A Treatise on Criminal Law as Applicable to the Dominion of Canada

Although Justices of the Peace, exercising summary jurisdiction, are the sole Judges of the weight of evidence given before them, and no other of the Queen's Courts will examine whether they have formed the right conclusion from it or not; yet other Courts may, and ought to, examine whether the premises stated by the Justices are such as will warrant their conclusion, in point of law. (a)

When a matter is within the jurisdiction of Justices, and their proceedings are regular and according to law, the Court will not interfere with their decision, though it should be wrong or unjust, but the Court will enquire whether the case was within their jurisdiction or not. Thus, where the nature of the charge is doubtful, and, in the course of the enquiry, it turns out that the case is not one over which they have jurisdiction, the Superior Court may, on Habeas Corpus, examine the evidence and entertain the question of jurisdiction. (b)

Where a fact is to be proved which is the very essence of the enquiry, and there is evidence before the Justices on the one side and the other, the Court will not, although they may think that, upon the evidence, the Justices have come to a wrong conclusion, review their decision.

In all cases in which Justices have to decide a collateral matter, before they have jurisdiction, and they give themselves jurisdiction by finding facts which they are not warranted in finding, the Court will review their decision, and, if they have improperly given themselves jurisdiction, will set aside the proceedings; but, where the question is a material element, in the consideration of the matter, they have to determine, and they, exercising their judgment as Judges of the fact, have decided it, on a

(a) The Scotia S. V. A. R. 160.

(b) Re M'Kinnon, 2 U. C. L. J. N. S. 327-8, per A. Wilson, J.

conflict of evidence, it is contrary to principle and practice to interfere. (a)

The Court of Queen's Bench cannot review the decision of an inferior tribunal. on a matter within its jurisdiction, and on which it has heard evidence and arrived at a conclusion.

Where a charge was preferred to a Court of Quarter Sessions, under 1 Wm. & M., c. 21, s. 6, against a Clerk of the Peace, for a misdemeanor in his office, and evidence was taken, and the Court decided that the charges were proved, and dismissed the Clerk of the Peace from his office, and appointed another person in his place :—Held, on a quo warranto information against the person so appointed, that the sufficiency of the evidence was a question entirely for the Court of Quarter Sessions, and the decision of that Court could not be reviewed by the Court of Queen's Bench. (b)

Except when applied for, on behalf of the Crown, a certiorari is not a writ of course. (c). The granting or refusing of the writ rests in the discretion of the Court, and, where the proceedings sought to be removed were completely spent, and no benefit would arise from reopening them, the order was refused. (d)

The Court must be satisfied on affidavits that there is sufficient ground for issuing it; and it must, in every case, be a question for the Court to decide whether, in fact, sufficient grounds do exist. Where a man is chosen into an office or place, by virtue whereof he has a lawful right, and is deprived thereof by an inferior jurisdiction who proceed, in a summary way, in such case, he is entitled to a certiorari ex debito justitiæ, because he has no

(a) Ex parte Vaughan, L. R. 2 Q. B. 116, per Cockburn, C. J.

(b) Reg. v. Russell, 5 U. C. L. J. N. S. 129; 17 W. R. 402.

(d) Reg. v. Ld. Newborough, L. R. 4 Q. B. 585.

other remedy, being bound by the judgment of the inferior jurisdiction. (a)

In other cases, where the application is by the party grieved, so as to answer the same purpose as a writ of error, it might be treated like a writ of error, as ex debito justitiæ; but, where the applicant is not a party grieved, who substantially brings error to redress his private wrong, but comes forward as one of the general public, having no particular interest in the matter, and, if it thinks that no good would be done to the public, it is not bound to grant it, at the instance of such a person. (b)

When a Statute gives an appeal, this does not take away the right to a certiorari. The right can only be taken away by express words; and, for this reason, the power given to a Judge by the (N. B.) Rev Stat., c. 161, s. 32, to hear appeals from summary convictions before Justices of the Peace, does not take away the right of this Court to grant a writ of certiorari to remove such conviction. (c)

Many authorities establish that a writ of certiorari may, in some cases, be granted, though expressly taken away by Statute. (d) Thus, the writ may be granted, notwithstanding 31 Vic., c. 42, s. 21, provided there be ground for the belief that the conviction was had without proof, where the Act provides that it shall be on proof to the satisfaction of the Justice. (e)

So a writ of certiorari will be granted to remove a conviction to the Superior Court, notwithstanding it is taken away by the Con. Stats. L. C., c. 6, s. 49, under which the conviction was had. (f)

(a) See Reg. v. South Holland D. C. 8 A & E. 429.

(b) Reg. v. Justices, Surrey, L. R. 5 Q. B. 472-3.

(d) Reg. v. Hoggard, 30 U. C. Q. B. 156. per Richards, C. J.

(e) Ex parte Morrison, 13 L. C. J. 295.

(f) Ex parte Church, 14 L. C. R. 318. See also ex parte Lalonde, 15 L. C. J. 251.

If a Statute declares that a certiorari shall not issue, it, nevertheless, may issue where there is a plain excess of jurisdiction, for the prohibition in the Statute would not be held to apply when the Justices or Sessions had interfered in a matter not within their jurisdiction. (a) So it lies where there is an absence of jurisdiction in the convicting Justice, or a conviction, on its face, defective in substance. (b)

An enactment that proceedings of an inferior Court shall be final, does not take away the jurisdiction of the Supreme Court to review the proceedings, under a writ of certiorari. (c)

There can be no certiorari after judgment, and the only course then is a writ of error. (d) Nor can an indictment be removed, by certiorari, from the Court of General Sessions to the Queen's Bench, after verdict and before judgment, even by the consent of parties, for their consent will not authorize an unprecedented course in a criminal case. (e)

After verdict of acquittal for nuisance, on an indictment tried at the Assizes, a motion was made, with the concurrence of the Attorney-General, for a certiorari, to remove the indictment, with a view to obtain a new trial, no ground being shewn by affidavit:-Held, that there was nothing to warrant the ordering of a certiorari (ƒ)

Where a conviction was made, under the Con. Stats. U. C., c. 75, and, on appeal to the sessions, the appeal was adjourned to another sessions, when the conviction was quashed-Held, that a certiorari might issue to remove the order quashing the conviction. (g)

(a) Hespeler and Shaw, 16 U. C. Q. B. 104.

(b) Re Watts, 5 U. C. P. R. 267.

(d) Reg. v. Crabbe, 11 U. C. Q. B. 447; Reg. v. Smith, 10 U. C. Q. B. 99. (e) Reg. v. Lafferty, 9 U. C. Q B. 306.

(f) Reg. v. Gzowski, 14 U. C. Q. B. 591.

(g) Re Doyle, 4 U. C. P. R. 32.

Where a conviction, under the 8 Vic., c. 45, is appealed to the Sessions, and tried before a jury, and affirmed on the appeal, a certiorari will lie not to examine the finding of the jury on the facts, or whether they had before them sufficient evidence of the offence, but to determine whether the Justices had exceeded their jurisdiction in convicting for an offence, which was not within the Statute. (a) A certiorari will lie for excess of jurisdiction, and illegality in the proceedings of Commissioners appointed by the Governor of the Province, under the Ordinance, 31 Geo. 3, c. 6, for the building and repairing of churches. (b) But a party, imprisoned for contempt of the Court of Sessions, cannot have his conviction removed by certiorari. (c)

In a prosecution, under the Act 5 Wm. 4, c. 2, for nonperformance of Statute labour, it must be proved that the party has been notified, by the overseer, of the time and place of meeting to perform the work, and where the affidavits, in answer to an application for a certiorari to remove the proceedings in such a prosecution, stated that the party had been duly notified, the Court made the rule absolute, in order to ascertain what the notice really was, the appellant having in his affidavit denied notice. (d)

Mere irregularities, in the proceedings of the Superior Court, are not sufficient to justify the granting of a writ of certiorari; but there must be proof that actual injustice has been done. (e) Where a defendant applies for a certiorari to remove an indictment, he must shew that it is probable the case will not be fairly or satisfactorily tried in the Court below, and if difficulties in point of law form

(a) Hespeler and Shaw, 16 U. C. Q. B. 104.

(b) Rex v. Gingras, S. L. C. A. 560.

(e) Ex parte Gauthier, 3 L. C. R. 498.

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