The sole question for us is whether there ought to be a case stated on the question of the sufficiency of the evidence, and we think no object can be gained by such a proceeding. Application refused.

OSLER, GARROW, MACLAREN and MEREDITH, JJ.A. concurred in the result.

Leave refused.

[COURT OF KING'S BENCH, QUEBEC.]

(Crown Side.)

DISTRICT OF MONTREAL.

BEFORE THE HONOURABLE MR. JUSTICE CROSS.

THE KING v. GRATTON.

Habeas corpus-Summary conviction-Hard labour-Recital of conviction in warrant of commitment-Memorandum of fine and imprisonment endorsed on information not stating hard labour-Onus of proof-Effect of memorandum of adjudication—Incompleteness—Cr. Code (1906), secs. 727, 1057.

1. The imposition of hard labour upon a commitment following a summary conviction will not be held invalid merely on the ground that the memorandum of the term of imprisonment endorsed by the magistrate on the information did not mention hard labour; such memorandum is not conclusive as to the actual adjudication and where the warrant of commitment recites a conviction with hard labour, the onus is upon the accused to shew, either by the conviction itself or by proof of the actual adjudication pronounced that hard labour which the magistrate might legally impose was not ordered.

Ex parte Carmichael (1903), 8 Can. Cr. Cas. 19, distinguished.

DECIDED: October 28, 1910.

CROSS, J.-The petitioner Gratton, now before me in obedience to a writ of habeas corpus, appears by the return to be

detained in gaol by virtue of a warrant of commitment issued out of the Recorder's Court on the 8th March, 1910.

He was committed to prison for three months at hard labour, the three months to run after expiration of the terms of two previous convictions, and, in default of payment of a fine of $100 for three other months to run after the prior period of three months. Hard labour is not imposed in respect of the second term of three months.

The second period of the term, that is the term of imprisonment in default of payment of the fine, is now running.

On the back of the record of complaint in the case, which complaint has been exhibited to me, there is the following entry: "3 mois.

"100 ou 3 mois."

It is said for the petitioner that this entry is a minute of adjudication such as is directed to be made by section 727; that it makes no mention of hard labour as does the commitment; that the inclusion of hard labour in the formal conviction and commitment was unauthorized and illegal, that the commitment is therefore void and that he should be discharged from custody.

Section 1057 is cited to shew that, if hard labour is adjudged, the sentence shall so direct; so that it would result that if the entry on the information had necessarily to establish the entire punishment awarded, it would have to be said that this commitment was bad.

Reliance was placed, in support of the application, upon the decision in R. v. Carmichael, 8 Can. Cr. Cas. 19, which was said to be identical with this case, and it is said to have been recently followed in this Court in R. v. Kirwin.

It is not disputed that the commitment, taken as it stands, recites a conviction valid in form. The question therefore comes to be whether the conviction so recited is to be taken as the real adjudication made in the case, or whether the entry or so-called minute is to be taken, upon the strength of the peti

tioner's affidavit to that effect, as shewing what the real adjudication was.

The wording of section 727 is:

"If the justice convicts or makes an order against the defendant, a minute or memorandum thereof may then be made . . and the conviction or order, in such case, shall afterwards be drawn up by the justice on parchment or on paper in such one of the forms of conviction or of orders form 31 to 36 inclusive as is applicable to the case or to the like effect."

It is said, for the petitioner, that, if there be something in the formal conviction which is not in the minute then the conviction is by so much a new judgment given without authority when the justice was no longer seized of the case.

What appears to be clear enough is that a justice, who has pronounced his adjudication of guilt and of punishment, cannot afterwards put into a written conviction something which he did not adjudge.

The question is what adjudication really was made in this case? It cannot be said, if a real and warranted judgment has been pronounced, that there is no such judgment if the minute of it be inadequate or incorrect.

Thus, it has been held that "although a magistrate has delivered to the defendant a copy of conviction stated to be the justification for the proceedings which followed the adjudication, he is not precluded thereby from drawing up and returning a conviction in a formal shape, and the latter will be taken as the authentic record of the proceedings." Basten v. Carew, 5 D. & R. 558; R. v. Huntington Justices, 5 D. & R. 588; R. v. Allan, 15 East. 333; Paley, Summary Convictions, 8th ed., pp. 318 to 322.

It is doubtless true that "the corrected statement must be conformable to the facts as they really took place." R. v. Simpson, 10 Mod. 382.

It is said in Archibald, p. 227, that "the Court may, at any

time during the same assizes or sessions, or any adjournment thereof, vacate the judgment passed upon the defendant, before it has become matter of record and pass another, less or even more severe. When once the judgment is solemnly entered on the record, no Court can make any alteration in it."

Turning now to the decision in Ex parte Carmichael, 8 Can. Cr. Cas. 19 (N. 5), I find it to have been asserted for the prisoner that "the affidavits in support of the application shew that the magistrate when sentencing the accused only directed that she should be confined for three months. The magistrate's minute does not contain any adjudication as to hard labour."

The report further shews that "the Attorney-General and the informant did not shew cause against the application, although notified.

"McDonald, C.J., ordered the defendant's discharge on the ground of variance of the warrant of commitment and of the conviction from the actual adjudication."

This would go to shew that Carmichael was committed to do hard labour without having been condemned to hard labour. Here, I have nothing in the so-called minute to go upon but the entry "3 mois, 100 ou 3 mois." There is really no definite indication of any adjudication at all such as there was in the Carmichael case. It is pointed out in Mr. Crankshaw's edition of the Code (sec. 859) that the minute is merely a short statement in writing such as the following: "I find the defendant guilty of the assault herein charged and adjudge him to pay a fine of ten dollars, etc."

Where there is no minute, the conviction itself if made at the time is a sufficient compliance with sec. 727. Ex parte Flannagan, 2 Can. Cr. Cas. 513; Ex parte Van Buskirk, 13 Can. Cr. Cas. 234.

My attention has been called to section 490 of the City Charter (62 Vict. ch. 58) in the part which relates to the Recorder's Court.

As this speaks of a judgment of disposal which is to be

written into a register while the notes of proceedings may be merely entered upon the back of the information, it is to be inferred that the adjudication as really pronounced would be found summarized in that book, but no copy of the entry in the book has been produced.

Apart, however, from the effect of this statutory provision, I consider that I must take the formal committal, as returned to me the conviction itself not having been produced-as shewing what the actual adjudication was in the absence of any more satisfactory contradiction of it than is to be found in the entry above quoted and in the assertion of the petition sworn to only by the petitioner himself and this by general affidavit to the effect that the allegations of the petition are true.

The minute is only a minute. The proper evidence of conviction is the formal conviction itself. It is true that, when the pretention is that the recital of the formal conviction is not according to fact, the minute is an important piece of evidence to shew the real fact, but, having regard to the nature of the entry made on the back of the information, I do not feel warranted in concluding from it and from the merely general affidavit of the petitioner, that the acting recorder committed such a violation of law as to change and add to a judgment which he had previously pronounced.

I ought to add that I have had the benefit of having seen the notes of the learned Judge who recently decided the Kirwin

case.

In the Kirwin case, however, the acting recorder appears to have made a real minute of adjudication both of guilt and of punishment, without mention of hard labour in the punishment. In such a case, the learned Judge found that what purported to be a specific statement of the adjudication in the minute was contradicted by a later act in respect of the hard labour. I do not so find here. The anterior act is of so inchoate a character that I do not treat it as destroying the recitals of the formal conviction.