criminals, not the infliction of vindictive suffering. A criminal must be put in jail for the safety of society, but not with the predecided theory in our minds that a criminal is irreclaimable . . To this end each province in the Dominion should aim to have one central jail. In some cases one would be sufficient for one or more provinces, for instance one institution would be sufficient for the three Maritime Provinces. We have jails and "lock ups" in every county and municipality which have all to be kept up. Even though some may seldom, if ever, be used for many years at a time, still they cost money General Hughes informs us that the average cost to the taxpayer to secure the conviction only of a prisoner in Canada is $1,200, and in addition to this we have to maintain him, and often his family, while he is so detained. The total average cost of a convict, including all penitentiary costs, is $2,800. This is no small matter, so that anything that will reduce the figure is a gain in the right direction.”

THE LAUSANNE TREATY AND CANADA. In the course of his interesting "Notes on Imperial Constitutional Law" in the November number of The Journal of Comparative Legislation and International Law, Professor A. Berriedale Keith observes upon the Treaty of Lausanne and the formal gesture of Canada in relation to it. Adverting directly to the fact that the Dominions were not invited. to be separately represented at the negotiation of this Treaty, he makes the following very important statement:-"It is now clear that, for reasons which are not public property, though they are well known, the Dominions were not invited to be separately represented

The step was clearly a concession to difficulties raised by France, and was a distinct derogation from the position attained by the Dominions at the Peace Conference of 1919, at that of Washington in 1921, and ascribed to them in the League of Nations." He then proceeds to point out that while Canada did not protest her exclusion from the deliberations that resulted in the Treaty, she made that the ground of her refusal to accept any responsibility for it after its consummation. Professor Keith seems to think that Canada's conduct throughout was nothing but prudent and correct. The issue must be faced sooner or later. Canada must have international equality with the United Kingdom in such matters, and cannot be satisfied with a policy of opportunism and "make-shift arrangements." To quote the learned Professor again :-" These rest essentially on the old idea of the British Government as in the ultimate issue supreme in respect of the foreign relations of the whole of the

Empire; a new orientation of outlook demands further concession by the British Government which it is probably too early for any Conference to determine."

CONTEMPT OF COURT.-There happened in Ontario the other day a case of contempt arising out of some contumelious strictures on a pending case by a journal, not on our exchange list, where the poet's words:

"Contempt and beggary hang upon thy back"

very aptly describe the situation. The editor has been sentenced to a long term in jail and the journal itself condemned in a fine of $1,000, and subjected to sequestration. We understand this means its final suspension from publication. We omit here the details of the case for lack of space; and it is not our purpose in making editorial reference to the episode to speculate upon the loss to polite literature involved in the purgation of the contempt, but to express our very great satisfaction in realizing that there are Judges on the Canadian Bench who are not afraid to vindicate the majesty of the law in the fullest measure when occasion invokes such vindication. This summary

power of punishment has been given to the courts not "to keep a blaze of glory around them," as an old case quaintly puts it, but as Lord Bowen once said, to prevent "any attempt to interfere with the administration of justice." It is primarily protection for the public, whose interest it is that the course of justice should not be impeded by the scandalous behaviour of any one. It is well known that many Judges-e.g. Sir George Jessel, M.R.-have let observations fall from the Bench concerning punishment for contempts of court by newspapers which have only lent boldness to irresponsible writers in irresponsible sheets. This recent Ontario case seems to indicate a return to the judicial temper of Willes, J., who some sixty odd years ago in a case of the kind expressed the aspiration to be "even valiant in preserving and handing down those powers to do justice and to maintain truth, which, for the common good, the law has intrusted to the Judges."

ours.

HONOURS FOR THE CHIEF JUSTICE.-The REVIEW has much pleasure in congratulating the Chief Justice of Canada on his recent honOn the 19th December he was notified that His Holiness the Pope had created him a Knight Commander of the Pontifical Order of St. Gregory the Great; and on the 23rd of the same month he was advised of the King's approval of his being sworn of His Majesty's Most Honourable Privy Council.

NOTES.

REVIEW BY CERTIORARI. The recent decision of the Privy Council in Hetherington v. Security Export Co., reversing the Supreme Court of Canada,' affirms the old rule that only a judicial act can be reviewed by certiorari, and that where the act is purely ministerial, the writ will not lie. This case brings into prominence an aspect of the law relating to certiorari which has never been made altogether clear and on which it cannot be said that either of these high tribunals has thrown much new light. This aspect is the theory underlying this rule which limits review to judicial acts.

While the rule has been established for at least two hundred years, the underlying principle has never been expressly declared, and the want of a definite theory has been responsible for some confusion of thought, even in the Supreme Court of Canada. It is submitted. that the ground for the distinction between judicial and ministerial proceedings is not a technical but a practical one and is simply this:it is not the acts themselves but the records thereof with which the Superintending Court is concerned; the record of a judicial act creates an estoppel; a ministerial act, however recorded, cannot. However erroneous a judicial record may be, if jurisdiction was not wanting, it cannot be questioned collaterally, but directly only; and unless there is a right of appeal certiorari is the only means of attacking the record directly and removing the estoppel. Ministerial proceedings, on the other hand, create no estoppel, and their validity may be questioned in any form of proceedings; a certiorari to review them is refused simply because it is unnecessary, and the law will do nothing in vain.

This theory, once stated, seems rather obvious. It, in fact, follows readily from the principles laid down as to what is such a judicial determination as can be dealt with by a Superintending Court in R. v. Local Government Board, and R. v. Corporation of Dublin,3 cited by Duff J. in the Supreme Court. When it is said that an order "imposes an obligation," "imposes liability" or "affects rights," this in effect means that the record of the order estops a party from denying the liability while the order stands. If he can go behind the

1 See (1923) S. C. R. 539: (1924) A. C. 988.

2 (1882) 10 O. B. D. 309.

(1878) 2 L. R. Tr. 371.

order, the liability, if any, does not arise from the order, but obviously from some other source.

In the Hetherington case, the point was whether a distress warrant to levy the amount of a provincial tax, could be removed by certiorari with a view to quashing. This warrant was issued by the Provincial Secretary-Treasurer under a statutory provision authorizing such action on default in payment.

To make the warrant quashable on certiorari it must have been regarded as evidencing something in the nature of a judicial determination, which would of itself impose an obligation or prejudicially affect the legal rights of the taxpayer. Idington, J. took the view that the Secretary-Treasurer was by inference given power to " decide and determine what the amount demanded should be,"and the learned judge evidently considered that this finding was to have the attribute of finality, for he remarks (545)-"this warrant of distress. seemingly combines judgment and warrant of distress in one document." He does not explain how he reconciles this view of the Act with another section which he quotes: "Any tax imposed by this Act may, at the option of the Provincial Secretary-Treasurer, be recovered by and in the name of the Provincial Secretary-Treasurer, by action in any Court of competent jurisdiction."

Before the Secretary-Treasurer could sue, the amount of the tax would have to be estimated; it is postulated that he was the person to determine the amount and that his mere determination was itself equivalent to a judgment. What possible object there could be in giving an opportunity to fix the liability a second time by a judgment in a Court of law is left a mystery.

The conclusion seems to be that the legislature never contemplated that the determination of the amount due should be in the nature of a judgement or in any way binding on the taxpayer. It was to be a mere matter of computation which could be shewn to be incorrect in any proceeding taken to enforce payment. The giving to the Secretary-Treasurer power to issue a distress warrant is quite intelligible on this basis. The right to self-help is well known to the law, but apart from statute is confined to a small group of rights, such as the collection of rent, the abatement of nuisances, etc. The legislature merely extended the remedy by self-help to the collection of taxes, but as the creditor was not an individual, it became necessary also to provide for some easily recognizable token that that creditor had authorized an agent to resort to this remedy. It was accordingly

* (1923) S. C. R. at 544.

stipulated that the signature of a certain official to the warrant should be the formal proof of such authority. The inference drawn, that the power to sign a document which in itself suggested nothing of the judicial, implied accompanying judicial powers, seems altogether unwarranted.

The judgment of Duff, J. seems curiously self-contradictory, a fact which escapes the notice of the Judicial Committee. In citing R. v. Local Government Board supra and R. v. Corporation of Dublin supra, he recognizes that it is the obligatory effect of a document which is the test of whether it is a judicial order, and at p. 554 he refers to "the conclusive quality which is the attribute of a judicial decision," while holding that there is an adjudication by the SecretaryTreasurer which can be quashed on certiorari. Yet elsewhere he says (p. 549): "I think it is quite clear that there is no duty and no authority to adjudicate in the sense of giving a binding decision as to the conditions under which the statute authorizes the issue of a warrant." And again (p. 557): “The statute cannot contemplate the issue of the warrant without inquiry by the Secretary-Treasurer into the facts, an inquiry which, though not judicial in the sense that his deci sion is binding, is judicial in the sense that it aims at ascertaining the facts with a view to a possible proceeding in the nature of an execution, the issue of which execution rests in his discretion."

In spite of the not unfavourable view which Lord Buckmaster took of this latter passage, it seems clearly fallacious. The first essential of a decision which is judicial in the sense of being examinable by certiorari is that it must be binding, must "impose an obligation."

Both Duff, J., Brodeur, J. (p. 565) and perhaps Idington, J., further appear to be strongly influenced by the idea that because the Secretary-Treasurer may choose between distress and action, and because he will doubtless consider facts and circumstances and weigh them before deciding according to his discretion, he is therefore acting as a judicial tribunal. This is a confusion of the exercise of judicial discretion with the exercise of a judicial jurisdiction. A person is not a judicial tribunal because he acts with a judicial mind or according to judicial standards. The power to impose obligation must be present. This is dealt with by Anglin and Mignault, JJ., who dissented, but an illustration may make the matter even clearer.

To return to the landlord; suppose he collects his rent through his agent, and finds that there is a dispute between the agent and the tenant as to the amount of rent due. He may even call them together, investigate all the facts, hear both sides, and altogether act with as

4-C.B.R.-VOL. III.