McKinnon v. Canada (Attorney General), (1974) 11 N.B.R.(2d) 119 (CA)

• Judge: Limerick, Bugold and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 20, 1974
• Jurisdiction: New Brunswick
• Citations: (1974), 11 N.B.R.(2d) 119 (CA)

McKinnon v. Can. (A.G.) (1974), 11 N.B.R.(2d) 119 (CA);

    11 R.N.-B.(2e) 119; 7 A.P.R. 119

MLB headnote and full text

Sommaire et texte intégral

McKinnon v. Attorney General of Canada

Indexed As: McKinnon v. Canada (Attorney General)

Répertorié: McKinnon v. Canada (Attorney General)

New Brunswick Court of Appeal

Limerick, Bugold and Ryan, JJ.A.

December 19, 1974.

Summary:

Résumé:

This case arose out of a remand of a paroled inmate into custody pursuant to s. 16 of the Parole Act by a judge of the Provincial Court. The accused applied to the New Brunswick Court of Queen's Bench for an order of certiorari to set aside his remand into custody. The application was dismissed.

On appeal to the New Brunswick Court of Appeal the appeal was dismissed and the judgment of the trial court was affirmed. The Court of Appeal stated that certiorari is not available with respect to an administrative act. The Court of Appeal stated that the Provincial Court judge exercised an administrative function only when he remanded the accused into custody pursuant to s. 16 of the Parole Act.

Administrative Law - Topic 5003

Judicial review - Certiorari - When available - The New Brunswick Court of Appeal stated that certiorari does not lie to quash an administrative act but is available only to review judicial acts - See paragraph 13.

Administrative Law - Topic 1026

Classification of power or function - Functions classified as administrative - Remand of paroled inmate into custody by a Provincial Court judge pursuant to s. 16 of the Parole Act - The New Brunswick Court of Appeal dismissed an application for certiorari because the Provincial Court judge exercised only an administrative function when he remanded the inmate into custody.

Cases Noticed:

R. v. Hetherington (1922), 50 N.B.R. 137, folld. [para. 13].

R. v. Fredericton, [1956] 2 D.L.R. 551, folld. [para. 13].

Statutes Noticed:

Parole Act, R.S.C. 1970, c. P-2, sect. 16(2) [para. 14].

Counsel:

Eric L. Teed, for the appellant;

Robert Vincent, for the respondent.

This application was heard by the Appeal Division on November 20, 1974. Judgment was delivered by the Appeal Division on December 19, 1974.

The judgment of the Appeal Division was delivered by Limerick, J.A.