Sanders v. The Queen

Sanders v. The Queen
Collection
Supreme Court Judgments
Date
1969-10-07
Report
[1970] SCR 109
Judges
Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Sanders v. The Queen, [1970] S.C.R. 109
Date: 1969-10-07
Francis Stewart Sanders Appellant;
and
Her Majesty the Queen Respondent.
1969: June 2; 1969: October 7.
Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Habeas corpus—Certiorari—Sentence of preventive detention—No appeal taken—Whether certiorari available—Whether warrant of committal defective—Accused claiming notice not given seven clear days prior to hearing—Exhibit lost—Onus on accused to prove when notice served—Criminal Code 1953-54 (Can.), c. 51, ss. 661, 662(1)(b), 682, 691.
On April 22, 1958, the appellant was found to be a criminal sexual psychopath and was sentenced to preventive detention. He signed a waiver of his right of appeal. From 1964 to 1967, he made several applications to have the preventive detention order set aside. Finally in 1967, he made the present application for a writ of habeas corpus with certiorari in aid to quash the warrant of committal. The writ was refused by Wilson C.J. The main ground upon which the appellant relied was that he had not been given seven clear days’ notice of the application under s. 661(1) of the Criminal Code and that consequently, the magistrate had been without jurisdiction to enter upon the hearing.
At the hearing before the magistrate, the appellant admitted service of a written notice, which was filed as an exhibit, but no reference was made to the date of the service. That exhibit was lost. The appellant filed a lengthy affidavit, largely argumentative, in which he draws the conclusion that the notice could not have been served seven clear days before the hearing. His affidavit did not state where or when the notice was served upon him. In their affidavits, the magistrate and the Crown prosecutor stated that at the hearing it was proved to the magistrate’s satisfaction that the appellant received a notice of seven clear days. The affidavit of the constable who served the notice also stated that he believed he complied with the legal requirements. The Court of Appeal, by a majority judgment, affirmed the refusal of the application for the writ. The appellant appealed to this Court and subse- quently obtained leave to appeal from the refusal of the relief sought in the proceedings by way of certiorari.
Held (Cartwright C.J. and Hall, Spence and Pigeon JJ. dissenting): The appeal should be dismissed.
Per Fauteux, Abbott, Martland, Judson and Ritchie JJ.: The circumstances of this case bring it within the application of s. 682(b) of the Criminal Code which prevents the removal of the magistrate’s order by certiorari. If it can be said that the words “the merits were tried” in s. 682(b) can only be applicable where the Court had jurisdiction, the section ceases to have any real meaning. The writ of certiorari is primarily concerned with the matter of jurisdiction of an inferior Court. The section was intended to apply, and by its terms does apply in a situation where, in the absence of the section, the jurisdiction of the Court might have been questioned on certiorari. The intention of the section is to preclude the coexistence of two remedies. By its terms it applies, in any case falling within its provisions, to any attempt to remove a conviction or order by certiorari. This view of the effect of s. 682 does not run counter to the judgment of this Court in Smith v. R., [1959] S.C.R. 638.
It is unnecessary to express any view as to whether, in the light of the provisions of s. 691 of the Criminal Code, this Court has jurisdiction to entertain an appeal from a refusal by the Courts to grant certiorari.
There is no requirement that the warrant of committal recite that the accused had been given seven clear days’ notice of the application.
Even if s. 682(b) were not to be considered as constituting a bar to proceedings by way of certiorari, the appeal fails on the merits. In the light of the circumstances in this case, it was incumbent upon the appellant, when he applied for certiorari on the ground that he had not received adequate notice, to establish that fact by clear and positive evidence. He has not discharged that onus.
Per Cartwright C.J. and Hall and Spence JJ., dissenting: Seven clear days’ notice not having been given to the appellant as required by s. 662(1)(b) of the Code, the magistrate was without jurisdiction ab initio and the warrant of committal must fall. In these proceedings the Court can inquire whether the requisite notice was given. Section 682(b) of the Code does not deprive the Courts of jurisdiction to grant certiorari in this case. The great weight of authority supports the view that s. 682 is not a bar to the issue of certiorari where the proceedings sought to be questioned are invalid ab initio. Therefore, the Courts below were entitled to examine the record to determine whether the magistrate was without jurisdiction ab initio and this Court has the same right and duty.
If the matter were res integra the same view would prevail. The case did not fall within the literal wording of s. 682 as s. 661 does not contemplate the making of any plea. Furthermore, it cannot be said that “merits were tried” when in fact and in law the magistrate never acquired jurisdiction to enter upon the hearing. If the requisite notice was not given then the proceedings before the magistrate were not a trial but a nullity.
The warrant of committal was defective on its face in that it shows that the order was made by an inferior Court and does not show that the notice imperatively required by s. 662(1)(b) as a condition precedent to the magistrate having power to hear the application was given and that a copy thereof was filed as required. When, as in the case at bar it is alleged that a condition precedent to the inferior Court acquiring jurisdiction to enter on the hearing was not fulfilled and the warrant is silent, s. 61 of the Supreme Court Act provides an expeditious method of ascertaining whether or not the allegation is well founded.
The finding of the majority in the Court of Appeal that the requisite notice was in fact given to the appellant seven clear days before the hearing cannot be sustained. It cannot be said that an onus rests upon the appellant to establish that which ought to be a matter of record.
Per Hall J., dissenting: The view that s. 682 of the Code denies the right to remove the order requires holding that a person convicted in a proceeding which is in law a nullity is without recourse by certiorari when that person might have appealed. The section does not achieve that result. When Parliament said “where the defendant appeared and pleaded and the merits were tried”, it meant a lawful trial or hearing and not a proceeding which was in law a nullity. The language used in s. 682 is quite explicit, but it is no broader or more explicit than that found in many statutes which contain privative clauses of which the Labour Relations Act of Ontario is an example. There is no consistency in holding that s. 682 is an absolute bar to certiorari in a case involving the liberty of the person when equally explicit enactments deny certiorari in Labour Relations legislation are not so regarded. Where there is no jurisdiction there cannot be a trial on the merits within the meaning of s. 682.
Per Pigeon J., dissenting: Proceedings leading to a sentence of preventive detention constitute a separate issue distinct from the charge following which they are instituted. Section 682(b) of the Code cannot be applied to a sentence of preventive detention because the procedure on an application for such a sentence does not provide for a plea by the accused. The appellant is in the same situation as in Smith v. The Queen, [1959] S.C.R. 638, he has not pleaded. The appellant is therefore entitled to certiorari.
The record shows that it was not proved before the magistrate that seven clear days’ notice was given as required imperatively by s. 662 of the Criminal Code. Even if the appellant could validly admit having received the notice, such an admission is not sufficient in a criminal case. It could not be presumed that the lost exhibit showed that the required interval of seven clear days had been observed. The affidavits did not prove that this did appear on the document.
The magistrate proceeded without adequate proof of a notice served in accordance with the requirements of the law and this defect deprived him of his jurisdiction. Section 683(1) of the Code forbids proceeding without notice. This is a condition precedent to jurisdiction.
APPEAL from a majority judgment of the Court of Appeal for British Columbia[1], affirming the refusal by Wilson C.J. of an application for a writ of habeas corpus with certiorari in aid to quash a sentence of preventive detention. Appeal dismissed, Cartwright C.J. and Hall, Spence and Pigeon JJ. dissenting.
C.R. Kennedy, for the appellant.
W.G. Burke-Robertson, Q.C., for the respondent.
The judgment of Cartwright C.J. and of Spence J. was delivered by THE CHIEF JUSTICE (dissenting)—This is an appeal from a judgment of the Court of Appeal for British Columbia[2] pronounced on June 3, 1968, dismissing the appellant’s appeal from the judgment of Wilson C.J. pronounced on August 7, 1967, dismissing the appellant’s motions for a Writ of Habeas Corpus ad subjiciendum with certiorari in aid to direct the release of the appellant from the sentence of preventive detention imposed upon him by Magistrate John Hunter on April 22, 1958, at Cloverdale in the Province of British Columbia following a finding that the appellant was a criminal sexual psychopath. Norris J.A., dissenting, would have allowed the appeal.
Under s. 691(3) of the Criminal Code as enacted by Statutes of Canada 1964-65, c. 53, s. 1, assented to on April 3, 1965, the appellant has an appeal as of right to this Court from the judgment of the Court of Appeal confirming the refusal of the application for a Writ of Habeas Corpus. As s. 691 does not expressly provide a right of appeal to this Court from the refusal of the relief sought in proceedings by way of certiorari, counsel for the appellant moved for leave to appeal and on October 7, 1968, this Court made an order granting leave to appeal from the judgment of the Court of Appeal pronounced on June 3, 1968,
on all questions of law set forth in the Notice of Motion of the Appellant subject to argument as to the right of the Supreme Court of Canada to grant such leave.
and granting the necessary extensions of time.
In this Court counsel for the appellant, pursuant to s. 61 of the Supreme Court Act, served a notice of motion returnable at the hearing of the appeal for an order that a Writ of certiorari issue out of this Court to bring up any papers or other proceedings had or taken in the Courts below that are considered necessary with a view to this appeal.
The appeal was first argued in this Court on December 8, 1968, before a Bench of seven and judgment was reserved. At the conclusion of the argument on that occasion the Court requested counsel to make written submissions on the question, which had been raised by the Court during the argument, whether clause (b) of s. 682 of the Criminal Code deprives the Courts of jurisdiction to grant certiorari in this case and counsel complied with this request. Later the Court directed a re-hearing. The appeal was argued on June 2nd before the full Court and judgment was reserved.
While it is perhaps not altogether relevant to the questions that we are called upon to decide, I propose to set out briefly the history of the proceedings taken in this matter up to the present time so far as this can be ascertained from the somewhat fragmentary records produced in the Courts below and before us.
On March 6, 1958, the appellant pleaded guilty before Magistrate Hunter to a charge of committing an act of gross indecency with another male person, contrary to s. 149 of the Criminal Code.
On April 22, 1958, the appellant was found by Magistrate Hunter to be a criminal sexual psychopath and was sentenced to two years imprisonment on the charge of gross indecency and in addition was sentenced to preventive detention.
On May 18, 1958, the appellant signed a waiver stating that he had elected not to appeal from either the conviction or sentence.
On February 8, 1964, the appellant gave notice of an application to the Court of Appeal for an extension of time for appealing.
On May 7, 1965, the matter came before the Court of Appeal, composed of Bird C.J.B.C. and Davey and MacLean JJ.A. Counsel for the Crown was not called upon and the Court delivered an oral judgment refusing to grant an extention of time and refusing permission to withdraw the waiver of appeal.
Bird C.J.B.C. concluded his reasons as follows:
…In the circumstances while I am not disposed to make any direction, I would ask Crown Counsel if he would see to it that the matter is reported in detail to the Attorney-General’s Department in the hope that a thorough investigation of the allegations now made by the man can be made.
As my brother Davey puts it, our purpose is, first of all, to make sure no injustice has been done and while it is not open to the court to investigate this situation which is alleged by Saunders at this late date we do feel there might possibly be something in what he has had to say and in those terms we would like to be sure that the matter is thoroughly investigated by the law enforcement officers in this Province.
Davey J.A., as he then was, in the course of his reasons concurred in the suggestion that counsel for the Crown should make an investigation.
In September 1965, the appellant gave notice of an application for a Writ of Habeas Corpus with certiorari in aid.
On November 12 and 19, 1965, this application was heard by Branca J., as he then was, and on November 23, 1965, that learned Judge dismissed the application. It appears that the Warden of the Penitentiary at New Westminster, B.C., where the appellant was confined had returned to the Court the Warrant of Commitment in virtue of which the appellant was detained. It reads as follows:
Form 18A
SUMMARY CONVICTIONS ACT, 1955
CRIMINAL CODE, 1953-54
THE GOVERNMENT OF
THE PROVINCE OF BRITISH COLUMBIA
WARRANT OF COMMITTAL UPON CONVICTION
(S.C.A. 2.51; C.C., ss. 482 and 713)
CANADA:
PROVINCE OF
BRITISH COLUMBIA,
COUNTY OF WESTMINSTER
MUNICIPALITY OF SURREY
REGINA vs. SANDERS.
To the Peace Officers in the County of Westminster and to the Keeper of the British Columbia Penitentiary at New Westminster, B.C. Whereas Francis Stewart SANDERS hereinafter called the “accused”, was this day convicted upon a charge that Francis Stewart SANDERS between the 1st day of December, A.D. 1957 and the 1st day of March, A.D. 1958, at or near Newton, B.C., in the Municipality of Surrey being a male person did unlawfully commit an act of gross indecency with Roy FLACK, another male person, contrary to the form of Statute in such case made and provided.
Whereas the said Francis Stewart SANDERS was, pursuant to Section 661 of the Criminal Code of Canada, found to be a criminal sexual psychopath, and it was adjudged that the accused for his offence be imprisoned in the British Columbia Penitentiary at New Westminster for the term of Two (2) Years, and in addition a sentence of preventative detention.
You are hereby commanded in Her Majesty’s name to take the accused and convey him safely to the British Columbia Penitentiary at New Westminster, B.C. and deliver him to the keeper thereof, together with the following precept:
You, the said keeper, are hereby commanded to receive the accused into custody in the said Prison and imprison him there for the term of Two (2) Years, and in addition a sentence of preventative detention, and for so doing this is sufficient warrant.
Dated this 22nd day of April, A.D. 1958 at Clover-dale, B.C.
(Note:—There is an illegible signature on the original warrant)
A POLICE MAGISTRATE,
in and for the Municipality of Surrey specially authorized by the terms of his appointment to exercise jurisdiction under Part XVI of the Criminal Code.
OAKALLA PRISON
FARM
RECEIVED
APR. 22, 1958
BRITISH COLUMBIA
PENITENTIARY
NEW WESTMINSTER
MAY 1958
While the signature on this Warrant is illegible it would seem to be that of Magistrate Hunter because an affidavit sworn by him on October 13, 1965, concludes with the following paragraph:
12. That at the conclusion of the evidence submitted on the hearing on the 22nd of April, 1958, I found that Francis Stewart Sanders was a criminal sexual psychopath, and sentenced the said Francis Stewart Sanders to a term of imprisonment for two years, and in addition thereto I imposed a sentence of preventive detention and subsequently I signed a Warrant of Committal according to my findings and sentences.
In his careful and detailed reasons Branca J. examined the record of the proceedings before Magistrate Hunter but held that he could not look at the evidence to determine whether the finding of the Magistrate was correct. He concluded his reasons as follows:
I am in conclusion deeply regretful that in this case acting strictly within the supervisory area reserved to this Court in matters of this kind, that I must find that the Applicant is detained by a Warrant in all respects regular on its face and upon a charge fully within the jurisdiction of the convicting Magistrate. The Affidavit of the Applicant does not allege or disclose any jurisdictional defect.
I hasten to say that if the supervisory jurisdiction of this Court permitted a review of the evidence in this matter, that the conviction or finding insofar as it relates to the fact that the Applicant was a criminal sexual psychopath would be forthwith quashed for the reasons stated.
I have deliberately reviewed the evidence and the authorities at length in the hope and anxious expectation that counsel will bring this matter to the attention of other authorities who may be able at law to correct the injustice done in this case which this Court unfortunately in the circumstances and for the reasons stated is unable to do.
The appellant appealed from the decision of Branca J. The appeal was heard on March 24 and 25, 1966, and judgment was given at the conclusion of the hearing. Davey J.A., as he then was, based his judgment solely on s. 682(b) of the Criminal Code, holding that an appeal from the sentence of preventive detention might have been taken by the appellant but was not taken. Lord J.A. agreed. Bull J.A. expressed his agreement as follows:
I agree that the appeal should be dismissed, but I do so with some reluctance. I say with reluctance, however, for the reason that it has appeared to me that there have been several errors committed in the actual hearing. However, despite that, I consider there was full jurisdiction in the Magistrate to make the finding and sentence that he did. As stated by my learned brother, the appeal should be dismissed.
It should be noted at this point that neither Branca J. nor the Court of Appeal said anything about the ground which was chiefly relied on before us, Le., that it does not appear that the notice required by s. 662(1)(b) of the Criminal Code, as it read at the time of the hearing before Magistrate Hunter, had been given to the appellant seven clear days before the hearing. It will be observed that in the passage from his reasons quoted above Branca J. said that the affidavit of the appellant did not allege any jurisdictional defect.
The only references to the notice contained in the appellant’s affidavit were in paras. 20 and 22 which read as follows:
20. THAT the Crown Prosecutor did not present in court proof of service of Notice of Application.
* * *
22. THAT the Crown Prosecutor did not file a copy of this Notice of Application with the Clerk of the Court or with the Magistrate.
It will be observed that these do not raise a question as to the length of notice given. It is clear from reading the whole of his reasons that Branca J. made no reference to the question whether a sufficient length of Notice of Application had been given to the appellant.
On March 31, 1966, the appellant filed a Notice of Motion for leave to appeal and for an extension of time for appealing from the finding of Magistrate Hunter. This application was heard on May 27, 1966, by Bird C.J.B.C., Tysoe and McFarlane, JJ.A. and judgment was given on June 7, 1966, refusing it. The reasons of the Court of Appeal, delivered by Bird C.J.B.C, set out three grounds relied on by the appellant and state that he relied on no other ground. None of these grounds raises the question of whether seven clear days notice of the application before Magistrate Hunter had been given to the appellant.
On May 18, 1967, the appellant gave Notice of an Application for a Writ of Habeas Corpus and certiorari in aid which was heard and dismissed by Wilson C.J. on August 7, 1967, as set out in the opening paragraph of these reasons.
The material before us does not contain any recorded reasons of Wilson C.J. but on August 16, 1967, the learned Chief Justice made a report to the Court of Appeal, pursuant to s. 588(1) of the Criminal Code, reading as follows:
I have little to report on this matter. The same conviction was dealt with by Mr. Justice Branca on a previous application for habeas corpus with certiorari in aid and his written reasons, dismissing the application, were handed down November 23, 1965. I cannot improve on them. Generally I may say that since the warrant of committal was not attacked I could see no opening for habeas corpus. So far as certiorari was involved I thought Section 682 of the Criminal Code a bar and also thought that the application must be dismissed for the reasons given by Branca J., as he then was.
In support of his application before Wilson C.J. the appellant filed an affidavit containing ninety-six paragraphs. Paragraph 20 reads as follows:
20. That I was not given seven clear days Notice before trial as required by Law, before the Court has jurisdiction to hold a hearing to determine if the Accused was a criminal sexual psychopath.
It will be observed that Wilson C.J. does not deal with the question whether Magistrate Hunter was without jurisdiction because of the alleged failure to give seven clear days notice of the application to decide whether the appellant was a criminal sexual psychopath.
The appeal from the decision of Wilson C.J. was heard by a Court of five Judges. As has already been stated, Norris J.A., dissenting, would have allowed the appeal. The judgment of the majority was written by Tysoe J.A. and concurred in by Bull, McFarlane and Robertson JJ.A.
Before examining the reasons given in the Court of Appeal it will be convenient to set out the terms of s. 691 of the Criminal Code as it now reads and read at the date of the application to Wilson C.J.
691. (1) An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.
(2) Except as hereinafter in this section provided, the provisions of Part XVIII apply, mutatis mutandis, to appeals under this section.
(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from such refusal shall lie to the Court of Appeal, and where on such appeal the application is refused a further appeal shall lie to the Supreme Court of Canada.
(4) Where a writ of habeas corpus ad subjiciendum is granted by any judge no appeal therefrom shall lie at the instance of any party including the Attorney General of the province concerned or the Attorney General of Canada.
(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the Court of Appeal, and from a judgment of the Court of Appeal to the Supreme Court of Canada, with the leave of that court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.
(6) An appeal in habeas corpus matters shall be heard by the court to which the appeal is directed at an early date, whether in or out of the prescribed sessions of the court.
All the members of the Court of Appeal were of opinion that “fresh evidence” was adduced before Wilson C.J. in that the first transcript of the proceedings before Magistrate Hunter which had been supplied to the appellant by the Court Reporter, and which was before Branca J., was plainly incomplete and the second and much fuller transcript was not made available to the appellant until after Branca J. had delivered his judgment. This finding was clearly right and consequently the terms of subs. (3) of s. 691 did not prevent the making of the application to Wilson C.J.
In his reasons, Tysoe J.A. after summarizing the history of the earlier proceedings, stated the submission of the appellant that the evidence before Wilson C.J. established that the appellant had not been given seven clear days notice of the application to Magistrate Hunter for a finding that he is a criminal sexual psychopath, that consequently the Magistrate was without jurisdiction to enter upon the hearing, that the appellant is unlawfully detained and entitled ex debito justitiae to the remedy of habeas corpus. He next examined the submissions of counsel for the Crown (i) that the Warrant of Committal is valid on its face, (ii) that in these proceedings the Court cannot go behind the Warrant and (iii) that the Magistrate when proceeding under s. 661 of the Criminal Code is not an inferior court but a superior one.
Tysoe J.A. did not accept these submissions of the Crown but does not appear to have finally decided that they were untenable. He says in part:
If the attack on the jurisdiction of the Magistrate succeeds, the warrant of committal must fall for, in that event, it was issued by a person who was without power to issue it and so is invalid.
I am not convinced that this submission of the Crown that the court cannot go behind the warrant of committal is sound. Accordingly, I propose to proceed with my judgment on the assumption that the Magistrate’s Court is an inferior court and that the court below and this court are entitled to go behind the warrant of committal for the purpose of determining whether the Magistrate who issued the warrant of committal had jurisdiction to enter upon the hearing under Code Section 661 and to make the finding on which the warrant rested.
It is clear that Magistrate Hunter constituted an inferior and not a superior court. This appears from the Magistrates Act which was in force at the time of the hearing, R.S.B.C. 1948, c. 195, as amended by Statutes of B.C. 1955, c. 45, now Statutes of B.C. 1962, c. 36, particularly ss. 3, 4 and 5, and from the Criminal Code s. 2(10)(b), s. 2(38)(d) and s. 659(a).
Immediately following the passage last quoted above, Tysoe J.A. continued:
Counsel for the Crown conceded, in my opinion, rightly, that, notwithstanding the provisions of Code Section 682 which are as follows:
682. No conviction or order shall be removed by certiorari
(a) where an appeal was taken, whether or not the appeal has been carried to a conclusion, or
(b) where the defendant appeared and pleaded and the merits were tried and an appeal might have been taken, but the defendant did not appeal.
certiorari will lie if the learned Magistrate acted in this matter without jurisdiction to do so in the sense that he was without power to hear the Crown’s application ab initio if the appellant had not in fact been given seven clear days’ notice thereof.
This concession at first appears surprising in view of the fact that the Court of Appeal which heard the appeal from the judgment of Branca J. had based its judgment solely on the terms of s. 682 and Wilson C.J. had based his judgment in part on that section; but it must be remembered that the only occasion prior to the hearing of the appeal in the Court of Appeal from the judgment of Wilson C.J. on which the appellant was represented by counsel was on the application before Branca J. and, as already pointed out, there is nothing in the elaborate reasons of that learned Judge to suggest that the point was raised before him. The hearing of the appeal from the judgment of Wilson C.J. was the first occasion on which the argument was put forward that because of the alleged failure to give seven clear days notice the Magistrate was without jurisdiction to enter upon the hearing.
If it be the fact that seven clear days notice was not given to the appellant as required by s. 662(1)(b) of the Criminal Code, then the magistrate was without jurisdiction ab initio and, as was held by every member of the Court of Appeal, the warrant of committal must fall.
The two questions that arise are (i) whether in these proceedings the Court can inquire whether the requisite notice was given and (ii) if so, whether the finding should be that it was given. It was on the second of these questions that Norris J.A. differed from the majority in the Court of Appeal.
On the first question, while Tysoe J.A. accepted the concession of counsel that the right to certiorari was not taken away by s. 682 of the Criminal Code, he expressed the opinion that the concession was rightly made and examined a number of decisions in support of this conclusion. Before us counsel for the Crown contends that clause (b) of s. 682 does deprive the Courts of jurisdiction to grant certiorari in this case. In my opinion this submission should be rejected. I do not propose to refer in detail to the numerous decisions in which s. 682 has been considered by the courts, which are collected in Martin’s Annual Criminal Code, 1968, at pp. 635 to 642. The great weight of authority supports the view, that was so clearly expressed by Hall C.J.Q.B., as he then was, in Regina v. Phillips[3] and by Spence J. in Regina v. Heins[4], that s. 682 is not a bar to the issue of certiorari where the proceedings sought to be questioned are invalid ab initio.
If the submission of counsel for the Crown on this branch of the matter were accepted it would mean that the case of Smith v. The Queen[5] was wrongly decided. In that case a motion for certiorari to quash a finding that a boy aged fourteen was a juvenile delinquent was dismissed by Campbell J. and the dismissal was affirmed by a majority judgment of the Court of Appeal for Manitoba. In this Court the judgments below were reversed and the finding of delinquency was quashed. It is true that s. 682 is not referred to in the reasons in this Court but it was referred to in the Court of Appeal for Manitoba by Adamson C.J. in his dissenting judgment. The decision of that Court is reported sub nom Regina v. Gerald X (or G.S.)[6]. At p. 106 the learned Chief Justice said:
For want of jurisdiction in an inferior Court certiorari is the appropriate remedy. Certiorari is the appropriate remedy to raise the question of proper service: 13 Can. Abr. 1706; Re Ruggles (1902), 5 Can.C.C. 163, 35 N.S.R. 57; Cr. Code, ss. 682, 683 and 691; Paulowich v. Dankochuk, 73 Can.C.C. 273, (1940) 2 D.L.R. 106, 48 Man. R. 6.
Coyne J.A. who wrote the reasons of the majority said at p. 127:
Here the appellant has a right of appeal under s. 37 but did not seek to exercise it. On such an appeal he could have raised all points which arise in this proceeding. The finding of delinquency by the Juvenile Court Judge was made and the fine imposed on September 23rd. The time for application for leave to appeal expired on October 3rd and the limit of any extension by special leave of time for appeal was October 23 rd. These proceedings were not instituted until November 23rd.
I do not think it should be assumed that this Court gave no consideration to the terms of s. 682(b).
In my view the power to grant certiorari in aid of the Writ of habeas corpus in the case at bar was not taken away by the terms of s. 682, and the Courts below were entitled to examine the record to determine whether the Magistrate was without jurisdiction ab initio.
I have reached this conclusion because it appears to me to accord with the great weight of judicial opinion; but if the matter were res integra my view would be the same. Clearly clause (a) of s. 682 has no application in the circumstances of the case at bar; no appeal was taken.
The part of s. 682 with which we are concerned is as follows:
682. No conviction or order shall be removed by certiorari
* * * (b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.
Applying this to the facts of the case at bar, the finding of the Magistrate that the appellant was a criminal sexual psychopath (which entailed the mandatory imposition of a sentence of preventive detention) was not a “conviction” but it may be that it could properly be regarded as an “order” within the meaning of that word as used in the section. It is clear that the appellant appeared before the Magistrate and that an appeal might have been taken from the Magistrate’s decision but it is equally clear that no plea was taken; the provisions of s. 661 of the Criminal Code did not contemplate the making of any plea by the person as to whom the inquiry whether he was a dangerous sexual psychopath was to be held. It follows that this case does not fall within the literal wording of s. 682.
But the matter does not rest there. How can it be said that “the merits were tried” if in fact and in law the Magistrate who purported to conduct the “trial” never acquired jurisdiction to enter upon the hearing of the application? If the requisite notice was not given then the proceedings before the Magistrate were not a trial but a nullity. On this point there was no difference of opinion in the Court of Appeal. It is clear that Tysoe J.A., who wrote for the majority, would have allowed the appeal if he had not found that the required notice was in fact given.
The wording of s. 662(1)(b) of the Criminal Code, as it read at the time of the hearing before Magistrate Hunter, is explicit. It is as follows:
(b) an application under subsection (1) of section 661 shall not be heard unless seven clear days’ notice thereof has been given to the accused by the prosecutor and a copy of the notice has been filed with the clerk of the court or with the magistrate, where the magistrate is acting under Part XVI.
The giving of the notice and the filing of a copy are clearly made conditions precedent to the right of the Magistrate to hear the application. The writ of certiorari is a very old high prerogative writ. Its purpose is to enable the Court which corresponds to the Court of Queen’s Bench in England (in this case the Supreme Court of British Columbia) to control the action of inferior courts and to make it certain that they shall not exceed their jurisdiction. It is clear that in the case at bar it would be an appropriate remedy available to the appellant unless the right to it is taken away by the terms of s. 682. The power of Parliament to take away this remedy is not open to question; but, in my opinion, it would require clear and explicit words to bring about such a result. I have already stated my reasons for holding that the facts of the case at bar do not bring it within the terms of s. 682, even if, contrary as I venture to think to the great weight of authority, it should be held that that section is ever effective to take away the right to certiorari in cases where it is alleged that the inferior court acted without jurisdiction ab initio.
In seeking to ascertain the intention of Parliament it is permissible to consider the results which flow from two alternative constructions of the words of a statute. If it be the fact (a question which remains to be decided) that the notice required by s. 662(1)(b) was not given to the appellant and it is held that s. 682 has taken away the right to certiorari, then the appellant, who was without counsel, having waived his right of appeal and having let the time for appealing go by is left without any remedy although he is under sentence of imprisonment for the remainder of his life imposed by a magistrate who was without jurisdiction to make the finding that the appellant was a criminal sexual psychopath or to impose the sentence that followed such finding. I cannot think that Parliament intended such a result. When I say the appellant is left without remedy, I have not overlooked the fact that the Court of Appeal for British Columbia had, and I suppose still has, power to extend the time for appealing to that Court; but the appellant cannot claim such an extension as a right, he can but seek it as an indulgence. He has sought it twice without success. On the second of these occasions the Court of Appeal, no doubt, had knowledge of what Branca J. had said in those paragraphs of his judgment which I have quoted earlier in these reasons. On the other hand if it appears that the Magistrate acted without jurisdiction the order of certiorari would issue ex debito justitiae. In my opinion, if Parliament had intended to take away the right to certiorari in a case where an inferior court has acted without jurisdiction it would have added to the opening words of s. 682 some such words as “even from an inferior court which has acted without any jurisdiction whatever”. There is no need to dilate upon the unlikelihood of Parliament having any such intention.
For all these reasons I am satisfied that in the case at bar the right to certiorari has not been taken away.
Having reached this conclusion, it would seem to become unnecessary for me to examine Mr. Kennedy’s alternative argument that the Warrant of Committal returned to the Supreme Court of British Columbia, which has been set out in full above, was defective on its face in that it shows that the order under which the appellant is detained was made by an inferior court and does not show that the notice imperatively required by s. 662(1)(b) of the Criminal Code as a condition precedent to the magistrate having power to hear the application was given to the appellant and that a copy thereof was filed as required. However, as other members of the Court have examined and rejected this argument I think I should express my opinion upon it.
In approaching this argument is must be remembered that the appellant’s application is not for certiorari simpliciter but for a writ of habeas corpus with certiorari in aid. Section 691(3) of the Code expressly gives a right of appeal to this Court from the refusal by the Court of Appeal of an application for a writ of habeas corpus ab subjiciendum and section 61 of the Supreme Court Act gives this Court power to issue a writ of certiorari to bring up any papers or other proceedings had or taken before any court, judge or justice of the peace, that are considered necessary with a view to any inquiry, appeal or other proceeding to be had before this Court. It has already been pointed out that Mr. Kennedy applied for a writ of certiorari under s. 61. Section 691(3) of the Code and s. 61 of the Supreme Court Act must be read together. If there is a conflict between their provisions and those of section 682 of the Code then the former must prevail; generalia spec