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J
I SUPREME OOURT ' ‘ IN MOTOR L
THE cnsnsorrrsrovtu ouannum i
JUDGMENT IOENSE GAGE
GIVEN REGENTLY AT OTTAWA
In the Supreme Court of Canada iJudgment was recently given in the case of the Provincial Secre- tary u! the Province of Prince Ed- ward Island (appellant) and Mich- ael Egan (respondent) and the At- ltorney General of Prince Edward Island (intcrvenant) in nectlon with the cancellation of a motor vehicle license. Judgment was Riven reversing the decision of the ‘PEI. Supreme Court en bane and ‘setting aside the judgment of the ,Judge of the County Court of Queen's County. Following l; the text of the Judgment given at Ottawa by Mr. Justice Rinfret, which was concurred in by the Chief Justice and Justices Hodson and Taschereau:
Rinfret, J.,
On November 30th, 1939. the Mpondcnt was convicted by the SUWNHITY Magistrate for Queen's County, in the Province of Prince Edward Island, for that he "m- lawfully did operate a motor vehicle on the Public highway whilst intoxicated, contrary to section zes, subsection 4. psi-mach (c) of the Criminal Code of Canada".
As a result of that conviction, in virtue of section as (l) o; The Highway ‘Iraffic Act of Prince Ed- ward Island, 1936, the respondent's lawfully did operate a motor vehicle Otherwise valid until February 28th, 1940, was automatically cancelled for a period of twelve months
The relevant part of sevtion a4 reads s; follows;
“84 (l). The license of a person‘ who is convicted of driving a motor Vehicle uiiiie under the influence of intoxicating liquor, or drugs, shall forthwith upon and automa- tically with such conviction be sus- pended for a period
(s) of twelve months for the first offence; (c) The Pmvinchsl Secretary shall not issue a license to any person during the period for which his license has been canczll. ed, or suspended under this sec- tlon."
0n May 28th, 1940. the respon- dent applied for an operator's license. The application was in the statutory form and contained time following questions and answers, amongst others:-
"Has your license ever been cancelled for any cause: and if so in what year?
A. On November 20th, 1939.
Q. And for what cause?
A. For conviction under Criminal Code for driving motor vehicle while intoxicated."
The Acting Deputy Provincial 5e- cretary. In notifying the respondent that his application was refused. wrote to him: “the Provincial Se- retm-y has no alternative bvr- to refuse the same, pursuant to para- graph (c) of sub-section 84 (1) of the said Highway Traffic Act, ow- . ing to the fact that on the 20th ‘ day of November, A.D. 1939, you
were convicted before George J. Tweedy, Esq, K. C., Stipendlary Magistrate for Queen's County, on a charge of operating a, motor vehicle on the 19th day of Novem- ber, 1939, while intoxicated, and the period of cancellation fixed by the said Section has not yet expired."
From this refusal. the respOndent appealed to the Judge of the county Court of Queens County.
His appeal professed to be as- serted under Sec. 8 (7) of the Highway Traffic Act, which reads as follows:
"8 (7). If any person is aggrieved by the refusal of the Department
pondcnt. ss well u for the Plo- vincial Sccrets-ry-andccunsel for the Provincial Secretary ‘having admitted the competency of the‘ (respondent) to operato and drive motor vchlcles"- “allowed the sp- Desl and ordered "that the Depart- ment of the Provincial Secretary lhlll. upon his (the respondent's) application in the ordinary way and ulpon payment of the usual fee l and without any certificate of com- . potency, issue to the (said) Michael | Egan a license to operate motor I vehicles in the province of Prince Edward Island."
mom this order, the sppleant sp- pealed to the Supreme Court of Prince Edward Island (sitting en bane), which dismissc’ such appeal. but which afterwards granted lave to appeal from such dismissal to the Supreme Court of Canada. Iiesvc to _ intervene was granted the Attorney‘ General of Prince Edward island.
The reasons for judgment of the Supreme Court of Prince Edward Island were delivered by Mr Jus- tlce Ai-senault. He stated that. under the provisions of the Crimi- nal Code. "the Stipendiary Magis- trate could have made a further order prohibiting the accused from driving a motor vehicle {or s, pr-iod not exceeding three years". He pointed, however, to the foot that the Magistrate had not done so, but that he certified to the Pro- vlncial Secretary that the present respondent had been convicted: that the conviction was made on November 20. 1939, and that, and the license not been cancelled in pursuance of Section 84 of The Highway Traffic Act of 1936, the respondent's operator's license would have expired on February 38. 1940; that the respondent took no further step to have his license res- tored but that six months after- wards, to wit, on 26th May 1940, he made application on the regular form for an operator’; license. The learned Judge then mentioned what I have already stated: that the Provincial Secretary refused to issue the license on account of the conviction, that upon appeal to the Judge of the County Court of Queen's County, the Department of the Provincial Secretary had been ordered to issue a license to the respondent as aforesaid, and that the Provincial Secretary now ap- pealed to the Supreme Court (en bane) chiefly on the following grounds:
1st,. That the County Court Judge had no jurisdiction to make the order;
2nd. That ricthwithstandlng the provisions of Sec. 28-5. subs. 7 of of the Code, the Provincial Secre- tary had a right to refuse to issue the said license.
The respondent, the judgement appealed from proceeds to say, con- tcnded._ that as the Criminal Code. by Section 285. subs. 7. "has now made due provisions for the pun- lshments of such an offence and has empowered the convicting magistrate to impose a further penalty by suspension of the cf- fending party's license, section 34 (1) of the Highway Traffic Act, 1936, has ipso faeto become ultrs vii-es."
Dealing lirst with the question of the jurisdiction of the Judge of the County Court to make the order complained of, the judgment slates the appellant's contention that Section B (7) of the Highway Act, under which the Judge of the County Court purported to act, did
to grant s. license or by the revo- cation cf a license under this Sec- tion, he may, after giving to the Department notice of his intention to do so, appeal to the County Court Judge o1 the County Court of the County in which any offices. where the business of the Depart- ment wiili respect to the granting of licenses is carried on, is situate and. on such appeal. the Judge may make such order as he thinks fit and any order so made shall be binding on the Department for the year in which it was made." The Judge of the County Court of Queen's County after having heard council on behalf of the present res-
not give him Jurisdiction io make the order. The judgement notes "that the appeal to the Judge of the County Court was not from the order of the Provincial Secre- tary cancelling the Respondent's license but from the refusal of the Provincial Secretary to issue an operator's license after the old license had expired by effluxion of time." ,
The decision is that the appeal was properly taken under Section 8 and subsections of the Highway Traffic Act- and that the Judge of the County Court had jurisdiction to make the order. It adds that:
"There are no plovlsions in the Act for any appeal from the Coun- ty Oourt Judge's decision. He is persona. designate under the Act
F
YEO
THEA TRE
“I ‘MARRIED A NAZI"
STARRIN G
JOAN BENNET FRANCIS LEDERER LLOYD NOLAN ANNA STEN
MONTAGUE, SAT. 9 SOURIS, MON 11
— GENTRAI. GUARDIAN
This column is reserved for news of local interest, but advertising of a newsy natu s may be inserted at 6 cents a word. strictly Pl!‘ able in advance.
CRASWELL for Photographs. GONFEDERATION LIFE INSUR. ANCE. 1.43789
DR. J. P. MILLAR. will be away from his office from August 6th to August 20th. L-lSQ-B-(i-Si.
A CONGRGEATIONAL MEET-
ING will be held in St. John's Pres-
gyterksn on Mon- . iuzus a . .
‘w Ir185-8-8-li.
TRYON BAPTIST CIRCUIT. — ‘The Rev. Emerson Huestis will preach at Westmoreiand ll A. M. Tryon 3 P. M. Albany 7.30 P. M.
L-liiil-B-B-ll
SUMMER SPECIALS-A lot of summer dresses and coats clearing at one third per cent discount. Kennedy's. 154 Great George Street.
L-l37-8-6—3i.
HOLMANS. Charlottetown have some excellent bargains in used SW5 from $15.00 urn. Terms if dc-
re .
HAMPTON UNITED CHARGE.- Servioes on Sunday, August 10th as follows: Hampton 11 ‘A. M. Appin Road 3 P. M. Victoria 730 P. M. There will also be a service at Bon- shaw at ll A. M. and at DcSable at 7.30. L-l76-8-8-li.
WINSIDE BASTORAL CHARGE. -Ser.v1ces Sunday. Auitiist 10th are as follows: Wmsloe North ll A, M. S. School l0 A. M Winslce South 3 P. M. S. School 2 P. M. Prinoetown Road 7.30 P. M. S. School 8.30 P. M. Rev. J. R. Skinner. Minister.
L-193-8-8-li
CAVENDISH CHARGE. — Wor- ship on Sunday. August 10th in North Rustico at 11 A. M. Rev. W A Patterson will preach at a Mas- onic service in Stanley Bridge at 7.30 P. M. Geo. ‘Tilley, Minister.
L-liii-B-B-li.
THE ENGAGEMENT is announc-
cd of Verne Bea daughter of Mrs
MafiNelll and the late R. J. Mac- a
CORNWALL PASTORAL CHARGE. - Services on Sunday. August 10th. Kingston: S. S. l0 A. M. New Dominion: S. S. 11 A. Cornwall: S. S. 11 A. M. Servlc 7.30 P. M. beaker. Rev E. M. Ali ken. B. A., B. D.. of Calgary. Alta. Rev. E. R. Woodslde. Minister.
L-1B3-8-B-li.
S;
NORTH RIVER BAPTIST CHURCHES. Sunday August 1011i. Services: Long Creek. Sunday, School l0 A. M. Church Service 11‘ A. M. Clyde River Sunday School 2. P. M. Service 3 P M. Kingston. oer", vice 7.30 P. M. Fair-view. Sunday A, M. A cordial welcome
shin with us.
PRINCTOWN UNITED CHURCH,‘ MALPEQUE, Sunday. August 10th.; Rev. C. J. Crowdls. Minister. Mrs. Chester Simpson. organist and choir; leader. ll A. M. Rev. J. M Lairdsof
Thom .
hi; brother Mr. James o Montreal will unveil a tablet to the memory of their father the late Rev. R0 the Prince-
to 1B
from Charlottetown will pr so. 7 P. M. Rev. C. J. Crowdis. Subject, The Heart oi! a PcOI-llc 1S their Hope "Ihey explore the depths as thev sing. The above singers will
and as such his order i; final and not appealable. sec. 8 (7) seems (so it is stated) to make this clear when it says-‘The Judge may make
SUMMER SPECIALS
-_-__
Complete Line Innoxa Toiletries At Special Discounts
Candy Specials Moirs, Ganong's Hunt's. English . Toffee.
Complete Line l 0f Tobacco And Pipes For The Smokers l
REDDIN BROS.
l PHONE so ‘ ass. beneath-l. n. Smallman
' ml
such order as he thinks fit and, any order so made shall be bind- | ing in the Department for the year in which it was madeh"
It was accordingly adjudged that the appeal should be dismissed with costs.
But although, in view of tho s.- bove decision, it was not necessary, to consider "the question of the ul- tra vires of Sec. 84 (l) of the High- way Traffic Act", it was thought advisable to deal with it and to say "that since the Criminal Code has invaded the field by enacting Sec. 385. s. sec. ‘l amended by 3 George VI (1039) Cap. 30, Sec. 0, it follows that the provisions of the Highway Traffic Act ssto can- cellation ol s license on g corms. tion for driving a motor veliiclo whilst intoxicated, has become ul. tra vires." And R. vs. Gallant, 51 C.C.C. p. 179. is referred to.
It is from the shove judgment that the Provincial Secretary of the Province of Prince Edward Is- land now appeals, with the inter- vention of the Attorney General of the same province, by leave of the Supreme Court (en bone.) The At- j tomey General of Canada and the I Attorney General for Ontario were granted leave to appear before this Court and to Qrgue for or against the judgment appealed from. on_ the point of the constitutionality of ; the relevant sections of the Crirn- I lnsl Code and of the Highway’ 'I‘raffic Act of Prince Edward fs-A land. -
(To be continued.)
lst th male choir and render, $019.1 niimbers. L-162-B-8-2l.
Proving that cotton hose col be lamoroos, what with silk ra- tioning upon us for national de-
L-1032-7-25-B-l4l _-'
"AUGUST 8, 1941
SUMMER DRESSES
Only a Limited Quantity left
oorrr oruiv Choose Yours New
Dresses that Regularly 50H al:
$2.95 ¢!--~=-= $1.91
$3.95 “ $2.75. $5.95 " $5.97‘
$195 $5.30
MILLINERY SPECIAL
Clearance of all Summer Hats in Straws and k Pastel Fells, Clearing Prices $I.OO 6' $l.19
PROWSE BROS., LTD.
0711411111111
INVESTIGATING PEAT MOSS IIERE—'I‘lie possibilities of peat moss, recently dhcovered nt East Bidefcrd, are being inyestigated at present. and the D. J_ Ctnnell Co.. mining brokers of Montreal, have lately taken over certain options in that area. 1t is reported that there is quite a growth of it in that section and in places the bed goes to a depth of 28 fect. The moss is largely used for poultry litter and
i}? va ous
‘Ilie majority of it- fmm Sweden. Norway and Gemnany although before the war. Now that this is halted. United States is looking for a substitute.
WORK ON
— e
TINUES Th “E'1¥”“i°°"' seal coat to Th? am) M“: ‘ Summersidc paved highway which was commenced several
aces o or use. nea ng e o . was imported about l6 mile; have been bed weather someone! retarded the project. The protective coat is sispposed to be slppliedto the high/way every five years. 0th highways in the province will receive seal cost and it planned to aigplly about 40 miles of it. altogther t season.
Use MlnnrrPs for sprains.
Charlottetown-
WWBBO.
lNVASIoN
' BRITISH WARM UP ATTACKING FORCE o AS NAZIS MEET TROUBLE IN NORWAY
the force of the German drlvc - against the Soviet.
Britain's censor- ship passes re- ports stating that
fence, are the cotton-clad un- crpins of lath For! ol Ills
RUSSIA calls on fsntry “will Britain to invadi- (ABOVE) storm the European seacosst rook‘! w continent and capture an ‘cli- draw off some of emy" sitlon and
(as: w) =11-
she has troops all
set for the ln- Ireland another vivslon. coincident picture (U? ‘
with the reports, made in Sw- these pictures Pf- land showed N01’- rlve in America, weflnn Klnl Hui lending credence Iron. left l". u. m» sum ll o Pflwllfh blow will soon . ouv. which h, . fall. probably In a 3
rebellious Nor- "m" 7 w”, commander.
British light in-
vsnce on s beach after first blnet- e .' d"
while
than exercises
were on in North