Trenholm v. Attorney-General of Ontario, [1940] SCR 301

Supreme Court of Canada

Trenholm v. Attorney-General of Ontario, [1940] S.C.R. 301

Date: 1940-01-19

John Trenholm (Plaintiff) Appellant;

and

The Attorney-General of Ontario (Defendant) Respondent.

1939: November 23; 1940: January 19.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Habeas Corpus—Person arrested on criminal charge and remanded by magistrate to gaol—Later committed as mentally ill—Warrant of Lieutenant-Governor of Province, for conveyance to and detention in hospital, dated after expiration of remand on criminal charge—Invalidity of warrant—Criminal Code (R.S.C., 1927, c. 36), s. 970 (as enacted in 1935, c. 56, s. 15)—Appeal to Supreme Court of Canada from judgment of Court of Appeal for Ontario affirming refusal of release from hospital on habeas corpus—Jurisdiction to hear appeal—

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Supreme Court Act (R.S.C., 1927, c. 35), s. 36 (clause excepting from Court’s jurisdiction appeals from judgments “in criminal causes and in proceedings for or upon a writ of habeas corpus * * * arising out of a criminal charge.”).

Appellant, arrested on a criminal charge, was remanded to gaol by a magistrate on January 3 (1938) until January 10. On January 7, appellant having been examined as to his mental condition, an information was sworn, under the Ontario Mental Hospitals Act (now R.S.O., 1937, c. 392), alleging that appellant was mentally ill, and on examination and inquiry by a magistrate he was committed as mentally ill. The warrant of the Lieutenant-Governor of Ontario, for appellant’s conveyance to and detention in a specified hospital, was dated January 12, and on January 15 appellant was conveyed from the gaol to the hospital. The form of the warrant was that attached to the regulations issued under said Ontario Act and to be used where s. 32 (1) of that Act (R.S.O., 1937, c. 392) would apply; but the Court was told that the same form was used in Ontario when it was intended to proceed under s. 970 (as enacted in 1935, c. 56) of the Criminal Code. Appellant applied for his release from the hospital on habeas corpus. His application was dismissed by Hogg J., ([1939] 3 D.L.R. 627), his appeal to the Court of Appeal for Ontario was dismissed, and he appealed to this Court.

Held (Rinfret and Crocket JJ. dissenting on the ground of want of jurisdiction): The appeal should be allowed, and an order should go for appellant’s release (the order not to issue until after a time fixed).

Per the Chief Justice and Davis and Kerwin JJ.: Said s. 32 (1) of the Ontario Mental Hospitals Act could have no application, as appellant was not imprisoned “for an offence under the authority of any of the statutes of Ontario” or “for safe custody charged with an offence” under the authority of any such statutes; moreover, the proceedings (discussed) indicated that the warrant was not issued as a result of proceedings commenced under said Ontario Act. The warrant could not be said to be legally issued under said s. 970 of the Criminal Code, as at the time of its issue the remand on the criminal charge had expired and appellant was not then “imprisoned in safe custody charged with an offence” within the meaning of s. 970 (1) (s. 680, Criminal Code, also referred to by Davis J.). There was therefore no authority for appellant’s detention. This Court had jurisdiction to hear and determine the appeal. The objection to jurisdiction on the ground that the proceedings were “criminal causes” or “proceedings for or upon a writ of habeas corpus * * * arising out of a criminal charge “ within the exception to this Court’s jurisdiction in s. 36 of the Supreme Court Act was answered by the fact that after the expiry of the remand there was no criminal cause or charge in existence, and therefore the application for appellant’s discharge could not arise thereout; it arose out of his detention in the hospital under the invalid warrant issued without any legal authority.

Per Rinfret and Crocket JJ. (dissenting): The appeal should be quashed for want of jurisdiction. It falls within the clause of s. 36 of the Supreme Court Act which excepts from this Court’s jurisdiction appeals “in criminal causes and in proceedings for or upon a writ of habeas corpus * * * arising out of a criminal charge.” The warrant, and the affidavits produced on the return of the habeas

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corpus order, shewed that the proceedings before Hogg J. and the custody from which appellant sought his discharge arose out of a criminal charge within the meaning of said excepting clause, and this in itself is conclusive against this Court’s jurisdiction; the point now taken that, the period of remand having expired when the warrant was issued, the warrant was void and of no effect, while a point to be determined by Hogg J. (had it been discovered and suggested before him) in considering the question of the legality of appellant’s custody, is not one which this Court has a right to consider, as it involves a decision upon the merits of the habeas corpus application; the only point for this Court to determine upon the question of its jurisdiction is, not whether the question of the legality of appellant’s custody at the time was rightly or wrongly determined, but simply whether the habeas corpus proceedings arose out of a criminal charge. (It would have been quite another matter, had the question come before this Court by way of appeal from the decision of a judge of this Court in the exercise of his concurrent original jurisdiction, as to issue of a writ of habeas corpus ad subjiciendum, under s. 57 of the Supreme Court Act).

APPEAL from the order of the Court of Appeal for Ontario dismissing (without written reasons) the present appellant’s appeal from the order of Hogg J.[1] dismissing his application for his release from the Ontario Hospital, Toronto, on habeas corpus.

The material facts of the case are sufficiently stated in the reasons for judgment in this Court now reported. The appeal to this Court was allowed with costs throughout; appellant to be discharged from custody; the order not to issue until after the expiration of two weeks. Rinfret and Crocket JJ. dissented, being of opinion that this Court had no jurisdiction to entertain the appeal.

No one appeared for appellant.

K.G. Gray K.C. for respondent.

The judgment of the Chief Justice and Kerwin J. was delivered by

KERWIN J.—This is an appeal by John Trenholm from an order of the Court of Appeal for Ontario dismissing an appeal from an order of the Honourable Mr. Justice Hogg which dismissed the application of the appellant for his discharge from the Ontario Hospital, Toronto. The original application was “for an order for a writ of habeas corpus for the release of the said John Trenholm from

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the Ontario Hospital at Toronto; or for such further or other order as may seem just.” An affidavit of the Superintendent of the Ontario Hospital was filed, stating:—

2. John Trenholm is at present a patient in the Ontario Hospital, Toronto, having been admitted to the said hospital on the 15th day of January, 1938, pursuant to The Mental Hospitals Act, R.S.O., 1937, chap. 392, on a warrant of the Lieutenant-Governor, dated the 12th day of January, 1938, copy of which is attached and marked Exhibit A to this my affidavit.

Paragraphs 9, 10 and 11 of the affidavit state:—

9. The said John Trenholm was brought before Magistrate A.L. Tinker on January the 7th, 1938, and the said Magistrate Tinker conducted an inquiry into the mental condition of the said John Trenholm.

10. For the purposes of the inquiry, the said John Trenholm was examined by Dr. G.A. McLarty and Dr. John Chassels, and both of the said medical practitioners certified that the said John Trenholm was mentally ill. Copy of the certificate of Dr. McLarty is attached and marked Exhibit B to this my affidavit and copy of the certificate of Dr. John Chassels is attached and marked Exhibit C to this my affidavit.

11. The said Magistrate A.L. Tinker issued his certificate based on the aforesaid inquiry, copy of which is attached and marked Exhibit D to this my affidavit.

From the very outset the position taken on behalf of the respondent was that an error had been made in the Superintendent’s affidavit and that Trenholm was not in the institution as a result of any proceedings taken under The Mental Hospitals Act but that the Lieutenant‑Governor’s warrant referred to was issued in pursuance of section 970 of the Criminal Code as enacted by section 15 of chapter 56 of the Statutes of 1935. Apparently the matter was treated as if a writ of habeas corpus ad subjiciendum had been issued and a return made thereto because the Court then examined into the truth of the facts set forth in what was treated as a return.

From this examination it appears that Trenholm, in 1932, was charged with attempted murder and in August of that year was admitted to the Psychiatric Hospital, whence he was transferred to the Ontario Hospital, Toronto. He escaped from that hospital on November 13th, 1935, was later apprehended, placed in the Psychiatric Hospital on January 26th, 1936, and again transferred to the Ontario Hospital, Toronto. While he was in the hospital, the original information charging him with attempted murder was resworn on December 15th, 1936, asking for the issue of a warrant instead of a summons, and a warrant was accordingly issued on the same day. He escaped on June

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18th, 1937, and was arrested on December 31st, 1937, under the warrant of December 15th, 1936. He was brought before Magistrate Jones on January 3rd, 1938, and remanded to the Toronto gaol until January 10th, 1938.

On January 6th, 1938, the Assistant Crown Attorney, by a letter written on the instructions of the magistrate, requested the surgeon at the Toronto gaol to conduct an examination into the mental condition of Trenholm and to report. On the same day the gaol surgeon and another doctor, by separate documents, certified that Trenholm was mentally ill and a proper person to be confined in an Ontario hospital. These certificates follow the form prescribed by the regulations under The Mental Hospitals Act, R.S.O., 1937, chapter 392, and reference is made in each certificate to section 20 of that Act. The Revised Statutes of 1937 were not then in force but section 20 of the present Act is the same as section 21 of the statute then in force, chapter 39 of the Statutes of 1935.

On the same day, January 6th, these certificates were directed to be sent from the Toronto gaol to the office of the Magistrates’ Clerk at the City Hall, Toronto. It is not shown whether they were received there January 6th or 7th but on the latter date an information was sworn before Magistrate Tinker under the Ontario Act alleging that Trenholm was mentally ill. No warrant under the Ontario Act for Trenholm’s apprehension was issued as he was then in custody but at the end of the information appears a notation “committed mentally ill,” signed by the magistrate. On the same day, the magistrate issued a certificate, under the Ontario Act, that he had personally examined Trenholm and “I do hereby further certify that from such personal examination, and from the evidence adduced thereon, I am of opinion that he is mentally ill, and pending his transfer to an institution, I have committed him into the care and custody of The Governor of Toronto Gaol.” This certificate and the doctors’ certificates were sent on the same day to the office of the Deputy Minister of Health for Ontario. It is not clear how they were sent or the exact date they were received, as the Deputy Minister of Health can only state that they were received early in January. They were sent, however, by him by mail to the Superintendent of the Ontario Hospital, Toronto, and received by the latter on January 10th.

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The Lieutenant-Governor’s warrant dated January 12th, 1938, which is produced as being the justification for Trenholm’s detention at the Ontario Hospital, prepared by the Deputy Minister of Health and signed by him, is as follows:—

Albert Matthews

(Seal)                                           Ontario

                                                           By the Honourable

                                                             Albert Matthews

                                   Lieutenant-Governor of the Province of Ontario

To the Superintendent, Common Gaol, Toronto

And to the Superintendent of the Ontario Hospital, Toronto,

And to the Provincial Bailiff,

Greeting:

Whereas the mental illness of John Trenholm at present confined in the Common Gaol, Toronto, has been duly certified pursuant to and in accordance with the statute in that behalf,

Now by this warrant I do hereby command and authorize you the said Superintendent of the said Common Gaol, Toronto to deliver such person into the custody of the Provincial Bailiff who shall receive and convey such person to the said Ontario Hospital: Toronto.

And I do hereby command and authorize you the said Provincial Bailiff to convey such person from the said Common Gaol, Toronto to the said Ontario Hospital: Toronto.

And I do hereby command and authorize you the said Superintendent of the said Ontario Hospital, to receive such person into your custody in the said Ontario Hospital, there to safely keep him until I order such person back to imprisonment, or until his discharge is directed by me or other lawful authority:

Given under my Hand and Seal, in the City of Toronto, in the County of York, this Twelfth day of January in the year of our Lord, one thousand nine hundred and thirty‑eight and in the Second year of His Majesty’s Reign.

By Command

                       B.T. McGhie,                                                                 F.V. Johns,

           Deputy Minister of Health.                                      Assistant Provincial Secretary

This warrant was sent to the Assistant Provincial Secretary who signed it and in due course it was submitted to and signed by the Lieutenant-Governor of Ontario. The form of warrant is that attached to the regulations issued under the Ontario Act and to be used where subsection 1 of section 32 of the present Act would apply. That sub-section reads:—

(1) The Lieutenant-Governor, upon evidence satisfactory to him that any person imprisoned in any prison, reformatory, reformatory prison, reformatory school, industrial school or industrial refuge for an offence under the authority of any of the statutes of Ontario, or imprisoned for

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safe custody charged with an offence, or imprisoned for not finding bail for good behaviour or to keep the peace, is mentally ill, mentally deficient or epileptic, may order the removal of such person to a place of safe keeping, and such person shall remain there, or in such other place of safe keeping as the Lieutenant-Governor from time to time may order, until his complete or partial recovery is certified to the satisfaction of the Lieutenant-Governor, who may then order such person back to imprisonment if then liable thereto, or otherwise to be discharged, provided that where such person is confined in an institution he shall, if and when he is not liable to imprisonment, be subject to the direction of the Minister, or such other person as the Lieutenant-Governor in Council may designate, who may make such orders or directions in respect of such person as he may deem proper.

That subsection could have no application to the circumstances of this case as Trenholm was not imprisoned for an offence under the authority of any of the statutes of Ontario, or imprisoned for safe custody charged with an offence under the authority of any such statutes.

We are told, however, that the same form is used in Ontario when it is intended to proceed under section 970 of the Criminal Code as enacted in 1935. Subsection 1 of that section reads as follows:—

The Lieutenant-Governor, upon evidence satisfactory to him that any person imprisoned in any prison other than a penitentiary for an offence, or imprisoned in safe custody charged with an offence, or imprisoned for not finding bail for good behaviour, or to keep the peace, is insane, mentally ill, or mentally deficient, may order the removal of such person to a place of safe keeping; and such person shall remain there, or in such other place of safe keeping as the Lieutenant-Governor from time to time orders, until his complete or partial recovery is certified to the satisfaction of the Lieutenant-Governor, who may then order such person back to imprisonment, if then liable thereto, or otherwise to be discharged; provided that where such person is confined in a mental hospital or other provincial institution, he shall, if and when he is not liable to be returned to imprisonment, be subject to the direction of the provincial Minister of Health, or such other person as the Lieutenant-Governor in Council may designate, who may make such orders or directions in respect of such insane person as he may deem proper.

It is contended that the warrant was legally issued under this section but in our view that is not so. The warrant is dated January 12th and it is shown that it was not until January 15th that it was handed by the Deputy Minister of Health to the Provincial Bailiff who, upon the same day, took Trenholm from the Toronto gaol to the Ontario Hospital, Toronto. The remand on the criminal charge had expired January 10th, and it cannot be said, therefore, that at the time of the issue of the warrant,

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Trenholm was “imprisoned in safe custody charged with an offence” within the meaning of section 970; it follows that there was no authority for the issue of the warrant.

As already explained, it is not suggested on behalf of the respondent—in fact it was disclaimed—that the warrant was issued as a result of proceedings commenced under the Ontario Act by the information of January 7th, 1938. That this is so is borne out by the fact that the certificates of the two doctors were issued before the swearing of the information, and furthermore, if it was intended to proceed under the Ontario Act, the only warrant that would be required thereunder, if all proper preliminary steps had been taken, would be a warrant signed by the Deputy Minister of Health (present section 29, subsection 2, and Form 11 attached to the Regulations).

There is therefore no authority for the appellant’s detention. It was argued that this Court has no jurisdiction to hear and determine the appeal because of the provisions of section 36 of the Supreme Court Act.

36. Subject to sections thirty-eight and thirty-nine hereof, an appeal shall lie to the Supreme Court from any judgment of the highest court of final resort now or hereafter established in any province of Canada pronounced in a judicial proceeding, whether such court is a court of appeal or of original jurisdiction (except in criminal causes and in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge, or in any case of proceedings for or upon a writ of habeas corpus arising out of any claim for extradition made under any treaty) where such judgment is,

(a) a final judgment; or

(b) a judgment granting a motion for a nonsuit or directing a new trial.

Section 39 has no application as section 42 enacts:—

Nothing in the three sections last preceding shall affect appeals in cases of mandamus and habeas corpus.

We are not concerned with section 38.

It is contended that these proceedings are “criminal causes” or “proceedings for or upon a writ of habeas corpus * * * arising out of a criminal charge.” The short answer to this contention is that after the expiry of the remand there was no criminal cause or charge in existence, and the application for the appellant’s discharge from the Ontario Hospital could not, therefore, arise thereout. It arises out of his detention in the institution under an invalid warrant issued without any legal authority.

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The Court is not sitting in judgment upon the action of the Lieutenant-Governor in determining that the appellant was at the time mentally ill. All that we are determining is that the Lieutenant-Governor had no jurisdiction to direct the Superintendent of the Ontario Hospital to receive and keep Trenholm and that an order should go for the appellant’s release.

In the course of these proceedings an affidavit, however, has been made by the Superintendent of the Ontario Hospital stating that at a conference of the medical staff of the institution held on December 22nd, 1938, the following conclusions were reached:—

(a) that the said John Trenholm is mentally ill

(b) that the judgment of the said John Trenholm is obviously impaired

(c) that the said John Trenholm is potentially dangerous as a result of the mental illness from which he suffers

(d) that the said John Trenholm should be confined in a mental hospital.

As against this, one of the doctors who signed a certificate on January 6th, 1938, that Trenholm was mentally ill and a proper person to be confined in an Ontario Hospital re‑examined Trenholm on December 2nd, 1938, and on December 7th, 1938, reported in writing the result of the examination and concluded his letter as follows:—

I would consider this patient, while suffering from a mental condition, might be discharged from the Ontario Hospital, if some responsible party would assume some supervision over him, and that he be kept entirely away from the environment of 227 Kenilworth avenue. If some arrangement were made to carry out these two provisions, I feel the patient might be allowed out on probation.

Since then the appellant’s wife has made an affidavit in which she states her intention, if her husband were released, to remove with him to some other city and to keep him removed from the environment of their present home in Toronto. Under these circumstances and in view of the lapse of time since the latest medical examination of the appellant, the order will not issue until after the expiration of two weeks, to give the proper authorities an opportunity to take such proceedings, if any, as they may deem advisable from the point of view of the public and of the appellant.

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The judgment of Rinfret and Crocket JJ. (dissenting on the ground of want of jurisdiction) was delivered by

CROCKET J.—I am of opinion that this appeal, which comes to us from a judgment of the Ontario Court of Appeal, confirming the decision of Mr. Justice Hogg, refusing to discharge the applicant from the custody of the Superintendent of the Ontario Mental Hospital, falls within the clause of s. 36 of the Supreme Court Act, which expressly excepts appeals “in criminal causes and in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge” from the appellate jurisdiction of this Court.

The applicant had the right on the return of the habeas corpus order to have the legality of his imprisonment enquired into and determined by the Judge, who granted the order, whether his imprisonment was under a warrant which charged him with a criminal offence or not. The learned Judge, on perusing the affidavit of the Superintendent of the Ontario Hospital, in which he alleged the applicant was confined on a warrant of the Lieutenant-Governor, dated the 12th day of January, 1938, and a copy of such warrant which was annexed to the Superintendent’s affidavit, and other affidavits then produced before him, and considering the whole question of the validity of the applicant’s custody, held that the applicant was legally confined in that hospital under the warrant of the Lieutenant-Governor, as authorized by s. 970 of the Criminal Code. The relevant language of that section of the Criminal Code is as follows:

The Lieutenant-Governor, upon evidence satisfactory to him that any person imprisoned in any prison * * * for an offence, or imprisoned in safe custody charged with an offence, * * * is insane, mentally ill, or mentally deficient, may order the removal of such person to a place of safe keeping; and such person shall remain there, or in such other place of safe keeping as the Lieutenant-Governor from time to time orders, until his complete or partial recovery is certified to the satisfaction of the Lieutenant-Governor, who may then order such person back to imprisonment, if then liable thereto, or otherwise to be discharged; * * *

The original warrant of the Lieutenant-Governor and the original affidavits, which were produced before the learned Judge on the return of the habeas corpus order, have been sent to the Registrar of this Court since the hearing of this appeal.

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I think they shew that the proceedings before Mr. Justice Hogg and the custody, from which the applicant sought his discharge, arose out of a criminal charge within the meaning of the stated exception in s. 36 of the Supreme Court Act and that this Court has, therefore, no jurisdiction to hear the appeal as it has come before us.

Mr. Justice Hogg on the hearing of the habeas corpus application distinctly held that Trenholm was then confined in the Ontario Hospital by authority of the Lieutenant-Governor’s warrant, issued in accordance with the terms of the above quoted section of the Criminal Code, “as a step in the proceedings arising out of the charge against Trenholm of attempted murder.”

It is now sought to take the appeal out of the exception of s. 36 upon the ground that Trenholm, who had been brought before a magistrate on January 3rd, 1938, under a warrant issued on the original information in the criminal case, had been remanded by the magistrate upon that charge until January 10th, and thereupon committed to the Toronto gaol, and that, the period of remand having expired when the Lieutenant-Governor’s warrant was issued, under which he was transferred from the common gaol to the Ontario Hospital, the Lieutenant-Governor’s warrant was void and of no effect.

This ground, which was not called to the attention of Mr. Justice Hogg on the habeas corpus hearing before him, and seems to have been discovered for the first time on the hearing of the appeal before this Court, obviously goes to the question of the authority of the Lieutenant‑Governor to issue the warrant under which Trenholm was held at the time of the habeas corpus hearing. With all respect, the very statement of the ground itself to my mind demonstrates that this appeal is an appeal in proceedings for or upon a writ of habeas corpus, which has arisen out of a criminal charge within the meaning of the clause of s. 36 of the Supreme Court Act above quoted, which expressly excepts such a case from the jurisdiction of this Court. While the point is one which, had it been discovered and suggested on the habeas corpus hearing before Mr. Justice Hogg, sitting as a Supreme Court Judge having original habeas corpus jurisdiction in the Province of Ontario, it would clearly have been his duty to determine in considering the question of the legality of the appli-

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cant’s custody at that time, it is to my mind not one which we have any right to consider upon the present appeal, if the habeas corpus proceedings now before us arose out of a criminal charge.

The only point we have now to determine upon the question of this Court’s jurisdiction to hear an appeal from the judgment of the highest court of final resort in Ontario under s. 36, is, not whether the learned Judge below rightly or wrongly determined the question of the legality of Trenholm’s present custody, but simply whether the habeas corpus proceedings before him arose out of a criminal charge.

To hold that we have jurisdiction to hear the appeal on the ground above mentioned plainly to my mind itself involves a decision upon the merits of the habeas corpus application, which was solely directed to the validity of Trenholm’s present custody. Such a decision would make the merits of the habeas corpus application the test of the jurisdiction of the Court to hear an appeal under s. 36 instead of what that section so unequivocally prescribes as the test thereof, viz.: whether the application itself and the proceedings thereupon have arisen out of a criminal charge. Such a decision, it seems to me, with the greatest possible respect, would be to fly directly in the face of the express, unambiguous and unconditional words of the exception to this Court’s appellate jurisdiction, which Parliament has placed in s. 36, and could be justified, in my judgment, only by reading them as necessarily implying that the criminal charge, out of which the habeas corpus proceedings have arisen, must be a valid subsisting charge, upon which the applicant might still be prosecuted, and not one, in connection with which he had any good legal ground to apply for his discharge from custody under the provisions of the Habeas Corpus Act. If such a principle is to be affirmed, it seems to me that the exception set out in s. 36 might just as well be expunged, for I can conceive of no criminal case or criminal charge, which, upon such a basis, could be brought within its terms.

I should perhaps say that it would have been quite another matter if the question had come before us by way of appeal under the provisions of s. 58 from the decision of any one of the judges of this court in the exercise of the concurrent original jurisdiction, with which its mem-

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bers individually are invested by s. 57 to issue the writ of habeas corpus ad subjiciendum for the purpose of an enquiry into the cause of commitment in any criminal case under any Act of the Parliament of Canada.

For these reasons I would quash the appeal as one which the Court has no jurisdiction to hear.

DAVIS J.—I concur in the judgment of my brother Kerwin and would only add a word as to the remand. By sec. 680 the justice may order the accused person to be brought before him, or before any other justice for the same territorial division, at any time before the expiration of the time for which such person has been remanded. But when a remand has expired without any further hearing or appearance the justice becomes functus and thereafter the accused cannot be said to be imprisoned in safe custody “charged with an offence” within the meaning of sec. 970. That being so, there was no authority under said sec. 970 in the Lieutenant‑Governor, subsequent to the expiration of the remand, for the issue of the warrant in question. 59 J.P. 682. Stone’s Justices’ Manual, 62nd edition, pp. 34-35.

Appeal allowed with costs.

Solicitor for the appellant: Paul I.B. Hinds.

Solicitor for the respondent: Kenneth G. Gray.