1890.

Judgment.

TAYLOR, C.J.

TAYLOR, C.J.-This is a rule nisi to quash a conviction under The Liquor License Act, 1889, by which the defendant was convicted of selling liquor without a license and fined $200 and costs.

Several preliminary objections were raised on behalf of the magistrates.

One of these, that to the recognizance, or that there is properly no recognizance, seems to me to have been disposed of by my brother Dubuc, on the application to him to set aside his allowance of it. Another objection is, that the defendant got on the 15th of July last, a rule nisi to quash this conviction, which was discharged on the 14th of October, and the learned judge had no power to discharge that rule without prejudice to the granting of another, the rule now in question. For me to entertain this objection. would, I think, be to sit in appeal from the order of my brother Killam. Besides, Reg. v. Petrie, 1 N. W. T. R. 3, and The King v. Abergele, 5 A. & E. 795, are authorities for the order he made. See also Reg. v. Richardson, 13 P. R. 303, where the court not being favorably impressed by what was urged as the merits of the application, it was held that the indulgence of the court ought not to be extended in favor of a fresh application, but the power of the court to permit a second application in a proper case, does not seem to have been questioned.

It was further objected, that the proceedings are not properly before the court, that they are wrongfully on the files of the court. For this section 93 of The Summary Convictions Act is relied on, which says, "If a motion or rule to quash a conviction, order or other proceeding, is refused or discharged, it shall not be necessary to issue a writ of procedendo, but the order of the court refusing or discharging the application shall be a sufficient authority for the registrar or other officer of the court, forthwith to return the conviction, &c., to the court, or justice from which or whom they were removed, and for proceedings to be taken thereon for the enforcement thereof, as if a procedendo had issued, which shall forthwith be done." Here the former

TAYLOR, C. J.

rule was discharged on the 14th of October, and on the 1890. 16th October a præcipe was filed with the prothonotary Judgment requiring him forthwith to return the proceedings to the. County Court of Carman. That he has not done so makes no difference, he ought to have done so, and the proceedings though still retained by him are now improperly on the files of the court. It seems to me that what the statute means is, that the actual issue of a writ of procedendo shall no longer be necessary, the officer is to return the proceedings, as if a procedendo had issued," but that is far from saying that the officer is so to act, where, as here, a judge decided that it should not issue.

Another objection arose upon the fact that the defendant before applying for a writ of certiorari and a rule to quash the conviction, had appealed to the County Court under sections 126 & 127 of The Liquor License Act. That he did so, appears from the proceedings returned under the certiorari. The recognizance for such an appeal was entered into as required by section 126, sub-section (a); the papers in the case were transmitted under sub-section (b); and the judge granted a summons under section 127, sub-section 1. This was never served, but in place of it the defendant served a notice of abandoning the appeal. By section 84 of The Summary Convictions Act, R. S. C. c. 178, “No writ of certiorari shall be allowed to remove any conviction or order had or made before any justice of the peace, if the defendant has appealed from such conviction or order to any court to which an appeal from such conviction or order is authorized by law," but it seems still open to the defendant to maintain the present proceedings upon any ground which impeaches the jurisdiction of the magistrates. To this ground however, he must be strictly confined, so the first ground mentioned in the rule seems to be the only one open for argument. That ground is, That the said justices Andrew Graham and Andrew Fournier had no jurisdiction to hear and determine the matter of the said prosecution, information and complaint and to make the said conviction because such prosecution was not brought before two justices of the

1890. peace as required by the statute in that behalf, but the said Judgment prosecution was brought before one justice of the peace only, to wit, before the said Andrew Graham, as appears TAYLOR, C.J. from the said information and complaint.

From the information produced, it appears that it was laid before Graham only. The summons is signed by him only, and states the complaint to have been made "before the undersigned one of Her Majesty's justices of the peace," &c. No question of any waiver by attending on the summons arises, as the objection now taken was raised at the commencement of the proceedings before the magistrates.

The sections of the Liquor License Act which affect the question now being considered, are almost identical in language with certain sections of The Canada Temperance Act, R. S. C., c. 106. By section 103 of that Act, prosecutions may be brought in Ontario before any stipendiary magistrate, or before any two other justices of the peace, and in New Brunswick, before any police stipendiary or sitting magistrate or commissioner of a parish court, or before any two other justices of the peace. By section 106 of The Liquor License Act, such prosecution may be brought before any police magistrate or before any two justices of the peace. By section 105 of The Canada Temperance Act, "If such prosecution is brought before any two other justices of the peace, the summons shall be signed by one of them; and no other justice shall sit or take part therein, unless by reason of their absence, or the absence of one of them, nor yet in the latter case, unless with the assent of the other of them.” Section 108 of The Liquor License Act differs from this only in that, the expression, “brought before any two other justices," is, "brought before two justices," and "no other justice shall sit," is, "no other justice than one of them shall sit." Section 107 of The Canada Temperance Act provides that, Every offence against the second part of the Act may be prosecuted in the manner directed by the Act now known as The Summary Convictions Act," so far as no provision is hereby made for any matter or thing

TAYLOR, C.J.

required to be done with respect to such prosecution; and 1890. all provisions contained in the said Act shall be applicable Judgment. to such prosecution in the same manner as if TAYLO they were incorporated in this Act." Section 6 of The Summary Convictions Act is, " Any one justice may receive the information or complaint, and grant a summons or warrant thereon, and issue his summons or warrant to compel the attendance of any witnesses for either party, and do all other acts and matters necessary, preliminary to the hearing, even if by the statute in that behalf it is provided that the information or complaint shall be heard and determined by two or more justices." It has been held in Ontario, that this section 6 does not apply to prosecutions under The Canada Temperance Act. In Reg v. Klemp, 10 O. R. 143, the first case in which the question seems to have been raised, Sir Adam Wilson, it is true, held that "the taking of the information and the issuing of the summons by one of the two justices who heard the case and convicted the defendant, were proceedings rightly taken by the one justice alone." But, in Reg. v. Ramsay, 11 O. R. 210, Galt, C.J., held, "that it is imperative that an information under the Act must be laid before two justices of the peace," and this was followed by O'Connor, J., in Reg. v. Johnson, 13 O. R. 1. See also Reg. v. Collins, and Reg. v. Goulais, 14 O. R. 613, and Reg. v. Durnion, 14 O. R. 673, in which Sir Adam Wilson acquiesces in the view taken by C.J. Galt.

So, in New Brunswick, it was held by Duff, J., in Reg. v. Burtt, 22 N. B. 51, that an information made before one justice was clearly insufficient, and this was afterwards held by the Full Court in Ex parte Manzer, 23 N. B. 315.

These cases are relied on by the defendant, but for the magistrates it is argued, that they are all decisions on the strict wording of The Canada Temperance Act, and are not applicable to a case under The Liquor License Act of this Province.

It is urged that The Canada Temperance Act gives no forms of informations or complaints except of an information to obtain a search warrant under section 108, and by

TAYLOR, C. J.

1890. that section such an information may be before one of the Judgment. justices before whom a prosecution is brought. Section 112 of The Liquor License Act says, informations may be in the forms in schedules L. and M. and section 114 says, "the forms set forth in the schedules to this Act, or any forms to the like effect, shall be sufficient in the cases thereby respectively provided for." The forms of information in each of the schedules L. and M. is of an information purporting to be sworn "before me, C. D., police magistrate," &c., and then there is put, " (or, one of Her Majesty's justices of the peace, &c.)" This is relied upon by the magistrates as supporting their contention, and no doubt it is favorable to it. But, if the Act, as worded, does require the information to be before' two justices, then, however much the schedules may mislead magistrates, and in that case they are misleading, the schedules must give way, they cannot control the Act. Where there is a discrepancy the Act must prevail over the schedules, Maxwell on Stat, 189, and cases there cited.

It is, by section 121 of The Liquor License Act, that the provisions of The Summary Convictions Act are introduced. It says, that all the provisions of that Act shall apply "so far as the same are consistent with this Act." The wording is somewhat different from section 107 of The Canada Temperance Act, under which the New Brunswick court held in Ex parte Manzer, that section 85 of 32 & 33 Vic. c. 31, D. 1869, now section 6 of The Summary Convictions Act, did not apply to prosecutions under section 105 of the former Act. But, is there, after all, any practical difference in the wording. The Canada Temperance Act says, The Summary Convictions Act shall apply" so far as no provision is made" by the former Act, and the New Brunswick court held, that section 105 of The Canada Temperance Act makes provision for the bringing of prosecutions under it, so the section of The Summary Convictions Act had no application. But if it made provision for prosecutions so that The Summary Convictions Act did not apply, it must be that the provision so made was inconsistent with the