Duval v. The King, [1938] SCR 390

Supreme Court of Canada

Duval v. The King, [1938] S.C.R. 390

Date: 1938-05-31

Duval and Others Appellants;

and

His Majesty The King Respondent.

1938: May 31.

Present: Duff C.J. and Cannon, Crocket, Davis and Kerwin JJ.

ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Appeal—Application to Judge of Supreme Court of Canada for special leave to appeal under section 1025 Criminal Code—Dismissal of motion—Appeal to the Court from decision of judge in chambers on such application.

There is no appeal before this Court from an order made by one of its judges in chambers dismissing an application for leave to appeal under the provisions of section 1025 of the Criminal Code.

Smith v. Hogan ([1931] S.C.R. 652) disc.

MOTION by way of appeal to the Court from an order of Hudson J. in chambers dismissing an application for leave to appeal under section 1025 of the Criminal Code.

R. L. Colder K.C. for motion.

A. Drolet contra.

The judgment of the Court was delivered orally by

The Chief Justice.—It will not be necessary to call on the other side.

[Page 391]

We have considered the argument addressed to us by Mr. Calder. The power of the Court in respect of orders made by a Judge in Chambers is discussed at large in Re Smith v. Hogan[1].

In that case an application for leave to appeal under the Bankruptcy Act was dismissed by the judge who heard it on the ground of lack of jurisdiction because the period for making such application fixed by rule 72 of the Bankruptcy Act had expired. This Court held that the time having been competently extended by an order of Chief Justice Barry of the Court of King’s Bench, sitting as a bankruptcy judge, the applicant had a legal right to have his application heard on the merits and that he was entitled to proceed with his application. The decision proceeded upon the ground that the dismissal of the application constituted a refusal to entertain an application which the applicant was legally entitled to have heard and decided on the merits.

There is nothing in that judgment, or in any of the previous judgments there referred to, which suggests that, consistently with the intendment of the provisions of the Railway Act, or the provisions of the Bankruptcy Act, for example, this Court could, after an application for leave to appeal has been fully heard on the merits and dismissed by the judge to whom the application was made, review the decision on the merits and allow the application; and we think that applies with equal force to applications under the provisions of article 1025 of the Criminal Code.

Here the application was made to Mr. Justice Hudson, was fully heard by him and dismissed, and we think that must be final.

Motion dismissed.