functions and duties as will bring him within the designation used in the statute Therefore, the warrant could properly issue on the report of the deputy high constable of the city of Montreal. Girouard J. dissenting.
The warrant would be good if issued on the report of a person who filled de facto the office of deputy high constable though he was not such de jure.
In an action to revendicate the moneys so seized the rules of evidence in civil matters prevailing in the province would apply, and the plaintiff could not invoke " The Canada Evidence Act 1893, " so as to be a competent witness in his own behalf in the province of Quebec.
Per Strong C.J.—A judgment declaring the forfeiture of money so seized cannot be collaterally impeached in an action of revendication
APPEAL from the decision of the Court of Queen's Bench for Lower Canada (appeal side), affirming the judgment of the Superior Court, District of Montreal, which dismissed the plaintiff's action with costs.
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The high constable of the district of Montreal, (which includes the city of Montreal as well as a large territory adjacent thereto,) was appointed under a commission from the Crown in the year 1866 and has ever since then continued to hold that office. In 1885 he appointed a deputy, who thereupon took the oath of office, the attesting magistrate adding in the record of the oath the words "jusqu'au ler mai 1886" The deputy was never re-sworn but has continued to act as such ever since then and on the 14th October 1893 in execution of a warrant issued on a report made by him by a police magistrate under the 575th section of the Criminal Code and addressed to him by name as "Deputy High Constable of the City of Montreal," he seized certain moneys and instruments in a common gaming, house within the limits of the city of Montreal.
The section referred to empowers the magistrate to issue a warrant on receiving a report from "the chief constable or deputy chief constable of any city or town or other officer authorized to act in his absence."
The plaintiff claims the money seized as his property which had been only temporarily deposited for safe-keeping in the vault in use in the rooms where the gambling was carried on, and brought action against the high constable and the clerk of the peace for the specific recovery of the moneys in their custody. The judgment of the court pronounced by His Lord-ship the Chief Justice contains a further statement of the case and the questions raised upon the appeal.
Guerin for the appellant. As the moneys are claimed under the legislative authority of the Parliament of Canada the law of evidence in this case would be subjected to the provisions of "The Canada Evidence Act 1893." The court below improperly refused the plaintiff's testimony when tendered, and he is entitled to a new trial, and to be heard as a witness in his own
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behalf. Canada Evidence Act, 1893 ss. 2 3 20 and 21.
The report and seizure were illegally made, the executing officer having no authority under sec. 575 of the Criminal Code and no valid confiscation can be founded upon proceedings irregular and null ab initio, The strict interpretation called for in provisions leading to a forfeiture will not permit any officer to act unless specially designated. Only certain officers in cities and towns are mentioned and " high constables " or their deputies are not included. The additional definitions given in the 4th and 5th clauses of the section make this very clear. Moreover, the deputy who acted in making the report and seizure was not deputy high constable at the time as he had been appointed and sworn only for one year from the 1st May, 1885, and was never re-appointed or re-sworn, and it does not appear that he was even a peace officer.
The confiscation of the moneys was illegal as the provision in sec. 575 therefore is an interference with property and civil rights in the province. British North America Act sec. 92.
So far as the plaintiff was concerned the judgment of the magistrate confiscating the moneys was not res judicator, for he was not a party or privy to the proceedings, and had no power to become a party or cross-examine witnesses in the prosecution of the keepers Of the gaming house upon the information which led to the declaration of forfeiture.
The learned counsel cited the following authorities: Art. 1241 C. C.; Casgrain v. Léblunc () -Pothier (); Starkie on Evidence (); Greenleaf on Evidence ().
Hall Q.C. for the respondent.
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["The court stated that they only wished to hear argument as to the authority of the officer who made the report and seizure.]
The high constable is a common law officer holding his commission from the Crown and is the "chief" or "principal " constable or peace officer of the whole district, including the " city " of Montreal. He is an officer whose character and duties correspond exactly with the description of the officers mentioned in the 575th section of the code. The terms used in the section are merely descriptive of the character of the officer, and the particular title given in his commission is of no consequence. The code sets out, in the first place, the common law officers who may act, and by the 4th and 5th subsections certain municipal police officers are vested with similar powers The high constable holds original authority from the Crown under his commission, and also at common law, and may perform ministerial acts by deputy. The deputy need not be sworn, but in this case the deputy having once been appointed and taken the oath of office the memorandum that he was sworn merely until a certain date is immaterial; he could and did lawfully hold over in his office as such deputy and was at the time of the seizure both de facto and de jure a constable and peace officer within the meaning of the section. See Bacon's Ab. (); Chitty Crim. Law ().
THE CHIEF JUSTICE.—This is an appeal from a judgment of the Court of Queens Bench, which affirmed a judgment of the Superior Court rendered by Mr. Justice Delorimier.
The action as originally instituted was one against Adolphe Bissonnette, high constable of the district of Montreal, and Louis Wilfrid Sicotte, clerk of the peace
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of the same district, to revendicate certain specific moneys remaining in the hands of the defendants, which had been seized under a warrant granted by C. Aimé Dugas, Esquire, one of the police magistrates of the city of Montreal. The money in question was, by an order or judgment of the police magistrate before named, dated the 18th October, 1893, ordered to be forfeited to the Crown for the public uses of Canada. The Attorney General of Canada having intervened in the action for the purpose of maintaining the adjudication of forfeiture the plaintiff contested his grounds of intervention, alleging that the money in question had been illegally seized and forfeited. The action was heard in first instance before Mr. Justice Delorimier in the Superior Court, who gave judgment for the Crown, and this judgment has been maintained upon an appeal to the Court of Queen's Bench by the unanimous judgment of that court. The reasons for the judgment of the Queen's Bench are fully stated in an opinion prepared by Mr. Justice Wurtele.
The Criminal Code, 1892, section 575, enacts as follows '.
If the chief constable or deputy chief constable of any city or town, or other officer authorized to act in his absence, reports in writing to any of the commissioners of police or mayor of such city or town, or to the police magistrate of any town, that there are good grounds for believing, and that he does believe, that any house, room or place within the said city or town is kept or used as a common gaming or betting house the said commissioners or commissioner, or mayor, or the said police magistrate, may, by order in writing, authorize the chief constable, deputy chief constable, or other officer as aforesaid, to enter any such house, room or place,* * * and to seize * * * all tables and instruments of gaming and all moneys and securities for money * * * found in such house or premises.
The police magistrate or other justice of the peace before whom any person is taken by virtue of an order or warrant under this section, may direct any cards, dice, balls, counters, tables or other instruments
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of gaming * * * seized under this Act in any place used as a common gaming house * * * to be forthwith destroyed, and any money or securities seized under this section shall be forfeited to the Crown for the "public uses of Canada.
On the 14th. of October, 1893, Louis Seraphin Bissonnette, then acting as deputy high constable of the district of Montreal (which district includes the city of Montreal), wrote and delivered to C. Aimè Dugas, Esquire, a police magistrate for the city of Montreal, the following report or letter :
MONTREAL, 14th October, 1893.
To Mr. C. A. DUGAS,
Police Magistrate,
Montreal.
SIR,—I beg to report to you that there are good reasons for believing, and I do believe, that the room composing the second flat of the house bearing the civic number twenty-two of St. Lawrence Main Street, in the City of Montreal, is kept and used as a common gaming house as defined in part XIV section one hundred and ninety-six of the Criminal Code of 1892 and this since the first day of May last or about.
LOUIS S. BISSONNETTE,
Deputy High Constable of the City of Montreal, authorized to act in the absence of High Constable Bissonnette of the City of Montreal
On the same day Judge Dugas issued his warrant directed to the same deputy high constable, commanding him to enter the premises referred to in his letter and amongst other things, to seize all moneys and securities for moneys found in the rooms referred to
Under the authority of this warrant the deputy high constable on the same day made an entry into the rooms in question, and seized therein, amongst other things, the moneys sought to be recovered in the present action. By his return to the warrant also dated the 14th October 1893 the deputy high constable certified and returned that he had seized in the premises mentioned in the warrant the moneys
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now in question. On the 18th of October, 1893, Judge Dugas, by an order or adjudication under his hand ordered "that the said moneys so found and described as aforesaid be forfeited to the Crown."
The appellant now insists that these proceedings were irregular and illegal, for the reason that Louis Seraphin Bissonnette, who acted as deputy high constable was not an officer within the meaning, of the section of the code before quoted
Speaking for myself only I am of opinion that the judgment, by which the money was declared forfeited to the Crown, cannot thus be collaterally impeached in this action brought against the high constable and the clerk of the peace for the specific recovery of the moneys seized.
But, assuming that in point of law this is not so and that the action is maintainable if it be shown that Louis Seraphin Bissonnette was not a deputy chief constable within the meaning of section 575 of the code, for the reason that proceedings would have been in that case wholly without jurisdiction and void, I am still of opinion that there is no error in the "judgment of the court below inasmuch as Louis Seraphin Bissonnette, who acted as the deputy of his father, the high constable, was an officer qualified to make the report of the 14th October, 1893, upon which the seizure and subsequent proceedings were founded.
There can be no doubt or question that Adolphe Bissonnette, the father of Louis Seraphin Bissonnette, had been duly appointed by the provincial government of the late province of Canada, under the authority of a statute to be the high constable for the district of Montreal which includes the city and that his appointment had been regularly made by a commission from the Crown which was in full force at the time when the information was laid the war-
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rant issued and the seizure under it made. That the elder Bissonnette came within the description of chief constable, contained in section 575, is too plain for doubt. It is not of course requisite that the exact title of an officer acting under the statute should be that given in the Act itself it is sufficient that his functions and duties are such as to brinog him within the designation used in the statute. Then, it is conclusively proved by the evidence and established by the provincial Act under which Adoiphe Bissonnette was appointed that he was the chief constable of the district of Montreal, and that although he was styled high constable he was also the chief constable of the district. Had the high constable himself acted there could be no doubt, in my opinion, that his acts would have been those of an officer within the words of the law, an officer de jure, and therefore everything he did would have been strictly legal. Adolphe Bissonnette was however absent from Canada at the time the proceedings which led to the seizure and forfeiture of this money were taken, and he had appointed his son Louis Seraphin Bissonnette to act as deputy high constable. This is shewn by the evidence of both the Bissonnettes who have been examined as witnesses.
That the high constable, a ministerial officer, the chief peace officer of the district, having himself original authority from the Crown, and in no sense exercising a delegated authority, could legally appoint a deputy, is, I think, too plain to require argument ().
A great deal has been made of the objection that Louis S. Bissonnette was not regularly sworn. But, in 1885, when he was first appointed to act as deputy high constable he was duly sworn as such before Mr. Desnoyers, a judge of sessions, and one of the police
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magistrates of Montreal, and the book in which his oath is recorded, has been put in evidence. It is true that there is a memorandum added by the clerk, who does not appear to have been authorized to make the entry, that this oath was limited to 1st May, 1886. This limitation of the oath whatever it may mean is however quite immaterial; we have the undoubted fact that the younger Bissonnette had been appointed deputy high constable, and that he took the oath as such. Then there is abundant evidence to show that he had continuously acted as such deputy, from the date of taking the oath up to the time of the proceedings against the gambling house. Mr. Desnoyer's evidence is decisive as to this Therefore I hold Louis Seraphin Bissonnette to have been, not merely de facto but strictly de jure, the deputy chief constable for the district of Montreal, answering in all respects to the description of that officer in section 575 of the code.
But even were this not so and if the appellant's contention that Louis Seraphin Bissonnette is only to be regarded as having been properly qualified to act as a regularly appointed and sworn officer for one year from 1st May, 1885, should be strictly correct in point of law I should still hold that he de facto filled the office of deputy and that being such de facto officer the proceedings taken by him now impeached are not to be vitiated by reason of his not having annually renewed his oath of office. The rule of law is that the acts of a person assuming to exercise the functions of an office to which he has no legal title are, as regards third persons, that is to say, with reference to all persons but the holder of the legal title to the office legal and binding. Especially is this so in the case of officers holding over and continuing to perform official duties after their term has expired. Further this rule has
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been held to apply to a delegate of a delegate whose appointment would be manifestly without legal authority. Further, it has been held to apply even to judicial officers and a fortiori to those appointed for the performance of mere ministerial duties such as a head constable. And particularly it has been held to apply to officers who have failed to qualify themselves by taking an oath of office prescribed by law (). Under this state of the law which, as being part of the general public law, must, I think, apply to all officers mentioned in the Criminal Code which applies to the whole Dominion, and is also I conceive the law of the province of Quebec, I must hold that Louis Seraphin Bissonnette's acts were, even if those of an officer de facto only such as to furnish a sufficient foundation for the proceedings which resulted in the judgment of forfeiture now sought to be avoided.
There is, however, another objection to the appellant's right to recover this money, which would be fatal to his action even if he had succeeded in showing that the judgment of forfeiture was an absolute nullity. In this action the onus is upon him to prove that the money seized belonged to him. It was not taken out of his possession, therefore no presumption of property arises in his favour from the fact of possession The money was, at the time of seizure, in the actual possession of the persons who carried on the gambling establishment in the upper rooms of the house.
It has been argued that from the evidence we ought to conclude that the betting business carried on upon
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the ground floor was in no way connected with the gambling rooms upstairs, and that the appellant merely deposited his money in the safe for convenience. My conclusion would be the reverse of this. It is proved that the managers of the gaming tables were in the habit during the day time of acting as principals in the betting on hoarser races, which the appellant claims to have been his exclusive business and that the money which formed the capital for both the racing and the upstairs business was mixed together and dealt with as a common fund from which both the traffic which the appellant managed, and that carried on in a more secret manner in the rooms above, were supplied with cash. Upon the whole I think the inference drawn by both the Court of Queen's Bench and Mr. Justice Delorimier as to the ownership of the money was entirely correct, and in the words of Mr. Justice Wurtele, that the business which the appellant pretended to have carried on, and that carried on upon the premises used as a common gaming house, were both carried on for the benefit of the same parties."
The constitutional question as to the validity of the legislation applicable to the case is so destitute of any reasonable foundation that it calls for no observations. The same may be also said of the objection that the appellant was held to be incompetent as a witness in his own behalf for there can be no doubt that the law of evidence to he applied was properly held to be that of the province of Quebec. Both these points were indeed disposed of by the unanimous opinion of the court upon the argument here.
The appeal should be dismissed with costs
TASCHEREAU J. took no part
SEDGEWICK and KING JJ. concurred in the of the Chief Justice
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GIROUARD J. This being, a case of confiscation the law under which, it was made must be construed strictly. Article 575 of the Criminal Code of 1892 in certain cases authorizes "the chief constable or deputy chief constable of any city or town, or other officer authorized to act in his absence " to seize all tables and instruments of gaming and all moneys and securities for money. It seems evident to me that this article contemplates that the warrant of seizure should be made by a city or town officer, and not by a county or district officer, and this interpretation becomes clearer when we read "paragraph 4 of the said article * "The expression chief constable includes chief of police, city marshal, or other head of the police force of any city, town or place." And paragraph 5 makes d deputy chief constable " include the deputies of the same officer.
The seizure and confiscation was made in this case by the deputy of the High Constable Adolphe Bissonnette, who is admitted to be " High Constable of and for the district of IV Montreal." In my opinion he is not "the chief constable or deputy chief constable of any city or town or other officer authorized to act in his absence," within the meaning; of article 575 of the code.
If I were without authority I might hesitate to come to that conclusion, but it seems to me that the point is clearly laid down in one or two cases. In Free gard v. Barnes (), a warrant was directed to the constable of D., a parish in the county of W., and was delivered to the county constable of W and executed by him. Held that the warrant could not be executed by any other constable' than by the constable of the parish, and consequently the execution by the county constable was illegal. This decision was affirmed in the case of The (Queen v Sanders () The
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warrant was issued directed to "the constable of Grainsborough," but was delivered to the superintendent of police for the district, and executed by one of the police constables under him. The question was : Was the arrest legal l The Court of Criminal Appeal decided that as the warrant " was directed to the constable at Grainsborough," that is the parish constable only, it could not lawfully be executed by any other person.
True, High Constable Bissonnette has jurisdiction in the city of Montreal but he is not the officer named in art. 575 to execute the seizures therein referred to, and therefore the seizure made by him was illegal. In 1895 the Parliament of Canada amended art. 575 in that respect, but of course that does not apply to the present case. I am therefore of opinion that the appeal should be allowed with costs and the seizure declared illegal
Appeal dismissed With costs,
Solicitors for the appellant: Madore & Guerin.
Solicitor for the respondent: John S. Hall.
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