Goldhar v. The Queen, [1960] SCR 431

Supreme Court of Canada

Goldhar v. The Queen, [1960] S.C.R. 431

Date: 1960-04-11

Jack Goldhar Appellant;

and

Her Majesty The Queen Respondent.

1960: March 8; 1960: April 11.

Present: Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott and Judson JJ.

Criminal law—Habeas corpus—Conspiracy to traffic in drugs—Accused held in penitentiary under certificate of sentence issued by convicting Court—Whether sufficient authority for detention of accused—New Criminal Code coming into force during alleged period of offence— Whether sentence should be under new Code—The Supreme Court Act, R.S.C. 1962, c. 259, s. 67—The Penitentiaries Act, R.S.C. 1952, c. 206, ss. 49(1), 51—The General Sessions Act, R.S.O. 1950, c. 158, s. 2 —The Criminal Code, 1958-54 (Can.) c. 51, ss. 2(10), 408(l)(d), 413.

The accused was convicted in the Court of General Session of the Peace for the County of York of conspiracy to traffic in drugs and was sentenced to 12 years imprisonment, pursuant to s. 408(1) (d) of the new Criminal Code, which came into force during the period of time within which the offence was alleged to have been committed. He has been detained in a penitentiary by the authority of a Calendar of Sentences under the seal of the Court of General Sessions of the Peace. His appeal from the conviction was dismissed and leave to appeal to this Court was refused. He then moved for a writ of habeas corpus which was refused by a judge of this Court. His appeal from the sentence having been dismissed by the Court of Appeal and leave refused by this Court, he now appeals from the refusal of the writ.

Held: The appeal should be dismissed; the application for a writ of habeas corpus was rightly dismissed.

Per Kerwin C.J.: The Calendar was a certificate regular on its face that the accused had been convicted by a Court of competent criminal jurisdiction and, therefore, it was impossible to go behind it on an application for habeas corpus. There was no substance in the objection that the description of the offence was insufficient; nor did it make any difference that the Court of General Sessions of the Peace was not a superior court of criminal jurisdiction.

As to the argument that the sentencing provisions of the former Code should have been applied, there was nothing to indicate that the evidence before the jury did not disclose that the conspiracy commenced after April 1, 1955. The Court of Appeal having heard and dismissed an appeal as to sentence, any judge in Ontario would be bound by that decision and, therefore, any judge of this Court, having by virtue of s. 57 of the Supreme Court Act concurrent jurisdiction with the Court or judges of Ontario, would be similarly bound. There was now no justification for the idea that, if a person is refused a writ of habeas corpus by one judge, he may go to each judge in succession to renew his application.

Per Taschereau, Fauteux, Abbott and Judson JJ.: The question sought to be determined by the accused—the maximum penalty for the offence of which he was convicted—would require consideration of the evidence at trial, and would be tantamount to converting the

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writ into a writ of error or an appeal. The functions of such a writ do not extend beyond an inquiry into the jurisdiction of the Court by which process the subject is held in custody and into the validity of the process upon its face.

The accused was convicted and sentenced by a Court of competent jurisdiction, the Calendar was a certificate regular on its face, and the application for the writ was rightly dismissed.

Per Locke and Cartwright JJ.: What was sought by the accused was an adjudication on the question as to what was the maximum penalty for the offence of which he was convicted. That was a point which the trial judge had jurisdiction to decide, and which could be further pursued on appeal. The writ of habeas corpus is not a writ of course and may be refused where an alternative remedy by which the validity of the detention can be determined is available. So long as the sentence of a competent Court stands unreversed, it is a legal justification for the imprisonment. On the facts of this case, the writ was rightly refused, and a fortiori it should be refused now as the very question which the accused seeks to have decided was res judicata between the parties.

APPEAL from a judgment of Martland J. of the Supreme Court of Canada1, refusing a writ of habeas corpus. Appeal dismissed.

G. B. Langille, for the appellant.

D.H.W. Henry, Q.C., and L. E. Levy, for the respondent.

The Chief Justice:—Jack Goldhar applied to Martland J. under s. 57 of the Supreme Court Act, R.S.C 1952, c. 259, for a writ of habeas corpus ad subjiciendum. That section reads as follows:

57.(1) Every judge of the Court, except in matters arising out of any claim for extradition under any treaty, has concurrent jurisdiction with the courts or judges of the several provinces, to issue the writ of habeas corpus ad subjiciendum, for the purpose of an inquiry into the cause of commitment in any criminal case under any Act of the Parliament of Canada.

(2) If the judge refuses the writ or remands the prisoner, an appeal lies to the Court.

The writ was refused2 and under the authority conferred by subs. (2) Goldhar appealed to the Court.

On April 27, 1956, Goldhar had been found guilty in the Court of General Sessions of the Peace for the County of York in the Province of Ontario under the first count of an indictment charging that he and others at the City of

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Toronto, in the County of York and elsewhere in the Province of Ontario, between the fifteenth day of March and the sixth day of August in the year 1955, unlawfully did conspire together, the one with the other or others of them and persons unknown, to commit the indictable offence of having in their possession a drug, to wit., diacetyl-morphine, for the purpose of trafficking, an indictable offence under the Opium and Narcotic Drug Act, contrary to the Criminal Code. On May 4, 1956, he was sentenced by the judge presiding in the General Sessions of the Peace, His Honour Judge Macdonell, to twelve years imprisonment in the Kingston Penitentiary. Presumably shortly thereafter he was taken to the institution where he is now incarcerated.

A search was made by a solicitor on behalf of the appellant in the Records Office of the Kingston Penitentiary and there was produced to him a Calendar of Sentences,—Sessions—as being the authority under which the appellant was detained. That calendar was a certificate, dated May 4, 1956, signed by the Deputy Clerk of the Peace, York, and under the seal of the Court of General Sessions of the Peace in and for the County of York, certifying that the name of the prisoner was "Goldhar, Jack", that the offence was "conspiracy (to have in possession a drug for the purpose of trafficking)", that the date of sentence was "4th May, 1956" and that the sentence was "Twelve years in the Kingston Penitentiary". Attached to the solicitor's affidavit was a copy of the Calendar of Sentences and a copy of the indictment with the endorsement of the conviction and sentence on the back. The affidavit stated that the deponent had been advised by a stenographer in the Records Office of the penitentiary that the Calendar is the only document received at such office "when a person is convicted by a Judge at a Court of General Sessions of the Peace or by a Judge at a County Court"; and that, "it is only in the situation where a conviction is registered by a magistrate or the Supreme Court that Form 18 of the forms set out in the Criminal Code is used as the Warrant of Committal to Kingston Penitentiary". Furthermore, he was advised that the Calendar of Sentences,—Sessions was the only authority by which Goldhar was detained in custody.

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An appeal by Goldhar to the Court of Appeal for Ontario from his conviction was dismissed and an application for leave to appeal from that dismissal to this Court was refused. He thereupon launched the motion for a writ of habeas corpus, which was heard in October and November 1958, and his appeal from the order of Martland J. came on for hearing in June 1959. It then appearing that he had not applied to the Court of Appeal for Ontario for leave to appeal from his sentence, the appeal before us was adjourned in order to permit him to seek such leave, with permission to renew his appeal to this Court after the disposition of his application to the Court of Appeal. That Court granted him leave to appeal from his conviction restricted to the ground:

Whether Section 408(l)(d) of Criminal Code, 1953-54, Ch. 51 is applicable to the conspiracy committed since, if it is not, the maximum sentence for a conspiracy not specifically named in Criminal Code. R.S.C. 1927, Ch. 36 is found under Section 573 of said statute, namely seven years.

When, pursuant to such leave, his appeal from sentence was heard by the Court of Appeal, it was dismissed. An application by him to appeal to this Court3 from that dismissal was refused. Thereupon, pursuant to the leave reserved to him, he renewed his appeal before us from the order of Martland J. and that appeal was heard on March 7 and 8 of this year.

Sections 49(1) and 51 of the Penitentiaries Act, R.S.C. 1952, c. 206 enact:

49. (1) The sheriff or deputy sheriff of any county or district, or any bailiff, constable, or other officer, or other person, by his direction or by the direction of a court, or any officer appointed by the Governor in Council and attached to the staff of a penitentiary for that purpose, may convey to the penitentiary named in the sentence, any convict sentenced or liable to be imprisoned therein, and shall deliver him to the warden thereof, without any further warrant than a copy of the sentence taken from the minutes of the court before which the convict was tried, and certified by a judge or by the clerk or acting clerk of such court.

51. The warden shall receive into the penitentiary every convict legally certified to him as sentenced to imprisonment therein, unless certified by the surgeon of the penitentiary to be suffering from a dangerously infectious or contagious disease, and shall there detain him, subject to the rules, regulations and discipline thereof, until the term for which he has been sentenced is completed, or until he is otherwise legally discharged, but a convict, if certified by the surgeon to be suffering in

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manner aforesaid, may remain and be kept in his former custody until his condition in the opinion of the surgeon justifies withdrawal of the certificate.

By s. 2 of The General Sessions Act, R.S.O. 1950, c. 158, it is provided:

2. The courts of general sessions of the peace shall have jurisdiction to try all criminal offences except homicide, and the offences mentioned in section 583 of the Criminal Code (Canada).

Section 583 referred to was in the old Criminal Code. By s. 2(10) of the new Criminal Code, 1953-54, c. 51, which came into force April 1, 1955,

"court of criminal jurisdiction" means

(a) a court of general or quarter sessions of the peace, when presided over by a superior court judge or a county or district court judge, ............................................................................................

and by s. 413 of the new Code

413. (1) Every superior court of criminal jurisdiction has jurisdiction to try any indictable offence.

(2) Every court of criminal jurisdiction has jurisdiction to try an indictable offence other than ........................................................................................... (Certain offences which do not include that of which the accused was convicted.)

The Calendar is a certificate regular on its face that the appellant was convicted by a court of competent criminal jurisdiction and therefore it is impossible to go behind it on an application for habeas corpus; Re Trepanier4; Re Sproule5; In re Henderson6.

There is no substance in the appellant's objection that the description of the offence in the Calendar as "conspiracy (to have in possession a drug for the purpose of trafficking)" is insufficient; nor does it make any difference that the Court of General Sessions of the Peace is not a superior court of criminal jurisdiction; Rex v. Martin7.

While what has been said is sufficient to dispose of the appeal, reference might be made to the argument on behalf of the appellant that as he was found guilty of a charge of having conspired between March 15 and August 6, 1955, and the new Criminal Code came into force on April 1, 1955,

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the provisions of the old Code applied and he could not be sentenced to more than seven years imprisonment, which was the maximum provided for under the old Code for conspiracy to commit an indictable offence. Under s. 573 of the old Criminal Code the maximum penalty for conspiracy to commit an indictable offence was seven years. Under s. 408(1) (d) of the new Criminal Code the maximum penalty for conspiracy to commit an indictable offence (other than conspiracy to murder, conspiracy to bring a false accusation or conspiracy to defile) is the same as the penalty imposed in respect of the particular indictable offence regarding the commission of which there has been a conspiracy. In the case of having in possession a drug for the purpose of trafficking, the maximum penalty, under s. 4(3) (b) of the Opium and Narcotic Drug Act, is fourteen years. There is nothing to indicate that the evidence before the jury did not disclose that the conspiracy commenced after April 1, 1955, and that therefore the new Code would apply. The Court of Appeal having heard and dismissed an appeal as to sentence any judge in Ontario would be bound by that decision and I agree with what was held by Gwynne J. in In re Boucher8, by Sedgewick J. in In re Patrick White9 and by Girouard J. in In re Charles Seeley10 that, therefore, any judge of this Court, having concurrent jurisdiction with the court or judges of the Province of Ontario under what is now s. 57 of the Supreme Court Act, would be similarly bound.

In the Seeley case the order of Girouard J. was confirmed on appeal on other grounds and Chief Justice Fitzpatrick, speaking for the Court, referred to the remarks of Lord Herschell in Cox v. Hakes11, where Lord Herschell stated that it was always open to an applicant for a writ of habeas corpus, if defeated in one court, at once to renew his application to another, and that a person detained in custody might thus proceed from court to court until he obtained his liberty. In Smith v. The King12, Chief Justice Anglin stated that had it been competent for the Court to deal with that

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aspect of the case before him, he would have been disposed to think Mr. Justice Newcombe right as the latter had decided in the same sense as in the three earlier cases mentioned above. The dissenting opinion of Lament J. in Smith v. The King refers to Lord Halsbury's statement, at p. 514 of Cox v. Hakes:—"If release was refused a person detained might—see Ex parte Partington—make a fresh application to every judge or every court in turn". Lamont J. also referred to what Lord Herschell had stated at p. 527 in Cox v. Hakes. Lamont J. also referred to the decision of the Privy Council in Eshugbayi Eleko v. Government of Nigeria13. However, the judgments in connection with various applications by Edward Thomas Hastings show that whatever may have been the position at one time, there is now no justification for the idea that, if a person is refused a writ of habeas corpus by one judge, he may go to each judge in succession to renew his application.

From the report in In re Hastings14, it appears that Hastings had been convicted on each count of an indictment containing five counts. The warrant of commitment sent to the Governor of Walton Prison, Liverpool, where the applicant was detained, stated:

Whereas ............................................. Edward Thomas Hastings is and stands covicted of larceny, false pretences and fraudulent conversion. It is therefore ordered and adjudged by this court that (he) be sent for corrective training of four years.

The applicant applied for leave to appeal against the convictions and leave was given in respect of the first and two of the other counts. The Court of Criminal Appeal quashed the conviction on the first count and the appeal in relation to the two other counts was dismissed. Pearson J. in giving the judgment of the Court stated that the applicant had been "sentenced on each count concurrently", that although leave to appeal against sentence had not been asked for, the sentence was, in the view of the Court, reasonable and "the conviction on the first ground is quashed …… and there will be no alteration of sentence". The report in (1958) 1 W.L.R. is the report of an application for a writ of habeas corpus to the Queen's Bench Division on the

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ground that his detention was illegal, the main argument being that no sentence of the Court was ever passed upon him. That application was denied. Hastings thereupon appealed to the Court of Appeal who refused to entertain the application on the ground that being a criminal cause or matter that Court had no jurisdiction; (The Times, July 29, 1958.).

The next step was an application for a writ of habeas corpus to the Queen's Bench Division differently constituted in In re Hastings (No. 2)15. Lord Parker, speaking for himself and Hilbery and Diplock JJ., referred to the statement of Lord Esher when Cox v. Hakes was before the Court of Appeal under the title Ex parte Cox16, that "it is not correct to say that under the old system there could be an application to all the judges in succession". He then remarked that none of Their Lordships in the House of Lords dissented from Lord Esher's statement, unless it be Lord Halsbury in the passage quoted. It was pointed out that the decision in the Eleko case had remained unquestioned except in an Irish case, but it was held that the applicant, having already once been heard by a Divisional Court of the Queen's Bench Division, is not entitled to be heard again by another Divisional Court of the same Division.

The next step appears in In re Hastings (No. 3)17, where a Divisional Court of the Chancery Division held that an applicant for a writ of habeas corpus in a criminal cause or matter, who had once been heard by a Divisional Court of the Queen's Bench Division, cannot be heard again by a Divisional Court of the Chancery Division. Finally, to complete the picture, an appeal from this decision to the Court of Appeal in In re Hastings (No. 3)18 was dismissed on the ground that no appeal lay to the Court of Appeal.

In fact, all reason is consonant with the opposite rule and it is unthinkable that after the Court of Appeal for Ontario has decided a point against the accused on the latter's appeal as to sentence, any judge in that province would decide differently on an application for a writ of habeas corpus. Under s. 57 of the Supreme Court Act every

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judge of this Court has merely concurrent jurisdiction with the courts or judges of Ontario to issue a writ of habeas corpus and upon an appeal to the Court the latter may make only that order which the single judge would have had power to make.

The appeal should be dismissed.

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

Fauteux J.:—The appellant appeals from an order of Martland J. refusing his application for a writ of habeas corpus ad subjudiciendum.

The question, which counsel for the appellant admittedly sought to be determined by way of habeas corpus proceedings, is stated in the reasons for judgment of other members of the Court. In my view, it is one which would require the consideration of the evidence at trial and which, in this particular case, extends beyond the scope of matters to be inquired under a similar process. To hold otherwise would be tantamount to convert the writ of habeas corpus into a writ of error or an appeal and to confer, upon every one having authority to issue the writ of habeas corpus, an appellate jurisdiction over the orders and judgments of even the highest Courts. It is well settled that the functions of such a writ do not extend beyond an inquiry into the jurisdiction of the Court by which process the subject is held in custody and into the validity of the process upon its face.

I agree with the view that the appellant has been convicted and sentenced by a Court of competent jurisdiction, that the Calendar is a certificate regular on its face that the appellant has been so convicted and sentenced and that, with the material before him, Martland J. rightly dismissed the application for a writ of habeas corpus.

I would, therefore, dismiss the appeal.

The judgment of Locke and Cartwright JJ. was delivered by

Cartwright J.:—This is an appeal from an order of Martland J. made on November 20, 1958, refusing the appellant's application for a writ of habeas corpus ad subjiciendum19.

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The relevant facts and the history of the proceedings are set out in the reasons of the Chief Justice.

I do not find it necessary to deal with all the points which were so fully and ably argued before us. Assuming, contrary to the argument of counsel for the respondent, that Martland J. had jurisdiction to entertain the application I am of opinion that he was right to refuse the writ.

Before Martland J. and on the argument of this appeal counsel agreed that, if any objection could have been made successfully to the adequacy of the document held by the warden of the Penitentiary as authority for detaining the appellant, it would have been in order for the warden to obtain a proper minute or warrant of committal setting out the offence of which the appellant was convicted in the terms of the indictment. Counsel for the appellant made it plain that what he sought before Martland J. and before us was an adjudication on the question whether the maximum penalty for the offence of which the appellant was convicted was seven years or fourteen years in view of the circumstance that the indictment alleged a conspiracy between March 15 and August 6 in the year 1955, and if the offence were committed before April 1, 1955, the maximum penalty was seven years while if it were committed after that date the maximum was fourteen years. In my opinion this is a difficult question of law; and my brother Fauteux, in giving the judgment of the majority of the Court in Goldhar v. The Queen20, delivered on November 30, 1959, described it as "undoubtedly one of substance".

It was, however, a point which the learned Judge who presided at the trial of the appellant in the Court of General Sessions of the Peace had jurisdiction to decide, and if in the view of the appellant he erred in law in reaching his decision the proper course for the appellant to pursue was to appeal to the Court of Appeal.

The writ of habeas corpus ad subjiciendum is a writ of right and is issued ex debito justitiae, upon it being shown that there is ground for believing that the applicant is unlawfully held in custody, so that the Court may inquire into the cause of his imprisonment and in a proper case order his immediate release; but it is not a writ of course

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and may be refused where an alternative remedy by which the validity of the detention can be determined is available to the applicant. In Ex part Corke21, Lord Goddard, delivering the judgment of the Queen's Bench Division in which Slade J. concurred, said that habeas corpus is not a means of appeal where an accused has been convicted and sentenced by a court of competent jurisdiction. The remedy in such a case is by way of appeal; for so long as it stands unreversed the sentence of a competent court is a legal justification for imprisoning the applicant.

I wish to reserve my opinion as to whether the writ is available if the warrant of committal shows on its face that the sentence was one not permitted by law.

When the matter came before Martland J. it appeared from the material that the appellant had been convicted and sentenced by a court of criminal jurisdiction having jurisdiction to try the appellant on the charge of which he was convicted, that an appeal against the conviction had been taken and dismissed and that no appeal had been taken against the sentence imposed. On this state of the record, in my view, Martland J. was right in refusing the writ, for the judgment of His Honour Judge Macdonell unless set aside by the Court of Appeal furnished a sufficient ground for holding the applicant in custody.

A fortiori, we should refuse the writ now that the sentence imposed by His Honour has been affirmed by a judgment of the Court of Appeal and an application for leave to appeal to this Court from that judgment has been refused by this Court. The very question which the applicant seeks to have decided on this application is res judicata between the parties. In giving the judgment of the Privy Council in Sambasivam v. Public Prosecutor Federation of Malaya22, Lord MacDermott said:

The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings.

The question of the legality of the sentence imposed on the applicant has been conclusively determined by a court of competent jurisdiction and cannot be re-opened; this

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results not from the application of the principle of stare decisis but from the operation of the rule stated in the maxim quoted above, "Res judicata pro veritate accipitur".

Since the question of the legality of the sentence imposed on the appellant has become res judicata nothing would be gained by endeavouring to form an opinion as to how it should have been answered had it remained open; I have already said that it appears to me to be one of difficulty and I venture to express my regret that we have not the benefit of knowing the reasons which brought the Court of Appeal to the conclusion at which it arrived.

I would dispose of the appeal as proposed by the Chief Justice.

Appeal dismissed.

Solicitor for the appellant: M. Robb, Toronto.

Solicitor for the respondent: The Attorney-General of Ontario.