Ontario Queen's Bench, Osler J.A., 31 October 1884
A conviction under R. S. O. ch. 181, for selling liquor without a license, purporting to be made by three magistrates, but signed by two only, was returned with a certiorari.Held, if an objection at all, a ground for sending back the writ, that the third magistrate might sign the conviction, but not a ground for quash- ing it.
By R. S. O. ch, 181, sec. 85, where the act or omission complained of is one for which, if the defendant were not duly licensed, he would be lia- ble to a penalty under the Act, the burden of proving that he is licensed is on the defendant.
Held, no objection to a conviction that it did not show defendant was not licensed.
A penalty of 30 days imprisonment in default of sufficient distress for the fine was imposed.
Held, good under sections 51 and 59 of the Act.
The offence was selling liquor to an Indian.
Held, no objection to a conviction under R. S. O. ch. 181, for if so the defendant was guilty of two offences, one under the latter Act, and one under the Indian Act.
THIS was a motion, on 31st October, by Beck, for an order nisi to quash a conviction for selling liquor without the license required by law, on the grounds set out in the judgment, in which also the authorities cited are referred to.
October 31st, 1884. OSLER. J.A.--On the objections taken the motion is refused.
1. The conviction purports to be made by three, and is signed by two Justices only.
This, if an objection at all, is a ground for sending back the writ of certiorari in order that the third magistrate may sign the conviction. Either no convic- tion at all has been yet returned, and so the motion is premature, or there is a good one as regards this particular objection, because such a conviction is pro- perly made by two Justices. I am inclined to think there is nothing in the objection: Regina v. Smith, 46 U. C.R. 442.
2. The conviction does not shew the defendant is not licensed. The offense charged is one for which the defendant is liable to a penalty if not licensed, and sections 84
and 85 of the Act, R. S. O. ch. 181, shew that it rested on him to prove that he was licensed and did the act law- fully, a sale having been proved.
3. That a penalty of thirty days imprisonment, in default of sufficient distress, is ultra vires the magistrates.
The case comes under secs. 51 and 59, not under sec. 43, as a case in which the recovery of the penalty is not other- wise provided for than by sec. 59, and so the imprisonment in default of sufficient distress is lawful. Regina v. Rod- well, 5 O. R. 186, is a case under secs. 43 and 52 for selling during prohibited hours, and does not apply here.
4. The offence was selling liquor to an Indian, and defendant should therefore have been proceeded against under the Indian Act of 1880.
There is nothing in the evidence returned with the certiorari to shew that the sale was to an Indian, but even if it was, I see no reason for thinking that the defendant might not be liable to a penalty under both Acts. Regina v. Prittie, 42 U. C. R. 612, has no application. That case turned upon this, that the Liquor License Act could not be in force in a locality where the Temperance (Dunkin) Act was in force, so as to subject the defendant to a penalty under both Acts for doing the same thing. Here he has been guilty of two offences: 1st. Of selling without a license; 2nd, of selling liquor to an Indian.
5. No evidence to shew the locality of the offence, i.e., that it was committed within the jurisdiction of the magistrates.
There is evidence on which the magistrates were justi- fied in acting. The information and charge is for sell- ing liquor in the village of Caledonia, which I can judicially notice is in the County, of Haldimand (Regina v. Shaw, 23 U. C. R. 616; R. S. O. ch. 5, page 20); and Silversmith, the person to whom the liquor was sold, says he bought it "at the defendant's hotel in Caledonia," from the defendant himself. It appears, moreover, on the evi- dence, as returned by the magistrates, that the defendant admitted on the trial (as he was competent to do) that the
liquor was consumed on the premises on the day named in the information.
I cannot try on affidavit the question whether this admission was actually made. If it is a false statement the defendant may have a remedy against the magistrates, but on this proceeding I must take it as verity.
The motion is therefore refused.
Motion refused.