2ND EDIT. REVISED STATUTES 1906 REMARKS on summary conviction which has been affirmed, or affirmed and amended, in appeal, shall be quashed for want of form, or be removed by certiorari into any Superior Court, and no warrant or commitment shall be held void by reason of any defect therein, provided it is therein alleged that the defendant has been convicted, and there is a good and valid conviction to sustain the Altered, as here set forth. same. Sec. 887. Sec. 1122. Certiorari not to lie when appeal is taken. CERTIORARI. Unchanged. The writ of certiorari, which is a writ issuing out of a Superior Court for the purpose of bringing up before it the proceedings of such inferior courts and officers as exercise judicial functions,— does not lie to such as exercise merely ministerial functions, nor to bodies exercising legislative functions, such as town councils passing resolutions which are illegal or beyond their powers. (38) Express words taking away the right of certiorari are inapplicable not only to cases where the convicting justice has not jurisdiction over the subject matter of the conviction, or where he exceeds his jurisdiction, or where the tribunal has been illegally constituted or the conviction has been obtained by fraud; (39) but they are also inapplicable where there has been improper conduct on the part of the magistrate, or the fundamental principle, entitling a party to a fair trial, has been overlooked, and, in such a case, a certiorari will be granted. (40) In such exceptional cases, as where a gross perversion of justice has occurred through the misconduct of the magistrate, the court will grant a certiorari, although another mode of reviewing the conviction is provided by statute, and although there is a provision that no conviction shall lie when an appeal is taken. Thus, where an appeal was taken from a summary conviction, but lapsed, because of the failure of the magistrate to return the conviction, a superior court afterwards issued a certiorari and quashed the convic (38) R. v. Waterman's Company, [1897], 1 Q. B., 659; R. v. Sharman, [1898], 1 Q. B., 578; R. v. Bowman, [1898], 1 Q. B., 663; R. v. Gotham, [1898], 1 Q. B., 802; R. v. Manchester, J. J., [1899], 1 Q. B., 571; In re New Glasgow, (Town Council), 1 Can. Cr. Cas.. 22. (39) R. v. St. Pierre, 5 Can. Cr. Cas., 365; R. v. Horning, 8 Can. Cr. Cas., 268. And see cases cited at page 941 of the Author's second edition. (40) Re Sing Kee, 5 Can. Cr. Cas., 86. 2ND EDIT. REVISED STATUTES 1906 REMARKS tion, notwithstanding the abortive appeal, and notwithstanding the provision contained in the above section, 1122, upon the grounds that the magistrate had deprived the accused of a reasonable opportunity of making their defence and had acted collusively with the prosecutor, and that the defendants had been thwarted in the prosecution of their appeal, without any fault on their part. (41) The making up of costs is a ministerial act, and does not go to the jurisdiction, so that, where the magistrate, on a summary conviction, allows excessive costs in respect of mileage to the constable for serving subpoenas upon witnesses, it is not a ground for quashing the conviction. (42) An improper reception of evidence, not allowing full cross-examination of a witness for the prosecution, and the improper refusal of an adjournment do not go to the jurisdiction. (43) But it has been held that a refusal to allow a defendant to give evidence is a matter going to the jurisdiction. (44). By section 5 of the Imperial Act, 13 Geo. II, c. 18,-which has been held to be in force in Ontario, (45), and in British Columbia, (46), and which, no doubt, is in force, also, in other provinces, though not, as it seems, in New Brunswick, (47), nor in Nova Scotia, (48), it is provided that no writ of certiorari shall be granted to remove any conviction, judgment, order or other proceedings had or made by or before any justice or justices of the peace of any county, city, town-corporate, etc., or the respective general or quarter sessions thereof, unless applied for within six calendar months next after such conviction, etc., and unless it be duly proved upon oath that the party suing for the same has given six days' written notice thereof to such justice or justices, so that he or they or the parties therein concerned may show cause against the issuing or granting of such certiorari. It has, however, been held, in England, that the 13 Geo. II, c. 18, sec. 5, while in force, there, (it having been some time ago repealed), applied only to convictions, etc., of justices of the peace, and that where an application for a certiorari was not made under that Act, the party applying was not limited to six months, (41) Er p. Cowan et al., 9 Can. Cr. Cas., 454. And see R. v. Alford, 10 Can. Cr. Cas., 61. (42) R. v. Rayworth, 2 Can. Cr. Cas., 230. (43) R. v. McDonald, 26 N. S. R., 94. (44) Er p. Legere, 27 N. B. R., 292. (45) R. v. Peterman, 23 U. C., Q. B., 516; R. v. Munro, 24 U. C., Q. B., 44. (46) Re Plunkett, 1 Can. Cr. Cas., 365. (47) Ex p. Kyle, 32 N. B. R., 212. (48) R. v. Porter, 20 N. S. R., 352. 2ND EDIT. REVISED STATUTES 1906 REMARKS but might apply at any more lengthened period as the Court, under the circumstances, might think reasonable. (49). It has been held that the giving of the six days' notice (now provided for, in England, by No. 39 of the Crown Office Rules, 1886), is a condition precedent to an application for a certiorari, that the court has no jurisdiction to grant it, unless the notice has been given and that the service of a rule nisi for a certiorari,— though made returnable six days or more after service thereof,— is not a good substitute for the notice of application, and, therefore, not a sufficient compliance with the statute. (50). It has also been held, however, that the objection of want of the six days' notice may be waived. (51) For Form of Notice of Application for certiorari, see p. 340, post. An application for a certiorari must be supported by an affidavit showing the grounds upon which it is sought; (52) and a copy of the proceedings sought to be removed should be produced with the application and be verified by affidavit, or, if a copy of the proceedings cannot be obtained, it should be shown what the proceedings were, and what efforts have been made to procure a copy of them and why a copy cannot be obtained. Where, in a New Brunswick case, a copy of the proceedings was not attached to and exhibited with the affidavits upon which the rule nisi for certiorari was obtained, and where it was not shown what the proceedings were, nor that a copy of the proceedings sought to be removed could not be obtained, the court discharged the rule. (53). For Forms of Motion for certiorari and of Affidavits in support thereof, see pp. 340-341, post. The rule for the issuing of the certiorari must specify the omission or mistake or other defect objected to in the conviction, order or judgment sought to be removed. (54). The question of the validity of the conviction or commitment is sometimes argued on the application for certiorari: and, if the proceedings are then decided to be valid, a certiorari will be refused. (55). For Form of Order for certiorari, see p. 341, post. A writ of certiorari is properly addressed to the officer having (49) R. v. Sheffield Corporation, 40 L. J. Q. B., 247. (50) R. v. McAllen, 45 U. C., Q. B., 402, 406; R. v. Glamorgan, J. J., 2 T. R., 279; Re Plunkett, supra; Ex p. Roberts, 50 J. P., 567. (51) R. v. Whittaker, 24 O. R., 437. (52) R. v. Clace, 4 Burr., 2458. (53) Ex p. Emmerson, 1 Can. Cr. Cas., 156. (54) R. v. Beale, 1 Can. Cr. Cas., 235. (55) See R. v. Cunerty, 2 Can. Cr. Cas., 325. 2ND EDIT. REVISED STATUTES 1906 REMARKS the custody of the papers sought to be removed, and, therefore, if the conviction has been returned to the clerk of the peace, under section 757 of the Code, the writ of certiorari need only be addressed to the latter. (56). For Forms of Writ of certiorari, of recognizance upon application therefor, and of Return to certiorari, see pp. 976-998 of the Author's second edition. Where proceedings pending before an inferior court are,-after a finding against the accused, but before the date to which the case was adjourned for sentence,-removed by certiorari into a superior court, a warrant of commitment issued by the inferior court, in enforcement of the judgment and sentence pronounced by it, on the latter date, is invalid. (57). Preliminary objections to a writ of certiorari must be raised promptly and objections to matters of form in the certiorari proceedings, such as that the magistrate had not had six full days' notice of the application for the writ,-will not be entertained on the motion to quash the conviction, when, since the return, three months have elapsed, without a substantive motion being made to quash the writ; this delay being held to be a waiver of the right to take the objection. (58). The objection of want of notice or other objection to the proceedings may be raised by a substantive motion to supersede the writ of certiorari; but that course is not always essential, and the objection may be one that can be raised on the return of the motion to quash the conviction; although defects of form or of a trifling nature will not be allowed to be brought up on the motion to quash the conviction; and a substantive motion will be necessary so as to give an opportunity for ordering an amendment. if proper; but if the defect forming the ground of objection to the writ of certiorari is a fundamental one, it is not too late to bring it up on the motion to quash the conviction. (59). The same rule applies to an objection to the certiorari proceedings on the ground that the required security is defective or has not been properly given. (60). It has been held in Ontario, that, if a motion to quash an irregular recognizance in a certiorari proceeding is not brought on until the return of the motion to quash the conviction, the court (56) R. v. Frawley, 45 U. C., Q. B., 227-231. (57) R. v. Foster, 7 Can. Cr. Cas., 46. (58) R. v. Davidson, 6 Can. Cr. Cas., 117; R. v. Whittaker, 24 O. R., 437. (59) R. v. McAllen, supra. (60) R. v. Cluff, 44 U. C., Q. B., 565. And, see, In re Bishop Dyke, 20 N. S. R., 263, and R. v. Porter, Ib., 352. 2ND EDIT. REVISED STATUTES 1906 REMARKS may concurrently quash both the conviction and the recognizance, if both are found to defective. (61). In order to avoid a waiver of an objection,-for instance, of want of notice, the justice or the prosecutor should either make a substantive motion to supersede the certiorari, or cause notice to be served that he will take the objection on the return of the motion to quash the conviction. Should he not do this, he may, by acquiescence in the motion to quash, or by delay, or by allowing an adjournment to be ordered, without raising the objection, be held to have waived it. (62). Under the provisions of the Crown rules, Nova Scotia, 1889, a motion to rescind an order for certiorari must be made by way of appeal. (63). A second application for a writ of certiorari will not be entertained by the court, although the dismissal of the first application was upon a preliminary objection. (64). Where, in the course of certiorari proceedings, an order nisi to quash the conviction has been issued, but, before service of the same upon the informant prosecutor, the latter dies, the proceedings do not lapse and can be continued by serving the magistrates. (65). It has been held in the North-West Territories that costs of quashing a conviction by certiorari proceedings will not be awarded, except in cases of misconduct on the part of the informant or of the justice. (66) it In the Province of British Columbia, costs are allowed, being held there that the practice in certiorari proceedings of never awarding costs either in favor of or against the Crown is to be considered as no longer in force in that province. (67) But, in the Province of Ontario, it has been held that, in certiorari proceedings respecting a criminal charge under Dominion laws, the High Court has no jurisdiction to award costs against the prosecutor or the magistrate on quashing the conviction; although, as against an unsuccessful applicant for the writ, costs may be allowed either on account of the recognizance which he enters into to pay the costs, or of the inherent power of the court to give costs as a punishment for erroneously putting the jurisdiction of the Court in motion. (68) (61) R. v. Johnson, 8 Can. Cr. Cas.. 123. (62) R. v. Whittaker, supra. (63) R. v. Fraser, 22 N. S. R., 502. (64) R. v. Geiser, (No. 2), 7 Can. Cr. Cas., 172. See R. v. Bodmin, (Mayor of), [1892], 2 Q. B., 21, and R. v. Nichols, 21 N. S. R., 288. (65) R. v. Fitzgerald, 1 Can. Cr. Cas., 420. (66) R. v. Banks, 1 Can. Cr. Cas., 370. (67) R. v. Little, 2 Can. Cr. Cas.. 240. (68) R. v. Bennett, 5 Can. Cr. Cas., 456. |