MacFarlane v. The Queen, (1889) 16 SCR 393

Supreme Court of Canada

MacFarlane v. The Queen (1889) 16 SCR 393

Date: 1889-03-18

John MacFarlane

Appellant

And

Her Majesty The Queen

Respondent.

1889: Feby. 23; 1889: Mar. 18.

Present—Strong, Fournier, Taschereau, Gwynne and Patterson JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.

Criminal law—Assault on constable in discharge of duty—Serving summons—Trial of indictment—Witness—Competency of wife of defendant—R. S. C., ch. 162, sec. 34—R. S. C., ch. 174, sec. 216.

An assault on a constable attempting to serve a summons issued by a magistrate on information charging violation of the Canada Temperance Act is an assault on a peace officer in the due execution of his duty and indictable under R. S. C., ch. 162, sec. 34.

On the trial of an indictment for such assault the wife of the defendant is not a competent witness on his behalf.

Appeal from a decision of the Court of Crown Cases Reserved for the Province of New Brunswick, affirming the conviction of the appellant on an indictment for assaulting a constable in discharge of his duty.

The constable was entrusted with the service of a summons against the appellant for violation of the Canada Temperance Act. Not finding him at his place of business he went to the appellant's house and met him coming out. It was after dark, and the constable asked appellant to return to the house for a light to enable him to pick out the summons from among others, which appellant refused to do, and walked away from the house. The constable followed, and after proceeding some distance appellant threatened to split his head open with a stick which he carried. After making this threat he knocked the constable down, and his wife, who was with him, kicked the constable as he lay on the ground. A person who had accompanied the constable came to his assistance, and

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having procured a light the summons was served. Appellant was indicted for the assault, and convicted. The following questions were reserved for the consideration of the Court of Crown Cases Reserved:

1. Was the service of a duplicate summons a proper service under the Act?

2. Were the appellant and his wife competent witnesses for the defence on the trial of the indictment?

3. Was the constable acting in the discharge of his duty when the assault was committed?

The first question was abandoned at the argument.

The Court of Crown Cases Reserved affirmed the conviction, Palmer J. dissenting, and from their decision the present appeal was brought to the Supreme Court of Canada.

J. A. Vanwart for the appellant.

R. J. Ritchie, Solicitor-General of New Brunswick, for the respondent.

The judgment of the court was delivered by

STRONG J.—I am of opinion that the defendant was properly convicted and that this appeal must fail.

The first point was virtually abandoned on the argument, and very properly so, for there cannot be any doubt that the service of a summons is properly effected by delivering a duplicate or copy to the defendant.

That the constable Jones was in the execution of his duty as a constable or peace officer when he was assaulted by the defendant whom he was endeavouring at the time to serve with the summons must, I think, necessarily result from the provision of the statute, which says that the service may be by a constable or peace officer, inasmuch as by the 14th section of the statute, it was made the imperative duty of the constable to serve a summons delivered to him by the magistrate. Then Jones was endeavouring

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to serve the summons when he was assaulted by the defendant, and therefore he was assaulted when in the course of the execution of his duty. That this duty being one imposed by statute, and not a common law duty of a peace officer, can make no difference as regards the applicability of the statutory provision creating the special offence for which the defendant was indicted, inasmuch as the duty to serve the summons was imposed upon the prosecutor ex officio in his character as a constable or peace officer.

The only remaining question is whether the evidence of Jones and his wife, tendered at the trial on behalf of the defendant, was properly rejected, and I am of opinion that upon this point also the ruling of the learned Chief Justice was entirely right. Such evidence under the statute is only admissible where the defendant is charged with simple assault and battery, which must be taken to mean the old common law misdemeanor answering to that description. The defendant was not indicted for this offence, but for the statutory offence of assaulting a peace officer in the execution of his duty. Upon this point the case of Reg. v. Richardson[1] is direct authority against the appeal, and I see no answer to it.

In my opinion, there does not exist any reason for doubting that the ruling of the Chief Justice at the trial, and the judgment of the Supreme Court in banc, were correct.

The appeal must be dismissed.

Appeal dismissed and conviction affirmed.

Solicitor for appellant: J. A. Vanwart.

Solicitor for respondent: Solicitor-General of New Brunswick.