Cité de Verdun v. Viau

KERWIN J.:-The Court of King's Bench for the province of Quebec (Appeal Side) (1) granted leave to the city of Verdun to appeal to this Court from a judgment of its own maintaining a writ of prohibition at the suit of J. E. Viau. This Court's jurisdiction is defined by the Supreme Court Act and, as the request for a writ of prohibition was made in 1948, we must refer for our powers to that Act as it stood before the 1949 amendment: Boyer v. The King (2), where the earlier cases are considered. The decision in Boyer was approved by all the members of this Court: see Marcotte v. The King (3).

Rinfret C.J. and Kerwin, Taschereau, Kellock and Cartwright JJ.

(1) Q.R. [19511 K.B.

(2) [19491 S.C.R. 89.

(3) [1950] S.C.R. 352.

57892-1

By section 36 of that Act, as it then stood, there is excepted from our jurisdiction any proceedings for or upon a writ of prohibition arising out of a criminal charge. The word "criminal" in the section and in the context in question is used in contradistinction to "civil" and connotes a proceeding which is not civil in its character: Rex v. Nat Bell Liquors Ltd. (1), affirming (1921) 62 S.C.R. 118. This was a case of certiorari arising out of a prosecution under the Alberta Liquor Act but Mitchell v. Tracey (2), a case of prohibition arising out of a prosecution under the -Nova Scotia Temperance Act was approved. Here, the application for the writ of prohibition arose out of a charge -against the respondent of aiding the commission, by another, of the offence of personation contrary to article 302 of the Cities and Towns Act R.S.Q. 1941, c. 233.

This appeal, therefore, falls within the exception in section 36 of the Supreme Court Act and it must be quashed with costs as of a motion to quash. The respondent is also entitled to its costs of the application for leave to appeal to this Court made to the Court of King's Bench, which by the latter's order, were to follow the event.

The appellant served a notice of motion for special leave to appeal under new section 41 of the Supreme Court Act as enacted by the amending Act of 1949. For the reasons already given, the new section does not apply and that application must be dismissed with costs.

It should be added that the leave given by the Court of King's Bench does not avail the appellant as the right to grant leave, conferred on that Court by section 41 of the Supreme Court Act, is confined to "any case within section thirty-six i.e. except (inter alia) any proceedings for or upon a writ of prohibition arising out of a criminal charge: Canadian International Paper v. La Cour de Magistrat (3).

Appeal quashed with costs.