Note-Continued.

Summary conviction procedure-Application for summons or warrant-Cr. Code (1906) secs. 655, 711.

ary enquiries for indictable offences. The decision in R. v. Neilson, supra, seems to cast a doubt upon the correctness of that practice as it is therein stated, without limitation to the new sub-sections introduced in 1909, that section 655 "does not apply to prosecutions under summary convictions, it is only applicable to charges of indictable offences.'

So, before 1909, it was held that the combined effect of sections 654, 655 and 711 of the Code is that it is discretionary with the magistrate to issue either a summons or a warrant as he may deem best. R. v. McGregor (1895), 26 O.R. 115, 2 Can. Cr. Cas. 410, 413; and that the information must be upon oath where a warrant is asked. R. v. McNutt, 3 Can. Cr. Cas. 184 (N.S.); R. v. William McDonald (1896), 3 Can. Cr. Cas. 287.

The magistrate is himself to exercise this discretionary power, it being a judicial act. R. v. Ettinger (1899), 3 Can. Cr. Cas. 387, 32 N.S.R. 176; R. v. McGregor (1895), 26 O.R. 115, 2 Can. Cr. Cas. 410, 413 (Ont.); Thompson v. Desnoyers (1899), 3 Can. Cr. Cas. 68 (Que.).

A justice of the peace who issues a warrant of arrest without inquiring into the grounds which the complainant had to suspect the accused, becomes liable towards the latter under the laws of Quebec, when the complaint was not justified by any serious, reasonable or plausible ground. Murfina v. Sauve (1901), 6 Can. Cr. Cas. 275 (Que.).

In Quebec province it has recently been held that a warrant of arrest issued by a justice on the sworn information of the complainant is not invalid for failure of the justice to first examine the complainant's witnesses as permitted by Code section 655 (amendment of 1909). Ex parte Archambault (1910), 16 Can. Cr. Cas. 433, and see annotation following that case.

[SUPREME COURT OF NEW BRUNSWICK.]

BEFORE TUCK, Č.J., AND HANINGTON, BARKER, AND MCLEOD, JJ.

THE KING v. CHESTNUT.

Jurisdiction-Summary conviction-County or judicial district—Alien labour law-Offence by Canadian employer of soliciting alien immigrant under promise of employment-"Any Judge of a County Court" -No jurisdiction over employer at point of entry unless act of solicitation in that county or employment given there-Locality of offenceAlien Labour Act, 60-61 Vict. (Can.) ch. 11 (R.S.C. 1906, ch. 97, sec. 2) Cr. Code (1906) secs. 2 (18), 705, 706.

1. Where neither the employment of the alien in Canada nor the solicitation to immigrate to Canada took place in the judicial district in which the prosecution of the employer was instituted for an infraction of the Alien Labour Act, the County Judge of that district has no jurisdiction, although the alien immigrant entered Canada in that district in pursuance of defendant's solicitation in the foreign country.

DECIDED: February 10, 1906.*

Motion to make absolute an order nisi for an offence under the Alien Labour Act.

F. R. Taylor, shewed cause.

H. A. Powell, K.C., supported the order.

FREDERICTON, N.B., February 12, 1906.

TUCK, C.J.:-This is an application to quash a conviction. by the Judge of the County Court at St. John, whereby the defendant was convicted and fined fifty dollars, for that he did between the first day of December, 1904, and the thirtyfirst day of January, 1905, at the town of Oldtown in the State of Maine, one of the United States of America, knowingly solicit the immigration of Allie F. Ayer, a foreigner,

*Also reported sub nom. R. v. Forbes, Ex parte Chestnut, 37 N.B.R. 402.

into Canada, to wit at the city of Saint John, in the city and county of Saint John, to perform labour under agreement with the said Allie F. Ayer previous to his immigration or becoming a resident or citizen of Canada, contrary to the provisions of chapter 11 of 60 & 61 Vict., Parliament of Canada, intituled "An Act to restrict the importation and employment of Aliens" and an Act in amendment thereof, being chapter 13 of 1 Edw. VII.

For every violation of the Act every person so violating it is liable to forfeit or pay a sum not exceeding one thousand dollars, nor less than fifty dollars.

In an affidavit dated the twenty-fifth day of February, 1905, and sworn to at Fredericton, in the county of York, Arthur Gallagher says: (1) "That Messrs. R. Chestnut & Sons of the city of Fredericton are at present engaged in the manufacture of canvas canoes; (2) That I have been informed by an employee of the said R. Chestnut & Sons, and do verily believe, that they the said R. Chestnut & Sons have in their employment four citizens of the United States of America engaged in the manufacture of canvas canoes, and that the names of the said American citizens are R. H. Wickett, George Ayer, Allie Ayer, and Herbert King, respectively, whose homes are all at Oldtown in the State of Maine, one of the United States of America."

Beside this one there are several other affidavits which shew conclusively that the defendant did solicit Ayer, an American citizen, to leave Oldtown to go or immigrate to Fredericton to be employed there under a contract made by the defendant with him at Oldtown in the manufacture of canvas canoes.

In fact it is admitted by the defence that the employment was made at Oldtown and completed at Fredericton in the county of York.

A large number of objections are taken to the conviction. I propose to consider only a few of them. The Judge of the County Court must necessarily have considered that three facts were established: First, that the person employed was an alien;

Second, that the defendant did employ the alien Ayer in the manufacture of canoes and did induce him to come to Canada for that purpose; and third, that the industry was not a new industry not at that time established in Canada. With these conclusions I entirely agree. As to the question whether the industry was a new one, it was new only in a sense. The canoes manufactured by the Messrs. Chestnut were covered with canvas, and not with bark; but it was not a new article, and the making of canoes is not a new industry in Canada. It is as if some one imported a workman to assist in making "concord waggons,' using some new material in the construction. That work would not be a new industry but only another, and perhaps an improved, method of making concord waggons. It may very well be that canvas-covered canoes are better than the old kind; but that does not make the manufacture of them a new industry. Canoes were made long before canvas coverings were thought of. This question of "new industry" is the one which the Judge of the County Court refers to as being principally relied upon by the defence. With his conclusion on this question I agree.

But there are other questions quite as important as the new industry question.

There are twelve grounds of objection urged. Most of them, in my view of the case, it is not necessary to consider, nor give an opinion on them. For instance, a considerable part of the argument was directed to, and a large number of cases were directed in support of this point:-"Is the Act in question ultra vires?" It does not become necessary for me to decide that point now. If it were, I would leave it to the Supreme Court of Canada, and say that the Parliament of Canada was within its right to pass the Act.

All the other questions of defence raised against the conviction may be important, and doubtless are, but without discussing them in detail, and leaving them for perhaps future consideration, I prefer to rest my judgment on one point: the want of jurisdiction of the County Court Judge. Where did he get the

right to hear the complaint? Certainly not under the Act. As well might the matter have been heard in Restigouche as in St. John. If indeed the offence was not completed until Ayer arrived at Fredericton, and was employed there by Chestnut & Sons, how did Judge Forbes get jurisdiction over this offence consummated in the county of York? There is no pretence that any offence was committed within the city and county of Saint John, where he had jurisdiction to try offences of this character. The conviction must be quashed.

BARKER, J.-I agree that the conviction must be quashed, but I limit the decision as far as I am concerned to the last point, that of jurisdiction. The other points are important and can be decided when they necessarily arise for decision.

HANINGTON, and MCLEOD, JJ., concurred in the result.

Conviction quashed.

Note: This case is considered and distinguished in the next following case, Re Braithwaite, by the Supreme Court of New Brunswick, but it will be observed that only two of the Judges (Barker and McLeod, JJ.) who decided R. v. Chestnut, sat in the later case of Re Braithwaite. Notwithstanding the difference between the statutes in question in these two cases, the decisions appear to conflict on the principle of interpretation to be applied.