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my order did not give any reasons for holding that I was wrong. The third, Martin, J.A., did give reasons, but, as it is reasonable to assume in a case concerning the liberty of the subject, that the majority consulted before reversing my order, the inference is that the other two judges were not prepared to adopt the reasons given by Martin, J.A., or they would have said so. On the other hand, Mr. Justice McPhillips gave reasons in his oral judgment, stating that he entirely agreed with me. In fact. I do not see how the matter could be put any more clearly than it was when he said:

"The mere finding of the articles on the premises, without more, constitutes very insufficient evidence of the completed sale. There must be something definite to enable it to be said that the defendant placed those articles there. It may not need to be very cogent evidence, but there would need to be some evidence; for instance, that the carter got his instructions for delivery from the defendant, or some evidence connecting the defendant with the selection, appropriation and delivery, but all such evidence is absent."

The result, then, of the appeal was unfavorable to the defendant by a majority of one, and he was then taken into custody under the warrant which the magistrate had issued, no fresh warrant having been issued, and taken to the Okalla Gaol to serve out the sentence, and now applies for his discharge.

The argument came on to be heard by me on October 15th and 16th, Mr. Johnson, Deputy Attorney-General, appearing for the Crown, and Mr. Wilson and Mr. Davis for the applicant, but inasmuch as the matter presented for my consideration appeared to be of some gravity, I reserved judgment, and in the meantime admitted the defendant to bail, the Crown assenting to that course.

The application for habeas corpus and for the prisoner's discharge is based on several grounds. One is that the order of the Court of Appeal purported to affirm the conviction alleged to have taken place on the 4th of January, 1919, whereas the conviction in question took place on the 30th of January and not on the 4th, and therefore was not affected by the order of the Court of Appeal. As to this objection, however, while it is true that one paragraph of the judgment purports to affirm a mythical conviction, another paragraph purports to set aside my order of the 7th of February, so that assuming the court had jurisdiction to entertain the appeal, the order, in my opinion, would nevertheless have effectually disposed of the matter adversely to the defendant.

A number of objections were also taken to the legality of the warrant under which the defendant was taken into custody, but, as, upon a full examination into these points, it might be found that the net result would be that a fresh warrant could lawfully be issued by the magistrate, a discharge based on any such objection might turn out to be illusory, in which case the court would then no doubt be confronted with the necessity of passing on the main question, which has been raised, and which is that the Court of Appeal had no jurisdiction to entertain an appeal, and if that is the case the prisoner has been unlawfully imprisoned.

Now, of course, a judge when called on to say that an order of a higher court is void ought to consider the matter carefully before taking that course. I at first thought that it might be pos

sible for the defendant to take an appeal to the Supreme Court of Canada, but I find that the door of that court has been closed by its decision in Re McNutt, 47 S.C.R. 259, in which it was held by a majority of the court that no appeal lies to that court in a case of this kind. It would also be open to the defendant to bring an action for false imprisonment, and in that way have the validity of the action of the Court of Appeal passed on by the Supreme Court of Canada, but in the meantime he would have to serve out the alleged unlawful sentence, and any damages which he might recover would be a very inadequate remedy, and in any event the object of the habeas corpus proceedings, which is to obtain speedy relief from unlawful imprisonment, would be frustrated by such delay. I think, therefore, that I am bound to consider the point and give my opinion on it.

In order that the nature of the question may be easily understood it is first of all necessary to set forth the legislation concerning the matter.

By the Court of Appeal Act, being Chapter 51 of the Revised Statutes, 1911, section 6, sub-section 4 (a) it was provided that an appeal should lie to the Court of Appeal from the decision of the Supreme Court or a judge thereof on a case stated under the Summary Convictions Act.

By the Summary Convictions Act, being Chapter 218 of the Revised Statutes, 1911, section 92, it was provided:

"When a case is transmitted under this Act, the Supreme Court shall hear and determine the question or questions of law arising thereon, and shall thereupon reverse, affirm or amend the determination in respect of which the case has been stated, or remit the matter to the Justice or Justices, with the opinion of the court thereon, or may make such order as to costs as the court may seem fit; and all such orders shall be final and conclusive on all parties."

By the Summary Convictions Act, 1915, being Chapter 59 of the Statutes, 1915, the last-mentioned Act was repealed, section 92 reappearing with some variations as follows:

"The Supreme Court to which a case is transmitted shall hear and determine the question or questions of law arising thereon, and shall thereupon affirm, reverse or modify the conviction, order or determination in respect of which the case has been stated, or remit the matter to the Justice with the opinion of the court thereon, or may make such other order in relation to the matter, and such order as to costs as to the Court seems fit; and all such orders shall be final and conclusive on all parties."

And the question was and is as to whether, this being the last legislative declaration on the subject, it did not abolish the right of appeal which had been allowed by the Court of Appeal Act, 1911, as above stated.

At the outset I think it is unnecessary to do more than state two propositions that are almost axiomatic in their nature. The first is that no Appellate Court can usurp a jurisdiction to interfere with the judgment of a competent Court by merely declaring that it has the jurisdiction to do so, and the second is that the right of appeal is not a mere matter of procedure but a substantive right which can be created only by legislative authority and cannot be

created by the inferior or superior tribunal or by both combinedAttorney-General v. Sillem, 10 H.L. Cas. 704-and, of course, when granted, can only be abolished by legislative authority. As I have said, the jurisdiction of the Court of Appeal to hear the appeal from my order was upheld by the Court, or at any rate by four of the judges, and they reaffirmed the reasons given in Rex v. Evans, 23 B.C.R. 128.

I asked the Deputy Attorney-General, if the matter were res integra, whether he would be prepared to maintain the jurisdiction of the Court of Appeal, and, with his usual candor, he admitted that he could not, and that he could not see any escape from the conclusion that Section 92 of the Summary Convictions Act, 1915, being the Act under which the conviction took place, cut off any right of appeal from my order to the Court of Appeal:

Notwithstanding that enactment, the majority of the Court held in the present case that the right of appeal still existed under the provisions already recited of the Court of Appeal Act, 1911. In the Evans case the Court held that they had to deal with a conflict between two of the revised statutes, and that, inasmuch as the original Court of Appeal Act was passed later than the original Summary Convictions Act, the latter had to give way, but in Gartshore's case they held that the passage of the new Summary Convictions Act in 1915 made no change in the situation, although passed long after the Court of Appeal Act in 1911. They undoubtedly professed to apply the principle that where two enactments conflict the later legislation must prevail, a principle which cannot be disputed, but, with great deference to the learned judges of the Court of Appeal, I think they misdirected themselves in endeavouring to apply the principle to the legislation in question by inquiring into the priorities of the Statutes which had been repealed.

In Boston v. Lelievre, L.R. 3 P.C. 151, Lord Westbury, in delivering the judgment of the Privy Council, which, of course, binds both the Court of Appeal and myself, said, in dealing with a converse case of a Court of Appeal refusing to hear an appeal on the ground that it had no jurisdiction:

The question is governed entirely by the language of the Colonial Statutes. The Court of Appeal in Lower Canada is the creation of the Statute and the subjects upon which appeal lies to that Court are defined with reasonable clearness. The jurisdiction of the Court existed before the consolidated Statutes, but the consolidated Statutes annulled all the antecedent Statutes upon the subject. The consolidated Statutes may be treated as one great Act, and their Lordships think it would not be wrong to take the several chapters as being enactments which are to be construed collectively, and with reference to one another, just as if they had been sections of one Statute, instead of being separate Acts,"

And in B.C. Electric Railway Co. v. Stewart, 1913, A.C., which was an appeal from the British Columbia Court of Appeal, Lord Atkinson says at page 827:

"The Consolidated Railway Companies Act, 1896, and the Municipal Clauses Act, 1896, were passed in the same session of the British Columbian Legislature, but the latter was chapter 37 of the Statutes of that year and the former chapter 55, and pre

sumably later in date. If there is a repugnancy between them, the later statute must prevail (Moore v. Robinson).”

In the Evans case, then, it is clear that the method of dealing with the Statutes laid down by the Privy Council would have led to the opposite decision, and I must assume that the Court, if these decisions had been brought to their attention, would have decided that the right of appeal no longer existed. But it is not necessary to me to say anything more about the Evans case, which, in the view of the Court of Appeal, raised the question of a conflict between two Statutes contained in the same consolidation, for in Gartshore's case, the case was not that of a conflict between two Statutes contained in the same revision, but between the Court of Appeal Act of 1911 and the Summary Convictions Act, 1915, and therefore the decision in the Evans case, whether right or wrong, did not necessarily bind the Court in the present case.

On the argument in the present case, the case of Rex v. Sit Quin, 25 B.C. 362 was referred to. In that case the Court of Appeal held that it had jurisdiction to entertain an appeal from a decision of the County Court on an appeal from Justices of the Peace, under the Summary Convictions Act. With regard to the objection which had been raised to its jurisdiction, the learned Chief Justice says (Martin and McPhillips, JJ.A. concurring):

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Then as to the preliminary objections which we reserved, I see no reason for changing the opinion which I held in Rex v. Evans. I do not think the subsequent re-enactment or consolidation of the Summary Convictions Act affects the principles which we laid down in that case."

But the Summary Convictions Act does not declare the judgment of the County Court to be final and conclusive, as it does the judgment of the Supreme Court, so that the case of Rex v. Sit Quin was not necessarily governed by the case of Rex v. Evans, nor did it necessarily govern this case, and whether it is right or wrong it does not affect this case, and therefore it is unnecessary for me to consider it further.

So that the position is that the Court of Appeal, on the hearing of the appeal in the present case, were not bound by their decision in the Evans case, as the conflict there was between two coeval Statutes, they evidently considering that although the Summary Convictions Act of 1915 was passed before the hearing of the Evans appeal, which had been taken before its passage, it evidently had no bearing on the question, as they made no allusion to it. Nor were they bound by their ruling in the Sit Quin case, as that was the case of an appeal from a County Court and not from a Supreme Court. Nevertheless, they considered that their decision in the Evans case governed both the Sit Quin case and this case. The Court of Appeal therefore arrived at this result, that although the Summary Convictions Act of 1915 repealed the former Summary Convictions Act of 1911, and undoubtedly by Section 92 gave the defendant the right of appeal to the Supreme Court from the decision of the magistrate and by the same section declared the decision of the Supreme Cort to be inal and conclusive on all parties, it was not, however, effectual to extinguish the right of appeal which had been provided in another Statute of 1911.

With the greatest deference to the learned judges who so held, I think that they could not eliminate the last declaration of the Legislature in this way, and that the decision is in direct violation of the principles laid down by the Privy Council in Boston v. Lelievre and in B. C. Electric Railway Co. v. Stewart, as already stated. It may be suggested, although the learned Deputy AttorneyGeneral did not see fit to suggest it, that the phrase in the Statute "final and conclusive on all parties was not to be taken at its face value, but should be understood as subject to an appeal to the Court of Appeal, and the learned judges have, in fact, read into the Statute some such expression as "subject to the right of appeal allowed by Section 6 of the Court of Appeal Act, 1911"; but this mode of construction has often been condemned by courts of the highest authority.

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In Cushing and DuPuy, 5 A.C. 409, the Privy Council had to construe a Dominion Statute which enacted that the judgment of the Court to which an appeal under this Section can be made shall be final." It was argued that this did not necessarily prevent an appeal as of right to the Crown, but Sir Montague Smith, in delivering judgment, said at page 416:

"Then it was contended that if the Parliament of Canada had the power, it did not intend to abolish the right of appeal to the Crown. It was said that the word 'final' would be satisfied by holding that it prohibited an appeal to the Supreme Court of Canada, established by the Dominion Act of the 38 Vict., c. 11. Their Lordships think the effect of the word cannot be so confined. It is not reasonable to suppose that the Parliament of Canada intended to prohibit an appeal to the Supreme Court of Appeal recently established by its own legislation, and to allow the right of immediate appeal from the Court of Queen's Bench to the Queen to remain. Besides the word 'final' has been before used in Colonial legislation as an apt word to exclude in certain cases appeals as of right to Her Majesty (see the Lower Canada Statute, 34 Geo. 3, c. 30). Such an effect may, no doubt, be excluded by the context, but there is none in the enactment in question to limit the meaning of the word. For these reasons their Lordships think that the judges below were right in holding that they had no power to grant leave to appeal."

In Lock v. Queensland Investment and Land Co., 1896 A.C., Lord Halsbury says, at page 466:

"Of course, if you can introduce into the language which the Legislature has used other language which would have a different effect (and that has been practically the argument addressed to your Lordships), you may turn any Statute or any section of any Statute into an absurdity. But Table A of the seventh section expressly says that the directors may, if they think fit,' make such an arrangement as has been here made; and every effort to turn those plain words into something else has resulted, on the part of the learned counsel who argued it, in an admission that, without the addition of some words, they cannot get into that seventh section that which their argument requires."

In Salomon v. Salomon and Co., 1897 A.C., the Lord Chancellor, at page 39, said that he "must decline to insert into that Act of Parliament limitations which are not to be found there."

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