Supreme Court of Canada
Mitchell v. Tracey and Fielding, (1919) 58 S.C.R. 640
Date: 1919-03-17
J. Burton Mitchell Appellant;
and
E. S. Tracey and George H. Fielding Respondents.
1919: March 4; 1919: March 17.
Present: Sir Louis Davies C.J. and Idington, Anglin, Brodeur and Mignault JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Appeal—Prohibition—"Criminal charge"—R.S.C., c. 139, ss. 39 (c) and 48 "Supreme Court Act"—8 & 9 Geo. V. c. 7, s. 3.
An appeal from the court of final resort in any province except Quebec in a case of prohibition under sec. 39 (c) of the "Supreme Court Act" will not lie unless the case comes within some of the provisions of sec. 48 as amended by 8 & 9 Geo. V. ch. 7, sec. 3.
Sec. 39 (c) allows an appeal from the judgment in any case of proceedings for or upon a writ of prohibition "not arising out of a criminal charge."
Held, per Davies C.J. and Anglin and Mignault JJ. that application for a writ of prohibition to restrain a magistrate from proceeding on a prosecution for violating the provisions of the "Nova Scotia Temperance Act" arises out of a criminal charge and no appeal lies from the judgment thereon.
Per Mignault J. in Chambers.—An order to stay proceedings on a judgment of the Supreme Court of Canada for purposes of a proposed appeal to the Privy Council will not be granted in a case in which the Court has determined that it is without jurisdiction to hear the appeal.
APPEAL from an order of the Acting Registrar refusing to affirm the jurisdiction of the court and approve the security.
The reasons given by the Acting Registrar for refusing the order are the following:—
Acting Registrar.—"Application before me as Acting Registrar to affirm jurisdiction and approve of bond filed as security for costs. The applicant, a licensed vendor of liquor in Halifax under the 'Nova Scotia Temperance Act,' was charged before a magistrate
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with unlawful selling of liquor contrary to the provisions of the Act. The charge was heard but judgment was stayed pending an application for a writ of prohibition to restrain the magistrate from convicting. The writ was refused and from such refusal the applicant seeks to appeal to this court.
"Two questions are raised affecting the right to appeal to this court. The 'Supreme Court Act,' section 39 (c), allows an appeal in a case of habeas corpus or prohibition not arising out of a criminal charge. The first question then is whether or not the charge in this case was a 'criminal charge' within the meaning of section 39 (c).
"This question came before the Supreme Court in the case of In re McNutt. In that case the appellant, Mrs. McNutt, had applied for discharge by habeas corpus from imprisonment on conviction for an offence under the same Act as in this case, the 'Nova Scotia Temperance Act.' The case was heard by the six judges of the court. Three of them held that the application for the writ arose 'out of a criminal charge;' one held that it did not and one seriously doubted that it did; the remaining judge expressed no opinion on the point but quashed the appeal on another ground.
"Sir Charles Fitzpatrick, one of the three who held that it was criminal, is no longer a member of the court. If this case, then, should come before the present bench of judges the position would be that two of them are on record as holding that the charge was criminal, practically two that it was not, and two whose views are entirely unknown. I consider, therefore, that the question is at large and my personal opinion being in accord with that of Mr. Justice Duff,
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I would be prepared to affirm the jurisdiction so far as this first question is concerned.
"The second question is one of greater difficulty for the applicant. At the last session of Parliament, section 48 of the 'Supreme Court Act,' which had previously been confined to appeals from Ontario, was extended to cover appeals from all the provinces except Quebec. It is necessary, therefore, to decide whether or not the case before us is governed by that section.
"It is settled by authority that it is so governed. Not only has the court held, before the amendment, that an appeal in an Ontario case of mandamus must comply with the requirements of section 48 (Attorney-General v. Scully), and also in the case of a municipal by-law (Town of Aurora v. Markham), as to both of which the appeal is allowed by section 39, but it has lately held that an appeal in a case of prohibition from the Province of Quebec must comply with the requirements of section 46, the counterpart, for Quebec, of section 48. (Desormeaux v. Village of Ste. Thérèse.
"As the case before me does not come within the terms of section 48 there is no appeal as of right, and the motion to affirm jurisdiction must be dismissed. No costs. If the jurisdiction was affirmed the bond filed is sufficient.
"C. H. Masters,
"Acting Registrar."
The applicant appeals from this decision to the Supreme Court.
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Power K.C. for the appellant.
Bethune for the respondent.
The Chief Justice.—As to the meaning of the language "not arising out of a criminal charge" in sub-section (c) of section 39 of the "Supreme Court Act," I adhere to the opinion I expressed in In re McNutt.
And as to the appellant's right of appeal to this court de piano as taken in this appeal and which right the appellant sought to have affirmed by the Assistant Registrar, I am of opinion that this officer was right in refusing to affirm our jurisdiction to hear the appeal.
That jurisdiction is defined and limited by section 48 of the "Supreme Court Act" and appellant failed to bring himself within its provisions, Aurora v. Markham. Sections 37, 38 and 39 must be read and construed together with section 48 and subject to it.
In the present case there is no amount involved in the appeal or other ground which could possibly give a right of appeal under that section.
Idington J.—I do not think this appeal should be allowed inasmuch as the amendment of the "Supreme Court Act" contained in 8 & 9 Geo. V. ch. 7, seems to forbid it.
As to leave to appeal the application is too late for this court to grant and can only be given now by the court sought to be appealed from.
Anglin J.—I have seen no reason to change the view which I expressed in In re McNutt, as to the construction of the phrase "not arising out of a criminal charge" in section 39 (c) of the "Supreme Court Act."
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Section 48 of the "Supreme Court Act," made applicable by the legislation of 1918 to all the provinces other than Quebec, is, in my opinion, conclusive against a right of appeal de piano in this case. Sections 37, 38 and 39 are subject to section 48 just as they are subject, in Quebec appeals, to section 46. Desormeaux v. Ste. Thérèse; Bouchard v. Sorgius. That would be so without the introductory words "except as hereinafter otherwise provided'' found in each of these sections. But the presence of that phrase leaves no room for argument.
In Trusts and Guarantee Co. v. Rundle, very much relied upon by Mr. Power, section 48 was not and could not have been invoked, the amount involved in the appeal being over $1,000, viz., $1,068.27, expenditure allowed in the Surrogate Court and disallowed by the Court of Appeal, and $100 of the guardian's remuneration fixed by the Surrogate Court, likewise disallowed.
The appeal from the order of the Acting Registrar fails on both grounds and should be dismissed with costs.
The application for special leave to appeal is too late. Goodison Thresher Co. v. Township of McNab.
Brodeur J —This is a motion by way of appeal from an order of the Registrar declaring that the court has no jurisdiction to hear this case.
The court below refused a writ of prohibition in a prosecution against the appellant for selling liquor contrary to the "Nova Scotia Temperance Act" and he now wants to appeal to this court. One of the
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objections made to his right to appeal is that section 48 of the "Supreme Court Act," as amended in 1918, precludes him from entering this appeal.
By section 39 of the "Supreme Court Act" an appeal to the Supreme Court in cases of prohibition is given but that appeal is limited and controlled by section 48 of the same Act which declares that no appeal will lie unless the judgment a quo relates to title to real estate, affects the validity of a patent, puts in controversy a matter exceeding $1,000, or relates to an annuity.
None of these conditions are to be found in that judgment.
Applying the decisions rendered by this court in Attorney-General v. Scully; Desormeaux v. Ste. Thérèse; and in Bouchard v. Sorgius, I am strongly of the view that the appellant has no right to ask this court to adjudicate on his writ of prohibition.
Another ground urged against this appeal is that under section 39 the appeal lies in proceedings for a writ of prohibition "not arising out of a criminal charge" and that the writ of prohibition in this case has reference to a criminal charge.
The statute in violation of which the appellant has been prosecuted is a provincial statute; and in deciding the point raised we might curtail the legislative powers of the provinces without giving an opportunity to the provinces to be heard.
In view of the conclusions I have reached on the first point above mentioned, I do not see any reason for me to express my views upon the second point.
The appellant asks also in the alternative that he should be granted leave to appeal.
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It was decided in Goodison Thresher Co. v. McNab, that after the expiration of sixty days from the pronouncing of the judgment a quo this court is without jurisdiction to grant special leave.
The motion should be dismissed with costs.
Mignault J.—Two questions arise under this appeal from the decision of the Acting Registrar refusing to affirm jurisdiction in favour of the appellant:
1. Do the appellant's proceedings for a writ of prohibition arise out of a "criminal charge?"
2. Assuming that this first question be answered in the negative, has the appellant a right of appeal to this court, in view of the provisions of section 48 of the "Supreme Court Act?"
First question.—In the case of In re McNutt, in which six judges sat, three judges, Fitzpatrick C.J. Davies and Anglin JJ. expressed the opinion that a trial and conviction for keeping liquor for sale contrary to the provisions of the same Act, the "Nova Scotia Temperance Act," were proceedings on a "criminal charge" within the meaning of section 39 (c) of the " Supreme Court Act." Mr. Justice Duff was of the opinion that the proceedings did not arise out of a "criminal charge," within the meaning of that sub-section, and Mr. Justice Idington and Mr. Justice Brodeur expressed no opinion on this point. The learned Acting Registrar, therefore, considered the question as being an open one, although he rejected the motion of the appellant to affirm jurisdiction upon the second ground above referred to.
Under the circumstances, I think it is incumbent on me to express my opinion upon both these questions
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which were fully argued by the learned counsel for the appellant.
It is almost unnecessary to say that the jurisdiction of this court is statutory, that is to say, that it must appear in any case brought before this court that the statute properly construed confers jurisdiction, and if this is not shewn jurisdiction is negatived.
The "Supreme Court Act" refers several times to ''criminal charges" and to "criminal cases," and the answer to the question I am considering depends upon the construction to be placed upon these words. I will refer very briefly to some of the provisions of the Act.
In the first place, the introductory section 35 states that this court has "civil and criminal jurisdiction" within and throughout Canada.
As the words "civil" and "criminal" are here employed in contradistinction to each other, they must certainly be understood as being used lato sensu, and, therefore, "criminal" matters comprise all matters which can come under the general term according to the well-known test that
the proper definition of the word "crime" is an offence for which the law awards punishment. Per Littledale J. in Mann v. Owen, at p. 602.
When, therefore, in the next section, section 36, we find the general right of appeal granted by section 35 restricted by the proviso that no appeal lies from a judgment
in any case of proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge,
the ordinary rules of construction would give to the word "criminal" the same meaning as in section 35, and, therefore, I would say that it is here used in the
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wide sense, according to the test I have indicated above.
Sub-section (b) of section 36 further states, as a part of the same proviso, that
there shall be no appeal in a criminal case except as provided in the Criminal Code.
This is a reference to sec. 1024 of the Criminal Code by the terms of which the right of appeal is restricted to convictions for indictable offences affirmed on an appeal taken under sec. 1013 of the Code, to the Court of Appeal, where the latter court is not unanimous in affirming the conviction. Whatever restricted meaning, therefore, might be given to the words "criminal case" in sub-section (b) by reason of the reference to' the Criminal Code, cannot, in my opinion affect the construction of the words "criminal charge" as used in sub-section (a).
Coming then to the words "criminal charge" in sub-section (c) of section 39, where it is said that an appeal shall lie to the Supreme Court
from the judgment in any case of proceedings for or upon a writ of habeas corpus, certiorari or prohibition not arising out of a criminal charge,
there can be no doubt whatever that the words "criminal charge" must receive the same construction as in sub-section (a) of section 36, and, therefore, my opinion is that they are used in the wide sense as allowing an appeal in matters of prohibition merely when they arise out of "civil" as distinguished from. "criminal" proceedings.
We next find the words "criminal case," already met with in sub-section (b) of section 36, in section 62 which says that
every judge of the court shall, except in matters arising out of any claim for extradition under any treaty, have concurrent jurisdiction with the court or judges of the several provinces for the purpose of
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an inquiry into the cause of commitment in any criminal case under any Act of the Parliament of Canada.
It is to be observed that the words "criminal case," which otherwise would be of general application, are qualified here by the addition of the words
under any Act of the Parliament of Canada.
It would not appear to me that because we have an express qualification here, we should read that qualification into the previous sections where the expression "criminal" is used without any qualifying words. On the contrary, I find that when it was desired to qualify or restrict the generality of the term "criminal," parliament has used apt words to express the qualification, and I know of no rule of construction that would authorize me to imply that qualification in cases where it is not expressed.
In section 67, sub-section 4, there is a provision that this section—which governs the removal of cases from the provincial courts to the Supreme Court where the constitutionality of an Act of Parliament or of a legislature is in question—
shall apply only to cases of a civil nature.
The word "civil" is here used lato sensu and excludes anything that can come under the description of "criminal" matters, which seems to me to harmonize with the restriction expressed in sub-section (a) of section 36, and in sub-section (c) of section 39.
The only remaining provision of the "Supreme Court Act" where the word "criminal' is used is section 75 with reference to security for costs which is not required, inter alia, as to appeals "in criminal cases." These criminal cases are obviously those referred to in sub-section (b) of section 36, and in section 1024 of the Criminal Code.
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I would, therefore, conclude—and I also rely on the reasoning of Fitzpatrick C.J. and of Davies and Anglin JJ. in the McNutt Case—that the words "criminal charge" in sub-section (a) of section 36, and in subsection (c) of section 39, are used in a wide and not a restricted sense. No question whatever as to the power to legislate with respect to criminal law under the "British North America Act" arises here, and no consideration of the respective powers of parliament and of the legislatures with regard to criminal or penal matters can be of any assistance in the construction of the sections of the "Supreme Court Act" to which I have referred and which undoubtedly, however wide may be their application, are intra vires of the Canadian Parliament.
I, therefore, answer the first question in the affirmative, and consequently I hold that this court has no jurisdiction to pass on the appeal which the appellant seeks to bring before it, for the proceedings he has taken arise out of a criminal charge.
Second question. There can be absolutely no doubt, under the previous decisions of this court, that even assuming that I could answer question 1 in the negative, the appellant cannot appeal to this court inasmuch as his case does not come within the ambit of section 48. This section was amended in 1918 by 8 & 9 Geo. V., ch. 7, and now applies to all the provinces, with the exception of Quebec. It is the counterpart of section 46 with respect to Quebec appeals, and this court held in Desormeaux v. Ste. Thérèse, and more recently in Montreal Abattoire, Limited v. City of Montreal (unreported, 14th November, 1918), that no appeal lies to the Supreme Court from a judgment of a court
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in the Province of Quebec in any case of proceedings for or upon a writ of prohibition, unless the matter in controversy falls within some of the classes of cases provided for by section 46. Similarly an appeal in the case of proceedings for or upon a writ of prohibition in Nova Scotia does not lie to this court unless the matter in controversy, even though it were not excluded by sub-section (a) of section 36, or sub-section (c) of section 39, falls within some of the classes, of cases provided for by section 48, which, since the amendment of 1918, applies to that province. The second question should be answered in the negative.
I think, therefore, that the appeal from the decision of the Acting Registrar should be dismissed with costs.
The appellant asked that should this court be of opinion that he cannot appeal as of right, he be granted special leave to appeal under sub-section (e) of section 48.
I think the answer I have given to the first question would preclude me from granting leave to appeal in a case where, in my opinion, the right of appeal is expressly taken away by the statute. But for another reason the prayer of the appellant cannot be granted by this court inasmuch as more than sixty days have elapsed since the judgment a quo was rendered. Goodison Thresher Co. v. Corporation of McNab.
Appeal dismissed with costs.
MOTION FOR STAY OF PROCEEDINGS.
The appellant then applied to Mr. Justice Mignault in chambers for an order staying further proceedings in this court until an application could be made to the Judicial Committee of the Privy Council for leave to
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appeal to that Board. The order was refused for the following reasons:
Mignault J.—In this matter I am of the opinion that inasmuch as this court has declared that it has no jurisdiction to entertain the appeal of the appellant from the judgment of the Supreme Court of Nova Scotia, Crown side, herein, and has dismissed the appeal taken by the appellant from the decision of the Acting Registrar refusing to affirm jurisdiction, I cannot grant the stay of proceedings asked for by the appellant.
Moreover, the affidavit of the appellant does not shew whether he intends to take a direct appeal to the Judicial Committee of the Privy Council from the judgment of the Supreme Court of Nova Scotia, or whether he purposes to apply to the Judicial Committee for leave to appeal from the judgment of this court dismissing his appeal from the decision of the Acting Registrar refusing to affirm jurisdiction, and under these circumstances I am of the opinion that a proper case has not been made out for granting a stay of proceedings.
The motion of the appellant is dismissed with costs.
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