In Re Sproule

In Re Sproule
Collection
Supreme Court Judgments
Date
1886-09-13
Report
(1886) 12 SCR 140
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar
On appeal from
British Columbia
Subjects
Prerogative writs
Decision Content
Supreme Court of Canada
In Re Sproule, (1886) 12 S.C.R. 140
Date: 1886-09-13
In re Robert Evan Sproule.
1986: September 01; 1986: September 02; 1986: September 03; & 1986: September 04; 1986: September 13.
Present: Sir W. J. Ritchie C.J., and Strong, Fournier, Henry and Taschereau JJ.
Habeas Corpus—Granted by Judge in Chambers—Appeal under sec. 51 Supreme and Exchequer Act—Writ improvidently issued—Jurisdiction of Court to quash—Control of Court over its own process—Criminal case under sec. 51—Supreme Court of British Columbia—Constitution of—Commission to Judge presiding over—Trial of prisoner in—Order to change venue—Provision for increased expenses—Practice.
Section 51 of the Supreme and Exchequer Court Act[1] does not interfere with the inherent right which the Supreme Court of Canada, in common with every superior court, has incident to its jurisdiction to enquire into and judge of the regularity or abuse of its process, and to quash a writ of habeas corpus and subsequent proceedings thereon when, in the opinion of the court, such writ has been improvidently issued by a judge of said court. The said section does not constitute the individual judges of the Supreme Court of Canada separate and independent courts, nor confer on the judges a jurisdiction outside of and independent of the court, and obedience to a writ issued under said section cannot be enforced by the judge but by the court, which alone can issue an attachment for contempt in not obeying its process. (Fournier and Henry JJ. dissenting.)
Per Strong J.—The words of section 51 expressly giving an appeal when the writ of habeas corpus has been refused or the prisoner remanded, must be attributed to the excessive caution of the legislature to provide all due protection to the subject in the matter of personal liberty, and not to an intention to deprive the court of the right to entertain appeals from and revise, rescind and vary orders made under this section. The right to issue a writ of habeas corpus being limited by section 51 to " an enquiry into the cause of commitment in any criminal case under any Act of the Parliament of Canada, " such writ cannot be issued in a case of murder, which is a case at common law. (Fournier and Henry JJ. dissenting.)
Per Fournier and Henry JJ. dissenting.—The restriction imposed by section 51 to " an enquiry into the cause of commitment in any criminal case under any Act of the Parliament of Canada " is merely intended to exclude any enquiry into the cause of commitment for the infraction of some provincial law ; and the words " in any criminal case " were inserted to exclude the habeas corpus in civil matters ; it is sufficient to give jurisdiction if the commitment be in virtue of an Act of the Parliament of Canada.
Query—Is section 51 of the Supreme and Exchequer Court ultra vires?
Semble, that when a judge in a province has the right to issue a writ of habeas corpus returnable in term as well as in vacation, a judge of the Supreme Court might make the writ he authorizes returnable in said court in term as well as immediately. (Fournier and Henry JJ. dissenting.)
An application to the court to quash a writ of habeas corpus as improvidently issued may be entertained in the absence of the prisoner. (Henry J. dissenting.)
After a conviction for a felony by a court having general jurisdiction over the offence charged, a writ of habeas corpus is an inappropriate remedy.
If the record of a superior court, produced on an application for a writ of habeas corpus, contains the recital of facts requisite to confer jurisdiction it is conclusive and cannot be contradicted by åxtrinsic evidence. (Henry J. dissenting.)
A return by the sheriff to the writ setting out such conviction and sentence and the affirmation thereof by the court of error is a good and sufficient return. If actually written by him or under his direction the return need not be signed by the sheriff. (Henry J. dissenting.)
The Supreme Court of British Columbia is clothed with all the powers and jurisdiction, civil and criminal, necessary or essential to the full and perfect administration of justice civil or criminal, in the province ; powers as full and ample as those known to the common law and possessed by the superior courts of England.
The various statutes of British Columbia providing for the holding of Courts of Oyer and Terminer and General Gaol Delivery render unnecessary a commission to the presiding judge. Per Strong J.—The power of issuing a commission, if necessary, belonged to the Lieutenant Governor of the province. (Henry J. contra.)
An order made pursuant to Dominion Statute 32 and 33 Vic. ch. 29 sec. 11, directing a change of venue, would be sufficient although containing no reference to any provision for expenses, when the indictment has been pleaded to and the trial proceeded with without objection, and even in a court of error there could be no valid objection to a conviction founded on such order.
Even if the writ of habeas corpus in this case had been rightly issued, the prisoner on the materials before the Judge was not entitled to his discharge, but should have been remanded.
MOTION to quash a writ of habeas corpus issued by Henry J. in chambers as being improvidently issued.
The material facts presented to the court on the motion are as follows :
In June, 1885, a murder was committed in the District of Kootenay, B.C., and Robert Evan Sproule was charged with the commission of the crime and committed for trial. On the application of the Attorney General of the province, an order was made by the Chief Justice of the Supreme Court of the province to change the venue from Kootenay to the District of Victoria, which order was in the following words :
BRITISH COLUMBIA.
To wit :
Whereas it appears to the satisfaction of me, Matthew Baillie Begbie, Chief Justice of the Supreme Court of British Columbia, a judge who might hold or sit in the court at which Robert E. Sproule, a prisoner, now confined in New Westminster gaol, under a warrant of commitment given under the hand and seal of Arthur W. Howell, one of Her Majesty's justices of the peace in and for the Province of British Columbia, is liable to be indicted for that he, the said Robert E. Sproule, did on the first day of June, A. D. 1885, feloniously, wilfully and of his malice aforethought, kill and murder one Thomas Hammill ; that it is expedient that the trial of the said Robert E. Sproule should be held in the city of Victoria (being a place other than that in which the said offence is supposed to have been committed) ;
I do order that the trial of the said Robert E Sproule shall be proceeded with at the Court of Oyer and Terminer and General Gaol Delivery, to be holden at the city of Victoria, and I do order the keeper of the New Westminster gaol to deliver the said Robert E Sproule to the keeper of the gaol at Victoria city, and I do order and command you the keeper of the said gaol at Victoria city, to receive the said Robert E. Sproule into your custody in the said gaol, and there safely keep him until he shall be thence delivered by due course of the law.
Dated at Victoria, this 13th October, 1885.
(Signed) MATT. B. BEGBIE C.J.
The prisoner was then indicted and tried at Victoria, found guilty, and sentenced to death. A writ of error was subsequently granted and a return made to the Supreme Court of British Columbia. In making up the record on the writ of error it appeared that the order to change the venue contained no provision for payment by the Crown of increased expenses to the prisoner in holding the trial at Victoria, and the Chief Justice thereupon signed the following order :
CANADA,
Province of British Columbia.
REGINA V. ROBERT E. SPROULE.
At the City of Victoria, Tuesday the thirteenth day of October, A.D 1885.
Upon motion of Mr. P. E. Irving, of counsel for the Crown, in the presence and hearing of Robert E. Sproule, a person charged with and committed to stand his trial for having on the 1st day of June, A.D. 1885, at Kootenay Lake, in the bailiwick of the sheriff of Kootenay, in the Province of British Columbia, feloniously, wilfully, and of his malice aforethought, killed and murdered one Thomas Hammill ;
And upon hearing Mr. Theodore Davie, of counsel for the said Robert E. Sproule, and it appearing to my satisfaction that it is expedient to the ends of justice that the trial of the said Robert E. Sproule, for the alleged crime, should be held at the city of Victoria ;
And Mr. Irving now undertaking on behalf of the Crown to abide by such order as the judge who may preside at the trial may think just to meet the equity of the eleventh section of 32-33 Vic. cap. 29, intituled : " An Act respecting procedure in criminal cases, and other matters relating to criminal law," such being the conditions which I think proper to prescribe ;
I, Sir Matthew Baillie Begbie, Knight, Chief Justice of British Columbia, and being a judge who might hold or sit in the court at which the said Robert E. Sproule is liable to be indicted for the cause aforesaid, do hereby order that the trial of the said Robert E. Sproule shall be proceeded with at the city of Victoria, in the said province, at the Court of Oyer and Terminer and General Gaol Delivery, to be holden at the said city, on Monday the 23rd day of November, 1885, next.
And I order that the said Robert E. Sproule be removed hence to the gaol at the City of Victoria, and that the keeper of the said gaol do receive the said Robert E. Sproule into his custody in the said gaol, and him safely keep until he shall thence be delivered by due course of law.
(Signed) MATT. B. BEGBIE C.J.
This order was placed in the record as the order for change of venue. The counsel for the prisoner alleged diminution of the record on the ground that this order was not the true order made for change of venue, and was not in existence at the time of the trial ; and, also, that an application which he had made at the close of the trial for the polling of the jury should appear on the record. Both these points were overruled by the court.
The substantial matters of error assigned upon the record, and argued before the full court, were :
1. That the indictment did not show the alleged offence to have been committed within the jurisdiction of the court, or within the realm at all, the only venue which appeared being " British Columbia, to wit," which, since the province was divided into judicial districts, was no venue.
2. That there was no valid order to change the venue, and the Court of Oyer and Terminer at Victoria had no authority to try the prisoner ; and
3. That the court was held under a commission from the Lieutenant Governor of the province, and was not a properly constituted court, as the Governor General only could issue the commission.
These grounds of error were all overruled by the unanimous decision of the court, and the prisoner was remanded to gaol.
The counsel for the prisoner then applied to Mr. Justice Henry, of the Supreme Court of Canada, for a writ of habeas corpus, and the learned judge granted the following rule nisi :
IN THE SUPREME COURT OF CANADA.
Monday the 3rd day of May, A.D. 1886.
Upon hearing Mr. D'Alton McCarthy Q.C. as of counsel for Robert Evan Sproule, and upon reading the affidavits of Theodore Davie filed respectively on the 3rd May, 1886,
I do order that the sheriff for Vancouver Island, James Eliphlet McMillan, Esquire, do show cause before me, at my chambers, at the Supreme Court house, in the city of Ottawa, on Saturday, the twenty-second day of May instant, why a writ of habeas corpus ad subjiciendum should not issue to tèe said sheriff requiring him to bring before the court the body of the said Robert Evan Sproule-together with the day and cause of his detention, and why in the event of this order or rule being made absolute, or the writ being allowed the said Robert Evan Sproule should not be discharged without the writ of habeas corpus actually issuing and without the prisoner being personally brought before the court.
(Signed) W. A. HENRY.
A Judge of the Supreme Court of Canada.
On the return of the rule nisi McCarthy Q.C. and Theodore Davie appeared for the prisoner, and Burbidge Q.C. and J. J. Gormully for the Crown, and the same grounds were taken and argued as had previously been urged before the Supreme Court of British Columbia on the writ of error, the counsel for the Crown contending, in addition to the points involved in the case itself, that as there was no appeal from the decision on the writ of error, the court being unanimous, the prisoner should not be allowed to take this proceeding, which was virtually an appeal, and so evade the statute.
His Lordship having heard the argument ordered the issue of the writ of habeas corpus delivering the following judgment :
HENRY J.—This is an order to show cause why a writ of habeas corpus ad subjiciendum should not issue to the sheriff of Vancouver Island, British Columbia, to bring up the body of the above named Robert Evan Sproule, together with the day and cause of his detention in the custody of the said sheriff, and why, in the event of the allowance of the said writ, the said Robert Evan Sproule should not be discharged from the said custody without the actual issue of the said writ or the attendance of the said Robert Evan Sproule before me.
The order was duly served upon the sheriff of Vancouver Island and upon the Attorney General of British Columbia ; and on the argument before me, on the twenty-fifth and twenty-sixth days of May last past, cause was shown on behalf of the Crown against the discharge of the prisoner.
The argument on both sides was able and exhaustive, and my labor and inquiry much less than would otherwise have been necessary.
Having since been occupied, however, in the hearing of argõments in term or session of the court, and in delivering judgment in other cases in court, I have not been able to prepare my judgment at an earlier date.
The case is a novel one, particularly in the Dominion, and required, and has had, my best consideration.
The judges of the Supreme Court of Canada derive their authority in regard to writs of habeas corpus ad subjiciendum from the 51st section of the Supreme and Exchequer Court Act of the Dominion, passed in 1875, which is as follows :
Any judge of the Supreme Court shall have concurrent jurisdiction with the courts or judges of the several provinces to issue the writ of habeas corpus ad subjiciendum for the purpose of an inquiry into the cause of commitment in any criminal case under any Act of the Parliament of Canada * * *
The Supreme Court of British Columbia has complete cognizance of all pleas whatsoever, " and has " jurisdiction in all cases, civil as well as criminal, aris-" ing within the said colony of British Columbia." That court has, and its judges have, full jurisdiction in respect of the writ of habeas corpus ad subjiciendum and the judges of this court have, therefore, under the 51st section I have cited, the same jurisdiction.
Having then such jurisdiction the next inquiry is as to its applicability to the circumstances of this case.
It is not appellate but original, deriving its power and authority from the section before-mentioned.
In such a case we cannot, in any way, review the decision of a court of competent jurisdiction, but must confine our consideration to the question of jurisdiction over the subject-matter in question, exercised by a court, and resulting in the conviction and sentence of a person charged with a criminal offence. If the court before whom the prisoner in this case was tried and convicted had the necessary jurisdiction I cannot interfere. This position was taken on the argument and well sustained by binding authorities.
The authorities go, however, as effectually to sustain the proposition that when ascertaining the cause of the commitment of a prisoner it is shown that the court had no jurisdiction to try and convict him he is entitled by law to his discharge. The law has provided the mode and manner for trying parties accused of crimes and the courts before whom they are to be tried ; and no one can be legally sentenced unless tried and convicted by competent authority and according to law. If any necessary link in the chain to constitute jurisdiction be wanting no one can be legally punished. If the judge who presides at a criminal trial be without proper authority in regard to such a trial the conviction is a nullity, and so in all other cases where, from any cause, there was not jurisdiction, and when such want of jurisdiction is made to appear, it must necessarily result in the discharge of the convicted party.
Numerous authorities might be cited to sustain that proposition.
I cannot in this connection do better than quote from the judgment of Chief Justice Cockburn in Martin v. Mackonochie[2].
It seems to me, I must say, a strange argument in a court of justice to say that when, as the law stands, formal proceedings are in strict law required, yet if no substantial injustice has been done by dealing summarily with a defendant, the proceedings should be upheld. In a court of law such an argument a convenienti is surely inadmissible. In a criminal proceeding the question is not alone whether substantial justice has been done but whether justice has been done according to law. All proceedings in poenam are, it need scarcely be observed, strictissimi juris ; nor should it be forgotten that the formalities of law, though here and there they may lead to the escape of an offender, are intended, on the whole, to insure the safe administration of justice and the protection of innocence, and must be observed.
A party accused has the right to insist on them as a matter of right, of which he cannot be deprived against his will ; and the judge must see that they are followed. He cannot set himself above the law which he has to administer, or make or mould it to suit the exigencies of a particular occasion. Though a murderer should be taken red-handed in the act, if there is a flaw in the indictment the criminal must have the benefit of it. If the law is imperfect it is for the legislature to amend it. The judge must administer it as he finds it. And the procedure by which an offender is to be tried, though but ancillary to the application of the substantive law and to the ends of justice, is as much part of the law as the substantive law itself * * *. The law constitutes a given act an offence. As such it attaches to it a given punshisment. But it prescribes a plenary course of procedure by which, if at all, the offence is to be brought home to a party charged with having committed it. If a court having jurisdiction over the offence takes upon itself to substitute a different and more summary method of proceeding, surely this is to make the court, as it were, supersede the law.
The prisoner was indicted at Victoria and tried there under an indictment which is as follows :
BRITISH COLUMBIA.
To wit :
The jurors for our Lady the Queen upon their oath present that Robert E. Sproule, on the first day of June, in the year of our Lord one thousand eight hundred and eighty-five, feloniously, wilfully and of his malice aforethought, did kill and murder one Thomas Hammill, against the peace of our Lady the Queen, her Crown and dignity.
The homicide of Hammill took place at or near to Kootenay, in British Columbia, distant from Victoria about seven hundred miles. The province was, by several Acts of its legislature, the last of which was in 1885, divided into judicial districts or circuits ; and courts of assize and nisi prius, and of oyer and terminer and general gaol delivery, were provided to be held at each of the undermentioned places, at the times mentioned in the Act, that is to say, at the city of Victoria, at the city of Nanaimo, at the city of New Westminster, and at other places, including the bailiwick of Kootenay.
Before the trial it is shown by affidavit that an order for a change of venue to Victoria was made, and signed by the learned Chief Justice of British Columbia. That order was subsequently considered, and no doubt properly, defective, as it made no provision, as required by the statute, for such conditions as to the payment of any additional expenses thereby caused to the accused as the court or judge may think proper to prescribe. The prisoner, previous to the making of that order, was in custody for a crime alleged to have been committed by him within the bailiwick of the sheriff of Kootenay, but was taken by some process, the nature of which does not appear, before the learned Chief Justice ; and, by his order before referred to, committed for trial to the custody of the sheriff of Vancouver, where he was during the trial and now is. It has been satisfactorily shown by affidavit that the only order for a change of venue in existence at the time of the trial of the prisoner was the one before-mentioned. If that order is defective, then the trial of the prisoner was without authority.
By law, the trial should have been had in the bailiwick where the homicide took place, unless the venue for the trial was changed as by law prescribed and required. The right of the court or a judge to order a change of venue in a criminal case is upon the condition following : " But such order shall be made upon such " conditions as to the payment of any additional expense " thereby caused to the accused as the court or judge " may think proper to prescribe."
When it may be the case that a prisoner charged with an offence is without means to provide for his defence at a place distant from the ordinary place of trial, to change the venue without at the same time making provision for the additional expense would practically prevent him from making any defence, and the order for doing so would be manifestly unjust.
The legislature has therefore properly and humanely provided that the court or a judge, meaning no doubt the court or judge making the order, shall consider all the circumstances in relation to the change of venue, and make the order conditional upon the payment of any additional expense thereby caused. The statute requires the court or a judge to decide in his discretion " as to the payment of any additional expense. " The trial in this case took place six or seven hundred miles from Kootenay, and the prisoner before being tried had the right to the opinion and decision of the judge as to the amount to be previously paid to him. I say previously paid, because, for good and palpable reasons, the statute has clearly made the decision of the judge and the payment of the additional expense as settled by him conditions precedent to the operation of the order. Those conditions not having been prescribed a peremptory order was made which I think was wholly unwarranted and void.
I have considered this matter from the position shown in the affidavits read on behalf of the prisoner, made by Theodore Davie, Esquire, counsel of the prisoner, who, in one of them says : " That the order in the above " matter as drawn up and in existence at the time of " the trial of the said Robert Evan Sproule, referred to " in the affidavit of James E. McMillan filed herein on " the 22nd of May instant, was in the words and " figures of the document hereunto annexed and marked " A, and not otherwise." Annexed to that affidavit is the copy of the order purporting to have been made on the 13th October, 1885, by the learned Chief Justice of British Columbia ; and it contains no reference whatever to the matter of the additional expenses of the prisoner. In another affidavit, which is referred to in the order herein, the same deponent stated that on the 13th day of October, 1885, the said Robert Evan Sproule was brought in custody before His Lordship the Hon. Sir Matthew Baillie Begby, Chief Justice of the Supreme Court of British Columbia, at the Supreme Court house at the city of Victoria aforesaid, whereupon an application was made on behalf of the Crown, the result of which was that an order was made by the said Chief Justice, and drawn up and signed by him, directing the trial to proceed at the city of Victoria, instead of at Kootenay, without imposing any terms or conditions. Accompanying the last-mentioned affidavit a verified copy of the record of the trial was produced, and in that affidavit the said Theodore Davie further says : The order for " change of venue set out in the second and third pages " of the said exhibited copy record, was not in existence " at the time of the trial and sentence, but was drawn up " and signed and issued subsequently. Before proceed-" ing to assign errors upon the record, I alleged a diminu-" tion of the record and applied for a certiorari upon my " own affidavit, showing that the order for change of " venue set out in the record was not the true one, or in " existence at the time of the trial and judgment * " * * The court after hearing argument " overruled the same."
Here then the error alleged was brought by affidavit to the notice of the court, but the allegations of error were overruled. Should they have been if the facts are truly stated in the affidavits referred to ? The court was asked to correct the record for the reasons alleged, but declined to do so without showing in its judgment why. I have, however, been furnished with the reasons of the learned judges in a report of the argument, and, strange to say, the allegation that the order for the change of venue as appearing in the record was made up after the trial and sentence of the prisoner is not referred to. The fact is neither admitted nor denied. The order purports to have been made and signed by the learned Chief Justice. If so made he was in a position to affirm or deny the allegation. It purports to have been made on the 13th of October, 1885, the same date with the order shown by the affidavit of Mr. Davie to have been made and signed on that day. If two orders were made on that day the fact could easily and should have been shown. When delivering judgment in the matter the learned Chief Justice said : " We are all of opinion that the order of the 13th October, " 1885, for the removal of the trial to Victoria was a " good and proper order under sec. 11 of the Canadian " Procedure Act, 1869, ch. 29, and that the condition as " to costs was an expedient and sufficient condition. " The learned Chief Justice then dealt with a contention of Mr. Davie, that the statute only applied to a case of change of venue after an indictment found, but made no reference to the allegation under oath of Mr. Davie, that although it appeared as if made on the 13th October, 1885, it was not in fact made or in existence till after the trial and sentence. I can hardly think any respectable counsel, or any other sane person, would have the temerity to make such a statement to the court, if unfounded, when he knew one of the learned judges must know that it was so, but the allegation having been made, and not in any way contradicted, the truth of it must be assumed. The reference of the Chief Justice is to the order appearing in the record, but he does not say that it was made before the trial, and therefore does not contradict the statement otherwise of Mr. Davie in regard to it. Whether the record must be received as conclusive is, however, another matter, and one I will hereafter deal with. If, then, the order as shown in the record was not made before the trial, some one is answerable for antedating it or the record assigned a wrong date to it. There can be no reasonable doubt that two orders were in fact made, the one last referred to, as I think, being intended to supply what was considered a fatal defect in the previous one. It would be absurd to say that an order, made after the trial held in a wrong place, could relate back and give jurisdiction where none existed when the trial took place. It would be like the case of an execution for murder without a conviction.
I have already given it as my opinion that the order alleged to have been first made was defective, and, as I find that the other was not made till after the trial and sentence, I think the trial of the prisoner was improperly and illegally removed to Victoria ; but should I be wrong in my conclusion that the order set forth in the record was not made till after the trial, I will consider the question of its validity if made, as it purports to have been, on the 13th October, 1885. After setting out that it appeared to the satisfaction of the learned Chief Justice, who made it, that it was expedient to the ends of justice that the trial of the said Robert Evan Sproule for the alleged crime should be held at the city of Victoria, His Lordship ordered as follows :
And Mr. Irving now undertaking on behalf of the crown to abide by such order as the judge who may preside at the trial may think just to meet the equity of the eleventh section of the 32 & 33 Vic. chap. 29, intituled " An Act respecting procedure in criminal cases and other matters relating to Criminal Law " : Such being the conditions which I think proper to prescribe, I, Sir Matthew Baillie Begbie, Knight, Chief Justice of British Columbia, and being a judge who might hold or sit in the court at which the said Robert Evan Sproule is liable to be indicted for the cause aforesaid, do hereby order that the trial of the said Robert E. Sproule shall be proceåded with at the city of Victoria, in the said province, at the Court of Oyer and Terminer and General Gaol Delivery, to be holden at the said city on Monday the 23rd day of November, 1885."
Is that then a valid order within the terms of the statute that requires the court or the judge that makes the order to prescribe, and by which to settle, the conditions as to the payment of the additional expense? The statute gave no power of delegation to the court or a judge. The allowance of additional expenses might be to enable a prisoner to secure the attendance of witnesses for his defence, and a poor man would require provision to be made for their attenäance by the judge who makes an order of the kind. To postpone the consideration until the trial would, in some cases, be a virtual denial of that which the statute has provided for. The wrong would be done, and if the prisoner should have been convicted what benefit, as to the trial, would be an order from the presiding judge for additional expenses ? The clear intention of the provision, was to put the prisoner in no worse pecuniary position as to his trial, in the case of a change of venue. The court or judge applied to for an order for that purpose should, on proper and necessary inquiry, decide as to the amount, if the inquiry satisfied him additional expense would be incurred, and insert it in the order ; and having done so, the payment should be considered a condition precedent to the operation of the order.
In no other way could the interests of a prisoner be sufficiently protected, for if once removed he would have no security that the additional expenses would be furnished to him in sufficient time before his trial, and he should not be left to depend on the undertaking of any irresponsible person. In this case the learned judge seems to have made no inquiry whatever before making the order. He decided nothing as to the matter, but made the order upon Mr. Irving's undertaking, on the part of the Crown, to abide by an order to be subsequently made by the judge who might preside at the trial.
A judge's order of such a character is, I consider, void, and must be so considered in all cases where the terms upon which the statute allows it to be made are not fulfilled, and where the judge does not himself first do what the statute enjoins as necessary to give him jurisdiction over the subject-matter. A party accused of the committal of a crime is required, by the law, to be tried in the bailiwick where it is alleged to have been committed. The grand jury there are to find an indictment against him before he can be put on his trial, and twelve good and lawful men of that bailiwick form a necessary part of the tribunal. If the order for the change of venue is defective, as I in this case hold it is, the grand jury of no other place could find a bill of indictment against him, and no other petit jury could legally be empanelled to try him.
Chief Justice Cockburn, in his remarks in the case before-mentioned, and which I repeat, says :
And the procedure by which an offender is to be tried, though but ancillary to the application of the substantive law, and to the end of justice, is as much part of the law as the substantive law itself.
It was when deciding upon a rule, calling on Lord Penzance, the official principal of the Arches Court of Canterbury, and J. Martin, to shew cause why a writ of prohibition should not issue to prohibit the said court from publishing, proceeding with, or enforcing a decree of suspension ab officio et beneficio made against the Rev. Alexander H. MacKonochie, clerk, in a suit Martin v. MacKonochie, such decree being one which was made without jurisdiction. It was contended, and admitted, that the Arches Court had jurisdiction over cases of the kind in question, but only at the request of the Diocesan Court, and that no such request was shown. The writ of prohibition was granted because of the want of jurisdiction in the Court of Arches.
In this case, I think, for the reasons I have given, there was no jurisdiction tï try the prisoner at Victoria.
I will now consider whether or not it is permissible, in a case like the present, to contradict the record.
It is well understood that in a great variety of cases the record of a court of competent jurisdiction is not only conclusive evidence of the facts stated therein but in many cases the only proof ; still, where the jurisdiction is impeached it appears to me that the mere statements in a record, by which jurisdiction is shown, should not prevail where evidence by affidavit shows conclusively that the statements are erroneous. The question of jurisdiction in a proceeding like this being raised, I think, for the true and proper determination of that question, evidence should be admitted to show that there was really no jurisdiction. To state perhaps an extreme case ; should a man be hanged or punished when it could be shown by extrinsic evidence that the tribunal had no authority to try or convict him ? In Crepps v. Durden et alio [3] we find it stated :
But a question has occasionally arisen, whether in cases where the justices have proceeded without jurisdiction, and have, nevertheless, stated upon the face of the conviction matter showing a jurisdiction, it be competent to the defendant to prove the want of jurisdiction by affidavit.
It certainly appears desirable that the court should have the power to entertain the question of jurisdiction. Some cases might easily be suggested where not only great private but great public inconvenience might arise from leaving an invalid order or conviction unreversed, and great injustice might be caused by allowing justices, out of or in sessions, by making their order or conviction good upon the face of it, to give themselves a jurisdiction over matters not entrusted to them by law. At page 241 of the same book we find it said :
Supposing that the court below cannot be compelled by mandamus to show the defect of jurisdiction upon the record, the next question is, will the court above allow evidence of such defect of jurisdiction to be laid before it by way of affidavit on the record being brought before it by a writ of certiorari ?
In R. v. St. James, Westminster[4] it was remarked by Mr. Justice Taunton (a judge whose obiter dicta are always worthy of the greatest attention) that this had been constantly done. In R. v. The Inhabitants of Great Marlow[5] an appointment of overseers, good on the face of it, was allowed to be questioned by affidavit on the ground of a defect of jurisdiction and was finally quashed.
The court in that case had taken time to consider as to the practice with regard to receiving the affidavit, and Mr. Justice Laurence mentioned several cases in which that course had been pursued. In the case of R. v. Justices of Cheshire[6] the question was a good deal discussed ; and it seems to have been admitted that affidavits might be looked at for the purpose of showing a defect of jurisdiction. It cannot be disputed " said Mr. Justice Coleridge in the latter case " that there are many cases in which affidavits may be looked at in order to ascertain whether there was jurisdiction or not ; for suppose an order made which was good on the face of it, but which was not made by a magistrate, it is clear that this fact may be shown to the court.
And it seems to be settled by the later cases that a defect of jurisdiction may be shown by affidavit, though the proceeding is so drawn up as to appear valid on the face of it.
See the judgments in Regina v. Bolton[7] ; The Westbury Union Case [8] ; in re Penny[9] and other cases.
At page 743 Mr. Smith says :
It should seem that the Queen's Bench Division will on certiorari entertain affidavits where the conviction is good on the face of it,—not only to show that preliminary matters required to give the justice jurisdiction to enter upon an enquiry into the merits of the case were wanting, see R. v. Boltoî [10] ; R. v. Badger [11] ; R. v. Wood [12] ; R. v. Justices of Totness [13] ; the judgments in R. v. St. Olave's District Board[14]; and in re Smith [15]—or that circum- stances appeared in the course of the inquiry which ousted his jurisdiction, R. v. Nunneley[16]; R. v. Cridland[17]; R. v. Backhouse[18]; R. v. Stimpson [19]but also that there was no evidence to prove some fact, the existence of which was essential to establish the offence charged.
It seems also to be well settled by judgments in the United States that where it is shown that jurisdiction over the subject-matter did not exist the statements of facts in a record of the highest court might be inquired into by affidavit on the ground that if there was not jurisdiction there was no legal record. I will refer to a few out of a great many authorities that might be cited.
In Davis v. Packard [20] in the Court of Errors, the Chancellor speaking of domestic judgments, says :
If the jurisdiction of the court is general or unlimited both as to parties and subject—matter it will be presumed to have had jurisdiction of the cause unless it appears affirmatively from the record, or by the showing of the party denying the jurisdiction of the court, that some special circumstances existed to oust the court of its jurisdiction in that particular case.
In Bloom v. Burdick [21] Bronson J. says :
The distinction between superior and inferior courts is not of much importance in this particular case, for whenever it appears that there was a want of jurisdiction, the judgment will be void in whatever court it was rendered.
And in People v. Cassels [22] the same judge says :
That no court or officer can acquire jurisdiction by the mere assertion of it or by falsely alleging the existence of facts upon which jurisdiction depends.
In Harrington v. The People[23] Paige J. expresses the opinion that the jurisdiction of a court, whether of general or limited jurisdiction, may be inquired into, although the record of the judgment states facts giving it jurisdiction. He repeats the same view in Noyes v. Butler [24] and in Hard v. Shipman [25] where he says of inferior as well as superior courts, that :
The record is never conclusive as to the recital of a jurisdictional fact and that the defendant is always at liberty to show a want of jurisdiction although the record avers the contrary—and that if the court had no jurisdiction it had no power to make a record.
The English cases which I have cited are those before justices ; but on principle I can see no difference between a judgment of an inferior and one of a superior court, when the question of jurisdiction is raised, nor can I see why, if the record of the former can be shown to be erroneous or false as touching the matter of jurisdiction the other cannot be ; for without jurisdiction the acts of one must be void as well as those of the other, and therefore the rule in the one case should be the same as in the other ; and in the cases I have consulted in the courts in the United States the rule is applied to their highest courts.
I could suggest many cases in which serious wrong and injury might result if the jurisdiction of a court could not be attacked by evidence outside of the record, and in contradiction of it, showing the total want of jurisdiction. Suppose that there was no question that a commission of oyer and terminer and general goal delivery was necessary, and a judge undertook to try an accused person for high crime, and the record showed that he had a legal commission authorizing him in the premises but the fact was that no such commission was ever issued or held by him, and that the accused was convicted, and sentenced possibly (as in this case) to forfeit his life, would it not be a gross prostitution of the principles of common justice to shut out evidence tendered to show that the judge acted without a commission, and therefore without any jurisdiction. On the same principle, evidence to show that for any other reason he had not jurisdiction should not be rejected. It is proper to explain in this connection, that a copy of the record was submitted, and referred to in the affidavit on behalf of the prisoner, when the order nisi was applied for, and another copy was returned by the sheriff of Vancouver, and put in by the Crown when showing cause against the order. It was, therefore, by both parties, made a part of the case submitted for my decision, and although the proceedings were not removed by certiorari the consideration of it as to the question of jurisdiction was legitimately submitted.
Other objections to the jurisdiction were raised and debated, to which I need not give the same amount of consideration that I would feel it necessary to do in case my decision depended on the correct solution of them.
I will, however, deal with one of them, and refer to the others. The learned judge before whom the prisoner was tried acted by authority of a commission of oyer and terminer and general gaol delivery, issued by the Lieutenant Governor of British Columbia and the commission is set out in the returns. The latter named high functionary was then acting under a commission from the Governor General, under the Imperial Confederation Act of 1867. That commission " authorizes, " empowers, requires and commands the Lieutenant " Governor in due manner to do and execute all things " that shall belong to his said command, and the trust " reposed in him, according to the several powers and " directions granted, or appointed him, by virtue of the " present commission, and of the British North " America Act, 1867, and according to such instructions " as were therewith given to him, or which might, " from time to time, be given him in respect of " the said province of British Columbia, under the " sign manual of the Governor General of Canada, or by " order of the Privy Council of Canada¬ and according " to such laws as were, or should be, in force within the " province of British Columbia." The Governor General's commission authorizes him " to constitute and appoint " judges, and, in case requisite, commissioners of " oyer and terminer, justices of the peace, and other " necessary officers and ministers in our said colony." It is apparent that since the union of British Columbia with Canada, in 1876, its legislative power was largely restricted, and the powers and duties of the Lieutenant Governor proportionately restricted. In fact, the Lieutenant Governor, after the union, was no longer the Imperial officer a Lieutenant Governer had previously been. Under his commission from the Queen previous to the union, the Lieutenant Governor directly represented her, and only through that representation had he any power to issue commissions ; but we are not necessarily to inquire what the power of the Lie?tenant Governor was before the union, but simply to ascertain what power, if any, to issue commissions of the kind in question here has been given to a Lieutenant Governor by a commission from the Governer General under the Imperial Conferation Act, within its terms. The party so commissioned has no reserved power ; but the office and its powers and duties are limited to the subjects over which a Lieutenant Governor so commissioned and appointed would have jurisdiction. Any question as to a reserved power is not, I think, to be considered in the face of the provision of sec. 12 of the B.N.A. Act, 1867, which provides " that all the powers, " authorities and functions vested in the Governor or " Lieutenant Governor of the several provinces shall be " vested in and exercisable by the Governor General, " subject, nevertheless, to be abolished or altered by the " Parliament of Canada." I cannot imagine how, then, the Lieutenant Governor of a province can be claimed to have any power whatever except what is given by the Act in question and his commission from the Governor General thereunder. Sec. 129 provides that, except as otherwise provided by that Act, all laws in force in the several provinces mentioned, and subsequently made applicable to British Columbia, all laws in force at the union, and all courts of civil and criminal jurisdiction, anä all legal commissions, powers and authorities, and all officers, judicial, administrative and ministerial, existing at the union, shall continue in each of the said provinces respectively as if the union had not been made, subject, nevertheless, to be repealed, abolished or altered by the parliament of Canada, or by the legislature of the respective province, according to the authority of the parliament or of that legislature under that Act.
By sub-section 8 of section 91, the parliament of Canada has the authority and duty of making laws for " the fixing of and providing for the salaries and allow-" ances of civil and other officers of the government of " Canada ;" and by sub-section 27 : " the criminal law, " except the constitution of courts of criminal jurisdic-" tion, but including procedure in criminal matters," is within the exclusive jurisdiction of that parliament. In another section the salaries of the judges were expressly provided to be paid by the government of Canada.
Sub-section 14 of section 92 gives to the legislature of each province the right to make laws for " the " administration of justice in the province, including " the constitution, maintenance and organization of " provincial courts, both of civil and criminal jurisdic-" tion, and including procedure in civil matters in " those courts."
In regard, then, to jurisprudence in civil matters the legislatures of the provinces have the entire legislative authority, except that in relation to the fixing and providing for the salaries and allowance of the judges.
The authority and duty of legislation in regard to the administration of justice in criminal cases, including procedure in criminal matters, is given to the parliament of Canada, except (as provided in sub-sec. 27 of sec. 91 before recited) " the constitution of courts " of criminal jurisdiction."
By a comparison of sub-sec. 27 of sec. 91, and sub-sec. 14 of sec. 92, it will be observed that the latter, in addition to the word " constitution," has the words?" maintenance and organization." I do not, however, consider that the difference between the two sub-sections has any material bearing on the case under consideration ; but, if it has, I think that in view of the terms of the concluding clause of sec. 91 we should confine the operation of sub-sec. 14 of sec. 92 so as to make it harmonize with sub-sec. 27 of sec. 91.
Reading it in that way the parliament of Canada has the right to legislate in all matters of a criminal nature including procedure, and including the appointment and paying of judges, except the constitution of the courts.
It was clearly not intended that the word " maintenance " should include the payment of the judges' salaries, as they, as I have shown, are otherwise provided for. It may, however, have been intended to include the other expenses of the courts, and in otherwise maintaining them when constituted or organized. The words " constitution " and " organization " in this connection I consider synonymous as applicable to courts. To constitute a court means to form, make or establish it, and, necessarily, to prescribe the powers, jurisdiction and duties of those who are to operate it. It, however, does not, necessarily, in all cases include the power of appointment of the judges to preside in them, if the local legislatures had been given plenary power to provide for their appointment, but with the limited and prescribed powers of legislation awarded to the provinces by the Imperial Act such power does not exist. There is no award of deputed executive powers by the Act in relation to the exercise of any prerogative right of the sovereign by the Lieutenant Governors of the provinces, and their commissions do not contain any. How then can they have any ? The commissions to Lieutenant Governors before confederation included such powers, and it was only from them they derived the authority.
We must construe an Act by taking it altogether
By it (sec. 9) the executive government and authority over Canada is declared to continue and be vested in the Queen. Section 10 provides that " the provisions " of this Act referring to the governor extend and apply " to the Governor General, for the time being, of Canada, " or other the chief executive officer or administrator, " for the time being, carrying on the government of " Canada on behalf and in the name of the Queen, by " whatever title he is designated."
In England the sovereign was and is the source of all judicial appointments to the higher courts of law. It is a prerogative right that, while existing, cannot be usurped, and until removed or cancelled by an Act of parliament, assented to by the sovereign, cannot be controlled or interfered with.
When British Columbia became a part of Canada its courts were already established and constituted, and by the terms of the Confederation Act, sec. 129 before cited, were so continued—and so also was the position of the judges. They then held and derived authority from commissions appointing them as judges of the Supreme Court or Court of Queen's Bench during good behavior, but none as permanent judges of the court of oyer and terminer and general gaol delivery, for which com- missions pro re nata had been issued by the Lieutenant Governors from time to time. As in England, the judges appointed to this duty were styled and called commissioners, and the Acts in British Columbia, providing for the appointment of such commissioners, limited their selection by the Lieutenant Governors.
The judges of the Supreme Court or Court of Queen's Bench had no authority, without such commission, to hold a court of oyer and terminer and general gaol delivery. In connection with this part of the subject I have considered the effect of the provision contained in sec. 14 of cap. 12 of the Acts of British Columbia, 1879, which is as follows : " Courts of assize and nisi " prius, or of oyer and terminer and general gaol " delivery, may be held with or without commissions, at " such times and places as the Lieutenant Governor may " direct, and provided, when no commissions are issued " the said courts, or either of them, shall be presided over " by the chief justice or one of the other judges of the " said Supreme Court " It is doubtful if that Act, except sec. 17, ever came into operation, requiring as it does the Lieutenant Governor's proclamation for that purpose, and I understand that no such proclamation was issued. In Regina v. McLean & Hare, British Columbia, in 1880, reported by one of the judges, the learned Chief Justice alluding to the Supreme Court of that province, says :
Those powers and authorities were and are no other than those possessed by the Queen's Bench in England. It would have been exceedingly important if one English case had been cited in which a judge of the Queen's Bench had sat and tried without commission, and without removal by certiorari or otherwise, a criminal committed by a justice of the peace to take his trial at the next Court of Oyer and Terminer. But no such case was produced from the records of several centuries, and it is believed none is producible.
The learned Chief Justice further said :
It is true one case was produced from the Ontario courts (Whelan v. The Queen)[26] in which an attempt was made to impeach such a trial unsuccessfully. The trial was actually impeached, although an extant enactment by a competent legislature had expressly declared that a court of oyer and terminer might be presided over by a judge of the Supreme Court without commission. It is impossible to read the arguments and judgments upon this point without perceiving what the result would have been in the absence of such a statute. And there is no statute in force here. It is true the Ontario provision has been copied into a local Act here, but being matter of criminal procedure it is extra vires of the local legislature ; and moreover it only purports to come into force from a day not yet named. All these Acts of Parliament are in effect statutory declarations that by the law of England and the provinces these commissions are necessary to confer jurisdiction, and that nothing less than an Act of parliament can render them unnecessary. The whole argument upon this point, based upon Whelan v. The Queen, which was referred to at great length by counsel for the Crown, is almost decisive in favor of the prisoners.
The learned Chief Justice concluded his judgment as follows:—
The gaoler alleges two causes for detention. One the sentence of Mr. Justice Crease, the other a warrant of commitment by Mr. Senator Cornwall J. P. The rule nisi was obtained on the sole ground of the invalidity of the sentence and the various informalities at the late alleged trial. With these objections we agree, and we consider that the prisoners have never been tried at all. But as to the second cause of detention, the warrant of commitment, it has not been at all impeached, and we cannot at this stage allow it to be now impeached. I think, therefore, the proper order is to remand the prisoners to be held in custody according to the exigence and tenor of the last mentioned warrant.
The case of the prisoners had been brought before the court by a rule nisi for a writ of habeas corpus ad subjiciendum for their discharge on account of the invalidity of the conviction, and they were discharged therefrom but remanded under the warrant for their commitment.
The " Ontario " statute referred to was passed before confederation by the legislature of the combined provinces, Upper and Lower Canada, and was therefore intra vires, but that of British Columbia was after its union with Canada, and therefore was, as the learned Chief Justice, I think properly, says, extra vires. Such being the case there is no parliamentary dispensation of commissions in criminal cases, and as, in my opinion, the Lieutenant Governor had no power to issue them, the learned judge who tried and sentenced the prisoner had, for these reasons, no jurisdiction.
There was another point of objection raised to the jurisdiction. The venue in the margin of the indictment is " British Columbia to wit." No county, shire, division, district or place is mentioned ; and there is no venue stated in the body of it. The whole province was formerly one shrievalty, but for many years past it has been divided into several court districts, and shrievalties—one of which is Kootenay. There is no sheriff of " British Columbia," and the indictment did not indicate in what bailiwick it should be preferred to a grand jury, or from what bailiwick the petit jury should be summoned. The provisions of sections 32 and 33 of the Criminal Procedure Act, 1869, are, however, very comprehensive, and, in my opinion, were intended to provide for such a case if, indeed, it be not covered by the provisions of section 21, in regard to which there might be some doubt.
Section 32 enacts that :
Every objection to any indictment for any defect apparent on the face thereof, must be taken by demurrer or motion to quash the indictment before the defendant has pleaded, and not afterwards, &c., and power to amend is given to the court.
Whether the power could be exercised to relate back, so as to warrant the finding of the grand jury, is a question that would admit of a discussion which I consider unnecessary here. Section 33 provides that :
If any person being arraigned upon an indictment for any indictable offence pleads thereto a plea of " not guilty," he shall by such plea, without further form, be deemed to have put himself upon the country for trial, and the court may, in the usual manner, order a jury for the trial of such person accordingly.
The provisions of the three sections would certainly seem to cover every possible objection, and I am inclined to the opinion that the objection being apparent on the face of the indictment the party might, under section 32, have demurred ; and if the venue was wrongly stated, the question as to the power of amendment could then have been raised. That course was not taken, and it is not now necessary to consider the matter. And as the result does not depend upon any decision I might arrive at, I think it unnecessary to refer further to that objection.
Another as to the polling of the jury was submitted ; but it would be of no practical service were I to consider it, as my doing so will not affect the decision. I may say, however, that I consider such?an objection is altogether for a court of error to decide. It does not, in my opinion, affect the jurisdiction, and therefore is not in my province to consider.
For the reasons I have given as to the first point referred to, I think there was no jurisdiction to try the prisoner at Victoria ; and that the learned judge who presided had no jurisdiction to try the prisoner in the absence of any legislative authority, or a commission from the Governor General, and, therefore, that the trial was a nullity, and as if the prisoner had never been tried. The prisoner is shown by the return and certificate of the sheriff to be detained solely on the calendar of the Assize Court containing the sentence of death, and the formal sentence, and a remand dated the 27th of February last, the prisoner having been brought before the court sitting in error, and the sentence having been unrevoked. No warrant of commitment or other cause of detention was produced or shown in this case. And, as in my opinion the trial was a nullity, and the sentence therefore illegal, no other course is, I think, open to me but to order the discharge of the prisoner, and to adopt the necessary proceedings therefor. It is the bounden duty of a judge to declare the law as he finds it, and believes it to be, regardless of consequences and all other considerations.
Pursuant to the order of the learned judge a writ of habeas corpus was issued out and served upon the sheriff. Such writ was in the form following :—
CANADA,
To wit:
VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith.
To the Sheriff of Vancouver Island, in the Province of British Columbia.
GREETING :
We command you that you have the body of Robert Evan Sproule detained in our prison, under your custody (as it is said) under safe and sure conduct, together with the day and cause of his being taken, by whatsoever name he may be called in the same, before the Honorable Mr. Justice Henry, one of the judges of our Supreme Court of Canada, at his chambers at the city of Ottawa immediately after the receipt of this writ, to do and receive those things which our said judge shall then and there consider of him in this behalf ; and have you then there this writ.
Witness, the Honorable Sir William Johnstone Ritchie, Knight, Chief Justice of our said Supreme Court of Canada, this twenty-fifth day of June, one thousand eight hundred and eighty-six.
(Signed) ROBERT CASSELS,
Registrar of the Supreme Court of Canada.
Per statutem tricesimo primo Caroli secundi regis ; and under the Supreme and Exchequer Court Act of the Parliament of Canada, thirty-eight Victoria, chapter eleven ; and the Act of the Parliament of Canada, thirty-nine Victoria, chapter twenty-six.
(Signed) W. A. HENRY,
A Judge of the Supreme Court of Canada.
To this writ the sheriff made the following return :
" The within named Robert Evan Sproule was convicted and sentenced to death at the last Victoria assizes for the crime of wilful murder, and the conviction and sentence was afterwards unanimously affirmed on writ of error by the Supreme Court of British Columbia in full bench.
" I hold the prisoner accordingly, and humbly submit that such affirmed conviction and sentence is paramount to the within writ.
" I have not received or been tendered any expenses of the conveyance of the prisoner.
" For the above reasons I respectfully decline to produce the prisoner.
" The answer of James Eliphalet McMillan, the sheriff for Vancouver Island, to the within writ.
" Victoria B.C., 19th July, 1886."
The prisoner's counsel then applied to His Lordship for an order for the prisoner's discharge, which order, after argument, was granted. His Lordship delivered the following judgment on this application .
HENRY J.—This matter came before me under an order made by me in May last on a petition of Sproule, setting forth that he had been illegally convicted of murder at British Columbia, and was under sentence of execution. The order was returnable on the twenty—fifth day of May last, and was directed to the sheriff of Vancouver Island, in whose custody, under the conviction and sentence, the prisoner then was. It called upon him to show cause why a writ of habeas corpus should not issue to bring up the body of the prisoner, and why, in the event of the order being made absolute, he should not be discharged without the writ being absolutely issued, and without the prisoner being personally brought before me. The order was duly served on the sheriff of Vancouver Island, and on the attorney-general of British Columbia. The sheriff returned the whole of the proceedings in the prosecution, including a copy of the conviction and sentence. The proceedings having been returned before me, and the Crown having been represented by Messrs. Burbidge and Gormully, and the prisoner by Messrs. McCarthy and Davie, at the hearing objections were raised on the part of the prisoner to the jurisdiction of the tribunal by which he was tried and convicted. The objections were argued, and answered on behalf of the Crown, and upon two of them I decided and gave judgment in favor of the prisoner, holding that the tribunal had not jurisdiction, and that the ðrisoner was entitled to his discharge. The argument was confined to the objections so raised on the part of the prisoner.
After my decision, I heard counsel on the part of the Crown and the prisoner, as to ôhe proper course to be pursued for giving effect to my judgment, the counsel for the prisoner claiming that as the order to show cause was in the alternative, and as counsel appeared, were heard, and showed cause, and took no exception to the terms of the order on the argument, the prisoner was entitled to an order absolute for his discharge. This course was objected to by the counsel for the Crown, and after deliberation I decided to grant an order for a writ of habeas corpus to bring the prisoner before me, so that he could be by me discharged. I gave no opinion or decision as to the right of a judge, under the circumstances, to make an order absolute for the discharge of the prisoner, but rather yielded to the desire of the counsel for the Crown to have the prisoner brought before me.
An order for the issue of the writ was therefore made by me on the 25th of June last past, and the writ, E directed to the sheriff of Vancouver Island, was duly issued on the same day.
The writ was served on the sheriff in the early part of July last past, but not returned until the 19th of that month. In fact, it is not returned at all, for although sent back to the registrar of this court, and purporting to be a return of the sheriff, the endorsement thereon bears no signature. Neither does it appear to be in the handwriting of the sheriff. I have compared the writing with hés signature to some of the authenticated documents on file in this case, and I have found little difficulty in concluding the indorsement in ques-not to be of his proper handwriting, and there is no affidavit verifying it to be his return, or that it was made by his authority. The endorsement is dated the 19th of July, 1886. Whoever wrote that endorsement seems to be of opinion that a sheriff—a Queen's officer —can refuse to execute the Queen's writ, and usurp judicial authority to decide as to the validity of the writ. Such an assumption by a sheriff is a contempt of legal authority and cannot be permitted. I am, therefore, strongly inclined to the opinion that the endorsement is not that of the subordinate officer, to whom the writ was directed, and if proceeded against for contempt he would, in all probability, be found to deny that he authorized it. It was his duty, under any circumstances, to execute the writ and make a proper return of and to it. At present I will only add, that hereafter it may be found that subordinate officers, such as sheriffs, cannot treat the writ of habeas corpus duly issued with contempt. The writ required the sheriff to produce the body of the prisoner and he has failed to obey it and must bear the consequences.
On the second instant, pursuant to notice to the attorney general, an order absolute was again moved for by Mr McIntyre, counsel for the prisoner, and Mr. Burbidge Q. C. and Mr. Sinclair were heard for the Crown in opposition. It was contended by the latter gentlemen that inasmuch as a writ of habeas corpus was issued the order could not be made, and that further proceedings can be taken only by means to enforce its execution, and that as that course, that is by the issue of the habeas corpus, had been adopted, no other was available.
I have carefully reviewed the authorities furnished by the counsel on each side and shall briefly give my views.
It is said in Addison on Torts[27] that :
The validity of the commitment may be tried on moving for a rule to show cause why a habeas corpus should not issue and why, in the event of the rule being made absolute, the prisoner should not be discharged without the writ actually issuing or the prisoner being personally brought before the court.
And the case of Eggington[28] is cited.
The counsel who showed cause in that case said : " It " may be questioned whether the rule in this form can " be made in invitos—there has been no consent. " To which Lord Campbell C.J. replied : " I have repeatedly " granted it in vacation in this form without consent, " in order to avoid the necessity of bringing up the " party." Other authorities sustain the same course.
The constitution of the Supreme Court in British Columbia is founded on a proclamation of the Lieutenant-Governor, under a statute, and his commission. The proclamation provides :
That the Supreme Court of civil justice of British Columbia shall have complete cognizance of all pleas whatsoever, and shall have jurisdiction in all cases, civil as well as criminal, arising within the colony of British Columbia.
The unlimited jurisdiction thus given to the court includes the issuing of writs of habeas corpus ad subjiciendum and the discharge of prisoners illegally imprisoned, and in the performance of that part of their official duty the judges of the court have authority to pursue the practice of the courts and judges in England ; and if the judges in the latter country have established the practice of ordering the discharge of a prisoner without requiring him to be brought personally before them, the judges of British Columbia are, in my opinion, at liberty to pursue the same course ; and the same power is given to a judge of this court.
I have considered the objection, that having ordered the issue of the habeas corpus I have no power to adopt the other means now sought for the discharge of the prisoner ; but no case has been cited or argument advanced in favor of that proposition ; and I can see no reason why, if one alternative course has failed through the negligence or improper conduct of the sheriff, the other should not be adopted.
I have, therefore, decided to make an order for the discharge of the prisoner.
The Attorney General of British Columbia then applied to the Supreme Court of Canada to have the writ of habeas corpus, and all proceedings thereunder, quashed as having been issued improvidently.
A special session of the court was called to hear the application.
Robinson Q.C. and the Attorney General of British Columbia (Gormully with them) supported the motion, and McCarthy Q.C. and Theodore Davie (A. F. McIntyre with them) appeared for the prisoner.
A preliminary objection was taken by the counsel for the prisoner that the application should not be heard in his absence.
Robinson Q.C. on this point.—I always understood the rule to be that the presence of the prisoner was only necessary when the court was about to deal with the conviction or with the record. In cases before the Privy Council the prisoner is never present. See The Queen v. Murphy [29] and The Queen v. Coote[30].
McCarthy Q.C.—The court is bound to protect the prisoner, and will not hear an adverse motion behind his back. If the court has power to hear the application it must have power to bring the prisoner here. The prisoner has a right to be present in every matter affecting his discharge. See Re Boucher[31]; Ex parte Martins [32] ; Eggington's case[33]
The court having overruled the objection, the counsel for the prisoner asked for an adjournment until the next morning that they might consult as to whether or not they should appear under the circumstances. The argument was, however, allowed to proceed, counsel for the prisoner to be considered as only watching the case for the present.
Robinson Q.C. and the Attorney General of British Columbia for the Crown.—The first question to be argued is : What authority is there for this writ to issue ? Section 51 of the Supreme and Exchequer Court Act confers the jurisdiction in habeas corpus on the jõdges of this court, and we contend that that section constitutes a court of criminal jurisdiction, and is, therefore, ultra vires of the Dominion. See The Queen v. St. Denis[34], where this question is incidentally considered by Chief Justice Cameron.
Then, what is the " concurrent " jurisdiction that is conferred by this section ? When the act was passed there was, practically, no communication between the capital of the Dominion and the province of British Columbia. Then, was it intended to do more than to give this jurisdiction to the judges of the Exchequer Court, and that only when they were in the province in which the writ was required ? " Concurrent " means concurrent in territory. It cannot mean concurrent in jurisdiction because that is different in the different provinces.
Again, we say that there was no jurisdiction to issue the writ in this case, because it can only issue to inquire into the cause of commitment in a criminal case under an act of the Parliament of Canada. In this case the prisoner was convicted of the crime of murder, an offence under the common law, and not an offence under an act of the Parliament of Canada.
If then as we contend, this writ should not have been issued, is there any authority in this court to quash it ?
The writ has been issued under the seal of the court and tested in the name of the Chief Justice, and was, therefore, the process of the court, and there is an inherent right in this court, in common with all courts, to exercise control over its own process. See Abbott's National Dig.[35]; Robinson v. Burbidge[36] citing the remarks of Parke B. in Witham v. Lynch [37]
This explains why no appeal is given when the writ is granted. When the writ is refused the appeal must be expressly given, but when it is granted the power of the court over its own process renders an appeal unnecessary.
The following authorities were cited on this point, Dawkins v. Prince Edward of Saxe Weimar[38] ; Sea- ton v. Grant [39] ; Edmunds v. The Atty. Gen. [40]; and 5 Fisher's Dig. [41], where most of the cases are collected.
It is clear that the learned judge had no power to order the prisoner's discharge. If the return to the writ was insufficient, he should have left the prisoner to his remedy by attachment against the sheriff, in which case the matter would have come before the full court.
McCarthy Q.C. and Theodore Davie for the prisoner.
This is, in effect, an appeal from the decision of Mr. Justice Henry granting the writ, and the court has no jurisdiction to hear it.
It is argued that section 51 is unconstitutional, but we think it cannot be denied that the Parliament of Canada can create courts for the administration of criminal law. See The Picton Case [42].
The jurisdiction in habeas corpus matters is this—the power is given to the judge, and he is thereby constituted a court altogether distinct from the Supreme Court of Canada, just as he was under the Election Act. Valin v. Langlois [43]. The effect of this may be th?t the judge should not have used the writ of the court, but the order of discharge is valid.
The argument that this power is only to be exercised by the judges of the Exchequer Court would support the proposition just advanced, because, if a judge is out of Ottawa, he cannot issue the writ under the seal of the court. But we do not concur in this view. The writ of habeas corpus should be open to everybody in Canada, but if it can only be issued when the Exchequer Court is sitting, it will, practically, be open only to the people of Ottawa.
The contention that the jurisdiction can be exercised only in case of an offence created by an act of the Par- liament of Canada is untenable. It is a commitment under an act of the Parliament of Canada that forms the basis of the inquiry, and the case is within it. All the proceedings here were under the " Indictable Offences Act."
Even if we are wrong in this, section 129 of the British North America Act makes all common law offences offences under the laws of Canada.
The judges of this court would have jurisdiction in habeas corpus matters without express authority. See ex parte Bollman[44].
But no matter how erroneous the action of the learned judge in granting this writ may have been, this court has no power to interfere. No authority can be produced to show that an order to discharge a prisoner on habeas corpus can be reversed. On the contrary The Queen v. Weil [45] ; The Mayor, &c. v. Brown[46], and The Attorney General v. Sillem[47], are all authorities to show that this proceeding is unwarranted. See also, Carus Wilson's Case[48] ; The Canadian Prisoner's Case[49], and In re Padstow Total Loss Association[50].
Robinson Q. C. in reply cited Bishop on Criminal Procedure[51] ; Ex parte Tom Tong[52] ; Re Stretton[53].
Sir W. J. RITCHIE C. J.—The first quesôion to be determined in this case is as to the right of this court to inquire into the propriety of the issue of the writ of habeas corpus and its power to quash the writ if improvidently issued.
This writ having been issued out of this court, under the seal of the court, and tested in the name of the Chief Justice (and I know of no other way in which the writ of habeas corpus could be issued on the fiat of a judge of this court), was a proceeding in this court, and every superior court, which this court unquestionably is, has incident to its jurisdiction an inherent right to inquire into and judge of the regularity or abuse of its process.
In Witham v. Lynch [54] Parke B: remarks :
Whenever a jurisdiction is conferred by statute on a judge of the superior courts it is subject to appeal to the court unless there is something in the context leading to a contrary conclusion.
And in Robinson v. Burbidge[55] Maule J. cited the above remarks of Parke B. with approval.
That this is a matter pertaining to the court, and one with which it can deal, and not a jurisdiction conferred on a judge of the court outside of and independent of the court, and that the judge has no independent jurisdiction unconnected therewith, is, I think, very obvious from the fact that he can only act as a judge of this court through the instrumentality of the writ of this court, obedience to which could not be enforced by authority of the judge but by the court, which alone could issue an attachment for contempt of the court in not obeying its process, the contempt being contempt of the process of the court, not of the fiat of the judge authorizing its issue, and therefore the impossibility of enforcing obedience to the process of the court without the assistance of the court seems to me to prove, conclusively, that the matter is within the jurisdiction of the court.
The learned judge, by indorsement on this writ, declares that the writ was issued, " per statutem tricesimo primo Caroli Secundi Regis," and under the Supreme and Exchequer Court Act of the Parliament of Canada 38 Vic. ch. 11, and the act of the Parliament of Canada, 39 Vic. ch. 26. Now this was certainly wrong, because it is clear beyond question that the 31st of Car. 2 has nothing to do with a case like the present and does not authorize the issue of a habeas corpus in such a case as this. The statute of 31 Car. 2 was to provide that persons committed for criminal, or supposed criminal, matters in such cases where by law they were bailable should be left to bail speedily. Abbott C. J., in 6 D. & R. 209, says the object of the habeas corpus Act, 31 Car. 2 cap. 2, was to provide against delays in bringing to trial such subjects of the king as were committed to custody for criminal or supposed criminal matters, and therefore if this writ could be issued out at all it must be issued at common law.
Now the sixth question proposed to the judges by the House of Lords, see Bacon's Ab. habeas corpus, vol. 4, p. 493, and Wilmot's Opinions and Judgments p. 777, and the answers thereto, show conclusively that a judge in vacation has no power to enforce obedience to writs of habeas corpus issued at common law, and I think it may be taken to be equally clear that there is no such power in cases within 31 Car. 2. The writ of habeas corpus is not the writ of a judge on whose fiat it issues. It is a high prerogative writ which issues out of the Queen's superior courts, and, in my opinion, is necessarily subject to the control of those courts, not necessarily by way of appeal, but by virtue of the power possessed by the court over the process of the court. The course of proceeding to be observed in obtaining an attachment, shows that it is matter with which the court alone can deal ; it is thus laid down. The course of proceeding to obtain an attachment which issues to punish disobedience to the Queen's writ is by motion