MacFarlane v. The Queen

APPEAL from a decision of the Court of Crown Cases Reserved for the Province of New Brunswick, affirming the conviction of the appellant on an indictment for assaulting a constable in discharge of his duty. The constable was entrusted with the service of a summons against the appellant for violation of the Canada Temperance Act.

Not finding him at his place of business he went to the appellant's house and met him coming out. It was after dark, and the constable asked appellant to return to the house for a light to enable him to pick out the summons from among others, which appellant refused to do, and walked away from the house.

The constable followed, and after proceeding some distance appellant threatened to split his head open with a stick which he carried. After making this threat he knocked the constable down, and his wife, who was with him, kicked the constable as he lay on the ground.

A person who had accompanied the constable came to his assistance, and having procured a light the summons was served. Appellant was indicted for the' assault, and convicted. The following questions were reserved for the consideration of the Court of Crown Cases Reserved: 1. Was the service of a duplicate summons a proper service under the Act?

Were the appellant and his wife competent witnesses for the defence on the trial of the indictment ? Was the constable acting in the discharge of his duty when the assault was committed?

The first question was abandoned at the argument. The Court of Crown Cases Reserved affirmed the conviction, Palmer J. dissenting, and from their decision the present appeal was brought to the Supreme Court of Canada.

J.-I am of opinion that the defendant was properly convicted and that this appeal must fail. The first point was virtually abandoned on the argument, and very properly so, for there cannot be any doubt that the service of a summons is properly effected by delivering a duplicate or copy to the defendant. That the constable Jones was in the execution of his duty as a constable or peace officer when he was assaulted by the defendant whom he was endeavouring at the time to serve with the summons must, I think, necessarily result from the provision of the statute, which says that the service may be by a constable or peace officer, inasmuch as by the 14th section of the statute, it was made the imperative duty of the constable to serve a summons delivered to him by the magistrate.

Then Jones was endeavouring to serve the summons when he was assaulted by the defendant, and therefore he was assaulted when in the course of the execution of his duty. That this duty being one imposed by statute, and not a common law duty of a peace officer, can Strong make no difference as regards the applicability of the statutory provision creating the special offence for which the defendant was indicted, inasmuch as the duty to serve the summons was imposed upon the prosecutor ex officio in his character as a constable peace officer.

The only remaining question is whether the evidence of Jones and his wife, tendered at the trial on behalf of the defendant, was properly rejected, and I am of opinion that upon I his point also the ruling the learned Chief Justice was entirely right. Such evidence under the statute is only admissible where the defendant is charged with simple assault and battery, which must be taken to mean the old common law misdemeanor answering to that description.

The defendant was not indicted for this offence, but for the statutory offence of assaulting a peace officer in the execution of his duty.

Upon this point the case of

Reg. v. Richardson is direct authority against the appeal, and I see no answer to it.

In my opinion, there does not exist any reason for doubting that the ruling of the Chief Justice at the trial, and the judgment of the Supreme Court in banc, were correct.

The appeal must be dismissed.

Appeal dismissed and conviction afirmed.

Brunswick.

*Mar. 28.

*April IN RE MABEL BEATRICE SMART AND OTHERS, INFANTS.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Appeal-Hbeas corpus proceeding-Time for appcaling-ommencenent of proceedings in appeal.

For the purpose of an appeal to the Supreme Court of Canada in a habeas corpus case the first step is the filing of the case in appeal with the registrar.

The judgment of the Court of Appeal in a habeas corpus proceeding was pronounced on Nov. 13th,

Notice of intention to appeal was immediately given but the in appeal was not filed in the Supreme Court until Feb. 18th,

Held-That the appeal was not brought within sixty days from the date on which the judgment sought to be appealed from was pronounced and there was no jurisdiction to hear it.

APPEAL from a decision of the Court of Appeal for Ontario (1) affirming the judgment of the Divisional Court in a proceeding by writ of habeas. corpus. The writ was issued by David Smart to obtain the possession of his children from their mother. After the case had been opened before Mr. Justice Ferguson he made an order directing that no further proceedings be taken on the writ but that the matter should be brought before the court by way of petition by the applicant (2). On appeal from this order the Divisional Court varied it by directing that the writ of habeas corpus should remain in force, and that the questions for trial under the return thereto should be tried at the same time and place as the questions under the petition directed by said order to be filed (3). The *PRESENT.-Strong, Fournier, Taschereau,.Gwyune and Patterson JJ.

Ont. P. R.

Ont. P. R. 435, judgment of the Divisional Court was affirmed by the Court of Appeal.

The mother of the infant children then appealed to the Supreme Court of Canada, seeking to have the original order of Mr. Justice Ferguson restored.

The judgment of the Court of Appeal was pronounced on Nov. 13th, 1888.

Notice of intention to appeal to the Supreme Court of Canada was given by the mother a few days after, but nothing was done in the way of prosecuting the appeal until Feb. 18th, 1889, when the record was filed in the office of the registrar of the Supreme Court.

The appellants obtained no order for the allowance of the appeal, and in a habeas corpus case no security for costs is required. On March 19th, 1889, Gormully moved that the appeal be quashed for want of jurisdiction, or that an early day be fixed for the hearing. The court directed the registrar to have it placed at the head of the Ontario cases for the February session and the motion to quash to stand until the hearing.

J.-The court is of opinion that the motion to quash this appeal must be granted. The judgment the Court of Appeal for Ontario, from which the present appeal is brought, was pronounced on the 13th day of November, 1888. Notice of the appellant's intention to appeal to this court was given within a short time after the judgment, but no actual proceeding in such appeal was taken until the case or record now before us was filed in the office of the registrar of this court, on the 18th day of February, 1889.

In appeals in habeas corpus proceedings, no security being required, the first proceeding must necessarily be the filing of the case in the Supreme Court, and that step must be .e taken within sixty days from the date on which the judgment appealed from was pronounced, there being nothing in the Act of Parliament (4) which governs the jurisdiction and procedure of the court exempting habeas corpus appeals from the operation of the 40th section of the statute.

It is therefore impossible to do otherwise than quash the appeal which the court has no jurisdiction to entertain either by enlargement the time or otherwise.

Appeal quashed woith costs.