Note: Civil action for assault-Bar by criminal proceedings-Cr.

Code sec. 734.

See annotations 6 Can. Cr. Cas. 320 and 11 Can. Cr. Cas. 79

[SUPREME COURT OF NEW BRUNSWICK.]

BEFORE BARKER, C.J., AND LANDRY, MCLEOD AND WHITE, JJ.

Ex parte WILSON.

Summary conviction—Certiorari—Disqualification of magistrate—Bias—Informant a constable appointed by Board of Police Commissioners-Magistrate a member of Board—Statutory duty-Search warrant-Keeping liquor for sale―Irregularity in information for search warrant—Execution of search warrant outside of city where alleged keeping for sale is charged-Canada Temperance Act, R.S.C. (1906) ch. 152.

1. The invalidity of the information for a search warrant issued under the Canada Temperance Act cannot be raised on certiorari in respect of a conviction under a separate information against the same person for illegally keeping liquor for sale.

2. If the evidence is sufficient to prove the keeping of liquor for sale, the conviction will not be quashed because the liquor in question was seized under a search warrant under the Canada Temperance Act outside of the city limits and the information and conviction for keeping are expressed to be for an offence within the city, if the magistrate had jurisdiction both in the city and at the place of seizure.

3. A magistrate is not disqualified on the ground of bias from adjudicating upon a charge because the informant is a police constable receiving his appointment from and subject to dismissal by a Board of Police Commissioners of which the magistrate is a member.

4. A Board of Police Commissioners discharges a function of government in the appointment of constables, but as the duties of the latter are fixed by the law and not by the order of the Board, the Commissioners are not responsible for the acts of the constables appointed by them if done in the ordinary course of their duty as constables and not under any special direction of the Commissioners.

ARGUED: November 4, 1908.

DECIDED: December 18, 1908.*

*Also reported sub nom. R. v. Kay, ex parte Wilson, 39 N.B.R. 124.

William Wilson was convicted on September 29, 1908, before James Kay, police and stipendiary magistrate for the county of Westmorland of keeping intoxicating liquor for sale at the city of Moncton contrary to the provisions of the Canada Temperance Act.

On October 17, 1908, Mr. Justice Landry granted an order absolute for certiorari and an order nisi to quash this conviction.

FREDERICTON, November 4, 1908.

Chandler, K.C., shewed cause against the order nisi. This Court will not reconsider the evidence taken before the magistrate, even though the magistrate is mistaken in his findings on the facts. Ex parte Daley, 27 N.B.R. 129.

[MCLEOD, J.:—Suppose it appeared to the Court that the offence was committed by another man outside the city of Moncton, would that be a mistake in fact or law?]

246.

Chandler, K.C.:-That would be a mistake in law. Ex parte Daley decides that even if there is no evidence to support it the conviction will not be quashed where the magistrate had personal and territorial jurisdiction; see also Regina v. Coulson, 24 O.R. McCleave v. The City of Moncton, 35 N.B.R. 296, affirmed 6 Can. Cr. Cas. 219, 32 Can. S.C.R. 106, decided that the police officers of the city of Moncton are not servants of the city, and that the city is not responsible for their acts, and this decision was affirmed on appeal, 32 S.C.R. 106. The police commissioners are now in the same position as the city of Moncton. They appoint the police officers and dismiss them, but these police officers are in no sense their agents.

[BARKER, C.J.:—The policeman who laid this information did so, I presume, in the ordinary course of his duty as a policeman, and not by reason of any special order of the commissioners?]

Chandler, K.C.:-That is correct. There have been similar Boards of Police Commissioners in Ontario for twenty years. On the question of bias see 2 Encyc. of the Laws of Eng., 71. The fact that the search warrant under which the liquor in question was seized is bad does not affect this conviction. The search warrant proceedings are separate and distinct. If the warrant is improper the party aggrieved can bring replevin or trespass or certiorari will be granted to remove the order for destruction and the record of the search warrant proceedings before this Court. There are cases in which the conviction has been affirmed and the order for destruction set aside. Canada Temperance Act, R.S.C. 1906, ch. 152, secs. 136, 137. Rex v. Townsend, 12 Can. Cr. Cas. 509; Ex parte Kavanaugh, 2 Can. Cr. Cas. 267; Reg. v. Walker, 13 O.R. 83. The information against the defendant for keeping for sale gave the magistrate jurisdiction in this case. Kay was appointed stipendiary magistrate under 39 Vict. ch. 16, sec. 1, with jurisdiction throughout the county of Westmorland. See also C.S.N.B. 1903, ch. 119, sec. 17. Under sec. 131 of the Canada Temperance Act such a prosecution may be brought before any stipendiary magistrate having jurisdiction where the offence was committed, therefore it would make no difference that the keeping for sale was outside the city of Moncton. It is not necessary to set out the exact place where the offence was committed as long as it is alleged to be in the county where the magistrate had jurisdiction. Rex v. Meikleham, 11 O.L.R. 366, 10 Can. Cr. Cas. 352. The constables who made the seizure are appointed for the city, but have jurisdiction all over the county, 7 Edw. VII. ch. 97, sec. 6.

[BARKER, C.J.:-Even if they had no authority to make the seizure, while it might give rise to an action, it would not affect this conviction.]

Barry, K.C., in support of the order nisi. Something more than mere possession is necessary to prove a keeping for sale. There were no appliances for the sale of liquor in the place where

this liquor was seized, so no presumption was justified under the

Act.

[BARKER, C.J.:—It was proved that Wilson kept a hotel and was in the habit of selling liquor.]

Barry, K.C.:-The police officer who laid the information was appointed by the magistrate who heard the charge. On the question of bias see Reg. v. Allan, 4 B. & S. 915; Paley on Convictions (6 ed.), pp. 44-49; Reg. v. Meyer, 1 Q.B.D. 173. The information for the search warrant was not sufficient and the warrant was illegal.

[BARKER, C.J.:-If a man had stolen this liquor his evidence would be admitted, the evidence is not less admissible if the liquor was taken under an illegal warrant.]

Barry, K.C.-The offence alleged is keeping for sale in the city of Moncton, but the liquor was seized outside the city of

Moncton.

[BARKER, C.J.:—The gist of the offence is the keeping for sale, the place is not material so long as the magistrate had jurisdiction.]

Barry, K.C.-The magistrate might amend this conviction, but as it stands the conviction is bad. On question of variance see secs. 145-147 of the Canada Temperance Act, and the Criminal Code, R.S.C. 1906, ch. 146, sec. 754. The proper remedy is certiorari, because there is no appeal in such case.

FREDERICTON, December 18, 1908.

The judgment of the Court was delivered by

BARKER, C.J.:-On the 17th of September last an information was laid before James Kay, stipendiary and police magis

trate for Westmorland by one Harris T. Cusack, a police constable, against Wilson for unlawfully keeping intoxicating liquor for sale at Moncton on the 16th of September, contrary to the provisions of the Canada Temperance Act. On the 11th of September an information was laid before Kay by one George Rideout, chief constable of Moncton, stating that he had reason to suspect and did suspect that intoxicating liquor was kept for sale in violation of the Canada Temperance Act in an outhouse of one Robert Hill in the parish of Moncton.

A search warrant was issued on the last information on the 16th of September, and a summons was issued on the first information on the 17th of September, returnable on the 25th of the same month. A hearing was had, and on the 29th of September the magistrate convicted Wilson for unlawfully keeping intoxicating liquor for sale at the city of Moncton as laid in the information, and fined him fifty dollars and costs, and he ordered a quantity of liquor found and seized under the search warrant to be destroyed. An application is now made to quash the conviction on the following grounds:

1. The magistrate had no jurisdiction to make the conviction as there was no offence proved.

2. The magistrate was disqualified on the ground of bias, he being chairman of the commissioners by whom the police are appointed, and who appointed Cusack the informant.

3. The information for the search warrant is insufficient, as the grounds of suspicion are not sufficiently stated.

4. The liquor was seized by a constable of the city of Moncton in the parish of Moncton beyond the city limits.

5. The fifth ground, as to the police officers of Moncton being authorized to act outside the city, was abandoned. As to the first point the objection is met by Ex parte Daley, 27 N.B.R. 129. There was ample evidence to support the conclusion at which the magistrate arrived, even if that question was open for discussion.

As to the second point it appears that the magistrate is ex