Alberta (Attorney-General) v. Roskiwich, [1932] SCR 570

Supreme Court of Canada

Alberta (Attorney-General) v. Roskiwich, [1932] S.C.R. 570

Date: 1932-05-13

The Attorney-General for Alberta (Intervener) Appellant;

and

Nick Roskiwich (Defendant) Respondent;

and

Kathleen Roskiwich (Informant)

1932: May 4, 9, 13.

Present: Anglin C.J.C. and Rinfret, Lamont, Smith and Cannon JJ.

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ALBERTA

Appeal—Jurisdiction—Appeal (by special leave from Appellate Division) from judgment of Appellate Division, Alta., rendered on stated case from magistrate re his order made under s. 26 of Domestic Relations Act, Alta., 1927, c. 5, as amended 1928, c. 25—Jurisdiction of Supreme Court of Canada to hear appeal—Jurisdiction of magistrate to make, and of Appellate Division to hear, the stated case—Domestic Relations Act (supra), ss. 26, 30—Magistrates and Justices Act, R.S.A., 1922, c. 78, s. 9—Cr. Code, R.S.C., 1927, c. 36, ss. 761, 765, 749—Supreme Court Act, R.S.C., 1927, c. 35, s. 41.

[Page 570]

A police magistrate made an order against defendant, under s. 26 of the Domestic Relations Act, Alta., 1927, c. 5, that his wife be no longer bound to cohabit with him and that the legal custody of their children, while under 16 years of age, be committed to her. Defendant had taken objections to the magistrate's jurisdiction, and the magistrate, at defendant's request, granted a stated case (purporting to be made under s. 761, Cr. Code, and the Alberta Rules of Court) to the Appellate Division, Alta. That court declared that s. 26 of the Domestic Relations Act was ultra vires, and set aside the magistrate's order. It granted to the Attorney-General for Alberta (intervener) special leave to appeal to this Court. On the appeal coming on for hearing, this Court raised the question of its jurisdiction, and this was the only question argued.

Held: This Court had no jurisdiction to hear the appeal.

Per Anglin C.J.C.: Assuming that (notwithstanding the provincial statutory provisions making applicable Part XV of the Cr. Code) this is

[Page 571]

a civil case (if a criminal case, there would be no appeal to this Court), to which s. 761, Cr. Code, applies, and assuming that the Appellate Division had original jurisdiction to entertain the stated case (if it had not that jurisdiction, it had no jurisdiction to grant leave to appeal to this Court under s. 41 of the Supreme Court Act), any appeal from its decision is precluded by s. 765, Cr. Code, which declares an order made on a stated case to "be final and conclusive upon all parties." As a special provision dealing with a particular subject matter, s. 765, Cr. Code, entirely excludes the jurisdiction which might otherwise have been vested by the general terms of s. 41 of the Supreme Court Act in the Appellate Division to entertain an application for special leave to appeal to this Court (Generalia specialibus non derogant). Some doubt was expressed of the jurisdiction of the Appellate Division to entertain the stated case addressed to it; in this connection, the Magistrates and Justices Act, R.S.A., 1922, c. 78, s. 9, and the Domestic Relations Act, s. 30, and the effect of the amendments to ss. 30 and 26 of the latter Act by c. 25 of 1928, were discussed.

Per Rinfret, Lamont and Smith JJ.: The magistrate had no jurisdiction to state a case for the Appellate Division, nor had that court jurisdiction to pronounce upon it. Proceedings by way of stated case under s. 761, Cr. Code, constitute an appeal; and, being a form of appeal given by Part XV, Cr. Code, stand in exactly the same position as the appeal to the District Court given by s. 749, Cr. Code. S. 30 of the Domestic Relations Act (as amended in 1928, c. 25) makes applicable the provisions of Part XV, Cr. Code, "save as is otherwise specially provided by this or any other Act"; and s. 26 (3) (as enacted in 1928, c. 25) of the Domestic Relations Act makes special provision for an appeal. The effect is, that any right of appeal which a party might otherwise have, under the provisions of Part XV, Cr. Code, is excluded, and the only right of appeal from the magistrate's order is that to the District Court provided by s. 26 (3) of the Act. There being no jurisdiction in the magistrate or the Appellate Division as above stated, this Court is likewise without jurisdiction to entertain the appeal. The result is that the magistrate's order, not having been appealed against, stands.

Per Cannon J.: S. 765, Cr. Code, applied to the proceedings adopted, and the court to which the case was transmitted was to give an order "final and conclusive upon all parties." This would exclude an appeal, even by special leave, to this Court.

APPEAL by the Attorney-General for Alberta (intervener) from the judgment of the Appellate Division of the Supreme Court of Alberta[1].

A police magistrate had made an order against the defendant (the present respondent), under s. 26 of the Domestic Relations Act, 1927, Alta. (statutes of Alberta, 1927, c. 5), that defendant's wife (the informant) be no longer bound to cohabit with him and that the legal custody of their children, while under the age of 16 years, be

[Page 572]

committed to her. The defendant had taken objections to the magistrate's jurisdiction, and the magistrate, at defendant's request, granted a stated case, purporting to be made "under the Provisions of the Criminal Code of Canada, Section 761, and the rules of Court of the Province of Alberta," to the Appellate Division of the Supreme Court of Alberta. The defendant's appeal, upon the stated case, having come on for hearing before the Appellate Division, that court allowed the appeal, declared that said s. 26 of the Domestic Relations Act was beyond the legislative competence of the Province, and set aside and vacated the magistrate's order. The Appellate Division granted to the Attorney-General of Alberta, who had intervened in the said appeal before it, special leave to appeal to the Supreme Court of Canada, and the Attorney-General brought the present appeal. On this appeal coming on for hearing, this Court raised the question of its jurisdiction to hear it, and this was the only question argued.

G. B. Henwood K.C. for the appellant.

Percy G. Davies for the respondent.

ANGLIN C.J.C.—After giving to this case careful consideration, I have come to the conclusion that the appeal must be quashed or dismissed without costs on the ground that there is no jurisdiction here to entertain it.

If there be not jurisdiction in the Appellate Division of Alberta to deal with the stated case submitted to it, we cannot do otherwise than treat the judgment from which it is sought to appeal as a nullity.

Section 9 of the Magistrates and Justices Act (R.S.A., 1922, c. 78) reads as follows:

Except as otherwise specially provided, the Provisions of The Criminal Code of Canada respecting summary convictions, as amended from time to time and proceedings relating thereto shall apply in respect of all convictions or orders made or to be made by justices of the peace and police magistrates.

It has been held in Alberta that the effect of the above section was to introduce into Alberta, in a case such as this, the provisions of the Criminal Code respecting appeals from summary convictions (Part XV) (Prudius v. Johnson)[2]. By s. 749 Cr. C., an appeal is given to the District Court of Alberta; and, by another provincial statute

[Page 573]

(R.S.A., 1922, c. 73, ss. 47-48), provision is made for an appeal from the District Court to the Appellate Division. But, where a case is stated under s. 761 Cr. C. (and the present appellant has elected to resort to that procedure), no appeal lies under s. 749 Cr. C.

S. 761 Cr. C., providing for a stated case, impliedly, if not expressly, contains a provision enabling the court to make rules or orders dealing with such "stated case" (s. 576 Cr. C.), and expressly confines the subject matter of the stated case thereby authorized to

question(ing) a conviction, order, determination or other proceeding of a justice under this Part, on the ground that it is erroneous in point of law, or is in excess of jurisdiction.

Notwithstanding the provision of the Alberta Rules of Court, made by Rule 816, that a stated case may be addressed to the Appellate Division or to a judge (apparently at the option of the applicant), and that, by s. 705 (e) Cr. C., "the court" is defined as follows:

"The court" in the sections of this Part relating to justices stating or signing cases means and includes any superior court of criminal jurisdiction for the province in which the proceedings in respect of which the case is sought to be stated are carried on,

assuming that s. 761 applies to convictions such as that before us, s. 765, as part of Part XV, is also expressly made applicable. That section reads, in part, as follows:

The court to which a case is transmitted shall hear and determine the question or questions of law arising thereon, and shall thereupon affirm, reverse or modify the conviction, order or determination in respect of which the case has been stated, or remit the matter to the justice with the opinion of the court thereon, and may make such other order in relation to the matter, and such orders as to costs, as to the court seems fit; and all such orders shall be final and conclusive upon all parties.

This section in terms precludes any further appeal from the court or judge to whom the stated case has been directed, the decision of the court or judge thereon being thereby declared to "be final and conclusive upon all parties." Part XV of the Criminal Code, although it may, in one aspect thereof, be regarded as provincial, and, as such, ultra vires, (because the Legislature of Alberta adopted the same instead of itself enacting a Summary Convictions Act), is an enactment of the Dominion Parliament and retains its character as legislation duly enacted by that Parliament and, as such, is a statutory provision binding on this court, the validity of which cannot be questioned here.

[Page 574]

Provision for appeal to this court in criminal cases is made by sections 1023 and 1025 of the Criminal Code. There is no other provision for any such appeal. Both counsel agreed at bar and in memoranda subsequently filed by them dealing with the point of jurisdiction (and we are inclined to the same view), that this case is not a "criminal cause," within the meaning of s. 36 of the Supreme Court Act, merely because the Alberta Legislature has seen fit to adopt, and make applicable to it, Part XV of the Criminal Code. This is merely a matter of substituting the procedure of Part XV for a provincial Summary Convictions Act, such as Ontario has.

The appellant and respondent, however, insist that this is a civil case and that, consequently, the appellant has the right to appeal to this court under s. 41 of the Supreme Court Act, by virtue of an order for special leave to appeal made by the Appellate Division of Alberta. Assuming that the Appellate Division of Alberta had original jurisdiction to entertain the "stated case," any appeal from its decision is precluded by s. 765, Cr. C., which prevents an application for special leave to appeal under s. 41 of the Supreme Court Act being entertained by any Canadian court, because s. 765, Cr. C., has declared the order made on a stated case to "be final and conclusive upon all parties." As a special provision dealing with a particular subject matter, s. 765 of the Criminal Code (enacted in 1892 by 55-56 Vic., c. 29, s. 900 (7), and to be found in the Revised Statutes of 1906, c. 146, as s. 765), entirely excludes the jurisdiction, which might otherwise have been vested by the general terms of s. 41 of the Supreme Court Act (enacted in 1920) in the Appellate Division for Alberta, to entertain an application for special leave to appeal to this court from its decision "in any case within s. 36" of the Supreme Court Act. Generalia specialibus non derogant. If, therefore, the case at bar should, because of its nature, be regarded as a civil case, notwithstanding the provisions of the provincial statute which makes Part XV of the Criminal Code applicable to it (a provision which was acted upon and which clearly includes s. 765), as a special provision dealing with a particular subject matter, the latter section must override the provision of s. 41 of the

[Page 575]

Supreme Court Act. (Garnett v. Bradley[3]; Barker v. Edger[4]; see also Maxwell on Interpretation of Statutes, 7th ed., 152).

What I have written above proceeds on the assumption that there was power in the Appellate Division of Alberta to entertain and dispose of "the stated case" directed to it by the magistrate. I entertain some slight doubt, however, of the jurisdiction of that court to entertain, as it did, as a court of first instance, the stated case so addressed to it.

It should be noted that s. 9 of the Magistrates and Justices Act opens with the phrase, "Except as otherwise specially provided,"—evidently contemplating that there may be "convictions or orders made or to be made by police magistrates" to which the Legislature may intend especially to express its intention that the provisions "of The Criminal Code of Canada respecting summary convictions, as amended from time to time and proceedings relating thereto shall (not) apply."

The immediate question before us is whether the section of the Domestic Relations Act (Stats. of Alta., 1927, c. 5, s. 30) excluded the stated case under Part XV of the Code (s. 761 et seq.) by enacting that,

(1) Save as is otherwise specially provided by this or any other Act, the provisions of Part XV and Part XXII of The Criminal Code, shall apply to all proceedings under this Part, save and except that no appeal shall lie from any order made under this Part,

and, if it did, whether, by the amendment of 1928 (Stats. of Alta., c. 25, s. 5) which reads as follows:

Section 30 of the said Act is amended as to subsection (1) thereof by striking out the words "save and except that no appeal shall lie from any order made under this Part" where the same occur therein,

that right was not restored? On the one hand, it is said that s. 30 of the Act of 1927 cuts out every right of appeal and makes the magistrate's decision final. On the other hand, it is said that it merely cuts out the provisions of s. 749 et seq. of the Criminal Code, which deal with the right of appeal strictly so-called, and leave intact the provisions of s. 761 et seq., pertaining to the stated case, and also the indirect appeal by way of certiorari, etc. If the view be correct that s. 30 included in its provision the right of

[Page 576]

appeal by way of a stated case, it would seem logical that the striking out of the final words would have left the parties precisely where they would have been had the concluding words of s. 30, so repealed, never been enacted. In any event, however, whether the right of appeal does or does not include the "stated case," it would seem doubtful that the Legislature thus, intended to restore a right so taken away.

It should not escape notice that s. 30 of the Act of 1927 opens with the words,

Save as is otherwise specially provided by this or any other Act,

thus raising the question whether the amendment to s. 26, also made in 1928 (Stats. of Alta., c. 25), is a special provision dealing with the "stated case." It does not in terms at all apply to a stated case, and its application thereto would seem to depend upon whether or not the stated case is included in s. 30 of the Stats. of Alta., 1927, from which the words,

save and except that no appeal shall lie from any order made under this Part

are deleted by the amendment of 1928. If, as above pointed out, the stated case is included in s. 30, it is likewise included in s. 5 of the amending Act of 1928. Therefore, it seems to me to be made clear that the portion of Part XV of the Criminal Code dealing with the stated case should have application to the case before us. But, either on the ground that Part XV applies and that s. 765 as part thereof also applies, or, on the ground that the application of ss. 761 et seq. is entirely excluded, and the Appellate Division was, accordingly, without original jurisdiction, there can be no jurisdiction to entertain the present appeal here. I am, moreo er, of opinion that, if that court had no jurisdiction to entertain the stated case, it had no jurisdiction to make the subsequent order granting leave to appeal to this court under s. 41 of the Supreme Court Act from its decision. This appeal, therefore, must be quashed.

As this objection was not taken by counsel or at bar, there will be no costs.

The judgment of Rinfret, Lamont and Smith JJ. was delivered by

LAMONT J.—The only question argued before us in this case was whether or not there was jurisdiction in this court to hear the appeal.

[Page 577]

Members of the court called attention to certain grounds on which it was thought our jurisdiction might be questioned and the court requested counsel to submit arguments thereon. Two of the grounds were:—

(1) that it was a criminal cause and therefore excluded ; from our consideration by the language of section 36 of the Supreme Court Act, and

(2) that a police magistrate who makes an order under Part IV of the Domestic Relations Act, 1927 (Alberta), as amended by chapter 25 of the Act of 1928, has no power to state a case for the opinion of the Supreme Court of Alberta, and consequently the Appellate Division of that court was without jurisdiction to give the judgment now sought to be appealed against.

In view of the conclusion at which I have arrived on the second of these grounds, it is unnecessary to deal with the first.

Part IV of the Domestic Relations Act is headed "Protection Orders," and section 26 of that Part authorizes a police magistrate, on the application of a married woman who has been deserted by her husband, where the magistrate is satisfied that the husband is able wholly or in part to maintain his wife or his wife and family, but who has wilfully neglected to do so and has deserted his wife, to summon the husband before him and, after hearing, to make an order, or orders, containing all or any of the following provisions:

(a) that the wife be no longer bound to cohabit with her husband;

(b) that the legal custody of their children under sixteen years of age be committed to the wife;

(c) that the husband shall pay to his wife such weekly sum, not exceeding $20, as the magistrate, having regard to the moneys both of the husband and wife, shall consider reasonable.

Subsection (3) (a) of section 26 reads as follows:

(3) (a) Any party to proceedings under this section being dissatisfied with any order or refusal to make an order pursuant to this section may appeal from such order or refusal to the District Court of the district within which such order or refusal was made, provided such party does within twenty days of the date of the order or refusal appealed from serve upon the police magistrate, who dealt with the matter, and upon the opposite

[Page 578]

party a notice in writing which shall contain the name and address of the appellant and of the opposite party, the substance of the order or refusal appealed from and the date and place of such order or refusal.

This is followed by provisions regulating the procedure in relation to the appeal and the hearing thereof by the District Court judge who is given jurisdiction to "set aside, confirm or vary any order made by the magistrate, or make any other order mentioned in the section warranted by the evidence." Then s. 30, as amended by s. 5 of c. 25 of the Statutes of 1928, is as follows:—

30. (1) Save as is otherwise specially provided by this or any other Act, the provisions of Part XV and Part XXII of The Criminal Code, shall apply to all proceedings under this Part.

In the present case the magistrate's order was limited to the provisions (a) and (b) of see. 26, above referred to. The order did not include any decree against the husband for the payment of money, not even for costs. No appeal was taken to the District Court, but an application on behalf of the husband was made to the magistrate to state a case, under s. 761 of the Criminal Code, for the opinion of the Appellate Division as to the constitutionality of Part IV of the Act, A case was stated and we have now to determine if the magistrate, in view of the provisions made in the Act for an appeal to the District Court, had any jurisdiction to state it.

The provisions of Part XV and Part XXII of the Criminal Code are to apply to proceedings under Part IV of the Domestic Relations Act, unless it is "otherwise specially provided" either in that Act or in any other provincial Act. The Domestic Relations Act makes special provision for the appeal which may be taken from the order of a police magistrate under that Act. By the very language, therefore, of section 30 any right of appeal which a party might otherwise have, under the provisions of Part XV of the Criminal Code, is excluded. That is not questioned, but it is contended that the exclusion of the right of appeal given by Part XV does not affect the right to have a case stated under section 761.

In my opinion, we do not require to go beyond the language of sections 761 to 765 to establish that proceedings by way of stated case constitute an appeal from the magistrate's order.

[Page 579]

The very object of having a case stated is to question the conviction or order on the ground that it is erroneous in point of law, or is in excess of jurisdiction. In subsection (3) (c) of section 761 the proceedings are referred to as an "appeal." In section 762 (1) the applicant is to enter into a recognizance "conditioned to prosecute his appeal without delay." In subsection (2) the order of the magistrate is referred to as "the judgment appealed against," and by section 765 the court to which the stated case is transmitted has jurisdiction to affirm, reverse or modify the conviction or order of the magistrate who is not to be liable for costs "by reason of such appeal against his determination."

In addition to the internal evidence supplied by the language of these sections, there is a considerable body of judicial opinion to the same effect: In Regina v. Robert Simpson Co.[5], Boyd C., at page 235, said:

The Code, therefore, treats this method of stated case to be but a form of appeal equivalent to the ordinary appeal upon the facts and law to the General Sessions.

This view was approved by the Appellate Division of the Supreme Court of Alberta in Rex v. Weinfield[6]; and by the Court en banc of Saskatchewan in Zeats v. Johnston[7]. See also Rex v. Macdonald[8], and Rex v. Driscoll[9].

In view of the above statutory provisions, I have no hesitation in holding that proceedings by way of stated case under s. 761 of the Code constitute an appeal although limited to a point of law or a question of jurisdiction.

Being a form of appeal given by Part XV, a stated case, in my opinion, stands in exactly the same position as the appeal to the District Court given by s. 749 of the Code. Both are appeals allowed by Part XV and, where applicable, the party aggrieved has an option as to which appeal he will pursue. Where, however, as in s. 30 of the Domestic Relations Act, Part XV of the Code is made applicable only in so far as it is not "otherwise specially provided," and the Act itself makes special provision for an appeal to the District Court from the magistrate's order, I think the intention of the legislature must be held to have been that

[Page 580]

the only appeal open to a party dissatisfied with the magistrate's order, or his refusal to make one, is the appeal to the District Court provided by subs. 3 of s. 26. If it had been intended to allow an appeal by way of stated case there was no necessity for any provision in the Act for an appeal to the District Court. If no such provision had been made, Part XV of the Code would have applied and, under s. 749, there would have been an appeal, both on the facts and the law, from the magistrate's order to the District Court, and there would have been an appeal by way of stated case on a question of law or jurisdiction to any superior court of criminal jurisdiction of the province. (S. 705 and s. 761.)

When the Act was passed in 1927, s. 30 thereof contained, in addition to the language above quoted, these words: "save and except that no appeal shall lie from any order made under this Part." While these words were in the Act a party to any order had no right to a stated case (s. 769 (2) Cr. C.). By the amendment of 1928, which made provision for an appeal to the District Court, these words were struck out. Had it been the intention of the legislature to permit an appeal by way of stated case it would, I think, have inserted in the Act an express provision to that effect, as was done with respect to the appeal, and not have left such intention to be inferred from the fact that Part XV was made to apply.

The object of Part IV of the Domestic Relations Act was, no doubt, to provide a speedy and inexpensive proceeding before a magistrate which married women, deserted by their husbands, might take to obtain redress. That its provisions are found in an Act which otherwise deals with matters coming within the jurisdiction of a superior court is, in my opinion, of no moment. They are still the expression of the legislative will.

For these reasons I am of opinion that the only appeal that may be taken from a magistrate's order, under Part IV of the Act, is that provided by the Act itself and that the magistrate had no jurisdiction to state a case for the Appellate Division, nor had that court jurisdiction to pronounce upon it. There being no jurisdiction either in the magistrate or the Appellate Division, this court is likewise without jurisdiction to entertain the appeal. The Grand

[Page 581]

Council of the Can. Ord. Chosen Friends v. The Local Government Board and the Town of Humboldt (1). The result is that the magistrate's order, not having been appealed against, stands.

I would allow no costs either here or below.

CANNON J.—I have reached the conclusion that this appeal should be quashed for lack of jurisdiction. Section 765 of the Criminal Code applies to the proceedings adopted by the litigants, and the court to which the case was transmitted was to give an order "final and conclusive upon all parties." This would exclude an appeal, even by special leave, to this court. No costs.

Appeal dismissed.