T-1202-74
Gerald Joseph Johns (Plaintiff)
v.
Commissioner of Penitentiaries (Defendant)
Trial Division, Cattanach J.—Saskatoon, March
19; Ottawa, April 4, 1974.
Penitentiaries—Inmate seeking declaration of unlawful
confinement—Court doubting jurisdiction to grant declarato-
ry relief in place of habeas corpus—First warrant of commit
tal defective—Second warrant correct—Keeper of penitentia
ry advised of substitution—Whether magistrate must sign
warrant or whether clerk of court may sign—Action dis-
missed—Criminal Code, R.S.C. 1970, c. C-34, ss. 306(1Xb),
313(a), 421(a), 461, 500(5) and Form 18, 534(6)—Federal
Court Act, ss. 18(a), 28.
The plaintiff sought a declaration that he was being
unlawfully confined under defective warrants of committal
to penitentiary.
Held, the action is dismissed. The Court doubted its
jurisdiction to grant declaratory relief under the Federal
Court Act, section 28, in determination of a matter which
was also the proper subject-matter of an application for
habeas corpus. The latter was not designated by section 18
of the Act as within the exclusive original jurisdiction of the
Trial Division but it was within the inherent jurisdiction of
the common law courts. The first warrant revealed a fatal
defect in that it failed to recite the conviction of the offence
for which the plaintiff was sentenced. A further defect lay in
the statement that the plaintiff was sentenced for the
offence of breaking and entering, whereas the plaintiff,
having pleaded not guilty to that charge, pleaded guilty to
another offence, unlawful possession, and was sentenced
only for the latter offence, in accordance with Criminal
Code section 534(6). However, the second warrant, execu
ted in substitution for the first, recited the conviction and
sentence correctly, and, although there was no endorsement
on the second warrant advising the keeper of the penitentia
ry that it was in substitution for the first, it was sufficient
that the keeper was advised by other means.
For a separate offence, a consecutive term was imposed
by another court and the warrant of committal in respect of
it signed by the Clerk of the Court instead of the Magistrate
was in accordance with Criminal Code section 500(5).
Rex v. Lyons [1946] 2 W.W.R. 727, distinguished. Re
Bond [1936] 3 D.L.R. 769; Ex p. Cross (1857) 26
L.J.M.C. 201; Ex p. Smith (1858) 27 L.J.M.C. 186,
considered. In re Joe Go Get [1930] S.C.R. 45, applied.
ACTION.
COUNSEL:
Peter V. Abrametz for plaintiff.
D. F. Friesen for defendant.
SOLICITORS :
Eggum & Dynna, Prince Albert, Sask. for
plaintiff.
Deputy Attorney General of Canada for
defendant.
CATTANACH J.—The plaintiff by his state
ment of claim seeks a declaration that he is
being illegally and unlawfully confined to Prince
Albert Penitentiary and that the warrants by
which he is held there are defective.
The plaintiff, who is also known as Jerry
Johns, was tried on June 7, 1972 on a charge
that on or about February 13, 1972 he did
unlawfully break and enter the Yukon Territory
Game Branch office at Whitehorse, Yukon Ter
ritory and committed an indictable offence
therein contrary to section 306(1)(b) of the
Criminal Code.
The plaintiff pleaded not guilty of the offence
charged but guilty of another offence that is, to
possession of stolen property having a value in
excess of $50 contrary to section 313(a) of the
Criminal Code. The presiding magistrate, with
the concurrence of the prosecutor, exercised his
discretion and accepted the plaintiff's plea of
guilty to the other offence in accordance with
section 534(6) of the Criminal Code.
Obviously therefore the plaintiff was found
not guilty of the offence of breaking and enter
ing and was not convicted thereof but he was
convicted of the other offence of being in
possession of stolen property.
On June 7, 1972, following the conviction of
the plaintiff for that offence, the presiding
magistrate sentenced the plaintiff to imprison
ment for a term of two years to be served in a
penitentiary.
On that same day the magistrate signed a
warrant of commital upon conviction which is
Exhibit "A" to an Agreed Statement of Facts.
That warrant was completed upon a printed
form which is in accordance with Form 18 in a
Schedule to the Criminal Code, but the printed
word "convicted" was stricken out and replaced
by the word "sentenced".
The authorities are conclusive that the body
of the warrant of committal must recite the
essential fact that the accused was convicted.
That omission in the warrant of committal,
Exhibit "A", is fatal to the validity thereof.
Furthermore there is an inaccuracy in that
warrant in that it is stated that the plaintiff was
sentenced upon a charge of breaking and enter
ing contrary to section 306(1)(b) of the Criminal
Code. He was not. He was not convicted of that
offence but he was convicted of another
offence, that of being in possession of stolen
property, and he was sentenced to imprison
ment for a term of two years for that offence
for which he had been convicted.
However if objection can be taken success
fully to the validity of a warrant held by the
keeper of a prison as authority for detaining the
prisoner named therein, numerous decided
cases make it abundantly clear that an invalid
warrant may be replaced by a proper one. The
second warrant affords a complete answer to an
application for habeas corpus if that warrant
exists at the time of the return of the writ
although a valid warrant did not exist prior
thereto.
In the present instance a second warrant of
committal, Exhibit "B" to the Agreed Statement
of Facts, was executed to replace the first war
rant, Exhibit "A", which was invalid on its face.
The second warrant, Exhibit "B", correctly
states that the plaintiff herein was duly tried on
the appropriate date on a charge of breaking and
entering contrary to section 306(1)(b) of the
Code but that he was convicted of another
offence in accordance with section 534(6) of the
Code for which he was sentenced to imprison
ment for a term of two years.
This second warrant standing alone contains
correct information and is valid on its face.
The fault alleged by counsel for the plaintiff
with the second warrant is that it does not bear
an endorsement requiring the keeper of the
prison to substitute it for the first warrant.
As authority for this proposition counsel for
the plaintiff relies on Rex v. Lyons' in which
Harper J. said at page 728:
... if there is an error in a warrant of commitment a new
warrant of commitment may be substituted, but the jailer
should be advised by the endorsement on the new warrant
of commitment that it is in substitution for the first warrant.
Harper J. added at page 729:
If it is not shown that the second warrant is a substitution of
the original, the second warrant will be disregarded.
Mr. Justice Harper stated also on page 729 that,
... the substituted warrant must show on its face that it is in
place of the original warrant.
The facts in the Lyons case (supra) were that
the accused was convicted of stealing a camera
and other personal effects alleged to be of the
total value of under $25 and was committed to
the common jail for a period of one year and the
first warrant of committal was issued directing
the keeper of the jail to hold the accused in
custody for one year.
In so sentencing the accused the magistrate
was under the mistaken impression that the
value of the goods stolen was over $25 but on
being informed of his error he had the accused
brought before him when he explained his mis
understanding and advised the accused that the
sentence of one year was given in error. He
then sentenced the accused to a period of six
months from the same date as in the first sen
tence and issued a second warrant of committal
for six months. There was no endorsation on
this second warrant that it replaced the original.
Thus the jailer had in his possession two incon
sistent warrants, one for a period of six months
and one for a period of twelve months for the
same offence.
1 [1946] 2 W.W.R. 727.
I do not think it is absolutely essential that the
second warrant must bear an endorsement on its
face that it is in substitution of the first warrant,
although that is the commendable practice.
For example it was held by the Nova Scotia
Court of Appeal in Re Bond 2 that written
instructions to the sheriff, accompanying, but
not actually endorsed on, the substituted war
rant, are sufficient.
It was argued in Re Bond that the second
warrant should show on its face that it is in
substitution for the previous one.
Mr. Justice Doull said at page 782:
The Rule appears to be as set out in Paley on Convic-
tions:—"If a warrant of commitment is defective it cannot
be recalled, withdrawn or altered. It cannot be amended like
an information but if there is any error in it a fresh commit
ment bearing an indorsement requiring the governor of the
prison to substitute the same for the first warrant may be
lodged with the governor of the prison upon which the
prisoner may be detained:" Paley on Summary Convictions,
9th ed., p. 627; Ex p. Cross (1857), 26 L.J.M.C. 201.
He continued on page 782 to say:
Even without any indorsement or reference to the prior
warrant, the second warrant would be good if the facts
sufficiently appeared from the return; such was the case in
Ex p. Smith (1858), 27 L.J.M.C. 186, at p. 187.
From the foregoing I am of the view that the
fact must be made clear that the keeper of the
penitentiary has been made well aware by virtue
of which warrant he is authorized to hold a
person in his custody. If that fact is established
then the failure to endorse the second warrant
to the effect that it is in substitution for a first
one is not fatal to the validity of the second
warrant.
It is stated in the Agreed Statement of Facts
the plaintiff discovered that the original warrant
of committal, Exhibit "A", was defective.
It is also stated in the Agreed Statement of
Facts that the plaintiff was advised by the
prison officials in September 1972, approxi-
2 [1936] 3 D.L.R. 769.
mately three months after he began to serve the
sentence of imprisonment of two years imposed
upon him, that a second warrant of committal,
Exhibit "B", had been substituted for the first
warrant, Exhibit "A", and that he was being
held in custody by virtue of the substituted
warrant, Exhibit "B".
Therefore it is clear from those agreed facts
that the keeper of the penitentiary was under no
misapprehension as to which warrant the plain
tiff was being detained in custody.
Further I am mindful of the many admoni
tions uttered against extreme technicalities in
connection with the remedy of habeas corpus.
Rinfret J. as he then was, has said in In re Joe
Go Get' [at page 55]:
Courts should not permit the use of this great writ to free
criminals on mere technicalities. It is the spirit of our
Criminal Laws and more particularly of our law on summary
convictions that defects and informalities be corrected so as
"to prevent a denial of justice".
While the present matter is before me by way
of a statement of claim seeking declaratory
relief under section 18(a) of the Federal Court
Act that the plaintiff is being unlawfully
detained in custody, the substance of the relief
so sought is identical to that obtainable by way
of a writ of habeas corpus. Under section 18 the
writ of habeas corpus is excluded from the
exclusive original jurisdiction of the Trial
Division.
Elsewhere I have expressed doubt that I have
jurisdiction to determine a matter by way of
declaratory relief which is also the proper sub
ject matter of an application for a writ of
habeas corpus which is within the inherent
jurisdiction of the common law courts. I still
entertain that doubt but I do not purport to
decide that question.
The decisions respecting habeas corpus I con
sider as helpful and binding in the matter pres
ently before me.
3 [1930] S.C.R. 45.
Reverting to the statement of Rinfret C.J.,
which I have quoted above, that defects and
informalities should be corrected to prevent a
denial of justice, it must be borne in mind that
in a criminal matter there are two parties to
whom justice may be denied, one is Her Majes
ty the Queen and the other is the accused.
In the present matter the plaintiff has suf
fered no prejudice, nor is he in any danger of
suffering any prejudice as was the circumstance
of the accused in Rex v. Lyons (supra).
In that case there was a warrant of committal
for six months. There the accused was in danger
of being confined for twelve months under the
first warrant which was subsisting although he
had been sentenced to that term in error and the
proper term was only six months reflected in
the second warrant which was co-existent with
the first.
Here the plaintiff was committed to imprison
ment for two years under the first warrant
which was admittedly defective and he was
committed to the identical term under the
second warrant. Both warrants bear the same
date. It is the approved practice for the sub
stituted warrant to bear the same date as the
previous warrant (see Re Bond (supra)). There
fore the sentence, in both instances, runs from
the date of the warrants. Accordingly the plain
tiff was in no danger of serving a greater term
than that to which he had been lawfully
sentenced.
In my view the defects in the first warrant
were errors transcending mere technicalities.
The first warrant omitted to state that the plain
tiff had been convicted and the offence of
which he was convicted was improperly
described. That warrant was, therefore, void.
Both such errors were corrected in the second
warrant as is permissible and proper.
The failure to endorse on the second warrant
that it was in substitution of the first one,
because of the circumstances in this action, I
construe as a technicality and not an absolute
essential as in the Lyons case (supra) in view of
the fact that here the keeper of the penitentiary
had been apprised,. by means other than an
endorsement thereon, that the second warrant
was the effective one under authority of which
the plaintiff was being held as is evidenced by
the Agreed Statement of Facts and for the rea
sons I have expressed above.
On September 20, 1972 the plaintiff was tried
and convicted upon the charge that on or about
May 19, 1972 he did attempt to have sexual
intercourse with a female person not his wife
and under the age of 14 years contrary to sec
tion 421(a) of the Criminal Code. He was sen
tenced to imprisonment for a term of three
years consecutive to any other sentence then
being served by the plaintiff.
A warrant of committal upon conviction was
issued at Whitehorse, in the Yukon Territory,
on Form 18 as prescribed in the Schedule to the
Criminal Code and dated September 26, 1972.
This warrant is Exhibit "C" to the Agreed State
ment of Facts.
The objection taken to this warrant is that it is
signed by the Clerk of the Territorial Court
rather than by the magistrate.
Section 500(5) of the Criminal Code provides:
500....
(5) Where an accused other than a corporation is convict
ed, the judge or magistrate, as the case may be, shall issue
or cause to be issued a warrant of committal in Form 18,
and section 461 applies in respect of a warrant of committal
issued under this subsection.
The effective words in that subsection appli
cable to the circumstances herein are that the
magistrate shall issue "or cause to be issued a
warrant of committal".
The clerk of the court is an officer of the
court and as such is subject to the directions of
the presiding magistrate. It is, therefore, appar
ent that the magistrate caused the warrant to be
issued by an official under his direction. The
reference to section 461 in section 500(5) of the
Criminal Code has no bearing on the matter.
Further Form 18, which is part of the statute,
indicates that it shall be signed by the clerk of
the court, justice or magistrate.
For the reasons expressed above it follows
that the plaintiff is not entitled to any of the
relief sought in the statement of claim. In the
statement of defence no request is made for
costs on behalf of the defendant if successful.
Accordingly there shall be no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.