A commitment on conviction for an offence against Part II. of the Canada Temperance Act is a commitment in a criminal case and a judge of the Supreme Court of Canada has power to issue a writ of habeas corpus. On application to a judge of the Supreme Court of Canada for a writ of habeas corpus he may refer the same to the full court which has jurisdiction to hear and dispose of it. Re Richard (1907), 12 Can. Cr. Cas. 205.

Canada Supreme Court rules.]-Supreme Court rules 65 and 66 are as follows:

65. Criminal appeals may be heard on a written case certified under the seal of the court appealed from and in which case shall be included all judgments and opinions pronounced in the courts below. The appellant shall also file six typewritten or printed copies of the case with a memorandum of the points for argument except in so far as dispensed with by the registrar.

(2.) In appeal in habeas corpus cases under sec. 62 of the [Supreme Court] Act, a printed or typewritten case containing the material before the judge appealed from, and the judgment of the said judge together with a memorandum of the points for argument, except in so far as dispensed with by the registrar, shall be filed.

66. In criminal appeals, and appeals in cases of habeas corpus under sec. 62 of the [Supreme Court] Act, unless the court or judge in chambers shall otherwise order, the case shall be filed 15 clear days before the day of the session of the court at which the appeal is proposed to be heard. Canada S. C. Rules, June 19, 1907.

No leave to appeal from unanimous judgment.]—An appeal to the Supreme Court of Canada from the decision of a Court of Appeal on a case reserved at the trial is governed by sec. 1024 of the Criminal Code without regard to the statute of 1897, 60-61 Vict. (Can.), ch. 34, now sec. 48 of the Supreme Court Act, R.S.C., ch. 139, respecting leave to appeal from the Ontario Court of Appeal, and the latter statute does not apply to criminal appeals. Rice v. The King (1902), 5 Can, Cr. Cas. 529, 32 Can. S.C.R. 480.

Leave to appeal in collateral proceeding.]-In Attorney-General v. Scully (1902), 6 Can. Cr. Cas. 381, the application was on behalf of the Attorney-General for Ontario for special leave to appeal from the Court of Appeal for Ontario to the Supreme Court of Canada, under Canada Statutes, 1897, 60 & 61 Vict., ch. 34, sec. 1 (e), now sec. 48 of the Supreme Court Act, R.S.C. c. 139. The decision sought to be appealed from had declared the right of the respondent to a prerogative writ of mandamus to the clerk of the peace to furnish the respondent Scully with an exemplification of the record in criminal proceedings taken against him in a court of general sessions in Ontario, upon which the respondent had been acquitted. (6 Can. Cr. Cas. 167.)

It was held that where an appeal lies from the Court of Appeal for Ontario to the Supreme Court of Canada, only where special leave is obtained from either of said courts, leave should be refused unless special reasons are shewn apart from the alleged error in the decision sought to be reviewed. Attorney-General v. Scully, 6 Can. Cr. Cas. 381.

Extension of time for notice of appeal.]-The power given by sec. 1024 to a judge of the Supreme Court of Canada to extend the time for service on the Attorney-General of notice of an appeal in a Crown case reserved may be exercised after the expiration of the time for the service of such notice. Gilbert v. The King (No. 1) (1907), 12 Can. Cr. Cas. 124, 38 Can, S.C.R. 207.

52 CRIM. CODE.

Appeals to

1025. Notwithstanding any royal prerogative, or anything Privy Council abolished. contained in the Interpretation Act or in the Supreme Court Act, no appeal shall be brought in any criminal case from any judgment or order of any court in Canada to any court of appeal or authority, by which in the United Kingdom appeals or petitions to His Majesty in Council may be heard. 55-56 V., c. 29, s. 751.

The Interpretation Act.]-Section 16 of the Interpretation Act, R.S.C. 1906, ch. 1, declares that "No provision or enactment in any Act shall affect in any manner or way whatsoever, the rights of His Majesty, his heirs or successors, unless it is expressly stated therein that His Majesty shall be bound thereby."

Royal prerogative.]-The Crown may, by its prerogative, review the decisions of all colonial courts, criminal as well as civil, unless this prerogative has been expressly annulled by charter or statute, though an appeal in a criminal case is rarely entertained by the Privy Council. Forsyth Const. Law, 379; Macpherson P.C. Prac. 60: Todd's Colonial Government, 2nd ed., 306; Anson's Constitution II. 445; Falkland Island Co. v. The Queen, 1 Moore P.C. N.S. 312.

Appeal to Privy Council.]—Where there is no appeal as of right the Privy Council will not grant leave to appeal in criminal cases, unless it is shewn that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, some substantial and grave injustice has been done. Ex p. Dillet, 12 A.C. 459; Ex p. Carew, [1897] A.C. 719; Riel v. The Queen, 10 A.C. 675.

Quære, whether the judicial committee may not grant special leave to appeal from a Canadian court in a criminal matter notwithstanding sec. 1025, but such leave will not be granted unless the judgment below is attended with sufficient doubt to justify the granting of special leave. R. v. Townsend (No. 4) (1907), 12 Can. Cr. Cas. 509, also reported sub nom. Townsend v. Cox, [1907] A.C. 514.

Section 1025 was contained in the Criminal Code of 1892 as sec. 751, which was in turn taken from the Dominion Statute 51 Vict., ch. 43, sec. 1.

As shewn in the argument of the applications for special leave in Townsend's Case, 12 Can. Cr. Cas. 509, it is a debatable question whether the Canadian parliament has authority to curtail the prerogative of granting special leave of appeal to the King in Council which is exercised by the judicial committee.

The section may not be wholly ultra vires for its true effect and intent may be merely to dispense with appeals as of right and not as of grace, in those criminal cases to which it applies. Compare Webb v. Outrim, [1907] A.C. 81.

It may further be noted that the context of the present sec. 1025 both in the Revised Code and in the Code of 1892 affords room for doubt whether the term "in any criminal case" is not to be limited so far as section 1025 is concerned to cases in which an indictable offence is charged. The limited anneal to the Supreme Court of Canada which is dealt with by the preceding section (1024) is given to a person "convicted of any indictable offence."

Section 1013 provides for an anneal from the verdict or judgment of any court or judge having jurisdiction in criminal cases or if a magistrate proceeding under sec. 777, "on the trial of any person for an indictable offence."

Furthermore none of the other sections under the same general heading of "Sentence, arrest of judgment and appeal" which precedes sec. 1004, appear to have any application to matters of certiorari from a summary conviction such as were raised in Townsend's Case.

Special leave was granted by the Privy Council in Wentworth v. Mathieu (1900), 3 Can. Cr. Cas. 429, and so far as appears without any question being raised as to sec. 1025 (then sec. 751) of the Code being a bar, but the case dealt with summary convictions under the Temperance Act of 1864 and not with an indictable offence.

Definition, 'court' in ss. 1081, 1082 and 1083.

Punishment only after conviction.

PART XX,

PUNISHMENTS, FINES, FORFEITURES, COSTS, AND RESTITUTION OF

PROPERTY.

Interpretation.

1026. In the sections of this Part relating to suspended sentence, unless the context otherwise requires, 'court' means and includes any superior court of criminal jurisdiction, any judge or court within the meaning of Part XVIII. and any magistrate within the meaning of Part XVI. 55-56 V., c. 29, s. 974.

Speedy trials court.]-The reference in sec. 1026 to any judge or court within the meaning of Part XVIII. is to the judge exercising the speedy trials jurisdiction under secs. 822-842.

Summary trial.]—A magistrate within the meaning of Part XVI. includes the officials designated in Code sec. 771.

Punishment Generally.

1027. Whenever a person doing a certain act is declared to be guilty of any offence, and to be liable to punishment therefor, it shall be understood that such person shall only be deemed guilty of such offence and liable to such punishment after being duly convicted of such act. 55-56 V., c. 29, s. 931.

When habeas corpus applicable.]-Where a person summarily convicted is in custody under the conviction, habeas corpus is the appropriate remedy by which to obtain his discharge for an irregularity appearing on the face of the proceedings, and an order for discharge will not be made in certiorari proceedings taken without a writ of habeas corpus. R. v. Goulet (1907), 12 Can. Cr. Cas. 365.

A summary conviction by a magistrate in respect of a charge of an indictable offence which the magistrate has absolute jurisdiction to try without the consent of the accused, is subject to be enquired into upon habeas corpus and certiorari proceedings, notwithstanding the provision of sec. 791 declaring that it shall have the same effect as a conviction upon an indictment, If there was some evidence before the magistrate which would support a conviction unless he gave credence to the evidence given on behalf of the accused, the conviction will be sustained, the weight to be attached to the evidence not being a question reviewable upon habeas corpus and certiorari. R. v. St. Clair (1900), 3 Can. Cr. Cas. 551, 27 A.R. 308; R. v. Brisbois, 10 O.W.R. 869.

Habeas corpus proceedings do not lie to inquire into the validity of a conviction made at a county judge's criminal court as the latter is a court of record. R. v. Murray (1897), 1 Can. Cr. Cas. 452 (Ont.).

A habeas corpus will not be granted to bring up a prisoner who is under sentence upon a conviction for a criminal offence at the sessions. R. v. Crabbe (1854), 11 U.C.Q.B. 447.

The court cannot on a writ of habeas corpus revise on its merits the decision of the judge who has pronounced the conviction, nor adjudge on the culpability of the petitioner. R. v. Bougie (1899), 3 Can. Cr. Cas. 487 (Que.).

Affidavits are not receivable which merely go to sustain objections as to the conduct of the magistrate in dealing with the case before him over which he had jurisdiction. R. v. Munro (1864), 24 U.C.Q.B. 44.

But a collateral extrinsic fact, confessing and avoiding the disputed order may be proved on affidavit to shew want of jurisdiction. Re Clarke (1842), 2 Q.B. 619, 634; R. v. Justices of Somersetshire, 5 B. & C. 816.

Proof by affidavit is admissible in habeas corpus proceedings to shew that the commitment took place on a Sunday, as proving an extrinsic fact in confession and avoidance of, but not contradicting, the return. R. v. Cavelier (1896), 1 Can. Cr. Cas. 134 (Man.); Re Cooper, 5 P.R. (Ont.) 256.

A prisoner in custody under a verbal remand of a justice of the peace on a preliminary examination for an alleged offence, may be discharged on habeas corpus by a superior court if the information be so uncertain in its terms that it cannot be said to charge an offence known to the law, ex. gr., that the accused did counsel and procure a person named to violate the Liquor License Act (or the Customs Act or the Criminal Code) without further specifying the offence. R. v. Holley (1893), 4 Can. Cr. Cas. 510 (N.S.).

Where the party is in custody in execution, after conviction on indictment by a court having general jurisdiction of the case, for a criminal offence, the statute does not apply. R. v. Crabbe, 11 U.C.R. 447; Re Sproule, 12 Can. S.C.R. 140; R. v. Burke, 1 Can. Cr. Cas. p. 544; Fleming v. Clarke, 12 Allen (N.B.) 191..

But if any court should entertain a criminal prosecution beyond its jurisdiction, the proceeding would be void and the accused will be released on habeas corpus, as not being in custody under any valid legal proceeding. Re Sproule, 12 Can. S.C.R. p. 205.

The decision of the court of general sessions or county court in appeal from a summary conviction is final and conclusive, and a superior court has no jurisdiction to interfere by habeas corpus. The King v. Beamish, 5 Can. Cr. Cas. 388.

The prisoner will not be discharged in the case of a defective warrant of commitment, if a conviction is recited, the court assuming it to be a valid one. R. v. Roper, 1 D. & R. 156; R. v. Taylor, 7 D. & R. 622; but the warrant must refer to a conviction, so as to give notice of it to those concerned; then both will be read together, and if the conviction justifies the warrant, it is sufficient. Daniel v. Phillips, 5 Tyr. 293. But if both are defective the prisoner will be discharged, unless the evidence sustains the conviction. See Code sec. 1124.

The commitment by a tribunal of inferior jurisdiction may be severable, and where imprisonment is ordered for a term and a further term in default of payment of a fine and costs, and the prisoner was held not to be entitled to his release on habeas corpus during the first term on the ground of the costs not being ascertained in the commitment, leave was reserved to him to re-apply at the expiration of the first term. The King v. Carlisle, 7 Can. Cr. Cas. 470.