Bigelow v. The Queen
- Citation
- (1900) 31 SCR 128
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of Canada
- Decision
- 12 June 1900
- Posture
- Appeal / Appeal From Supreme Court of Nova Scotia Concerning Certiorari on a Magistrate's Conviction; Judgment on Procedural Defect (affidavit)
- Language
- English
More details
- Court
- Supreme Court of Canada
- Decision
- 12 June 1900
- Posture
- Appeal / Appeal From Supreme Court of Nova Scotia Concerning Certiorari on a Magistrate's Conviction; Judgment on Procedural Defect (affidavit)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The omission to produce the affidavit required by s.117 of the Nova Scotia Liquor License Act was a fatal procedural defect on the application for certiorari and justified vacating the certiorari order; accordingly the appeal was dismissed.
Court disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs.
- Order of the Supreme Court of Nova Scotia vacating the certiorari order upheld.
02
Material facts
Parties
Bigelow
Appellant Counsel: Borden Q.C.The Queen
Respondent Counsel: Longley Q.C., Attorney General for Nova ScotiaInformant
Informant Counsel: McLellan03
Procedural history
Posture
Appeal / Appeal From Supreme Court of Nova Scotia Concerning Certiorari on a Magistrate's Conviction; Judgment on Procedural Defect (affidavit)
04
Questions and positions
Legal issues
- 01
Whether the affidavit required by s.117 of the Nova Scotia Liquor License Act was required to be produced on the application for certiorari and whether its absence vitiated the certiorari order
- 02
Whether the constitutionality of the Liquor License Act should be decided prior to or instead of resolving the procedural defect
Party arguments
- Applicant
- Appellant argued the order for certiorari should not have been vacated despite the absence of the affidavit required by s.117 and contended the constitutional validity of the Liquor License Act should have been determined rather than deciding a technical procedural point.
- Respondent
- Crown submitted the failure to produce the statutory affidavit was a fatal procedural defect justifying vacatur of the certiorari; the matter was one of procedure under provincial statute and the constitutional question was unnecessary to decide.
05
Court’s reasoning
Legal principles
- 01
Liquor License Act, 1896 s.117; applied by Supreme Court of Canada in Bigelow v. The Queen (1900)
A statutory affidavit required on an application for certiorari must be produced; failure to comply with such a statutory requirement is a fatal procedural defect warranting vacatur of relief obtained without it.
- 02
Supreme Court of Canada (Bigelow v. The Queen, 1900)
Courts should decide constitutional questions only when necessary; procedural defects may dispose of a case without reaching constitutionality issues.
06
Ratio, limits and disposition
Ratio decidendi
The omission to produce the affidavit required by s.117 of the Nova Scotia Liquor License Act was a fatal procedural defect on the application for certiorari and justified vacating the certiorari order; accordingly the appeal was dismissed.
Obiter and limits
- The constitutionality of the Liquor License Act was not decided by the majority because the case was disposed on procedural grounds.
- Justice Gwynne dissented, stating the constitutional question should have been decided before resolving the technical affidavit issue.
Court disposition
Appeal dismissed with costs.
- Appeal dismissed with costs.
- Order of the Supreme Court of Nova Scotia vacating the certiorari order upheld.
Source and reliance status
Supreme Court of Canada · 12 June 1900
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Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Canada
Judgment· 12 June 1900
Bigelow v. The Queen Collection Supreme Court Judgments Date 1900-06-12 Report (1900) 31 SCR 128 Judges Strong, Samuel Henry; Taschereau, Henri-Elzéar; Sedgewick, Robert; Gwynne, John Wellington; King, George Edwin On appeal from Nova Scotia Subjects Constitutional law Decision Content Supreme Court of Canada Bigelow v. The Queen (1900) 31 SCR 128 Date: 1900-06-12 Bigelow v. The Queen 1900: May 1; 1900: June 12. Present:—Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and King JJ. Nova Scotia Liquor License Act, 1896—Conviction by magistrate—Jurisdiction—Application for certiorari—Affidavit—Constitutional law—Powers of provincial legislature—Matter of procedure. Appeal from the judgment of the Supreme Court of Nova Scotia[1] vacating the order of Ritchie J. for certiorari on a conviction against the appellant, on the ground that the affidavit required by sec. 117 of the Liquor License Act, 1896, had not been produced on the application for the writ of certiorari. After hearing counsel for the parties, the court reserved judgment, and on a subsequent day, dismissed the appeal for the reasons given in the judgment appealed from, Mr. Justice Gwynne dissenting, and holding that the question of the constitutionality of the Liquor License Act should have been decided before entering upon the technical point respecting the affidavit. Appeal dismissed with costs. Borden Q.C. for the appellant. Longley Q.C., Attorney General for Nova Scotia, for the Crown. McLellan for the informant. [1] 31 N. S. Rep. 436.
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