In re Vancini

In re HENRY VANCINI.

ON APPEAL FROM MR. JUSTICE KILLAM, IN CHAMBERS. *April 27. *May J.-This is an appeal to the court from an order of Mr. Justice Killam refusing an application for an order nisi for a writ of habeas corpus.

The prisoner was charged before Jhe Police Magistrate of the City of Fredericton, on the 18th January, last, with the theft of two binocular glasses, of the value of $50.00, one revolver value $15.00, toget her with several articles of jewelry, the property of one Captain Kemmis-Betty, an officer of the Royal Regiment of Canadian Infantry, stationed at Fredericton. He consented to be tried by the Police Magistrate, pleaded guilty and was sentenced to three years imprisonment in Dorchester Penitentiary, with hard labour. He was placed in custody in the said penitentiary on the 21st January and is now detained there under his sentence. An application was made before Mr. Justice In

Landry, of the Supreme Court of New Brunswick, for his discharge under the Habeas Corpus Act. That learned judge referred the question to the Supreme Court of New Brunswick which court dismissed the application.

Subsequently application was made to Mr. Justice Killam of this court, as above stated. Two contentions were made before us by counsel for the prisoner to shew that he was illegally sentenced. 1. Because the prisoner was not charged before the magistrate with an offence for which he might be tried by a Court of General Sessions of the Peace, which was a condition precedent to the exercise of the jurisdiction purporting to be conferred by section 185 of the Criminal Code of Canada, under which the said, magistrate acted. 2. Because section 785 of the Code, as amended by the Act of 1900, chpater 46 is ultra vires of the Parliament of Canada, and there was no good or sufficient legislation of the Province of New Brunswick to make its provisions operative or effective in that province.

We are of opinion that neither of these contentions can be sustained. As to the first ground, by section 782 the expressioh " magistrate " in the Province of New Brunswick, means and includes any police magistrate acting within the local limits of his jurisdiction. Then, section 785 provides that if any person is charged in the Province of Ontario before. a police magistrate with having committed any offence for which he might be tried at a Court of General Sessions of the Peace, such person may, with his own consent, be tried before such magistrate, and may, if found guilty, be sentenced by the magistrate to the same punishment that he would have been liable to if he had been tried before the Court cf General Sessions of the Peace. Section 183 provides that whenever any person is charged before a magistrate with having committed theft, the magistrate may hear and deter- Inre mine, subject to the further provisions of the Act, the charge in a summary way.

By the amending Act of 1900, a sub-section was added to section 785 as follows :

We are of opinion that that gives the magistrate in provinces and territories, other than in the Province of Ontario, the same jurisdiction to try the crime of theft as a Court of General Sessions in Ontario has to try the offence in that province.

The contention that inasmuch as there is no Court of General Sessions of the Peace in New Brunswick the amending Act is inoperative and that it can only relate to a province where such a court exists would entirely frustrate the object of Parliament.

I do not know anywhere in Canada, outside of Ontario, where there is a Court of General Sessions of the Peace or any similar court, except in the cities of Montreal and Quebec, in the Province of Quebec, and if it had been the intention to limit the operation of the amendment to the places mentioned, the only amendment necessary would be to have changed the first line of section 785 by substituting for the words " in the Province of Ontario" the words " in the Provinces of Ontario and Quebec."

In addition to this, it does not appear whether the prisoner was convicted under section 785 or section 789, which section applies to the whole of Canada, and which, as much as section 785, gives ample authority to the magistrate to make the conviction complained of. As to the second point in our view This statement of the law is mainly founded upon the celebrated decision of this court in Valin v. Langlois (1) where it was held that the Dominion Controverted Elections Act.(1874) was not ultra vires of the Dominion Parliament, and whether or not the Act established a Dominion court, the Dominion Parliament had a perfect right to give to the courts of the respective provinces and the judges thereof the power thereby created, and did not, in utilizing judicial officers and establishing courts to discharge the duties assigned to them by that Act, in any particular invade the rights of the local legislatures; and the majority of the court, Ritchie C.J. and Taschereau and Gwynne JJ, held that that Act established a Dominion court as authorized by section 101 of the British North America Act.

The question is most fully treated by Mr. Justice Taschereau, now Chief Justice of this court, and it is unnecessary now to do more than refer to that opinion. The judgment of this court, in that case, was affirmed by the Judicial Committee of the Privy Council upon the grounds stated

This court again affirmed the same principle in Attorney-General v. Flint which. however, related to a jurisdiction imposed by the Parliament of Canada