APPEAL FROM A CONVICTION BY TWO JUSTICES OF THE PEACE.

COURT OF QUEEN'S BENCH, district of St-Francis,

march term, Sherbrooke, 14th march 1872.

Coram RAMSAY, A. J.

DAVID H. POPE, appellants and JOHN GRIFFITH, (Collector of Inland Revenue) respondant.

Held: That no appeal lies to the Court of Queen's Bench, exercising the jurisdiction of a Court of general session of the Peace, from a conviction by two justices of the Peace, under the act of the Legislature of the province of Quebec, 34 Vict., cap. 2. "The Quebec License Act."

In this case, appellant had been summarily convicted by two justices, under sections 4 and 5 of the Quebec License Act, for that he did, at the Township of Hatley, on the 8th January, 1872, at the inn (a place of public resort), occupied by him, in Hatley, unlawfully keep and suffer to be kept and have in is possession, for retail, at said inn, a quantity of spirituous liquors, without having a license to that effect, and was condemned to pay a penality of $20, and costs, and, in default of immediate payment, to be committed to gaol for three calendar months, unless said fine, &c., should be sooner paid. The appellant deposited the amount of the penalty and costs, as required by section 195 of the License Act, and appealed to the Court of Queen's Bench, discharging the functions of the court of Quarter Sessions, there being no court of Quarter Sessions in the district of St-Francis. The points urged by appellant were that the conviction was not supported by the evidence, that there was no proof that appellant kept liquors for sale by retail, or otherwise, and that the sections 4, 5, 142, 152, 161 and 166 of the License Act, in virtue of which sections appellant had been convicted, were illegal and null, and that the Legislature of the province of Quebec was not authorized or empowered to enact these sections, which are in excess of the powers conferred by the British North America Act, 1867 upon Local Legislatures, which have no power to alter or amend the mode of procedure or the laws of evidence in criminal matters, or to alter the criminal law of this province, nor to prescribe the mode by which appellant should be tried for the alleged offence committed by him, and that the said Legislature could not give to the Justice the power of trying said offence in a summary manner. The appellant referred to section 91 of the British North America Act, 1867, which gives to the Dominion Legislature exclusive legislative authority over the criminal law, except the constitution of courts

of Criminal jurisdiction, but including the procedure in criminal matters." After argument, the court expressed a doubt whether an appeal existed from a conviction rendered under the Quebec License Act, and a re-hearing was had upon this point, when appellant's counsel referred to the Dominion Statute 32-33 Vict., cap. 31, sec. 65, amended and altered by 33 Vict., cap. 27, sec. 1, which provides for appeals from sunimary convictions made by Justices out of sessions, also to section 195 of the License Act, which prescribes the conditions necessary to be complied with before an appeal can be allowed, and to section 150 of the same Act, which provides that such provisions of ch. 103 of the Consolidated Statutes of Canada as are not inconsistent with the Liciense Act shall apply to all prosecutions instituted thereunder. Also to C. S. C., cap. 103, secs. 65, 66.

RAMSAY, A. J.: This case comes before this court, exercising the jurisdiction of a court of General Sessions, on an appeal from a conviction by two Justices under the license Act of this province. A preliminary objection was taken to the reception and hearing of the petition, on the ground that the condition of the recognizance endorsed on the bond was not signed. No authority for this pretension of respondent has has been cited, and I cannot see any reason why the condition should be signed; it is sufficiently identified in the bond. The conviction is under sec. 4, 34 Vict., cap. 2, of the Statutes of Quebec. The complaint is that appellant did unlawfully keep and suffer to be kept and had in his possession, at the inn occupied by him, being a place of common resort, for sale by retail, certain spirituous liquors, without having a license. The grounds of the appeal are substantially that the conviction is not supported by the evidence, and that the Act, in so far as it prescribes any criminal procedure, is beyond the powers of the Legislature of the Province of Quebec. With regard to the second of these questions, I have no doubt that it is competent for this court, or indeed for any court in this province, incidentally to determine whether any Act passed by the Legislature of the province be an act in excess of its powers. This is a necessary incident of the partition of the Legislative power under the British North America Act, without reserving to any special Court the jurisdiction to decide as to the constitutionality of any of the Legislatures. The establishment of a general court of appeal for Canada, under the power given to Parliament by section 101 of the British North America Act, will not relieve the other courts of the duty of deciding as to the constitutionality of Statutes; but, if an appeal lies to a general court from every judgment declaring an Act to be unconstitutional, it will have the effect

of making the jurisprudence certain and uniform on these important questions. In the meantine it will be most inconvenient if the powers of the Legislature are to be questioned in cases like the present to be decided by one Judge, or on the return of writs of habeas corpus, and even by a simple Justice of the Peace. Such decisions will have little or no general authority, so that we may very fairly anticipate to see the most conflicting jurisprudence arising in the different provinces, and perhaps in the same province. But with this inconvenience I have nothing to do, further than to point it out as illustrated by the case before me. The argument of the appellant is, that by the British North America Act the powers of the Dominion Parliament are enumerated, and also those of the local legislatures. That the powers of the former are "the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters." That among the powers of the local legislature is the imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in sec. 92 of the British North America Act. Appellant at once admits that the Local Legislature had the power to attach a fine, penalty or imprisoment to the sale or keeping of spirituous liquors without a license, but that having done that, a crime was created, an i that all the procedure connected, with the inflction of punishinent for this crime must necessarily be fixed by Parliament, and could not be fixed by the Legislature of the province. In support of this pretension appellant maintains that every infraction of a public law to which any penalty is attached is a crime. This question natully suggests the preliminary investigation as to whether any appeal lies from a conviction under the Quebec license Act. On Tuesday last I intimated my doubts to counsel, and my attention was directed to secs. 150 and 195 of the License Act. It may be presumed from sec. 195, that the provincial legislature assumed that there was an appeal, but it seems to me to be going too far to say that the Legislature took it for granted that the appeal was that prescribed by the Act of parliament, 32 and 33 Vict., cap. 31, sec. 65. All that sec. 195 says as regards appeals is, that the delay for giving notice of appeal shall be forty-eight hours. Under cap. 99, C. S. C. the da'ay is three days. This is a step towards assimilating the statute law of the province to that of the Dominion in this respect, it is, therefore, the reverse of admission that parliament has the power to prescribe rules for conducting prosecutions under Provincial legislation. But, whatever may have been the prevailing impression with

regard to the matter, we must look to the Dominion Act as our guide. Whatever may be the definition of a crime, I would remind those who lean too much upon definitions, of their danger; it will not be denied that, in one sense of the word, the act of which appellant is accused is a crime; but it is equally plain that it is not a crime in the sense of subsection 27, sec. 91 of the British North America Act. Now is the signification attached to the word "criminal" is restricted, when referring to law in this sub-section, why should it be used in a different sense when applied to procedure? It cannot be presumed that in one short paragraph, particularly a paragraph of an enumeration of rowers, the legislature should have intended to apply two different meanings to the same word, especialy when by doing so they would be transferring the legislation with regard to a purely local matter to parliament. The rule is all the other way. Sub-section 16 of section 92 reserves to the local legislature generally the right to make laws affecting all matters of a merely local or private nature in the province. What can be more local than the procedure to give force to a local law? If this view be correct, it is not a question of clashing, and the provision of sect. 91, giving superior authority to the enumeration of the powers of parliament, does not apply. The powers are perfectly distinct. Parliament makes the laws of procedure effecting the criminal law which it enacts, each of the legislatures nake the laws of procedure effecting the penal laws which they enact respectively. I am, therefore, of opinion that the appeal does not lie under the Dominion Act 32 and 33 Vict., cap. 31, sec. 65. Is there any other Act which gives this appeal? This brings us to consider sect. 150 of the License Act, which extends cap. 103 C. S. C. to the prosecutions under the License Act, in so far as the same have not been repealed by the parliament of Canada, or are not repugnant to the license Act. It is not very easy to conceive why any allusion is made to the repeal of cap. 103 C. S. C. by parliament, but it is of no importance in considering the present case, for the Canada Criminal Repeal Act (32 and 33 Vict, cap. 36,) does not extend to matters relating solely to subjects, as to which the provincial legislatures have under the British North America Act, 1867, exclusive powers of legislation, or to any enactment of any such Legislatures for enforcing by fine, penalty or imprisonment, any law in relation to any such subject as last aforesaid, or to any municipal by-law relating to any offence within the scope of the powers of the municipality." The result, therefore, is that cap. 103 C. S. C. is in force, so far as it is applicable to local legislation. There can be very little doubt that it was supposed that this Act gave

an appeal from summary convictions in certain cases, that section 150 of the license Act extented it to license cases, and that sect. 195 modified it in some respects. But when we come to examine the matter closely, we find that there has been a misapprehension as to the disposition of cap. 103 C. S. C., and to have given an appeal from conviction under the license Act, it would have been necessary to include cap. 99 C. S. C., as well as cap. 103 in sect. 150 of the license Act. This error arises from a curious dislocation of the subjects of appeal, and an alteration of the terms used in the 4 and 5 Vict., cap. 25, sect. 65. That Act provided an appeal, under certain conditions, " upon any summary conviction." Other legislation with regard to these appeals took place up to the time of the consolidation of the statutes. Then the clause giving the right of appeal was altered so as to apply only to summary convictions," under any of the foregoing Criminal Acts," and thus amended the section was placed in the criminal procedure Act (cap. 99 C. S. C.) while the other dispositions relative to appeals were placed in the Summary Convictions Act (cap. 103 C. S. C.) which alone is extended to the Quebec License Act. We have, therefore, three sections telling us how such appeals shall be dealt with; but none giving the appeal. And although it appears to me that it is only an omission, the not mentioning cap. 99 C. S. C., I cannot go beyond the Statute. The right of appeal is a qualified right, which cannot arise by implication, or exist without express enactment, nor can it be extended by equitable construction. Dickinson's Guide to the Quarter Sessions by Talfourd, pp. 614 and 898. I am therefore, under the necessity of declaring that this Court has no jurisdiction in this case, and therefore that the appeal must be dismissed, and the record be remitted to the Court below. Having no jurisdiction at all in the matter, I cannot award costs. Appeal dismissed. 16 J., p. 169, and 4 R. L., p. 59.

G. H. BORLASE, for appellant.

J. S. SANBORN, Q. C., for respondent.