Supreme Court of Canada
In re Lazier, (1899) 29 S.C.R. 630
Date: 1899-06-07
In re Lazier.
1899: June 7.
Present: Sir Henry Strong C.J. and Taschereau, Gwynne, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Appeal—Habeas corpus—Extradition—Necessity to quash.
By sec. 31 of The Supreme and Exchequer Courts Act (R.S.C. ch. 135) “no appeal shall be allowed in any case of proceedings for or upon a writ of habeas corpus arising out of any claim for extradition made under any treaty.” On application to the court to fix a day for hearing a motion to quash such an appeal.
Held, that the matter was coram non judice and there was no necessity for a motion to quash.
APPLICATION to the court by Mr. A.F. May to have a day fixed to hear a motion to quash the appeal in this case.
An order for extradition of the appellant having been made, he applied to Meredith C.J. to be discharged on habeas corpus which the learned chief justice refused. An appeal from his judgment to the Court of Appeal having been dismissed a further appeal to the Supreme Court of Canada was taken.
Notice of motion to quash this appeal for Friday, June 10th, 1899, having been served, and the May session being about to close, Mr. May applied on June 7th to have the court name the 10th or some subsequent day to hear the motion. His application was refused, the decision of the court being announced by:
THE CHIEF JUSTICE (oral).—Mr. May has made application to the court to have a day fixed for hearing a motion to quash an appeal in a case of Habeas Corpus arising out of extradition proceedings, in
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which there has been an order for the delivery up of the prisoner. No such appeal can be taken to this court, as section 31 of the Supreme and Exchequer Courts Act expressly provides that “No appeal shall be allowed in any case of proceedings for or upon a writ of Habeas Corpus arising out of any claim for extradition made under any treaty.” The original Act did not contain this limitation, but in the year after that Act came into force, as soon, in fact as the court was properly organized, it was amended by the insertion of the provision I have mentioned, and from that time to the present there has never been any question as to our want of jurisdiction in such cases.
We are now asked to hear a motion to quash an appeal which section 31 prohibits. There is no necessity for such a motion. The matter is coram non judice. We have no jurisdiction, and the authorities who have charge of the extradition proceedings will, no doubt, on being advised as to the appeal being entirely nugatory, take the proper steps.
Such appeals should not be encouraged, and as there is no necessity for a motion to quash the court declines to name a special day to hear one.
Application refused.
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