Attorney General for Ontario v. Scully

The history of the case is as follows:

In March, 1900, the respondent, Scully, was arrested upon an information laid by one Louis Peters charging him with having feloniously stolen forty-one sawlogs, the property of the said Peters.

After trial in due course of law, the said Scully was acquitted by the jury. He thereupon brought an action against the said Peters claiming damages for malicious prosecution. It being necessary for him at the trial to have a copy of the indictment and of the record of his acquittal to prove the essential allegations of his said action, he applied for them to the Clerk of the Peace in whose custody they were.

The Clerk of the Peace and Peter's solicitor happened to be one and the same person. That officer, prompted, it must be assumed, by what he believed to be his duty, refused to give them without the flat of the Attorney-General, and that flat was, subsequently, refused.

Thereupon, Scully applied for a prerogative writ of mandamus to compel the said Clerk of the Peace to deliver him a copy of the said documents.

This application was dismissed by Falconbridge C.J. (K.B.), but granted by the Divisional Court (1) upon an appeal by Scully. Upon an appeal to the Court of Appeal, on behalf of the Attorney- General, the judgment of the Divisional Court was affirmed

The Attorney-General now moves for leave to appeal from that last judgment. The motion cannot be granted. This statute, 60 & 61 Vic. ch. 34 (D.), clearly takes away the right to appeal to this court from the Court of Appeal for Ontario in :all the cases not coming within paragraphs (a), (b), and (d) thereof. Now, when in paragraph (e) it .,allows an appeal in any other cases wherein the special leave of the Court of Appeal for Ontario or of this court to appeal to this court is granted, it seems 'evident that, to grant that special leave upon the ground -only that the Court of Appeal has erred in the judgment attempted to be appealed from, would be to render the Act nugatory and to defeat the manifest intention of Parliament to restrict the right of appeal. There must be special reasons to support an application of this nature and none has been advanced in support of this application that cannot apply to the numerous cases where the unsuccessful party thinks that the judgment is wrong. What those reasons must be we have not to determine here. All that we hold is that in this case none has been given in support of the motion sufficient to justify us in granting, it.

Public interest might perhaps have justified us in granting special leave had the Attorney-General succeeded in establishing his contention that a right of action which the law gives to the subject is dependent upon the discretion of the law officers of the

Crown.

But as the judgment of the Court of Appeal rejects this contention of the Attorney-General, it cannot be contended that it is in the interest of the public at large that an appeal from that judgment should be granted.

I refer to the six cases in which motions of this nature have been made since the said Act came into force, not a single one of which has been granted, to shew that under our jurisprudence such leave cannot be granted upon the ground only that there may be error in the judgment of the Court of Appeal,

1898, May 20th; Fisher v. Fisher Leave refused.

1901, March 6th; Grand Trunk Railway Company v.

Atchison, (not reported).

Leave refused.

1901, March 18th; Grand Trunk Railway Company v. Vallee, (not reported).

Leave refused.

1901,

October 1st; Dominion Council of Royal

Templars v. Iargrove

Leave refused.

1901, October 29th ; Robinson v. Toronto Street Railway Co. (not reported.)

Leave refused.

1902, June 9th; Town of Aurora v. Village of Markham

Leave refused.

The application, by the statute, may also be made to the Court of Appeal itself. Now, no one would, I think, apply to that court for special leave to appeal to this court upon the ground only that the judgment is wrong. And what cannot support an application in that court cannot support it in a court of concurrent jurisdiction. as we are, in this matter.

W.

There is another view of the case upon which this application should not be granted.

The controversy relates to what may be considered in a great measure but a question of practice. It is treated generally as such in most of the cases cited in the provincial courts. Then the contention of the Attorney-General is principally based upon rules of practice for the Old Bailey Court made by the judges in the year 16th Car. II.

In one aspect of the question the right claimed by the respondent may not, strictly speaking, fall exclusively within the words practice or procedure, but the control of the provincial courts of justice over their own records and their officers should not, as a general rule, be interfered with by this court.

And, when the court of last resort in the province has passed upon a question of this nature, we should refrain from exercising the discretionary power as to Ontario appeals that the statute under which the application is made confers upon us.

Milotion refused with costs.