T-1124-77
In the matter of the application of Hon Kwing
Shum for a writ of prohibition directed to His
Honour Judge John L. McIntyre of the Provincial
Court of British Columbia, sitting as a magistrate
under the Fugitive Offenders Act
Trial Division, Cattanach J.—Vancouver, May 16
and June 2, 1977.
Jurisdiction — Application for prohibition — Fugitive
Offenders Act — "12 months' imprisonment with hard labour"
prerequisite to operation of Act — Wide definition of "hard
labour" in the Act — Hard labour abolished in Canada and
Hong Kong — Work required of prisoners in Hong Kong
Whether magistrate has jurisdiction to entertain matter
because offence not punishable by imprisonment for 1 year
with hard labour — Fugitive Offenders Act, R.S.C. 1970, c.
F-32, ss. 3, 12 — Criminal Code, R.S.C. 1970, c. C-34, s. 660.
Applicant seeks a writ of prohibition prohibiting a magis
trate, acting under the Fugitive Offenders Act, from commit
ting him to prison to await his return to Hong Kong to stand
trial. The Fugitive Offenders Act applies to persons who have
committed crimes punishable by imprisonment for twelve
months or more with hard labour in part of Her Majesty's
Realms or Territories. Although the punishment of hard labour
has been abolished in both Hong Kong and Canada, the
Fugitive Offenders Act has never been amended. The Hong
Kong authorities, therefore, argue that the Act includes a very
wide definition of hard labour and that the "useful work"
required of prisoners by the Hong Kong Prison Rules meets
that definition. The issue is whether there is or is not jurisdic
tion in the magistrate to entertain the matter because the
offence is not one punishable by imprisonment for twelve
months or more "with hard labour".
Held, the application is allowed. Simple imprisonment and
imprisonment with hard labour are different punishments.
Since Lord Parker had contrasted simple imprisonment with
imprisonment of a rigorous nature, it was argued that "rigorous
imprisonment" must be synonymous with "imprisonment with
hard labour". It does not follow that the Prison Rules, which
are purely administrative rules for the better administration of
the conduct of the institution and of life of inmates within a
prison, requiring that an inmate shall engage in useful employ
ment can be construed as punishment with hard labour or even
labour. It is not part and parcel of the punishment of imprison
ment but only arises as a necessary consequence of convicted
offenders being incarcerated. Although there is a right to seek a
section 28 review of the magistrate's decision, as persona
designata, that right to apply for review does not normally arise
except on the final decision of the inferior tribunal, but on that
event interlocutory and procedural decisions can be considered
to establish that the tribunal failed to observe the principles of
natural justice or otherwise acted beyond its jurisdiction. With
respect to the provincial court Judge who decided that he had
jurisdiction to hear the matter, a contrary conclusion must be
reached, and prohibition should be granted.
R. v. Morton-Stewart, London Times, 27 March, 1953, p.
6, referred to. R. v. Boyd (1896) noted in 18 C.C.C. at
167-168, referred to. R. v. Governor of Brixton Prison. Ex
parte Percival [1907] 1 K.B. 696, followed. R. v. Governor
of Brixton Prison. Ex parte Sadri [1962] 1 W.L.R. 1304,
agreed with. R. v. Dean (unreported decision of Vanek
P.C.J., Provincial Court in Judicial District of York, dated
May 17, 1974), disagreed with. Stafford v. St. Louis
(1957) 107 Law Journal 507, considered and distin
guished.
APPLICATION for prohibition.
COUNSEL:
H. A. D. Oliver and G. C. Deedman for
applicant.
M. M. de Weerdt, Q.C., for Government of
Hong Kong.
SOLICITORS:
Oliver, Waldock & Richardson, Vancouver,
for applicant.
Deputy Attorney General of Canada for Gov
ernment of Hong Kong.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: By originating notice of motion
the applicant seeks to prohibit a magistrate from
committing him to prison there to await his return
to stand trial in Her Majesty's Crown Colony of
Hong Kong for an offence there alleged to have
been committed contrary to section 10 of the
Prevention of Bribery Ordinance, 1970 of that
Crown Colony.
The Ordinance became law on May 14, 1971.
Section 10 thereof provides:
10. (1) Any person who, being or having been a Crown
servant—
(a) maintains a standard of living above that which is com
mensurate with his present or past official emoluments; or
(b) is in control of pecuniary resources or property dispro
portionate to his present or past official emoluments,
shall, unless he gives a satisfactory explanation to the court as
to how he was able to maintain such a standard of living or how
such pecuniary resources or property came under his control, be
guilty of an offence.
By virtue of section 12 of the Ordinance any
person guilty of an offence under section 10 shall
be liable on conviction on indictment "to a fine of
one hundred thousand dollars and to imprisonment
for seven years;" and on summary conviction, "to a
fine of fifty thousand dollars and to imprisonment
for three years" and shall also be ordered to pay to
such person or public body the amount or value of
any advantage received by him or such part there
of as the court may specify.
The magistrate against whom prohibition is
being sought is acting under section 12 of the
Fugitive Offenders Act, R.S.C. 1970, c. F-32,
which reads:
12. If the endorsed warrant for the apprehension of the
fugitive is duly authenticated, and such evidence is produced as,
subject to this Act, according to the law ordinarily adminis
tered by the magistrate, raises a strong or probable presump
tion that the fugitive committed the offence mentioned in the
warrant, and that the offence is one to which this Act applies,
the magistrate shall commit the fugitive to prison to await his
return, and shall forthwith send a certificate of the committal
and such report of the case, as he thinks fit, to the Governor
General.
The contention of applicant is that the offence is
not one to which the Fugitive Offenders Act
applies particularly in the light of section 3 thereof
which reads:
3. This Act applies to treason and to piracy, and to every
offence, whether called felony, misdemeanour, crime or by any
other name, that is, for the time being, punishable in the part of
Her Majesty's Realms and Territories in which it was commit
ted, either on indictment or information, by imprisonment with
hard labour for a term of twelve months or more, or by any
greater punishment; and, for the purposes of this section,
rigorous imprisonment, and any confinement in a prison com
bined with labour, by whatever name it is called, shall be
deemed to be imprisonment with hard labour.
By virtue of section 3 above, in order for the
magistrate to be vested with jurisdiction, the
offence must be one "punishable ... by imprison
ment with hard labour for a term of twelve months
or more, or by any greater punishment ...".
The offence with which the applicant is charged
is punishable by a substantial fine and for impris
onment for more than twelve months. However I
do not construe the language of section 3 as mean-
ing that the punishment being imprisonment for
seven or three years is covered by the words "or by
any greater punishment". The natural way to read
the section is that the words "or more" refer to a
sentence of more than twelve months accompanied
by hard labour.
Neither do I construe the fact that the court
may direct payment of the amount or value of any
advantage as punishment. It is, in my view, an
order for restitution or an order to ensure that an
offender shall not profit from the offence. Neither
do I think that the imposition of a fine, in addition
to imprisonment, amounts to greater punishment
within the meaning of section 3. While I did not
have evidence on the matter, I would assume that
the court, on conviction of an accused, has the
discretion of imposing the maximum fine provided
or a lesser fine without the imposition of imprison
ment or to impose a term of imprisonment without
a fine or to impose both a fine and imprisonment.
Put another way, the imposition of the fine of one
hundred thousand dollars and imprisonment for
seven years, if the matter was proceeded with on
indictment, or the imposition of a fine of fifty
thousand dollars and to imprisonment for three
years, if the matter were proceeded with on sum
mary conviction, is not mandatory. A person con
victed is liable to punishment in that manner but
because the offender is so liable to the maximum
punishment, it seems to me to follow there is a
discretion in the court to impose punishment lesser
than a combined maximum. Put still another way
because imprisonment may be combined with a
fine at the discretion of the court that does not, in
my opinion, constitute greater punishment than
imprisonment "with hard labour".
On the other hand, I would find it difficult to
believe that if imprisonment for life were provided
as the maximum penalty for the offence that that
punishment would not be "greater punishment"
than imprisonment for seven years with hard
labour as also would be capital punishment if
provided. Accordingly it is in this latter sense that
I construe the meaning to the words "or by any
greater punishment" as they appear in section 3.
In the United Kingdom the punishment of hard
labour accompanied by imprisonment was abol
ished in 1948. Hard labour was abolished in Hong
Kong years ago and prior to the alleged commis-
sion of the offence in 1971 with which the appli
cant is charged. More recently hard labour has
been abolished in Canada as it has in most of Her
Majesty's Realms but section 3 of the Fugitive
Offenders Act has not been amended as was the
similar legislation in the United Kingdom from
which section 3 derives but rather section 3 has
been continued in the precise language in which it
was originally cast.
The neat issue in the present application there
fore stands out in crystal clear relief and it is
simply whether there is no jurisdiction in the
magistrate to entertain the matter because the
offence is not one within section 3 in that it is not
punishable by imprisonment for more than twelve
months "with hard labour".
That this is so is the contention of counsel for
the applicant.
Counsel for the Crown Colony of Hong Kong,
on the other hand, relies on the Prison Rules
enacted under the Prisons Ordinance of the laws of
Hong Kong, and which rules became law on April
15, 1954 and remain in force, by which it is
provided that every prisoner under sentence of
imprisonment is required to engage in useful work
for not more than ten hours a day subject only to
excuse or certification by a medical officer. The
Rules also provide that the work requirements may
be reduced on certain days and on grounds of caste
or religion.
It is the contention of counsel that this require
ment that a prisoner sentenced to imprisonment
shall perform useful work during his confinement
falls within the deeming provision of section 3 that
portion of which I repeat for emphasis.
...,and, for the purposes of this section, rigorous imprison
ment, and any confinement in a prison combined with labour,
by whatever name it is called, shall be deemed to be imprison
ment with hard labour.
In order for the prescribed punishment for the
offence alleged to have been committed by the
applicant herein it must be found that "useful
work" within the meaning of those words in the
Prison Rules falls within the meaning of "labour"
where that word appears in the deeming provision,
and that does not necessarily follow from the
words as used in common parlance.
The Prison Rules were made under the au
thority of section 25(1)(h) of the Prisons Ordi
nance which reads:
25. (1) The Governor in Council may make rules providing
for—
(h) the classification, clothing, maintenance, employment,
discipline, instruction and correction of the prisoners.
The pertinent word in the Prisons Ordinance is
"employment" which is the state of being
employed and "to employ", in ordinary usage,
means to make use of time, that is to be occupied.
Section 38 of the Prison Rules made under that
authority of section 25(1)(h) of the Prisons Ordi
nance is ranged under the heading "(f) Work" and
reads in part,
38. Every prisoner shall be required to engage in useful work
for not more than ten hours a day, of which so far as practi
cable at least eight hours shall be spent in associated or other
work outside the cells:
The word "work" means an action requiring
effort and to engage in some systematic occupa
tion. There is the common element between
"employment" and "work" in the occupation of
time.
The word "labour" involves bodily toil which
may be paraphrased as "hard work".
On the ordinary meaning of words it cannot be
said that "labour" is completely synonymous with
"work" but rather the words "useful work" as used
in section 38 of the Prison Rules are more compa
rable with "employment" and the adjective "use-
ful" signifies something more than work for the
sake of labour in itself.
In Hodge v. The Queen (1883-4) 9 App. Cas.
117 it was held that in item No. 15 of section 92 of
The British North America Act, 1867 which pro
vides for "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 this Section", the word "imprison-
ment" there means restraint by confinement in a
prison, with or without its usual accompaniment,
"hard labour".
The converse is not so. When the punishment
prescribed is imprisonment with hard labour it
cannot mean imprisonment without hard labour.
In the 3rd edition of Halsbury's Laws of Eng-
land, (the Lord Simonds edition) Vol. 16, at pages
585-586, section 1217 the following appears:
1217. Application to offences. The provisions of Part I of the
Fugitive Offenders Act, 1881 (t), apply to treason and piracy
and to every offence which is for the time being punishable in
that part of Her Majesty's dominions in which it was commit
ted, either on indictment (u) or on information, by imprison
ment with hard labour (a) for twelve months or more, or by any
greater punishment (b).
Footnote (a) reads:
(a) Imprisonment with hard labour includes rigorous impris
onment and any confinement in a prison combined with labour,
by whatever name it is called (Fugitive Offenders Act, 1881
(44 & 45 Vict. c. 69), s. 9). The application of the Act is
therefore not affected by the abolition in England of imprison
ment with hard labour by the Criminal Justice Act, 1948 (11 &
12 Geo. 6 c. 58), s. 1(2). For a decision to the contrary,
however, see R. v. Morton-Stewart (1953), Times, 27th
March, at p. 6 (magistrate's decision in Western Australia).
Section 9 of the Fugitive Offenders Act, 1881
was identical with section 3 of the Fugitive
Offenders Act, R.S.C. 1970, c. F-32. With the
abolition of imprisonment with hard labour in
England by the Criminal Justice Act 1948 the
Fugitive Offenders Act was substantially revised
[1967, c. 68 (U.K.)] in that the offences for which
an offender may be returned to another of Her
Majesty's Realms are listed in a schedule as is
done in the Extradition Act. A corresponding
change in the Canadian statute has not been made
upon the abolition of imprisonment with hard
labour in Canada.
At one time, under the Penitentiary Act, a
sentence to imprisonment in a penitentiary was to
be served with hard labour. By section 1057 of the
Criminal Code, [R.S.C. 1927, c. 36] imprisonment
might be with or without hard labour at the discre
tion of the court for offences under the provisions
of certain parts of the Code. In other cases impris
onment may be with hard labour, if hard labour is
part of the punishment for the offence, and if such
imprisonment is to be with hard labour, the sen
tence shall so direct. With the advent of the aboli
tion of hard labour in Canada section 1057 was
not included in the 1955 revision of the Criminal
Code but section 660 (then section 653) was
introduced.
Section 660 reads:
660. (1) A sentence of imprisonment shall be served in
accordance with the enactments and rules that govern the
institution to which the prisoner is sentenced, and a reference to
hard labour in a conviction or sentence shall be deemed to be a
reference to the employment of prisoners that is provided for in
the enactments or rules.
(2) A conviction or sentence that imposes hard labour shall
not be quashed or set aside on the ground only that the
enactment that creates the offence does not authorize the
imposition of hard labour, but shall be amended accordingly.
In my view section 660 and its antecedent histo
ry is of no assistance in the interpretation of
section 3 of the Fugitive Offenders Act. As I see it
there were two different punishments, imprison
ment and imprisonment with hard labour and
section 660 is in the nature of a transitory provi
sion following on the abolition of hard labour as an
accompaniment of imprisonment. By section 660 a
sentence which imposes hard labour should not be
quashed for that reason but the sentence shall be
amended by the deletion of hard labour. By section
660(1) a sentence of imprisonment shall be served
in accordance with the rules which govern the
institution to which the prisoner is sentenced and if
the sentence should provide for hard labour then
that reference is deemed to be a reference to
employment of prisoners which the rules of the
institution dictate.
The need to govern the discipline of prisoners in
a penal institution is self-evident. The institutional
staff must have authority to enforce discipline and
the observance of standards of conduct necessary
for the orderly conduct of the institution. That the
inmates engage in useful employment relieves the
boredom of enforced confinement which, in all
likelihood, leads to breaches of discipline which
should be avoided and goes, as well, to the
rehabilitation of the prisoner.
There is no doubt whatsoever that the require
ment of inmates performing useful work is purely
administrative within the institution and as such
has nothing to do with punishment per se.
It is merely an incident to the punishment of
imprisonment. That being so I find it difficult to
follow how the prison rules requiring an inmate to
do useful work while there confined can possibly
be understood as being synonymous with a sen
tence of imprisonment with hard labour as it was
understood prior to the abolition of hard labour.
There is a dearth of binding authority on the
deeming provision of section 3 of the Fugitive
Offenders Act.
Oliver Nugent, the author of "Extradition and
Fugitive Offenders" in the third edition of Hals-
bury's Laws of England, was of the opinion that
the application of the Fugitive Offenders Act was
not affected by the abolition of imprisonment with
hard labour in England in view of the provision
that imprisonment with hard labour includes rigor
ous imprisonment and any confinement in prison
combined with labour by whatever name it is
called. This is evident from footnote (a). The
corresponding footnote in the two earlier editions
of Halsbury's Laws of England simply reads:
This includes rigorous imprisonment and any confinement in a
prison combined with labour, by whatever name it is called.
The fourth edition of Halsbury's Laws of Eng-
land was compiled after the Fugitive Offenders
Act, 1881 had been repealed and no note appears.
It is equally evident that the opinion of the
author of the article in the third edition was
unaffected by the decision in R. v. Morton-Stew-
art, London Times, 27 March, 1953, at page 6.
The report of this decision reads as follows:
MORTON-STEWART RELEASED
From our correspondent
Perth, WA., March 26
Norman James Edward Morton-Stewart, a Birmingham busi
ness man, against whom extradition proceedings had been
taken, was to-day discharged from custody by Mr. R. P.
Rodriguez, acting stipendiary magistrate. Mr. Rodriguez said
that for a man to be liable for extradition he must be liable for
a minimum term of 12 months' imprisonment with hard labour.
But under the English Criminal Jurisdiction Act, 1948, a term
of imprisonment recorded as "imprisonment with hard labour"
had been abolished. Morton-Stewart's counsel told the magis
trate that his client wanted to return to England but not in
custody.
Counsel for the parties have made efforts to
obtain from the registry of the magistrate's court
of Western Australia a record of the decision but
have been unsuccessful.
However it is evident from the press report,
which did not find its way into the Times Law
Reports, that the stipendiary magistrate held that
to be liable to be returned to the Realm where the
offence was committed the punishment must be a
minimum term of imprisonment with hard labour
but since imprisonment with hard labour had been
abolished in England the offender must be
discharged.
In Canadian Criminal Cases Vol. 18, at pages
167-168 the following note appears:
In R. v. Boyd (1896), editorially noted, 21 C.L.T. 80, the
accused was charged in London, England, with an offence at
Montreal under the Canadian Customs Act, and his deporta
tion to Canada was asked that he might be tried there for the
offence. The penalty, however, which the former Customs Act
then in force (R.S.C. 1886, c. 32, s. 192) provided for the
offence of fraudulently forging an invoice and making a false
declaration with a customs entry was a fine or imprisonment
for a term not exceeding one year or both fine and imprison
ment, but nothing was said in the statute about hard labour. Sir
John Bridge, presiding at Bow Street Police Court, discharged
the prisoner on the ground that the English statute 44-45 Vict.
c. 69 applied only to offences punishable with hard labour
which could not be imposed for the offence in question.
In Rex v. Governor of Brixton Prison. Ex parte
Percival [1907] 1 K.B. 696 Lord Alverstone C.J.
said at page 706:
I am of opinion that under s. 9 of the Fugitive Offenders Act,
1881, the magistrate has to be satisfied that the crime, "wheth-
er called felony, misdemeanour, crime or by any other name,"
is one "which is for the time being punishable in the part of
Her Majesty's dominions in which it was committed, either on
indictment or information, by imprisonment with hard labour
for a term of twelve calendar months or more, or by any greater
punishment."
That is to say that before a magistrate makes an
order for committal, he must be satisfied that the
offence is one which is punishable in the other
Realm by imprisonment with hard labour.
However in Ex parte Percival the prisoner was
discharged because there was no satisfactory evi
dence before the magistrate from which he could
so determine.
In Re Henry (1976) 23 C.C.C. (2d) 38, the
argument was raised before Eckardt, a provincial
court Judge, that because section 3 of the Fugitive
Offenders Act provides that an offence must be
punishable by imprisonment with hard labour for
twelve months or more and hard labour had been
abolished in England the application must fail
because the offences alleged against the fugitive
were not punishable by imprisonment with hard
labour in England which is precisely the argument
raised before me in the present instance.
The learned magistrate found that there was no
prima facie evidence that the alleged offence had
been committed and accordingly he did not have to
consider the argument that the offence was not
punishable by imprisonment with hard labour.
In an unreported decision in The Queen v. Dean
of His Honour Judge D. Vanek in the Provincial
Court, Judicial District of York, May 17, 1974,
this was said:
I have also considered another possible ground of objection to
an order being made under Section 12 of the Fugitive Offend
ers Act while this question was not raised or argued by counsel
on behalf of the fugitive, Dean. It is that the offences charged
in the information are no longer punishable in England by
imprisonment with hard labour and therefore do not come
within the application of the Act under Section 3, which reads
as follows:
3. This Act applies to treason and to piracy, and to every
offence, whether called felony, misdemeanor, crime or by any
other name, that is, for the time being, punishable in the part
of Her Majesty's Realms and Territories in which it was
committed, either on indictment or information, by imprison
ment with hard labour for a term of 12 months or more, or
by any greater punishment; and, for the purposes of this
Section, rigorous imprisonment, and any confinement in a
prison combined with labour, by whatever name it is called,
shall be deemed to be imprisonment with hard labour.
It appears that by the Criminal Justice Act, 1948, the
criminal law of England was amended by deleting all reference
to "hard labour" from all statutes of the United Kingdom
dealing with the sentences that may be imposed upon convic
tion for all criminal offences.
It would be strange if by this unilateral modification of the
stringency of its own penal laws the United Kingdom should
become deprived of the right and lose all benefit of extradition
under the Canadian Statute, a result obviously not intended by
either country. By definition in Section 3, however, the expres
sion "hard labour" includes "rigorous" punishment. The sen
tences charged in the warrant of arrest in the present case are
punishable with imprisonment for two years, as to one charge,
and a much longer term with respect to the other charge. I am
satisfied that a sentence of two years or more imposed in the
United Kingdom and equivalent to a term which in Canada
would be served in the penitentiary and being the punishment
reserved and provided for the commission of a serious offence,
constitutes rigorous punishment. Moreover, such a sentence of
imprisonment would import some labour and fall within the
designation of "any confinement in a prison combined with
labour". In this construction, the meaning and intent of Section
3 is to make the Fugitive Offenders Act applicable to serious or
major offences and not to minor or trivial charges. This con
struction was implicitly adopted by McRuer, C.J.H.C. in Ex P.
Rabin for while that case was decided some years after the
concept of "hard labour" was abandoned in the United King
dom, no objection appears to have been taken or reference
made to any suggested absence of jurisdiction on that ground. I
hold that the offences charged are offences to which the
Fugitive Offenders Act applies.
It was the provincial Judge's conclusion that
punishment of imprisonment for two years or more
without hard labour constitutes "rigorous impris
onment" and that such a sentence would import
some labour and therefore fall within the words
"any confinement in a prison combined with
labour" within the meaning of section 3 of the
Fugitive Offenders Act.
The provincial Judge states that the construc
tion he placed upon section 3 was implicitly adopt
ed by McRuer C.J.H.C. in Ex parte Rabin [1961]
O.W.N. 231.
I have read the decision in Ex parte Rabin with
care and I can find no justification therein that
this decision is authority for the proposition for
which he cites it.
McRuer C.J.H.C. directed his attention to sec
tion 12 and section 17 of the Fugitive Offenders
Act as to the evidence before the magistrate rais
ing a strong and probable presumption that the
fugitive committed the offences alleged against
him as required by section 12, and that it would be
unjust or oppressive or too severe a punishment to
return the fugitive. It was his opinion that the
evidence was flimsy under section 12 and that the
unreasonable delay in launching the prosecution
and the distance involved was oppressive to the
fugitive because of the difficulty of defending him
self after such a delay. He relied on a decision of
Lord Goddard to like effect. The Lord Chief Jus
tice refused to order the return of a fugitive
because the long delay there involved was prejudi
cial to the fugitive's defence and oppressive and
accordingly unjust in the light of all the circum
stances. There was no suggestion that the offences
were merely trivial and not of a serious nature.
A decision contrary to the applicant's contention
herein is found in Stafford v. St. Louis (1957) 107
Law Journal 507, a decision of the Supreme Court
of Trinidad and Tobago consisting of Mathieu-
Perez C.J. and Williams J.
Before the magistrate the fugitive admitted the
offence (escape from prison) but contended that
escape from prison was not an offence within the
Fugitive Offenders Act, 1881 because it was not
punishable by imprisonment with hard labour
which punishment was abolished by the Criminal
Justice Act 1948, [11 & 12 Geo. 6, c. 58].
Section 9 of the Act of 1881 is identical to
section 3 of the Fugitive Offenders Act of Canada.
The magistrate held that all sentences of imprison
ment in the United Kingdom constituted confine
ment in a prison combined with labour within
section 9 owing to the obligation in prison on
prisoners by Rule 56 of the Prison Rules 1949 to
engage in useful work for not more than ten hours
a day (a rule similar to that in the Hong Kong
Prison Rules).
On appeal it was held that the order was rightly
made by the magistrate. The offence of escape
from lawful custody had been punishable by
imprisonment with hard labour by virtue of section
29 of the Criminal Procedure Act 1851 [14 & 15
Vict., c. 100], (subsequently repealed) but that the
repeal of section 29 of the Act of 1851 by the
Criminal Justice Act 1948, and the abolition of
imprisonment with hard labour did not affect the
application of section 9 of the Fugitive Offenders
Act, 1881 owing to the wide meaning given to the
term "imprisonment with hard labour" therein.
Accordingly there are ranged on the side of the
applicant's contention R. v. Morton-Stewart, and
R. v. Boyd, both decisions of magistrates, and
contrary to the applicant's contention are R. v.
Dean, also a magistrate's decision and Stafford v.
St. Louis and the opinion of the author in the
article on "Extradition and Fugitive Offenders" in
the Lord Simond edition of Halsbury's Laws of
England.
The most authoritative decision mentioned on
this point is that in Stafford v. St. Louis.
However in Regina v. Governor of Brixton
Prison. Ex parte Sadri [1962] 1 W.L.R. 1304,
Lord Parker C.J. said at page 1308:
Before leaving that point, I should mention that Mr. Mathew
who, I think, is concerned with quite a number of these cases
representing requisitioning countries, in his anxiety to get all
the assistance he can out of this court, has pointed to the
difficulties nowadays of that expression, "imprisonment with
hard labour," particularly having regard to the words which
follow later defining hard labour as including "any confinement
in prison combined "with labour." He has really invited us to
say that in every case where evidence is now given as to a term
of imprisonment it should be inferred that that is imprisonment
with hard labour within the meaning of the section. I would
only say that I should hesitate very long before coming to that
conclusion. There may be a number of cases where distinctions
are capable of being drawn between what one might call simple
imprisonment and imprisonment of a rigorous nature. However,
it is unnecessary to come to any decision on that point, since in
any event the affidavit is defective in not saying whether or not
the offences are punishable on indictment or information.
While I recognize this statement by the Lord
Chief Justice to be obiter dictum it is nevertheless
most persuasive dictum. The proposition advanced
to Lord Parker was that by virtue of the deeming
provisions of section 9 of the U.K. Act (and sec
tion 3 of the Canadian Fugitive Offenders Act),
any imprisonment combined with labour, which
must follow when the rules of the prison require an
inmate to engage in useful employment, must
mean "imprisonment with hard labour". Lord
Parker expressed a very great and serious hesitan
cy in accepting that conclusion.
Lord Parker's dictum is consistent with my own
conclusion that simple imprisonment and impris
onment with hard labour are different punish
ments. I gain no assistance from the use of "rigor-
ous imprisonment" as used in section 3. Lord
Parker contrasts simple imprisonment with impris
onment of a rigorous nature. Therefore "rigorous
imprisonment" must be synonymous with "impris-
onment with hard labour". Further I fail to follow
that because the prison rules, which are purely
administrative rules for the better administration
of the conduct of the institution and of life of
inmates within a prison, require that an inmate
shall engage in useful employment that this can be
construed as punishment with hard labour or even
labour. It is not part and parcel of the punishment
of imprisonment but only arises as a necessary
consequence of convicted offenders being incar
cerated.
There remains the question whether prohibition
is the appropriate remedy.
Like all prerogative writs prohibition is discre
tionary to be granted or withheld according to the
circumstances of the particular case. It is to be
used with caution and forbearance for the further
ance of justice when none of the ordinary remedies
is available. In the present instance there is a right
to seek a review of the magistrate's decision, as a
persona designata, by an application to the Feder
al Court of Appeal under section 28 of the Federal
Court Act. However that right to apply for review
does not normally arise except upon the final
decision of the inferior tribunal but on that event
interlocutory and procedural decisions can be con
sidered to establish that the tribunal failed to
observe the principles of natural justice or other
wise acted beyond its jurisdiction.
However while prohibition is discretionary it
should be granted where the lack of jurisdiction is
apparent on the face of the proceedings.
In the present matter the question was raised
and argued before the learned provincial court
Judge who concluded that he had jurisdiction to
hear the matter on its merits. With respect to the
provincial court Judge I have reached a contrary
conclusion for the reasons expressed above from
which it follows that the magistrate will have
erroneously assumed jurisdiction to proceed to
hear the evidence and give judgment.
For the foregoing reasons and in the circum
stances of this particular case the application must
succeed, with costs to the applicant.
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