Judgment of the Court
C.J.C.-The respondent moves to quash this appeal on the ground that it is an appeal " in proceedings for or upon a writ of habeas corpus arising out of a criminal charge " within the exception to the jurisdiction of this court made by s. 36 of the Supreme Court Act (as amended 1920, c. 32).
The appellant is an alien and was convicted after his entry into Canada of an offence under para. (d) of s. 4 of The Opium and Narcotic Drug Act, 1923. Section 25 of that statute enacts that any alien so convicted
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The warrant on, which the appellant is held in custody L. awating deportation shews on its face that he is so held, no doubt under the authority of s. 25 of The Opium and Drug Act, 1923, as a consequence of his convic- AJ.C.
tion of an offence against para. (d) of s. 4 of that statute. The scope of any enquiry under The Immigration Act in such a case must be limited to ascertaining officially that the person in question was an alien, that he had been convicted after his entry into Canada of an offence within the ambit of s. 25 and that the period of imprisonment imposed upon him on such conviction had expired or been determined. It follows, in our opinion that any " proceedings for or upon a writ of habeas corpus " directed to bring the convicted alien before the court in order that the legality of his detention under such warrant may be enquired into are necessarily proceedings " arising out of a criminal charge " within the meaning of s. 36 of the Supreme Court Act.
It is nihil ad rem that the alien has served the sentence imposed on him, except that the expiry or determination of his term of imprisonment is by s. 25 made a pre-requisite to the custody for, and the deportation which it ordains. The statute, in addition to such imprisonment as may be imposed, subjects him as a result of his conviction and, therefore, as something directly flowing from the judicial finding of his guilt of the criminal charge laid against him, to the further consequences prescribed by s. 25. It is impossible to say that the custody and deportation imperatively ordered by that enactment do not " arise out of the criminal charge " of which the alien was convicted; it is equally impossible to maintain that curial proceedings to enquire into the legality of the detention pending deportation do not likewise so arise.
The motion to quash is granted.
Statutes and regulations cited
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Supreme Court Act
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Unresolved citations
- para. (d)
- s. 4 of The Opium and Narcotic Drug Act, 1923
- s. 25 of The Opium and Drug Act, 1923