Sanders v. The Queen, [1970] SCR 109

Supreme Court of Canada

Sanders v. The Queen, [1970] S.C.R. 109

Date: 1969-10-07

Francis Stewart Sanders Appellant;

and

Her Majesty the Queen Respondent.

1969: June 2; 1969: October 7.

Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Habeas corpus—Certiorari—Sentence of preventive detention—No appeal taken—Whether certiorari available—Whether warrant of committal defective—Accused claiming notice not given seven clear days prior to hearing—Exhibit lost—Onus on accused to prove when notice served—Criminal Code 1953-54 (Can.), c. 51, ss. 661, 662(1)(b), 682, 691.

On April 22, 1958, the appellant was found to be a criminal sexual psychopath and was sentenced to preventive detention. He signed a waiver of his right of appeal. From 1964 to 1967, he made several applications to have the preventive detention order set aside. Finally in 1967, he made the present application for a writ of habeas corpus with certiorari in aid to quash the warrant of committal. The writ was refused by Wilson C.J. The main ground upon which the appellant relied was that he had not been given seven clear days’ notice of the application under s. 661(1) of the Criminal Code and that consequently, the magistrate had been without jurisdiction to enter upon the hearing.

At the hearing before the magistrate, the appellant admitted service of a written notice, which was filed as an exhibit, but no reference was made to the date of the service. That exhibit was lost. The appellant filed a lengthy affidavit, largely argumentative, in which he draws the conclusion that the notice could not have been served seven clear days before the hearing. His affidavit did not state where or when the notice was served upon him. In their affidavits, the magistrate and the Crown prosecutor stated that at the hearing it was proved to the magistrate’s satisfaction that the appellant received a notice of seven clear days. The affidavit of the constable who served the notice also stated that he believed he complied with the legal requirements. The Court of Appeal, by a majority judgment, affirmed the refusal of the application for the writ. The appellant appealed to this Court and subse-

[Page 110]

quently obtained leave to appeal from the refusal of the relief sought in the proceedings by way of certiorari.

Held (Cartwright C.J. and Hall, Spence and Pigeon JJ. dissenting): The appeal should be dismissed.

Per Fauteux, Abbott, Martland, Judson and Ritchie JJ.: The circumstances of this case bring it within the application of s. 682(b) of the Criminal Code which prevents the removal of the magistrate’s order by certiorari. If it can be said that the words “the merits were tried” in s. 682(b) can only be applicable where the Court had jurisdiction, the section ceases to have any real meaning. The writ of certiorari is primarily concerned with the matter of jurisdiction of an inferior Court. The section was intended to apply, and by its terms does apply in a situation where, in the absence of the section, the jurisdiction of the Court might have been questioned on certiorari. The intention of the section is to preclude the coexistence of two remedies. By its terms it applies, in any case falling within its provisions, to any attempt to remove a conviction or order by certiorari. This view of the effect of s. 682 does not run counter to the judgment of this Court in Smith v. R., [1959] S.C.R. 638.

It is unnecessary to express any view as to whether, in the light of the provisions of s. 691 of the Criminal Code, this Court has jurisdiction to entertain an appeal from a refusal by the Courts to grant certiorari.

There is no requirement that the warrant of committal recite that the accused had been given seven clear days’ notice of the application.

Even if s. 682(b) were not to be considered as constituting a bar to proceedings by way of certiorari, the appeal fails on the merits. In the light of the circumstances in this case, it was incumbent upon the appellant, when he applied for certiorari on the ground that he had not received adequate notice, to establish that fact by clear and positive evidence. He has not discharged that onus.

Per Cartwright C.J. and Hall and Spence JJ., dissenting: Seven clear days’ notice not having been given to the appellant as required by s. 662(1)(b) of the Code, the magistrate was without jurisdiction ab initio and the warrant of committal must fall. In these proceedings the Court can inquire whether the requisite notice was given. Section 682(b) of the Code does not deprive the Courts of jurisdiction to grant certiorari in this case. The great weight of authority supports the view that s. 682 is not a bar to the issue of certiorari where the proceedings

[Page 111]

sought to be questioned are invalid ab initio. Therefore, the Courts below were entitled to examine the record to determine whether the magistrate was without jurisdiction ab initio and this Court has the same right and duty.

If the matter were res integra the same view would prevail. The case did not fall within the literal wording of s. 682 as s. 661 does not contemplate the making of any plea. Furthermore, it cannot be said that “merits were tried” when in fact and in law the magistrate never acquired jurisdiction to enter upon the hearing. If the requisite notice was not given then the proceedings before the magistrate were not a trial but a nullity.

The warrant of committal was defective on its face in that it shows that the order was made by an inferior Court and does not show that the notice imperatively required by s. 662(1)(b) as a condition precedent to the magistrate having power to hear the application was given and that a copy thereof was filed as required. When, as in the case at bar it is alleged that a condition precedent to the inferior Court acquiring jurisdiction to enter on the hearing was not fulfilled and the warrant is silent, s. 61 of the Supreme Court Act provides an expeditious method of ascertaining whether or not the allegation is well founded.

The finding of the majority in the Court of Appeal that the requisite notice was in fact given to the appellant seven clear days before the hearing cannot be sustained. It cannot be said that an onus rests upon the appellant to establish that which ought to be a matter of record.

Per Hall J., dissenting: The view that s. 682 of the Code denies the right to remove the order requires holding that a person convicted in a proceeding which is in law a nullity is without recourse by certiorari when that person might have appealed. The section does not achieve that result. When Parliament said “where the defendant appeared and pleaded and the merits were tried”, it meant a lawful trial or hearing and not a proceeding which was in law a nullity. The language used in s. 682 is quite explicit, but it is no broader or more explicit than that found in many statutes which contain privative clauses of which the Labour Relations Act of Ontario is an example. There is no consistency in holding that s. 682 is an absolute bar to certiorari in a case involving the liberty of the person when equally explicit enactments deny certiorari in Labour

[Page 112]

Relations legislation are not so regarded. Where there is no jurisdiction there cannot be a trial on the merits within the meaning of s. 682.

Per Pigeon J., dissenting: Proceedings leading to a sentence of preventive detention constitute a separate issue distinct from the charge following which they are instituted. Section 682(b) of the Code cannot be applied to a sentence of preventive detention because the procedure on an application for such a sentence does not provide for a plea by the accused. The appellant is in the same situation as in Smith v. The Queen, [1959] S.C.R. 638, he has not pleaded. The appellant is therefore entitled to certiorari.

The record shows that it was not proved before the magistrate that seven clear days’ notice was given as required imperatively by s. 662 of the Criminal Code. Even if the appellant could validly admit having received the notice, such an admission is not sufficient in a criminal case. It could not be presumed that the lost exhibit showed that the required interval of seven clear days had been observed. The affidavits did not prove that this did appear on the document.

The magistrate proceeded without adequate proof of a notice served in accordance with the requirements of the law and this defect deprived him of his jurisdiction. Section 683(1) of the Code forbids proceeding without notice. This is a condition precedent to jurisdiction.

APPEAL from a majority judgment of the Court of Appeal for British Columbia[1], affirming the refusal by Wilson C.J. of an application for a writ of habeas corpus with certiorari in aid to quash a sentence of preventive detention. Appeal dismissed, Cartwright C.J. and Hall, Spence and Pigeon JJ. dissenting.

C.R. Kennedy, for the appellant.

W.G. Burke-Robertson, Q.C., for the respondent.

The judgment of Cartwright C.J. and of Spence J. was delivered by

[Page 113]

THE CHIEF JUSTICE (dissenting)—This is an appeal from a judgment of the Court of Appeal for British Columbia[2] pronounced on June 3, 1968, dismissing the appellant’s appeal from the judgment of Wilson C.J. pronounced on August 7, 1967, dismissing the appellant’s motions for a Writ of Habeas Corpus ad subjiciendum with certiorari in aid to direct the release of the appellant from the sentence of preventive detention imposed upon him by Magistrate John Hunter on April 22, 1958, at Cloverdale in the Province of British Columbia following a finding that the appellant was a criminal sexual psychopath. Norris J.A., dissenting, would have allowed the appeal.

Under s. 691(3) of the Criminal Code as enacted by Statutes of Canada 1964-65, c. 53, s. 1, assented to on April 3, 1965, the appellant has an appeal as of right to this Court from the judgment of the Court of Appeal confirming the refusal of the application for a Writ of Habeas Corpus. As s. 691 does not expressly provide a right of appeal to this Court from the refusal of the relief sought in proceedings by way of certiorari, counsel for the appellant moved for leave to appeal and on October 7, 1968, this Court made an order granting leave to appeal from the judgment of the Court of Appeal pronounced on June 3, 1968,

on all questions of law set forth in the Notice of Motion of the Appellant subject to argument as to the right of the Supreme Court of Canada to grant such leave.

and granting the necessary extensions of time.

In this Court counsel for the appellant, pursuant to s. 61 of the Supreme Court Act, served a notice of motion returnable at the hearing of the appeal for an order that a Writ of certiorari issue out of this Court to bring up any papers or other proceedings had or taken in the Courts below that are considered necessary with a view to this appeal.

The appeal was first argued in this Court on December 8, 1968, before a Bench of seven and judgment was reserved. At the conclusion of the argument on that occasion the Court requested

[Page 114]

counsel to make written submissions on the question, which had been raised by the Court during the argument, whether clause (b) of s. 682 of the Criminal Code deprives the Courts of jurisdiction to grant certiorari in this case and counsel complied with this request. Later the Court directed a re-hearing. The appeal was argued on June 2nd before the full Court and judgment was reserved.

While it is perhaps not altogether relevant to the questions that we are called upon to decide, I propose to set out briefly the history of the proceedings taken in this matter up to the present time so far as this can be ascertained from the somewhat fragmentary records produced in the Courts below and before us.

On March 6, 1958, the appellant pleaded guilty before Magistrate Hunter to a charge of committing an act of gross indecency with another male person, contrary to s. 149 of the Criminal Code.

On April 22, 1958, the appellant was found by Magistrate Hunter to be a criminal sexual psychopath and was sentenced to two years imprisonment on the charge of gross indecency and in addition was sentenced to preventive detention.

On May 18, 1958, the appellant signed a waiver stating that he had elected not to appeal from either the conviction or sentence.

On February 8, 1964, the appellant gave notice of an application to the Court of Appeal for an extension of time for appealing.

On May 7, 1965, the matter came before the Court of Appeal, composed of Bird C.J.B.C. and Davey and MacLean JJ.A. Counsel for the Crown was not called upon and the Court delivered an oral judgment refusing to grant an extention of time and refusing permission to withdraw the waiver of appeal.

Bird C.J.B.C. concluded his reasons as follows:

…In the circumstances while I am not disposed to make any direction, I would ask Crown Counsel if he would see to it that the matter is reported in

[Page 115]

detail to the Attorney-General’s Department in the hope that a thorough investigation of the allegations now made by the man can be made.

As my brother Davey puts it, our purpose is, first of all, to make sure no injustice has been done and while it is not open to the court to investigate this situation which is alleged by Saunders at this late date we do feel there might possibly be something in what he has had to say and in those terms we would like to be sure that the matter is thoroughly investigated by the law enforcement officers in this Province.

Davey J.A., as he then was, in the course of his reasons concurred in the suggestion that counsel for the Crown should make an investigation.

In September 1965, the appellant gave notice of an application for a Writ of Habeas Corpus with certiorari in aid.

On November 12 and 19, 1965, this application was heard by Branca J., as he then was, and on November 23, 1965, that learned Judge dismissed the application. It appears that the Warden of the Penitentiary at New Westminster, B.C., where the appellant was confined had returned to the Court the Warrant of Commitment in virtue of which the appellant was detained. It reads as follows:

Form 18A

SUMMARY CONVICTIONS ACT, 1955
CRIMINAL CODE, 1953-54

THE GOVERNMENT OF
THE PROVINCE OF BRITISH COLUMBIA

WARRANT OF COMMITTAL UPON CONVICTION
(S.C.A. 2.51; C.C., ss. 482 and 713)

CANADA: PROVINCE OF BRITISH COLUMBIA, COUNTY OF WESTMINSTER MUNICIPALITY OF SURREY

REGINA vs. SANDERS.

To the Peace Officers in the County of Westminster and to the Keeper of the British Columbia Penitentiary at New Westminster, B.C.

[Page 116]

Whereas Francis Stewart SANDERS hereinafter called the “accused”, was this day convicted upon a charge that Francis Stewart SANDERS between the 1st day of December, A.D. 1957 and the 1st day of March, A.D. 1958, at or near Newton, B.C., in the Municipality of Surrey being a male person did unlawfully commit an act of gross indecency with Roy FLACK, another male person, contrary to the form of Statute in such case made and provided.

Whereas the said Francis Stewart SANDERS was, pursuant to Section 661 of the Criminal Code of Canada, found to be a criminal sexual psychopath, and it was adjudged that the accused for his offence be imprisoned in the British Columbia Penitentiary at New Westminster for the term of Two (2) Years, and in addition a sentence of preventative detention.

You are hereby commanded in Her Majesty’s name to take the accused and convey him safely to the British Columbia Penitentiary at New Westminster, B.C. and deliver him to the keeper thereof, together with the following precept:

You, the said keeper, are hereby commanded to receive the accused into custody in the said Prison and imprison him there for the term of Two (2) Years, and in addition a sentence of preventative detention, and for so doing this is sufficient warrant.

Dated this 22nd day of April, A.D. 1958 at Clover-dale, B.C.

(Note:—There is an illegible signature on the original warrant)

A POLICE MAGISTRATE,

in and for the Municipality of Surrey specially authorized by the terms of his appointment to exercise jurisdiction under Part XVI of the Criminal Code.

OAKALLA PRISON FARM RECEIVED APR. 22, 1958

BRITISH COLUMBIA PENITENTIARY NEW WESTMINSTER MAY 1958

While the signature on this Warrant is illegible it would seem to be that of Magistrate Hunter because an affidavit sworn by him on October 13, 1965, concludes with the following paragraph:

12. That at the conclusion of the evidence submitted on the hearing on the 22nd of April, 1958, I found that Francis Stewart Sanders was a criminal

[Page 117]

sexual psychopath, and sentenced the said Francis Stewart Sanders to a term of imprisonment for two years, and in addition thereto I imposed a sentence of preventive detention and subsequently I signed a Warrant of Committal according to my findings and sentences.

In his careful and detailed reasons Branca J. examined the record of the proceedings before Magistrate Hunter but held that he could not look at the evidence to determine whether the finding of the Magistrate was correct. He concluded his reasons as follows:

I am in conclusion deeply regretful that in this case acting strictly within the supervisory area reserved to this Court in matters of this kind, that I must find that the Applicant is detained by a Warrant in all respects regular on its face and upon a charge fully within the jurisdiction of the convicting Magistrate. The Affidavit of the Applicant does not allege or disclose any jurisdictional defect.

I hasten to say that if the supervisory jurisdiction of this Court permitted a review of the evidence in this matter, that the conviction or finding insofar as it relates to the fact that the Applicant was a criminal sexual psychopath would be forthwith quashed for the reasons stated.

I have deliberately reviewed the evidence and the authorities at length in the hope and anxious expectation that counsel will bring this matter to the attention of other authorities who may be able at law to correct the injustice done in this case which this Court unfortunately in the circumstances and for the reasons stated is unable to do.

The appellant appealed from the decision of Branca J. The appeal was heard on March 24 and 25, 1966, and judgment was given at the conclusion of the hearing. Davey J.A., as he then was, based his judgment solely on s. 682(b) of the Criminal Code, holding that an appeal from the sentence of preventive detention might have been taken by the appellant but was not taken. Lord J.A. agreed. Bull J.A. expressed his agreement as follows:

I agree that the appeal should be dismissed, but I do so with some reluctance. I say with reluctance, however, for the reason that it has appeared to me that there have been several errors committed in the actual hearing. However, despite that, I consider

[Page 118]

there was full jurisdiction in the Magistrate to make the finding and sentence that he did. As stated by my learned brother, the appeal should be dismissed.

It should be noted at this point that neither Branca J. nor the Court of Appeal said anything about the ground which was chiefly relied on before us, Le., that it does not appear that the notice required by s. 662(1)(b) of the Criminal Code, as it read at the time of the hearing before Magistrate Hunter, had been given to the appellant seven clear days before the hearing. It will be observed that in the passage from his reasons quoted above Branca J. said that the affidavit of the appellant did not allege any jurisdictional defect.

The only references to the notice contained in the appellant’s affidavit were in paras. 20 and 22 which read as follows:

20. THAT the Crown Prosecutor did not present in court proof of service of Notice of Application.

* * *

22. THAT the Crown Prosecutor did not file a copy of this Notice of Application with the Clerk of the Court or with the Magistrate.

It will be observed that these do not raise a question as to the length of notice given. It is clear from reading the whole of his reasons that Branca J. made no reference to the question whether a sufficient length of Notice of Application had been given to the appellant.

On March 31, 1966, the appellant filed a Notice of Motion for leave to appeal and for an extension of time for appealing from the finding of Magistrate Hunter. This application was heard on May 27, 1966, by Bird C.J.B.C., Tysoe and McFarlane, JJ.A. and judgment was given on June 7, 1966, refusing it. The reasons of the Court of Appeal, delivered by Bird C.J.B.C, set out three grounds relied on by the appellant and state that he relied on no other ground. None of these grounds raises the question of whether seven clear days notice of the application before Magistrate Hunter had been given to the appellant.

On May 18, 1967, the appellant gave Notice of an Application for a Writ of Habeas Corpus

[Page 119]

and certiorari in aid which was heard and dismissed by Wilson C.J. on August 7, 1967, as set out in the opening paragraph of these reasons.

The material before us does not contain any recorded reasons of Wilson C.J. but on August 16, 1967, the learned Chief Justice made a report to the Court of Appeal, pursuant to s. 588(1) of the Criminal Code, reading as follows:

I have little to report on this matter. The same conviction was dealt with by Mr. Justice Branca on a previous application for habeas corpus with certiorari in aid and his written reasons, dismissing the application, were handed down November 23, 1965. I cannot improve on them. Generally I may say that since the warrant of committal was not attacked I could see no opening for habeas corpus. So far as certiorari was involved I thought Section 682 of the Criminal Code a bar and also thought that the application must be dismissed for the reasons given by Branca J., as he then was.

In support of his application before Wilson C.J. the appellant filed an affidavit containing ninety-six paragraphs. Paragraph 20 reads as follows:

20. That I was not given seven clear days Notice before trial as required by Law, before the Court has jurisdiction to hold a hearing to determine if the Accused was a criminal sexual psychopath.

It will be observed that Wilson C.J. does not deal with the question whether Magistrate Hunter was without jurisdiction because of the alleged failure to give seven clear days notice of the application to decide whether the appellant was a criminal sexual psychopath.

The appeal from the decision of Wilson C.J. was heard by a Court of five Judges. As has already been stated, Norris J.A., dissenting, would have allowed the appeal. The judgment of the majority was written by Tysoe J.A. and concurred in by Bull, McFarlane and Robertson JJ.A.

Before examining the reasons given in the Court of Appeal it will be convenient to set out

[Page 120]

the terms of s. 691 of the Criminal Code as it now reads and read at the date of the application to Wilson C.J.

691. (1) An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.

(2) Except as hereinafter in this section provided, the provisions of Part XVIII apply, mutatis mutandis, to appeals under this section.

(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from such refusal shall lie to the Court of Appeal, and where on such appeal the application is refused a further appeal shall lie to the Supreme Court of Canada.

(4) Where a writ of habeas corpus ad subjiciendum is granted by any judge no appeal therefrom shall lie at the instance of any party including the Attorney General of the province concerned or the Attorney General of Canada.

(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the Court of Appeal, and from a judgment of the Court of Appeal to the Supreme Court of Canada, with the leave of that court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.

(6) An appeal in habeas corpus matters shall be heard by the court to which the appeal is directed at an early date, whether in or out of the prescribed sessions of the court.

All the members of the Court of Appeal were of opinion that “fresh evidence” was adduced before Wilson C.J. in that the first transcript of the proceedings before Magistrate Hunter which had been supplied to the appellant by the Court Reporter, and which was before Branca J., was plainly incomplete and the second and much fuller transcript was not made available to the appellant until after Branca J. had delivered his

[Page 121]

judgment. This finding was clearly right and consequently the terms of subs. (3) of s. 691 did not prevent the making of the application to Wilson C.J.

In his reasons, Tysoe J.A. after summarizing the history of the earlier proceedings, stated the submission of the appellant that the evidence before Wilson C.J. established that the appellant had not been given seven clear days notice of the application to Magistrate Hunter for a finding that he is a criminal sexual psychopath, that consequently the Magistrate was without jurisdiction to enter upon the hearing, that the appellant is unlawfully detained and entitled ex debito justitiae to the remedy of habeas corpus. He next examined the submissions of counsel for the Crown (i) that the Warrant of Committal is valid on its face, (ii) that in these proceedings the Court cannot go behind the Warrant and (iii) that the Magistrate when proceeding under s. 661 of the Criminal Code is not an inferior court but a superior one.

Tysoe J.A. did not accept these submissions of the Crown but does not appear to have finally decided that they were untenable. He says in part:

If the attack on the jurisdiction of the Magistrate succeeds, the warrant of committal must fall for, in that event, it was issued by a person who was without power to issue it and so is invalid.

I am not convinced that this submission of the Crown that the court cannot go behind the warrant of committal is sound. Accordingly, I propose to proceed with my judgment on the assumption that the Magistrate’s Court is an inferior court and that the court below and this court are entitled to go behind the warrant of committal for the purpose of determining whether the Magistrate who issued the warrant of committal had jurisdiction to enter upon the hearing under Code Section 661 and to make the finding on which the warrant rested.

It is clear that Magistrate Hunter constituted an inferior and not a superior court. This appears from the Magistrates Act which was in force at

[Page 122]

the time of the hearing, R.S.B.C. 1948, c. 195, as amended by Statutes of B.C. 1955, c. 45, now Statutes of B.C. 1962, c. 36, particularly ss. 3, 4 and 5, and from the Criminal Code s. 2(10)(b), s. 2(38)(d) and s. 659(a).

Immediately following the passage last quoted above, Tysoe J.A. continued:

Counsel for the Crown conceded, in my opinion, rightly, that, notwithstanding the provisions of Code Section 682 which are as follows:

682. No conviction or order shall be removed by certiorari

(a) where an appeal was taken, whether or not the appeal has been carried to a conclusion, or

(b) where the defendant appeared and pleaded and the merits were tried and an appeal might have been taken, but the defendant did not appeal.

certiorari will lie if the learned Magistrate acted in this matter without jurisdiction to do so in the sense that he was without power to hear the Crown’s application ab initio if the appellant had not in fact been given seven clear days’ notice thereof.

This concession at first appears surprising in view of the fact that the Court of Appeal which heard the appeal from the judgment of Branca J. had based its judgment solely on the terms of s. 682 and Wilson C.J. had based his judgment in part on that section; but it must be remembered that the only occasion prior to the hearing of the appeal in the Court of Appeal from the judgment of Wilson C.J. on which the appellant was represented by counsel was on the application before Branca J. and, as already pointed out, there is nothing in the elaborate reasons of that learned Judge to suggest that the point was raised before him. The hearing of the appeal from the judgment of Wilson C.J. was the first occasion on which the argument was put forward that because of the alleged failure to give seven clear days notice the Magistrate was without jurisdiction to enter upon the hearing.

If it be the fact that seven clear days notice was not given to the appellant as required by s. 662(1)(b) of the Criminal Code, then the

[Page 123]

magistrate was without jurisdiction ab initio and, as was held by every member of the Court of Appeal, the warrant of committal must fall.

The two questions that arise are (i) whether in these proceedings the Court can inquire whether the requisite notice was given and (ii) if so, whether the finding should be that it was given. It was on the second of these questions that Norris J.A. differed from the majority in the Court of Appeal.

On the first question, while Tysoe J.A. accepted the concession of counsel that the right to certiorari was not taken away by s. 682 of the Criminal Code, he expressed the opinion that the concession was rightly made and examined a number of decisions in support of this conclusion. Before us counsel for the Crown contends that clause (b) of s. 682 does deprive the Courts of jurisdiction to grant certiorari in this case. In my opinion this submission should be rejected. I do not propose to refer in detail to the numerous decisions in which s. 682 has been considered by the courts, which are collected in Martin’s Annual Criminal Code, 1968, at pp. 635 to 642. The great weight of authority supports the view, that was so clearly expressed by Hall C.J.Q.B., as he then was, in Regina v. Phillips[3] and by Spence J. in Regina v. Heins[4], that s. 682 is not a bar to the issue of certiorari where the proceedings sought to be questioned are invalid ab initio.

If the submission of counsel for the Crown on this branch of the matter were accepted it would mean that the case of Smith v. The Queen[5] was wrongly decided. In that case a motion for certiorari to quash a finding that a boy aged fourteen was a juvenile delinquent was dismissed by Campbell J. and the dismissal was affirmed by a majority judgment of the Court of Appeal for Manitoba. In this Court the judgments below were reversed and the finding of delinquency was quashed. It is true that s. 682 is not referred to in the reasons in this Court but it was referred to in the Court of Appeal for Manitoba by Adamson C.J. in his dissenting judgment. The

[Page 124]

decision of that Court is reported sub nom Regina v. Gerald X (or G.S.)[6]. At p. 106 the learned Chief Justice said:

For want of jurisdiction in an inferior Court certiorari is the appropriate remedy. Certiorari is the appropriate remedy to raise the question of proper service: 13 Can. Abr. 1706; Re Ruggles (1902), 5 Can.C.C. 163, 35 N.S.R. 57; Cr. Code, ss. 682, 683 and 691; Paulowich v. Dankochuk, 73 Can.C.C. 273, (1940) 2 D.L.R. 106, 48 Man. R. 6.

Coyne J.A. who wrote the reasons of the majority said at p. 127:

Here the appellant has a right of appeal under s. 37 but did not seek to exercise it. On such an appeal he could have raised all points which arise in this proceeding. The finding of delinquency by the Juvenile Court Judge was made and the fine imposed on September 23rd. The time for application for leave to appeal expired on October 3rd and the limit of any extension by special leave of time for appeal was October 23 rd. These proceedings were not instituted until November 23rd.

I do not think it should be assumed that this Court gave no consideration to the terms of s. 682(b).

In my view the power to grant certiorari in aid of the Writ of habeas corpus in the case at bar was not taken away by the terms of s. 682, and the Courts below were entitled to examine the record to determine whether the Magistrate was without jurisdiction ab initio.

I have reached this conclusion because it appears to me to accord with the great weight of judicial opinion; but if the matter were res integra my view would be the same. Clearly clause (a) of s. 682 has no application in the circumstances of the case at bar; no appeal was taken.

The part of s. 682 with which we are concerned is as follows:

682. No conviction or order shall be removed by certiorari

* * *

[Page 125]

(b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.

Applying this to the facts of the case at bar, the finding of the Magistrate that the appellant was a criminal sexual psychopath (which entailed the mandatory imposition of a sentence of preventive detention) was not a “conviction” but it may be that it could properly be regarded as an “order” within the meaning of that word as used in the section. It is clear that the appellant appeared before the Magistrate and that an appeal might have been taken from the Magistrate’s decision but it is equally clear that no plea was taken; the provisions of s. 661 of the Criminal Code did not contemplate the making of any plea by the person as to whom the inquiry whether he was a dangerous sexual psychopath was to be held. It follows that this case does not fall within the literal wording of s. 682.

But the matter does not rest there. How can it be said that “the merits were tried” if in fact and in law the Magistrate who purported to conduct the “trial” never acquired jurisdiction to enter upon the hearing of the application? If the requisite notice was not given then the proceedings before the Magistrate were not a trial but a nullity. On this point there was no difference of opinion in the Court of Appeal. It is clear that Tysoe J.A., who wrote for the majority, would have allowed the appeal if he had not found that the required notice was in fact given.

The wording of s. 662(1)(b) of the Criminal Code, as it read at the time of the hearing before Magistrate Hunter, is explicit. It is as follows:

(b) an application under subsection (1) of section 661 shall not be heard unless seven clear days’ notice thereof has been given to the accused by the prosecutor and a copy of the notice has been filed with the clerk of the court or with the magistrate, where the magistrate is acting under Part XVI.

The giving of the notice and the filing of a copy are clearly made conditions precedent to the right of the Magistrate to hear the application.

[Page 126]

The writ of certiorari is a very old high prerogative writ. Its purpose is to enable the Court which corresponds to the Court of Queen’s Bench in England (in this case the Supreme Court of British Columbia) to control the action of inferior courts and to make it certain that they shall not exceed their jurisdiction. It is clear that in the case at bar it would be an appropriate remedy available to the appellant unless the right to it is taken away by the terms of s. 682. The power of Parliament to take away this remedy is not open to question; but, in my opinion, it would require clear and explicit words to bring about such a result. I have already stated my reasons for holding that the facts of the case at bar do not bring it within the terms of s. 682, even if, contrary as I venture to think to the great weight of authority, it should be held that that section is ever effective to take away the right to certiorari in cases where it is alleged that the inferior court acted without jurisdiction ab initio.

In seeking to ascertain the intention of Parliament it is permissible to consider the results which flow from two alternative constructions of the words of a statute. If it be the fact (a question which remains to be decided) that the notice required by s. 662(1)(b) was not given to the appellant and it is held that s. 682 has taken away the right to certiorari, then the appellant, who was without counsel, having waived his right of appeal and having let the time for appealing go by is left without any remedy although he is under sentence of imprisonment for the remainder of his life imposed by a magistrate who was without jurisdiction to make the finding that the appellant was a criminal sexual psychopath or to impose the sentence that followed such finding. I cannot think that Parliament intended such a result. When I say the appellant is left without remedy, I have not overlooked the fact that the Court of Appeal for British Columbia had, and I suppose still has, power to extend the time for appealing to that Court; but the appellant cannot claim such an extension as a right, he can but seek it as an indulgence. He has sought it twice without success. On the second of these occasions the Court of Appeal, no doubt, had knowledge of what Branca J. had said in those paragraphs of his judgment which I have quoted

[Page 127]

earlier in these reasons. On the other hand if it appears that the Magistrate acted without jurisdiction the order of certiorari would issue ex debito justitiae. In my opinion, if Parliament had intended to take away the right to certiorari in a case where an inferior court has acted without jurisdiction it would have added to the opening words of s. 682 some such words as “even from an inferior court which has acted without any jurisdiction whatever”. There is no need to dilate upon the unlikelihood of Parliament having any such intention.

For all these reasons I am satisfied that in the case at bar the right to certiorari has not been taken away.

Having reached this conclusion, it would seem to become unnecessary for me to examine Mr. Kennedy’s alternative argument that the Warrant of Committal returned to the Supreme Court of British Columbia, which has been set out in full above, was defective on its face in that it shows that the order under which the appellant is detained was made by an inferior court and does not show that the notice imperatively required by s. 662(1)(b) of the Criminal Code as a condition precedent to the magistrate having power to hear the application was given to the appellant and that a copy thereof was filed as required. However, as other members of the Court have examined and rejected this argument I think I should express my opinion upon it.

In approaching this argument is must be remembered that the appellant’s application is not for certiorari simpliciter but for a writ of habeas corpus with certiorari in aid. Section 691(3) of the Code expressly gives a right of appeal to this Court from the refusal by the Court of Appeal of an application for a writ of habeas corpus ab subjiciendum and section 61 of the Supreme Court Act gives this Court power to issue a writ of certiorari to bring up any papers or other proceedings had or taken before any court, judge or justice of the peace, that are considered necessary with a view to any inquiry, appeal or other proceeding to be had before this Court. It has already been pointed out that Mr. Kennedy applied for a writ of certiorari under s. 61.

[Page 128]

Section 691(3) of the Code and s. 61 of the Supreme Court Act must be read together. If there is a conflict between their provisions and those of section 682 of the Code then the former must prevail; generalia specialibus non derogant.

I have reached the conclusion that the warrant of committal is defective on the ground argued by Mr. Kennedy which is recited above. It has already been pointed out that Magistrate Hunter constituted an inferior court and the rule has long been established which is stated in the following words in Broom’s Legal Maxims, 10th ed. at page 101:

Lastly, it has been said that ‘there is a distinction between process of superior and inferior Courts; in the former, omnia praesumuntur rite esse acta, in the latter the rule de non apparentibus et non existentibus eadem est ratio applies.’ The Superior Court need not, but the inferior Court must, show jurisdiction on the face of an order.

and at page 646:

It is, however, important to observe in addition to the above general remark, that, in inferior courts and proceedings by magistrates, the maxim, omnia praesumuntur rite esse acta, does not apply to give jurisdiction.

The italics are those of the author. These statements of the rule are fully supported by the judgment of the House of Lords, adopting the unanimous opinion of the judges, in Mayor and Aldermen of the City of London v. Richard Henry Cox et al[7], particularly at pages 262 and 263.

To hold that the warrant must affirmatively show that the required notice was given and a copy thereof filed will not permit the release of a person detained where the notice was in fact given and filed. In such a case an amended warrant could be filed and the provisions of s. 683 of the Code could be applied.

When, as in the case at bar, it is alleged that a condition precedent to the inferior court ac-

[Page 129]

quiring jurisdiction to enter on the hearing was not fulfilled and the warrant is silent, s. 61 of the Supreme Court Act provides an expeditious method of ascertaining whether or not the allegation is well founded.

The applicable rule is accurately stated in Broom’s Legal Maxims, supra, at page 647, as follows:

But although it is necessary that the jurisdiction of the inferior court should appear, yet there is no particular form in which it should be made to appear. The Court above, which may control the inferior court, must be enabled, somehow or other, to see that there is jurisdiction such as will support the proceeding; but in what way it shall so see it is not material, provided it does so see it. The rule, therefore, may be stated to be, that where it appears upon the face of the proceedings that the inferior court has jurisdiction, it will be intended that the proceedings are regular; but that, unless it so appears—that is, if it appear affirmatively that the inferior court has no jurisdiction, or, if it be left in doubt, whether it has jurisdiction or not—no such intendment will be made. ‘The old rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of the superior court but that which specially appears to be so; nothing is intended to be within the jurisdiction of an inferior court but that which is expressly alleged’. And again, ‘in all proceedings in inferior courts it is necessary to show that the proceedings were within the jurisdiction of the Court’.

While, in my view, it is not strictly necessary as I think the proceedings below are already properly before us, I would direct the issue of a writ of certiorari pursuant to s. 61 of the Supreme Court Act to bring them here.

The result of all that I have said above is that, in my opinion, the Courts below had the right and the duty to examine the record of the proceedings before the Magistrate and the affidavits filed before Wilson C.J. for the purpose of ascertaining whether notice was given and a copy thereof filed as required by s. 662(1)(b), that is to say for the purpose of ascertaining whether the Magistrate had jurisdiction to enter upon the inquiry, and this Court has the same right and duty.

[Page 130]

The next question is whether the finding of the majority in the Court of Appeal, that the requisite notice was in fact given to the appellant seven clear days before the hearing, can be sustained. After a consideration of all the material in the record I have reached the conclusion that it cannot.

With respect I am unable to agree with the view which Tysoe J.A. expressed as follows:

It is my opinion that in the circumstances of this case the onus is on the appellant to establish that he did not receive the seven clear days’ notice called for by Code Section 662(1)(b) and the onus is a heavy one. It seems abundantly clear that when the appellant acknowledged formally before the Magistrate that he had been served with notice as shown in the foregoing extract of the proceedings, he must have intended the Magistrate to believe that he was not questioning the adequacy of the notice given to him of the hearing of the application. This circumstance, it seems to me, adds to the onus upon the appellant to show conclusively, if he can, that be had not in fact been given the notice which he was entitled to be given under the Code Section.

The course of the proceedings would seem to indicate that it was not until the hearing before the Court of Appeal that the appellant realized that he was entitled to seven clear days’ notice. He does not question the receipt of a notice. His whole case is that he did not receive it seven clear days before the hearing. There is no presumption that he knew of this when he acknowledged before the Magistrate that he had received notice. I agree with what was said by Lord Atkin in Evans v. Bartlam[8]:

…For my part I am not prepared to accept the view that there is in law any presumption that any one, even a judge, knows all the rules and orders of the Supreme Court. The fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application.

Had the proceedings before Magistrate Hunter been properly conducted and recorded the record returned to the Supreme Court of British Columbia would have contained a copy of the notice

[Page 131]

given to the appellant and evidence, by way of affidavit of service or oral sworn testimony, showing the date on which it was served. It contains none of these. How can it be said that an onus rests upon the appellant to establish that which ought to be a matter of record?

As was pointed out by Norris J.A., the appellant’s lengthy affidavit is largely argumentative; but there seems to be no escape from the conclusion which he seeks to draw that, if the affidavit of the constable who served the notice upon the appellant is correct in saying that the service was made at the Court House at Clover-dale, the notice could not have been served seven clear days before the hearing.

On this branch of the matter I am in substantial agreement with the reasons of Norris J.A. and will not repeat what he has said.

Before parting with this appeal, I wish to make one further observation. It is unquestionable that proceedings under s. 660 or s. 661 of the Criminal Code, in which the liberty of the accused for the remainder of his life is at stake, are strictissimi juris. At the trial of an indictable offence by the terms of s. 562 of the Code, and at the trial of an offence punishable on summary conviction by the terms of s. 708(5), an accused or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof. Where there is no plea of guilty, an accused cannot effectively admit matters of mixed fact and law. In my opinion, it is an undesirable practice for Crown counsel to refrain from making strict proof of the giving of the notice required by the terms of s. 662(1) and to seek to rely on a loosely worded oral admission made by an accused who is not represented by counsel.

Since writing the above I have had the advantage of reading the reasons of my brother Pigeon and wish to express my complete agreement with them.

For the reasons given by my brother Pigeon and for those set out above, I would allow the appeal, set aside the Orders of the Court of Appeal and of Wilson C.J., and direct that judgment be entered (i) quashing the finding of the Magistrate that the appellant is a criminal sexual

[Page 132]

psychopath, (ii) quashing the sentence of preventive detention, (iii) quashing the Warrant of Committal and (iv) ordering that the appellant be discharged from custody.

I would make an order pursuant to s. 689 of the Criminal Code protecting the Magistrate and any officer who acted under the Order or Warrant from any civil proceedings.

The judgment of Fauteux, Abbott, Martland, Judson and Ritchie JJ. was delivered by

MARTLAND J.—The appellant, on March 6, 1958, appeared before Magistrate Hunter, at Cloverdale, British Columbia, and pleaded guilty to a charge of committing an act of gross indecency, contrary to s. 149 of the Criminal Code, and was convicted of that offence. His criminal record contained two prior convictions for the same type of offence, and was admitted by the appellant to be correct.

He was not sentenced at that time, but the hearing was adjourned to a subsequent date. He appeared before the magistrate on March 28, 1958. On that occasion it appears that he was notified by the prosecutor of the intention of the latter to apply to hear evidence as to whether the appellant was a criminal sexual psychopath, because the appellant was asked to appoint one of the two psychiatrists whose evidence is required under s. 661(2) of the Code. The appellant says that he asked that his personal physician should suggest a psychiatrist.

The hearing was adjourned to April 15, and, on that date, again adjourned to April 22. It was on that date that the evidence was heard by the magistrate. The magistrate imposed a sentence of two years in respect of the offence charged, as to which the plea of guilty had been entered, and also imposed a sentence of preventive detention.

The appellant did not appeal, within the time limited for appeal. In February 1964, he applied for an extension of time within which to appeal. The application was heard on May 7, 1965, by the Court of Appeal, and was dismissed.

[Page 133]

In September, 1965, the appellant applied for a writ of habeas corpus, with certiorari in aid. One of the grounds stated was:

THAT the court had no jurisdiction to hear an application under section 661(1)(b), when the hearing followed immediately after conviction, the procedure laid down that the application be raised AFTER conviction and seven clear days notice, were not complied with.

The appellant’s affidavit in support of that application contained no statement as to where or when he was served with the notice, nor did it contain any other material in support of the above submission.

The appellant was represented by counsel on this application, which was dismissed. The appeal from this decision was dismissed. Counsel appeared on the appeal as “amicus curiae” as well as counsel for the Crown.

On March 31, 1966, the appellant applied a second time for an extension of time within which to appeal from the finding that he was a criminal sexual psychopath and the sentence of preventive detention. This application was heard on May 26 and was dismissed on June 7. Written reasons were delivered by the Chief Justice, on behalf of the Court, and I quote from those reasons:

In view of the submissions made by Sanders to this Court on his Motion for extension of Time made in 1965, the Court directed Crown counsel to inform the Attorney-General of the allegations which had been made by Sanders before this Court regarding prejudicial conduct of the proceedings before the Cloverdale Magistrate, with a view to a thorough investigation of all the circumstances surrounding the proceedings taken before Magistrate Hunter. Crown counsel has informed the Court during argument that such an investigation was made by an officer of the Department of the Attorney-General who reported thereon repudiating the allegations made by Sanders.

Branca J. in his reasons for judgment in the Habeas Corpus proceedings before mentioned, criticized adversely the conduct of the proceedings before Magistrate Hunter, presumably based upon allegations of the same nature as were made by Sanders in his first motion for leave to appeal, but

[Page 134]

considered that there was not sufficient proof of prejudicial conduct of the proceedings before the trial tribunal to justify a finding that the Magistrate acted without jurisdiction.

On the opening of the current Motions before this Court Sanders appeared in person, stated that he wished to appear on his own behalf and did not desire legal aid counsel. He relied on the following grounds:

1. That the Court is entitled to consider the merits of his case before determining whether or not to grant an extension of time to move for leave to appeal.

2. The merits warrant an extension of time since it now appears from a further transcript of the proceedings before the learned Magistrate on April 22, 1958 that the transcript presented to this court on the first motion was not complete.

3. The waiver of appeal signed by the Appellant on 18th May 1958 does not stand in the way of the granting of an extension of time to move for leave to appeal.

He relied on no other ground.

* * *

I am satisfied from examination of the transcript now produced by Sanders and particularly from the comments attributed to him at the conclusion of the proceedings on April 22, that he suffered no prejudice from the manner in which those proceedings were conducted. His concluding comment, in my judgment, affords the fullest support for the conclusion that he did not then consider he had suffered prejudice.

In view of Sanders’ allegation of prejudice the Court has seen fit on this Motion for Extension of time to examine the record of the proceedings before the Magistrate with care. In my judgment no grounds have been shown to warrant the granting of an extension of time to permit the appellant to prosecute an appeal from the finding that he is a criminal sexual psychopath, or from the sentence imposed by the learned Magistrate.

The application was dismissed.

It was on the hearing of this application that the appellant, for the first time, produced a notice, dated March 31, 1958, addressed to him, of the intention to apply, on April 15, 1958, at Cloverdale, British Columbia, for a hearing to

[Page 135]

determine whether or not he was a criminal sexual psychopath. It bore the name of A.K. Thompson, Crown Prosecutor.

The application which gave rise to the present proceedings was a second application for a writ of habeas corpus, with certiorari in aid, made on May 18, 1967. The application was dismissed, and an appeal from that dismissal was heard by a court of five and was dismissed, Norris J.A. dissenting.

Tysoe J.A., who delivered the reasons of the majority, says:

The situation in the case before this Court is somewhat unique. Some of the records of the Magistrate’s court cannot be found. All the material that was available in the court below and in this court is the warrant of committal, two transcripts of the proceedings before the Magistrate on April 22, 1958, the notice of application served upon the appellant, and the affidavits hereinafter mentioned.

The first transcript was supplied to the appellant by the Court Reporter and it is plainly incomplete. The second transcript was procured by the Crown and was prepared by the Court Reporter after Branca, J. had delivered his judgment. It is much fuller than the first and is certified to be “a true report of the evidence and proceedings as transcribed from my shorthand notes taken on April 22nd, 1958.” Insofar as service of notice of the application to Magistrate Hunter for a finding under Code Section 661 is concerned, the second transcript contains the following:

CROWN: Your Worship, you will recall in this matter, the previous hearing, I made application under Section 661(1) of the Criminal Code and Notice has been served upon the accused and the Accused is prepared to admit it, to avoid the necessity of proof.

MAGISTRATE: Now, Mr. Saunders, you have been served with a copy of this Notice?

MR. SAUNDERS: Right.

MAGISTRATE: And this is your signature on the bottom, admitting it?

MR. SAUNDERS: Yes.

MAGISTRATE: That is a copy of what I have here now?

MR. SAUNDERS: Yes, that is correct.

[Page 136]

EXHIBIT 1.

NOTICE.

The Notice of Application which became Exhibit 1 is not available, but the appellant has produced what he says was the Notice served upon him.

Three of the affidavits, which are referred to in this passage, had been filed by the Crown in relation to the first application for habeas corpus to meet the allegation of insufficiency of notice.

The affidavit of Magistrate Hunter stated:

7. That on the 28th day of March, 1958, at Cloverdale in the Province of British Columbia, in the presence of Francis Stewart Sanders and Crown Counsel Mr. A. Kenneth Thompson, evidence was tendered to me that satisfied me that Francis Stewart Sanders had received seven clear days’ notice in writing of an application under Section 661 of the Criminal Code of Canada as it then was, to have the said Francis Stewart Sanders declared to be a criminal sexual psychopath and to have him sentenced to preventive detention.

The affidavit of the Crown Prosecutor, Mr. Thompson, stated:

7. That I recall that Notice was given to Francis Stewart Sanders of our intention to proceed against him as a criminal sexual psychopath and I recall proving in Court to the satisfaction of the Magistrate that the proper Notice had been given, but I am not now able to say on what date the Notice was served upon Francis Stewart Sanders.

The affidavit of Corporal Dempsey of the Royal Canadian Mounted Police stated as follows:

4. That before the hearing to have Francis Stewart Sanders declared a criminal sexual psychopath commenced, I personally served on Francis Stewart Sanders a copy of the Notice of Application to have him declared to be a sexual psychopath.

5. That the aforesaid service took place at the Court House at Cloverdale, in the Municipality of Surrey in the Province of British Columbia.

6. That I verily believe that the said Notice was served by me on the said Francis Stewart Sanders at least seven clear days before the commencement

[Page 137]

of the hearing, because this was the first application of this nature in which I had been involved, and I clearly recall reading the provisions of the then Criminal Code of Canada, namely Sections 661 and 662, before attending to the service on Francis Stewart Sanders.

The appellant filed an affidavit, which, for the first time, referred to the notice of application dated March 31, 1958, which he admitted having received. This affidavit did not state where or when it was served upon him, or, in the alternative, that he did not remember either of those matters. Instead, the affidavit says:

18. That I was not given any verbal or written Notice prior to my Election and plea on March 6th, 1958, that a further charge would be laid, regarding being a criminal sexual psychopath.

19. That I was not given any verbal or written Notice of Application at any time before the Raising of the Application in Court on March 28th, 1958.

20. That I was not given seven clear days Notice before trial as required by Law, before the Court has jurisdiction to hold a hearing to determine if the Accused was a criminal sexual psychopath.

On the issue of adequacy of notice, the affidavit is in the form of an argument to this effect:

1. No notice was received prior to March 28, 1958.

2. The notice is dated March 31, 1958.

3. Corporal Dempsey says that he effected service at the Court House at Cloverdale.

4. The appellant was only at that Court House after March 28, on April 15 and 22.

5. If it was served on either of those two dates, in April, the appellant did not have seven clear days’ notice of the hearing on April 22.

The relevant sections of the Criminal Code, as they were at the time of the hearing, are the following:

661. (1) Where an accused is convicted of

(a) an offence under

(i) section 136,

(ii) section 138,

[Page 138]

(iii) section 141,

(iv) section 147,

(v) section 148, or

(vi) section 149; or

(b) an attempt to commit an offence under a provision mentioned in paragraph (a),

the court may, upon application, before passing sentence hear evidence as to whether the accused is a criminal sexual psychopath.

(2) On the hearing of an application under subsection (1) the court may hear any evidence that it considers necessary, but shall hear the evidence of at least two psychiatrists, one of whom shall be nominated by the Attorney General.

(3) Where the court finds that the accused is a criminal sexual psychopath it shall, notwithstanding anything in this Act or any other Act of the Parliament of Canada, sentence the accused to a term of imprisonment of not less than two years in respect of the offence of which he was convicted and, in addition, impose a sentence of preventive detention.

662. (1) The following provisions apply with respect to applications under this Part, namely,

* * *

(b) an application under subsection (1) of section 661 shall not be heard unless seven clear days’ notice thereof has been given to the accused by the prosecutor and a copy of the notice has been filed with the clerk of the court or with the magistrate, where the magistrate is acting under Part XVI.

(2) An application under this Part shall be heard and determined before sentence is passed for the offence of which the accused is convicted and shall be heard by the court without a jury.

The scheme of these provisions is that, upon a person being convicted of one of the named offences, the court which convicted that person is empowered, before imposing sentence, to hear further evidence as to whether the person convicted is a criminal sexual psychopath. If he is found to be such, the court must impose a sentence of not less than two years in respect of the offence charged, and, in addition, a sentence of preventive detention. The hearing of the further evidence is not a new proceeding. It is a continuation of the proceedings which led to

[Page 139]

the conviction, and such hearing is for the purpose of determining the sentence to be imposed.

The present application for habeas corpus, with certiorari in aid, was dismissed by Wilson C.J. His reasons are set out in his report to the Court of Appeal, as follows:

I have little to report on this matter. The same conviction was dealt with by Mr. Justice Branca on a previous application for habeas corpus with certiorari in aid and his written reasons, dismissing the application, were handed down November 23, 1965. I cannot improve on them. Generally I may say that since the warrant of committal was not attacked I could see no opening for habeas corpus. So far as certiorari was involved I thought Section 682 of the Criminal Code a bar and also thought that the application must be dismissed for the reasons given by Branca J., as he then was.

Section 682 provides as follows:

682. No conviction or order shall be removed by certiorari

(a) where an appeal was taken, whether or not the appeal has been carried to a conclusion, or

(b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.

In the Court of Appeal, counsel for the Crown conceded that certiorari would lie if the magistrate acted in the matter without jurisdiction, in the sense that he was without power to hear the Crown’s application ab initio, if the appellant had not in fact been given seven days’ notice.

On the first argument before this Court on December 5, 1968, counsel were requested to file written submissions respecting the application of s. 682 and these were filed. The appeal was subsequently reargued before the full Court on June 2, 1969.

In my opinion s. 682 does prevent the removal of the magistrate’s order by certiorari, for these reasons:

1. The sentence of preventive detention was an order.

[Page 140]

2. The appellant had appeared before the magistrate. He pleaded guilty to the charge under s. 149. Upon his conviction for that offence, the court which had convicted him was empowered and required, upon application, to hear the additional evidence as to whether or not the appellant was a criminal sexual psychopath, and to impose sentence accordingly. No further plea in relation to this inquiry was necessary.

3. He appeared on the hearing of the further evidence as to whether he was a criminal sexual psychopath and that issue was determined on the merits.

4. He could have appealed, under s. 667(1), against the sentence of preventive detention, but he failed to do so within the time limited.

In my opinion these circumstances bring this case within the application of s, 682(b) of the Code.

It is, however, contended by the appellant that it cannot be said that “the merits were tried”, as required by s. 682(b), if the appellant did not receive the seven days’ clear notice provided for in s. 662(1)(b) because, in that event, the court would lack jurisdiction to hear the matter, and so there would be no trial at all.

If it can be said that those words can only be applicable in a case where the court had jurisdiction, s. 682(b) ceases to have any real meaning. The writ of certiorari is primarily concerned with the matter of jurisdiction of an inferior court. In R. v. Nat Bell Liquors, Limited[9], Lord Sumner, at the foot of page 154, describes the object of a writ of certiorari as follows: “The object is to examine the proceedings in the inferior Court to see whether its order has been made within its jurisdiction.”

If the object of certiorari is to see whether an order has been made within the jurisdiction of an inferior court, and if certiorari is still available, notwithstanding s. 682(b), in any case in which the court lacked jurisdiction, then it would appear that the provision accomplishes very little. If the court had jurisdiction, certiorari would not lie,

[Page 141]

altogether apart from s. 682. If the court lacked jurisdiction, then, if this submission is correct, certiorari is available despite s. 682.

In my opinion the section was intended to apply, and by its terms does apply in a situation where, in the absence of the section, the jurisdiction of the court might have been questioned on certiorari. If the accused has appeared before the inferior court, and has entered a plea, and if, thereafter, the court has proceeded to try the issue raised by that plea upon the merits, then the accused, if he wishes to attempt to set aside the court’s decision, must, if he is given by law a right to appeal, seek his redress by way of appeal only. The intention of this section was to preclude the co-existence of two remedies in those cases to which it applies, and to compel resort to appeal procedures where they are available.

I am not overlooking the fact that certiorari is also a remedy in a case where there is a failure to observe the law in the exercise of jurisdiction as well as in a case where there has been an excess of jurisdiction. Lord Sumner, in the Nat Bell case, supra, referring to the supervision of a superior court over an inferior tribunal, said, at p. 156:

That supervision goes to two points: one is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.

There is, however, nothing in the wording of s. 682 which purports to limit its application only to cases in which the proceedings before the inferior court are being attacked on the basis of failure to observe the law in the exercise of jurisdiction, e.g., error of law on the face of the record. By its terms it applies, in any case falling within its provisions, to any attempt to remove a conviction or order by certiorari.

Notwithstanding what appear to me to be the clear terms of s. 682, there have been decisions, in provincial courts, holding that the section does not constitute a bar to certiorari in what are sometimes referred to as “exceptional cases.”

[Page 142]

In Re Thibault[10], Aikins J. said this:

Sec. 682 is couched in language of the utmost clarity and if the intention of parliament in enacting this section was to wholly take away the power of a superior court to grant certiorari in those cases which fall within sec. 682, it is difficult to see how more apt or cogent language could have been selected.

However, in view of the position taken by crown counsel that, notwithstanding the provisions of sec. 682, in exceptional circumstances certiorari will still lie, and bearing in mind the general principle that where an inferior court exceeds its jurisdiction, even an express provision against certiorari is ineffective to deprive a superior court of this jurisdiction: See In re Trade Union Act. 1944; Bruton v. Regina City Policemen’s Assn., Local No. 155 (1945) 2 WWR 273 (Sask. C.A.); Re Toronto Newspaper Guild and Globe Printing Co. (1953) 2 SCR 18, 106 CCC 225, affirming (1952) OR 345, 102 CCC 318; and Re Dauphin (Town) and Director of Public Welfare and Close (1955-56) 17 WWR 628, 63 Man R 532, 23 CR 222, affirmed (1956) 19 WWR 97, 24 CR 238. I proceed on the assumption that in exceptional circumstances the remedy of certiorari is still available in respect of a conviction, notwithstanding the provisions of sec. 682.

In R. v. Phillips[11], Hall C.J.Q.B., as he then was, held that certiorari would lie in a case where the information was bad in law, for duplicity, on the basis that the proceedings were invalid ab initio.

In Re Krakat[12], Hughes J. held that the circumstances of the case were “so exceptional” that the writ could be issued “ex debito justitiae.” The matter of complaint in that case was the conduct of the trial by the magistrate.

In R. v. White[13], Riley J. said at p. 357:

I am of the opinion that the jurisdiction of the superior court, bearing in mind the doctrines of

[Page 143]

“exceptional circumstances,” and “denial of natural justice” and “complete absence of jurisdiction,” is not ousted by the above statutory provision, and it would require a much more strenuously framed section so to do.

These are examples of cases where certiorari has issued despite the provisions of s. 682. The “exceptional cases” where this has been done include those in which it was said that there was absence of jurisdiction or a denial of natural justice. With respect to the views therein expressed, it does appear to me, as has been stated earlier in these reasons, that these are the very cases in which certiorari is the normal remedy. In saying that although Parliament has decreed in the broadest terms that this remedy shall not be available if the accused has pleaded, the merits tried, and a right of appeal exists, the court may still permit the issue of the writ, these decisions seem to me to constitute a refusal by the courts to apply the section in a case which the court regards as “exceptional.”

The cases so far cited are trial decisions. I now turn to consider those cases in which the matter has been considered by a court of appeal. I am considering only cases which were decided after 1955, because the provisions of s. 682(b) are substantially different from the former s. 1129 of the earlier Code.

We were referred to two cases in the Saskatchewan Court of Appeal, R. ex. rel. Lotochinski v. Antonenko[14] and Re Wilfong[15]. In both cases certiorari was refused. In the former case Gordon J.A. cites with approval a statement by McKay J. in R. ex rel Sanderson v. Eremko[16] that: “Where there is a right of appeal from a summary conviction, a certiorari should not be granted except under special circumstances.” The case cited was determined long before s. 682(b) was enacted, and there is no discussion of that provision in the Antonenko case.

[Page 144]

In the latter case s. 682 is not discussed. Reference was made to the decision of this Court in Smith v. R.[17] as follows, at p. 614:

With all respect, I do not think the principle adopted in Reg. v. Gerald X. (or G.S.), supra, is applicable to this case. The Supreme Court held in that case that where the court had acted without jurisdiction, or in excess of jurisdiction, the order, though discretionary, would be granted ex debito justitiae. In my view there is a great difference between the case where the court so acts, and the case where the court, acting within its jurisdiction, makes an order which may be bad in law: Vide Rex v. Stafford JJ. (1940) 2 KB 33, 109 LJKB 584; and Reg. v. Campbell (1956) 1 WLR 622, (1956) 2 All ER 280. In the former case the right to proceed by way of certiorari is granted ex debito justitiae, but in the latter, this is not necessarily so.

I will be discussing the effect of the Smith case later in these reasons.

The Court of Appeal of British Columbia, in R. v. Fawcus[18], refused certiorari and did not have to decide whether s. 682 would have been a bar. Maclean J.A., giving the judgment of the Court, said, at p. 98:

Having reached this conclusion it is not necessary for me to decide whether s. 682(b) is a bar to certiorari in this case. It was argued by respondent’s counsel that in “special circumstances” the section would not apply. All I can say is that I doubt whether there could be any “special circumstances” short of a complete lack of jurisdiction ab initio which would prevent the full application of s. 682(b) in a case where the applicant had an unrestricted right of appeal by way of trial de novo.

In Manitoba, in Dauphin (Town) v. Director of Public Welfare[19], Schultz J.A., delivering the judgment of the Court, said, at p. 101, in referring to the reasons of DuVal J., the trial judge:

DuVal, J. comes to a conclusion he expresses in these words:

“The writ of certiorari, at common law, is a prerogative writ to which, notwithstanding any

[Page 145]

statutory provisions to the contrary, recourse may be had in order to control the action of inferior jurisdictions and bring them back within the limits assigned by law, whenever there has been a failure, an absence, or an excess of jurisdiction.”

This statement, in effect, says that where an inferior court exceeds its jurisdiction nothing Parliament says to the contrary is effective in restricting the power of the superior court to grant certiorari. The literal interpretation of sec. 682(a) seems to leave little doubt as to the intention of the legislation; that intention was to remove the right of certiorari where “an appeal was taken.” Legislative intention seldom has been expressed in words less ambiguous or more free from doubt as to their meaning. Nevertheless an examination of the authorities would seem to indicate that DuVal, J. was correct in his statement of the law. He refers to the oft-quoted-and-followed opinion of Martin, C.J.S. in Bruton v. Regina City Policemen’s Association (1945) 2 WWR 273, at 283, where the learned Chief Justice states:

“In Canada it has been repeatedly held that an express statutory abolition of certiorari does not oust the power of the court to issue the writ or to quash a conviction if justices have acted without jurisdiction, for in such a case the inferior court has not brought itself within the terms of the statute taking away certiorari; even express words do not take away the supervising power of a superior court when there is want of jurisdiction in the inferior court.”

This case has been adopted in a number of cases to be found in Tremeear’s Supplement, supra, at p. 360. DuVal, J. refers in particular to In re Toronto Newspaper Guild and Globe Printing Co. (1953) 2 SCR 18, and concludes:

“It would appear that no prohibition that does not expressly take away the inherent power of the superior court to exercise this very special remedy of certiorari is effective where the inferior court or administrative tribunal has exceeded its jurisdiction or has declined jurisdiction.”

In answer to this reasoning, I prefer the view expressed by Laidlaw J.A., in the Ontario Court of Appeal, in R. v. Kennedy[20]:

It may be said at the outset that a no certiorari clause such as is contained in s. 682 was not designed 19 [1958] O.W.N. 41 at 44, 119 C.C.C. 200.

[Page 146]

or introduced into the legislation in order to give validity to proceedings leading to conviction or an order of the Court in cases where the Court had no jurisdiction. The section in the statute was not intended to shelter an inferior Court or to permit a denial of substantive justice by a pretended exercise of jurisdiction. But it appears to me that the purpose of s. 682(b) was to prohibit two courses of proceedings at the option or choice of a person seeking to overcome and set aside a conviction or order of an inferior Court.

When dealing with the possible application of s. 682 in the Court below, reference was made, as it was also made in Dauphin v. Director of Public Welfare, supra, to Toronto Newspaper Guild, Local 87, American Newspaper Guild v. Globe Printing Company[21]. The Court in that case was dealing with the conduct of an administrative board created by The Labour Relations Act, 1948 (Ont.), c. 51, which statute provided that the orders, decisions and rulings of the Board should be final and that the Board should not be restrained by certiorari or otherwise.

Kerwin J., as he then was, at p. 23, said this:

We start with the proposition that when an administrative tribunal has been set up by a paramount legislative body it is the intention that such tribunal keep within the powers conferred upon it. In England and in Canada the decisions have been uniform that a Superior Court is invested with the power and duty of seeing that such a tribunal as the Ontario Labour Relations Board does not act without jurisdiction.

This statement is in line with the view expressed in a number of decisions which hold that the enactment of a finality clause will not enable an inferior tribunal, by its own decision, to exceed its statutory jurisdiction. This proposition is based, as Kerwin J. indicates, on the presumed intention of the legislative body which creates such a tribunal that it is not to be permitted to exceed the powers conferred upon it by the legislation which created it, even though the legislation purports to make its decisions final.

[Page 147]

Section 682 of the Criminal Code is a part of a complete code dealing with criminal law, and is contained in Part XXIII wherein Parliament has legislated respecting the application, in criminal proceedings, of the extraordinary remedies of certiorari, habeas corpus, mandamus and prohibition. It is not a finality clause. It does not purport to enable an inferior tribunal to exceed its jurisdiction, or to make its decision as to its own jurisdiction final. What it does say is that if a person has taken an appeal from a decision, he shall not thereafter be entitled to certiorari. It also say that if a person pleads, and the case is tried on the merits, then, if there is a right to appeal that decision, which is not exercised, he shall not, thereafter, be entitled to certiorari.

A person who challenges the jurisdiction of a tribunal which proposes to try him can take objection to the jurisdiction and refuse to plead, in which event certiorari is available to him. But, if he does plead, and the case then proceeds to a trial of the merits, and if he has a right of appeal, his challenge to the jurisdiction can then only be made by way of appeal.

There can be no doubt of the power of Parliament thus to limit the exercise of an extraordinary remedy, and it has done so in clear terms. Nor is there room here for implying a presumed intention that certiorari be available to compel an inferior tribunal to keep within its powers, because the obvious intention of s. 682 is that it is the procedure by way of appeal, and not certiorari, that, where available, should be used for that purpose.

Does this view of the effect of s. 682 run counter to the judgment of this Court in Smith v. R., supra? In my opinion it does not. That case involved a finding by a judge of the Winnipeg Juvenile Court that the appellant was a delinquent. An application that the finding be quashed without the actual issue of a writ of certiorari was dismissed, and an appeal to the Court of Appeal from that dismissal failed. An appeal to this Court was then taken successfully. I have examined the factums filed on the appeal and the

[Page 148]

possible application of s. 682 was never raised. No reference to the section is made in the reasons of this Court. The possible application of s. 682 was not considered in that case. I do not think the section could have been raised successfully because it seems to be clear that the juvenile was not given a proper opportunity to plead and he did not plead.

Reference has been made to the judgment of the House of Lords in Crane v. Director of Public Prosecutions[22], as an example of a trial before a court of competent jurisdiction, which was declared to be a nullity. In that case two prisoners, indicted separately, had been tried together, and both the Court of Criminal Appeal and the House of Lords held that the proceedings were a nullity.

The case has no direct application to the circumstances of this case, but it is of interest in that the procedure, by means of which this finding was obtained, was by way of appeal from the conviction. If Crane had not exercised his right of appeal, his conviction, though the result of proceedings which, when examined on appeal, were held to be a nullity, could not otherwise have been attacked, since it would appear that in that case, which had been tried before a Recorder at Quarter Sessions, proceedings by way of certiorari would not have been available (R. v. Boaler[23]; R. v. Justice of the Central Criminal Court[24]; R. v. Chairman, County of London Quarter Sessions[25]).

My interpretation of s. 682 does not necessarily involve the conclusion that Parliament intended that that which was a nullity should be validated. Even proceedings which are a nnullity, as in the Crane case, can only be shown to have been a nullity by means of some procedure before a higher court. Parliament can prescribe the nature of such a procedure, and, in my view, in s. 682 has stated, in clear terms, that, in any case falling within its provisions, that procedure must be by way of appeal, and by that means only.

[Page 149]

I do not regard this interpretation as involving the “monstrous consequences” contemplated by Lord Kenyon in relation to a section of the bankruptcy statute under consideration in Fowler v. Padget[26], but, no matter what are the consequences, my view is that it is the function of Parliament to consider whether they are such as to necessitate any amendment.

In my opinion s. 682(b) is a bar to the removal of the order in this case by certiorari.

In view of this opinion it is unnecessary for me to express any view on the issue which was raised before us as to whether, in the light of the provisions of s. 691 of the Criminal Code, this Court has jurisdiction to entertain an appeal from the refusal by the Court of Appeal to grant certiorari.

The other issue to be determined is the appeal from the refusal to grant a writ of habeas corpus. The appellant is given an express right of appeal on this issue by s. 691(3) of the Criminal Code. For the appellant it was contented that the warrant of committal was defective in that it did not disclose that the magistrate had acquired jurisdiction by the prosecutor having given to the appellant seven clear days’ notice of the application, which is the notice required by s. 662(1)(b) of the Criminal Code.

The warrant recited that:

Whereas Francis Stewart SANDERS hereinafter called the “accused,” was this day convicted upon a charge that Francis Stewart SANDERS between the 1st day of December, A.D. 1957 and the 1st day of March, A.D. 1958, at or near Newton, B.C., in the Municipality of Surrey being a male person did unlawfully commit an act of gross indecency with Roy FLACK, another male person, contrary to the form of Statute in such case made and provided.

Whereas the said Francis Stewart SANDERS was, pursuant to Section 661 of the Criminal Code of Canada, found to be a criminal sexual psychopath, and it was adjudged that the accused for his offence be imprisoned in the British Columbia Penitentiary at New Westminster for the term of Two (2) Years, and in addition a sentence of preventative detention.

[Page 150]

The simple issue is whether it was required also to cite that he had been given seven clear days’ notice of the application. None of the authorities cited by counsel for the appellant support this proposition and Form 18, in Part XXVI of the Code, does not appear to make this a necessary requirement in a warrant of committal. In my opinion this submission fails.

Even if s. 682(b) were not to be considered as constituting a bar to proceedings by way of certiorari, it is my opinion that the appellant’s appeal fails on the merits.

There is no doubt that the magistrate had jurisdiction to hear and determine the Crown’s application that, before passing sentence, he determine whether the appellant was a criminal sexual psychopath. This is not a case in which a court purports to deal with a subject-matter which it has no lawful authority to determine. The magistrate was required by s. 662(1)(b) not to hear the application unless the appellant had received seven clear days’ notice.

On April 22, 1958, before any evidence on the application was received, the magistrate was advised by counsel for the Crown, in the appellant’s presence, that notice had been served upon the appellant, who was prepared to admit service to avoid the necessity of proof, and the appellant then admitted service of the written notice, which was filed as an exhibit. The magistrate knew, at that time, that the appellant had been made aware, on March 28, of the Crown’s intention to make such an application, because it was on that date that the appellant, as he admits, had been asked to appoint one of the two psychiatrists whose evidence would be required upon such application. On these facts, the magistrate was entitled to infer, as undoubtedly he did, that all of the requirements respecting notice had been satisfied.

If the admission of service had not been made, then, if the proof of service had not established that the necessary notice had been given, the magistrate would have adjourned the hearing until proper notice had been given.

In the light of these circumstances it was incumbent upon the appellant, when he applied

[Page 151]

for certiorari in May, 1967, on the ground that he had not received adequate notice, to establish that fact by clear and positive evidence. He admitted receipt of the notice. He did not say when he received it. He did not say where it was served upon him. Nor did he say that he did not remember when or where he received it. He says only, by way of argument, that, on the basic of Corporal Dempsey’s affidavit as to the place of service, and his own statement as to the dates when he was at that place, he could not have had seven clear days’ notice.

As against this, we have the affidavit of the magistrate that he was satisfied that seven clear days’ notice had been given, the affidavit of the Crown Prosecutor that he proved to the satisfaction of the magistrate that proper notice had been given, and the affidavit of Corporal Dempsey, who recalls reading the requirements of the section as to notice, and who states his belief that at least seven days’ notice was given.

The copy of the notice, which the appellant produced as being the one served upon him, is dated March 31, 1958, and gives notice of an application to be made, pursuant to s. 661(1) of the Criminal Code, at the Court Room, Municipal Hall, Cloverdale, B.C., on April 15, 1958. The contention raised in the appellant’s affidavit is that, if Corporal Dempsey’s affidavit as to service on the appellant at Cloverdale is correct, he must have been served on either April 15, or April 22, 1958. This contention, however, also involves the conclusion that although Corporal Dempsey read the requirements as to notice, which call for seven clear days, he nonetheless served the appellant on the very date set in the notice for the hearing, or one week after that date. This, in the absence of any statement by the appellant as to where or when he was served, I find it hard to accept.

I agree with the reasons of the majority of the Court of Appeal, as delivered by Tysoe J.A., who said:

It seems to me this is particularly a case where the appellant must produce convincing proof of his allegation that seven clear days’ notice was not given him. As I have earlier said, I have no doubt he

[Page 152]

knows very well when and where the notice was given to him. Yet he has not seen fit to pledge his oath to these matters. In the light of all the circumstances, I am of the opinion that the appellant has not come forward with evidence of sufficient cogency to justify the court in saying he has discharged the onus of proof that is upon him.

I would, therefore, dismiss this appeal.

HALL J. (dissenting)—I agree fully with the reasons of my brother the Chief Justice. I have only some observations to make regarding the interpretation and effect of s. 682 of the Criminal Code. That section reads:

682. No conviction or order shall be removed by certiorari

(a) where an appeal was taken, whether or not the appeal has been carried to a conclusion, or

(b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.

The view that this section denies the right to remove the order in question here requires holding that a person convicted in a proceeding which is in law a nullity is without recourse by certiorari when that person might have appealed and it is one I cannot accept. Section 682 does not, in my opinion, achieve that result. I refuse to impute such an intention to Parliament. I believe that when Parliament said “where the defendant appeared and pleaded and the merits were tried,” it meant a lawful trial or hearing and not a proceeding which was in law a nullity.

Parliament specified that the section would be operative when:

(1) An appeal was taken; or

(2)(a) Where the defendant appeared;

(b) Where the defendant pleaded;

(c) The merits were tried;

(d) An appeal might have been taken.

Each of the above conditions is as essential as the others. Here, as the Chief Justice points out,

[Page 153]

no plea was taken nor was there any provision for the taking of a plea. That fact cannot be ignored. Section 682 can be invoked only when all its provisos have been met.

It is said that Parliament, by s. 682, has decreed in the broadest terms that certiorari shall not be available if the conditions named in the section exist. I recognize that the language used in s. 682 is quite explicit, but it is no broader or more explicit than that found in many statutes which contain privitive clauses of which the Labour Relations Act, R.S.O. 1960, c. 202, is an example. The section in that Act, being s. 80, reads as follows:

No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

Another example is that to be found in the Trade Union Act, 1944, 2nd Sess., c. 69 (Sask), which was dealt with by Martin C.J.S. in Bruton v. Regina City Policemen’s Association[27]:, when he said:

Sec. 15 of the Act provides that there shall be no appeal from an order of the Board, and its orders shall not be reviewable by certiorari. A statutory abolition of the right to certiorari is not wholly effective, for it is clearly established by authority that, notwithstanding a provision in a statute abolishing certiorari, the Courts will still exercise the power to issue the writ where the conviction or order complained of has been made without jurisdiction. In Colonial Bank of Australasia v. Willan (1874) L.R. 5 P.C. 417, 43 L.J.P.C. 39, the authorities are reviewed by Sir James W. Colville in delivering the opinion of the Judicial Committee of the Privy Council after concluding that the statute in question had taken away the power of the Courts to issue certiorari. See also Rex v. Nat Bell Liquors, Ltd. (1922) 2 W.W.R. 30, (1922) 2 AC. 128, 91

[Page 154]

L.J.P.C. 146, 37 C.C.C. 129; Halsbury’s Laws of England, 2nd ed., vol. 9, p. 862; Dillon on Municipal Corporations, vol. 4, 5th ed., p. 2791.

In Canada it has been repeatedly held that an express statutory abolition of certiorari does not oust the power of the Court to issue the writ or to quash a conviction if justices have acted without jurisdiction, for in such a case the inferior Court has not brought itself within the terms of the statute taking away certiorari; even express words do not take away the supervising power of a Superior Court when there is want of jurisdiction in the inferior Court: Rex v. Collier (1917) 51 N.S.R. 64, 28 C.C.C. 87; Rex v. Slipp; Ex parte Monahan (1928) 54 N.B.R. 550, 51 C.C.C. 15; Rex v. Cook (1908) 18 O.L.R. 215, 14 C.C.C. 495, Anglin, J. at p. 499; Rex v. Yarrow (1922) 51 O.L.R. 509, 38 C.C.C. 269, Meredith, C.J.C.P., p. 271; Rex v. Richmond (1917) 2 W.W.R. 1200, 12 Alta. L.R. 133, 29 C.C.C. 89, Stuart, J., p. 1204.

The explicit language of s. 80 of the Labour Relations Act above quoted did not impede this Court in Jarvis v. Associated Medical Services Inc.[28], from exercising its supervisory jurisdiction by way of certiorari once it found that the tribunal had exceeded or was without jurisdiction. I am unable to see any consistency in holding that s. 682 is an absolute bar to certiorari in a case involving the liberty of the person when equally explicit enactments denying certiorari in labour relations legislation are not so regarded. As Cartwright J. (as he then was) said in Jarvis at p. 502:

The effect of this section, if it receives the construction most favourable to the appellant, is to oust the jurisdiction of the superior Courts to interfere with any decision of the Board which is made in exercise of the powers conferred upon it by the Legislature; within the ambit of those powers it may

[Page 155]

err in fact or in law; but I cannot take the section to mean that if the Board purports to make an order which, on the true construction of the Act, it has no jurisdiction to make the person affected thereby is left without a remedy;…

No form of words can prohibit this Court from determining whether the order under review was made by a tribunal having jurisdiction; in other words, the assumption of jurisdiction by the inferior tribunal is always an issue. This leads irresistibly to the conclusion that where there is no jurisdiction there cannot be a trial on the merits within the meaning of s. 682.

My brother Martland states in his reasons that he prefers the view expressed by Laidlaw J.A. in the Ontario Court of Appeal in R. v. Kennedy[29], where the learned justice of appeal says that it appears to him:

…that the purpose of s. 682(b) was to prohibit two courses of proceedings at the option or choice of a person seeking to overcome and set aside a conviction or order of an inferior Court.

In Kennedy the jurisdiction of the magistrate to enter upon the proceedings was not challenged. In the application for certiorari it was urged that the magistrate had lost jurisdiction in that: (1) no evidence was heard; (2) the conviction was made after an adjournment for more than eight days; (3) the proceedings were conducted maliciously and without reasonable and probable cause. Laidlaw J.A., after fully reviewing the record and transcript of the proceedings before the magistrate, found as a fact that there had been a trial on the merits by virtue of a plea of “Guilty” entered to the charge in the presence of Kennedy by his counsel and confirmed by Kennedy himself when the question was put to him directly by the magistrate. Accordingly it seems clear that Laidlaw J.A.’s statement went beyond what was necessary for the decision in the case and must be regarded as obiter dicta. It is manifest also that Laidlaw J.A. was not

[Page 156]

purporting to give a definitive interpretation to s. 682(b) because he introduced his statement above quoted by saying:

It appears to me that the primary question for consideration in this appeal is whether or not the accused had a right to remove the proceedings before the Magistrate by certiorari into the higher Court. Section 682(b) of the Criminal Code expressly provides that no conviction or order shall be removed by certiorari “where the defendant appeared and pleaded and the merits were tried and an appeal might have been taken, but the defendant did not appeal.” It may be said at the outset that a no certiorari clause such as is contained in s. 682 was not designed or introduced into the legislation in order to give validity to proceedings leading to conviction or an order of the Court in cases where the Court had no jurisdiction. The section in the statute was not intended to shelter an inferior Court or to permit a denial of substantive justice by a pretended exercise of jurisdiction. (Emphasis added)

These last two sentences show that Laidlaw J.A. was not regarding s. 682(b) as an absolute bar to certiorari but only in cases where there had been a trial on the merits and an appeal might have been taken.

One has but to appreciate the rigid conditions precedent relating to the right to appeal from a summary conviction court under ss. 722 and 724 of the Criminal Code (see R. v. Perehudoff[30] which followed Dennis v. The Queen[31] to see how erroneous Laidlaw J.A.’s obiter statement is as a general proposition.

Section 724(1)(b), for instance, provides:

724. (1) The following provisions apply in respect of appeals to the appeal court, namely,

* * *

(b) where an appeal is from a conviction or order adjudging that a fine or sum of money be paid and imposing a term of imprisonment in default of payment, the appellant shall

[Page 157]

(i) remain in custody until the appeal is heard,

(ii) enter into a recognizance, or (iii) deposit with the summary conviction court the amount of the fine or the sum of money to be paid and an additional amount that, in the opinion of the summary conviction court, is sufficient to cover the costs of the appeal;

This means that a person purportedly convicted by a summary conviction court and sentenced to a fine of, say, $500 and in default of payment to imprisonment for six months must, under s. 724(1)(b) above, either remain in custody or enter into a recognizance in such amount as may be ordered (which would be an amount in excess of $500) or deposit with the Court the amount called for by s. 724(1)(b)(iii). He must do one of these things even though the person constituting the Court under s. 692(1)(g) was not in fact a person holding any judicial office as required by that subsection. If the person so convicted did not appeal but remained in custody for more than sixty days until his right to appeal had lapsed, he could have redress and be released by habeas corpus and that means that the interpretation put upon s. 682 in Kennedy that s. 682 was enacted to prohibit two courses of proceedings at the option of a person convicted falls. If, on the other hand, the person so convicted pays the fine and costs and does not appeal within the sixty days and does not find out that the conviction was made by one who was not a judicial officer until after the time for appealing has passed, he would be, under the Kennedy interpretation of s. 682, without redress at law and would have to carry the conviction for the rest of his life. I cannot accept the view that Parliament ever intended to put a person so convicted under such a handicap where the so-called conviction was made by a volunteer or by one whose term of office had expired when the “conviction” was made.

The example just given may be said to be one that may not often occur, but instances of con-

[Page 158]

victions being made by magistrates whose commissions had expired or been revoked are known. Then there are instances of magistrates with limited territorial jurisdiction who have purported to convict for an offence committed outside their territorial jurisdiction. Other examples are readily available such as where the conviction fails to disclose an offence known to the law. It cannot be doubted that a purported conviction which discloses no offence known to the law is anything but a nullity: Rex v. Perron[32], Regina v. Jones[33], and the very recent case of Regina v. Vallee[34] in which the Court of Appeal for British Columbia held that certiorari was available despite s. 682 even after a person convicted by a magistrate had appealed unsuccessfully to the County Court under Part XXIV of the Code where the “conviction” was for an “offence” not known to the law.

Crane v. Director of Public Prosecutions[35] is an interesting case in point on the effect of proceedings which are a nullity although heard by a Court that clearly had jurisdiction to deal with the matter in the first place. In that case the House of Lords held that a trial at the Leicester Quarter Sessions was a nullity because two prisoners, indicted separately, were given in charge to the same jury and tried together. The fact that the prisoners were not jointly indicted was not brought to the notice of the Recorder or of counsel appearing in the case. Lord Parmoor said of the proceedings before the Recorder:

“…there has only been a form of trial which is void ab initio…” and “In a void trial there is neither conviction, verdict or judgment.” Yet if the Kennedy interpretation is accepted as my brother Martland holds it should be, the result is that Parliament is said to have enacted that what is in law a nullity, something void ab initio, is nevertheless to stand for all time as a lawful conviction against a person who was unlawfully convicted once the time for the limited right of appeal under Part XXIV of the Code has passed.

[Page 159]

Crane is not a certiorari case because the Court of first instance there was sitting as a Court of Oyer and Terminer to try prisoners on indictment and was not an inferior court nor was the Court in R. v. Chairman, County of London Quarter Sessions. The same observation applies to the cases of The King v. Justices of the Central Criminal Court[36] and Reg. v. Boaler[37], the Central Criminal Court being a superior court whose proceedings and decisions are not subject to review by certiorari. Therefore, the fact that certiorari was not available in Crane and the other three cases just mentioned is not relevant. No enactment similar to s. 682 entered into the consideration of these cases.

When Parliament enacted s. 682, it was not done to prescribe or establish a remedy for declaring some void procedure a nullity. Instead Parliament was purporting to deprive a citizen of his ancient right to have that which is in law a nullity or made without or in excess of jurisdiction so declared by recourse to the prerogative writ of certiorari, a right which did not originate with Parliament. Accordingly, if Parliament is to extinguish that right, it must do so by explicit language, and it said explicitly that s. 682 is only to be applied where “the defendant appeared and pleaded and the merits were tried”. Section 682 did not grant a remedy, but purported to extinguish a right.

All of which impels me to say that I must refuse to impute such an intention to Parliament adopting the language of Lord Kenyon in Fowler v. Padget[38], where he said:

I would adopt any construction of the statute that the words will bear, in order to avoid such monstrous consequences as would manifestly ensue from the construction contended for…

I would, accordingly, allow the appeal as directed by the Chief Justice.

[Page 160]

PIGEON J. (dissenting)—On March 6, 1958, appellant pleaded guilty to a charge of gross indecency. Then on April 22, considering two similar previous convictions, he was sentenced to preventive detention in addition to the sentence of two years imprisonment for the last offence. He did not have counsel, did not appeal, but, on the contrary signed, as authorized by s. 49 of the Penitentiary Act, R.S.C. 1952, c. 206, a waiver of his right of appeal. Only after more than five years of imprisonment did he embark upon the numerous proceedings mentioned by my brethren. This appeal is from a judgment affirming the dismissal of an application for habeas corpus with certiorari in aid.

I must say at the outset, that, in my opinion, proceedings leading to a sentence of preventive detention constitute a separate issue distinct from the charge following which they are instituted, while, on the contrary, the sentence imposed following a conviction is part of the issue arising out of the charge. The character of being a separate issue appears from a consideration of the provisions of the Criminal Code respecting preventing detention (Part XXI) as a whole and especially from s. 667 concerning the right of appeal in such cases. The decisions of our Court allowing appeals from such judgments by special leave under s. 41 of the Supreme Court Act notwithstanding the exception of any judgment “acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence”, necessarily imply that a sentence of preventive detention is pronounced in an issue separate from that in which the conviction arises (Poole v. The Queen[39]).

It should be noted here that when Parliament, in 1947, (c. 55, s. 18) first enacted provisions for preventive detention, no amendment to the Criminal Code was made concerning remedies other than the right of appeal. Whereas in respect of those new proceedings a right of appeal

[Page 161]

from the sentence was explicitly provided for, no amendment was made to Part XXII, Extraordinary Remedies. The new Criminal Code brought no change in that regard and nothing is to be found in it referring specifically to such proceedings under the heading Extraordinary Remedies (Part XXIII). In particular, Section 682 reads as follows:

682. No conviction or order shall be removed by certiorari

(a) where an appeal was taken, whether or not the appeal has been carried to a conclusion, or

(b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.

How is subsection (b) above to be applied to a sentence of preventive detention when the procedure on an application for such a sentence does not provide for a plea by the accused? Are we to say that because he is only called upon to appear, it will suffice that he did appear and did not appeal, to deprive him of any remedy by certiorari? In a criminal matter, this does not seem possible. The deprivation of a right can only result from an explicit enactment. If the provisions found in the Code do not apply exactly because one of the conditions cannot be met, the same conclusion must be reached as under s. 41 of the Supreme Court Act: the privative provision not being literally applicable to a sentence of preventive detention, it cannot be applied thereto by analogy or by extension, such a construction of a privative clause as s. 682 of the Criminal Code would be, I think, without precedent in British jurisprudence.

The special provisions enacted for the right of appeal show that when Parliament introduced preventive detention into our criminal law, the necessity of providing explicitly for the right of appeal mutatis mutandis was seen, the ordinary provisions concerning appeals on proceedings by indictment not being literally applicable to this

[Page 162]

new kind of proceeding. Until similar provisions concerning extraordinary remedies are laid down, we cannot do otherwise than to apply the law as it reads. For this reason, I am of the opinion that the appellant is in the same situation as in Smith v. The Queen[40], he has not pleaded.

Having concluded that appellant is entitled to certiorari, I must now say that, in my opinion, the record shows that it was not proved before Magistrate Hunter that seven clear days’ notice was given as required imperatively by s. 662 of the Criminal Code. The record indicates that at the hearing before the Magistrate, instead of proving service of the notice by the testimony of the officer who served it, a voluntary statement before the Court by the accused was resorted to. The transcript supplied by the Court reporter is as follows:

CROWN: Your Worship, you will recall in this matter, the previous hearing, I made application under Section 661(1) of the Criminal Code and Notice has been served upon the Accused and the Accused is prepared to admit it, to avoid the necessity of proof.

MAGISTRATE: Now, Mr. Saunders, you have been served with a copy of this Notice?

MR. SAUNDERS: Right.

MAGISTRATE: And this is your signature on the bottom, admitting it?

MR. SAUNDERS: Yes.

MAGISTRATE: That is a copy of what I have here now?

MR. SAUNDERS: Yes, that is correct.

EXHIBIT 1, NOTICE.

Unfortunately, the exhibit is lost; in the record, there is only the copy which was served upon the accused and that he recently filed with one of his affidavits.

[Page 163]

It will be noticed that appellant’s admission covers only the service of the notice. No reference whatsoever is made to the date of the service, nor to the prescribed interval between the day of service and that of the hearing. In a civil case, such an admission might be sufficient due to the rule that the parties are bound by the manner in which the proceedings were conducted. In my opinion, it cannot be so in a criminal case, in face of an imperative requirement of the law and especially where the accused did not have the assistance of counsel. The principle to be followed is that which applies where no objection is made to illegal evidence; in a criminal matter, this omission does not necessarily cover the illegality.

Moreover, I doubt that the appellant could validly admit having received the notice required by Section 662. The last subsection is as follows:

(3) For the purposes of section 660, where the accused admits the allegations contained in the notice referred to in paragraph (b) of subsection (1), no proof of those allegations is required.

(Even if the amendment was only made the following year (1959, c. 71, s. 30), one must obviously read paragraph (a) and not paragraph (b) in view of the reference to the purposes of Section 660).

To say that “for the purposes of Section 660” (habitual criminals), it is not necessary to prove the allegations contained in the notice if the accused admits them, undoubtedly implies that it is always necessary to prove the facts required to be established for the purposes of s. 661 (criminal sexual psychopaths), otherwise the provision would be entirely useless. Here, we are concerned with the application of s. 661: it is therefore clear that the accused could not dispense from proving the facts by admitting them. Without expressing a firm opinion on this point, I fail to see how it can be held that this rule

[Page 164]

does not apply to the proof of a fact as essential to the validity of such proceedings as the service of a seven clear days’ notice, without which Parliament expressly forbids the hearing to take place.

It must now be observed that nothing shows that there was on the exhibit that was lost a date of service showing that the required time had been allowed. There is no such date on the copy filed by the appellant. It is true that he himself does not enlighten us on this point, but legally it cannot be held against him. He does not have to rebut evidence that is not in the record. He needs only point out its absence.

I do not think that it should be presumed that the lost exhibit did show that the required interval of seven clear days had been observed. The sentence having been pronounced by an inferior court, the observance of the prescribed formalities cannot be presumed. Because the exhibit was lost, proof by affidavits could no doubt have been made that this did appear on the document. It was not done.

In his affidavit, the Magistrate merely states that at the hearing it was proved to his satisfaction that the appellant received a notice of seven clear days. In saying this, he only repeated his finding on that point. However, it is well established that an inferior court judge cannot give himself jurisdiction by making without sufficient evidence a finding of fact on which his jurisdiction depends. As we have seen, the admission made by the appellant at the hearing was incomplete and did not show that an essential requirement had been complied with, namely seven clear days’ notice. In the absence of any other evidence that this fact was proven otherwise, the only proper legal conclusion is that the Magistrate misapprehended the admission made by appellant at the hearing. He undoubtedly believed that appellant had implicitly admitted that the prescribed time had been allowed, while the actual wording does not warrant such a conclusion.

[Page 165]

As to the Crown prosecutor’s affidavit, it is sufficient to say that it adds nothing to that of the Magistrate.

There remains the affidavit of the police officer. He also did not swear that the date of service was entered on the lost exhibit and that that date was at least seven clear days prior to the date of the hearing. All he says is that he believes he complied with the legal requirements because he remembers looking up the requirements of the Code. On the other hand, he also says that he effected service of the notice at Cloverdale. But, after March 31, which is the date of the notice according to the copy filed in the record, the authenticity of which is not disputed, appellant was at Cloverdale only on April 15 and on April 22, the day of the hearing. It is therefore impossible for the requirements as to notice to have been met by service at the place named by the police officer.

Appellant’s affidavit concerning the dates of his attendance at Cloverdale is not questioned. Furthermore, as he was a prisoner, the Crown must have been able to verify its accuracy. As no evidence was submitted to contradict that statement, this fact must now be considered as proven. The conclusion is that the officer must have been mistaken as to the required time and that the notice was not of seven clear days. Even if he did carefully read Section 662, he did not necessarily understand the meaning of “seven clear days”, nor correctly make the computation and he does not swear that such is the case. Since he served the notice at Cloverdale, it must have been on April 15.

On the whole, in my view, the police officer’s affidavit does not remedy the defect in the record and it does not show that proper notice was given. This is no doubt an omission which could have been easily remedied if the accused had raised the point instead of admitting without protest what he was asked to admit. Once again, in a civil case this would no doubt amount to a waiver but, in my view, it cannot be so in a criminal case as against an imperative require-

[Page 166]

ment of the law especially with regard to an accused who was not assisted by counsel.

Having reached the conclusion that the Magistrate proceeded without adequate proof of a notice served in accordance with the requirements of the law, I must now, in view of the provisions of subs. (1) of s. 683 of the Criminal Code, consider whether the defect deprived the Magistrate of his jurisdiction. The provision requiring the notice cannot be more explicit:

An application under subsection (1) of section 661 shall not be heard unless seven clear days’ notice has been given to the accused by the prosecutor…

I have underlined the words “shall not be heard” because to me they necessarily imply that the Magistrate does not have authority to hear the application unless the notice has really been given. The law does not say that proof must be produced to the satisfaction of the Magistrate that the notice was given. It forbids proceeding without notice. I find it impossible to see in that subsection a provision the observance whereof Parliament intended the Magistrate to be the judge. On the contrary, Parliament seems to have clearly intended to make it a condition of jurisdiction.

In L’Alliance des Professeurs catholiques de Montréal v. La Commission des Relations ouvrières[41], this Court held that the respondent acted without jurisdiction in cancelling a certificate without notice to the appellant. In Regina v. County of London Quarter Sessions Appeals Committee, Ex parte Rossi[42], the English Court of Appeal, on an application for certiorari, considered an inferior court as having acted without jurisdiction for having erroneously considered as sufficient notice a registered letter which had not been delivered to the respondent. Finally, in Dennis v. The Queen[43], in the reasons for the

[Page 167]

majority, it was expressly held that, on an appeal from a summary conviction, a County Court judge was right in deciding that he had no jurisdiction because the appellant had not served the notice of appeal upon the person specified in s. 722 of the Criminal Code. All the Justices of Appeal who sat in this case have expressed the opinion that if the required notice had not in fact been served in accordance with the requirements of the Code, the Magistrate acted without jurisdiction. This is the proper conclusion. We are not dealing here with a fact to be found by the Magistrate, in which case an error cannot go to jurisdiction. On the contrary, this is a condition precedent to jurisdiction. This condition must be met before he can act validly.

For the above reasons, I agree with the conclusions of the Chief Justice, including that pertaining to an order pursuant to s. 689 of the Criminal Code protecting the Magistrate and officers.

Appeal dismissed, CARTWRIGHT C.J. and HALL, SPENCE and PIGEON JJ. dissenting.

Solicitor for the appellant: C. R. Kennedy, Vancouver.

Solicitors for the respondent: Boyd, King & Toy, Vancouver.