In Re Storgoff

In Re Storgoff
Collection
Supreme Court Judgments
Date
1945-04-24
Report
[1945] SCR 526
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Thorson
On appeal from
British Columbia
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
In Re Storgoff, [1945] S.C.R. 526
Date: 1945-04-24
In Re Fred Storgoff
1944: October 13, 16;
Present: Rinfret C.J. and Kerwin, Taschereau, Rand JJ. and Thorson J. ad hoc.
1945: February 6, 7, 8, 9; 1945: April 24.
Present: Rinfret C.J. and Kerwin, Hudson, Taschereau, Rand, Kellock and Estey JJ.
Constitutional law—Criminal law—Habeas corpus—Conviction of applicant under Criminal Code—Application for habeas corpus granted by a judge of British Columbia—Appeal by Attorney General to Appeal Court—Jurisdiction to hear appeal—Appeal Court reversing judgment and ordering re-arrest—Provisions of section 6 of Appeal Court Act of B.C. granting right to appeal—Inoperative if applicant convicted for a criminal offence under Criminal Code—Exclusive jurisdiction of Federal Government to authorize such appeal—B.N.A. Act, sections 91 (27) and 92 (13). The provisions of section 6 of the Court of Appeal Act of British Columbia (R.S.B.C. 1936, c. 57), granting a right to appeal to the Court of Appeal in a habeas corpus matter are inoperative, if the applicant for that writ is detained in custody by virtue of a conviction for a criminal offence under the Criminal Code.—The Chief Justice dissenting.
The Dominion Parliament has exclusive jurisdiction to authorize such an appeal under section 91 (27) of the British North America Act, 1867 ("Criminal law ***, including the Procedure in Criminal Matters"); and a Provincial Legislature has no such power under section 92 (13) of that Act ("Property and Civil Rights in the Province").—The Chief Justice dissenting.
MOTION before Mr. Justice Hudson in Chambers for the issue of a writ of habeas corpus ad subjiciendum referred by him to the full court.
The applicant Storgoff was convicted by police magistrate Wood, in the city of Vancouver, on a charge of "while nude being found in a public place", contrary to section 205A of the Criminal Code. He was sentenced to be imprisoned at hard labour in the British Columbia Penitentiary for a period of three years.
On the 30th of June, 1944, Coady J., in the Supreme Court of British Columbia[1] , granted a motion for the discharge and release from custody of Storgoff, made on the return to a writ of habeas corpus which had previously issued. Storgoff was immediately freed from the penitentiary and set at liberty.
On the 18th of July, 1944, the Court of Appeal for British Columbia[2] , on appeal by the Attorney General of that province, reversed the judgment of Coady J. and ordered the re-arrest of Storgoff, whereupon he was taken into custody under the judgment of the Court of Appeal and returned to the New Westminster Penitentiary.
Application was then made to Mr. Justice Hudson for a writ of habeas corpus under sections 57 et seq. of the Supreme Court Act, and the reference to the full court was directed. On the first hearing, after argument by counsel for the applicant and for the Attorney General for British Columbia, the application was adjourned to the next session of the Court, and the applicant was ordered to notify the Attorney General of Canada and the Attorneys General of the provinces.
C. W. Hodgson for the applicant.
F. P. Varcoe K.C. and W. R. Jackett for the Attorney General of Canada.
J. W. de B. Farris K.C. for the Attorney General for British Columbia, (E. Pepler K.C. with him at the first hearing).
THE CHIEF JUSTICE (dissenting).—This is a Reference to the Full Court directed by Mr. Justice Hudson on the 1st day of October, 1944. On the 12th and 15th of October, 1944, the petition was partially heard by the Full Court. At that time, one Fred Babakaiff joined with Storgoff in the petition for habeas corpus, but the application was then denied as far as he was concerned, when the following judgment was delivered:—
"THE CHIEF JUSTICE.—(Orally, for the Court) We will dispose of the first part of this application, because we do not think it should stand in the way.
We look upon the motion on behalf of the two applicants as being divided and, so far as Babakaiff is concerned, the application for a writ of habeas corpus is denied. In our view, section 41 of the Penitentiary Act must be read in conjunction with section 705 of the Criminal Code and so read we have no doubt that the magistrate had power to sentence the accused to three years imprisonment in the penitentiary in accordance with the provisions of section 205 (a) of the Code.
As to Storgoff, the application will be adjourned to the next session of the Court. The applicant is to notify the Attorney General of Canada and the Attorneys General of the provinces. All parties will be at liberty to fyle factums. It is understood that that part of the petition will be heard de novo; otherwise the case will stand adjourned until the next term, to be first on the list. It is to be stated that the adjournment is by consent of all parties."
The petitioner notified the Attorney General of Canada and the Attorneys General of the provinces, who were given leave to fyle factums, and the petition was heard de novo with respect to the part thereof which dealt with the re-arrest of Storgoff by order of the Court of Appeal for British Columbia after he had been discharged from custody under habeas corpus proceedings in the Supreme Court of British Columbia.
Fred Storgoff was convicted by H. S. Wood, Esquire, K.C., a Police Magistrate, in and for the city of Vancouver, on the 8th day of May, 1944, for that he:—
At the said City of Vancouver, on the 7th day of May, A.D., 1944, while nude, was found in a public place, to wit, Stanley Park, in company with other persons.
He was sentenced to be imprisoned at hard labour in the British Columbia Penitentiary for a period of three years.
The sentence was under section 205 (a) of the Criminal Code, which in its relevant aspects reads as follows:—
every one is guilty of an offence and liable on summary conviction to three years' imprisonment who, while nude, ***
(b) is found in any public place whether alone or in company with one or more other persons.
On the 30th of June, 1944, Coady J., in the Supreme Court of British Columbia, granted a motion for the discharge and release from custody of the said Storgoff made on the return to a writ of habeas corpus which had previously issued. Storgoff was immediately freed from the penitentiary and set at liberty.
On the 18th of July, 1944, the Court of Appeal for British Columbia, on appeal by the Attorney General of that province, reversed the judgment of Coady J. and ordered the re-arrest of Storgoff, whereupon he was taken into custody under the judgment of the Court of Appeal and returned to the New Westminster Penitentiary.
Application was then made to Mr. Justice Hudson for a writ of habeas corpus under sections 57 et seq. of the Supreme Court Act, and the reference herein before mentioned was directed. The grounds urged for Storgoff's release were:—
(a) The commitment to British Columbia Penitentiary was bad and in excess of the Magistrate's jurisdiction. (But as aforesaid, this Court ruled against the application of Storgoff and Babakaiff on that ground.)
(b) The Court of Appeal for British Columbia lacked jurisdiction to hear the Attorney General's appeal and order Storgoff's re-arrest. The application of Storgoff is now renewed but on this ground alone.
The issues arising on the Reference may be stated as follows:—
(1) Did the Court of Appeal for British Columbia have jurisdiction to hear the appeal of the Attorney General of British Columbia?
(2) Is the assumption that habeas corpus is always a civil remedy, even where release is sought from imprisonment based on a criminal charge, correct?
(3) Does the Court of Appeal Act of British Columbia give appeals in habeas corpus matters generally or only in civil matters of habeas corpus?
(4) Can the Court of Appeal Act give an appeal in criminal matters of habeas corpus which arise under the Criminal Code?
The whole contention of the petitioner, Fred Storgoff, is that the Court of Appeal of British Columbia lacked jurisdiction to hear the appeal of the Attorney General for the province, and to order his re-arrest once he had been freed and set at liberty by order of Coady J., a judge of the Supreme Court of British Columbia, on habeas corpus proceedings.
Counsel for the petitioner stated that his contention could not be more clearly epitomized than in the words of McDonald C.J.B.C., in Ex Parte Lum Lin On[3] :—
The Court of Appeal Act purports to give an appeal in habeas corpus matters generally, but I think it is clear that the province cannot give an appeal in criminal matters that arise under the Code. All justifications that have been offered for holding that appeal lies in habeas corpus proceedings have been based on the assumption that habeas corpus is a civil remedy, even where release is sought from imprisonment based on a criminal charge. The argument of the learned counsel for the petitioner was really based on the decision of the House of Lords in Amand v. Secretary of State for Home Affairs and Another[4] . He contended that to hold habeas corpus is always a civil remedy is to differ from the House of Lords in that case; and he added that where English law has been settled by the House of Lords, and said English law prevails in Canada, then the decision of the House of Lords must be followed in Canada to the same extent as a decision of the Privy Council. For this principle counsel relied on the case of Robins v. National Trust Co. Ltd.[5] .
The province of British Columbia, before it joined the Dominion of Canada in 1871, had adopted the laws of England as of the year 1858, and it was, therefore, urged before us that those laws prevailed in that province and the House of Lords decision in the Amand case[6] was binding upon this Court.
In the Amand case[7] , Viscount Simon, L.C., at p. 383 stated:—
The House, therefore, has to decide the question whether the judgment of the Divisional Court, refusing a writ of habeas corpus, was a judgment in a "criminal cause or matter".
And at p. 385 the noble Lord added:—
This distinction between cases of habeas corpus in a criminal matter and cases when the matter is not criminal goes back very far. ***
The distinction is noteworthy. ***
It is the nature and character of the proceeding in which habeas corpus is sought which provide the test.
However, in that case the point which the House of Lords had to decide was neither of the nature, nor of the character, of the present proceedings. The issue was not whether habeas corpus proceedings were in relation to a criminal matter, but whether the antecedent cause or matter was criminal. As stated by Lord Wright at p. 387:—
The cause or matter in question (under s. 31 (1) (a) of the Judicature Act) was the application to the court to exercise its powers under the Allied Forces Act, 1940 *** It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That was the matter of substantive law. The immediate point involved in the appeal was whether or not the cause or matter of the application to the Court was in a criminal cause or matter, because, according as it was, or was not, there laid an appeal to the Court of Appeal in England, or no appeal laid. To quote Lord Porter at p. 389 in that case:—
The question whether a right of appeal does or does not exist is now governed by the Supreme Court of Judicature (Consolidation) Act, 1925, s. 31 (1) (a). The wording is:—
"No appeal shall lie except as provided by the Criminal Appeal Act, 1907, or this Act, from any judgment of the High Court in any criminal cause or matter".
That being the question in issue before the House of Lords, Lord Wright said, at p. 387:—
The words "cause or matter" are, in my opinion, apt to include any form of proceeding. The word "matter" does not refer to the subject-matter of the proceeding, but to the proceeding itself. It is introduced in order to exclude any limited definition of the word "cause". In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers
(meaning s. 31[8] (a) of the Judicature Act).
The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act, 1940, and the Allied Forces (Application of 23 Geo. V., c. 6) (No. 1) Order, 1940, and to deliver the appellant to the Netherlands military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That was the matter of substantive law. The writ of habeas corpus deals with the machinery of justice, and is essentially a procedural writ, the object of which is to enforce a legal right. The application for habeas corpus may or may not be in a criminal cause or matter. The former class of cases was dealt with in the Habeas Corpus Act, 1679; the reforms of procedure in the latter class had to wait until the 1816 Act.
And Lord Porter, at p. 389, added:—
Was then the application for the writ of habeas corpus in the present case made in a criminal cause or matter? Certain principles have been consistently followed in coming to a conclusion upon this question and are now, I think, too firmly established to be open to challenge. One such principle is that mandamus may be asked for either in a criminal or in a civil proceeding, and in any given case it must be determined whether or not the proceeding is criminal. This does not mean that the matter in order to be criminal must be criminal throughout: it is enough if the proceeding in respect of which mandamus is asked is criminal, e.g., the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is; and, if a case be stated by them as to their right so to enforce it and that case is determined by the High Court, no appeal lies (see Seaman v. Burley[9] ). So, if the proceeding before the magistrate was a criminal proceeding, the decision of the High Court upon a writ of prohibition is a decision in a criminal matter whether the magistrate had jurisdiction or not. He purported to be exercising criminal not civil jurisdiction, and the decision of the High Court was given in that matter (see per Viscount Cave in Re Clifford and O'Sullivan[10] ).
As long ago as 1888 it was unsuccessfully argued in Ex parte Wood-hall[11] , that the decision to be in a criminal cause or matter must deal with what was a crime by English law, and in the same case it was contended in vain that an application for habeas corpus was a separate proceeding from that which the magistrate dealt with in the case brought before him. That case has been consistently approved by the courts of this country and I think at least once by your Lordships' House: see Provincial Cinematograph Theatres, Ltd. v. Newcastle-upon-Tyne[12] . The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought before the magistrate in jeopardy of a criminal charge: see Ex Parte Pulbrook[13] and Rex v. Brixton Prison (Governor), Ex. Parte Savarkar[14] .
In the Woodhall case[15] referred to by Lord Porter, it had been decided that no appeal laid from the refusal of a habeas corpus by the High Court to a fugitive accused of an extradition crime committed to prison with a view to his surrender to a foreign state. And Lord Esher, M.R., there said at page 72:—
The words ("no appeal shall lie from any judgment of the said High Court in any criminal cause or matter" in section 47 of the Judicature Act, 1873) apply to any decision by way of judicial determination of any question with regard to proceedings, the subject matter of which is criminal at whatever stage it arises.
And Lindley, L.J. stated at p. 72:—
The object is to have the alleged criminal released from a prosecution for a criminal offence. If it is not a criminal case I do not know what it is. In cases of habeas corpus for the custody of infants and the like, there is jurisdiction, but in cases like this it is perfectly plain that there is none.
The Woodhall case[16] came up for discussion before the courts of the province of British Columbia. In 1925 it was followed and an appeal on a writ of habeas corpus for the release of an alleged criminal from a prosecution for a criminal offence was rejected. But in 1938 that decision was overruled. It was in 1920 that the Court of Appeal Act was amended in British Columbia giving the right to appeal in habeas corpus proceedings in matters over which the legislature of that province had jurisdiction. The first reported case is In re Wong Shee[17] . McDonald C.J.A., at p. 148, said:—
The recent amendment of the Act, giving an appeal in a case like the present, is an amendment to the civil laws of this province. It has nothing to do with the criminal law or criminal procedure, and hence the preliminary objection must be overruled.
Then in 1925 came the decision in Rex v. McAdam[18] , where it was held that an appeal from a refusal of a writ of habeas corpus, arising out of a criminal matter, is a criminal appeal, and falls within the heading Criminal Law assigned to the Dominion by s. 91 of the B.N.A. Act; and that, therefore, there was no right of appeal in such a case as none is granted by the Criminal Code. The Woodhall case[19] was applied. Martin, J.A., dissented in a very lengthy and learned judgment.
But in 1938 the Court of Appeal for British Columbia reversed its decision in Rex v. McAdam[20] in the case of Ex parte Yuen Yick Jun[21] . O'Halloran J.A. concurred in by the other two judges constituting the Court, crystallized the ratio decidendi as follows p. 549:—
The remedy of habeas corpus is not to supplant the procedure in or the trial of the issue in civil or criminal matters.
On the same page he quoted the language of Martin J. of the Quebec Court of King's Bench in Rex v. Labrie[22] :—
The great object of the writ is the liberation of those who may be imprisoned without sufficient cause and is the remedy which the law gives for the enforcement of the civil right of personal liberty.
It is not a proceeding in the original criminal action or proceeding. It is in the nature of a new suit brought by the respondents to enforce a civil right which he claims as against those who are holding him in custody.
Thus Martin J.A.'s dissenting opinion in Rex v. McAdam[23] was finally approved by the Court of Appeal for British Columbia in the Yuen Yick Jun case[24] . In Ex parte Lum Lin On[25] , the question again came before the Court of Appeal for British Columbia, but the majority of the Court came to the conclusion that the attack upon the jurisdiction of the convicting magistrate failed and the appeal was dismissed. In his reasons for judgment, McDonald C.J.B.C., referring to the two contrary decisions in that Court in the McAdam[26] and Jun[27] cases, said at pp. 108 and 109:—
Although this Court has so held, overruling its own contrary decision, I think the matter must be considered de novo, in view of the House of Lords' recent decision in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government[28] , which I cannot read otherwise than as laying down that habeas corpus is always a criminal remedy when used to question imprisonment on a criminal charge.
But the other judges refrained from referring to the validity of the Court of Appeal Act in criminal matters, and O'Halloran J.A. stated that he persisted in the opinion that he had already expressed in the Jun case[29] "that the Court of Appeal had jurisdiction to hear this appeal".
Finally, in 1944, this matter again came before the Court of Appeal for British Columbia in State of New York v. Wilby (alias Hume)[30] , the Court consisting of Sloan, O'Halloran and Sidney Smith JJ.A. The decision of the Court was delivered by Sloan J.A. The Amand case[31] was referred to. As a preliminary objection, counsel for the State of New York objected to the jurisdiction of the Court of Appeal to entertain the appeal, and Sloan J.A., delivering the judgment of the Court, said at p. 374[32] :—
At the outset it must be restated, as our brother O'Halloran made clear in his judgment therein, that our jurisdiction to entertain the appeal in Ex Parte Lum Lin On[33] , was never questioned by counsel in that case. Had it been otherwise, I would have concurred in the judgment of my brother O'Halloran at that time.
It is our present view that our brother O'Halloran correctly stated the position when he said in the Lum Lin On case[34] (at p. 110):
"*** the Amand case[35] does not detract from or furnish any real ground for doubting the correctness of the reasoning which prompted the decision of this Court *** in Ex parte Yuen Yick Jun[36] ***". In consequence we are of opinion that our jurisdiction to entertain this appeal cannot now be questioned. See also The King v. Junior Judge of the County Court of Nanaimo and McLean[37] .
The preliminary objection is therefore overruled.
It may now be convenient to quote section (6) of the Court of Appeal Act, R.S.B.C. 1936, chap. 57, referred to in the case at bar:—
The Court of Appeal shall be a Superior Court of Record, and, to the full extent of the power of the Legislature of the Province to confer jurisdiction, there shall be transferred to and vested in such Court all jurisdiction and powers, civil and criminal, of the Supreme Court and the Judges thereof, sitting as a Full Court, etc. *** And without restricting the generality of the foregoing an appeal shall lie to the Court of Appeal;
***
(7) Habeas Corpus:
And in any matter arising under sub-clauses (1) to (7), inclusive, in which the appellant is in custody, the Court of Appeal, if sitting, shall give the appeal precedence over every other appeal, and, if not sitting, shall promptly sit for the purpose of hearing such appeal; and in cases of habeas corpus in which the Crown is the successful appellant the Court of Appeal may make such order as it may see fit concerning the re-arrest of the accused person.
A short quotation from Halsbury, 2nd Edit., vol. 9, p. 701, par. 1200, may be in order:—
1200. The writ of habeas corpus ad subjiciendum, which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is a prerogative writ by which the King has a right to inquire into the causes for which any of his subjects are deprived of their liberty. By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released.
And in Crowley's case[38] , referred to in the footnote of the above quotation, Eldon, L.C., said, at p. 48:—
The doctrine originates in the maxim of law, that the writ of habeas corpus is a very high prerogative writ, by which the King has a right to inquire the causes for which any of his subjects are deprived of their liberty: a liberty most especially regarded and protected by the common law of this country.
At p. 708, par. 1209, of the same volume of Halsbury, the author adds:— As the Habeas Corpus Act, 1679, applied only to cases where persons were detained in custody for some criminal or supposed criminal matter, the benefit of its provisions in facilitating the issue of the writ did not extend to cases of illegal deprivation of liberty otherwise than on a criminal charge, as, for example, where children were unlawfully detained from their parents or guardians by persons who were not entitled to their custody, where a person was wrongfully kept under restraint as a lunatic, or where a person was illegally kept in confinement by another. In all such cases the issue of the writ during vacation depended solely upon the common law, and remained unregulated by statute until the year 1816, when the Habeas Corpus Act, 1816 ***
And at p. 713, par. 1214:—
The remedy by habeas corpus is equally available in criminal and civil cases, provided that there is a deprivation of personal liberty without legal justification ***
In modern practice the purposes to which the writ is most frequently applied are (1) the testing of the regularity of commitments, and particularly in cases of the commitments for extradition and of fugitive offenders; and (2) the investigation of the right to the custody of infants.
And at p. 704 see footnote (f) Rex v. Cowle[39] , per Lord Mansfield C.J., at p. 855, and then Halsbury continues as follows:—
The common law regards the King as the source or fountain of justice, and certain ancient remedial processes of an extraordinary nature which are known as prerogative writs have from the earliest times issued from the Court of King's Bench in which the Sovereign was always present in contemplation of law. The prerogative writs were issued only upon cause shown, as distinguished from the original or judicial writs which commence suits between party and party and which issue as of course ***
In Lorenz v. Lorenz et al.[40] , an appeal in a habeas corpus matter was brought before the Court of King's Bench (Appeal Side) and dismissed. This case is reported in the Canadian Abridgment, vol. 21, p. 510, as follows:—
The law respecting habeas corpus was not introduced into Quebec by the Quebec Act of 1774, but was adopted by a provincial ordinance, 1784, c. 1, which in all substantial provisions reproduced The Habeas Corpus Act, 1679. This legislation was confirmed by The Constitutional Act, 1791 (Imp.), c. 31. Habeas corpus in civil matters was first introduced into Quebec by 1812, c. 8, which extended the remedy to any person "confined or restrained of his or her liberty, otherwise than for some criminal or supposed criminal matter". These provisions have been continued ever since, and are now to be found in art. 1114 of the Quebec Code of Civil Procedure. These later statutes merely introduced a form of the remedy which had long since been recognized by the law of England and English authorities are therefore applicable in Quebec to the writ of habeas corpus in civil as well as in criminal matters. I think this ends the review which should be made of the several decisions to which this Court was referred by counsel for the petitioner.
With due respect, I do not think the Amand case[41] can be considered as an authority in the matter now before the Court. It is by no means the same kind of a case. As already pointed out, by reference to the judgment of Lord Porter, the question there was whether a right of appeal existed under the Supreme Court of Judicature (Consolidation) Act, 1935, s. 31[42] (a). I fully agree with the remarks of O'Halloran J.A. in Ex parte Lum Lin On[43] , at p. 110:—
The point for decision in the Amand case[44] in the Court of Appeal and later in the House of Lords, as well as In re Woodhall[45] , on which it is largely founded, was confined to the interpretation of an English statute which has no counterpart in this Province.
Moreover, the question now before our Court may not be discussed from the viewpoint of the English constitutional law. In this country we have to apply the B.N.A. Act and the Criminal Code, two statutes which, of course, do not apply in England and do not call for interpretation and application in the English courts. In addition to that, the Supreme Court of Canada is now the court of last resort in criminal matters; and although, of course, former decisions of the Privy Council, or decisions of the House of Lords, in criminal causes or matters, are entitled to the greatest weight, it can no longer be said, as was affirmed by Viscount Dunedin, delivering the judgment of their Lordships in Robins v. National Trust Co. Ltd.[46] at p. 519, that the House of Lords, being
the supreme tribunal to settle English law, *** the Colonial Court, which is bound by English law, is bound to follow it.
For all these reasons, my view is that Storgoff's case stands to be decided according to Canadian law and by the application of the relevant sections of the B.N.A. Act, the Criminal Code, and the statutory and common law of British Columbia.
When discussing the relative and distinctive meaning of the words "criminal and civil", we must take into consideration the text of sections 91 and 92 of our Constitutional Act, and more particularly, subsection 27 of section 91 and subsections 13 and 14 of section 92; also the text of the relevant sections of the Criminal Code and of the statutes of British Columbia.
Under section 91, head 27, of the B.N.A. Act,
The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters,
is assigned to the "exclusive Legislative Authority of the Parliament of Canada", whilst, under heads 13 and 14 of section 92,
Property and Civil Rights in the Province, and The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts
are assigned to the "exclusive jurisdiction of the Legislature in each Province".
It may be added that by force of head 15 of section 92,
The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section
are also "exclusively assigned to the Legislature in each Province".
Incidentally, it should not be forgotten that in several judgments of this Court, and of the Judicial Committee of the Privy Council, reference was made to what was there called "provincial criminal law", thus indicating that the distinction made in the Amand case[47] , and other similar cases in England, between criminal or civil causes, or matters, cannot be made in this country in the interpretation, or discussion, of the law under which it is governed.
In the course of the very exhaustive and able argument made on behalf of the petitioner by the learned Deputy Attorney General of Canada and counsel for Storgoff, as well as by counsel for the Attorney General for British Columbia, it was conceded as being beyond question that in matters of habeas corpus as applied to a case, for example, of the custody of infants, or lunatics, or such other cases, the writ must be considered as being a civil matter. I suppose it should also be considered that, when issued in relation to a matter properly coming within the description of a "provincial criminal matter", the writ of habeas corpus must necessarily be held to be a writ coming under the jurisdiction and the proper legislative authority of the legislature in each province.
The only field of habeas corpus, therefore, that could possibly be argued to belong to the jurisdiction of the Parliament of Canada must be the writ of habeas corpus issued for the release of a person detained as a consequence of a conviction under the Criminal Code. But, even then, it was argued on behalf of the Attorney General for British Columbia that, in that respect, it is an independent proceeding, unconnected with the criminal cause for which the commitment was ordered, and that the real subject matter of the proceeding, even in such a case, is the civil right of the individual or subject to his liberty.
In connection with that argument the Court was referred to Jenks "A Short History of English Law", where, at pp. 341, 342 and 343, the learned author, after outlining the writ of habeas corpus and pointing out that, although at first the writ was resorted to under the common law, there came subsequently the Habeas Corpus Act of 1679
giving every prisoner an absolute right to have the validity of his imprisonment speedily raised and discussed by a superior Court in his presence, whether in Term time or vacation. If the authority under which he is imprisoned is lawful, as in the ordinary case of a prisoner committed for trial, with bail lawfully refused, the applicant will, of course, simply be remanded to prison.
And the author adds:—
This statute, re-inforced as it was by the civil remedies applied in the well-known "General Warrant" cases at the end of the eighteenth century, may be said to have definitely established in England that "Rule of Law" which is the chief guarantee of English liberty. For both statute and decisions are based upon the principle, that even an official acting under the authority of the Crown must show definite legal authority for any act which interferes with the personal freedom or domestic privacy of the ordinary citizen.
And in Halsbury's "Laws of England", 2nd edit., vol. 9, at p. 706, par. 1205, "Crown Practice", we read:—
1205. The right to the writ is a right which exists at common law independently of any statute, though the right has been confirmed and regulated by statute. At common law the jurisdiction to award the writ was exercised by the Courts of King's Bench, Chancery, and Common Pleas, and, in a case of privilege, by the Court of Exchequer. This jurisdiction is now exercised by the King's Bench Division and the judges of the High Court of Justice. Then paragraph 1208 is in these words:—
1208. The operation of the Habeas Corpus Act, 1679, has at various periods been temporarily suspended by the legislature on the ground of urgent political necessity *** Such an enactment, while it remains in force, in no sense abrogates or suspends the general right to the writ at common law.
A note at the foot of p. 707 adds:—
The writ in modern times is almost invariably issued by virtue of the common law jurisdiction, and not under the statute.
And par. 1226, at p. 719 of the same volume:—
1226. During the law sittings application for the writ of habeas corpus, whether at common law, as is the usual practice ***
It is in order to read the above quotations with what Martin J.A., of the Quebec Court of King's Bench (Appeal Side), said in Rex v. Labrie[48] ;—
The first requirements to the validity of a judgment is that it should be rendered by a tribunal clothed with authority to render it, and if the Superior Court wrongfully usurped jurisdiction, surely there must be an appeal to this Court. I shall not repeat what was said by this Court in the cases of McShane v Brisson[49] ; Dostaler v. Lalonde et al.[50] ; La Cite de Montreal v. Henault[51] .
But it is urged that these principles do not apply in the present case because we are dealing with habeas corpus in criminal matters. The expression "criminal matters" is not a happy one, though made use of in the Act.
The writ of habeas corpus is one of the prerogative writs. It is a civil writ issued out of a court of civil jurisdiction, and in the present case it relates to criminal matters only in so far as it goes to the cause of detention, which in this case is a conviction by a court of criminal jurisdiction, but the judgment or order of release is a judgment of the Superior Court. The great object of the writ is the liberation of those who may be imprisoned without sufficient cause and is the remedy which the law gives for the enforcement of the civil right of personal liberty.
It is not a proceeding in the original criminal action or proceeding. It is in the nature of a new suit brought by the respondents to enforce a civil right which he claims as against those who are holding him in custody. The proceeding is one instituted by himself for his liberty and not by the Crown to punish him for his crime. The judicial proceedings under the writ is not to enquire into the criminal act of which he has been accused, tried and convicted, but into the right of liberty notwithstanding the criminal act and conviction. A judgment may be questioned anywhere for want of jurisdiction.
It is curious to note that a similar stand was taken by the United States Supreme Court in the case of Ex Parte Tom Tong[52] , where the head note reads as follows:—
The proceedings under a petition for habeas corpus are in their nature civil proceedings, even when instituted to arrest a criminal prosecution and secure personal freedom: and the appellate revisory jurisdiction of this court is governed by the statutes regulating civil proceedings.
And at p. 539 of the same report, Mr. Chief Justice Waite, delivering the opinion of the court, says, among other things:—
A question which meets us at the outset is whether we have jurisdiction, and that depends on whether the proceeding is to be treated as civil or criminal.
And later on the same page he adds:—
The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offence; but if he succeeds he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. This petitioner claims that the Constitution and a treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right. Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution. It was said by Chief Justice Marshall, speaking for the court, as long ago as Ex parte Bollman & Swartwout[53] :—
"The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts."
Some interesting remarks in that connection were made by the former Chief Justice of this Court, Sir Lyman P. Duff, In the Matter of Annie McNutt[54] , beginning at p. 270. At the foot of p. 271, Duff J., as he then was, states:—
Another point has been raised which was not taken by the counsel for the respondent and which it is necessary to discuss. It is said that the offence with which the appellant was charged was a crime and the proceeding in which she was convicted a criminal proceeding and, consequently, that the judgment appealed from falls within the exception created by section 36 (a) which is in these words:— "There shall be no appeal from a judgment in any case of proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge or in any cas